author: Minshall, J.

text:
    Case v. Hall, Admr.

      Wills — Consiruction-^Suit to recover legacy.

      1. Where land is devised in fee simple with direction to the devisee to pay certain legacies as each legatee attains the age of twenty-one years, the devisee, on accepting the devise, becomes personally liable to pay the same as directed by the testator.
    2. And where, in such case, the devisee dies before all the legatees attain the requisite age, his estate, as an entirety, remains liable to such as thereafter become of age; and it is the duty of his administrator, having assets, to pay the same.

      3. Again, in such case, where the legatees become the owners of the land, not by the provisions of the will buc by descent, the legacies, remaining unpaid, are not extinguished by merger or otherwise, but must be paid from the personalty of the deceased devisee, where that is sufficient, as any other debt of his estate.

      Decker v. Decker, 3 Ohio Reports, 157, distinguished.
    (Decided October 16, 1894.)
    Error to the Circuit Court of Delaware county.

      Jones, Lytle & Jones, for plaintiff in error.
    Where lands are devised to one who, by the will, is directed to pay a leg’acy, the legacy is a charge upon the lands devised,, and when the legacy is made a condition of that devise, its acceptance creates also a personal liability to the leg’atee which may be enforced without resorting to the land, the lien still remaining as a security. Porter v. Jackson, 95 Ind., 210.
    Where the devisee of lands, charged by the will with the payment of certain legacies, accepts the.devise, he thereby assumes the burden imposed by the testator, and becomes personally liable, to the payment of the legacies. Dunne v. Dunne, 66 Cal., 157.
    The acceptance of a devise of land renders the devisee personally liable for a legacy charged upon the land. Williams v. Nicholas, 47 Ark., 254; Brown v. Knapp, 79 N. Y., 143; 2 Redfield. on Wills, 209 \ Meusch v. Meusch, 2 Lans., 235; McLaughlin v. McLaughlin, 9 Paige, 534; Wood v. Wood, 20 Barb., 350; Dodge v. Manning, 1 N. Y., 298; Reynolds v. Reynolds, 16 N. Y., 257; Girdly v. Girdly, 24 Ind., 130; Harris v. Fly, 7 Paige, 421; Olmsted v. Brush, 27 Conn., 530; 19 Am. Decisions, 392; Fox v. Phillip, 17 Wend., 393; 6 John. Chan. Reports, 33, 36.

      We maintain with respect to all claims founded upon any obligation, contract, debt, covenant or other duty that the right of action, on which the testator or intestate might have been sued in his lifetime, survives his death, and is enforceable against his executor or administrator, and that the executors or administrators are answerable, as far as they have assets, for debts of every description due from the deceased; either debts of record, as judgments, debts due on special contracts, covenants, or debts on simple contract, and promises not in writing', either expressed or implied. William on Executors, vol. 3, 1721.
    It is clear, also, that in many eases a liability may accrue against the executor or administrator after the death of the testator or intestate upon a contract made in his lifetime, although the executor or administrator be not named therein. Williams on Executors, vol. 3, 1824, and authorities cited; Woerner on Administration, vol. 2, 1099, and authorities cited; Bispham’s Equity, 409, and note 1, p. 411; Thompson v. Thompson, 4 Ohio St., 333.
    The acceptance of the devise under the will is a promise to pay, for a valuable consideration, the sums of these legacies, and the legatees may recover it in an action of assumpsit against the devisee upon the same theory that, if for a valuable consideration, A promises B to pay C a sum of money, C may recover it in an action of assumpsit against A. 1 Chitty’s Pleadings, 4, 5, 6 ; Crumbaugh v. Kugler, 8 Ohio St., 549; Thompson v. Thompson, 4 Ohio St., 333; Clyde v. Simpson, 4 Ohio St., 459; 6 and 7 Abridged Edition of Johnson’s Chancery Report, 15; Alexander Fuller v. McEwen, 17 Ohio St., 288.

      We maintain that these legacies, including the legacy to the plaintiff;, were intended by the will of Major Bartholomew to be made a charge on the person of Benjamin F. Bartholomew. Ex'rs of Decker v. Ex'rs of Decker, 3 Ohio, 167; 6 Johnson, 192.

      J. T. Holmes, for defendant in error.
    There are many cases in the books wherein it is said obiter dicta and in syllabi that the devisee becomes personally liable by accepting the devise; some go so far as to say that he so liable, even if the property devised is sufficient to pay the debts or legacies charged thereon; that the only way he can avoid such liability is to decline the devise.
    Many cases hold that when a devisee has aliened the land for a consideration, the estate of the devisee must be exhausted before the lien on the land can be enforced. The cases which suggest that the devisee is liable personally, hold that the lien continues on the land, and may be enforced even against the vendees of the devisee. Clyde v. Sinypson, 4 Ohio St., 459.
    The principles which determine this cause between the parties, are consistent with well settled doctrines, and present unique phases only as they arise on unique facts.
    It still remains true for this, and all such cases that:
    1. By accepting a devise of the fee of property charged with debts, or legacies, devisees, by implication, become personally bound to pay such equitable encumbrances.
    2. A testator is presumed by his devise or bequest, to intend some benefit to the object of his bounty, and his will should be so construed as to give effect to such, intention, unless its terms are such as clearly to require a different interpretation. •
    3. Where legacies charged upon real estate, devised by a father to. a son, mature at intervals covering a series of years, and the devisee, having accepted such a devise, dies after payment of part thereof, and the title to said devised property, by descent cast, vests in such legatees in fee, the testator will not be presumed to have intended that the personal obligations of the son to pay, extended beyond legacies falling due during’ the lifetime of the devisee, or that the estate of such devisee, other than his interest in such devise, should be liable for .the payment of such unpaid legacies.
    It is an unusual thing to see a legatee in court insisting that his legacy shall be paid out of one fund to the prejudice of another. Ordinarily one would suppose that the claimant would be satisfied with his legacy, leaving those who pay to take the responsibility of determining the source of revenue. The plaintiff here insisting, with might and main, that he shall have $1,000 and interest, out of his uncle’s estate, because, forsooth, he and his brothers and sisters have acquired, without scrip or staff, or any kind of consideration, the ancestral property that was the consideration for payment by that uncle, of the legacies charged on the property maturing in his lifetime.
    The claim of plaintiff, in the light of the facts, from the first has been, and now is, unconscionable and unjust. *
    Chancellor Kent, in the Lupton case, 2 John, Ch. 614, seems to recognize the principle that such a • devise embodies a condition precedent to the vesting. 2 Lomax Exrs., 90; 2 Redf, on Wills, 209, note 9; Hoyt v. Hoyt, 85 N. Y., 142.
    This land is the primary and sufficient, the intended and the only equitable source or property, for the payment of the plaintiff’s legacy. McCollough v. Copeland, 40 Ohio St., 329; Fuller v. Fuller, 84 Me., 475.
   Minshall, J.

The suit below was an action for the recovery of a legacy, brought by the legatee against the administrator of a devisee, who, as is claimed, was personally bound to pay it. ■ Judgment was rendered for the defendant, which, on error, was affirmed by the circuit court and the plaintiff excepted. Error is prosecuted here to reverse both these judgments. The facts are as follows : On October 30,1874, Major Bartholomew died, leaving a will which was shortly afterward admitted to probate and record. By his will he devised to his wife all his personal estate, and an estate for life in one-third of all his real estate, ‘ ‘ save that this day deeded by myself and wife to Benjamin F. Bartholomew, ” and at her death to go to my son, Benjamin F. Bartholomew. Then follows the items on which the question arises in this case, and which are as follows:

“Fourth — I give, bequeath and devise to my son all the remainder of my real estate, being two-thirds of the same, after he shall pay to the heirs of my daughter, Emily Jane Case, the several amounts hereinafter bequeathed to each of said heirs.
Fifth — I give and bequeath to the heirs of my deceased daughter, Emily Jane Case, one thousand dollars each, to be paid to each of them by my son, B. F. Bartholomew, as they become twenty-one years of age.” ■ •

On the probate of the will, November 3, 1874, Benjamin took possession of the land devised to him, used and occupied it as his own to the time of his death, receiving all the rents and. profits, amounting to some $13,500. He died April 27,1888, leaving a widow and an only son, Leslie Bartholomew, who died December 1, 1888, intestate and without issue. The heirs of Emily J. Case were her children, eight in number, all of whom became of age and were paid their legacies during the lifetime of Benjamin, except the plaintiff, who became of age March 7, 1890, and W. P. Case, who, though he became of age February 29, 1888, had received but one-half of his legacy.' Hall was duly appointed administrator of Benjamin, accepted the trust and qualified as such; and the plaintiff, on arriving- at age, presented his claim for the payment of his legacy with interest from the time he became of age which was rejected.

