author: White, J.

text:
    James Morgan, Superintendent of the Cincinnati Workhouse, v. William Nolte.
    1. Tlie only limitations to the creation of offenses by the general assembly are the guaranties contained in the bill of rights.
    2. These guaranties are not infringed by section 2108 of the revised statutes, which authorizes cities and villages to provide for the punishment of known thieves, pickpockets, watchstuft'ers, &c.
    8. An ordinance under this statute, providing for the punishment of any known thief found in the municipality, is valid.
    Error to tlie Probate Court of Hamilton County.
    William Nolte having been sentenced and committed to the workhouse, by the police court of Cincinnati, sued out a writ of habeas corpus from the probate court of Hamilton county, against James Morgan, Superintendent of the workhouse, to obtain his discharge from custody.
    The return showed that Nolte was held in custody under a commitment from the police court, issued in pursuance of his conviction and sentence by that court. A certified transcript of the proceedings in the police court was also made part of the return, from which it appears that a prosecution was instituted in said court by the city of Cincinnati against Nolte, upon an affidavit containing the following charge :
    “That one William Nolte, on the 21st day of December A. D. 1880, at the city and county aforesaid, being a known thief, was found in the city, contrary to the ordinance ■ of said city.”
    The defendant pleaded not guilty to the charge, and on the trial having waived a jury, was tried to the court. The court, after hearing the testimony, found him guilty, and ordered that he be committed to the workhouse for the term of thirty days.
    On the return to the writ of habeas corpus, the probate court ordered the discharge of Nolte from the custody of the superintendent of the workhouse.
    The object of the present petition in error is to obtain the reversal of this order. On account of the public interest in volved in tlie question, and owing to the fact that conflicting decisions have been rendered on the question by judges of the court of common pleas, the petition in error has been allowed directly to the probate court.

      John K Murphy, for plaintiff in error.

      Walter T. logcm, for defendant in error.
   White, J.

The only question submitted in this case is, whether the council of the city-was authorized to create the offense of which .the accused, Nolte, was convicted.

The ordinance is not made part of the record, but it is admitted that the charge is in accordance with the ordinance. If it were not so admitted, it must be presumed in the absence of any showing to the contrary in the record.

Eor the authority of the city council in the matter, we are referred to section 2108 of the revised statutes. That section, among other things, provides, that the council shall have power “ to provide for the punishment of any vagrant! common street beggar, common prostitute, habitual disturber of' the peace, known pickpocket, gambler, burglar, thief, watchstuffer, ballgame player, a person who practices any trick, game, or device with intent to swindle, a person who abuses his family, and any suspicious person who cannot give a reasonable account of himself.”

One of the classes of persons against whom the council was authorized to provide, was known thieves. The accused was-found to be of this class. The charge on which he was convicted was that of being a hnown thief, and found in the city of Cincinnati, contrary to the ordinance of the city. No question arises on the evidence, and the proof must be presumed to have been sufficient. That the creation of the offense was authorized by the statute we entertain no doubt. The statute declares that the council shall have power to provide for the punishment of miy hnown thief. This brings us to the question whether the enactment'of the statute is within the power conferred upon the general assembly.

The only limitations to the creation of offenses by the legislative power, are the guaranties contained in the bill of rights, neither of whicli is infringed by the statute in question. It is a mistake to suppose that offenses must be confined to specific acts of commission or omission. A general course of conduct or'mode of life which is prejudicial to the public welfare may likewise be prohibited and punished as an offense. Such is the character of the offense in question.

The case of Byers v. Commonwealth (42 Penn. St. 89), cited and relied upon by counsel in this case, has no direct bearing on the question now under consideration. The question there was whether the act of March 13, 1862, of the state of Pennsylvania, authorizing the summary conviction, without a jury, of professional thieves, &c., was valid under the constitution of that state.

The act under consideration in that case is found in 1 JBrightley’s Pardon’s Dig. p. 346, § 158. The act was held constitutional, and the opinion in the case contains a learned summary of the law of England and of Pennsylvania on the subject.

The case of People v. McCarthy (45 How. Pr. 97), involved a similar question arising under a statute of New York. The constitutionality of the statute was also upheld in that case.

In the present case no such question arises. The accused, under our law, was entitled to a trial by jury, as the punishment of -the offense involved imprisonment. Rev. Stats. §§ 1788, 1819. He, however, waived a jury, and consented to be tried by the court.

At common law, a common scold was indictable; so, also, a common barrator; and, by various English statutes, summary proceedings were authorized against idlers, vagabonds, rogues and other classes of disorderly persons. See Stephen’s Dig. of Crim. L. art. 193. In the several states in this country similar offenses are created. In some of the states it is made an offense to be a common drunkard, a common gambler, a common thief, each state defining the offenses according to its own views of public policy. The case of The Commonwealth v. Hopkins (2 Dana, 418), was the prosecution of a person for being a common gambler; of World v. State, 50 Md. 49, for being a common thief.

In such cases the offense does not consist of particular acts, but in the mode of life, the habits and practices of the accused in respect to the character or traits which it is the object of the statute creating the offense to suppress.

The order of the probate court discharging the defendant in error from custody is reversed.


source: Caselaw Access Project

author: Boynton, O. J.

license: Public Domain

text:
    Wheeler et al. v. Faurot.
    t. An action was brought by a creditor of an insolvent corporation to enforce the individual liability of those who were stockholders at the time his debt was contracted. Two of the defendants set up the fact, that prior to the time the plaintiff obtained his judgment against the corporation, they had sold and transferred their stock to N. and O.,who were solvent and amenable to process, and whom they prayed might be made parties to the action and by proper process brought into court. This prayer the court refused to grant.

      Held, that said assignees were necessary parties to a final determination of the rights and liabilities of all the parties interested, and in refusing an order to make them parties the court committed error.
    2. Where the liability of a defendant depends on whether a promissory note was an outstanding security at a certain date, an averment in his answer that prior to said dale the note had been paid by a new note of the same maker, is sufficient on demurrer.
    Error to the District Court of Allen County.
    The original action was brought by the defendant in error against the plaintiffs in error, John Wheeler and D. J. Shuler, and others, to enforce their statutory liability as stockholders in the Lima Wheel Company, a corporation duly organised under the laws of this state, in 1871. On October 25, 1875, a judgment was rendered against the company in favor of Faurot for the sum of $13,102.96, on five promissory notes of the company, two of which were dated in October, 1874, and the remaining three in November of the same year, each falling dne in ninety days from its date. After exhausting the assets of the company there still remained due on the judgment the sum of $8,500, with interest from December 23, 1875. Wheeler was an original subscriber to the stock in the sum of $500, and Shuler in the sum of $1,000: each had paid up his stock in full.
    Wheeler and Shuler answered, among other things:
    “ That on the-day of December, a. d. 1874, and while said company was carrying on business, and at a period more than six months prior to the suspension of business by said company, they in good faith and for valuable considerations sold and transferred the stock by them respectively owned in said corporation to other persons, to wit: The defendant Shuler to one J. A. Newell, and the defendant Wheeler to one George W. Overmyer, both of said parties being then and now residents of Lima, Ohio, solvent and responsible. And defendants say that their said sales and transfers were reported to and recognized and confirmed by said corporation, the certificate of stock by these defendants, then held, returned to and canceled by said corporation, and new certificates issued by said corporation to the said Newell and Overmyer for the respective amounts of stock so by them purchased.” ■
    The defendants prayed that said Newell and Overmyer might be made parties defendant, and charged with the liability sought to be enforced against these defendants.
    As a second defense these defendants further answered:
    “ That they are informed and believe and so aver that the said indebtedness in favor of said plaintiff, and on account of which his judgment was obtained as set out in his said petition, was originally evidenced by the promissory notes of said corporation of the dates and for the amounts set out in said petition ; that after these defendants ceased to be members and stockholders in said corporation, said notes were canceled and paid by the execution of new notes by said corporation, duly signed by the officers thereof, and at dates subsequent to the time that these defendants ceased to be members and stockholders of said corporation, and that said plaintiff by collusion with the officers of said corporation, and with the intent to wrong and defraud these defendants, obtained the notes that had been paid and canceled as aforesaid and procured his judgment upon them against said corporation on cognovit and without process, which said judgment is wholly void as against these defendants.”
    A demurrer to each of these defenses was sustained in the common pleas, and judgment given for' the plaintiff. On appeal the district court gave a like judgment.
    To reverse this judgment is the object of the present proceeding in error.

