author: Okey, J. Boynton, J., Johnson, J.

text:
    The State v. Jackson.
    1. Whether specific provisions in a statute as to the officers by whom oaths shall be administered in a particular proceeding, have been modified by a subsequent statute empowering another officer “to administer ail oaths required or authorized by law to be administered in this state,”" is to be determined, not merely by the words of the general act, but from a consideration of all the legislation on the subject.
    2. In an arbitration under the statute (3 Curwen, 2409 ; 75 Ohio L. 736 - Rev. Stats. §§ 5601-5613), the oath to the witnesses must be administered by a judge or justice of the peace ; and perjury cannot be assigned on the testimony of a witness in such a case, where the oath, was administered by a notary public, notwithstandiñg the general language of the statute empowering notaries public to administer oaths in-all cases required or authorized by law. 3 Curwen, 1752 ; 1 S. & CV 873 ; Rev. Stats. § 118.
    On exception by the prosecuting attorney of Butler County to the judgment of the Court of Common Pleas of that county.
    At the January term, 1880, of the court of common pleas of Butler county, Richard Jackson was indicted for perjury. The-defendant, by his counsel, demurred to the indictment, the-court sustained the demurrer, and the prosecuting attorney excepted. The case is brought into this court on application of the prosecuting attorney, under sections 7305-7308 of the revised statutes.
    The indictment alleges, among other things, that on October 2G, 1878, controversies and differences, not involving the title-to real estate, arose between said Richard Jackson and one-James Jackson, in which it was claimed by said James Jack.son that he had, at sundry times stated-in the indictment, paid to said Richard divers sums of money, and delivered to him divers parcels and packages of merchandise, the amounts and values being set forth in the indictment, and being in the-aggregate several thousand dollars ; that on said day said Richard Jackson and James Jackson did agree, at said Butler-county, by writing signed by each of them under his seal, to-submit, and they did then and there in writing aforesaid submit, the matters and differences existing between them, including the matters hereinbefore referred to, to the arbitration of John L. Martin, Russell Potter and C. W. Mclntire, “or any two of them who might attend and act, the said arbitrators, to be first duly sworn to faithfully and honestly discharge their duties as such arbitrators, and said arbitration to be held at the private office of Israel Williams, in the city of Hamilton, in said county of Butler, and state of Ohio, and to be commenced on said 26th day of October, a. d. 1818, and to be continued upon adjournment by said arbitrators until completed, said arbitrators-to make their award in writing, and to deliver a copy of the-same to each of said parties, and said arbitrators, if they could not agree, to choose a third party to act with them, who should, also be duly sworn: ” that said arbitrators met at the office-of said Williams, at the time named, and' were there “duly sworn according to law by John M. Davidson, a notary public-in and for said county, who was then and there duly authorized to administer such oath : ” that the arbitrators then proceeded to hear the sworn testimony of witnesses, and said Richard Jackson was then and there duly sworn according to law as a. witness in .said proceeding by Milton N. Davis, who was then and there a nbtary public in and for said county, and who then and there had full power to administer said oath; and said. Richard Jackson being so sworn did then and there, before said arbitrators, in said proceeding, and in matters material, thereto, willfully and corruptly depose, testify, and declare: certain matters to be fact, to wit, that said James Jackson had not paid to him said moneys or delivered to him the said merchandise, or any part thereof, and was not entitled to credit, for said moneys or merchandise in the settlement of their accounts; whereas in truth, and in fact said James Jackson had paid said money and delivered said merchandise, and was. entitled to credit for the same in the adjustment and settlement of said accounts, he, the said Richard Jackson, then and there-well knowing said matters, so as aforesaid by him deposed, and declared to be true, to be false. The indictment concluded, in «he usual form: “ And so the jurors,” &c.

      George K. Wash, attorney-general, J. E. Weilan, prosecuting-attorney, and W. J. Gilmore, for the state.

      James E. Weal, appointed by the judge presiding at the trial, in suj>port of the ruling of the court of common pleas.
   Okey, J.

Arbitration is a method which has long existed •at common law for the settlement of disputes and controversies. No particular form is required in the proceeding. Neither the arbitrators nor the witnesses are required to be ¡sworn, though the parties may stipulate that such oaths shall be administered. The submission may be revoked by either party at any time before the award is actually delivered, and the award itself has no legal effect whatever except that it furnishes foundation or cause of action or defense against the party who fails to perform or abide by the award. In England various statutory provisions on the subject are also in force.

In Ohio we have liad, for many years, statutory provisions providing for arbitration in particular cases, as in actions before a justice of the peace, and questions arising in the settlement of estates; but for half a century a statute has existed in this state, without material change (3 Curwen, 2409 ; 75 Ohio L. 738; Rev. Stat. §§ 5601-5613) which is general in its- application. Notwithstanding these various statutory provisions, it is well settled that the common-law mode of arbitration is ¡still in force in this state, where the parties have not undertaken to pursue the statute. See notes to the above sections •of the revised, statutes, and Brown v. Kincaid, Wright, 37.

To constitute an arbitration under the general statute of this ¡state, above referred to, it is not necessary that any suit between the parties should be pending, that any particular number of persons should be selected as arbitrators, that there-¡should be arbitration bonds, or that the award should be made a rule of court; but it is required that the arbitrators and witnesses shall be sworn, that the award shall be in writing signed 'by a majority of the arbitrators, and that a true copy of the award shall be delivered to each of the parties in interest.

The indictment in this case sufficiently shows that the parties endeavored to pursue the statute in holding the arbitration in question. Indeed, except that the oaths to the arbitrators and witnesses were administered by notaries public, it •does not appear that any requirement of the statute was •omitted. This view is strengthened by -the act ox 1877, 74 Ohio L. 335, § 10; Rev. Stat. § 7221, which provides that, In an indictment for perjury, or subornation of perjury, it shall be sufficient to set forth the substance of the offense charged and before what court or authority the oath was taken, averring such court or authority to have full .power to administer the same, together with the proper averments to falsify the matters wherein the perjury is assigned, without setting forth any part of any record or proceeding, or the commission or authority of the court or other authority before which the perjury was committed.”

Assuming that the alleged perjury, upon which the indictment is framed, was committed in a proceeding under the general statute relating to arbitrations, the question arises whether the averments would sustain a conviction. The statute defining perjury provides that, “ Whoever, either verbally or in writing, or on oath lawfully administered, willfully and corruptly states a falsehood as to any material matter in a proceeding before any court, tribunal, or officer created by law, or in any matter in relation to which an oath is authorized by law, is guilty of perjury, and shall be imprisoned in the penitentiary not more than ten nor less than three years.” 74 Ohio L. 258, § 1; Rev. Stat. § 6897.

It will be perceived that, to be of any force, the oath must be “lawfully administered.” An oath, therefore, taken by a witness in an arbitration, must be administered by an officer authorized to do so, otherwise the witness, however false his testimony, is not punishable for perjury.

The general arbitration statute, as enacted in 1831, afieady referred to, provides that the- arbitrators and the witnesses “ shall be under oath or affirmation, to be administered to them respectively by any judge or justice of the peace of the proper county.” This provision was re-enacted in the same words in 1878 (75 Ohio L. 739, § 6), and was carried into the revised statutes in the same form, section 5606.

True, it was provided by the.act of 1852 (3 Curwen, 1752), that a notary public, within the county in which he may reside, shall have power “ to administer all oaths required or authorized to be administered in this state.” The same provision, in the same words, was carried, on the repeal of that statute, into the act of 1856 (4 Curwen, 3031), and from .the latter statute it went, without change, into the revised statutes, section 118.

It will be seen that while the act of 1831, relating to arbitrations, -was in force, requiring the oaths to the arbitrators and witnesses to be administered by a judge or justice of the peace, the act of 1852, relating to. notaries public, provided, in gen-oral terms, that a notary might “ administer all oaths required or authorized to be administered in this state.” The fact that both of these acts were subsequently repealed and re-enacted, ••and finally carried into the revised statutes in the same form, has no effect upon the construction which should be placed upon the provisions in question. It is well settled that where ■■statutes have been revised, the presumption is that no change in the construction they should receive was intended, and that they will receive the same construction as before the revision, ’unless the legislative intent to the contrary is apparent. Williams v. State, 35 Ohio St. 175.

Whether the provisions of a statxite relating, to a particular subject are embraced by a subsequent statute, general in terms, is a question of construction. State v. Newton, 26 Ohio St. 200 ; Brigel v. Starbuck, 34 Ohio St. 280. The elder statute, in many cases, remains' wholly unaffected by the later act. And upon the fullest consideration we are of opinion that the power to administer oaths in a statutory arbitration is still confined to judges and justices of the peace of the county, and hence, that an oath administered by a notary public, in such •statutory proceeding, is a nullity. Indeed, the genéral power, ■of the notary to administer oaths seems to be confined to cases where it is his duty to furnish a certificate that such oath has been administered. This opinion, moreover, is strengthened by cases which hold that where the parties to an arbitration undertake to pursue the statutory mode, but fail, in any material respect, to do so, the proceeding is fatally defective. Deerfield v. Arms, 20 Pick. 180; Burghart v. Owen, 13 Gray, 302 ; Franklin Mining v. Pratt, 101 Mass. 360. And this seems to be the better opinion, though cases to the contrary may be found. This view is further strengthened by the absence of all power in the notary, except when he is endeavoring to take depositions, to punish for contempt.