Whereupon the plaintiff brought his suit, and the widow of Benjamin having been made a party at the instance of the administrator, both answered. There is, however, no controversy as to the facts, On the death of Leslie, the son of Benjamin, intestate and without issue, the land inherited from his father, passed by descent to his cousins, the heirs of Emily Jane Case, deceased, and of whom the plaintiff is one. His mother took the personalty, and, as widow, was entitled to her portion of that of his father’s estate. The question presented is, whether in view of the facts and the languag-e of the will, the leg-acy bequeathed the plaintiff by the will of his grandfather, became a personal obligation of Benjamin Bartholomew on his accepting the devise of the land made to him. The plaintiff claims -that it did; the defendants claim that it did not; that no personal obligation attached until the time appointed for the payment of the legacy; and this not having arrived until after the death of Benjamin, no personal obligation can be asserted against his estate; and that the plaintiff must look to the land on -which his legacy is simply a charge and no more. This view seems to have prevailed in both the lower courts, but we are unable to adopt it. Whilst many cases may be found in which a question was made as to whether a certain legacy had, by a fair construction ' of the will, been charged on land devised, none has been cited, where, in a case like this, the entire fee simple is devised to one with direction to pay certain legacies, an acceptance of the devise does not, without question, impose a personal obligation on the devisee to pay the legacies. Thus, in Glen v. Fisher, 6 John.,Ch. 33, it is held that, where land is devised charged with the payment of a legacy, and the devisee accepts the devise, he is personally and absolutely liable for the legacy; and he has no right to require of the legatee, before payment, a security to refund, .in case of a deficiency of assets, to pay debts. And in Fuller v. McEwen, 17 Ohio St., 288, this court stated the rule in substantially the same language, and held* that in an action to enforce such personal obligation the fact that the devisee or legatee is or is not also the executor of the will, makes no difference in the case. The rule is also recognized and stated in Yearly v. Long, 40 Ohio St., 27. The rule is thus stated in Porter v. Jackson, 95 Ind., 210: Where lands are devised to one who, by the will, is directed to pay a legacy, the legacy is charged upon the land devised, and when payment of the legacy is made a condition of the devise, its acceptance creates also a personal liability to the legatee which may be enforced without resorting- to the land, the lien still remaining as a security. Many other cases might be cited to the same effect, and are sustained by text writers of standard authority. Woerner Am. Law of Administration, 1099. Williams on Executors, 1704, 1272.

The rule rests upon the reasonable principle, that he who takes a benefit under a will, must take it subject to its provisions; any other construction would necessarily defeat the intention of the testator. So that where a devisee is required to pay legacies to others, an acceptance of the devise imports a promise to pay the legacies; - and the legatees have the right to maintain an action thereon for its non-performance, as though the promise had been made to themselves.

There is, we think, no ground for the contention that the estate in the land, devised to Benjamin, did not vest until the payment of the legacies had been made. Payment is not made a condition precedent to the vesting- of the estate; the effect of the language employed is simply to charge the land as a security for the payment of the legacies. Thompson v. Hoop, 6 Ohio St., 480, 489; Woerner on Administration, 592. Therefore, Benjamin took an estate in fee simple in the land, devised to him, on the death of the testator.

It is claimed, however, that while such is the general rule, the facts bring this case within the principle on which Decker v. Decker, 3 Ohio, 157, was decided, That was regarded by the court as a novel ease. The land was devised by his fathex to Jacob Decker with direction to pay certain legacies at different times in the future to the other children of the testator, with a limitation that if Jacob should die without issue, the estate should go to these other children. By this provision the court held that the devisee took simply a life estate in the land, and that this negatived any intention to make the legacies, before they became due, a personal liability of the devisee. The apparent injustice of charging the devisee personally with the legacies, though the estate might terminate by his death before he received any benefit therefrom, influenced the .court in making the holding that it did. And the judge delivering the opinion observed that: “A devise of the fee, has been considered as sufficient to show an intention in the testator, to create a personal charge, while a devise of any inferior interest, as an estate for life, is taken to indicate an intention to charge the land, and not the person of the devisee.” In the case before us the land was devised in fee, and was of much greater value than the legacies the devisee was required to pay. ' Subject to the payment of the legacies he could deal with it as he pleased, and did so. At his death, it passed by operation of law, to his son as his heir, and not by the provisions of the will of his father; and this marked distinction in the facts clearly distinguishes the case from that of Decker v. Decker. Here the entire subject of the devise became, by its acceptance, the property of the devisee, charged, however, with the payment of the legacies. It went to increase the amount of his estate, less only the sum of the legacies to be paid. The fact that he might die before the time fixed for the payment of any or all of the legacies, was not, under the provisions of the will, in any way, to affect the quantity of his estate in the land. Whether he paid any or all of the legacies during his lifetime, his estate in the land would be none the less; and it would, and did descend to his heir in fee simple, subject only to the payment of such legacies as had not been paid. Such, without doubt, was the intention of the-testator;'and to give the'will any other construction, would defeat that intention. He designed that his son should have the land, for he in plain terms ■ gives it to him'; but, he also designed that the children of his deceased daughter should have their legacies; as apart of his bounty, for he directs his son, as devisee, to pay them as they attain twenty-one years of age. His son and these children were the immediate objects of his bounty; they were the only ones that concerned him. Pie cannot be supposed to have foreseen all that afterwards happened — the death of his own son, and the heir of the latter, intestate and without issue, before, all of the children of his cle-' ceased daughter had arrived at twenty-one years of age; and to speculate as to what he would have done, had he foreseen these remote contingencies, is useless, as it can shed nó light upon the construction of his will. But it is well, in this connection, to observe, that he had provided liberally for his own son — having given him‘the greater portion of his estate; and no reason is perceived why he should have had 'more- concern for the widow of his son, so provided for, than for those of his own blood, related to him as grandchildren.

But again, it is claimed that the direction being to pay each of the legatees as they became twenty-one years of age, the legacy to e'ach did not vest until the legatee attained that age; and, therefore, that no personal obligation' attached to pay any particular legatee until he attained -the age of twenty-one; and, therefore, the' personal estate of Benjamin is not liable for the payment of the legacy'to the plaintiff, as'he did not attain twenty-one years of age until after the death of Benjamin. It is not necessary, as we- think; to decide whether these legacies vested 'at the death of the testator, or not; though, under the settled rule in such cases, we see no reason for saying that they did not. Bingham on Descents, 59. If they did not, still a conditional liability; personal in character, was created as to each, which became absolute on the legatee attaining the requisite age; the legacy then became an absolute personal liability of the devisee, if living, or of his estate, if dead. Now it is the settled rule of the law that the personalty of an estate is the-primary fund for the satisfaction of all the personal obligations of the'deceased. Williams’ Executors; 1705. And. that it was the personal duty of Benjamin Bartholemew to pay this legacy to the'plaintiff on his arriving at twenty-one-years of age, has- béen already shown to have arisen from-his acceptance of the devise under the will of his father. And although he diegl before the time arrived for ■ making the payment, the obligation attended his estate as an entirety, to be performed by his administrator as his personal representative-. • It frequently happens that a conditional obligation, assumed by a'person in his lifetime,- does not become absolute -until after his death, and- must be,'and is, satisfied bjr his administrator, though not named in the contract. Williams on Executors, 1724. In addition to the- many instances given by this author, the obligation of-a principal to'indemnify his- surety, may be noticed. No absolute obligation arises in such case until the surety has paid the debt, and' this may-be after-the death'of-the‘principal;--And the estate of the principal then becomes liable to indemnify the surety. The case of Camp v. Bostwick, 20 Ohio St., 337, grew out of such a state of facts, and was prosecuted against the heirs for assets received, because the liability of the deceased did not, by the payment of the surety, become absolute until after the administrator had settled the estate, and the suit as to him had become barred.

There remains the further contention, that the legacy of the plaintiff has merged in the legal estate, which, by operation of the law, has descended to him and his brothers and sisters, co-legatees, by the death of Leslie Bartholomew, intestate and without issue. This, we think, is entirely erroneous. It is true, as a general rule, that where the equitable and legal estate unite in the same person in the same right, the former will merge in the latter. But this is simply a rule of convenience to the owner of the two estates, and is never applied where it would be to his interest to treat the equitable interest as subsisting. Here, as shown, the plaintiff has a right to have his legacy satisfied from the personal estate left by Benjamin Bartholomew, though by so doing, it will diminish a fund that would otherwise go to his widow. His right in this regard is that of a creditor of the deceased. The fact that, by inheritance, he with his co-legatees, has become an owner of the land, that may be treated as security for the payment of the legacy, does not change the equity of the case. It is not by any provisions of the will that this has occurred; and the fact, as before shown, cannot, therefore, in any way influence its construction. The condition of the plaintiff is, in law, no way different from what it would have been, had he and his brothers and his sisters purchased and paid full value for the land. In such case, as it would be to his interest to treat the legacy as existing, though a lien on the land, for the purpose of enabling him to compel it to be satisfied by his debtor, or his estate, the law would treat it as existing for such purpose. The legacy and the lien are not inseparable. The legacy is the principal, the lien is an incident, and may be extinguished by merger in the estate of 'the creditor, although the legacy is not.

Jiodgment of the lower oounrts reversed, and judgment on the pleadings for the plaintiff in error.


source: Caselaw Access Project

author: Dickman, C. J.

license: Public Domain

text:
    Driggs v. State.

      ConstiUitional law — Section 6946a, Revised Statutes — Sale of intoxicating liquors within one and one-half miles of a National Home for disabled volunteer soldiers — Laws of a general nature and uniform operation — Act of April 6, 1893 ( 90 Ohio Laws, 143). '

    1. Act of April 6, 1893 (90 Ohio Paws, 143). The act, entitled “ An act to amend supplementary section 6946a of the Revised Statutes of Ohio, passed April 12,1888, and amended April 12, 1892, and to further supplement original section 6946, of the Revised Statutes,” passed April 6,1893 (90 Ohio Paws, 143), is not in conflict with the first branch of section 26, article II of the constitution of Ohio, which ordains that “All laws, of a general nature, shall have a uniform operation throughout the state,” and is a valid law.
    2. Where one was indicted under the above entitled act, for selling intoxicating liquors at a place within one and one-half miles outside of the boundary line of the lands occupied by a National Home for disabled volunteer soldiers, it was not error in the trial court to admit the parol evidence of an officer and of one of the managers of the institution, to prove the existence of such National Home, its occupation by disabled volunteer soldiers of the United States, and the boundary line of-its lands.
    (Decided October 16, 1894.)