      Hughes & Bobh, for plaintiff in error.

      Gunnvngham c& Brotherton, for defendant in error.
   Boynton, O. J.

Although the fact is not stated, we assume that the Lima Wheel Company was incorporated under the general act of incorporation of 1852. Under the provisions of section 78 of that act, the plaintiffs in error became liable to an amount equal to their respective shares of stock, in addition thereto, to secure the indebtedness of the company which accrued while they were the owners of such stock. Brown v. Hitchcock, 36 Ohio St. 667. But while the liability attached to them as stockholders for the payment of the judgment rendered against the company upon a debt created during their ownership of the stock, when they sold and transferred their respective shares to Newell and Overmyer, the latter assumed and became as fully bound to discharge the liability, as between themselves and their assignors, as if they had owned the stock from the organization of the company. Ibid.

Hence, Nowell and Overmyer were necessary parties to the action. A complete and final determination of the rights of all the parties could not be made without them. They were not only liable to the plaintiff by reason of their purchase of the stock, but they stood in the relation of indemnitors to Wheeler and Shuler against their liability to the creditor, which attached to their ownership of the stock at the time the debt was contracted. Beiug ultimately liable and solvent, and the action being one in equity, to marshal the liabilities of all the stockholders, inter sese as well as to the creditors, it was a right which Wheeler and Shuler had to have them brought into court to the end, that when the final judgment was entered, the rights of all persons interested in the matter, as well as the object of the suit, should be adjudicated and settled, and all further litigation thereby avoided. Umsted v. Buskirk, 17 Ohio St. 113. We therefore think the court erred in refusing to make Newell and Overmyer parties to the action.

Wo also think the court erred in sustaining the demurrer to the second defense of the answer. The authorities are not in accord upon the point, whether the mere renewal of the note of the corporation is to be regarded as the making of a new contract as respects the stockholders whose individual liability is sought to be enforced. That the renewal has the effect of creating a new debt and the extinguishment of the old one, in the absence of proof showing a different understanding, was held in Castleman v. Holmes, 4 J. J. Marsh. 1; Milliken v. Whitehouse, 49 Me. 527; and Fisher v. Marvin, 47 Barb. 159.

See also Thompson’s Liability of Stockholders, §§ 101, 298. This doctrine, however, was denied in Parrott v. Colby, 6 Hun, 55, and in Jagger Iron Co. v. Walker, 43 N. Y. S. C. 275, where it was held, that so long as the debt for which the note was given remains unextinguished, the liability of stockholders continues and “is in respect thereof only.” We need not determine which line of authorities is supported by the better reason, nor whether the renewal of a note of a corporation as respects its effect upon the individual liability of the stockholders has im operation on the antecedent debt different from that resulting from the renewal of a note of a private individual. The answer averred, that after Wheeler and Shuler ceased to be stockholders, the notes upon which the judgment was rendered were canceled and paid by the execution of new notes by the corporation. It is well settled that where the parties agree that a new note shall be taken in payment of the debt for which it is given, or shall extinguish all liability on the note for which it is substituted, such antecedent debt or note is thereby paid and the right of action thereon is gone. Merrick v. Boury, 4 Ohio St. 60 ; Leach v. Church, 15 Ohio St. 169. Here the averment was that the notes were canceled and paid by new notes given by the corporation and subsequently fraudulently obtained and put into judgment. It may be that the pleader only intended to state the fact of renewal, and to claim therefor that it operated in law as payment of the notes for which the new notes were given.

But the averment is clearly susceptible of the meaning that the parties agreed that. the new notes should be accepted in payment of the old ones ; and hence in view of the requirement, that in the construction of a pleading for the purpose of determining its effect, its allegations are to be liberally construed with a view to substantial justice between the parties, the demurrer to the defense by which such payment was averred should have been overruled and if the pleading was not ordered to be made more definite and certain, and the fact of payment was controverted, issue should have been joined by reply.

Judgment reversed and canse remanded for further proceedings.


text:
    The State of Ohio v. Smily.
    1. Where one falsely and maliciously publishes of and concerning another, that his house had been searched, under legal process, for the discovery of goods recently stolen, and supposed to be secreted therein, he is guilty of libel.
    2. Where the language complained of as libelous will bear the meaning ascribed to it by the innuendo, whether such was the meaning intended is a question of fact for the jury.
    Exceptions to an order of the Court of Common Pleas of Clarke County quashing an indictment.
    The defendant was indicted for publishing of and concerning Tandy S. Collins, a false and malicious libel, in the following words and figures:

      “ Fremont Mirror.”
    “ Housebreaking and thieving seem to have become quite Common some three miles north of town ” [meaning thereby said town of Fremont]. “ On Thursday,” [meaning thereby Thursday, the twenty-seventh day of September, in the year, aforesaid] “ while the family were absent, the house of Calvin Cook was broken into, and $30 in money, and clothes to the same amount taken ” [meaning thereby stolen].
    “ On the same day the house of David Gentis was entered and some money and clothing taken” [meaning thereby stolen]. “Luckily the thief did not find a package-of $400, which was in the house at the same time.
    “ On Thursday night ” [meaning thereby the night of Thursday, the twenty-seventh day of September, in the year aforesaid] “ Fountain Deer’s spring-wagon left ” [meaning thereby was stolen] “ and has not returned up to this writing.
    “ Strangely enough, no suspicious-looking persons or strangers have been seen in the neighborhood. On Saturday ” [meaning thereby Saturday the twenty-ninth'day of September in the year aforesaid] “ we are informed, the house ” [meaning thereby said dwelling-house] “ of T. S. Collins ” [meaning thereby said Tandy S. Collins] “were” [meaning thereby where] “ the stolen goods ” [meaning thereby said money and clothes taken from the house of said Cook, and said money and clothing taken from the house of said Gentis] “ were supposed to bo secreted, was searched,” [meaning thereby that an examination was made of said house, under authority and process of law, for the purpose of discovering said stolen goods, and for the purpose of discovering proof of the guilt of the said Tandy S. Collins, with respect to the larceny of the same] “ but no trace wTas found,” to the great injury, scandal, and disgrace of the said Tandy S. Collins, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Ohio.”
    On motion of the accused the court quashed the indictment on the ground that it charged no offense. The particular reason stated in the entry being that the last innuendo contained in tbe indictment was not supported by tbe preceding avei > ment.

      Gr. O. Sa/wlins, for plaintiff in error.

      J. K. Movoer, for defendant in error.
   Boynton, O. J.

The defendant was indicted for publishing a false and malicious libel concerning Tandy S. Collins. The indictment was founded on section 21, chapter 3, of the crimes act of 1877 (74 O. L. 246 ; Rev. Stat. § 6828). On motion of the defendant, the court quashed the indictment on the ground that it charged no offense. The correctness of this ruling is the only question arising in the case. It is claimed in argument, in support of the order quashing the indictment, that the matter charged as libelous is not actionable except upon averment and proof of special damage, and consequently that the publication cannot be made the subject of an indictment.

This result, undoubtedly, would follow if counsel are right in the position that proof of special damage is essential to recovery, in a civil action by the party concerning whom the publication is made. Such proof, however, is not essential to recovering, as will be presently shown. Counsel have fallen into an error in assuming that the rule applicable to words spoken, applies with all its limitations to matter that is written and published.

In Watson v. Trask, 6 Ohio, 531, it was said that “ a libel in reference to individual injury may be defined to be a false and malicious publication against an individual, either in print, or writing, or by pictures, with intent to injure his reputation, and expose him to public hatred, contempt, or ridicule.” “Words of ridicule only, or of contempt, which merely tend to lessen a man in public esteem, or to wound his feelings, will support a suit for libel, because of their being embodied in a more permanent and enduring form ; of the increased deliberation and malignity of their publication, and of their tendency to provoke breaches of the public peace.”