A majority of the court hold that the exceptions must be ■overruled. Johnson, J., who unites with White, J., and my■self in so holding, states his views in a separate opinion; and Boynton also states his views in a separate opinion. McIlvaine, O. J., is of opinion that the exceptions ought to be sustained, on the ground that while in a statutory arbitration the oaths provided for can only be administered by a judge or justice of the peace, yet that the trial in question was a common law arbitration, and that in view of the statute of this state defining perjury and the statute defining the powers of ^notaries, the indictment is sufficient.

Exceptions overruled.

Boynton, J.,

dissenting. When the statute “authorizing and regulating arbitration ” (1 S. & 0. 80) was enacted, the office of notary public did not exist. The office was created and the powers and duties of the notary were defined by the act of April 2, 1852. 3 Curwin, 1751. By that act he was invested with power within the county in which he resides '“to administer all oaths required or authorized by law to be administered in this state.” The same power was conferred •on clerks of the courts of the state by the act of January 29, 1864. S. & S. 71. These acts having been passed subsequently to the act relating to arbitrations, so far modify the same, as to- bring the oath administered by the notary or a clerk of the court, in a matter before arbitrators, clearly within the sanction •of the statute. The authority of the notary to administer the oath is not only within the words of the act, but as •clearly within the intent as language can express, it.

Johnson, J.

It is too well settled to admit of discussion, that to constitute perjury, the false oath must have been “ in a proceeding ” before a cou/rt, tribunal or officer created by law, or in a matter in relation to which an oath is authorized by law, and that a mere'voluntary oath, or one before any board, ■tribunal or court created by the pa/rhies, or any self-constituted tribunal, or in a matter in which an oath is not authorized by law to be administered, cannot be the subject, of perjury.

The terms of the submission in this case show that it was a. tribunal created dy the fa/rties, or a common law arbitration merely.

There was no bond fixing the time and place of trial, or the time and place when the award should be made, but a mere agreement to submit the controversies. There was no agreement-that the award, when made, should be made a rale of court. The award made was not, as in the case of a statutory submission, equivalent to a verdict, upon which a final judgment could be entered by either party. Por these reasons, I concur in sustaining the court below.

If, however, the majority of the court are correct, in treating this as an arbitration under the statute, then I concur with my brother Boynton, in- holding that a notary public may swear the arbitrators and the witnesses, under the powers conferred upon him to administer oaths, already cited.


source: Caselaw Access Project

author: Boynton, J.

license: Public Domain

text:
    The Commissioners of Putnam County et al. v. William Young et al.
    1. Where the laying out and construction of a new county road and the improvement of an existing road, or roads, constitute-one continuous road improvement, the proceedings therefor before the county commissioners, under the act of March 29, 1867 (64 O. L. 80), and the acts amendatory thereof, may be had under the same petition.
    2. M. presented a petition to the county commissioners, signed by himself and others, praying for the laying out and construction of a county road, and for the improvement of two existing roads, to constitute, when the construction and improvement were completed, one continuous line of road. The petition conformed strictly to-the requirements-of the second section of said act. Whereupon A. and others, resident land owners, whose lands were benefited by, and were to be assessed for the improvement, petitioned the commissioners, by another paper, “ to be counted as petitioners” for the road improvement, “petitioned for by M., and others.” Held, that A. and pthers are to to treated as having subscribed the petition for the improvement provided for by section 2 of said act.

      3. The “lots and lands” to he assessed to defray the expense of the improvement of a public road authorized by said commissioners include lots within the limits of a municipal corporation, where the same are within two miles of the improvement, and are benefited thereby.
    Error to the District Court of Putnam County.
    The original action was brought by the defendants in error against the commissioners and auditor of Putnam county, to. enjoin the improvement of a public highway under the act of March 29, 1867, and the acts amendatory thereof.
    The petition for the improvement, presented March 14,1876, was as follows:
    “ To the Honorable the Boa/rd of County Commissioners of Putnam county, Ohio.

      “ The undersigned petitioners, resident land-holders of the said county of Putnam, residing along the road hereinafter described, and whose lands will be assessed for the proposed improvement, respectfully petition your honorable body to improve the county road running east from the eastern terminus of Eourth street in the village of Ottawa, in said county, and on the east corporation line of said village, between sections 23 and 26 and 24 and 25 in Ottawa township, and between sections 19 and 30 and 29 and 20 in Blanchard township, in said county of Putnam; that said road be laid out and established beyond its present terminus as follows: To run east from the present terminus between sections 21 and 28, and 22 and 27, and 23 and 26, and 24 and 25, until it intersects the Ottawa and Eindlay state road ; that said improvement be then made upon said Ottawa and Eindlay state road to where it crosses the county line between Putnam and Hancock' counties, and there terminate; that said road improvement be ordered and made by grading, macadamizing and draining said road so above described, as provided by the laws of the state of Ohio.”
    This petition was signed bjr John Maidlow and others, and soon after it was presented to the commissioners, and before action thereon, the following petition, signed by a number of resident lot owners in the village of Ottawa, a village lying within the assessing district, and near the contemplated improvement, was also presented.
    “ To the Commissioners of Putnam county, Ohio.

    “Gentlemen: — "We, the undersigned land owners, whose lands will be assessed for the improvement of a road petitioned for by John Maidlow and others, respectfully ask that the lots and tracts of lands in the village of Ottawa be embraced in the list of lands to be assessed for the said road improvement, and that we may be counted as petitioners for said road improvement.”
    A like petition by resident lot owners of the village of Gilboa, a village also lying near the improvement and within the assessing district, was presented. Counting the names on these two last petitions of those whose lots within the village were reported by the viewers and surveyor, as specially benefited by the improvement, and which ought to be assessed to meet the cost of the same, and there was no doubt that a majority of the resident land owners, whose lands would be specially benefited by the improvement, and which lay within two miles, of the improvement, had subscribed the petition therefor. If not counted, the matter of jurisdictioú. of the commissioners was left in doubt.
    The petition signed by Maidlow, it will be seen, ’sought the improvement of an existing road from Ottawa village to a point in Blanchard township, and the laying out and construction of a new road from the latter point leading east until it intersected the Ottawa and Findlay state road, and the improvement of the latter road from said point of intersection, to the eastern line of Putnam county.
    The district court — to which the cause had been appealed— gave judgment enjoining the commissioners from taking further action in the matter of said road improvement. This judgment it is now sought to reverse. In support of the judgment it is claimed — 1st, That the commissioners had no power to lay out and construct a new road, and improve an existing one, under the same petition. 2d. That if the power existed, the commissioners acquired no jurisdiction to order the construction and improvement, because the requisite number of land holders of the county whose lands were reported as benefited and for assessment, had not subscribed the petition therefor.

      C. J. Swan, for plaintiff in error :
    1. Lot owners in municipal corporations, whose' property is benefited, could properly petition for the improvement. Makemson v. Kauffman, 35 Ohio St. 445 ; 64 Ohio Laws, 83, § 9.
    2. The county commissioners had authority under one and the same petition, to improve an old road and establish a new one. 73 Ohio Laws, 184, § 1.
    3. The acts in force under which these proceedings were had are: 73 Ohio Laws, 184, § 1; 65 Id. 41, 42, § 2; 64 Id. 81, § 3 ; 71 Id. 94, § 4; 65 Id. 42, § 5 ; 65 Id. 43, § 6; 73 Id. 169,170, § 7; 64 Id. 83, § 8 ; 71 Id. 94, § 4 ; 64 Id. 83, 84, § 9 ; 65 Id. 44, § 10; 73 Id. 144, § 12.
    4. The petitioners need not all sign the same petition. Campbell v. Park, 32 Ohio St. 544.
    Eor a discussion and disposal of all the points in this case, see Hays v. Jones, 27 Ohio St. 218 ; Hays v. Lewis, 28 Ohio St. 326; Quintan v. Myers, 29 Ohio St. 500; Makemson v. Kauffman, 35 Ohio St. 444; Parker v. Burgett, 29 Ohio St. 513.

      Isaiah Pillcvrs, for defendants in error:
    1. The county commissioners could legally only count those for the improvement who “ shall have subscribed the petition mentioned in section 2 of the act of 1867 (64 Ohio Laws, 80), and the acts amendatory thereof. The request that “ we be counted as petitioners for said road improvement” is not “ subscribing ” the petition mentioned in said section 2.
    2. The act does not contemplate that the owners of town and village' lots should be signers of the petition for a road improvement. A town lot is not such a lot as the statute refers to.

      3. The laying ont of a new road and the improving of an old one could not be done under the same petition. Geddes v. Rice, 24 Ohio St. 60.
   Boynton, J.

