author: Spear, C. J.

text:
    Mason v. The State ex rel. McCoy.

      Corrupt praatice at elections — • Validity of act of April 8, 1896 — Inquiry into title of officer, charged with unlawful acts — As to right of trial by jury — Constitutional law.

    1. The provisions of the act of April 8, 1896, entitled “An act to prevent corrupt practices at elections, ” (92 0. L., 123,) which direct the commencement of an action by the prosecuting attorney, at the instance of the attorney-general, for the purpose of inquiring into the title to an office of a successful candidate who is charged with acts made unlawful by any law of this state, and which authorize the court, u.pon finding any of such charges true, to render judgment declaring the election void, the office vacant, and excluding the incumbent therefrom, are not in conflict with the constitution, and are valid.
    2. In such action, neither party has a right to trial by jury.
    (Decided March 1, 1898.)
    Error to the Circuit Court of Adams county.
    The action below was in quo %oarranto, brought in the circuit court by C. F. McCoy, prosecuting attorney of Adams county, at the instance of the attorney-general of the state, against the plaintiff in error, John W. Mason, for the purpose of inquiring into his title to the office of probate judge of that county, upon divers charges respecting his conduct in procuring an election to said office. A number of the charges were stricken out on motion of defendant. A demurrer to the petition was heard and overruled. An answer was filed. The cause being ready for trial, a jury was demanded by defendant, which was refused. The cause then proceeded to trial to the court. The court thereupon found as follows:
    “1. The court finds that the defendant, John W. Mason, was elected to the office of probate judge for Adams county, Ohio, at the general election held in the said county, on the 3d day of November, 1896, and duly commissioned, and is now in possession of said office, exercising the duties and functions pertaining thereto, and is receiving the fees and emoluments connected therewith and belonging thereto.
    “2. That the relator was duly and legally instructed and required by the attorney-general of the state of Ohio in accordance with the provisions of section 8 of an act entitled “An act to prevent corrupt practices at elections,” passed April 8, 1896, (92 0. L., 123) to institute said action and that within ten days after the receipt of said instructions, the relator brought said action in accordance with the provisions of said act.
    “3. That the eleventh, thirteenth, and fifteenth charges preferred against said Mason in said petition are true, and that the other charges against said Mason preferred in said petition are not true.
    “4. That the defendant, John W. Mason, on the 9th day of February, 1897, did intrude into and usurp and does still usurp the said office of probate judge of said county of Adams. And as conclusions of law from said, findings of facts the court does hold that the election of the defendant to said office of probate judge of said county is void and that he should be ousted and excluded therefrom.”
    The charges found to be true are as follows:
    “11. That while said Mason was a candidate as aforesaid, for said office, he, the said Mason, promised one H. W. Scott, he being then an elector in said county of Adams, that if he, the said Scott, would vote for said Mason for probate judge at said election and use his influence with one Wm. Jones to induce said Jones to vote for said Mason, he, the said Mason, would appoint said Scott one of the examiners of the treasury of said Adams count}7-, and that such appointment would be worth $5.00 per day for several days to said Scott.
    “12. That while said Mason was a candidate as aforesaid, for said office, he, the said Mason, promised one Robert L. Wilson, through the medium and agency of one Tabitha Lawler, a sister of said Wilson, that if he, the said Wilson, would vote for said Mason for probate judge at said election, he, the said Mason, would appoint said Wilson one of the examiners of the county treasury of said county of Adams.
    “13. That while said Mason was a candidate as aforesaid, for said office, he, the said Mason, promised one A. C. Easter, a qualified elector in said county, that if he, the said Easter, would vote for said Mason for probate judge at said election, he, said Mason would secure for said Easter a seat in the jury of said court, which would be worth $25.00 to $30.00 to said Easter.
    “15. That while said Mason was a candidate as aforesaid, for said office, he, the said Mason, promised . one John Troutman, a legal elector in said county, that if he, the said Troutman, would use his influence and cause others to vote for said Mason for probate judge of said county at said election, he, said Mason, would cause said Trout-man to be placed on the juries in said probate court, which would be worth from $15.00 to $20.00 to said Troutman for each winter for three years. And said Mason further promised said Troutman that if he, said Troutman would vote and work for said Mason for said office at said election, he, the said Mason, would allow said Troutman to rent said Mason’s farm.”
    The court thereupon proceeded to render judgment as follows:
    “It is thereupon ordered, adjudged and decreed by the court, that the election of the defendant on the 3d day of November, 1896, to said office of probate judge for Adams county, Ohio, be and the same is hereby declared null and void, and that the defendant, John W. Mason, be, and he is hereby ousted and entirely excluded from exercising and holding said office, and said office of probate judge of said county is hereby declared vacant, and that the relator recover from the defendant his costs herein expended, taxed at $--save and except the costs of witnesses subpoenaed for the exclusive purpose of proving the specifications which were stricken out by the court on motion of defendant and which said costs should be and hereby are adjudged against the relator taxed at $ — —.” To all of which the defendant excepted, and, his motion for a new trial being overruled, he brings the case here asking a reversal.

      Bowman & Bowman; F. D. Bayless; A. Z. Blair and W. C. Coryell, for plaintiff in error.
    We submit the act is in conflict with several provisions of the Constitution.
    It is in conflict with sections 1 and 11 of the Bill of Rights.
    In section 11 of the Bill of Rights guaranteeing the right to each citizen “freely to write, speak and publish his sentiments on all subjects,” the word “freely" does not mean without charge or expense. It clearly means “without restraint.”
    The right secured and upon which no condition, limitation or restraint, can be placed, is “to publish with impunity the truth with good motives and for justifiable ends, whether it respects government, magistracy or individuals. Gazette v. Timberlake, 10 Ohio St., 548.
    It is equally clear that on occasions of elections, when questions of governmental policy are submitted to the people, when candidates stand for principles, this right of publishing his sentiments is most valuable to every citizen.
    The act of April 8,1896, in the requirements that each candidate shall file statements under oath of all his expenditures, is in violation of section 10 of Article I, of the Constitution of Ohio.
    The constitutional provisions of Ohio and of the United States are substantially identical, “nor shall any person be compelled in any criminal case to be a witness against himself. ” In ex parte Clark, 103 Cal., 352; State ex rel. v. Simmond Mfg. Co., 109 Mo., 118; Counselman v. Hitchcock, 142,U. S., 547; United States v. Zucker, 161 U. S., 475.
    The Constitution itself, article 15, section 7, prescribes what swearing a citizen shall do before taking office. Section 12 of this act is also, we submit, in conflict with section 10 of act 1, of the Constitution of Ohio.
    The act of April 8,1896, is repugnant to the Constitution of Ohio, in that it undertakes to declare a citizen ineligible to office for criminal acts of his, without a conviction of such crime. Cooley Const. Lim., 4th Ed., page 78.
    Opposing counsel are mistaken in the claim that the term “eligible to office” is of the same meaning as the term “being elected,” in the Constitution of 1892.
    The former term includes capability to hold as well as to be elected. Hence the change made by the Constitution of 1851. That this is the legal meaning of the term “eligible to office,” State v. Murray, 28 Wis., 96; Carson v. McPherson, 15 Ind., 327; People v. Lema/rd, 73 Cal., 230; Roy all v. Thomas, 28 Gratt., 130.
    The court of appeals of Kentucky, under a similar constitutional provision against dueling, held the contrary, and that conviction of the offense was prerequisite to disqualification. Commomoealth v. Jones, 10 Bush., 725.
    We do not dispute the power of the legislature to prescribe reasonable qualifications for office to insure that the person elected to fill them is competent to discharge the duties, as was held in State v. Covington, 29 Ohio St., 102.
    But we submit, as was said by this court in Monroe v. Collins,, 17 Ohio St., 686. “What the legislature cannot do directly, it cannot do by indirection. ”
    Therefore where a citizen, eligible under the Constitution, is in fact chosen by a majority of the legal votes cast at the election, the legislature cannot deprive him of his eligibility, indirectly, under the guise of removal, whatever the constitutional powers of removal may be. Cummings v. Missouri, 4 Wall., 277.
    Authorities also cited, by counsel were: Lehman v. McBride, 15 Ohio St;, 573; Kent v. Mahapey, 2 Ohio St., 498; Monroe et al. v. Collins, 17 Ohio St., 686; Cooley Const. Lim., 4th Ed., 78; Palmer & Crcmford v. Tnigle, 55 Ohio St., 423; Niaic v. Cimstantine, 42 Ohio St., 437; Pollock on Contracts, top page 176, par. 176, Second American Edition; Buckmanv. State ex rel. Spencer, Supreme Court of Florida, 15 Southern Rep., 697; Yandorn v. State ex rel. Clark, Supreme Court of Florida, 15 Southern Rep., 705; Commonwealth ex rel. Attorney-General v. Walter, 83 Pa. Stat., 105; People v. Dues-bury, 16 Mich., 133.