In Tappan v. Wilson, 7 Ohio, 190, it was further said that if the “ tendency of the publication,” being malicious, “ is to degrade and lessen the standing ” of the person concerning whom the publication is made, it is a libel. The general current of authority is to the same effect, holding that although the matter published might not, without averment and proof of special damage, be actionable, if only spoken, yet if published, and it be of a character, which, if believed, would naturally tend to expose the person concerning whom the same was published, to public hatred, contempt, or ridicule, or deprive him of the benefits of public confidence or social intercourse, such publication is a libel, and an action will lie therefor although no special damage is alleged. Tillson v. Robbins, 68 Me. 295 ; Dexter v. Spear, 4 Mas. 115; Smart v. Blanchard, 42 N. H. 151; Adams v. Lawson, 17 Gratt. 250; M'Gregor v. Thwaites, 4 D. & R. 695 ; Thorley v. Kerry, 4 Taunt. 354; Villers v. Mousley, 2 Wils. 403; Starkie on Slander and Libel, § 153; see note to Steele v. Southwick, 1 Hare & Wallack, Am. L. C. 123; Roscoe’s Nisi Prius Evidence, 791; 2 Wharf. Cr. Law, § 1598.

In Cropp v. Tilney, 3 Salk. 226, Lord Holt said:—“ Scandalous matter is not necessary to make a libel. It is enough if the defendant induces an ill opinion to be had of the' plaintiff, or to make him contemptible or ridiculous.”

In Shipley v. Todhunter, 7 C. & P. 680, Tindal, O. J., said that “ any written communication which bears on the face of it any charge, or which tends to vilify another, is a libel.”

In Woodard v. Dowsing, 2 M. & R. 74, it was said, that any written publication which tends to disgrace, is actionable.” And in Sexton v. Spear, supra, it was said by Judge Story, that any publication, the tendency of which is to degrade or injure another person, or bring him into hatred, ridicule, or contempt, or which accuses him of a crime punishable by law, or of an act odious and disgraceful in society, is a libel.”

In Bell v. Stone, 1 Bos. & Pul. 331, the action was for publishing of the plaintiff that he was a “ villain.” The plaintiff failing to prove special damage, the court directed a verdict for the defendant; counsel, however, contending that inasmuch as the charge was in writing, it was actionable without proof of special damage, the court asked the jury what damages they would give supposing the plaintiff entitled to recover in point of law. They answered, one shilling.

Subsequently a rule was granted on the defendant to show cause why the verdict in his favor should not be set aside, and a verdict entered for the plaintiff; and, upon the hearing, the court expressed themselves “ clearly of the opinion that any words, written and published, throwing contumely on the party, were actionable,” and ordered the rule to be made absolute. These authorities abundantly show that in many instances a marked distinction exists between words spoken, and 1 lie same words written and published ; and that words written or printed and published, imputing to another any act, the tendency of which is to disgrace him, or to deprive him of the confidence and good will of society, or lessen its esteem for him, are actionable per se. and consequently lay the foundation for an indictment under the statute.

There can -be no doubt, within the principle of these cases, that the indictment in the present case charged the offense of libel. No one could read the article set out, assuming its statements to be true, without regarding it as seriously reflecting on the character of Collins. It directed public attention to the fact, that the circumstances implicating him in the larceny, or in receiving and secreting the goods stolen, were sufficiently suspicious to justify a search of his house for their recovery. Such being the tendency of the publication its libelous character is clearly established; and especially is this so, when the fact is considered, that in case' the goods or any part thereof were found, upon such search, the statute expressly required the owner to be arrested and taken before the justice. 1 S. & C. 816.

The objection that the innuendo averring the meaning of the language relating to the search was not justified by the lan-' guage used, is not well founded. Where the meaning of the defendant by the language employed is equivocal or doubtful, the question whether the publication is libelous or not is one for the jury. So, too, whether the meaning of the defendant by the language used was what the innuendo avers it to be, if fairly susceptible of that meaning, is a question of fact, and not of law. Mr. Starlde states it to be the duty of tbe court to determine whether the language will bear the meaning ascribed to it by the innuendo, and if it will, that the question whether such meaning was intended, must be submitted to the jury. Starkie on Slander, § 561. This we believe to be the true rule, and applying it to the present case, we think the point admits of little doubt, that the language employed by the defendant will bear the meaning which the innuendo ascribed to it, and that in holding otherwise the court erred.

Exceptions sustained.


author: McIlvaine, J.

text:
    Samuel P. Bowles v. The State of Ohio.
    1. The legislature, in the exercise of the general power of taxation, as distinguished from the power of local assessment, may create a special taxing district without regard to municipal or political subdivisions of the state, and may levy a tax on all property within such district, by a uniform rule, according to its true value in money, for the purpose of defraying the expenses of constructing and maintaining public roads therein.
    2. A statute containing clauses in conflict with the constitution, which, independently of such clauses, may have a constitutional operation according to the intent and purpose of the legislature, is not wholly void by reason of such provisions.
    8. A bond purporting to be issued under a statute, in anticipation of a tax authorized to be levied, to pay for a public improvement, is the subject of forgery, although the statute, under certain conditions which may or may not exist, would have an operation in conflict with the constitution.
    Error to tbe Court of Common Pleas of Hamilton County.
    At tbe January term, 1880, of tbe court' of common pleas of Hamilton county, tbe plaintiff in error was indicted and was afterward convicted and sentenced to tbe penitentiary, for forging an instrument, of wbicb tbe following is a copy:

      “ Bond.
    “ By virtue of the Act of the General Assembly of the State of Ohio, entitled, an act to authorize the Board of County Commissioners to lay out and establish free turnpike roads, passed March 29th, 1875, and amendments thereto, passed March 28, 187G, the Commissioners of Biddinger Road Improvement in Hamilton County, do hereby acknowledge that the County of Hamilton, for the purpose of raising the money necessary to meet the expense of the Biddinger Road Improvement, is hereby hold to pay to S. P. Bowles or bearer, the sum of eight hundred and fifty dollars, on the first day of October, 1880, payable at the office of Treasurer of said Comity, with interest semi-annually at seven per cent, per annum, upon presentation of the coupons annexed.
    “ In witness whereof, we, the Commissioners of Biddinger Road Improvement of Hamilton Comity have hereunto set our hands and the Auditor has affixed the seal of the County this first day of October, in the year 1878.
    “ Auditor’s Office Hamilton County.

    “F. J. Biddinger,
    [seal.] George ~W. Arnold,
    Heinrich Wurzler.
    “ Commissioners of Biddinger Road Improvement in Hamilton County, Ohio.

      “ Attest, ~W. S. Cappeller, Comity Auditor.”
    * Further facts, necessary to an understanding of the case, will be found in the opinion.

      Samuel F. Hwnt and O. H. Blaclsburn, for plaintiffs in error:
    "We claim that this statute (the One Mile Assessment Act), for the reason that it provides for an assessment to pay the costs of a local public improvement, without regard to benefits to the property assessed, is unconstitutional, and null and void. Tide Water Co. v. Carter, 3 E. C. Greene, 518; 38 N. J. 190; 9 Harris, 168; Hammond v. Philadelphia, 65 Pa. St. 146 ; 69 Pa. St. 352 ; Chicago v. Larned, 34 Ill. 203; Wright v. Chicago, 46 Ill. 44; Cooley on Taxation, 505, 571; Re Canal Street, 11 Wend. 155 ; Striker v. Kelley, 7 Hill, 9, 23; 2 Denio, 323 ; Goodard, Petitioner, 16 Pick. 504; Lowell v. Headley, 8 Metc. 180 ; Anderson v. Kein Draining, 14 Ind. 199 ; Garrret v. City of St. Louis, 55 Mo. 504; Sanborn v. Rice County, 9 Minn. 273; Weeks v. City of Milwaukee, 10 Wis. 242; Creighton v. Mancon, 27 Cal. 613 ; People v. Lynch, 51 Cal. 15; Stewart v. Palmer, 74 N. Y. 183; Thomas v. Gaines, 35 Mich. 155; Nicols v. City of Bridgeport, 23 Conn. 204; Matter of Flatbush Avenue, 1 Barb. 286; Matter of Fourth Avenue, 4 Wend. 452; Matter of Abby Street, 11 Wend. 149; Matter of Wm. & Anthony, 19 Wend. 678; Emmerson v. Saltmarsh, 7 Ad. & El. 266; Dorn v. Gray, 2 Tenn. 358; Stofford v. Hamston, 2 R. & R. 691; Newark v. State, 3 Am. L. R. 25; Clapp v. Hartford, 35 Conn. 66; 8 Mich. 274 ; 5 Vroom, 227; 19 Mich. 39 ; 99 Mass. 627 ; 4 Pet. 514, 561, 563; 4 N. Y. 419; 3 Dana, 28; 9 Dana, 513; 3 Dutch. 190; Cooley Const. Law, 507, 508, 280; Dillon on Municipal Corporations, §§ 596, 597.
    To show that the assessment is by the laws of Ohio confined to such property as is specially benefitted and limited to the value of the special benefits conferred, we cite : Scoville v. Cleveland, 1 Ohio St. 126 ; Hill v. Higdon, 5 Ohio St. 243; Meissner v. Toledo, 31 Ohio St. 387; Chamberlain v. Cleveland, 34 Ohio St. 551.
    It is clear, upon both reason and authority, that special assessments to pay for public improvements can only be levied upon property specially benefited by the improvements and to an amount equal to, though not in excess of such special benefit, so long as we have a constitution, which declares . that laws shall be passed taxing by a uniform rule all property. Art. 12, § 2.
    Again, the act is unconstitutional in that the general assembly exceeded its authority in attempting to create a geographical division not recognized by the constitution for- the purpose of an assessment in real and personal property for a public improvement.
    The act, therefore, being unconstitutional, any and all proceedings under the act, either in the form of an assessment direct, as of a geographical division, or in the way of an issuance of bonds, must be null and void, db initio.