The first question arising on the record in the present case, involves the power of the county commissioners to lay out and construct a new county road, and improve an existing road, in the same proceeding and under the same petition, under the act of March 29, 1867 (64 Ohio Laws, 80), and the acts amendatory thereof. By the first act, authorizing the-commissioners to construct roads on the petition of a majority of resident land owners along and adjacent to the line of the-road, they were limited and confined in their authority to the-improvement of -roads previously laid out and established. This act was passed April 5, 1866 (63 Ohio Laws, 114), but was-only continued in force until the act of 1867, was passed, by which the whole subject-matter of the act of 1866 was revised,, and the act repealed.

By the first section óf the act of 1867, power was conferred on the commissioners to lay out and construct state and county roads or parts thereof, as well as to impi’ove existing roads, the; power to be exercised in the mode prescribed by the provisions of that act.

By the second section it was enacted, that before the commissioners of any county shall order am/ imvprovemenb mentioned in the first section of this act, a petition shall be presented to them at any regular or called session, signed by a. majority of land holders resident within said county, whose-lands will be assessed for the expense of the same, as hereinafter provided, stating the kind of improvement prayed for,, and the points between which the same is asked.”

It seems manifest from the language of this-provision, that, the word “ improvement ” related not only to the improvement of an existing road, but also to the establishment and construction of a new road. Unless this be so, the act provided no mode for carrying into effect the power conferred by the first section, to order the -laying out and construction of new roads. By the express language of that section, the power to-■construct, as well as to improve, was to be exercised in the mode prescribed in the subsequent provisions of the act, and the second section was the only one prescribing the mode of procedure to bring the power to lay out and construct into operation. And although the second section of that act was so amended by the act of March 31, 1868 (65 Ohio Laws, él), ■as to drop out a part of the language' above quoted, it still remains true, that the power to order the construction or improvement, under the statute thus amended, can only be exercised under a petition, stating the kind of improvement prayed for.

The word improvement,” as used in the act, in the provisions subsequent to the first section, in nearly all instances .relates to, and includes, the laying out and construction of new roads, as well as the improvement and repair of those previously constructed, and in actual use. For instance, the only hond to be given is required to be for the payment by the •obligors of the expense of the preliminary survey and report, if the said improvement is not finally ordered. § 2. ' The •same section requires the county auditor to give notice by publication of the kind of improvement asked for. By section 3 provision is made for assessing compensation or damages to •owners whose property is taken for the improvement. And while section é devolves on the viewers and engineer the duty to report to the commissioners upon the public necessity of the contemplated construction, or improvement, no report is required to be made of the damages claimed, and the amount assessed each claimant, except as they relate to the improvement. The commissioners are authorized, if in their opinion ■public utility requires it, to order the improvement to be made,, .and when so ordered, the duty is enjoined upon them, to appoint three disinterested freeholders, who are required, upon actual view of the premises, to apportion the estimated expense •of said improvement upon the real property embraced in the order, according to the benefit to be derived therefrom. These provisions, without respect to others of like character and significance to which reference might be made, suffice to show that the term “ improvement,” as employed in the statute, was intended to include and embrace the construction of a now road as well as the repair of an old one. A thing within the intention of the makers of a statute is as much within the statute, as if within the letter. 9 Bacon Ab. 247. Such being the meaning of the statute, we are of the opinion that since the passage of the act of April 23, 1869 (66 Ohio Laws, 59), amendatory of section 1 of the act, as amended March 31,1868, the commissioners have possessed the power, if they did not possess it before, to order the construction of a new county road, and the improvement of an existing state, county or township road, &c., under the same petition, where the samo constitute one continuous road improvement. This power was-expressly ■ given by the last clause of said section, as thus-amended, and was carried into the subsequent amendment of' the same section by the act of April 11, 1876. 73 Ohio Laws, 184.

2. It is next objected, that 'the petition for the improvement was not subscribed by the majority of the resident land owners of the county whose lands were reported as benefited by the improvement, and for the expense of which they ought to be assessed. The first ground of the objection is, that the petition signed by the resident land' owners of the villages of Ottawa, and Grilboa was not the petition mentioned in the second section of the act, as amended March 31, 1868, and hence, that there was no authority to count such persons as -petitioners for the improvement. It is true, that the statute withholds from the commissioners the power to order the improvement until a majority of resident land owners, whose lands, as reported, will be. benefited by the improvement, shall have subscribed the petition mentioned in the second section of the act. But it is-nowhere required that all the petitioners should sign the same paper. Braden v. Commissioners of Logan County, 31 Ohio St. 386. They must join in the petition for the improvement, provided for by said section ; and this was done by the petitioners from the two villages, by the petition they presented. They recited the fact that they were land owners whose lands would be assessed for the improvement of a road “ petitioned for by John Maidlow and others,” and respectfully asked, that they might be counted as petitioners for said improvement.”' Unless we adhere to the letter and disregard the obvious purpose and meaning of the statute, this was equivalent to signing the Maidlow petition, and gave the commissioners as complete authority to count those who signed such paper, in favor of the improvement, as if their names had been appended to the paper signed 'by Maidlow. Moreover, it is provided by section 13 of the act of March 29, 1867, that the proceedings under that act shall not be held to be void on account of any informality or irregularity in the form of the petition, or any informality appearing in the record of the proceedings of the commissioners, or any other proceedings pertaining thereto.

The second ground of objection is, that village lots, lying within the limits of a municipal corporation, are not within the description of “ lots and lands ” required by the fourth section of the act, as amended April 18, 1874 (71 O. L. 94), to'be reported for assessment. This objection was considered in Makemson v. Kauffman, 35 Ohio St. 444, and it was there determined that such objection was invalid. The statute requires the viewers and engineer to report for assessment all lots and lands lying within two miles of the contemplated improvement, which, in their judgment, will be benefited thereby, and which ought to be assessed therefor; the said distance to be computed in any direction from either side, end or terminus of said road. An owner of a village lot is as much a land owner as the owner of a farm ; and in some circumstances such lot may be quite as much benefited by a road improvement as a parcel consisting of many acres. Such lots, being embraced -within the words of the statute, are to be held within its meaning, unless, from a consideration of all its parts, a contrary intention appears. 9 Bacon Ab. 247.

That the legislature intended to place lots within ,a municipality in the same category as those without, in respect to the expense of the improvement, is evident from the provisions of section 9 of said act. 64 Ohio Laws, 83. That section provides :

“ That when any road to be improved under and by virtue of this act, begins or terminates in a city or incorporated village, the corporate authorities of such city or village may, upon the recommendation of the county commissioners, if they deem the same expedient, agree to pay, in the bonds of said city or village, in the manner and proportions described in the seventh section of this act, in addition to any amount that may be assessed upon the real property of such village, by virtue of the provisions of this act, an amount not exceeding- oue-fiftli of the entire cost of said road; provided, that the entire tax to be imposed for road purposes, by virtue of this section, shall not in any one year exceed five mills on the dollar, of the taxable values of said city or village.”

This provision would seem to remove all doubt respecting the power to embrace within the lots and lands to be assessed for the improvement those lying within corporate limits. The words “ in addition to any amount that may be assessed upon the real property of such village by virtue of the provisions of this act,” have reference to the assessment of the real property of the village in conjunction with all other property lying within the assessing district, and subject to assessment, to meet the expense of the improvement.

Judgment reversed cmd petition dismissed.


author: . McIlvaine, C. J.

text:
    The State of Ohio on relation of The American Union Telegraph Company, and The Baltimore and Ohio Railroad Company v. The Bell Telephone Company, The Columbus Telephone Company and The Western Union Telegraph Company.
    1. Where a corporation whose name is composed of several words is sued by a name in which a word in the corporate name is omitted,.such omission or misnomer, unless pleaded in abatement, will be disregarded by the court.

      2. By the provisions of chapter 4, title 2, of the revised statutes, each ■ company operating a line or system of telephones in this state is required to receive dispatches from and for telegraph and other companies without discrimination.
    3. A contract between a telephone 'company and the owner of telephone instruments, to the effect, that in the use of such instruments by (he company, discriminations shall be made as between telegraph companies, is void as against public policy, as declared by the statute.

      4. The use of patented property, like other species of property, when devoted to public use, is subject to control by state legislation, where the exigencies of the public welfare require it.
    Mandamus.
    Tlie American Union Telegraph Company, a corporation of the .state of New York, is engaged in doing a general telegraph business in the state of Ohio and elsewhere, with an office in the city of Columbus, Ohio. The Baltimore and Ohio Railroad Company, a corporation of the state of Maryland, is engaged in doing a general railroad business in the state of Ohio and elsewhere, with an office in said city. In the management of its business, the railroad company has organized a telegraph department to facilitate the management of its trains and the general conduct of its business, and also an express ■department, to which is confided' the carrying of packages of valuable goods, money, &c. The office in which the management of these departments is controlled is in the same building with the office of the telegraph company, and by an arrangement between the relators, the telegraph department of the railroad company-is placed under the management of the telegraph company.
    The Columbus Telephone Company, one of the respondents, is a corporation of this state, organized on April 15,1880, and is engaged in conducting and managing a system of electric speaking telephones in said city of Columbus, with an ■exchange or central office in the city. The Western Union Telegraph Company, also a respondent herein, is a corporation, ■of the state of New York, engaged in a general telegraph business in the state of Ohio and elsewhere, having an office in said city. The telephone instruments used by the Columbus Telephone Company and its patrons or customers are the property of the American Bell Telephone Company, a corporation of the state of Massachusetts, which company is also the ■owner by assignment of letters patent on said instruments. This corporation is also a respondent in this action under the name of “ The Bell Telephone Company.”