      Keifer <& Keifer; C. F. McCoy and G. Bambach <& Son, for defendant in error.
    It has been frequently held in contested election cases in the absence of a statutory provision, that where fraud, intimidation, etc., entered into an election, that the whole election was void; the whole vote of a particular election precinct has frequently been thrown out because it was contaminated with fraud by a candidate’s party friends of which he was apparently innocent. People ex rel. v. Clute, 50 N. Y., 451. Cush. Elec. Cases 576.
    If such a limitation can be put upon a right to an election to office why may not a candidate’s unlawful conduct render him, through legislative enactment, ineligible to an election? Barker v. The People, 3 Cowan, 686; Dent v. W. Va., 129 U. S., 114. And this applies to an office created by the constitution of a state. People v. Fisher, 24 Wend., 215; People v. Suedaker, 14 N. Y., 52; Ex parte McCollom, 1 Cow., 550; Galway Election Case 2, Eng. Rep., (Moak’s Ed.) 711. For copy of English Treating Act and for what constitutes bribery at elections, see, 1 Rus. on Crimes, 450, etc.
    Our Corrupt Practice Act may be likened in many respects to the English “Treating Act,” passed, with its disqualifying provisions, in 1695. (7 W. Ill Chap. 4.)
    Bribery at elections was a crime at common law. Bex v. Pitt, 3 Burrows, 1335; 1 Russell on Crimes, 155; Cush. Law & Prac. Leg. Assemblies, section 189.
    The punishment for bribery]was found not to be adequate, hence the “Treating Act” was passed. Law & Prac. of Leg. Assemblies, section 192.
    A failure of a man to perform or do what the law requires forfeits the office for which he is a candidate. Cawley v. People, 95 Ills., 249.
    Primary elections and nominating conventions are a part of the political election system of this country. Leonard v. Commissioners, 112 Pa. St., 607. As to false declarations, etc., relating to elections, see, Rus. on Crimes, 450, etc.
    There is nothing in the Constitution which prohibits the legislature from limiting a candidate’s expenditures in and about his nomination or election to office.
    The election of all officers “shall be made in such manner as may be directed by law.” Const, of Ohio, section 27, Article II. Under this section the general assembly “may direct by law the manner in which any officer * * * shall be elected,” etc. State ex rel. v. Covington, 29 Ohio St., 102.
    The Constitution provides that “no person shall be elected or appointed to any office in this state, unless he possesses the qualifications of an elector.” Section 4, Article XV.
    No person not a counselor at law can hold the office of prosecuting -attorney; being an elector does not alone give him the right to the office. Revised Statutes, section 1268.
    It is common to prohibit one person from holding two offices at the same time. • Revised Statutes, sections 18,1020,1164, 1268; State ex rel. v. Taylor, 12 Ohio St., 130.
    The most of the offices of this state are created and filled by law, and like municipal offices are created and abolished at the will of the general assembly. State ex rel. v. Hawkins, 44 Ohio St., 98; State ex rel. v. Constantine,42 Ohio St., 437; Cooley’s Con. Lim., p. 331.
    There is abundant authority for a legislature to prescribe reasonable qualifications for the holding of office. State v. Moffitt, 5 Ohio, 365; State v. Crooks, 7 Ohio, pt. 2, 227; State v. McAllister, 38 W. Va., 485; 18 S. E., 770; Rogers v. Common Council, 123 N. Y., 173.
    It is within the power of the legislature to put office holders in a class by themselves for the purpose of appropriate legislation. State v. Nelson, 52 Ohio St., 99; Daggett v. Hudson, 43 Ohio St.,548.
    And the presumption is in favor of the reasonableness of such regulations. Monroe v. Collins, 17 Ohio St., 665.
    The power to permit soldiers to vote outside of the state has been upheld. Lehman v. McBride, 15 Ohio St., 573.
    Prohibiting a candidate’s name appearing in more than one column on the ballot is upheld. State v. Bode, 55 Ohio St., 224.

      It thus appears that although the Constitution unqualifiedly gives the right to a citizen 21 years of age to vote, yet that right may be forfeited under certain circumstances.
    The defendant in this ease is not alone charged with forfeiting an office to which he had acquired a vested right, but he is charged with usurping an office to which he was never elected, and an office which he claims to hold by virtue of an election which was, by reason of his own unlawful conduct, under the statute, void as to him. In other words, the defendant was not elected to the office he usurps.
    However, in Ohio, there is no property in a public office or any expected emoluments thereof. State v. Hawkins, 44 Ohio St., 109, 114; State v. Wright, 7 Ohio St., 333; Steubenville v. Gulp, 38 Ohio St., 23; Knoup v. Bank, 1 Ohio St., 616; Reeves v. Griffin, 29 Bull., 281; Donahue v. Will, 100 Ills., 94; Bergman v. Cleveland, 39 Ohio St., 651.
    And see section 2, Article I, of Constitution as to where political power rests. The enumeration of rights does not impair others. Const., section 20, Article 1.
    The legislative power is vested in a general assembly. Section 1, Article II; State v. Frame, 39 Ohio St., 407; State ex rel. v. Smith, 44 Ohio St., 348.
    It is constitutional to require screens to be put on street cars to protect the motorman (52 Ohio St., 88), and constitutional to forbid the lawful owners of quail from selling them in a certain season (51 Ohio St., 209), and constitutional to regulate grain elevator charges (153 U. S., 391), and constitutional to prohibit the sale of oleomargarine though wholesome, etc. (127 U. S., 686), and constitutional to require the summary destruction without compensation of fish nets (152 U. S., 133), and constitutional to prohibit office holders from soliciting political contributions (106 U. S., 371), and constitutional to compel the owners of tenements to have a water supply in them for the use of tenants (145 N. Y., 32), and constitutional to prohibit insurance agents from giving rebates (131 N. Y., 478), and constitutional to prohibit persons from soliciting political contributions in government buildings (20 D. C., 226). An act providing for compulsory education is constitutional. Quigley v. State, 5 Ct. Ct., 645, (s. c. 3 Giro. Dec., 310).
    Where the constitution of a state provides that no person except a citizen shall be elected to office, there is no implication that the legislature may not provide other qualifications. State v. McAllister, 38 W. Va., 485; 18 S. E., 770.
    There is a similar holding in a case where the law provided that an alderman was not eligible unless he had paid taxes for the year previous. Par-row v. People, 8 Colo., 420; 8 Pac., 661.
    In the Constitutional Convention of 1851, the Committee on the Elective Franchise reported the section which afterwards became section 4, article 5, exactly as it appeared in the constitution of 1802 (article 4, section 4). 1 Debates, 693; 2 Debates, 10; 2 Debates, 811, 838.
    Throughout the history of the state and under its present constitution various laws have authorized the removal of elective as well as appointive officers by the governor, by courts, boards of commissioners, councils of cities, mayors, etc., and such laws have been upheld and the removal may be made for alleged offences or for no offences and before trial and conviction. Revised Statutes, 1127, 1134, 196, 1246, 1329, 1272, 1031, 1337, 1185, 2228 and 1685.
    The right of removal under section 1685, (and therefore the constitutionality of the section) is clearly recognized in, State v. Heinmiller, 38 Ohio St., 101; State v. Bryson, 44 Ohio St., 469.
    The failure of an officer to pay into the county treasury money due from him is a cause for removal. Revised Statutes, section 1749.
    In none of the statutes cited authorizing removals is it necessary for the officer to have been “convicted of bribery, perjury or other infamous crime.”
    The most that can be said for section 4, article 5, of the Constitution of Ohio is that the general assembly' is, by it, given' the absolute power to exclude any person from the privilege of ever being eligible to an office — it does not contemplate a grant of a right to an office to all persons not so made eligible to hold one. Revised Statutes, section 19.
    An office may be created by law, and filled by an elector, and then abolished during his term by the repeal of the law and thus the officer lose his office. State ex rel. v. Wright, 7 Ohio St., 333; Knoup v. Bank, 1 Ohio St., 603; State v. Bailey, 37 Ohio St., 98.
    There is a clear constitutional right given the legislature to direct the manner of electing a person to fill any elective office in Ohio. Constitution of Ohio, section 27, Article II.
    It is not true (as claimed) that an elector’s vote must be counted if cast for a person eligible to be elected, regardless of what he may have done as a candidate to disqualify himself from being elected and regardless of the fraudulent or unlawful character of the election.
    "We are in no wise concerned about the modes of removing an officer from an office into which he has been lawfully and rightly inducted, and which he may have forfeited by misconduct, etc. Impeachment and other constitutional methods of procedure are ample to meet cases of this kind. The act deals with usurpers to office, not with officers ■ who may have committed an offense whereby he forfeits the office. The act in question being within the general scope of the legislative powers and in the interest of good government, it must be upheld according to all established rules of interpretation. Lehman v. McBride, 15 Ohio St., 573; Walker v. Cincinnati, 21 Ohio St., 41; Sha/rpless v. Mayor, 21 Pa. St., 147; Bailroad Co. v. Commissioners, 1 Ohio St., 77; State v. Kennon, 7 Ohio St., 546; Wellington et al. v. Petitioners, 16 Pick., 95; Commonwealth v. Me Williams, 11 Pa. St., 70; State ex rel. v. Smith, 44 Ohio St., 374.
    And on the question of the power, duty or right of courts to hold a law constitutional unless it is manifestly against some express provision of the Constitution. Gilpin v. Williams, 25 Ohio St., 294; Telegraph Co. v. Mayer, 28 Ohio St., 540; Bloom v. Xenia, 32 Ohio St., 464; Xilbourne v. Thompson, 103 U. S., 168; Amy v. Watertown, 130 U. S., 319; Cooper v. Telfair, 4 Dallas, 14; Carter v. Bice, 135 N. Y., 473; People v. Draper, 15 N. Y., 546.
    The act in question, which is assailed on constitutional grounds, is but one link in a long chain of similar legislation to secure fair and pure election. Act of February 18, 1831; 3 Chase, 1670, chapter 820, section 42. Act of March 20, 1841; 1 Curw., 769, chapter 349, section 11. Act of May 3, 1852; 3Curw., 1929, chapter 1198, section 38. Act of February 24, 1871; 3 Sayler, 2426, chapter 1956, section 6. Act of April 20, 1874; 4 Sayler, 3293, chapter 2822, section 9. Revised Statutes of 1880, section 7046.
    Said act prescribes neither qualifications nor disqualifications for office, and so far as the prohibited acts can become the basis, or cause for an action like the one before the court, is not penal. 92 Ohio Laws, 128, sections 11 and 12.
    The power exercised by the legislature in the enactment under consideration, is not inhibited by any provision in the Constitution. The argument of counsel for plaintiff seems to proceed upon the ground, that this law prescribes qualifications or disqualifications for office, which makes the same obnoxious to certain constitutional objections. But, it is manifest that such is not the case.
    It is a familiar and well understood principle, that all the legislative power of the state is vested in the general assembly, and that when the power of the assembly to enact any particular law is drawn in question, the proper inquiry is, whether such an exercise of the legislative power is clearly prohibited by the Constitution. Baker v. Cincinnati, 11 Ohio St., 534; Lehman v. McBride, 15 Ohio St., 573; Cincinnati v. McCann, 21 Ohio St., 198.
    Plaintiff’s counsel seems to draw their objections to the validity of this law from section 4 of article 5; section 5 of article 2 and section 1, 2 and 11 of the Bill of Rights. Unless these sections are limitations upon the general grant of power conferred by section 1, of article 2, and likewise upon the special power given by section 6, of article 10, and the act now assailed is, by either of said sections, clearly prohibited, the law is valid.
      Gilpin v. IFiiiicms, 25 Ohio St., 283; IF. TJ. Tel. Go. v. Mayer, 28 Ohio St., 521; State v. The Judges, 21 Ohio St., 1.
    It is the duty of good government to adopt the wise measures intended for the good 'of the whole in the suppression of fraud and the defeat of corruption in elections. Parson’s Rights of a Citizen of U. S., page 200; Ohio St., 534, 541, 542; 18 Ohio St., 243; 8 Ohio St., 333; State v. Covington, 29 Ohio St., 102, 118, 117; State v. Ilaxokins, 44 Ohio St., 110, 109, 113; Cincinnati Gazette Co. v. Timber slake, 10 Ohio St., 548.
    The purpose and effect of an action under said act, is to test the legality of the election under which the incumbent claims to hold, and does not affect life, liberty or property.
    The Federal Constitution does not guarantee a jury in the tribunals of the states. Cooley Const. Lim., page 25 (*19) and authorities cited; Hunt y. McMahon, 5 Ohio, 132.
    And the jury guaranteed by article 1, section 5, of the Constitution of Ohio, is that judicial means which was known to the common law before the adoption of the Constitution, and applies only to common law courts in actions involving private property, life or liberty. Willyard v. Hamilton, 7 Ohio, pt. 2, 111; Walker v. Sauvinet, 92 U. S., 90; 2 Kent Com. *page 13; Mlenbecker v. Plymouth Co., Pis. Ct., 134 U. S., 31.
    The law provides, that issues of facts arising in actions for the recovery of money or specific real or personal property, shall be tried by a jury, and all other issues by the court. Revised Statutes, sections 5130 and 5131.
    If this court will review the action on the weight of the evidence, which we question in view .of Revised Statutes, 6710, and Wetzell v. Richcreek, 53 Ohio St., 62, we submit, that it must be determined like all other civil actions, by a preponderance of the evidence, and that it is abundantly sustained.
    The right of trial by jury, is said to be nowhere defined or described in the constitution, but it is spoken of as the great safeguard of life, liberty and property. Work v. State, 2 Ohio St., 296.
    Its guarantee relates to individual rights enforcible in the common law courts.
    The interests of the public are otherwise taken care of. State v. Johnson, 26 Ark., 281; State v. Lu/pton, 64 Mo., 415 (27 Am. Rep., 253); State v. Vail, 53 Mo., 97; Attorney-General v. Sullivan, (Mass.) 40 N. E., 843.
    If the court should feel called upon to review the findings of the circuit court on the weight of the evidence, we contend that the burden is on the defendant to show not only lawful authority in the inception of his office. State v. Hay, Wright 96; State v. Cook, 20 Ohio St., 252. But also continuing qualification, State v. Beecher, 15 Ohio, 723.
   Spear, C. J.