    This, of course, would invalidate any bonds of the Biddinger road improvement, or writings obligatory issued under the faith of the act, and under no circumstances could they be made the predicate of forgery.
    In concluding our argument on this branch .of the case, we especially invite the court’s attention to the following authorities, which we think, clearly and conclusively determine the law to be as we have claimed. Constitution of Ohio, art. 12, § 2; art. 1, § 19; Cooley on Taxation, 101; Burroughs on Taxation, 71; Chamberlain v. Cleveland, 35. Ohio St. 551; Messner v. Toledo, 31 Ohio St. 307; Hill v. Higdon, 5 Ohio St. 243; Scovill v. Cleveland, 1 Ohio St. 126; Thomas v. Gaines, 85 Mich. 156; Hammet v. Philadelphia, 65 Penn. St. 116; Clark v. State, 8 Ohio St. 630; Barnum v. State, 15 Ohio, 717; Henry v. State, 35 Ohio St. 130; People v. Tomlinson, 35 Cal. 503 : Roade v. State, 5 Neb. 174; Brown v. People, 86 Ill. 241; People v. Galloway, 17 Wend. 541; People v. Shall, 9 Cow. 778; People v. Harrison, 8 Barb. 560; Rex v. Moffat, 2 Leach, 483; Jones v. Palmer, 1 Leach, 483; State v. Biggs, 34 Vt. 501; Commonwealth v. Ray, 3 Gray, 441; Commonwealth v. Dallinger, 118 Mass. 439; Abbot v. State, 59 Ind. 70; Cunningham v. People, 4 Hun, 455 ; Henderson v. State, 14 Texas, 503; State v. Humphries, 10 Humph. 442; Abbott v. Rose, 62 Maine, 194; Rex v. Knight, 1 Salk. 375 ; 1 Lord Raym. 527; Regina v. Mereans, 2 Carr. & Kir. 356 ; Rex v. Rushworth, R. R. 317; Rex v. Burke, R. R. 496; Rex v. Pateman, R. R. 455 ; Rex v. Randall, R. R. 195; Rex v. Richards, R. R. 193; Watterman v. People, 67 Ill. 91; State v. Wheeler, 19 Minn. 98; Howell v. State, 37 Texas, 591; Rex v. Wall, 2 East P. C. 953 ; 1 Wharton Crim. Law, §§ 691, 695; 2 Bish. Crim. Law, § 521.

      George K. Wash, attorney-general, for the defendant in error:
    It is said, in the notes to the text in Sedgwick on the Construction of Statutory and Constitutional Law, page 421, that local assessments may be made according to some arbitrary standard of benefit; as for instance, frontage.
    In support of this doctrine are cited: Hill v. Higdon, 5 Ohio St. 243; Ernst v. Kunkle, 5 Ohio St. 520; N. J. R. R. Co. v. Connelly, 10 Ohio St. 159.
    If it is within the constitutional power to levy assessments according to some arbitrary standard, as for instance, upon the frontage upon a street to be improved, is it a violation of the constitution to provide that the local assessment shall be made according to the dollar valuation of all property within one mile of the proposed improvement ?
    In this connection I desire to call attention to the case of Foster v. Commissioners of Wood Co., 9 Ohio St. 541.
    The better opinion seems tobe that, whether expressly given, or resulting from the general grant of legislative power, the power to tax implies the power to apportion. I think that it is clearly settled in this state that, under our constitution, the expense of local improvements may be assessed upon the property benefited by such improvements. In the caso of municipal corporations, the general assembly has delegated to their councils the power to-make street improvements, and the power to apportion the expense of such improvements upon abutting property in proportion to the benefits conferred.
    I think that this court has said that, where a council has acted under this power and apportioned the expense in accordance with the benefits received, the courts have not the power to review such action of the council, and to say that it has not apportioned the expense of the local improvement justly. If the General Assembly can delegate this power to a municipal corporation, it has the right to exercise the power itself, and to apportion the costs of improvements in accordance with the benefits received. This is what the General Assembly has done in the one mile pike assessment laws. It has said that all real and personal property within one mile on each side of a free turnpike road is benefited by the .improvement, and after having so determined, it has further said that all such property must bear the expense of the improvement. The legislature, in the exercise of its power, having determined what property is benefited by the improvement, and that such property must pay the expense of the improvement, can this court review this action of the general assembly any more than it can review the action of a city council ?
    This court, in the case of State ex rel. Eastman v. Commissioners of Warren County, 17 Ohio St. 558, hold, that the act of March 29, 1867, “ to authorize the county commissioners to construct roads on petition of a majority of resident land owners along and adjacent to the line of said road ” is not unconstitutional. This act, in so far as the assessment for the expense of the improvement is concerned, does not differ materially from what is known in our revised statutes as the two mile assessment pike laws. I therefore conclude that these laws are not unconstitutional.
    The main difference between our two mile assessment pike laws, and our one mile assessment pike laws, is this:
    In the first the general assembly delegates to three disinterested freeholders, appointed by the commissioners, the power to apportion the estimated expense upon the real property according to the benefit to be derived from the improvement.
    In the second, the general assembly, instead of delegating this power to others, has itself exercised the power, and said that all of the property, real or personal, within one mile on each side of the proposed,improvement will be benefited thereby, and has assessed the exj>ehse of such improvement upon such property. Foster v. Commissioners of Wood County, 9 Ohio St. 544; Cooley on Const. Lim. 507.
    If, as I claim, this law is constitutional, then the said bonds are the subject of forgery. But, if the court should hold the law unconstitutional, still we say the bonds were the subject of forgery. The men who issued the bonds are -liable as individuals upon this paper, and therefore it has a value, and is the subject of forgery.
   McIlvaine, J.

The record before us is exceedingly multifarious. Eifty-five assignments for error are presented. Many of them have been settled by former decisions of this court, and others are quite elementary. There is one question raised, however, of grave importance and of more difficult solution. It is claimed by plaintiff in error that the forged bond shows upon its face that a genuine bond of like import would be wholly invalid and worthless, for the reason that the statute upon which it purports to have been executed was unconstitutional and void; and hence, that the forging of such bond is not a crime within the meaning of the statute defining and punishing forgery. The court below entertained this view of the case, but held that such bond if genuine would have bound the commissioners executing it, personally. This view of the case we have not considered, nor, indeed, whether the instrument, if genuine, would bind . any one, as, upon thorough examination, we are satisfied that there is nothing upon the face of the bond, or in the facts appearing in the record, which show that the bond, if genuine, would not have been a valid and binding obligation according to its terms and manifest purport.