      The right of the Columbus Telephone Company to use the instruments and patented invention of tiré American Bell Telephone Company is held under an' agreement in writing between said companies, of which the following is a copy:
    “ This agreement, made this 10th day of April, a.d. 1880, by and between the American Bell Telephone Company, a corporation created under the laws of the state of Massachusetts, lessor and licenser, party of the first part, and the Columbus Telephone Company, a corporation created under the laws of the state of Ohio, lessee and licensee (hereinafter called the-“Exchange”), party of the second part, witnesseth :
    “ (1) "Whereas the lessor owns the letters patent of the United States, granted to Alexander Graham Bell, March 7, 1876, and January 30, 1877, numbered 171, 165, 186, 787, respectively, and owns or has the right to use, and may hereafter own or have the right to use, sundry other inventions, which are or may be embodied in electric speaking telephones, and desires to extend the use of telephones licensed by it, in every manner in which the public may wish to use the same, and for that purpose to provide for the construction and use of the apparatus and lines necessary to be used in connection therewith; and whereas, the lessee desires to obtain the use of telephones, under lease and license, from the party of the first part, to be used with the lines of a telephonic district or exchange system established and owned by it in the territory hereinafter described, under the provisions hereinafter set forth. Nowr it is agreed as follows:
    “ (2) The rights hereby granted shall remain in force until the first day of April, a. d. 1889, unless sooner determined, as hereinafter provided, and shall extend to all exchanges established and owned by the licensee within the present municipal limits of the city of Columbus, Ohio.
    “ (3) For the purpose of this contract, a telephone exchange system means a system, entirely within said territory, in which different circuits are connected with a central or branch office of the exchange, attended by an agent of the Exchange, for the purpose of placing subscribers or other parties, by such circuits, in telephonic communication with such central or branch exchange office, or with each other, either directly, or through the agents of the system. No office or line of an exchange can be connected with any point outside of said territory, nor with any telegraph company’s office or line, except by lines of the licenser, or parties specially designated by it for this purpose, and no telegraph company, unless specially permitted by the licenser, can be a subscriber or use the system to collect and deliver messages from and to its customers.
    “ (4) The licenser, at its general office or factory, will deliver to the exchange as needed, electric speaking telephones, made and to be used under its patents, during the existence of the rights hereby granted and as herein set forth and permitted, and all telephones delivered to the exchange during the continuance hereof shall be deemed to be furnished hereunder, unless otherwise specially designated by the licenser. They will be of such character and pattern, and bear such marks, as the lessor shall from time to time determine ; but the Exchange may choose from among such standard patterns. Each of said telephones shall remain the property of the licenser, and is hereby leased, and the use of it licensed for the purpose herein declared, for the term of one year from the day when rent and royalty begins to accrue on it, as provided in article 8, but the due payment thereof to the licenser, and the due performance of the stipulations hereof during said year by the exchange and those using the telephone under it shall, ipso facto, operate to renew the lease and license for another year, and so on until the expiration or other determination hereof ; in no case, however, beyond the term defined by article 2. The Exchange is hereby licensed to -use said telephones for any purpose, upon circuits exclusively composed of the lines of any such exchange system, and to use them in 'connection with the trunk lines reserved to the licenser by article 9, for the purposes and’ to the extent therein limited, during the term hereby created, upon condition and so long as the rental therefor shall be duly paid to the licenser, and as the provisions' hereof are not violated, but not longer or otherwise; and it may grant said right to its customers by contract, as provided in article 7. The lessor will not license any telephones to be used by others upon an exchange system, within said territory, while the rights of the Exchange hereunder exist; but. the Exchange shall, by general' or special exchanges, supply (so far as it is authorized so to do by this contract) all reasonable demands of the public, and shall be diligent to increase the number of telephones used- on its exchanges. All rights not hereby specifically granted remain to the licenser.

      “ (5) The lessor will license, to be used with sirch telephones, the inventions in call bells, switchboards, and other apparatus needed for such telephone lines, which it can so license upon such royalties as it may from time to time establish, not greater than those fixed for others under similar circumstances. The Exchange may enjoy any rights of way and •similar franchises to maintain said lines which the lessor can permit it to use, when and so long as, in the judgment of the lessor, it shall not interfere with the lessor’s enjoyment thereof, and shall pay whatever may be due to third persons, if anything growing out of or in connection’with such use by it. For trunk lines from the Exchange offices to extra-territorial points and to telegraph offices, the lessor may, without further -compensation, enjoy all rights of the licensee to erect and maintain fines, and may use its poles and fixtures, but shall pay a pro rata share of the cost of erecting and maintaining them.
    “ (6) The lessee admits the validity of all patents relating to telephony and telephonic appliances now or hereafter held by the licenser, or under which it may hold licenses exclusive in their character, and the validity of its title thereto, and will’ not dispute the same, or make, use or be interested in any telephones or telephonic fines or business not licensed by the licenser, or its assigns.
    “ (7) The contract between the Exchange and those who are to use telephones under it shall express in such form as the lessor shall from time to time approve, that the telephone is the property of the licenser ; that it is leased and licensed by it as herein expressed ; that all use of it otherwise is an injury to and invasion of the rights of the licenser, as owner thereof, and of the patent rights used therein and thereby, entitling it to all the remedies herein prodded, and to an injunction and other legal redress, in a suit by and in its name and behalf. The Exchange shall require every person using said telephones for communications and messages, sent or to be sent over other telephone or telegraph lines, to provide for payment of tolls thereon, and to make every such message subject to such stipulations, regulations and conditions respecting the liability of such lines, for errors and mistakes, as the licenser may from time to time require, and for that purpose will incorporate into its subscription contracts, and messages blanks, such provisions and contracts, to be agreed to by the subscriber and customer, as the licenser may from time to time approve, and will hold the lessor harmless from all loss and expense consequent upon its failure so to do.
    “ (8) The Exchange shall charge its subscribers such rental and royalty for the telephones as the licenser may fix from time to time, for this and other like exchanges, and also in addition a sum not exorbitant nor unusual, for the use of call bells, batteries, wires, and other appliances, and for services furnished or performed, and may collect both of said sums for a period not exceeding one year in advance. It will make such reports, giving such information regarding the operations of the Exchange and the prices charged, as the licenser may from time to time request. It shall pay to the licenser a rental and royalty at the rate per instrument of the hereinafter named per cent, of the telephone rental and royalty fixed as above (being a discount of the hereinafter named per cent.), to commence on each telephone on the first day of the second calendar month after its shipment by the licenser, to continue until the instrument shall be put into the possession of the licenser, or proved to be destroyed, and to be paid in equal monthly payments in advance at the licenser’s office, on the tenth day of each month, up to the last of the same month. Until otherwise fixed, the rates shall be as follows:
    Battery transmitter, each instrument, . . per year, $10
    Magneto-telephone, “ “ . ■. “ “ $10
    “ Upon each instrument unlawfully detained from the lessor, the Exchange shall pay ten dollars per month Until satisfactory proof of its destruction be furnished shall pay five dollars for each lost and destroyed,- otherwise than by fire or inevitable accident, and shall pay the expense of ordinary repairs; but said payments shall not confer any right to the instrument, nor to its use, nor satisfy any other breach of covenant, nor impair the right of the licenser to obtain the possession of any instrument or lines.
    “(9) The licenser may enter the offices and connect with the exchange system any lines to extra-territorial points and to telegraph offices, in order to establish communication between customers of the Exchange and telegraph companies, or parties reached by said lines, and may there operate said lines with suitable appliances. The Exchange will permit and encourage its customers to use such lines, and by its own operators will receive and transmit such messages to and from its customers and subscribers, or make the proper switchboard or other connections for direct communication as may be requested, and in such manner, not inconsistent with the proper conduct of its office, as the licenser shall direct. But if the ■ licenser is not satisfied with the manner in which it is performed, it may establish its own offices and trunk and radiating lines for this purpose. The. Exchangecwill not, without special leave of the licenser, so far as it can lawfully prevent it, permit the transmission over such connecting lines of general business messages, market quotations, or news for sale or publication, nor any communications in behalf of other parties than those who directly communicate by ffhe telephone by themselves or their servants or agents personally present at the instruments, and no person engaged in the business of transmitting messages for other parties shall be authorized or knowingly allowed by the Exchange to transmit such messages over such lines. The Exchange will turn over and deliver to the licenser and such parties as it may from time to time appoint, exclusively, all messages for electrical transmission to points outside said territory, collected by or coming on the wires, or within the control of said Exchange, where the licenser or such party has wires and will transmit the same, so far as the Exchange can lawfully •control the same, and unless otherwise specially directed by its customers; -but will not solicit such directions, nor receive •any pay tolls for transmission over other lines, unless compellable by law so to do. It shall keep and furnish an account of •each such messages transmitted or received, and of connections made therefor, and shall collect and-on demand pay over to the licenser or its said appointees, respectively, the tolls for transmission beyond the exchange system, according to such rates and rules as each shall establish, and shall exhibit its accounts •and the tickets from which they are made, so far as may be proper, to verify the same. In respect of all the business provided for by this section, the Exchange shall make the following charges and none others. To its own subscriber or customer sending, the same that is made, if any, for an ordinary connection, communication or message; to the lessor, upon, communications passing over its extra-territorial lines, fifteen {15) per cent, of the gross tolls charged for each, but not to •exceed five (5) cents for any one message or communication ■occupying not more than five minutes; and upon messages to be forwarded by telegraph twenty-five per cent, of any commission received from any telegraph company (the rest of such commission to belong tp the lessor); to the receiver nothing; for delivering a telegraphic message to a customer it may use such lines to the office, and may charge the telegraph company such sum as it and such company may agree. The licenser now appoints the Western Union Telegraph Company to perform all telegraphic transmissions under this article.
    (10) If the Exchange shall fail to pay any sums due hereunder for thirty days after the sum shall become payable, or shall violate any other terms or condition of this contract, and ■shall persist in such default, violation, or neglect, or fail to remedy or repair the same for sixty days after written notice thereof from the licenser, or shall become bankrupt or insolvent, the licenser may, if it shall so elect, by a written notice to the Exchange (or those in charge of its principal ■office) terminate all rights granted by the licenser hereunder, and thereupon may, by its agents, sever the circuit upon which any telephone is placed, and take possession of, and remove the telephone, and for that purpose may enter the premises of the Exchange, and all persons claiming under it * or it may collect from any sub-lessee or subscriber all sums then or thereafter due to it, or due to the Exchange for the use of any instruments, circuits and appliances, or under any subscription contract; or it may, so long as it shall see fit, leave in the enjoyment and use of the telephones any subscriber or other person in actual possession, and collect from him such sums as may then and thereafter be, or become due for the use of the telephone and exchange lines, appliances and services, and for that purpose shall be entitled to, and may take possession of all the lines, fixtures, apparatus, appliances and premises of the Exchange used for carrying on its business, and occupy and operate the same in connection with said telephones, and those of additional customers as an Exchange, or connect such lines with an office of its own for that purpose; the licenser shall have the like right upon, and within three months after the termination of the rights of the Exchange hereunder, by efflux of time or otherwise, and may enforce these provisions by an entry, without being guilty of any trespass, or by legal process, including an injunction to prevent any interference with the licenser (and other permitted by it) in the use of said telephones, lines, switchboards and appliances. The property so taken, and which does not belong to the lessor, or revert to it hereunder, may be returned within three months from the taking, in which case it shall pay to the Exchange a reasonable compensation for its use, or the lessor may retain the same as its own property, and shall pay therefor a reasonable price (not exceeding the actual cost) within four months after the taking and shall account to the Exchange for all sums collected which accrued before the licenser became so entitled to possession, deducting all expenses incident thereto, and all that may be due to it. The lessor also reserves all its rights and remedies in law and in equity, under the patent laws or otherwise, including the remedy by injunction against the Exchange or those claiming under it, for the use of any of its patented inventions or instruments not justified by a subsisting license hereunder, or for the violation of any other of its rights. If several exchange systems are established hereunder, these rights and remedies of the lessor shall, in case of any default, apply to all such systems, or to one alone, at its option. The lessor may also use the name of the Exchange to protect its interest and to enforce its rights hereunder, and the Exchange shall execute assignments in accordance herewith.
    “ (11) This contract is personal to the second party herein named, and any assignment or attempt to assign it, or the rights granted, or lines established hereunder by act of the party or operation of law, without the written consent of the licenser will be a violation hereof, and good ground for a cancellation hereof by the licenser; but consent shall be given to an assignment by said party, or by its executors or administrators, to any party, who, in the opinion of the licenser, is fitted and suitable to carry on the business, and who shall, in writing, become bound by the terms hereof. The party of the second part promises that they will keep and observe all ,the stipulations herein contained on its part to be kept and performed. Whenever the licenser grants to others the rights for connecting lines, or any other rights remaining to it, the stipulations hereof relating thereto shall be binding upon, and inure to the benefit of such grantees, and the licenser shall not be responsible for their acts or defaults. If the licenser shall transfer to any party who shall agree to perform the stipulations hereof, its title to the telephones hereby leased, and the patent rights under which they are licensed, and its then existing interest hereunder, it is agreed that the provisions hereof inure to the benefit of, and are binding upon such party in respect of all things done or to be done after such assignment, as if it were named a party thereto, and this said American Bell Telephone Company shall no longer be responsible hereunder.
    “(12) The licensee also agrees that it will not allow any telegraph company to rise, or to have any rights on poles or other structures leased, or put up by, or belonging to, or under the control of said licensee, without the written assent of the American Bell Telephone Company.