The action in the circuit court was brought under favor of the act of April 8, 1896, entitled “An act to prevent corrupt practices at elections,” 92 Ohio Laws, 123. Section 7 of that act gives the right to any elector entitled to vote at any election (save for members of congress or the general assembly), to present in writing to the attorney-general an application setting forth, among other charges, the doing by a person elected to office at such election, of any act or acts declared unlawful by any law of this state, for the purpose of promoting his election, and thereupon it becomes the duty of the attorney-general to direct the prosecuting attorney of the proper county to bring an action to have the office declared vacant, such action to “be deemed to be and conducted according to the rules prescribed by law for an action against the usurper of an office.” And if any of the charges are sustained, judgment shall be rendered declaring void the election, declaring such office vacant, and ousting the defendant.

The petition charged, among other things, a violation by the defendant of that part of section 32 of the election law of April 18, 1892 ( 89 O. L., 451), which provides that:

“Whoever, directly or indirectly, by himself or through any other person, either gives, offers or procures or promises to procure, or endeavors to procure, any office, place or employment, to, or for any elector, or to or for any other person, in order to induce any elector to register or refrain from registering, for any election, or to vote or refrain from voting at any election, or to vote or refrain from voting at such election for any particular person or persons, or question or proposition, ” shall be punished by fine, or imprisonment in the penitentiary, or both.

The demurrer to the petition raises the question of the constitutionality of that part of section seven of the act of April 8, 1896, heretofore recited, and the refusal of a jury by the trial court raises the question whether or not, in such an action, the defendant is entitled to trial by jury. Other provisions of the statute are attacked as unconstitutional. But those questions are not raised by this record, and it is not necessary for us to inquire beyond the questions actually involved.

1. The constitutionality of the act. It is assailed as repugnant to the constitution in that it undertakes to declare a citizen ineligible to office for criminal acts of his without a conviction of such crime. Section 4 of article 5, is cited. That section provides that: “The general assembly shall have power to exclude from the privilege of voting, or being eligible to office, any person convicted of bribery, perjury, or other infamous crime.” The contention is that this section is a grant of power to the general assembly; that a grant of power to deprive a citizen of part of his political rights, on conviction of certain crimes, necessarily denies the power to do so without conviction, or for different crimes; and that the case comes within the rule, as given in Cooley’s Con. Lim., page 78, “that when the constitution defines the circumstances under which a right may be exercised, or a penalty imposed, the specification is an implied prohibition against legislative interference to add to the condition, or to extend the penalty to other eases. ” The rule seems to have met with general acceptance.

Its application in the present case would appear to depend upon whether the section quoted is a grant of power, or a limitation upon power otherwise granted. To determine this we should look at other provisions of the constitution to ascertain where, by its terms, power to punish crimes, to direct the conduct of elections, to prescribe qualifications for voting and for taking office, is lodged. Clearly, in the nature of things, such power cannot belong either to the executive or judicial departments. It belongs naturally to the legislative. It is a part of the legislative power, and we find that, by section 5 of article 2, this power is vested in the general assembly in as ample terms as could be chosen to express it. “In creating a legislative department, and conferring upon it the legislative power, the people must be understood to have conferred the full and complete power as it rests in, and may be exercised by the sovereign power of the country, subject only to such restrictions as they may have seen fit to impose. ” * * * “The legislative department is not made a special agency for the exercise of specifically defined powers, bub is intrusted with the general authority to make laws at discretion.” Cooley, p. 104. And, says Denio, J., in People v. Draper, 15 N. Y., 532: “The people in framing the constitution committed to the legislature the whole law-making power of the state, which they did not expressly withhold. Plenary power in the legislature, for all purposes of civil government, is the rule. A prohibition to exercise a particular power is an exception.” And by Scott, J., in Lehman v. McBride, 15 Ohio St., 591-2: “This grant of power is general in its terms, not special; it embraces all such legislative power as the people of the state could, under the federal constitution, confer — the whole ‘legislative power of the state. ’ The limitations upon the exercise of the power thus broadly conferred, are special, and are to be found in other parts of the same instrument.” * * *' “Therefore, when the power of the general assembly to enact such a law (the soldiers’ voting act) is drawn in question, the proper inquiry is, whether such an exercise of legislative power is clear 1 j prohibited by the constitution. The grant of power being general, the question is as to the existence of a limitation, arising from special prohibition. ’ ’ ‘ ‘Such prohibition must either be found in express terms, or be clearly inferable, by necessary implication, from tbe language of the instrument, when fairly construed according to its manifest spirit and meaning.” Citing Baker v. Cincinnati, 11 Ohio St., 542, where it is said by Gholson, J.: £‘It will be observed that the provision is not, that the legislative power, as conferred in the constitution, shall be vested in the general assembly,but that the legislative powet' of this, state shall be vested. That includes all legislative power which the object and purposes of the state government may. require, and we must look to other provisions of the constitution to see how far, and to what extent, legislative discretion is qualified or restricted.” Citing, also, Evans v. Dudley, 1 Ohio St., 437, and Cass v. Dillon, 2 Ohio St., 607. It follows from this, that, without question, ample power to legislate upon all the subjects hereinbefore enumerated is conferred upon the general assembly.

The right to vote and to hold office is. nob of necessity connected with citizenship. Neither is it a natural right, such as the right to personal security, personal liberty, or the right to acquire and enjoy property. It is within the power of the people to give or refuse, restrict and regulate the franchise. And when conferred it is not a natural right, but may be taken away by the power that gave it. McCrary on Elections, sections 3 and 4. That is, the right depends upon the law of the land And, except where restrained by the constitution, the power of the general assembly over it is unlimited.

And, belonging to this general subject, is the subject of elections. No subject comes more eertainly within legislative power than does this. In the very nature of things it must be so. But the general duty is especially devolved on the general assembly by the constitution. The time for the election of legislative, executive, and judicial officers having been designated, and provision having been made that all elections shall be by ballot, by section 1 of article 10, the duty is enjoined upon that body to provide by law for the election of county and township officers, and, by section 27 of article 2, it is provided that: “The election * * * of all officers not otherwise provided for by the constitution * * * shall be made in such manner as may be directed by law.” It thus appears that the whole subject of elections, save so far as it is, in distinct terms, or by clear implication, controlled by the constitution, is devolved upon the general assembly, and that the power of that body over it is untrammeled, and that the details, as they relate to the manner or mode of holding elections are expressly referred to legislative discretion.

From a consideration of all the provisions of the constitution referred to, we are led to the conclusion that, while the question may not be free from doubt, the better view is tha' section 4 of article 5, is not in itself a grant of power, but a limitation upon power otherwise generally granted, and that this conclusion is in no way affected by section 5 of article 2. That is, had these sections not been adopted, the general assembly, by force of the general grant of legislative power, could have provided a permanent disqualification from voting, and from holding office, for causes or offenses other than those enumerated in the.sections above cited.