The commissioners of the Biddinger road improvement, named in the forged bond, were appointed by the commissioners of Hamilton county, and were acting under the statute of March 29, 1875 (72 Ohio L. 93), as amended March 28, 1876 (73 Ohio L. 96,) entitled “An act to' authorize the board of county commissioners to lay out and establish free turnpike roads, and to repeal a certain act therein named.” The provisions of the statute, which have been relied on as showing the act to be unconstitutional, are found, chiefly, in sections 8 and 26 of the amendatory act. Section 8 provides “ That for the purpose of constructing free turnpike roads authorized by this act, extra taxes, when levied as hereinbefore provided, shall be on all real and personal property within one mile on each side of said free turnpike road, except when any free turnpike road in process of construction, shall cross a free turnpike road either completed or in process of construction, under and by virtue of any of the road improvement or free turnpike laws of this state, then such lands and personal property as lie within one mile on either side of where such free turnpike roads cross each other, shall be assessed and taxed in proportion to the benefits that may be derived by the owners of such lands and personal property from the construction and use of such free turnpike roads : except, further, that where any road improvement, or free turnpike road built and completed under any of the turnpike laws of this statiS, begins or terminates in the proposed free turnpike, or where any such roads or any toll, unimproved state or county road being unconnected with the same, shall lie, be or run upon either side of said proposed road, within less than' two miles, then the taxes shall only be levied upon such lands and personal property as lie within one half the distance of such roads.” Section 26 authorizes the commissioners of any free turnpike, appointed by the commissioners of the county, to issue bonds in anticipation of the extra tax, as authorized by the act. The first objection suggested to the validity of this statute, relates to the power of the legislature to create a tax district without regard to the boundaries of the municipal or political subdivisions of the state. A sufficient answer to the objection is, that the power exercised is a legislative one, and there is no express or implied limitation upon the power found in the constitution. That the power is not expressly inhibited is clear, and we are persuaded that .there is no implication against it, from- the fact that it has always been exercised without challenge in divers ways for the purpose of promoting local advantages, not only in the exercise of the power of local assessments, where the burden of local improvements has been placed upon property specially benefited, and in proportion to the benefits, but by general taxation upon local districts other than munici: cipal or political subdivisions. Noticeably, special taxing districts have been created for the purpose of supporting and maintaining schools and highways by the subdivision of townships ; and we can see no difference in principle between such legislation and the statute under consideration.

We do not deny that an act of the legislature might assume to place the burden of a local public improvement upon a district so cmcumscribed that the principles of taxation would be so far disregarded, as that it would be the duty of courts to hold it to be an invasion of tbe inviolability of private property. But no consideration of that kind arises under this statute, wbicb imposes a common public burden for a local public improvement.

Again, it is contended that tbe principle of uniformity required by tbe second section of tbe 12th article of tbe constitution is violated. All property witbin tbe taxing district must be taxed by a uniform rule according to its true value in money. Under tbis statute it is plain, that property witbin tbe taxing district and witbin a mile of tbe crossing of another free turnpike road, is not taxable by tbe same rule that applies to other property witbin tbe district.

In Fields v. Comm'rs of Highland County, 36 Ohio St. 476, it was held, that tbe act of March 29,1879 (76 Ohio L. 43), entitled “ an act to authorize tbe commissioners of certain counties to locate and construct turnpike roads ” was unconstitutional for want of uniformity in tbe rule of taxation therein prescribed. Tbe want of uniformity under that statute, and under tbis, is quite similar. But under that act tbe taxing district was co-extensive with tbe county, and it appeared, that tbe only county to wbicb it could apply (Highland) was so situated, with regard to other free turnpike roads, that it was impossible for tbe statute to operate uniformly upon tbe taxpayers of tbe district for any improvement that might be -made under tbe statute. Under tbe statute now being considered, the record does not show whether or not tbe taxes levied for tbe construction of tbe Biddinger road improvement would be uniform upon all tbe real and personal property witbin the taxing district, viz.: Avitbin one mile, on each side, of tbe Biddinger road. Clearly, if the Biddinger road improvement does not cross any other free turnpike road, tbe rule of uniformity required by tbe constitution is not violated. We do not knoAv, and cannot assume that there is such a crossing. Neither would tbe bolder of tbe bonds issued by tbe commissioners of tbe Biddinger road improvement, be put upon inquiry as to tbis fact.

Inasmuch, therefore, as tbe statute under consideration may have a constitutional operation, must it be declared absolutely void, because, under certain circumstances, which may or may not exist, the operation of the statute would violate the principle of uniformity required by the constitution as an essential rule in the imposition of taxes? "We think not. Although courts will never permit the unconstitutional operation of a statute, yet they will not declare it void m toto, if it may have an operation free from any violation of constitutional inhibitions, when such constitutional operation is clearly within the purview of the statute, and no reasonable ground exists for believing that the legislature would not have passed the act without the obnoxious provision.

Judge Cooley, in his work on constitutional limitations (* 178), says, “ Where, therefore, a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning, that it cannot be presumed the legislature would have passed the one without the other. The constitutional and unconstitutional provisions may even be contained in the same section, and yet be perfectly distinct and separable, so that the first may stand, and the last fall. The point is not whether they are contained in the same section, for the distribution into sections is purely artificial, but whether they are essentially and inseparably connected in substance. If, when the unconstitutional part is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which is rejected, it must be sustained.” The statute before us is within the rule thus stated.

Much has been said in argument against the validity of this statute, on the assumption that it was intended as an exercise of the power of local assessment; but inasmuch as the burden does not purport to have been apportioned to property benefited, according to benefits, it was not a rightful exercise of such power. We do not think the legislature intended to exercise the power of local assessment according to benefits. Except as to property within a mile of the crossing of free turnpikes, there is no indication that special benefits were either the rule or the limit, of the burden imposed. The intent of the legislature, we think, was to establish special taxing districts for the purpose of defraying the expenses of the construction of free turnpikes therein, and to impose the burden thereof by taxation upon all the property within the district by a uniform rate, according to its true value in money. And in so far as that purpose can be accomplished under the statute, without an infraction of the constitution, we see no objection to its operation.

We find no error in the record for which 'the judgment below should be reversed.

Judgment affirmed.


text:
    The State ex rel. the Attorney-General v. Ironton Gas Company.
    1. An agreement between a city and a gas company for the supply of gas for a period beyond that authorized by law, will riot affect the authority of the city to regulate the price of gas, although the agreement has been performed by both parties for the period for which it was legally authorized.
    2. A provision in a city ordinance regulating the price of gas, continuing the price as fixed for a specified period, operates, under section 2479 of ' the Revised Statutes, as a proposition to the gas company to supply gas upon the terms prescribed in the ordinance, which, if accepted in the mode provided, precludes the city from lowering the price for the period named. If not thus accepted, the power of the council to regulate the price is as ample as if the ordinance contained no such provision.
    3. The presumption is in favor of the good faith and validity of the action of the city council in passing such an ordinance; and this presumption can only be overcome by the averment of issuable facts showing the contrary. It is only where the facts show not a real, but the mere colorable exercise of the authority vested in the council, that the ordinance can be held invalid.
    4. In the absence of facts showing fraud or bad faith on the part of the council, the inadequacy of the price of gas as fixed by the ordinance is not the subject of inquiry.

      Quo WARRANTO.
    Tliis action was instituted by the attorney-general against the defendant, for refusing to comply with the terms of an ordinance of the city of Ironton, in the county of Lawrence, prescribing the price at which gas should be furnished to said city and to its citizens. For an understanding of the questions decided, the facts sufficiently appear in the opinion.

      S. W. Morris, city solicitor, for plaintiff.

      W. A. Hutchins and IF". II: Enochs, for defendant.
   White, J.

The original petition sought a judgrpent of forfeiture against the defendant of all its corporate rights and franchises; but at the trial, on leave, the attorney-general, with the consent of the city of Ironton, amended the petition by charging the defendant with a misuse of its franchises and the exercise of a power not conferred by law; and, expressly waiving a forfeiture, asked that judgment be entered that the defendant be ousted from the continuance of such offense and the exercise of such power.

Yarious matters of defense were set up in the answer, which, under the amendment to the petition, need not now be considered: The only remaining questions we deem it necessary here to notice are the following :

On December 20, 1866, an agreement was entered into betiveen the city and the defendant, whereby it was stipulated, among other things, that the defendant should furnish gas to the city for the period of twenty years, for which it was to be paid at certain sjieciffed rates.' At the date of the agreement the city was not authorized to stipulate for the price of gas for a period exceeding ten years. The defendant claims, however, that although the agreement was not binding as to the price specified beyond ten years, yet for the remainder of the term the city was bound to take the gas and pay for it what it was reasonably worth.

All that we deem it necessary to say in answer to this claim is, that it is without foundation. The agreement was performed by the parties for the period of ten years, and no question is raised as to its validity for that term ; but, after that period, the agreement was clearly inoperative as affecting the authority vested in the city council, to fix the price at which gas should be furnished by the defendant.

The next question is whether a certain ordinance of the city is to be regarded as an ordinance regulating the price of gas, or as a mere proposal of the terms upon which the city is willing to contract for gas.