      “ The percentage referred to in article 8 is to be fifty (50) per cent, until March 1, 1881, being a discount of fifty per cent, for that period. And the- licensees shall, after said March. 1, 1881, pay to the licenser the full rate of rental and royalty fixed as above, without discount.”
    Under the right thus reserved, or attempted to be reserved,' by the American Bell Telephone Company, to control all telegraphic messages to be collected or distributed through the system and exchange of the Columbus Telephone Company, said American Bell Telephone Company contracted with the Western Union Telegraph Company to give the latter company the exclusive right to use said telephone system and exchange for the purpose of collecting and distributing telegraphic- messages.
    And the relators being desirous to avail themselves of the advantages and facilities afforded by said telephone system, applied to and requested said Columbus Telephone Company to place one or more telephone instruments in their office to be used in the conduct and management of the business of said relators.
    The complaint of relators is thus stated in their petition for an alternative writ of mandamus, which has been heretofore allowed:
    “ The said relators also offered to pay therefor the usual price paid for the use of such wires and telephones, and ■ have been ready ever since, and are now ready to make such payment, and to, in all respects, comply with the rules and regulations established by said defendants for the control and management of said telephone Exchange, and they are now ready to comply therewith, and said defendants offered to place in said office the necessary wires and a telephone for the use of said express department of said railroad company, but prohibited its use by said telegraph department and said telegraph company, and refused to place therein a telephone and wires to be used by, or for the use of said telegraph company or telegraph department, giving as the reason therefor, that under the contract between said defendants, the said Western Union Telegraph Company was to have the use of. ■said telephone Exchange to the exclusion of all other telegraph companies, and that all messages sent or received over said telephone wires were to be sent and received for the exclusive use and benefit of said Western Union 'Telegraph Company, thus discriminating in favor of the last named company, and against all other telegraph ■companies, especially said American Union Telegraph Company, and unjustly refusing the latter company the.use of said wires.

      “ The relators say that such exclusive use of said telephone wires is an unjust discrimination against them, and a violation ■of the duty of said defendants, and of their obligation to ■serve the public indiscriminately, and they are without remedy ■other than the writ of mandamus, commanding said defendants to allow said relators the use of said telephone Exchange and wires, and to connect said offices of said relators therewith, and which writ the said relators now pray may be allowed and issued in accordance with the statute in such case made and provided.”
    The alternative writ commanded tire respondents to put up and maintain a telephone as prayed for by relators, or to show cause for the omission to do so. Having omitted to do as commanded by the writ, the Columbus Telephone Company and the Westera Union Telegraph Company show cause by alleging their contract and agreements with the American Bell ‘Telephone Company as above set forth, the latter' company being in default.
    The cause is now submitted on a motion for a peremptory writ.

      ■I. H. Collins, for relators:
    The restrictive part of the contract between the Bell Telephone Company and the Columbus Telephone Company has no validity.
    1. It is against public policy as declared by our statute. §§ 3455-3462, inclusive.
    ■ 2. And so at common law. 2 Redfield on Railw., 163, note 7; 50 Ill. 95; 56 Ill. 377; 49 Ill. 33; 55 Ill. 95; 30 How. (N. Y.) 403 ; 67 Me. 209 ; 62 Me. 209 ; 6 Otto, 1; Potter on-Corporations, §§ 472-476, inclusive; 2 Parsons on Contracts, 746 ; 7 "Wait’s Actions & Defenses, 91; 10 The Reporter, 97.
    3. The contract between the defendants is dated April 10,. 1880, and the certificate of incorporation of the Columbus-Telephone Company dated April 15, 1880. Hence this contract purports to have been executed five days before one of" the parties thereto had an existence.
    4. The Bell Telephone Company has not been licensed by its letters patent to violate our state law, but, having engaged in business here, must obey it. 97 U. S. 501.
    As to the misnomer. The rule is the same as in cases of misnomer of persons. The name of a corporation generally consists of several words, and an omission or alteration of one or more of them, unless it actually misleads to prejudice, is not material, especially if it make no essential difference in the sense. This is the rule in cases of grants to corporations and is the same in pleading. 1 Potter on Corporations, § 12; Kyd on Corporations, 227; 10 N. H. 123; 3 Pickering, 232 ; 10 Mass. 360; 21 Pickering, 490 ; 10 Ohio, 111; 60 Pa. St. 466; Brice’s Ultra Vires (by Green), 3, (note); 13 Johns. 58 18 Howard, 404.
    Matthews, Ramsey c& Matthews, for Columbus Telephone Co. and W. U. Telegraph Co.
   . McIlvaine, C. J.