This conclusion leads to the further conclusion that the rule given by Cooley, cited by counsel, and hereinbefore quoted, does not control the case, but that other rules of construction equally reasonable aijd equally well recognized, which are given by the same author, are more in point. One is that “when a constitution gives a general power, or enjoins a duty, it also gives by implication, every particular power necessary for the exercise of the one or the performance of the other.” And, chin to this, “where power is granted in general terms, the power is to be construed as coextensive with the terms, unless some clear restriction upon it is dedueible (expressly or by implication) from the context.” It would obviously follow that where, by one section, a general, unlimited power is given, and that is abridged by another section of the same instrument, the limitation is not to be held more comprehensive than its terms clearly import. And, to justify the claim that the limitation of the constitution inhibits the attempted exercise of the power in the particular case by the general assembly, it should be shown that the objects contemplated by the constitutional provision and the statutes are substantially identical. Such, we think, is not the case here. The object of section 4 is to authorize the general assembly to award a punishment upon conviction of infamous crime, which will permanently exclude the criminal from voting and from holding office, and the effect of the statute enacted by virtue of that section, is to accomplish that object. The corrupt practices act does not undertake to authorize this. It does not provide any disability as to voting, nor does it render the person offending permanently ineligible to office. Comparing the two provisions by their operation and effect, the operation and effect of the constitutional provision, carried into legislation, are to punish for infamous crime, committed anywhere, at any time, with reference to any subject-matter, and to permanently disqualify from voting at any election and from holding any office, while the operation and effect of the provision of the statute are simply and only to disqualify from a particular office in the interest of pure elections, where the person claiming the office has violated the terms of the statute under which, and by virtue of which, he claims to have been elected. The statute operates upon the election and upon the office; it holds the one void and the other vacant; as a result it excludes the person from any benefit under the election which his unlawful acts have rendered of no effect, but it does not award punishment. The vice which enters into the election and renders it void, is the misconduct in reference to that particular election of the person who claims a benefit under it. He has violated the implied interdict of the statute by attempting to promote his election by impure and immoral acts, having a tendency to corrupt the voters and prevent a fair and legal election. Upon every principle of justice and fairness he should be prevented from reaping an advantage from his own wrong.

A question much discussed is as to whether the statute should be treated as imposing a test of ineligibility, or as providing a method of removal. The matter may be not free from doubt. Possibly the provision involves both characteristics. But the better conclusion, we think, is that the intent of the legislature was, not to provide a method by which a person lawfully elected to an office may be removed therefrom, but rather a method by which the title of one to an office which he has obtained possession of in violation of the terms of the statute upon which his claimed right vests, may be inquired into. It is, therefore, a challenge of the title to the' office, resting upon charges of misconduct in procuring it, rather than a process to remove, resting upon charges of misconduct in office.

Our conclusion with respect to the effect of section 4 of article 5, is, that if the framers of the constitution had intended to deny to the general assembly the power to render void an election because of illegal acts by the successful candidate, done for the purpose of promoting his election, they would have declared that purpose in unequivocal terms, and would not have left such result to depend upon doubtful implication. We have already found that there is no clear expression of such an intent. It follows that the provisions of the corrupt practices act involved in the case before us do not contravene section 4 of article 5, of the constitution.

Nor are the provisions of the statute in conflict with either article 5, or with section 4 of article 15, of the constitution. The former article provides who may be electors, and that electors shall be entitled to vote at all elections. Section 4 of article 15 is: “No person shall be elected or appointed to any office in this state unless he possesses the qualifications of an elector.” But it does not follow from this that every person who has the qualifications of an elector shall be eligible to any office in the state. The well-settled rule is that, while the legislature is without power to deny or abridge a constitutional right of a citizen to vote, or to hold office, nevertheless laws to regulate the exercise of the elective franchise, if reasonable, uniform and impartial, and calculated to facilitate the exercise of the right, are clearly within the legislative competency, and decisions to the effect 'that qualifications upon the right to take office other than the one imposed by the section quoted, are numerous. State v. Crooks, 7 Ohio Rep., 579; The State v. Covington, 29 Ohio St., 102. At page 118, it is remarked by Mcllvaine, J.: “If the framers of the constitution had intended to take away from the legislature the power to name disqualifications for office other than the one named in the constitution, it would not have been left to the very doubtful implication which is claimed from the provision under consideration. The power under the general grant being ample and certain, a statute should not be declared void because in conflict with an alleged implication unless such implication be clear and indubitable. ” It may be added that there are implied disqualifications. A person may not hold incompatible offices, as an officer who presents his personal account for audit and officer who passes upon it, or sheriff and justice of the peace, or governor and member of the general assembly, or, as held in The State v. Taylor, 12 Ohio St., 130, the office of director of county infirmary and superintendent of the infirmary. The list might be indefinitely extended.

No duty enjoined upon the general assembly is higher, or of greater general interest to the commonwealth and the individual citizen, than that of securing, within constitutional limits, the full, untrammeled right of the elector to vote, to have that vote counted and not neutralized by an illegal vote, and securing, in addition, a fair expression at the ballot box of the public voice, freed from corrupting influences. And where this duty has been attempted by legislation calculated to secure these rational and desirable ends, courts will interfere with its operation only upon the clearest and most unquestioned conviction of its invalidity. A mere doubt is not sufficient. We are of opinion that the provisions of the act involved in this case are not in contravention of any section of the constitution, at least not clearly so, and are valid.

2. The right to a jury. Our constitution declares that the right of trial by jury shall be inviolate. This means the right as it existed in this state at the adoption of the constitution of 1802. Not that every question of fact was to be tried by a jury; only questions of fact in certain classes of cases. The distinctions indicated by our statutes, and by practice from the organization of the state, show this. Code, sections 263, 264; 51 O. L., 100; sections 5130 and 5131, Revised Statutes. The right applied only to common law courts, and in actions involving life, liberty, or the right to private property. Willard v. Hamilton, 7 Ohio Rep., 449. And we regard it as safe to say that there never has been a statute in Ohio authorizing a jury, nor will there be found a reported case in this state where a jury was called, or held to be proper, in a suit to determine title to an office; certainly none has been cited. We suppose the reason to be plain. A public office is a trust held for the benefit of the public. The incumbent, if he performs the duties, may be entitled to the emoluments, but he cannot have, under our governmental system, any prop^ erty in the office itself. The State v. Hawkins, 44 Ohio St., 98, and see especially remarks of Minshall, J., on pages 110 and 113, and the cases there cited. There being no property right involved in the inquiry, a jury cannot be had in an action to try title to an office. Contrary holdings have been made in other states by courts of high repute. But we think the law of Ohio is clearly as held by the circuit court. The question is not a new one in this court. In The State ex rel. Attorney-General v. Blood, (quo warranto) a demand for a jury was made, March 25, 1887, and argued by eminent counsel. The demand was refused. 17 W. L. B., 290. The case was then referred to a master to take testimony, but was finally dismissed by relator, and, for that reason, was not reported.

Other questions of procedure are argued, but we do not regard them of sufficient importance to warrant comment except to say that we find no error.

Judgment affi/i'med.


source: Caselaw Access Project

author: Shauck, J.

license: Public Domain

text:
    Wilhelm v. The City of Defiance.

      Municipal corporation — May require construction of sidewalk by property owner, when — Liability for negligent construction.

    A municipal corporation, having in the proper mode provided-for the construction of a sidewalk and notified the owner of abutting land, may require of him the construction of a sufficient walk in front of his premises, and, upon his default, may itself construct such walk and assess the cost thereof upon his land; but it cannot recover from him indemnity on account of a judgment recovered against it for injuries occasioned by such owner’s negligent construction of the walk.
    (Decided March 1, 1898.)
    Error to the Circuit Court of Defiance county.
    The city of Defiance filed its petition against Wilhelm in the court of common pleas alleging in substance that he was the owner of lot one abutting on Clinton street in said city; that an ordinance of the city required the owners of lots abutting upon the streets of said city to construct and maintain in front thereof good and sufficient sidewalks, when constructed of wood, to be six feet in width and laid with good sound pine board planks not less than six nor more than twelve inches wide and one and one-half inches thick, and free from sap and unsound knots, on white or burr oak stringers, etc.; that on November 7, 1889, the counsel of said city adopted a resolution declaring it to be necessary to improve the walk in front of Wilhelm’s lot in accordance with the provisions of the general ordinance relating to wooden sidewalks, and that notice thereof was personally served upon Wilhelm; that Wilhelm thereupon took iipon himself the work of constructing and repairing said walk, but constructed it in a negligent manner and of unfit and defective materials and left it in an unsafe and dangerous condition in consequence whereof, one Martha L. Sammis while lawfully passing along said walk, without fault on her part, sustained severe injuries for which in the court of common pleas a judgment had been awarded her against the city for $1,500.00, and $103.53 the costs of suit; that before the trial of her said action against the city, Wilhelm was notified of the pendency of said action and that the city would require him to indemnify it for all damages which it might be adjudged to pay her; and that it paid the amount of the judgment so recovered by her and demanded of Wilhelm that he reimburse it, which he failed to do. The prayer of the petition was for a judgment for the amount which the city so paid to Mrs. Sammis.
    In the court of common pleas a final judgment was rendered in favor of Wilhelm on his demurrer to the petition.

      On a petition in error by the city the circuit court reversed the judgment of the common pleas.