The ordinance is as follows:

“An ordinance to fix the price of gas furnished to the city and citizens of Ironton, Ohio.
“ Section 1. Be it ordained by the city council of the city of Ironton, Ohio, That the price of gas furnished to the city and citizens, a good quality of gas of legal standard, for the period of five years from September 24th, 1877, shall be at the following rates, viz: For that furnished to the city in all hose houses and other public buildings belonging to the city, the sum of two dollars and twenty-five cents ($2.25) per thousand cubic feet, and for the two lamps erected in Storms creek bridge, the sum of thirty-three dollars ($33.00) each, annually, to burn each and every night during the year, and for all public or street lamps, the sum of twenty-five dollars ($25.00) each, annually, and to bum all dark hours, and for the use of private citizens, or any other purpose than above specified, n ot to exceed two dollars and twenty-five cents ($2.25) per thousand cubic feet.
“ See. 2. This ordinance to take effect and be in force from and after passage and legal publication.
“ Passed September 10, 1877.”

Another ordinance of the same date provided, “ That if any gas company or gas-light and coke company shall agree to furnish gas to the city and citizens, according to the price as fixed by the council, for five years, it shall be granted ” certain . specified privileges.

The city coxmcil is authorized to regulate, from time to time, the price which gas companies may charge for gas; and it is provided that they shall in no event charge more for any gas furnished to the city or individuals than the price specified in the ordinance. Rev. Stats. § 2478.

Section 2479 provides that “In case the council fixes the minimum price at which it requires any gas company to furnish gas . . . for a period not exceeding ten years, and the company assents thereto, by written acceptance, filed in the office of the clerk of the corporation, it shall not be lawful foi the council to require such company to furnish gas at a less price during the period of time agreed on, not exceeding ten years, as aforesaid.”

The provision in the ordinance for continuing the price of gas as fixed, for the period of five years, operated under section 2479, as a proposition to the company, which, if accepted as therein provided, would preclude the council from lowering the price for the period named ; but if not thus accepted the power of the council to regulate the price from time to time was as ample as it would have been had the ordinance contained no such provision as to time.

The validity of the ordinance is denied on the grounds that it was passed by the members of the city council without sufficient information and from improper motives. The charge in the answer, among other things, is that they were “ actuated by motives of hostility to the defendant and of pandering to popular prejudice against said gas company, and without the proper motive to deal fairly and justly with the defendant, passed-the said pretended ordinances.” It is also averred that the price fixed for gas by the ordinance is not a fair compensation, but is grossly inadequate.

Tc support this defense the defendant relies upon State ex rel. v. Cincinnati Gas Light and Coke Company, 18 Ohio St. 263, 300.

In that case the city had the right to purchase the gas works of the company at an appraisement; and the pleading there in question set up, in substance, that for the fraudulent purpose of compelling the defendant to submit to an unfair appraisement of its gas works and fixtures, with a view to the purchase of the same by the city, under such appraisement, a majority ■of the members of the city council, at a secret meeting, resolved to pass and enforce the ordinance, although it was well known to them that the price named therein was not an adequate price for gas in said city; and to carry ont said fraudulent purpose the same members who composed said secret meeting, adopted said ordinance.

In that case the facts constituting .the fraud were alleged. In the present case no such facts are stated.

The presumption is in favor of the good faith and validity of the action of the council; and this presumption can only be overcome by the averment of issuable facts showing the contrary. It is only where the facts show not a real, but the mere colorable exercise of the authority vested in the council, that the ordinance can be held invalid.

Denunciation of'the motives and action of the members of the council may show the opinion or conclusion pf the pleader in regard to their action; but it is of no legal significance on the question of its validity.

So also as to the alleged inadequacy of the price of gas as fixed by the ordinance. In the absence of facts showing fraud or bad faith on the part of the council, the inadequacy of the price is not the subject of inquiry.

The demurrers to the several defenses set up in the answer are sustained, and judgment rendered ousting the defendant from charging more for gas than is allowed by the ordinance.

Johnson, J., did not sit in this ease.


author: Boynton, Oh. J.

text:
    O. F. Mehurin & Son v. Samuel Stone.
    1. Where, in tlie trial of an action to a jury to recover the stipulated price for the. erection of a building, facts are undisputed which entitle (the defendant to a verdict which is accordingly given, a judgment rendered on such verdict will not be reversed for instructions to the jury, although erroneous.
    2. Where a contractor agrees to furnish materials for, and erect a building in accordance with certain plans and specifications, for a sum to be paid when the building is completed, a substantial compliance with the stipulations of the contract on his part, is essential to his right to recover the agreed price, or any part thereof.
    3. In an action upon such contract to recover the agreed price of the materials and labor, evidence tending to show that the defendant waived the performance of certain of the conditions of the contract hy the plaintiff, is not admissible; and if admitted without objection, it is not error for the court to confine the jury, in their consideration of the case, to the issue made by the pleadings.
    4 Where, in an action upon a contract, it is necessary for the plaintiff to establish the performance of the stipulations on his part in order to recover, the burden of proof is on him, and the burden is not changed by the fact, that the answer, in addition to a denial of performance by the plaintiff, specifically enumerates several particulars in which such failure to perform consists.
    Error to the District Court of Licking County.
    The original action was brought by the plaintiffs, against the defendant, to recover the contract price for building a cemetery vault. The petition alleged performance by the plaintiffs of all the conditions of the contract, except that relating to the roof, which, by a subsequent agreement of the parties, was to be made of slate, instead of stone flagging, at an additional cost to defendant of $66. The answer denied the performance by the plaintiffs of all or any of the conditions of the contract, and enumerated specifically, several particulars, in which the work done and the materials furnished, failed to conform to the agreement. A reply was filed, denying the averments of the answer, setting up the particulars in which the plaintiffs failed to perform their agreement.
    The pleadings set up no modification or waiver of any of the conditions of the contract, except as above specified. The vault was to be built in the cemetery of the Licking Baptist Church. The contract was in writing, and contained, among other things, the following stipulations.

      “ 1. The earth is to be excavated for the space of nine feet long, eight feet wide and two feet deep and then filled with good limestone, or some other good stone, well cemented together, so as to make a good substantial foundation for said vault.

      “ 2. The two side walls and the back end wall of said vault to be of Ohio brown stone, of best quality for durability, the said stoue each to he nine inches thick, and to be of good size otherwise and to be well dressed-and cemented together in the walls, which are to be nine inches thick and the side walls each six feet and six inches high, and the back wall eight feet high .in the center of the back end; the hight of said walls to be measured from the top of the foundation to the top of the walls, and the front wall of said vault to be built of the best Vennont clouded marble, well dressed and polished in the most durable manner.
    A space two feet wide and four feet six inches high to be left in the middle of said front wall for doors; the wall on each side of the door to be of one solid'bloek of marble, and the space above the door up even with the top of the side walls to be in one solid block of marble, on which is to be lettered such inscription as said Stone may direct, and on top of said last named block of marble is to be placed another block of marble reaching to the roof of said vault, and said last block, of marble is to be finished with a carved ornament or oval .¡Moulding, enclosing in the center an open bible, with a rose on each side, all neatly and elegantly carved and finished.
    “6. The floor of said vault to be of best Waverly flagging stone two inches thick, completely dressed, and laid in mortar and firmly cemented together so as to be solid and level.
    “ There is to be one slab of sand stone four inches thick and twenty inches wide, and long enough to reach from side to side of said vault inside, said stone to be placed on its edge across the back end of said vault and in front of it, and at a proper distance is to be placed on its edge a clouded marble slab of same length and width and three inches thick, well dressed and polished on the front side ; the two slabs thus set on edge to support the floor of the platform for coffins, which floor is to be of clouded marble flagging, three inches thick, and completely dressed and polished and cemented together so as to make a level, tight floor six feet long, and reaching from side to side of the vault.

      “ 8. All of the above work of said vault tobe made in good workmanlike manner, and the vault to be thoroughly durable and substantial, and be completed on or before the 1st day of June, 1875 ; and any additional work the party of the second part may do that is not named in the above specifications, shall be done without any additional charge therefor.