It has been suggested that jurisdiction has not been obtained over the American Bell Telephone Company. There is no doubt that the relators intended to prosecute the American Bell Telephone Company, but through ignorance of thé trae name have designated it by the name of “ The Bell Telephone Company.” The misnomer, however, is-not fatal to the jurisdiction. It is shown that service of the writ was in fact made upon the proper agent of “ The American Bell Telephone Company.” It is true, advantage of the mistake might have been taken by plea in abatement, but as the company, by its silence, has shown itself to be content with the name by -which it has been sued, the court will regard the ■objection that otherwise .might have been made on the ground ■of misnomer to have been waived. 2 Estee’s Pleadings, 449, note; 2 Cowen, 770 ; 1 Den. 451; Kyd on Corp. 227; Green’s Brice’s Ultra Vires, 3, note ; 13 Johns. 58 ; 1 Potter on Corp. :§ 12.

Whether any such duty, upon the principles of the common law, is owing from -respondents or either of them to the rela“fcors as members of the general public, as is claimed by them, growing out of the nature of the business in which respondents .are engaged and their relations to the public generally, we meed not stop to inquire, as, in onr opinion, the whole question 'between the parties may be determined by the provisions of 4he statute in such case made and provided.

Title 2, chapter 4 of the revised statutes of Ohio, from section 3454 to section 3470, prescribes the powers and duties ■of magnetic telegraph companies, and section 3471 of the same ■chapter provides, the provisions of this chapter shall apply .also to any company organized to construct any line or lines of telephone, and every such company shall have the same powers .and be subject to the same restrictions as are herein prescribed for magnetic telegraph companies.”

Among the powers conferred upon magnetic telegraph companies is the right to occupy public roads and other public grounds, and the power of eminent domain, and among their duties are the following, as prescribed in section 3462,. as .amended April 15, 1880, namely: “Every company, incorporated or unincorporated, operating a telegraph line in this .state, shall receive dispatches from and for other telegraph lines, and from and for any individual; and on payment of its usual charges for transmitting dispatches, as established by the .rules and regulations of the company, shall transmit the same with impartiality and good faith, under a penalty of one hun■dred dollars for each case of neglect or refusal to do so, to be recovered with costs of suit by civil action, in the usual name, and for the benefit of the person or company sending or forwarding, or desiring to send or forward the dispatch.”

This section, wdien construed in connection with section 3471, above quoted, makes it the duty of the Columbus Telephone Company to receive dispatches from and for telegraph lines, by the very words of the statute; but if not, such duty towards the relators and each of them is embraced in the succeeding clause, and from or for any individual.” The word “ individual ” is here used in the sense of person, and embraces-artificial or corporate persons as well as natural. The dispatches so received from or for,” must be transmitted “ with impartiality,” that is, without discrimination, either in respect, to persons or in the time or manner of transmission.

Such being the nature of the duty imposed upon the Columbus Telephone Company by the statute, it cannot shield itself from the performance thereof, by any self-imposed restrictions-contained in the stipulations of a contract with the American Bell Telephone Company, by which the right to use the instruments or license of the latter company was acquired. The-Columbus Telephone Company was bound to acquire from the-American Bell Telephone Company, such rights in its instruments and patent (or to provide itself by other means of all. such facilities), as were necessary to discharge its duties to the-public, as prescribed in the statute; otherwise, it had no right to engage in the business of operating a system of telephones-at all.

We do not mean to say, that as between the Columbus Telephone Company and the American. Bell Telephone Company,, the right to control the receipt and delivery of telegraph messages might not have been reserved to the latter company; but-we do hold, that no such right could be reserved whereby therelators could be deprived of the use of the system of telephones organized and managed by these telephone companies,, either jointly or severally.

And in regard to the American Bell Telephone Company, it is enough to say, after what has already been said in relation to-the Columbus Telephone Company, that it cannot be permitted to operate a line or system of telephones, in this state,, and in the face of the statute, either directly, or through the-agency of licensees, without impartiality, or in other words,, with discriminations against any member of the general public-who is willing and ready to comply with, the conditions imposed upon all other patrons or customers, who are in like circumstances. And all contracts in contravention of the public j>olicy of this state, as declared in chapter 4 of the revised statutes, above referred to, must be declared void and of no effect.

It is claimed that the statute above referred to' cannot control or invalidate the contract in question, because the exclusive right to make, vend, and use these telephone instruments is vested by the assignment of letters patent, under an act of congress, in the American Bell Telephone Company; and that it is not within the power of a state to impair the right so secured. In our opinion, this statute is not the subject of constitutional infirmity. •

While it is true, that letters patent secure a monopoly in the thing patented, so that the right to make, vend, or use the same is vested exclusively in the patentee, his heirs and assigns, for a limited period ; it is not true, that a right to make, vend, or use the same in a manner which would be unlawful except for the letters patent, thereby becomes lawful, under the act of congress,' and beyond the power of the states to regulate or control.

This doctrine is fully discussed and settled in Jordon v. Overseers of Dayton (4 Ohio, 295), and Patterson v. Kentucky (97 U. S. 501). The doctrine of these cases may be stated thus: the right to enjoy a new and useful invention may be secured to the inventor and protected by national authority against all interference; but the use of tangible property which comes into existence by the application of the discovery is not beyond the control of state legislation, simply because the patentee acquires a monopoly in his discovery; “ The sole operation of the statute is to enable him to prevent others from using the products of his labors without his consent; but his own right of using is not enlarged or affected.” The property of an inventor in a patented machine, like all other property, remains subject to the paramount claims of society, and the manner of its use maybe controlled and regulated by state laws when the public welfare requires it.

It appears to ns, as a proposition too plain to admit of argument, that where the beneficial use of patented property, or any species of property, requires public patronage and governmental aid, as, for instance, the use of public ways and the exercise of the right of eminent domain, the state may impose such conditions and regulations as in the judgment of the lawmaking power are necessary to promote the public good.

As respects the Western Union Telegraph Company we are of opinion that no case has been made which will justify a judgment against it; but as to the respondents, the Columbus Telephone Company and the Bell Telephone Company, the writ of mandamus prayed for should be made peremptory.

Judgment accordingly.


author: By the Court. White, J.

text:
    Bowen et al. v. Bowen et al.
    1. A proceeding in error, to reverse, vacate or modify a judgment or final order, is not commenced, within the meaning of section 528 of the Civil Code, unless the petition in error is filed, and the appearance of defendants in error effected by service of summons or otherwise.
    2. Where it appears, from the record, that the petition in error has been filed, but service of summons has not been had, or the appearance of defendant otherwise effected within the time prescribed by the statute, a motion to strike the case from the docket is a proper mode of proceeding, and will be sustained, unless the plaintiff, by amendment of his petition, alleges facts upon which issue may be joined, showing that he is within the saving clause of the statute.
    Motion, to strike tbe petition in error from tbe files, and tbe case from tbe docket, because no summons in error bad been issued for or served upon any of defendants.
    Tbe judgment was rendered at tbe April term, 1877, of tbe district court of Washington county.
    June 9, 1877, a motion was filed in this court, for leave to lile a petition in error.
    June 29, 1877, this motion was granted, and tbe papers remained on file in tbe clerk’s office, and tbe case was entered on tbe general docket.

      No precipe was filed or summons in error issued until after the filing of this motion, and more than three years after the Rendition of the judgment.
    Since the filing of the motion and its submission, a summons has been returned served on the attorneys of record in the case.
    On the hearing it was suggested that some of the plaintiffs in error were within the saving clauses of section 523 of the ■code, and it was insisted that an answer and not a motion was the proper mode of raising the question, so as to give plaintiffs •an opportunity, by reply, to show themselves within the savings of the statute.
    This is the only question now submitted for decision.

      Loomis da Alban and Harrison, Olds dk Man'sh, for the motion.
    Hwa/rt, Sibley da Ewart, contra.

   By the Court.

Section 523 of the code in substance provides, that no proceeding in error shall be commenced, unless within three years (now reduced to two years by the revised ¡statutes, 6723), after the rendition of the judgment; or in case the person entitled to' such proceeding be an infant, a married woman, a person of unsound mind, or imprisoned, within three years as aforesaid, exclusive of the time of such disability.

In Robinson v. Orr (16 Ohio St. 285), and Buckingham v. Commercial Bank (21 Ohio St. 131), it was held, that a proceeding in error was not commenced within the meaning of this ■.section, by the mere filing of a petition in error in the proper court; and that section 20 of the code, by analogy, furnished the rule by which to determine when the proceeding was commenced.

By section 20 of the code an action is not deemed commenced until the date of the summons which is served, unless the appearance is otherwise effected.

No proceeding in error was therefore commenced or pending in the case before us, within the time limited.

This court had acquired no jurisdiction over the person or subject-matter, when this motion was filed.

In Marinda v. Dowlin (4 Ohio St. 500), Little Miami R. R. v. Hopkins (19 Ohio St. 279), Railway Co. v. Wicks (35 Ohio St. 247), and Piatt v. Sinton (35 Ohio St. 282), it was-held, that unless the action was commenced within the time prescribed by law, the court had acquired no jurisdiction, and that a motion to dismiss was the proper mode of raising the question. In each of these cases the record showed that the petition in error was filed after the time had elapsed.