      Error to the. Circuit Court of. Montgomery county. . ,
    On April 6, 1893 (Ohio Laws, 143), an act of the General Assembly was passed, which reads as follows:
    “Section 1. Be it enacted by the General Assembly of the State of Ohio, That supplementary section 6946a, of the Revised Statutes of Ohio, passed April 12, 1888, and amended April 12, 1892, be amended; and original section 6946, of the Revised Statutes, be further supplemented so as to read as follows:
    “Sec. 6946a. Whoever sells or gives away any ale, beer, wine, cider or other intoxicating liquors at any place within one and one-half miles outside of the boundary line of the lands occupied by any home, retreat or asylum for disabled volunteer Soldiers, or soldiers and sailors, which has been or may hereafter be established by the government of the United States shall be fined upon conviction not more than one hundred dollars nor less than twenty-five dollars, and imprisoned thirty days; and on conviction of the owner or keeper thereof, the place wherein such intoxicating liquor shall have been sold or given away shall be, by the order of the court wherein such conviction is made, within ten days thereafter, shut up and abated as a nuisance.. And it is hereby made the duty of the prosecuting attorney of the county in which any such institution is or may be located to prosecute all offenders ag’ainst the provisions of this act.
    “Sec.-69465. Whoever sells or gives away any ale, beer, wine, cider or other intoxicating liquors at any place within one mile outside of the boundary line of the lands occupied by any home, retreat, or asylum for disabled volunteer soldiers, or soldiers and sailors, which has been or may hereafter be established by the state of Ohio, shall be fined upon. conviction not more than one hundred dollars nor less than twenty-five dollars, and imprisoned thirty days ; and on conviction of the owner or keeper thereof the place wherein such intoxicating liquor shall, have been sold or given away shall be, by order of the court wherein such .conviction is made, within ten days thereafter, shut up and abated as a nuisance. And it is hereby made, the duty of the prosecuting attorney of the county in which any such. institution is or may be located to prosecute all offenders against the provisions of this act.
    “Section 2. That said supplementary section 6946a of the Revised Statutes, passed April 12, 1888, and amended April 12, 1892, be and the same is hereby repealed, and this act shall take effect and be in force from and after its passag’e.”
    At the May term, 1894, of the court of common pleas, an indictment -was found against Nelson Driggs, the plaintiff in error, charging: ‘‘That Nelson Driggs, on the 15th day of May, in the year one thousand eight hundred and ninety-four, in the county of Montgomery aforesaid, at a place within one and • one-half miles outside of the boundary line of the lands occupied by a home for disabled volunteer soldiers, to-wit: Central Branch National Home for Disabled Volunteer Soldiers, which has been established by the government of the United States, did unlawfully sell to John R. Carrington certain intoxicating liquor, to wit: two glasses of beer, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Ohio.”
    The accused filed a demurrer to the indictment, alleging, that the same did not state facts constituting a crime against the laws of the state of Ohio, and that the court had no jurisdiction of the cause.
    Upon the trial of the cause, a verdict of guilty was rendered. A motion for a new trial was overruled, which ruling was excepted to at the time; and the defendant below was adjudged to pay a fine of fifty dollars, and to be imprisoned in the jail of said county thirty days, and to pay the costs of prosecution.
    The plaintiff in error filed in the circuit court his petition in error, and upon hearing, the circuit court affirmed the judgment of the court of common pleas.
    To reverse the judgement of the circuit court, this proceeding in error is instituted.

      Harrison, Olds & Henderson, Emanuel c& Dwyer and W. A. Hallanan, for plaintiff in error.
    The grounds upon which we maintain the judgments below should be reversed are: Fvrst—
    That the act under which the defendant below was indicted is unconstitutional and void. Second ■ — That the trial court erred in the admission of incompetent evidence. Third — That the court erred in the charge to the jury.
    I. - The act of the General Assembly, under color of which the indictment upon which the defendant below was sentenced is in conflict with the first branch of section 26, article II of the constitution of this commonwealth.
    The origin of this section is perfectly well known. The legislature had often made it a crime to do in one county or even township what it was perfectly lawful to do elsewhere, and had provided that acts even for the punishment of offenses should be enforced or not, in certain localities, as the electors thereof respectively might decide. It was to remedy this evil and prevent its recurrence that this section was framed. Cass v. Dillon, 2 Ohio St., 617.
    Under the former constitution, laws having a general subject matter and therefore of a general nature, were frequently limited expressly in their operation to one or more counties to the exclusion of other portions of the state. To arrest and for the future prevent this evil, the provision in question was inserted in the present constitution. Lehman v. McBride, 15 Ohio St., 605; McGill v. State, 34 Ohio St., 228, State ex rel. v. Ellet, 47 Ohio St., 93.
    This act is a statute regulating the sale or gift of intoxicating liquors — a subject which does not relate to private matters, but which concerns the public at large. The character of a law, whether of a special or general nature, is in the law itself; that is, the subject-matter of the law. Some laws, general in form, are necessarily purely local or special in their nature; but all laws general in their nature, such as define and punish offenses against the public, of which the law in question is an example, or such as provide for the descent and distribution of intestate estates, or regulate domestic relations, or prescribe the rate of interest on money loaned, etc., cannot be local or special in form but must be general, having a uniform operation throughout the state. Statutes which may be termed local in a certain sense, may nevertheless be laws of a general nature; and, therefore, it is not essential to render a statute affecting the interests of the public, a general act, that its provisions should actually be equally and directly operative upon all persons and all places in the state. Pearce v. Kimberle, 9 Me., 54.
    The word general comes from genus, and relates to a whole genus or kind, or, in other words, to a whole class or order. Hence a law which affects a class of persons ■ or things, less than all may be a general law. Brooks v. Hyde, 37 Cal., 366.
    The terms general law does not import universality in the subject or operation of such law. Van Riper v. Parsons, 40 N. J. L., 1.
    The statutes of Ohio, making railroad companies liable for damages for stock killed in consequence of their failure to erect and maintain fences, is a law of a general nature, because it applies to all railroad companies within the state. Humes v. M. R. Co., 82 Mo., 221.
    The extent of the operation of a really general law is not determined by arbitrary limitations imposed by the legislature, but by the existence of the conditions on which • the law is -to operate. Randolf v. Wood, 49 N. J. L., 85.
    If the statute affects public interests, it will be held general; that is, it will be held to be “a law of a. general nature.” Burnham v. Webster, 5 Mass., 266; Commonwealth v. McCurdy, 5 Mass., 324; Ferguson v. Ross, 66 S. C. N. Y., 207.
    The principle for • which we . contend was laid down and applied in Commissioners v. Rosche Bros., 50 Ohio St., 103.
    All statutes which are of a penal nature are public laws, although they may be limited in their operation and effects, to particular localities or parts of the state. Burnam v. Acton, 4 Abbott’s Pr., N. S., 1.
    A clause substantially the same as the first branch of the section of the constitution of Ohio under consideration was held to make unconstitutional an act making embezzlement by employes of a certain named bank a felony. Bude v. The State, 3 Humph. , 483.
    In The State v. Powers, 38 Ohio St., 54, it was held that under section 26, article II, and section 2, article VI, of the constitution, laws, regulating the organization and management of common schools must have a uniform operation throughout the state. The principle of that case applies to the case in hand. State v. Winch, 45 Ohio St., 663; Heck v. The State, 44 Ohio St., 536.
    The occupants of the homes described in both sections of the act are disabled volunteer soldiers, or soldiers and sailors. Yet the first section provides for the punishment of a sale or gift of any intoxicating liquors within one and one-half miles outside of the lands occupied by any such home established by the United States, whereas the second section provides for the punishment of such a sale or gift within one mile only of the lands occupied by any such home established by the state of Ohio. In short, the discrimination is founded solely upon the single fact that some of the homes are owned by the United States and some by the state of Ohio. In view of the object and purpose of the statute, the difference in the ownership of the homes, each of them being homes for disabled volunteer soldiers, or soldiers and sailors, is not a difference of such a nature as to call for and demand a separate and different' statutory provision defining and punishing sales or gifts of intoxicating liquors within a prescribed distance of such homes. If public policy requires that such sales and gifts shall be punished when made within one mile of such homes established by the state, the demand is equally imperative if the homes be established by the United States.
    It follows that this act does not furnish a proper classification for the purpose of legislation of a general nature designed to have the uniform operation throughout the state; and whether or not a classification is authorized by the constitution is for the courts to determine. Costelo v. Wyoming, 49 Ohio St., 202; Nichols v. Walter, 37 Minn., 264; State v. Hammer, 42 N. J. L., 435; Bronson v. Oberlin, 41 Ohio St., 476; Van Riper v. Parsons, 40 N. J. L., 1.
    Whatever legislation, therefore, is enacted for a class, must apply to it in respect to certain common characteristics of its members, and must be, in itself, such as it would be inexpedient to enact for other persons or things, not possessing those characteristics. Otherwise the legislation would be local or special, not general. A general law, as applied.to the subject of classification, is a law for a class requiring- legislation peculiar to itself in the matter covered by the law. Miller v. People, 100 Mo., 439; Ayars Appeal, 102 Pa. St., 266; State v. Rammer, 42 N. J. L., 436.
    II. The trial court erred in admitting parol evidence to prove the establishment by the government of the United States, of a home for disabled volunteer soldiers, in the county of Montgomery.
    The board of managers of the National Home for Disabled Volunteer Soldiers, is either a public corporation or a. boa,rd of public agents of the United States. According to the doctrine laid down in.the case of Neil v. Board of Trustees, etc., 31 Ohio St., 15, the latter is its legal status. The act of Congress creating the hoard, is found in U. S. Revised Statutes, page 943, commencing with section 4825.
    The best evidence of the acts of the board, whether it be a board of public agents or a public corporation, consists of the records of its proceedings. The presumption is that such record has been kept, and perfectly kept, so as to show the associated or corporate action of the board. Dillon’s Mun. Corp. (3d Ed.), sections 300, 301, and notes.
    No evidence was offered to show action of the board in establishing a home in Montgomery county.'
    III. In that part of the charge to the jury to which exceptions were taken, the ruling during the trial as to the competency of parol testimony to prove (1), that the board of managers of The National Home for Disabled Volunteer Soldiers selected a site for a soldiers’ home in Montgomery county, and (2), acquired a title to lands for such home, and (3), the precise location of the boundary lines thereof, was followed. In this we maintain, for the reasons stated in the argument of our second proposition, there was error to the prejudice of the accused.