      “ And the said Samuel Stone does hereby promise and agree to pay said Oscar F. Mehurin & Son for said work the sum of $1,050, as follows: $525 to be paid when the work of said vault is completed; $262.50 to be paid in six months after said work is completed; $262.50 in twelve months after said work is completed, this sum to bear six per cent, interest for the last six months.”
    The fact was undisputed at the trial that the only excavation made for the foundation of the vault was a trench under the outer walls, nine feet'long by eight feet across the ends, two feet wide and two feet deep. The dirt tilling the space between the trenches was not removed.
    It was also conceded that the space in the front wall between the “ solid block of marble ” immediately above the door, and the roof of the vault was filled with four pieces of marble instead of one.
    It was also admitted that no flagging stone was placed under that portion of the vault covered by the platform for coffins, and that no slab of sand or other stone was placed on the edge across the back end of said vault to support the platform for coffins.
    The plaintiff, O. F. Mehurin, testified without objection, that he cut shoulders in the walls for coffin platforms with the defendant’s consent. Both of the plaintiffs testified that the defendant frequently saw the stone and marble while they were engaged in dressing it, and made no objection to it, and expressed himself satisfied with the same.
    ■ The plaintiffs called Allen Coffin as a witness, who testified that he was a builder and had been employed as such for twenty-two years. Whereupon “ plaintiff’s counsel read to witness the provision of the contract, as to the way a foundation was to be built, and asked him to state his opinion, as a mechanic, what kind of a foundation it provided for; whether such foundation was to be under outer walls, or was in addition to include an excavation within the space surrounded by the walls, and tilled with stone and cement, as under the walls.” To this question, counsel for defendant objecting, the court sustained the objection, to which ruling the plaintiffs excepted.

      After the defendant rested his case, the plaintiffs proposed to read sundry depositions to the jury, containing testimony bearing upon the quality of the material that went into the construction of said vault. On objection by defendant the court excluded the depositions and the plaintiffs excepted.
    The court among other things charged the jury as follows :
    “ That the action to be tried by them was founded on a claim by plaintiffs to recover of defendant the price of building a burial vault.
    ■ “ That there was a written contract between the parties, containing specifications as the manner and plan of constructing said vault, and fixing the price to be paid by defendant.
    “ That in the petition of the plaintiffs it was alleged they had performed all the conditions of the contract on their part, which allegation was denied by defendant.
    “ Thus the only issue for the jury was as to performance by plaintiffs according to the terms of the contract.
    “ If the contract has been performed, the plaintiffs may recover. If not, they are not entitled to recover anything. If the work was done substantially according to the contract it is sufficient.

      “ It is claimed by defendant that the contract was not complied with, because the plaintiffs were required to insert one solid block of marble for the gable—one solid marble^ stone. This was made in pieces, and if considered material by the parties that it should be solid, the contract is broken and plaintiffs cannot recover.

      “ Proof that defendant, if he considered this part of the contract material, did not object to the manner of doing the work in its progress will not avail, for the pleadings do not allege any variation or modification of the agreement, and defendant has a right to recover, because the work is not done as ho contracted.

      “ The court further charged that as matter of law, the contract where it provided for a floor within the vault, was to be construed as requiring such floor to be built so as to extend and occupy the entire space within the walls of said vault, and if the jury find such floor had not been made, then the plaintiffs could not recover.”
    The plaintiffs excepted to the several charges of the court as above set forth at the time, and such exceptions are made pari thereof.
    The plaintiffs asked the court before retirement of the jury, to charge as matters of law, the following, viz.:
    I. If the jury find that the plaintiffs entered on the construction of said vault with the intention of complying with the contract, and did construct the same substantially as required by the contract, and as the same was changed by consent of parties during the progress of the work, then plaintiffs are entitled to the contract price, although there may be slight omissions or deviations from the specifications, less the amount which would be required to supply the omissions, or less the difference between the value of the vault as completed, and its value if it had been completed according to contract.
    The jury returned a verdict for the defendant on which judgment was rendered. On error to district court, the judgment was affirmed. It is the object of this petition in error to reverse both judgments.

      J. R. Stanbery and George B. Srnythe, for plaintiffs in error.

      Gibson Atherton, for defendant in error.
   Boynton, Oh. J.

If from the conceded facts, the verdict and judgment ought to have been for the defendant, it is immaterial whether the instructions to the jury were correct or erroneous. Barth v. Clise, 12 Wall. 401. The contract required the excavation for the foundation, to be of- the depth of two feet under the whole vault, filled with lime or other good stone well cemented together so as to make a good substantial foundation for the vault.” This, we think, is the plain meaning of'the language as understood by the parties. That such excavation, and the foundation thus provided for, were not made, was conceded at the trial. It also appeared that the spaee in the front wall between the block of marble which was to bear the inscription, and the roof of the vault was filled with four pieces of marble. The contract stipulated for but one. Here was a very material deviation from tbe terms of the agreement, and a deviation of such a character as to show a substantial non-compliance by the plaintiffs with the stipulation of the contract. Had these facts appeared on the face of the pe-' tition the case would have been so fatally defective as to have entitled the defendant to judgment on the pleadings:. Being admitted at the trial the same result must follow. The performance by the plaintiffs of the stipulations on their part is a condition precedent to payment by the defendant. The first installment was not to be paid until the vault was completed. Substantial completion is indispensable to the right to call upon the defendant to perform the stipulation to pay. No recovery can be had upon a quantum meruit, because, where the contract is express, none can be implied relating to the same subject matter. The principle that conditions precedent to the right to compensation for labor done, or materials furnished, must be substantially performed, in order to put the other party in default, is of universal application, admitting of no exceptions. But technical or unimportant omissions or deviations will not defeat recovery. In the case of Goldsmith v. Hand, 26 Ohio St. 101, the plaintiff’s recovery was sustained on the groundthat the work had been substantially completed according to the terms of the contract.

The judge in his opinion employs language which would lead to the inference that a different rule from the one above stated prevails in regard to building contracts, as respects the performance by the builder; and he cites in support of that view, Hayward v. Leonard, 7 Pick. 181. This case, however, in view of its peculiar facts, is not understood by the supreme judicial court of Massachusetts, as laying down any rule peculiar to building contracts. In Olmstead v. Beale, 19 Pick. 528, after stating the general rule to be, that, where under the contract, performance by one party is to precede payment by the other, no recovery could be had either upon the contract, or upon an implied assumpsit, where the precedent conditions were not performed, the court say, The cases of Hayward v Leonard, 7 Pick. 181, and Smith v. First Congr. Meeting-house in Lowell, 8 Pick. 178, are neither incompatible with, nor exceptions to the rule. It will be found in these and other similar cases, that there was an express or implied assent to the deviations from the contract, or a substantial performance of it. The equitable principle which governs them, and which itself is of recent introduction, only extends to unimportant, accidental and unintentional deviations, which, from the differences of opinion, that so often exist, in relation to the exact requisition in the details of a special contract, had become indispensable to the administration of justice in such eases. Rut where there is an important and voluntary deviation or omission from the contract, the doctrine of Faxon v. Mansfield, 2 Mass. 147, will apply, and the contractor can have no remedy for the materials furnished and the services performed.” Indeed, it was said in Hayward v. Leonard, that, “ when we speak of the law allowing the party to recover on- a quantum meruit, or quantum valebant, where there is a special contract, we mean to confine ourselves to cases in which there is an honest intention to go by the contract, and a substantive execution of it, but some comparatively slight deviations as to some particulars provided for.” The right of the contractor to recover, upon failure to perform, in a case where performance was a condition of payment, by making a compensatory allowance for the loss to the owner resulting from non-performance by the contractor, was denied by the court of appeals of New York, in the very well considered case of Smith v. Brady, 17 N. Y. 173. It was there held that, “when, in a contract for the erection of a building on the land of another, performance is to precede payment and is a condition thereof, the builder having substantially failed to perform on his part, can recover nothing for his labor and materials, notwithstanding the owner has chosen to occupy and enjoy the erection.”

Comstock, J., in announcing the judgment of the court, said: “ The right to recover in such case has never been referred to any doctrine peculiar to such contract. On the contrary, if wo look at the adjudged cases, we shall find that the right, whenever asserted by judicial tribunals, has been supposed to result from a general doctrine applicable as well to other contracts,” . . . and that “ there can be no injustice in imputing to the contractor a knowledge of'what his contract requires, nor in holding him to substantial performance.” . . . “ If he fails to perform when the requirement is plain, and when he can perform if he will, lie has no right to call upon the courts to make a new contract for him; nor ought he to complain if the law leaves him without a remedy.” The doctrine of this case 'was affirmed in Glacius v. Black, 50 N. Y. 145, where it was said, that although technical, inadvertent and unimportant omissions or defects, would not defeat recovery, substantial performance must be shown.