In the case last cited the motion was sustained, unless the-plaintiff amended his petition, showing facts which brought him within the saving clause of the statute.

They all rest upon the ground, that unless the action is commenced by filing a petition and by service of summons, or by waiver of such service, the court has no jurisdiction of the case.

In the case at bar the petition was filed within the time, but no summons was issued or served, nor was the appearance otherwise effected within the three years.

Proceedings in error were not therefore commenced when this motion was filed.

Looking at the record alone, no right now exists to commence such proceedings. If any of the disabilities exist, which take the case out of the statute, they should appear by proper averment of fact, upon which issue may be taken. The case at bar does not differ in principle from the cases cited, wherein the petition was filed after the time had elapsed \ in this as well as those cases no action was commenced.

It is said, that the practice is settled otherwise in Robinson v. Orr (supra). In that case, the petition was filed within-the time, but as we infer, followed by service after, and the-only question considered and reported is the one already stated. It incidentally appears, however, in the statement of the case, that at the previous term a motion to dismiss had been overruled, and the defendant required to set up the same matter by answer.

This action at the previous term was never otherwise reported, and it can hardly be regarded as settling the practice, in view of the fact that it is not in harmony with the cases cited, which are analogous in principle and which appear to have-received the full consideration of the court. Again, reference is had to the rule of pleading, that the statute of limitations, should be pleaded, but in Robinson v. Orr, and all the eases, cited, it is held to be essential to the jurisdiction of the court,, on error, that the proceeding in error should be commenced by a service or waiver within the time. In this important respect.it differs from the personal privilege of pleading the statute of limitations at common law.

Nor is the conclusion reached at variance with the holding-in C. C. & C. R. R. v. Mara, (26 Ohio St. 185). That was a case reserved in the district court for decision here within the-three years, but no service or appearance within that time. It was held that the defendant, by appearing after the time had expired, and having the case set for oral argument, which wasafterwards partially argued on its merits, was estopped from objecting for want of service. The grounds for this holding are that any other rule of practice would enable paiiies to-trifle with the court.

We do not question the principle settled in that case, that where the petition in error is filed, but there is no service within the time, the defendant may, after the time, by voluntarily appearing to the merits, estop himself from denying service-within the time, or from questioning the authority of the court to hear and determine the case on the merits.

Following the line of authorities cited, we conclude, that where it appears from the face of the record that the time for commencing the action has expired, before service has been made or the appearance effected, the case will be dismissed on motion for that purpose, unless the plaintiff in error, by amendment of his petition, alleges facts showing that he is within the savings of the statute.

White, J.

In so far as it may be implied from the language of the above per curiam, that, where the petition is filed in time, it is also essential to jurisdiction over the subject that. -the summons should be served, or a voluntary appearance -effected witbin tbe time limited, I do not concur.

In such cases, if process is served or tbe voluntary appearance of tbe defendant effected after tbe time, and no objection-is made on the ground of lapse of time, tbe objection is waived and tbe court has jurisdiction of tbe case. Rut where tbe objection appears on tbe record, I see no reason why tbe party may not avail himself of it by motion, as is done in this ease, as well as by answer, as was done in Robinson v. Orr.

In tbe latter case, tbe facts showing tbe disability would be required to be set up by reply ; in tbe former by tbe petition.


author: By the Court.

text:
    Croll et al. v. Village of Franklin et al.
    The plaintiffs, by their original action, sought to enjoin proceedings by the village council-to complete the extension of the corporate limits of the village. On final hearing in the district court the petition was dismissed at plaintiffs’ costs. To reverse this judgment, a petition in error is now pending in this court, and the plaintiffs now move for an order staying the execution of the judgment of the court below during the pendency of the proceeding in error. Held, where the relief desired, during the pendency of a proceeding in error, is an order to stay further action in the proceedings, which it is the object of the original action to enjoin, such relief should be sought under section 5573 of the Revised Statutes.
    Motion for a writ of supersedeas, or an order staying tbe -execution of tbe judgment of tbe District Court.
    Tbis was an action to enjoin the village authorities of tbe village of Franklin, in Warren county, from taking any steps to carry into effect certain proceedings for the extension of tbe corporate limits of tbe village, upon the’ ground that .such proceedings were void. Tbe plaintiffs were resident taxpayers of the territory sought to be annexed. Issue was joined by tbe village on tbe allegations stated in tbe petition, tending to show the invalidity of said proceedings, and upon final hearing in the district court, to which the cause had been appealed, the action was dismissed at the costs of the plaintiffs. To- reverse this judgment a petition in error has been filed in this court, and the plaintiffs now move for a writ 6f supersedeas, of the execution of the judgment below until the cause in error is finally heal’d; and in case such writ is refused, they pray for an order staying the execution of- such judgment until final disposition of the case in error.

      Durbin TVa/rd, for- the motion.

      A. O. MeBwrney, contra.

   By the Court.

Neither a writ of supersedeas, nor an order staying the execution of the judgment below, would afford the plaintiffs the relief desired. The only judgment rendered was one dismissing the action, and for costs against the plaintiffs. An order staying the execution of such judgment would not operate to restrain the village authorities from going forward with the proceedings sought to be enjoined. Where the relief desired during the pendency of the proceedings in error is an order to stay further action in the proceedings, which, by the original action, the plaintiff seeks to enjoin, such relief should be sought under section 5573 of the revised statutes.

Motion denied.


author: Johnson, J.

text:
    Elliott v. The State.
    An indictment under section 22, chapter 3, tit. 1, of the penal code of 1877, as amended (76 O. L., 167,168), which specifically charges that A., B. and 0., with the intent to extort and gain a certain amount of money, of the value of $500, and certain valuable securities of the value of $300, the property of W., did willfully and feloniously accuse W. of the crime of burning his barn, which was insured, and was of the value of $350, with intent thereby to prejudice the insurer, is not defective for want of any of the following averments :
    1. Por want of an averment that the accusation against W. was false. The truth or falsity of the accusation made by defendant'is not an essential element of the crime.
    2. Nor because it does not state the name of the insurer or the amount of the policy.
    3. Nor because it does not allege that defendant succeeded in extorting money, chattels or valuable securities.

      -4. Nor for want of an averment that the crime of which W. was accused, tended to degrade or disgrace him.
    5. Nor for want of an averment that the accusation of such crime was in writing.
    •6. Nor because there was no averment of a previous conspiracy by the de-' fendants to commit the crime.
    Error to the Court of Common Pleas -of Franklin County.1
    The indictment contains two counts. A demurrer to each ■was filed by Elliott, who alone was before the/Court,' and overruled, and exceptions were noted.
    Upon plea of not guilty by him, a trial was had, resulting án a general verdict of guilty, as charged in the indictment. After a motion for a new trial, and in arrest of judgment, had been overruled, a sentence to one year in the penitentiary was passed upon him.
    Numerous reasons are assigned why this judgment should be reversed, but the only ones reserved for report arises on the •demurrer to the second count of the indictment.
    As there was a general verdict of guilty, as charged, with a sentence for a single offense, and as the court finds the second •count good, the first count need not be noticed.
    The second count, omitting formal parts, charges as follows: •“ That Thomas L. Moore, John Elliott and Charles Fleming .. . . unlawfully, willfully and feloniously did accuse one ■Solomon J. Wooley, then and there being, of the crime of maliciously procuring a bam of the value of four hundred and •fifty dollars ($450), the same being his own property, situate in Franklin county, Ohio, and insured against loss or damage 'by fire, to be burned, with intent thereby to prejudice the insurer •thereof; said crime being punishable by the laws of Ohio, with imprisonment in the Ohio penitentiary; with the intent, then .and there, by means of such unlawful accusation, to extort and gain from the said Solomon J. Wooley, certain money, to wit, the sum of five hundred dollars, of the amount and value of five hundred dollars, and certain chattels and valuable securities, to wit, certain promissory notes of the amount and value of three hundred dollars, said moneys, chattels and valuable securities being then and there the property of said Solomon J.. Wooley.”

      W. H. HamJcin and Gideon F. Castle, for plaintiff in error.,
    ' J. T. Holmes, J. H. Outhwaite, and W. J. Ciarle, prosecuting attorney, for defendant in error.
   Johnson, J.

This indictment is founded upon section 22 of the crimes act of 1877, as amended by 76 O. L. 167, 168,, which reads as follows:

“ Section 22. Whoever shall, either verbally or by any letter or writing, or any written or printed communication, sent or delivered by him, demand of any person, with menaces, any chattel, money, or other valuable security; or if any person shall accuse, or shall knowingly send or deliver any letter or writing, or any written or printed communication, with or without a name, or with any letter, mark, or designation, accusing, or threatening to accuse any person of any crime punishable by law, or of any immoral conduct, which, if true, would tend to degrade and disgrace such person, or to expose or publish any of his infirmities or failings, or in any way to subject, him to the ridicule or contempt of society, or to do any injury to the person or property of any one, with the intent to extort, or gain from such person any chattel, money, or valuable security, or any pecuniary advantage whatsoever, or with intent to-compel the person threatened to do any act against his will,, with the intent aforesaid, every such offender shall be deemed guilty of an attempt to rob, and be punished by imprisonment in the penitentiary not less than one nor añore than five years, and may be fined not inoa-e than one thousand dollars.”