      Henry c& E. II. Neiohegin, for plaintiff in error.
    That the plaintiff in error was not liable to the person injured on account of the defective sidewalk, was conclusively settled in the case of Sammis v. Vilhelm, 6 C. C. R., 565; 3 C. D., 587; and this decision will not be reviewed here. The judgment of the court of common pleas against the city, which it was satisfied to pay off and discharge without further contest, also settled the liability of the city for the injury to Mrs. Sammis.
    But, without reference to the above decision of the circuit court, under the law, no liability was cast upon Wilhelm for the injury on account of the defective sidewalk. The sidewalk was a part of the public street, under the entire control of the city, and, in regard to it, Wilhelm owed no duty to the public, whatever. In Ohio, and in most states, sidewalks are a part of the public street. By statute, Michigan is an exception. Dillon on Mun. Corps., sections 1008,1012; In re Burmeister, 76 N. Y., 174; Pomfrey v. Village of Saratoga Springs, 104 N. Y., 459; Taber v. Graf miller, 109 Ind., 206; Revised Statutes, sections 2640, 2328-30; Vandyke v. City of Cincinnati et al., 1 Dis., 532; Noonan v. City of Stillwater, 33 Minn., 198; Taylor v. Lake Shore By. Co., 45 Mich., 74; Ileeney v. Sprague, 11 R. I., 456; Flynn-v. Canton Co., 40 Md., 312; Kirby v. Boylston Market Association, 14 Gray, 249.
    The following eases hold the same in substance as the foregoing: Betz v. Limingi, 46 Lou. Ann., 1113; City of Keokuk v. Independent Dist. of Keokuk, 53 Iowa, 352; City of Hartford v. Talcott, 48 Conn., 525; City of Bochester v. Campbell, 123 N. Y., 405; Tiedeman on Mun. Corps., section 348; Yol. 9 Am. and Eng. Enc. of Law, page 395, par. 10 and note 3.
    If Wilhelm had done any act which rendered the use of the street hazardous to passers thereon, such as making an excavation under the sidewalk without proper supports, or hy leaving unsafe hatchways thereon, or leaving open a coal hole, or actually placing an obstruction in the street so that he would have been liable to the person injured in an action directly against himself (Dillon Mun. Corps., section 1032), and the city had been obliged to respond in a judgment against it, on account of injury tQ the passer-by, then it probably could have recovered in this action against Wilhelm, as it would have been subrogated to the rights of the person injured. City of 'Rochester v. Campbell, 123 N. Y., 412. But to have this right of action over against Wilhelm, the city must have been without fault itself. That the city was negligent of its duty to keep the sidewalk in repair under section 2640, Revised Statutes of Ohio, is conclusively settled by this court in Village of Cardington v. Admr. of Fredericks, 46 Ohio St., 442; and see Cleveland v. King, 132 U. S., 295.
    The city, then, being at fault, if we concede that Wilhelm also was at fault, there can be no recovery over by the city against Wilhelm for the reason that one of two joint wrongdoers can not have contribution from the other. Chicago City v. Robbins, 2 Black, 418. Addison on Torts, Yol. 2 (Wood’s Ed.), last par., section 1394 and note 1.
    But if not liable directly to the injured person he could not be held liable indirectly to the city for damages suffered by the injured person through its fault. TJrquhm't v. City of Ogdens

      burgh, 97 N. Y., 238; City of St. Louis v. Conn. Mutual Life Ins. Co., 107 Mo., 92.
    Tlie ease of City of Keokuk v. Independent Dist. of Keokuk, 53 Iowa, 352, is almost identical with the case at bar. City of Loioett v. Olidden, 159 Mass., 317; Dillon Mun. Corps., section 1012; Tiedeman on Mun. Corps., sections 346 and 348.

      Ldwin A. Latty, for defendant in error.
    As part of our argument we desire to call attention to the opinion rendered by Judge Day of the circuit court of Defiance county, Ohio, in the hearing of this case below, and reported in 12 Ohio C. C., 347.
    1. The familiar rule is, that one who negligently creates or maintains an obstruction or nuisance in a public street, is, irrespective of authority or license, liable to persons injured thereby. Clark v. Fry, 8 Ohio St., 359; Railroad Co. v. Morey, 47 Ohio St., 207; liatón v. Whalen et al., 49 Ohio St., 69; Sexten v. Zett, 44 N. Y., 430; Bliss v. Sehub, 48 N. Y., 339; Steiverman v. White, 48 Super, 523; Dixon v. Brooklyn City R. R. Co., 100 N. Y., 170; Mairs v. Manhattan Real Estate Association, 89 N. Y., 498; Robbins v. Chicago, 4 Wall., 657; Mulcairnsv. Janesville, 34 Alb. L. J., 456; Indianapolis v. Emmelman, 35 Alb. L. J., 137.
    2. In case the defect was caused by a licensee, the right of recovery, depends on his contract express or implied to perform the act permitted in such a manner as to protect the public from danger and the municipality from liability. Port Jervis v. First Nat. Bank, 96 N. Y., 550; Brooklyn v. City R. R. Co., 47 N. Y., 475; Congreve v. Morgan, 18 N. Y., 84; Troy v. Troy & L. R. R. Co., 49 N. Y., 657.
    In the first two cases the liability was implied, in the latter two expressed in the contract.

      3. Where a municipal corporation has been compelled to pay a judgment rendered against it, for damages sustained by reason of the wrongful acts of a third person, rendering a street unsafe, it has a remedy over, against such person. Milford v. Eoolbrook, 9 Allen, 17; Lowell v. Short, 4 Cush., 275; Boston v. Worthington, 10 Gray, 496; Lowell v. Boston & Lowell R. R. Co., 23 Pickering, 24; WoodsY. Breton, 111 Mass., 357; Westfield v. Mayo, 122 Mass., 100; Rochester v. Montgomery, 72 N. Y., 67; Mayor, etc., of N. Y., v. Bimick, 20 Abbot, N. Cas., 15; Seneca Falls v. Zalinski, 8 Hun., 571; Portland v. Richardson, 54 Maine, 46; Catterlinv. Frankfort, 79 Ind., 547; Morgan v. Muldoon, 82 Ind., 347; Beever v. North, 107 Ind., 544; Robbins v. Chicago, 4 Wall., 657; Western da etc., R. R. v. Atlanta, 74 Ga., 774; Aberdeen v. Blackman, 6 Hill, 324; Elliott on Roads and Streets, 657; Elkhart v. Weckemvire, 87 Ind., 77; McNaughton v. Elkhart, 85 Ind., 384; Brookville v. Arthurs, 130 Ind., 501; Portland v. Atlantic R. R. Co., 66 Me., 485; Brooklyn v. Brooklyn City R. R. Co., 8 Abb., Pr. N. S., 356; City of N. Y v. Brady, (Sup.) 30 N. Y., S., 81, Hun., 440; City of Reading v. Reener, 167 Pa. St., 41; City of Wabash v. Southioorth, 55 N. W. Rep., 818; Trustees of Village of Canandaigua v.' Foster, late case (30 N. Y. S., 686), 81 Hun., 147.
    4. When a remedy exists, the corporation may notify such wrongdoer of the pendency of the action, against it, and request him to come in and defend, he will then be concluded by any judgment as to the existence of the defect, the liability of the city and amount of damages. Boston v. Worthington, 10 Gray, 496; Portland v. Richardson, 54 Me., 46; Mayor, etc., N. Y. v. Troy, etc., R. R., 49 N.Y., 657; Bobbins v. Chicago, 4 Wall., 657; Binsee v. Wood, 37 N. Y., 530.
    5. If after notice and request, to defend, the wrongdoer, fails to make any defense in the action against the city, and the city defends it for him, it may, if guilty of no misfeasance itself, recover from such wrongdoer, not only the amount of the judgment recovered against it, but also all reasonable and necessary expenses incurred in defending the action including reasonable attorneys’ fees. Veaziev. PenobscotB. B. Co., 49Me., 19; Chesapeake Canal Co. v. Alleghany Co., 57 Md., 201; Baxendale v. London, etc., B. B. Co., 10 L. R. Ex., 35; Aslin v. Peor kin, 2 Burr., 665; Marlott v. Clary, 20 Ark., 251; French v. Parish, 14 N. H., 496; Levetsky v. Canning, 33 Cal., 299.
    As to the proposition claimed by the plaintiff in error that this action will not lie, because of the rule that no contribution exists between wrongdoers, it is of course true that it contains in general a true enunciation of a principle of law. But the real question at issue in this case is quite different from the abstract statement of the general principle, and the rule is always confined to cases where the party seeking redress knew, or must be presumed to have known, the act was unlawful; and does not apply to cases where the party seeking contribution was a tort-feasor only by an inference of law. Adamson v. Jervis, 4 Bing., 72; Wooley v. Batte, 2 Car. & P., 417; Pearson v. Skelton, 1 M. & W., 504; Jacobs v. Pollard, 10 Cushing, 287; Bailey v. Bushing, 28 Conn., 455; Moore v. Appleton, 26 Ala., 633; Goldsburough v. Darst, 9 Brad. (111.), 205; Sherner v. Spear, 92 N. C., 148; LLorbachv. Elder, 66 Pa. St., 33; Armstrong Co. v. Clarion Co., 66 Pa. St., 218; Acheson v. Miller, 2 Ohio St., 203; Grund v. Van Fleck, 69 111., 479; Ives v. Jones, 3 Ired. L., 538.
    And in the following- similar cases, where recovery over was sought, the rule of no contribution between tort-feasors,was expréssly held not to apply. Campbell v. Somerville, 114 Mass., 334; Gridley y. City of Bloomington, 68 111., 47; Minneapolis Mill Co. v. Wheeler, 31 Minn., 121; Churohhill v. Holt, 127 Mass., 165; IIorbachY. Elder, 18Pa. St., 33; Wooley v. Batte, 2 Car. & P., 417; Gray v. Boston Gas Light Co., 114 Mass., 149; Inhabitants of West Boylston v. Mason, 102 Mass., 341.
   Shauck, J.

In Morris v. Woodburn, 57 Ohio St. 330, we held that if the owner of a lot abutting upon a street of a municipality, for the use of his property, constructs a vault under the sidewalk over which he negligently places and maintains a defective covering, he is liable directly to a footman injured thereby, notwithstanding the omission by the municipality of the duty imposed upon it by statute to keep the street in repair. And since the decisions in Chicago v. Robbins, 2 Black, 418 and 4 Wall., 657, it seems to be the settled law that if a municipal corporation is held in damages for its failure to keep a sidewalk in repair by removing the source of danger so created by an abutting owner for his own personal ends, it may, having given him notice of the pendency of the suit against it, recover from him the amount which it is adjudged to pay because of his tort.