      C. H. Kumler, Prosecuting Attorney, J. C. Patterson and J. D. Clark, for defendant in error.
    We claim, First — That the legislature not only had the right to recognize homes established by the government of the United States as a separate and distinct class, but that it would have had no right to ignore the fact that in'the state of Ohio there exists two classes of homes for disabled, volunteer soldiers.

      Second — The legislature was compelled to'recognize homes established and- hereafter to be established by the state of Ohio as constituting a separate and distinct class It'is claimed by the plaintiff in error that the difference in the ownership of the homes (each of them being homes- for disabled volunteer soldiers, or soldiers and sailors) is not a difference of such a nature as to call for and demand a separate and different statutory provision defining and punishing sales or gifts of intoxicating liquors within a prescribed distance of such'homes.
    The - difference in the ownership of the homes may not of itself be such a difference as to call for and demand separate and different legislation, but the fact of the actual and complete control of the state over admission to the state homes, and the regulations thereof; and the entire absence of such control over national homes is a substantial difference, such as justifies the difference-in legislation. ■ ■

      Thvrd — An act of the general assembly • is always presumed to be constitutional until the contrary is clearly shown. -4'Dallas R., 14;'10 Ohio St., 23; 15 Ohio St., 591. -

      Fourth — The uniformity required by article II, section 26, is uniformity touching the subject matter of the law. The-constitutionality of'an act is to be determined by its operation-and not the mere form which it may be made to assume. “21 Ohio St., 11. Section 6946, as 'amended April’ 6,' Í893, recognizes- two classes of homes, -and-from‘state-ment of differences in the -establishment, management and control of the two classes of homes, as shown above, we claim that homes established by the government of the United States are as different from homes established by the state of Ohio as are, banks chartered by the government of the United States from state banks.

      Fifth — The law - is- general and uniform, and applies to all persons or things coming within its provision throughout the state. - Its uniformity consists in the fact- that no person or thing affected by it is exempt from its operation.- 44 Ohio St., 536; 48 Ohio St., 509.

      Sixths — The case of the Commissioners v. Rosche Bros., 50 Ohio St., 103, cited by counsel for plaintiff in error does -not • touch the question in this case in this, that said act while general in its nature as found by court was in reality only a local law, as' it could not have applied to any county other than. Hamilton-county. Section 6946, as amended April 6, 1893, applies to all-homes established anywhere by the government of the United States in the state of Ohio. It is general in form.

      Seventh — Section 18 of the schedule of the constitution provides that the general assembly may, by law, provide against the evils resulting from the sale of intoxicating liquors; • The authority of the legislature to provide protection for certain institutions seems to be settled by the holding of this court 'on the questions of the constitutionality of section 6946 of the Revised Statutes as amended May 2,- 1885, the legislature having the power to protect those who attend, - take part in or' live within two miles of any place where any- agricultural-fair-is being held, why may -not the legislature have authority conferred upon it by section 18 of the constitution to protect the inmates of homes established by a liberal and appreciative government.

      Eighth — We admit the proposition that all statutes which are of a penal nature are public laws, although they may be limited in their operation and effects to particular localities or parts of the state. Burrows v. Acton, 4 Abbott’s Pr., N.

      Ninth — In State v. Winch, 44 Ohio St., 663, the question involved in that case is nowhere present in this, for, while admitting this to be a general law, the act passed April 12, 1876, to prevent gambling and the sale of intoxicating liquors on or within the distance of two miles from Chippewa Lake, county of Medina, bore on its very face its own evidence of being but a local law.

      ■Tenth — As to the claim of error in admitting parol evidence to prove the establishment by the government of the United States, of a home for disabled volunteer soldiers in the county of Montgomery by the procurement of the board of managers of a site for such home and the acquisition by title of lands for that purpose and the precise boundary of such lands, we deny that there was any such error.
    We claim that the establishment of this home by the government of the United States is recognized by the legislature of the state of Ohio in the enactment of section 10,157 by the Revised Statutes. We claim that the establishment of the Central Branch National Military Home can be proven like the incorporation and establishment of any other incorporated institution.
    In the case of Calkins v. The State, 18 Ohio St., 366, this court holds that the corporate existence of a company is sufficiently established by proving that it assumed to be, and notoriously exercised the franchises of, a railroad corporation.
    . If the corporate existence of a company is thus sufficiently proven, why may not the acts of a corporate body, such as the establishment of the National Military Home by the managers thereof, be proven in the same manner as was done in the trial of this case in the common pleas court ? 18 Ohio St., 366; 13 Ohio, 453; 15 Ohio, 218.
   Dickman, C. J.

The first question that claims our consideration is, whether the act of the gen-, eral assembly under which the defendant below was indicted is unconstitutional and void. The act, it is contended, is of a general nature without having a uniform operation throughout the state, and is therefore in conflict with section 26, article II of the constitution of Ohio. That the act is ■ general in its nature within the meaning of the constitution, and subject to the constitutional requirement as to uniformity of operation, will be apparent, we think, upon examination. It is a law of general interest to all the inhabitants of this state, and its penal sanctions extend to all persons within the borders of the state who violate its provisions. Its subject matter is of a general nature, inasmuch as it concerns the public at large that the evils resulting from the sale of intoxicating liquors within the limits of the state should be suppressed. And section 18 of the schedule of the constitution, in ordaining that no license to traffic in intoxicating liquors shall hereafter be granted in this state, and that the general assembly “may by law provide against the evils resulting therefrom, ” virtually declares that the regulation of such traffic is one of a general nature and pertains to the public welfare.

It is urged, however, that while the law is thus general and not special in its character, it does not operate uniformly throughout the state, within the requirements of the constitution. The act contains two sections. One section imposes a penalty for selling or giving away intoxicating liquors, at any placé within one and one-half miles outside the boundary line of the lands occupied by any home for disabled volunteer soldiers established by the government of the United States; and one imposes the same penalty for committing the same offense at any place within one mile outside of the boundary line of' the lands occupied by any home for disabled volunteer soldiers established by the state of Ohio. Both sections are in pari materia, so far as they relate to the selling or giving away of intoxicating liquors near homes for disabled volunteer soldiers; but while the first section refers to national military homes, the second has reference to soldiers’ homes established by the state of Ohio.

It will be conceded that if the act embraced only the first section relating to national military homes, it would not be open to the constitutional objection of not being uniform in its operation throughout the state. In Heck v. The State, 44 Ohio St., 536, it was held, that the clause “whoever sells intoxicating liquors within two miles of a place where an agricultural fair is being held •x * -x siian he fined,” etc., contained in section 6946, of the Revised Statutes, as amended May 2, 1885, is not in conflict with any provision of the constitution, and is a valid law. . “A law is general and uniform,” say the court, “that applies to all persons and things coming within its provisions throughout the state. Its uniformity consists in the fact that no person or thing, of the description of any person or thing affected by it, is exempt from its operation.” The rule as to uniformity of operation requires that the law; shall have a uniform operation upon the persons or things of any class upon whom or which it purports to take effect; that it shall bear equally in its burdens and benefits upon persons and things standing in the same category. Smith v. Judge, 17 Cal., 554; French v. Teschemaker, 24 Cal., 544; Brooks v. Hyde, 37 Cal., 375.

But it is urged in behalf of the plaintiff in error that the homes for disabled volunteer soldiers contemplated in the statute, together constitute one class of such common characteristics, that the same penalty cannot be enforced against selling or giving away intoxicating liquors at a different distance from the national and Ohio soldiers’ homes respectively, without depriving the law, which is general in its nature, of a uniform operation, and giving to it a distinct, special and unlike application to the several members of the class. In view of the object and purpose of the statute, it is claimed that there is not a sufficient dissimilarity between such homes, as to call for and demand a separate and different statutory provision, defining and punishing sales or gifts of intoxicating liquors within a prescribed distance of their boundaries.

The National Home for Disabled Volunteer Soldiers at Dayton, in Ohio, referred to in the indictment of the plaintiff in error, was established by the government of the United States, under .sundry acts of congress now embodied in sections 4825 to 4837, inclusive, of the Consolidated and Revised' Statutes of the United States (1878). Under those sections it is provided that there shall be a board of twelve managers of the National Home, of which the' president, secretary of war, and'chief justice shall be members, who are to have perpetual succession, with powers to take hold, and convey real and personal property, establish a common seal, to sue and be sued in courts of . law and equity, to make by-laws, rules and regulations, not inconsistent with law, for carrying on the business and government of the home, and to affix penalties thereto. The persons entitled to the benefits of the home, and who may be admitted thereto, are all officers and soldiers who-served in the late war for the suppression of the rebellion, and the volunteer soldiers and sailors of the war of eighteen hundred and twelve, and of the Mexican war, and not provided for by existing laws, who have been or may be disabled by wounds received or .sickness contracted in the line of their duty. All inmates of the National Home -are made subject to the rules and articles of war, and in the same manner as if they were in the army.