Section 23 of the act of 1831 (1 S. & C. 430), to punish certain acts commonly denominated blackmailing, and section 22 of chapter 3 of title 1, of the revision of the calmes act (74 0. L. 246), which was amended as above, made it a misdemeanor to send or deliver a writing, for the purpose of extorting money or other valuable thing, or coaatainiaag willftal and malicious threats of injui-y.

This amendment greatly eaolarges the scope of the statute on this subject.

It includes many acts not before criminal, and makes any violation of its provisions a felony.

In many respects it lacks that clearness of meaning and accuracy of expression that should, characterize legislation, especially where, as in this case, it creates new crimes of highest grade. It is well calculated to give rise, as it already has done, to many original and perplexing questions.

As the second count of the indictment charges a violation of a single clause of this statute, we confine our opinion to that clause; not deeming it either necessary or proper in this connection to attempt a construction of the other provisions of the statute.

This second count charges, in substance, that defendants, with intent to extort gain from Wooley, did unlawfully, willfully and feloniously accuse him of the crime of procuring his barn, worth $450, and which was insured, to be burned, with intent to prejudice the insurer.

Whatever the other clauses of this statute may mean, it seems to be clear, that whoever, with intent to extort money, chattels or valuable securities, shall accuse any person of a crime punishable by law, is deemed guilty of an attempt to rob.

It is insisted that this indictment is defective:

1. In not stating the nature of the accusation, or the facts constituting the crime, so as to advise the accused of the charge he has to meet.

2. In not stating the name of the company in which the barn was insured.

3. In not stating the facts making the accusation unlawful, the averment that it is so being a mere conclusion of law,

4. In not describing the securities sought to be extorted.

5. Generally, in not stating the facts constituting the crime embraced in the accusation, and in not showing that Wooley was accused of any crime.

6. In not stating that the accusation -was false.

‘I. In not averring that the barn was insured for at least $50.

8. In not showing that defendants, or either of them, did in fact succeed in extorting money, chattels or valuable securities from Wooley.

9. In not averring that the crime of which Wooley was accused tended to degrade or disgrace him.

10. In not stating that the accusation was in writing.

If to accuse verbally is within the statute, then,, it is said to be defective in not alleging a conspiracy among defendants to make the accusation, without which, the crime must be the act1 of one only.

1. Of the first five of these alleged defects, we may say, generally, that it is sufficient, if the indictment states the facts constituting the crime with certainty to a common intent, and that it is not necessary to state the evidence to prove these facts, nor does any defect or imperfection which does not prejudice the substantial rights of the accused on the merits invalidate it.

The gravamen of the charge here is, that defendants, with the intent named, did accuse Wooley of burning his barn, worth over $50, which was insured against loss or damage by fire, with intent to prejudice the insurer.

The statute (Id O. L. p. 248, § 2) made this a crime punishable by law.

Applying the above principles to the first five objections, we think them not well taken.'

6. Is the indictment defective in not stating that the accusation against Wooley was false?

It is the duty of every citizen to aid and encourage the prosecution of offenders, and it is the policy of the law to protect them in the performance of this public duty when they act in good faith and upon reasonable or probable cause. Such is still the policy of the law, with which the provisions of the statute do not interfere.

The same duty and the same protection now exists in favor of every person, who, for reasonable or probable cause, accuses another of crime.

The object of the clause of this statute is to forbid persons from assuming the character of prosecutors of crime, for the purpose of extorting gain to themselves. It declares that any one who makes an accusation of crime with this intent, shall be deemed guilty of an attempt to rob. If this is the motive it is immaterial whether the accusation be true or false. While it is commendable to accuse and bring offenders to justice for the public good, it is justly made criminal to use, or attempt to use, the machinery of the law for purposes of ■extortion.

This question arose in Rex v. Cracknell, 10 Cox Orim. Cases, 408, under an act of parliament, making it a crime to threaten to accuse of an infamous crime in order to extort money. It was there held, that .although' the prosecuting witness might be cross-examined, with a .view of showing that he was really guilty of the accusation, yet it is not competent to show by other witnesses, even on cross-examination, that he was in fact guilty.

Willis, J., said: “ It was quite immaterial to the issue whether he was innocent or guilty of the charge made against him by the prisoners.”

Regina v. Menage, 3 Foster & Fin. 316, and The State v. Bruce, 24 Maine, 71, are directly in point and to the same effect.

7. Is the indictment defective in not stating that the barn was insured for at least $50 ?

We think not. By the statute above cited (74 O. L. 248, § 2), the value of the property insured, and not the amowit of insurance thereon must be $50. The amount that the insurer would be defrauded is not a material element of the crime, but the value of the property burned should be of the value of $50.

8. Is it defective because it only avers that the accusation was made with intent to extort, and does not allege that the attempt was successful?

The offense consists of an attempt to rob by means of such an accusation, and the crime is complete, whether it is successful or not.

9. Is it defective for want of ap averment that the accusation tended .to degrade and disgrace ?

When the accusation is of immoral conduct, it must be of such a nature as would tend to degrade or .disgrace, but where it is of a crime punishable by law, no such averment is required. Every accusation of immoral conduct, with intent to extort gain, is not prohibited, but only where such immoral conduct is charged as tends to degrade and disgrace, while every accusation of a crime, punishable by law, with such intent, is sufficient without an averment that such crime would tend to degrade or disgrace.

10. Should the indictment aver that the accusation was in writing ?

If this was a charge of threatening to accuse,” the words-of the statute would seem to require that it should be in writing ; but where the*accusation is directly made with the unlawful intent, whether verbally or in writing, the crime is complete.

We see no reason why this should not be so. Such an accusation may be quite as effectual as a means of blackmailing ■as if made in writing.

If this be so, then it is urged the indictment is defective, in not averring a conspiracy to blackmail.

The answer to this is, that upon general principles, this crime belongs to the class that may be committed by one or more persons, and for which they may be jointly indicted without, alleging a previous conspiracy.

Several other questions which arose during the trial, or appear upon the record, have been considered. In these we find no error, but they are not deemed of sufficient importance to-be reported.


author: White, J.

text:
    The State ex rel. George L. Riley v. John F. Oglevee, Auditor of State.
    1. Neither 'branch of the general assembly can alone appropriate money from the treasury; but where a fund is provided by law for the contingent expenses of either brandh, the disbursement of the fund for such, purposes is.subject to the control of such branch.
    2. Hence, where a sum is allowed by the house of representatives for cleaning the hall occupied by that body, after its adjournment, the party rendering the service in pursuance of the resolution is entitled to be paid therefor out of the contingent fund previously appropriated for the use of the house.

      Mandamus.
    The only facts necessary to be noticed in this case are the ■following: On the 16th of April, 1880, the house of representatives adopted the following resolution, viz.: “ Resolved, that the porters of the House, George Riley, James Lewis, John Downing and Samuel Sloan, be allowed twenty-five dollars •each for services in cleaning up the hall after the adjournment •of the house.”
    By the appropriation act passed by the general assembly on the day preceding the passage of this resolution, there was appropriated for “ contingent expenses of the two houses, five '.hundred dollars.”
    It is admitted that the relator performed the services required of him by the resolution of the house; and that the ■■speaker of the house has so certified to the auditor, and that the relator is entitled to the $25 specified in the resolution; but that the auditor refuses to issue, a warrant for the payment of said sum in accordance with the certificate and resolution, solely on the ground that a single branch of the general assembly has no power to provide for the payment of ■services such as are contemplated in said resolution. It is also admitted that, of the contingent fund so appropriated, there is unexpended more than sufficient to pay the claim of the relator.

      George B. OTcey and H. J. Booth, for relator.

      George K. Nash, attorney-general, for respondent.
   White, J.

Neither branch of the general assembly can .alone appropriate money from the treasury. The constitution provides that: “No money shall be drawn from the treasury, •except in pursuance of a specific appropriation made by law.” Art. 2, §22.

The specific appropriation in the present case was made by the appropriation act of April 15, 1880.’ (77 O. L. 215.) ‘That act appropriated $500 for the “ contingent expenses •of the two houses,” and it is conceded that of the fuud thus appropriated, there remains unexpended more than sufficient, to pay the demand of the relator.

Where a fund is provided by law for the contingent expenses of either branch of the general assembly, the disbursement; of the fund for such purposes is subject to the control of such, branch. The passage of the resolution now in question came within the discretion and authority thus vested in the house of representatives; and the relator, having performed the services required by the resolution, is entitled to be paid out of the fund appropriated for the payment of the contingent expenses of the house.

This case is not affected by section 29 of article 2 of the-constitution.

There is no question of the allowance of extra compensation for past services in the case; nor is the claim one, the subject-matter of which was not provided for by pre-existing law. The subject-matter of the claim was provided for in the appropriation act of April 15,1880, and by the resolution of the house of the succeeding day; and the services were performed after they were authorized.

Peremptory writ a/wa/rded.