But it is not assumed that the grounds upon which recoveries were sustained in those cases are available here. The opinion of the circuit court in the present case (12 C. C. R.-, 346) shows that it was mindful of the fact that the statute imposed upon the municipality, and not upon the abutting owner, the duty of keeping the streets and sidewalks in repair and free from nuisance. It is conceded that the law imposes upon such owner no duty with respect to the walk whose mere omission could be asserted as the foundation of an action against him. According- to the view there taken, Wilhelm, having assumed the duty of constructing and maintaining the walk, thereby became bound to exercise due care in the selection of materials and reasonable skill in constructing and repairing the walk, and by his failure in respect thereto he actively created the dangerous place and negligently left it unguarded, whereby he became directly liable to the person injured or to the city in the present action it having been compelled to respond first because of its failure to perform the duty imposed upon it by the statute. No authority is cited by the circuit court in support of this view, and most of the cases cited by the city solicitor in support of the judgment relate to the points decided in Morris v. Woodburn, and Chicago v. Robbins.

The right of the municipality to recover from the wrongdoer was upheld in Chicago v. Robbins, and in the cases following it, upon the ground that the recourse of the person injured is primarily against him; and the municipality, having relieved him of that liability, is subrogated to the rights of the person injured. In the City of Rochester v. Campbell, 123 N. Y., 405, is was correctly said of those cases: ‘These were all cases where the dangerous conditions of the streets were created by the defendants, and they were held liable for the consequences of their unlawful acts, under their common law obligations as the creators of nuisances, and not by reason of any duty enjoined upon them by statute or otherwise. ’ Section 2640, Revised Statutes, provides: “The council shall have the care, supervision and control of all public highways, streets, avenues, alleys, sidewalks, public grounds, and bridges within the corporation, and shall cause the same to be kept open and in repair, and free from nuisance. ’ ’

This, as has been repeatedly held, is not merely a grant of power to the municipality, but the imposition of a duty upon it. Cognate provisions of the statute authorize the municipality to require, in the mode specified, the abutting owner to construct or repair the walk in front of his premises. The effect of his failure to comply with the requirement is also defined by the statute; that upon his failure the municipality may construct or repair the walk and assess the cost thereof upon his property. But the right of the city to be indemnified in this manner is expressly limited to one-fourth of the amount at which the property is valued for the purposes of taxation. The consequence thus indicated by the statute is exclusive. In considering the effect of similar statutory provisions in The City of Keokuk v. the Independent District of Keokuk, 53 Iowa, 352, it was said: “The city has sole authority over its streets, is charged with their improvement and repair, and vested with the power to tax for that purpose. Where the lot owner is required by the city to construct or repair a sidewalk it is simply a method of exercising such power of taxation by which he is made the agent of the city to expend the amount of the tax, and the responsibility for the performance of the work remains where the authority to control it is found. ’ ’

In well considered cases it has been held that the liability which the statute imposes upon the abutting owner is exclusive and not reconcilable with an unlimited liability for injuries occasioned by the defective condition of streets and sidewalks which are constructed and maintained under the authority of the municipality, where that condition results from negligence merely. Flynn v. The Canton Company of Baltimore, 40 Md., 312; City of Hartford v. Talcott, 48 Conn., 525; City of St. Louis v. The Conn. Mut. Life Lns. Co., 107 Mo., 92. That conclusion is in harmony with the view of the subject taken in Rochester v. Campbell, where it is said that to hold the abutting property liable in an action for indemnity “would tend to relax the vigilance of municipal corporations in the performance of their duties with respect to the repair of streets -and highways, and impose that duty upon those who might be utterly .unable to discharge it..”

The policy of the statute, as indicated by its provisions according to the doctrine of the cases cited and the numerous cases which they review, seems to require the conclusion that when a municipality accepts a sidewalk constructed by the owner of abutting property pursuant to its notice, as a compliance therewith, all liability for mere negligence in construction and maintenance must rest and remain upon it.

Judgment of the circuit court reversed and that of the common pleas affirmed.


author: Burket, J.

text:
    The Village of Ashland v. Greiner et al.

      Grant of land for religious purposes — Grantees convey strip to village for street — Rights of heirs of grantor against grantees.

    1. A deed of conveyance for one-half acre of land having been made and delivered by a grantor to two grantees upon consideration of twenty dollars, as follows :
    u To have and to hold the above granted and bargained premises with the appurtenances thereof unto them, the said grantees or their successors in office, forever, to their own proper use and behoof, but it is expressly to be understood that the said grantees nor their successors in office, shall not at any time use or occupy the aforesaid premises for any other purpose or purposes than whereon to erect or build religious meeting houses or parsonages, and for cemetery or burying ground, and that the said cemetery or -burying ground shall be free and common to and for all religious denominations who may desire to occupy the same for the purpose of interring their dead, under the immediate direction and regulations of the said grantees or their successors in office, but this reservation shall not extend to inhibit or prevent the fencing, planting trees or shrubs, making tombs, monuments or other ornamental improvements, ’ ’ and a street having been located by the village upon a strip of said land thirty feet wide, for which the successors of said grantees received five hundred dollars, and an action having been brought by the heirs of the grantor against the village for the recovery of the value of said strip of land : Held,— That said heirs had no title to said strip of land, and no right to the value thereof.
    2. That as said deed had no words of forfeiture or re-entry, the diverting of said lands to uses and purposes, other than those expressed in the deed, did not in legal effect revest title to said lands in the grantor, or his heirs.
    (Decided March 1, 1898.)
    Error to the Circuit Court of Ashland county.
    On the 11th day of September, 1838, a conveyance was made by deed, the material part of which, so far as this case is concerned, is as follows:

      “To all persons to whom these presents shall come, greeting: Know ye that we, Martin Greiner and Elizabeth Greiner, of the county of Richland in the state of Ohio, for the consideration of twenty dollars, received to our- full satisfaction of Christopher Mykrantz and John Keller, of the county aforesaid, trustees of the German Lutheran, Presbyterian and Reformed Congregation of Montgomery and its vicinity, do give, grant, bargain, sell, convey and confirm unto the said Christopher Mykrantz and John Keller, or their successors in office, the following described tract * * * containing one-half acre of land. To have and to hold the above granted and bargained premises with the appurtenances thereof unto them, the said Christopher Mykrantz and John Keller, or their successors in office, forever, to their own proper use and behoof, but it is expressly to be understood that the said Christopher Mykrantz and John Keller, nor their successors in office, shall not at any time use or occupy the aforesaid premises for any other purpose or purposes than whereon to erect or build religious meeting houses or parsonages, and for cemetery or burying ground, and that the said cemetery or burying ground shall be free and common to and for all religious denominations who may desire to occupy the same for the purpose of interring their dead, under the immediate direction and regulations of the said Christopher Mykrantz and John Keller, or their successors in office, but this reservation shall not extend to inhibit or prevent the fencing, planting1 trees or shrubs, making tombs, monuments or other ornamental improvements.”

      The acknowledgment shows that the wife signed the deed “for the purposes therein specified.”
    The land was used as a cemetery, until the year 1857, when the council of the village prohibited interments, and thereafter it was used as a parsonage for the Lutheran Church.
    In the year 1875, the then trustees of the Lutheran Church made a quitclaim deed to the village of Ashland for a strip of land about thirty feet wide along the south side of said half acre for the sum of $500.00, and the village accepted the deed, and opened a street on and along said strip, and agreed that the parsonage should be exempt from assessment for the first improvement and sidewalk of the street. A proceeding in appropriation had previously been had, but the value of the land assessed by the jury was not paid by the village.
    The grantors in the deed of 1838, having died, their heirs on the 24th day of June, 1895, commenced an action in the court of common pleas to recover from the village the value of said strip of land so devoted to street purposes, and offered in their petition to convey said street to the village upon being paid its value, $750.00.
    A demurrer was filed to this petition, and the same having been overruled, an answer was filed admitting the incorporation of the village, the deed of 1838, the use, of the strip of land as a street, and denying all the other allegations of the petition.
    A jury was waived, and the ease was tried to the court, and judgment rendered for the village. A motion was made for a new trial, which was overruled and exceptions taken, and a bill of exceptions containing all the evidence, including the deed of 1838, and the quitclaim deed of 1875, was allowed and made part of the record.

      Upon petition in error, the circuit court reversed the judgment, upon the grounds that the court erred in overruling the motion for a new trial, and that the findings and judgment of the court were contrary to the law of the land, and against the evidence in the case.
    Thereupon the village filed its petition in error in this court, seeking to reverse the judgment of the circuit court, and asking for affirmance of the common pleas.

      W. T. Devor, for plaintiff in error.
    The deed to the village as appears from all the evidence was simply an agreement to give the strip of land for a street and specified the compensation to he paid by the village for the same. Now the village got possession of the land for the street either by the appropriation proceedings or the deed from the trustees, it matters not which. By an, etc. v. Hoffman, etc:, 26 Ohio St., 120.
    Inability to acquire the lands by purchase or voluntary grant has in many cases been held to be a jurisdictional fact which must be set out in the petition. Bowman v. Venice, etc., 102 111., 454; Booker v. Venice, etc., 101 111., 333; Chicago, etc., v. Sanford, 23 Mich., 418; Cunningham v. Pacific B. B. Co., 61 Mo., 33; Hannibal, etc., v. Under, 49 Mo., 165; In re N. T. Cent/ral B. B. Co., 67 Barb., (N. Y.)426; XT. S. v. Oregon B. efe Hav. Co., 16 Fed. Rep., 5241; section 6415, Revised Statutes of Ohio.
    It is true that the strip of land wa,s conveyed to the trustees for particular purposes “and for no other purpose or purposes. ” But the restrictions and limitations made by a grantor as to the use of property conveyed cannot interfere with public progress. Brown v. Corey, 43 Pa. St., 495.