Provision is made for the purchase of sites for homes, and for the erection of buildings. By section 4830, “The board of managers shall have authority to procure from time to time,'at suitable places, sites for military homes for all persons serving in the army of the United States at any time in' the war of the rebellion, not otherwise provided for, who have been or may be disqualified for procuring their own support, by reason of wounds received or- sickness contracted while in the line of their duty during the rebellion; and to have the necessary buildings erected, having due regard to the health of locality, facility of. access, and capacity to accommodate the persons entitled to the. benefits thereof. ”

By section 1 of an act to provide for the establishment and maintenance of a.home for disabled and indigent ex-soldiers, sailors and marines of Ohio, passed April 30; 1886 (83 Ohio Laws, 107), it is enacted: “That there shall be established in this state an institution under the name of ‘The Ohio Soldiers’ and Sailors’ Home.”.’ By section 2 of the act, it.is enacted: “All honorably discharged soldiers, sailors and marines, who have 'served the United States government in any of its wars, and who are citizens of Ohio at. the date of the passage of. this act, and all soldiers of the national guard of Ohio, who have heretofore lost,..or may hereafter lose an arm, or leg, or his sight, while in the line and discharge of duty, who are not able to support themselves, .and are not entitled to admission to the national military homes, or cannot gain admission thereto, may be admitted to the home named in the preceding section, under such rules and regulations as may be adopted by the board of trustees hereinafter provided for. ’ ’

The independent management of the National Home at Dayton through agents of the United States — the provision made by law for the establishment of . similar institutions — the congregating at those institutions of the greater number .of disabled soldiers from all parts of the country, and the consequent increased tendency to social abandon, to give up to- natural impulses, and to seek release from artificial restraint — the fact that all the inmates are made subject to the rules and articles of war the same as if they were in the army — and other marked characteristics of national homes readily suggested upon a consideration of their purpose, organization and management, will furnish a sufficient basis for making such national homes a class by themselves, and fixing upon one and one-half miles, instead of one mile outside of the boundary lines of their lands, as the limit within which it is made penal by the act to sell or give away at any place intoxicating liquors. Such a classification, in our judgment, would not be unjust or unreasonable, and would be founded upon adequate distinctions and differences between the two kinds of homes for disabled volunteer soldier® designated in the statute.

The statute operates uniformly upon the class of national homes for disabled volunteer soldiers. The constitution of Iowa provides, that all laws of a general nature shall have a uniform operation; and that the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens. A statute of Iowa divided the railroads of the state into classes, according. to business, and established a maximum of rates for each of the classes. In Railroad Company v. Iowa, 94 U. S., 155, it was said by Waite, C. J.: “ The statute operates uniformly on each class, and this is all the constitution requires. This act does not grant to any railroad company privileges or immunities which, upon the same terms, do not equally belong to every other railroad company. Whenever a company comes into any class, it has all the ‘privileges and immunities’ that have been granted by the statute to any other company in that class.”

It is argued in behalf of the plaintiff in error that the trial court erred in admitting parol evi-’ dence to prove that the National Home, at Dayton, was established and is recognized as a home for disabled volunteer soldiers of the United States, and is occupied by soldiers of that class ; and that the court further erred in permitting the treasurer and one of the board of managers of that institution to testify as to where the eastern line of the lands under the control of that National Home is located. We find no error in the admission of the testimony. The court below could properly take judicial notice of the act of April 13, 1867 (64 Ohio Laws, 149), ceding to the United States jurisdiction over certain lands and their appurtenances of the National Asylum for disabled volunteer soldiers within the state of Ohio (Brown v. State of Ohio, 11 Ohio, 280); and by such act the general assembly recognized the establishment and existence of that institution.

In determining the eastern line of the lands of the National Home, it was not a question of private boundary, involving title of a private right or estate, but rather of quasi public right. But on questions of public right, respecting the existence of a boundary between counties, parishes, or manors, the limits of a town or street, common reputation is admissible in evidence. And besides, where it is a question of private right, parol evidence is competent to prove possession of land within certain designated boundaries, and the person so proved to be in possession will prima facie, be presumed to be seized in fee.

Judgment affi/rmed.


author: By the Court.

text:
    Sanns et al. v. Neal.

      Action on a quantum meruit for work and labor performed — Special contract set up in defense — Burden of proof on defendant.

    (Decided October 16, 1894.)
    Error to the Circuit Court of Gallia county.
    E. Lincoln Neal, the defendant in error, filed his amended petition in the court of common pleas, against Peter A. Sanns and James H. Sanns, partners under the firm name of P. A. Sanns & Son, the plaintiffs in error. . The plaintiff below, in his amended petition, alleged:
    “That the defendants, Peter A. Sanns and James H. Sanns, are indebted to him in the sum of six hundred and eighty-one and 50-100 dollars for work, labor and services done and performed by said. plaintiff ■ for said defendants, at their special instance and request, as manager and clerk of their upper drug- store in Gallipolis, from the 4th day of March, 1884, up to the 4th day of October, 1890, as a balance due on an account for said work and labor, a copy of which said account is as follows, with all credits thereon.”
    (Here follows a copy of the account. with all credits thereon.) “Wherefore the plaintiff asks judgment. against said defendants for said sum of $681.50, with interest thereon, ” etc.
    Por answer, the defendants said:
    “1. That they deny all and singular the averments of said petition as therein alleged, except the averment that these defendants are partners under the firm name of P. A. Sanns & Son.”

      “2. That all the supposed and alleged services-referred to in said petition as rendered by plaintiff for said defendants, were rendered and performed under and by virtue of special contracts. * * * That the wages and compensation for the entire time under said special contracts amount to the sum of $3,101.33. The services so rendered under said special contracts are the services referred to in said petition. That during said employment and service, these defendants paid to said plaintiff the sum of $3,194.40, from time to time, during and for said service, as is set forth in the statement and account of such payments hereto attached, and made part hereof. .Defendants therefore say that they have overpaid said plaintiff, and there is nothing due to him on account of said pretended services.”
    The jury returned a verdict for the plaintiff for the sum of $682.63. The defendants moved for a new trial for the alleged reason, among others; That the court erred in instructing- the jury that the burden of proof was on the defendants to show that the services set out in the petition were rendered under a special contract as to the price tobe paid therefor.
    The motion for a new trial was overruled; exception was taken by the defendants; judgment was rendered for the plaintiff, which was affirmed by the circuit court; and it is sought by the present proceeding in error, to reverse the judgment of the circuit court.

      Samuel A. Nash and D. B. Hebard, for plaintiffs in error.

      C. H. D. Summers and White & Holcomb, for defendant in error.
   By the Court.

The instruction given by the court to the jury, and to which the defendants, by their attorney excepted, was as follows:

“The general denial puts in issue every fact necessary to establish in the plaintiff a right of recovery for any sum whatever. But on the evidence, it is not disputed that the plaintiff was in the employ of defendants for the period, substantially, as he claims. The great controversy, aside from the statute of limitations, is as to whether the services were rendered under an implied contract, by which the plaintiff is entitled to recover its reasonable value, or on an express agreement at a certain sum per month, as alleged in the answer. Now, as the service is by the evidence of the defendants substantially admitted, so far as the time is concerned, before the defendants can limit the amount of recovery by the special agreement alleged, its existence must be established by a preponderance of the evidence. As to that, the burden of proof is upon these defendants.”

A majority of the court is of the opinion that the trial judge did not err in thus instructing the jury, and the judgment of the circuit court must, therefore, be affirmed.

Minshall, J., dissents.

Judgment accordingly.


text:
    City of Kenton et al. v. State ex rel.

      Redistricting certain cities — Unconstitutionality of act óf April 27,1898. (90 Ohio Local Laws, 278.)

    Tlie act passed by the general assembly, April 27,1893, entitled, “An act to re-district certain cities of the fourth grade of the second class,” is in conflict with the first branch of section 26, article II of the constitution of Ohio, which requires that all laws of a general nature shall have a uniform operation throughout the state.
    (Decided October 16, 1894.)
    Quo Warranto.
    Error to the Circuit Court of Hardin county.
    On April 27, 1893, the general assembly passed an act entitled, “An act to re-district certain cities of the fourth grade of the second class.” Sections 1 and 2 of the act read as follows:
    “Section 1. Be it enacted by the General Assembly of the State of Ohio, That in every city of the fourth grade of the second class which had at the last federal census a population not less than 5550 and not greater than 5560, or which at any subsequent federal census may have a population of not less than '5550 and not g-reater than 5560, it shall be the duty of the mayor of such city, within five days from the passage of this act, upon petition of not less than twenty electors of such city, to appoint four electors and actual residents of said city, not more than two of whom shall belong to the same political party, who shall constitute a redistricting board for such city.
    “Sec. 2. The members of said board shall be sworn by the probate judge faithfully and impartially to discharge the duties conferred upon them by this act, and shall immediately proceed to redistrict such city into wards, which shall be bounded by center lines of streets, alleys, public grounds, corporation lines, water courses and railroads. ' Said wards shall be composed as nearly as possible of adjacent and compact territory; they shall contain, as nearly as practicable, an equal number of inhabitants, and shall be consecutively numbered. ”
    The state of Ohio, on the relation of O. D. Kelly, as prosecuting attorney of Hardin county, Ohio, the defendant in error, filed its petition in quo wa/rranto, in the circuit court of Hardin county, against the city of Kenton, Ohio, A. W. Munson, John H. Smick, Henry Price and John U. Born, the plaintiffs in error. It was claimed in the petition that the above entitled act is in violation of the constitution of the state of Ohio; and the relator prayed that the said defendants, and each and all of them, may be severally and collectively ousted from exercising’, doing or performing any of the corporate acts, franchise's or privileges sought to be conferred by the act of the general assembly aforesaid;
    There was a demurrer to the petition; the demurrer was overruled, and the defendants excepted to the ruling of the court.
    This proceeding in error is instituted to reverse the judgment of the circuit court.

      John H. Smick and George K. Hash, for plaintiffs in error.

      John H. Doyle and Phil M. Groto, for defendant in error.
   By the Court.

It is ordained by section 6, article XIII, of the constitution of Ohio, that “the general assembly shall provide for the organization of cities, and incorporated villages by general laws. ’ ’ The act passed by the general assembly, April 27, 1893, entitled, “An act to re-district certain cities of the fourth grade of the second class, ” is a law of a general nature, within the meaning of the first branch of section 26, article II of the constitution. Costello v. Wyoming, 49 Ohio St., 202.

At the time of its passage, the act could have no application to any city in Ohio of the fourth grade of the second class, except the city of Kenton. No other city in the state could come under the provisions of the act, through the aid of existing statutes, without additional legislation. State ex rel. v. City of Toledo, 48 Ohio St., 112. We discover no reason why cities of the fourth grade of the second class, because at the last federal census they had a population not less than five thousand five hundred and fifty, and not greater than five thousand five hundred and sixty, should require exclusive legislation; and a classification of such cities by themselves, upon such a basis, is, in our judgment, too restrictive, uncertain and illusory, to relieve the act from the constitutional infirmity of not being uniform in its operation throughout the state, but local and special in its character.

Judgment affirmed.


text:
    Crawford et al. v. State ex rel.

      Quo warranto — Parties.
    An action in quo warranto to test the right to hold the position of director of an agricultural society cannot be brought by persons claiming the place on their own relation.
    (Decided October 30, 1894.)
    Error to the Circuit Court of Brown county.
    The defendants in error, James DeVore, S. M. Pickerill, T. C. Shinkle and T. J. Williams, broug’ht action in the circuit court in the nature of quo wa/rrconto, in the name of the state against the plaintiffs in error, fifteen in number, to compel said parties to show by what authority or warrant of law, they claim to exercise the office of directors of the Brown County Agricultural Society, a corporation not for profit, without a capital stock, duly organized under the laws of Ohio, and for judgment of ouster against the respondents and of induction against the relators.
    The petition alleged a right in the relators as such directors because of an election held January 20, 1894, at which four directors only could be elected, and at which relators were legally chosen such directors; and charg’ed that the respondents claiming to have been elected at the election referred to, had organized themselves into a board of directors, and were illegally undertaking to hold and exercise the'powers, duties and privileges of the office of such directors. Other allegations were embraced in the petition, but the foregoing is sufficient to show the nature of the case sought to be made by the relators.
    To this pleading a demurrer was interposed on the ground, among others, that the relators have not the legal capacity to sue or to maintain the action.
    The demurrer being overruled, issue was taken by answer and the cause tried, which resulted in a judgment in favor of the relators, to reverse which this proceeding in error is brought.

      John M. Markley, for plaintiffs in error.

      Bambach & Son and Young & Barnes, for defendant in error.
   By the Court.

The demurrer to the petition raises the question whether or not the. relators could, on their own motion, and' independent of the attorney general, or the prosecuting attorney, maintain the action.

Wé answer the question in the negative. The course of procedure in actions in quo warranto is regulated by chapter 3, of title IV, of the Revised Statutes. No authority is there given for the bringing of such action to test the right to hold a place other than a public office save by the action of the attorney-general, or prosecuting attorney, or, in. ease of the disability of the latter officer, by a proper substitute appointed by the court.

Judgment reversed.


text:
    Beecher v. Dunlap et al.

      Promissory note — Parol agreement made at execution and delivery of — Erroneous admission of evidence to vary written instrument.

    1. Evidence of a parol agreement made at the execution and deliv-
    ery of a note, by which it is not to be operative, unless, within a given time, the makers are able to realize a given sum of money from property purchased, and for which the note was given, is-not competent.
    2. When distinct issues are submitted to a jury arising upon distinct
    defenses, and the verdict of the jury is general, the erroneous admission of evidence on one of the issues, does not of itself render the judgment entered upon the verdict erroneous,
    (Decided November 20, 1894.)
    Error to the Circuit Court of Hamilton county.

      Shaw & Davidson, for plaintiff in error.

      Chester W. Merrill and Rulison & Howard, for defendants in error.
   By the Court.

The action below was upon a promissory note made by the defendant to the plaintiff for $1,000, dated September 15, 1882, payable four months after date. A number of defenses were pleaded: (1), A parol agreement made at the execution and delivery of the note, that it was not to become operative, unless a certain sum should be made from the manufacture and sale of a patent right, for which the note was given. (2), Failure of consideration. (3), Fraud in obtaining the note, and (4), a subsequent agreement by which the note was to be cancelled. Issues of fact having been made by a reply to thése several defenses, a trial was had to a jury, which found generally for the defendants “on the issues joined.” On the trial an exception was reserved to the admission of evidence offered by the defendants, to the effect that, by an oral agreement, the notes were not to be transferred, “and were to be null and void,’’unless within a year the makers should be able to make $1,750 net from the manufacture and sale of the patent right. A motion for a new trial on the ground that the admission of this evidence was error, was made and overruled, to which the plaintiff excepted. Judgment was rendered for the defendants, which was affirmed by the circuit court.

We are of the opinion that the evidence was improperly admitted, as tending to vary the terms of a written instrument. The note became operative on its delivery, and the evidence could only tend to defeat it by establishing a condition subsequent; and, being in parol, was not competent for such purpose. But the issue on this defense was not the only one submitted to the jury, and, as the verdict was general, for aught that appears from the record, the defendants may have been entitled to judgment upon one, or all, of the other defenses. Hence on the authority of Sites v. Haverstick, 23 Ohio St., 626, the judgment must be

Affi/rmed.


author: Bradbury, J.

text:
    State ex rel. v. Jacobi, Sheriff.

      Judicial districts of state — Power of general assembly io change subdivisions — Section 15 of article IV of the constitution of 1851— Limitations imposed by section 3, of article IV.

    Section 15 of article IV of the constitution of 1851 vests in the general assembly of this state the power to change the subdivisions of the judicial districts of the state, subject, however, to the limitations imposed by section 3 of the same article. While section 3, among other limitations may prohibit the' division of a county, or placing totally disconnected counties in the same subdivision, yet, subject thereto, the territorial form of the new subdivisions, and the relative population of each rests within the discretion of the general assembly.
    (Decided December 11, 1894.)
    Mandamus.
    Henry Jacobi, sheriff of Darke county, declined to issue a proclamation for the election of judges of the court of common pleas of the second subdivision of the second judicial district of this state, on the ground that the statute, passed May 17, 1894, 91 Ohio Laws, 280, subdividing this district into its present form, is unconstitutional and therefore void. Thereupon the relator, an elector of the county of Darke, one of the counties that comprise this second subdivision, applied to this court for a writ of mandamus to compel the sheriff to issue such proclamation. To the petition of the relator an answer was interposed by the sheriff showing that the three subdivisions into which said district was divided are not as compact territorially as it was practicable to make them, and that a wide difference exists respecting their respective populations.
    The sufficiency of this answer is denied by the interposition of a demurrer.