      The private contracts of parties can not prevent municipalities from making improvements. The power of eminent domain is one of the principal powers of municipal corporations. 6 Yol. Am.'and Eng. Enc. of Law, 511.
    An owner of an equitable estate may make a valid dedication of land for a street. Cincinnati v. White, 6 Peters, (U. S.) 431; Williams v. Presby. Church, 1 Ohio St., 478; Pagan v. McCoy, 29 Mo., 356; Johnson v. Scott, 11 Mich., 232; Poe v. Attica, 7 Ind., 641; Wright v. Tinkey, 3 Cush., (Mass.) 290; Sargeant v. St. Bio., 4 McLean, (U. S.) 339.
    A trustee may dedicate land for a street. Pruden v. lindsley, 29 N. J. Eq., 615; Pitts v. Mayor, etc., of Baltimore, 73 Md., 326. 38 N. J. L., 47; 8 Ind., 378.
    A railroad company can dedicate land for a public highway. Williams v. IE Y. & N. II. E. E. Co., 39 Conn., 509.
    Dedication generally means to give without any direct consideration. 5 Am. and Eng. Enc. of Law, pag'e 395. An express common law, dedication of a street may be made in various ways. 24 Am. and Eng. Enc. of Law, page 5; Cincinnati v. Babb, 29 Bull., 284. This same case was affirmed by the Supreme Court without report as Babb v. Cincinnati, 36 Bull., 206; 4 Dec., 464.
    If the condition of the deed from Greiner to the church trustees is what is called a condition subsequent, operating upon an estate already created and vested and rendering it liable to be defeated, it is not favored in the law and it is to be construed strictly, because such conditions tend to destroy estates. Peden v. O., E. I. <& P. B. B. Co., 73 Iowa, 328; also 5 Am. St. Rep., 680.

      It is often a question whether clauses of this nature are conditions subsequent or covenants, and fine distinctions have been made by the courts in determining the matter. Watterson v. Ury, in 5 C. C., 347; 3 C. D., 171; 52 O. S., 637; Taylor v. Binford, 37 Ohio St., 262; Woodworth v. Payne, 74 N. Y., 196; Post v. Weil, 115 N. Y., 361; 12 Am. St. Rep., 809; Raley and Johns v. Muatilla Co., 3 Am. St. Rep., 142.
    Now we claim that under this deed from Martin Greiner the trustees of the church did not even violate the purposes of the grant by opening a street along the side of the one-half acre. The deed provides that “this reservation shall not extend to inhibit or prevent the fencing, planting trees or shrubs, making tombs, monuments, or other ornamental improvements. ’ ’
    Every deed is to be so construed as, if possible, to give effect to the intention of the parties. It is to be construed most strongly against the grantor. White v. Sayre, 2 Ohio,- 114; Wolf v. Scarborough et al., 2 Ohio St., 363; Potteo-• v. Burton, 15 Ohio, 196; Cincinnati v. Bfeioell, 7 Ohio St., 37; Witt v. St. Pcml, etc., Ry. Co., 38 Minn., 122 Miller v. Miller, 17 Or., 423; Jeromes. Ortman, 66 Mich., 668.
    In our answer we also plead the statute of limitation. The public have been in possession of this street since 1875, nearly 20 years, before this action was brought.
    The petition asks for damage and falls under section 4982, Revised Statutes of Ohio.

      Mrs. Sm-a K. Wertman, for defendants in error
    We do not agree with the attorney in error, that said proceedings were a dedication of said ground by the grantor, Martin Greiner. It does not meet the requirements of a dedication, but if so construed by the court, then we meet it with 18 Ohio St., 221.
    Neither can it be made to appear that the church trustees dedicated said strip of ground for a street as affirmed by attorney for plaintiff in error, for said attorney admits that the record shows that said trustees received $500.00, an exemption from tax for street improvements for said ground. Whereas a dedication requires to give without consideration.
    Note the deed used for said conveyance was a quitclaim deed, by which said trustees released all their interest in said 30 feet of ground. Now we maintain that whether the court construes the stipulation in the original deed from Martin Greiner to be a condition subsequent, or a covenant running with the land, in either case the same was broken by abandonment, or conveying said ground for other purposes than those expressed in the deed by the grantor, Martin Greiner.
    The intention of the grantor is clearly expressed in the deed, though not clothed in technical language. 2 Sheldon, page 80, top paragraph; 35 N. Y., 167; 53 N. Y., 85. '
    The cases in the books are numerous and uniform in holding that the use of property in some directions may be restricted by conditions and covenants. The right to do so results from the power of alienation and this power of alienation is incident to the right of property. Enc. of Law, Book 3, page 422.
    That the stipulations in the deed from Martin Greiner to said trustees are consistent with the general rules of law.

      1. They are not impossible or unlawful.
    2. They are not contrary to public policy.
    3. They are not in general restraint of alienation.
    By the terms of the deed the use of the premises is not limited exclusively to the grantees or any particular denomination of Christians, but is conveyed as ground upon which to erect or build religious meeting houses, parsonag’es or cemetery. Restricting the alienation to a class only, or a partial restraint of alienation. Vol. 13, page 795, Enc. of Law.
    4. They are not repugnant to the estate granted. Devlin on Deeds, section 840; 19 Pick., 250, 252; 115 N. Y., 371; Lessee of Sperry, 5 Ohio, 388.
    Hence we affirm that the trustees had no power by virtue of said deed to sell or dispose of said ground for any secular or irreligious purpose, and in selling the 30 feet of ground for street purposes, they forfeited their claim or title to said land, and that the title reverts to and is vested in the heirs of Martin Greiner. 19 Ohio St., 546; 22 Pick., 480; 15 Wend., 564.
    The buildings to be erected, meeting houses and parsonages, though extending to things to be newly made yet they are to be made upon the land conveyed, and the grantees and their successors are to have the benefit of the same, and therefore binds the grantees by express words. 55 Ohio St., 47; 42 Ohio St., 180; 17 Wend., 136; 2 N. Y., 394; Omst., 10 Pick., 310; 9 Ohio St., 340.
   Burket, J.

The deed of conveyance in question, j was for the consideration of twenty dollars, the I fair value of the half acre at the time of the making band delivery of the deed. The legal effect of a / deed, upon such consideration, is different from that of a deed where there is no consideration, other than the purposes for which the conveyance was made. In the one case the grantee acquires the estate for value paid therefor, and in the other it comes to him without price, and in both there may be a stipulation that the estate is to be used only for particular purposes.

When value is paid for the estate, such stipulation is construed to be a covenant running with the land, in the nature of a trust, for the uses and purposes expressed in the deed of conveyance, and in case of a breach of the trust, a court of equity will in a proper action, decree the performance of the trust by confining the uses of the estate to the uses and purposes expressed in the deed. In such cases the restricted use of the estate becomes a part of the consideration, and is consented to by the grantee, and it is no hardship on him and his assigns, to be compelled to observe the covenants contained in the deed. But in such cases a breach of the covenant restricting the uses and purposes to which the estate is to. be devoted, does not have the legal effect to forfeit the estate and reinvest the title in the grantor, his heirs or assigns. To have such legal effect, there must be words of forfeiture or re-entry in the deed. Watterson v. Ury, 5 C. C. R., 347; 3 C. D., 171, and cases cited. That case was affirmed by this court, 52 O. S., 637, Washburn on Real Property, Vol. 2, of 5th Ed., page 5.

Whether a stipulation in a deed of gift, or in a will, restricting the uses to which the estate is to be devoted, is only a covenant, or, is a condition subsequent, is not involved in this case, and is not here decided.

It is clear that the deed in question conveyed away all the title to the premises which the grantors had, and that the grantees received all such title, (which was the fee) for the uses and purposes expressed in the deed; and as there are no words of forfeiture or re-entry i>n the deed, no title whatever vested in the heirs of the grantor, upon breach of the covenant as to the uses and purposes to which the estate was to be devoted.

/' The plaintiffs below therefore had no title to the I strip of land upon which the street was located, I and could maintain no action for its recovery, nor I for the recovery of the value thereof. The consideration paid by the village for the strip of land upon which the street is located, belongs to the owners of the half acre of land conveyed by the deed in question, and this is so whether the village acquired the strip of land by purchase, or by proceedings in appropriation under the statute. Cincinnati v. Babb, 29 W. L. B., 284; 36 W. L. B., 206; 4 Dec., 464.

The plaintiff below having no title to the strip of land in question, and no right to the value thereof, cannot maintain the action, and the demurrer to the petition should have been sustained; but as that was not done, a judgment should have been rendered in favor of the village upon the pleadings. That not having been done, the common pleas on the trial very properly rendered judgment in favor of the village, and the circuit court erred in reversing that judgment.

The deed of 1838 was admitted by both parties, and there was no effort in the pleadings or testimony to set aside or reform it for fraud or mistake. On the contrary,, it was conceded by both parties to be in full force, and both claimed title under it. It was also conceded by all, that the village was, and had been for a long time, in possession of the strip of land using it as a public street, and had paid therefor the sum of five hundred dollars. These facts are controlling, and being conceded in the pleadings, the court of common pleas should have refused to hear any testimony. The testimony which it did hear was immaterial, and did not tend to disprove the conceded facts. The circuit court erred in applying the law to those conceded facts, and in its construction of the deed.

Its judgment must therefore be reversed and that of the common pleas affirmed. Minnear v. Holloway, 56 Ohio St., 148.

Judgment reversed.


author: Minshall, J.

text:
    The Warder, Bushnell & Glessner Co. v. Jacobs.

      Improper remarks to jury — Rule of reviewing court as to record— Presumption as to duty performed by lower court.

    1. It is an established rule of reviewing courts that the error, for which a judgment may be reversed, must affirmatively appear on the face of the record.
    2. Where a record shows that improper remarks were made in his argument to the jury by the attorney of the prevailing party, but does not show whether the court reproved the attorney or directed the jury to disregard the remarks; nor is the evidence presented to the court for review, in such case, a reviewing court is not warranted in reversing the judgment entered upon the verdict, however improper the remarks may have been. The presumption in such case is, that the court performed its duty and that the evidence sustained the verdict.
    (Decided March 1, 1898.)
    Error to the Circuit Court of Hardin county.

      Johnson & Johnson, for plaintiff in error.
    When counsel comment on matter not in evidence nor relevant to the issue, a new trial will be granted.
      Union OenUal Life Insurance Co. v. Cheeve/r, 36 Ohio St., 201.
    A new trial will be granted where counsel appeal to the prejudice of the jury. Brown v. Swineford, 44 Wisconsin, 282; Kinnaman v. Kinnaman, 71 Indiana, 417; Berry v. State, 10 Georgia, 522; Ballard v. Boston c& Maine B. B., 2 N. E., 889; Chicago c& A. B. B. v. Pellegrein, 59 111., (App.)558; Wilsch v. Iluckins, 45 111., (App.) 53; Tucker v. Heinsicker, 41 N. H., 317; Henniss v. Vogel, 66 111., 401; Coble v. Coble, 79 North Carolina, 589.
    Counsel can not talk of the wealth of a party. Willis v. McNiel, 57 Texas, 465.
    The Supreme Court of Ohio has also virtually said that the wealth of a party can not be commented on. Hayner v. Coxoden, 27 Ohio St., 292.
    It is only in actions when punitive damages may be allowed that evidence of the defendant’s pecuniary ability is admissible.

      George Jameson, for defendant in error.
    Reversal can only be had in this case for errors appearing on the record, and the error must appear on the record by bill of exceptions on exception to the decision of the court taken at the trial of the cause. A decision of the trial court must be had upon the point in controversy and the party must then and there except to that decision of the court, must reduce his exception to writing and present it to the court for allowance. Statutes of Ohio, sections 6710, 5297, 5301, 5298; 19 Ohio, 300; 10 Ohio St., 223.
    Nothing of the kind was done at the time of the trial of this cause, and at the time of the speaking of the alleged words complained of. No ruling or decision of the court was asked. Counsel for defendant was interrupted in his address by objection of plaintiff’s counsel to certain remarks, but no decision of the court was asked, no exception taken to any decision or action of the court, and no bill of exceptions was presented or signed. But counsel afterwards undertook to introduce it into the record by his affidavit in connection with a motion for new trial, this he cannot do. 30 Ohio St., 575; 29 Ohio St., 577 ; 23 Ohio St., 578.
    There can be no such thing as excepting to words of counsel without asking the action of the court and a ruling out of the words, or a special instruction to the jury to disregard them. 23 Ohio St., 578.
    Nor can they do it by incorporating it in a motion for new trial and then taking a bill of exceptions. 29 Ohio St., 577 ; 30 Ohio St., 578.
    The exception must be taken to some decision, action or refusal of the court and a decision or action of the court must be requested. 1*5 Ohio St., 123; Statutes, sections 5297, 5298.
    Whether it be the conduct of counsel or conduct of the court itself exception must be taken at the time. 22 Ohio St., 324.
    But in this case now before the court the court below was not asked to decide as to the propriety or impropriety of the speaking of the words to the jury, which are now complained of, and the court decided nothing, permitted nothing, nothing was excepted to, and no bill of exceptions taken as this record shows. 20 Ohio, 48.
    Evidently substantial justice has been done by the verdict of the jury upon the whole evidence without regard to the alleged remark of counsel and it is well settled that where substantial justice has been done by a verdict it should not be set aside, and this woman should not be compelled to again defend her right to her property. 1 Ohio, 358 ; 5 Ohio, 109 and 509.
   Minshall, J.

The action below was a suit brought by Treca A. Jacobs against the defendants, Warder, Bushnell & Glessner Co., to recover the possession of certain personal property that had been taken in execution on a judgment that had been rendered in their favor against the husband of the plaintiff, the wife claiming to be the owner of the property. The attorney for the plaintiff in the course of his argument to the jury as shown by the record, used the following language: “Gentlemen: The plaintiff is a poor woman. Your verdict against her will mean much, very much, but to the defendants, with all their wealth, residing in their magnificent castles in the city of Springfield, a verdict against them does not hurt them. ” To which remarks as the record says, the defendants “then and there objected and excepted. ” This is all the record discloses in regard to the matter, other than, that, after a verdict for the plaintiff, a motion for a new trial was made on this among other grounds, which was overruled by the court and judgment rendered on the verdict. A bill of exceptions was taken and made a part of the record, showing the matters above stated. It also contained the evidence given at the trial; but as nothing is claimed from the evidence, it has been omitted in the printing of the record. The judgment was affirmed on error by the circuit court. The only ground for a reversal relied on in this court, is the misconduct of plaintiff’s counsel in using the words to the jury above stated.

Certainly these remarks were of the most reprehensible character; and it is a matter of some surprise that counsel should so far forget himself in argument to the jury as to commit such a breach of his privilege as is shown by the words used in this case. No heat of argument, nor zeal for his client, can be admitted as a palliation of such an offense against the fair administration of justice. But the question arises whether, upon this record, anything appears from which this court can say there is error in the judgment for which it should be reversed. It is a settled principle of practice in all reviewing courts, that the error for which a judgment may be reversed, must affirmatweVy appear on the face of the record. From the record before us it simply appears, that these observations were made by counsel for the plaintiff to the jury, and that counsel for the defendants then and there “objected and excepted. ’ ’ From this we readily infer that counsel “objected” to the remarks of the opposing counsel, as he had an undoubted right to do. But to what did he “except.” An exception is not to the act of a party but to that of a court in ruling on an objection. What the court did in this matter is not disclosed by the record. The court may at once have reproved the counsel and instructed the jury, in the most positive terms, not to regard the remarks of counsel in arriving at their verdict. To this the defendant could not have excepted, or if he did, the exception would be unreasonable and of no avail. If the court took no notice of the objection, or overruled it/ then the defendants might reasonably have excepted ; and such action of the court would have been a clear ground of error, for which the judgment should be reversed. But, inasmuch, as the record is silent as to what the court did, we are not permitted to assume that it did what it should not have done; on the contrary, the only presumption we are permitted to make, in such ease, is, that the court performed its duty in the premises — reproved the counsel and properly instructed the jury at the time. If he did not, and a review of its action is desired, the party excepting must cause the record to show what the ruling of the court was, otherwise it cannot be said to affi/i'matively appear that the court committed error.

But it is argued .that the language used, being in the nature of misconduct of the prevailing party, no objection or exception was required at the time the offense was committed. Admit this to be true, it does not dispense with the necessity of the record showing what was done at the time or afterwards by the court. If no notice was taken of the remarks by the court, on objection of the defeated party, to make a case for review, the record should show this fact to constitute error.

The evidence is not before us, so that the question presented is, whether, where a record shows that improper remarks were made by counsel of the prevailing party to which objection was made at the time, but does not show the ruling of the court, should the verdict and judgment thereon be set aside and reversed as a matter of course? We think not. For, in such case, for ought that appears, the court severe^- reproved the remarks of counsel, directed the jury not to regard them, and the evidence may show a clear case for a recovery on the part of the prevailing party, notwithstanding the offense of his counsel. As much as we reprehend such practice in counsel, we are not prepared to say that the use of such language may not be so far corrected by the court by the reproof of counsel and instruction to the jury, as, in a clear case upon the evidence, to warrant the court trying the case to sustain the verdict rendered.

A number of cases has been cited by counsel for plaintiff in error; but none of them, nor do we know of any that would, warrant the court in reversing the judgment in this case on the state of the record. We will notice these most confidently relied on. In Tucker v. Heinsicker, 41 N. H., 317, the court had permitted counsel for the plaintiff to comment on facts not in evidence. This was shown by the record, and the judgment was properly reversed by the Supreme Court. In Coble v. Coble, 79 N. C., 589, counsel for the plaintiff had severely denounced the character of the defendant without any evidence having been introduced with respect to his character. The judge, delivering the opinion, says, “The defendant’s counsel interposed his objection in apt time and upon the instant, but they met with no response from the courty ” and for this reason the judgment was reversed and a new trial awarded. In Willis & Bro. v. McNeill, 57 Texas, 465, the court permitted defendant’s attorney to discuss the wealth of the plaintiff as relevant to the damages that should be awarded, and this was held to be error. In Kinnaman v. Kinnaman, 71 Ind., 417, the court, trying the ease, granted .a new trial for remarks made by counsel in his closing argument, though no objection was interposed by opposite counsel at the time. This was assigned for error. But the court on review said, “The court had a better opportunity of judging as to the probable effect of the improper remarks of counsel than we have, and we can by no means say that any error was committed in granting a new trial.”

It is evident that none of these cases are in point. All but the latter one are simply to the effect that the court erred in permitting the objectionable remarks to be made to the jury; and the error of the court in this regard appeared upon the record. In the case of Kinnaman v. Kinnaman, the trial judge was of course necessarily familiar with the circumstances and the evidence, and so in a position to judge whether a new trial should be granted. If, in this case, the trial judge had granted a new trial for the misconduct of the plaintiff’s attorney, it is not likely that this court would have disturbed his ruling, In Jones v. State, 20 Ohio R., 34, 47, it was assigned for error that the prosecutor commented injuriously upon the character of the defendant, when the same had not been put in issue and the prosecutor claimed it as a matter of just inference. Hitchcock, J., severly condemned such practices in attorneys, but said, There is nothing to show that there was any action of the court upon this subject at all. All that appears is, the counsel for the prosecution commented upon the character of the accused, and claimed that he had a right so to do. Whether he had such right was not made a question to the court.” This recognizes the true rule. The court must have committed error; and this must affirmatively appear from the record.

No case has been found that goes to the extent of holding that remarks of counsel, however improper, necessarily vitiate any verdict that may be rendered in favor of his client, irrespective of the action of the court and the evidence in the case. If upon the law and the evidence a party is clearly entitled to a verdict, it would seem like rather drastic practice to deny him the right to it for the fault of his attorney in addressing the jury. There is a more appropriate mode for punishing an attorney for such professional misconduct, than, by visiting his fault upon his client, who in right and justice may be entitled to a verdict. On the other hand, it is proper to say, that where remarks have been made not g-ermane to the case, and calculated to arouse prejudice, or awaken undue sympathy, the case should be a very clear one on the evidence to warrant the court in disregarding them on a motion for a newtrial. If, on a consideration of the whole ease, there is room for doubt, whether the verdict was rendered upon the evidence, or may have been influenced by improper remarks of counsel, that doubt should be resolved in favor of the defeated party. But, as said, we are not, from the state of the record, in a position to pass upon this question; and the judgment is, therefore,

Affirmed.