      Kiefer & Kiefer, Geo. K. Nash, Gottsehall & Brown and Nevin & Kumler, for relator.
    The petition was filed October 4, 1894, for a mandamus to require the sheriff of Darke county to issue a proclamation to the voters of his county for election of three common pleas judges in subdivision No. 2, of the second judicial district of which that county is a part as provided in an act passed May 17, 1894.. Ohio Laws, vol. 91, p. 280. And an omission to issue it will not ordinarily invalidate the election. State v. Taylor, 15 Ohio St., 137; State v. Stewart, 26 Ohio St., 213; Foster v. Scarff, 15 Ohio St., 532.
    It may well be considered whether, as, in this. instance, it is a plain ministerial duty of the sheriff to issue a proclamation as to the three common pleas judges, he should not be ordered to do so, leaving the matter of the constitutionality of the act to be determined after the election, on quoioa.rranto, if there then be any person who desires to try the question. It is, in a somewhat large sense, .in the discretion of this court, to issue the writ with or without determining’ the constitutionality of the law. The presumption is the law was regularly passed in good faith, etc. It will even be presumed that the act received a concurrent two-thirds vote of the members of each house. Miller v. State, 3 Ohio St., 475.
    That this courty will not, under such circumstances, undertake tp invade the province of the legislature of Ohio, ought to be conceded, it being-clear that it has the power to change the subdivision of the district. Art. IV, sec. 15. But few cases may be cited to show the established rule that, unless' for reasons none of which here appear, acts of legislative bodies are not subject to judicial revision. Railroad Co. v. Dayton, 23 Ohio St., 510; Center v. Rice, 135 N. Y., 473; Cooley on Con. Lim. (6th ed.), 192; Arnold v. Reese, 18 N. Y., 57; Rumsey v. People, 19 N. Y., 48; Supervisors v. People, 7 Hill, 505; People v. Draper, 15 N. Y., 533; Prouty v. Stoner, 11 Kan., 261.
    Neither of the three departments of government shall be permitted to encroach upon the exclusive powers confided to the others. Kilbourne v. Thompson, 103 U. S., 168.
    And an act will not be declared unconstitutional unless a case is presented in which there is no reasonable doubt; the incompatibility of the act with some provision of the constitution must be manifest and unequivocal. Carter v. Rice, 135 N. Y., 473; People v. Draper, 15 N. Y., 546.
    It is no doubt the duty of courts to construe statutes liberally, in order to save them from constitutional infirmities. Gilpin v. Williams, 25 Ohio St., 294. Unless the law manifestly contravenes the constitution, the judicial department is not warranted in declaring it void. Telegraph Co. v. Mayer, 28 Ohio St., 540. The efforts of courts are to sustain acts of the legislature; they will not be declared unconstitutional unless clearly so. Bloom v. Xenia, 32 Ohio St., 464. And certainly improper motives cannot be attributed to a state legislature in the passage of any law. And courts will not declare laws unconstitutional save for clear reasons. Amy v. Watertown, 130 U. S., 319; Sharpless v. Mayor, 21 Penn., 147.
    ' The presumption must always be in favor of the validity of laws, if the contrary is not clearly demonstrated. Cooper v. Telfair, 4 Dallas, 14. The relation of a judge to the people is far different from that of a law maker. A common pleas judge has no jurisdiction for any purpose conferred on him by the constitution; it has to be conferred by law. Stevens v. State, 3 Ohio St., 453; Kelly v. State, Ohio St., 269.
    Section 15 does not restrict the general assembly in changing subdivisions, to compactness of territory or equality of population. State v. Dudley, 1 Ohio St., 437; State v. Kinninger, 46 Ohio St., 572.
    But even if section 3, article IV, is still to govern as to the shape of the subdivisions and their population, the general assembly’s discretion must control; not that of the courts, it being within the legislative power of the general assembly to change, etc., the subdivisions, as the authorities already cited show.
    The recent Wisconsin, Michigan, Indiana, etc., cases are not in point. They arose on apportionments of representatives to law making bodies. State ex rel. v. Cunningham, 81 Wis.; State ex rel. v. Cunningham, 83 Wis., 90; Giddings v. Blacker, 93 Mich., 1; Board, etc., v. Blacker, 92 Mich., 638; Parker v. State, 133 Ind.,178. An examination of all these cases will show that the apportionment acts held unconstitutional, absolutely denied an equal voice to electors in choosing their 'representatives to legislative bodies. Herein we think is a controlling distinction between each of them and the case at bar. In the Indiana ease some counties having- the number required by the constitution of Indiana, are denied a separate representative. Two counties, Brown and Clark, are each put in two senatorial districts, giving the electors in each double representation. . 133 Ind., 193; 32 N. E., 842. The act of apportionment on its face showed it was directly in the face of the constitution. The cases in other states are much of the same character. In a recent New York case some of these cases are commented on. , Carter v. Rice, 135 N. Y. 473, 509.

      Harrison, Olds & Henderson and Anderson & Bowman, for respondent.
    The subdivisions of the second judicial district which the act in question undertakes to form are not composed of compact territory, and as nearly equal in population as practicable. The act is therefore in conflict with the second branch of section 3 of article IV of the constitution of the state, and void.
    Whether a law is a violation of the constitution is purely a judicial question. In re Rouan St., 132 Pa. St., 257. The constitution having prescribed the manner of forming subdivisions of judicial districts, that is in effect a prohibition against a different manner of doing it. State ex rel. v. Barnes, 24 Fla., 29. An inhibition arising by necessary implication is as effective as one which is expressed. People ex rel. v. Albertson, 55 N. Y., 50; Page v. Allen, 58 Pa. St., 338; 98 Am. Dec., 272. Any power given by the constitution to the legislature to enact a law is a legislative power and a legislative power is absolute only where the constitution leaves it without restriction. Hewlan v. Marsh, 19 Ill., 383; Cooley Const. Lim., 108. The legislature cannot under our system of government be the sole arbiter of the question whether in the passage of an act it has or has not transcended its constitutional powers, Rison v. Farr, 87 Am. Dec., 55; Van Horn’s Lessee v. Dorance, 2 Dallas, 308; Houston v. Moore, 5 Wheaton, 1. The courts have not regarded the apportionment acts as exceptions to the rule that the legislature is bound by constitutional limitations in the enactment of laws, and that if they disregard them it is the function of the court to so declare. District Court Case, 34 Ohio St., 431, State ex rel. v. Campbell, 48 Ohio St., 435; 18 Me., 472, and other cases hereinafter cited. In the present case the inequality between the subdivisions is so marked and palpable as to constitute, as to such subdivisions, an evident; palpable abandonment of the principles prescribed for forming such subdivisions. The provision of the constitution is not merely admonitory or advisory, but is mandatory. District Court Case, 34 Ohio St., 431.
    The only provision of the constitution of this state which this court has held to be merely directory relates to the mode of procedure in the passing of bills, or to the form in which laws shall be enacted. Article • II, sections 9, 14; Ohio ex rel v. Covington, 29 Ohio St., 102; Seeley v. Thomas, 31 Ohio St., 301; Pim v. Nicholson, 6 Ohio St., 177.
    In Lehman v. McBride, 15 Ohio St., 573, the provision “the section or sections so amended shall be repealed,” article II, section, 16 is.directory. All that was decided concerning the subject in Miller v. State, 3 Ohio St., 476, was that the provision in section 16, article II, that every bill shall be fully and distinctly read, on three different days, unless, in case of emergency, three-fourths of the house in which it shall be pending, shall dispense with this rule, does not require that every amendment to a bill shall be read three times. Judge Cooley in his work on Constitutional Limitations, 5th ed., star, paging 80, comments on dicta in the opinion of Judge Thurman in this case. The courts tread upon very dangerous ground when they venture to apply the rules which distinguish directory and mandatory statutes to the provisions of a constitution. Constitutions do not usually undertake to prescribe mere rules of proceeding, except when such rules are looked upon as essential to the thing to 'be done; and they must then be regarded in the light of limitations upon the power to be exercised. Cooley’s Const. Lim. (5th ed.), star, p. 78.
    Constitutional provisions are* rarely, if ever, merely directory. The act of March 5, 1891, and' the act of 1879, purporting to re-district the state, for legislative purposes, are in conflict with the constitution of the state, and therefore void. Parker v. The State ex rel., 133 Ind., 178; Giddings v. Blacker, 93 Mich., 1; People ex rel. v. Rice, 135 N. Y., 474; Baird v. Supervisors, 138 N. Y., 95; Matter of Baird et al., 142 N. Y., 523; People v. Board of Supervisors, 19 N. Y., Supp., 978; 18 Maine, 472; Kinney v. City of Syracuse, 30 Barb., 349; State ex rel. v. Cunningham, 51 N. W., 724. When the constitution prescribes a manner of doing a thing that is in effect a prohibition against a passag’e of a law prescribing a different manner of doing it. State ex rel. v. Barnes, 24 Fla., 29.
    The court and not the legislature is the tribunal which must determine whether an object can be accomplished by general legislation. Pell v. Newark, 40 N. J. L., 72.
    Constitutional provisions are absolulely mandatory, and can in no case be regarded as directory merely, to be obeyed or not within the discretion of either or all of the departments of the government. Hunt v. State, 22 Tex., 399; Railroad Co. v. Sloan, 31 Ohio St., 2; Harris v. Gest, 4 Ohio St., 472.
    The courts take judicial notice of the boundaries and population of counties. Taylor v. Barclay, 2 Sim., 221; City of Topeka v. Gillett, 32 Kan., 431; Division of Howard County, 15 Kan., 194; State ex rel. v. Hermann (Mo.), 15 Central L. J., 129; Harding v. Strong, 42 Ill., 148; Denine v. Commissioners, 84 Ill., 590; rel. v. County of Jackson, 89 Mo., 237; Shultz v. State ex rel., 65 Ind.,492; Andrews v. Board Eli Knox Co., 70 Ill., 65; Matter of Jacobs, 2 N. Y. Crim. Rep., 346; Ludlow v. Brewster, 3 C. C., 82; Cross v. Armstrong, 44 Ohio St., 613; Campbell v. Campbell, 3 C. C., 449; Worcester v. Cheney, 94 Ill., 430; Lanfier v. Mastier, 89 Am. Dec., 658; Gaynor v. Old Colony Railroad Co., 97 Am. Dec.,96; State v. Swift, 69 Ind., 505; Kernity v. Long Island City, 3 N. Y. Sup., 144; Mayor v. Sands, 105 N. Y., 210; Howard v. Mott, 64 N. Y., 262.
    Where an act changing the subdivisions of a judicial district has been acquiesced in for a considerable period it cannot afterwards be questioned. Dutton v. Village of Hanover, 42 Ohio St., 215; Chinn v. Trustees, 32 Ohio St., 236; Clark v. Board of Education, 44 Ohio St., 595; People v. Maynard, 15 Mich., 463; Chestnut v. Shane, 18 Ohio, 607.
   Bradbury, J.

The authority of the general

assembly to change the subdivisions of the second judicial district to the extent that was attempted by the act of May 17,1894 (91 Ohio Laws, 280), is the only question raised by the record before us. That the general assembly has authority to change the subdivisions of a judicial district to some extent is not denied by counsel for respondent; indeed section 15, of article IY of the Constitution of 1851, directly grants such power “whenever two-thirds of the members .elected to each house shall concur therein.” The power given to the general assembly by the terms of this section, when considered alone, is limited only by the requirement that two-thirds of the members elected to each house shall concur in the alteration. This court, however, has held that the power vested in the legislature by this section is limited by the provisions of section 3 of the same article. Dist. Court case, 34 Ohio St., 431.

Counsel for respondent contend that the statute in question violates' those provisions of section 3 of article IV of the Constitution, which declares that the subdivisions shall be “of compact territory, bounded by county lines and as nearly equal in population as practicable. ” The answer under consideration discloses that the territory composing the second judicial district is susceptible of a more compact division than was made by the act in question, and yet preserve intact county boundaries, and that, without disturbing county lines, the population of the several subdivisions might have been made much more nearly equal than they were made. In fact the inequality between the population of the first subdivision and that of the other two is striking: That of the first being only 60,440, while that of the second is 214,-240 and that of the third, 235,075. The difference between the largest and the smallest population being nearly four fold.

If these provisions of our Constitution are merely directory they, of course, impose no obligation upon the general assembly enforceable by any judicial tribunal: Grave doubts were expressed by an author of recognized authority in a treatise upon constitutional law of established reputation, whether any constitutional provision should be held to be directory rather than mandatory, but on the contrary insisting that the edicts of the people enunciated through the medium of written constitutions, from their nature and the object sought to be attained by them, were mandates to be obeyed, and not advisory exhortations to be followed or not as the functionaries addressed may choose. Cooley on Cons. Lira., 93, 97. This view of the question is taken in many of the adjudications upon the subject. Lemons v. State, 4 West Va., 755; Nevada v. Rogers, 10 Nevada, 250; Cannon v. Mathes, 8 Heisk., 516; Spangler v. Jacoby, 14 Ill., 297; Varney v. Justice, 86 Ky., 596; The People v. Lawrence, 36 Barb., 178. There are many other cases in which substantially the same doctrine is sanctioned. McCulloch v. State, 11 Ind., 424; Wolcott v. Wigton, 7 Ind., 44; People v. Campbell, 8 Gilman, (Ill.), 466; State v. Johnson, 26 Ark., 281; Barnes v. Starne, Treas., 35 Ill., 121; State ex rel. v. Glenn et al., 18 Nevada, 34; Ryan v. Lynch, 68 Ill., 160.

This court, however, has held a number of the provisions of the constitution of 1851, relating- to the general assembly, to be merely directory, the observance of which rests entirely upon a sense of duty and a regard to their official oath by the members thereof. Miller v. State, 3 Ohio St., 475; State v. Covington, 29 Ohio St., 102; Bloom v. Xenia, 32 Ohio St., 463; Seeley v. Thomas, 31 Ohio St., 301.

This doctrine finds support in the decisions of the highest courts of some of the other states. City of Girardeau v. Riley, 52 Mo., 424; People v. Supervisors of Chenango, 8 N. Y., 317; McPherson v. Leonard, 29 Md., 377.

We are of the opinion, however, that the provisions of the constitution now under consideration were intended to be mandatory, but are embarrassed in every attempt we make to find limits within which to confine the power of the general assembly, when we consider the language employed by the constitution, and the construction placed upon it by the convention itself. The provision is that the subdivisions of the judicial districts shall be “of compact territory bounded by county lines and as nearly equal in population as practicable. ’ ’ It is apparent that the first clause of this provision denies to the general assembly any power to divide a county, in subdividing a judicial district, because the subdivision must be bounded by county lines, and this would be impossible if one part of a county was in one subdivision and another part of it in another subdivision; for in such* ease the boundary of the subdivision would pass through the divided county, and the subdivision would not be bounded by county lines. In this respect a limit is set to the legislative power over the subject which is capable of being ascertained and • declared. So the requirement that the territory shall be “compact ” undoubtedly requires that the counties composing a' judicial subdivision shall be adjacent, and denies to the general assembly the authority to create a subdivision consisting of separate bodies of territory. The word “compact” has various shades of meaning, even in this connection, one' of which is “joined or held together;” and in view of the action of the convention itself, when it came to divide the state into judicial districts, and the districts into subdivisions, we cannot declare that it did not employ the word in this sense, but in the sense that the territory should be made as nearly square in form as the lines of counties would permit. The Constitution declares not only that the subdivisions, but the judicial districts themselves, shall be of “compact territory,” yet the convention that framed the' instrument, when it came to the duty of creating'judicial districts and subdivisions, made some of them consist of long and comparatively narrow strips of territory. This is notably the case in the fourth and fifth districts, the former of which extends along Lake Erie from Lucas county to Cuyahoga county, both inclusive, and the latter reaching from Franklin county in the center of the state to the Ohio river. Here was given a practical construction of the word, “compact” by the body that used it, which, at least, fairly demonstrates that it was not used in the sense of requiring the territory to be divided in its most compact form, that is, as nearly square as was possible. If it was not employed in that sense, what standard does the Constitution furnish by which the judiciary may determine the limits beyond which the territory may -not be' narrowed and lengthened, in a straight line or otherwise, in the discretion of the General Assembly.. If the people desire to limit the scope of' legislative action in its legitimate sphere, by constitutional provisions, they must mark the boundaries of that action so distinctly that they may be recognized and declared with certainty. They have failed to do that here, and we should not create them by conjecture. "We have seen that the language employed by the Constitution, as well as the practical construction put upon it by the action of the body that framed it, does not require that either the judicial districts or their subdivisions shall be created in the most compact form consistent with preserving intact county lines. The General Assembly, having a discretion in the matter, there is nothing in the Constitution from which the judiciary can establish and declare a proportion beyond which the length shall not exceed the width of a judicial district or subdivision, or if one is made materially longer than wide, that the length shall be in a straight line.

The same difficulty and uncertainty respecting the boundaries of judicial discretion relative to the variations of populations, permissible between the several subdivisions, arise when we approach the question respecting the extent that the population of the several subdivisions of a judicial district may vary. The constitutional mandate is that the subdivisions, into which a judicial district may be divided, shall be ‘ £as nearly equal as practicable.” These words denote discretion. Where is it lodged?- Who is to determine what is practicable- in this respect? Evidently that body whose duty, under the constitution, it is to create the'judicial districts and subdivide them, and this duty is lodged in the legislature. The constitution is silent respecting the circumstances that the general assembly may consider in determining what is practicable in this regard. We have seen that this body under another provision of this clause, must preserve county lines, and use adjacent territory in creating judicial districts and subdividing them. If the only circumstances to be considered by the legislature in performing this duty are, that county -lines must be respected, and the territory of each district or subdivision kept separate and entire, then the duty would be little, if any, more than Clerical, and would involve no discretion whatever. A map, together with a census report of the population of the several counties, is all that would be necessary to a complete performance of this duty by any one. The boundaries of discretion being thus narrowed and plainly marked, could be readily ascertained and declared, and if the populations of the several subdivisions of a district were not made as nearly equal as could be done, and yet respect county lines or preserve the territory of each subdivision intact, then the constitutional mandate would be broken and relief afforded by the judiciary.

Considering the language, merely, of the Constitution, and it leads us to the conclusion that legislative discretion in this matter is much broader than the narrow limits above suggested. And this construction was adopted by the framers of the Constitution themselves when they divided the state into districts and subdivisions for judicial purposes. In subdividing the third judicial district, the constitutional convention put into the the first subdivision a population, according to the census of 1850, of more than eighty-nine thousand; into the third subdivision. eighty-two thousand three hundred and eighty-three, while the second subdivision contained only forty-seven thousand, six hundred and ninety-one inhabitants.

In subdividing the fourth judicial district the same disregard of equality in respect to population was manifested by the constitutional convention. Cuyahoga county was alone made one subdivision with a population of forty-eight thousand and ninety-nine, while the other two subdivisions had respectively seventy-four thousand three hundred and thirty-seven,, and seventy-eight thousand and thirteen, inhabitants. In dividing these two districts it was practicable, regard be-. ing had only to preserving county lines and territorial integrity, to have made their respective populations much more nearly equal; the inference is, therefore, irresistible, that the contemporaneous construction given to this provision of the Constitution, by the body that made it, authorizes other circumstances to be considered, in subdividing judicial districts, than those of preserving county lines intact and territorial unity. The Constitution does not indicate the character of such circumstances. We may conjecture that the convention in making Cuyahoga county, alone, one subdivision of the fourth' judicial district, though its population at the time was not much greater than one-half of that of either of the other two subdivisions, had regard to the commercial character of the inhabitants of the young and growing city of Cleveland, which was in that county, and its probable rapid growth. We may also conjecture that the convention in placing* the seven counties of Mercer, Van Wert, Putnam, Paulding, Defiance, Williams and Henry in one subdivision of the third district, the united population of all amounting to only forty-seven thousand six hundred and ninety-one, while the other two subdivisions had respectively, eighty-nine thousand and forty, and eighty-two thousand three hundred and eighty-three, had regard to the circumstance that the former were comparatively new counties, opening up to settlement, and would probably increase in population, relatively, faster than the other counties of the district.

No doubt many other circumstances may arise from time to time that should be weighed in determining how far from equality the populations of the judicial subdivisions may be permitted to vary. But the Constitution has prescribed no limits to their number or their inherent force, ascertainable by the judicial department of the government. In respect to the exercise of its discretion in this regard the General Assembly is responsible to the public and its own sense of right and wrong, and its action is not subject to control or revision by the judiciary.

Peremptory writ awarded.