In the present case the deviation from the contract above mentioned cannot be regarded as slight or non-substantial. The defendant, as' the contract must be construed unaided by any light that extrinsic proof may have thrown around it, stipulated for a solid bed of stone, well cemented together, for a foundation for the vault; and for its front he stipulated for a marble slab or block for the space immediately below the roof, that would materially add to its beauty if not to its strength and durability. To the fulfillment of these stipulations he was clearly entitled. It is quite immaterial whether in the judgment of the plaintiffs or others, the structure, as ¿ompleted, was as durable as the one contracted for or not. It was the right of the defendant to consult his own judgment and taste and to provide for the construction of a vault that would best accord therewith; and having provided by the specifications of his contract for a foundation of a given character, and for one block of marble to fill the gable of the vault, he was entitled to a substantial compliance by the plaintiffs with the terms agreed upon, before he could be called upon to pay any part of the agreed compensation.

It is said, however, that during the progress of the work the attention of the defendant was called to the character of the material being used the manner of doing the work, and that he expressed Himself as satisfied therewith, and thereby waived a strict performance of the contract. There is no doubt that it was perfectly competent for the defendant to assent to any modification or change in the terms of the contract, and that sucli assent, either express or implied, if acted on by the plaintiffs, would be binding upon the defendant Thurston v. Ludwig, 6 Ohio St. 1. But there was no modification or change in the terms of the contract pleaded. The petition counted upon the performance of the original contract. The answer, in effect, denied performance, and the issue thus raised was the' only one involved in the case.

A waiver, by one party to an agreement, of the performance of a stipulation in his favor, is not a performance of that stipulation by another. It is an excuse for non-performance, and as such should be pleaded. Palmer v. Sawyer, 114 Mass. 13. 2 Chitty on Pl. (7th Eng. ed.) 459.

An exception to this rule is said to prevail iii actions by an indorsee against the indorser of a promissory note, where evidence of a waiver of demand and notice is held admissible and sufficient to support an allegation that demand was made, and notice given. Harrison v. Baily, 99 Mass. 620; Pugh v. McCormick, 14 Wall. 374; 2 Greenl. Ev. § 197. See Myers v. Standart, 11 Ohio St. 29. Also, Burgh v. Legge, 5 M. & W. 418. But in other cases the rule prevails requiring the plaintiff to plead the facts necessary to establish the right to recover. And it is no. answer to a failure to plead the necessary facts to say that evidence tending to show a waiver was admitted, without objection; for let this be so, and still it was not the right of the plaintiffs under the issue to have the effect of such evidence determined by the jury. To entitle a party in such case to have the evidence considered as a matter of legal right, he should amend his petition. There is no doubt that-the court, in such a case, may properly direct the jury to find the fact according to the evidence admitted, and order the pleadings to be amended to conform thereto. But the power of the coui’t to admit the evidence and oi’der the amendment, and the right of a party to have the power exercised, are very different propositions. It certainly is not ex’ror for the court in its instructions to the juxy, to dix’ect them to consider sxxch evideixce only as x’elates to the issue made by the pleadings.

Nor did t-lxe court err inx’efusing to permit the witness, Coffin, to give his opinion, as a mechanic, as respects the kind of a foundation for the vault the contract provided for. "W aiving the question as to his qualifications to speak as an expert, it is a sufficient answer to the claim, that in refusing to accept the advice of the witness as to what the contract meant, the court erred, to say, that the record does not disclose what opinion the witness would have expressed. To make the wrongful exclusion of evidence available to the party offering it, the record should show, affirmatively, what the evidence would have been, in order to determine whether prejudice to the party resulted from its exclusion. Gandolfo v. State, 11 Ohio St. 114; Oviatt v. State, 19 Ohio St. 573.

It is finally objected that the court erred in refusing to permit the plaintiffs to read in rebuttal the depositions of sundry witnesses relative to the character of the materials furnished for the vault. In excluding the depositions the court did not err. The answer, although specifically enumerating the particulars in which the work and material failed to conform to the contract, amounted only to a general denial of the averment of the petition, that the plaintiffs had performed the condition of the contract by them to be performed. It contained no new matter, and hence needed no reply. Simmons v. Green, 35 Ohio St. 104.

The burden of proof was on the plaintiffs. The attitude of the defendant was purely defensive. A party upon whom the affirmative of an issue devolves is bound to give all his evidence in support of the issue in the first instance, and he can only give such evidence in reply as tends to answer the new matter introduced by his adversary. Any. relaxation of this rule is but an appeal to the sound discretion of the court in which the issue is tried. This is the rule laid down in Graham v. Davis, 4 Ohio St. 362, and in its application to eases of this character needs but to be stated to secure assent to its correctness.

Judgment > affirmed.^


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    James F. Chalfant et al. v. The State ex rel.
    Longview Asylum, though a public, is not a State institution, within the meaning of sec. 2, art. 7, of the constitution, which requires the trustees of such institutions to be appointed by the governor ; and sec. 2 of the act of April 5,1878 (75 O. L. 98), providing for the appointment of directors of the asylum otherwise than by the governor, is not in conflict with the above provision of the constitution.
    Error to the District Court of Hamilton County.
    The original action was in quo wa/rra/nto, on relation of the prosecuting attorney of Hamilton county, against James P. Chalfant, Andrew J. Mullane and Balthaser Roth, charging them with un lawfully holding and exercising the offices of directors or trustees of Longview Asylum.
    The defendants severally answered and set up their respective titles as directors of the said asylum, under appointments duly made under section 2 of the act of April 5,1878, entitled an “ Act to provide for the reorganization, government and better regulation of Longview Asylum,” &c. The appointment of one of the defendants was made by the judges of the court of common pleas; of another by the probate court; and of the other by the county commissioners, as provided by section 2 of the act above referred to.
    The answers were demurred to by the relator, the demurrers sustained, and judgment of ouster rendered against the defendants.
    The object of the present petition in error is the reversal of this judgment.

      George K. Nash, attorney general, for plaintiff in error.

      Asa W. Waters and Aaron F. Perry, for defendant in error.
   White, J.

The plaintiffs in error, defendants below, derive their title as directors of Longview Asylum by appointment under section 2 of the act of April, 5, 1878, providing for the reorganization, government and better regulation of that institution. 75 O. L. 93.

The section is as follows:

“ The directors of said asylum shall be residents of Hamilton county, and shall be appointed as follows: two ,by the governor, upon the approval of the senate, one for the term of one year, and the other for the term of two years, and one by the judges of the court of common pleas of Hamilton county, for the term of three years, and one by the judge of the probate court of Hamilton county for the term of four years, and one by the commissioners of Hamilton county for the term of five years: provided, that after the above named terms shall expire, their successors shall be appointed by the authorities hereinbefore mentioned, and they shall hold their offices for the term of five years, and until their successors are elected and qualified.” ...

The title of the plaintiffs in error was adjudged invalid in the court below on the ground that the above section of the. statute was in conflict with section 2, article 7, of the constitution. The provision of the constitution is as follows :

Sec. 2. The directors of the penitentiary shall be appointed, or elected in such manner as the general assembly may direct ; and the trustees of the betievolent and other state institutions, now elected by the general assembly, and of such other state institutions as may be hereafter created, shall be appointed by the governor, by and with the advice and consent of the senate.” . . .

At the time of the adoption of the constitution the state had established and owned an asylum for the insane, and institutions for the education of the deaf and dumb, and of the blind of the state. The directors or trustees of these institutions were then elected by the general assembly. This power was withdrawn, by the constitution, from the general assembly and vested in the governor, with a like power in regard to such other state institutions as might be thereafter created.

The constitutional provision evidently refers to institutions belonging to and owned by the state, and not to such as might belong to particular municipalities or counties, though established under the legislative authority of the state.

Under acts of the general assembly, Longview Asylum was founded by Hamilton county, from funds raised by local taxation on the property in that county; and all the property belonging to the institution is admittedly owned by the county.

The grounds upon which it is claimed to be a state institution are that the state has contributed to its support; that it is governed by the laws of the state; and, moreover, that it is made the duty of the state, by the constitution, to foster and support institutions for the benefit of the insane, blind, deaf and dumb.

While it is true this duty is imposed on the state, yet, it is left to the wisdom of the general assembly to determine the character of the institutions through which the benefit is to be conferred.

There is no constitutional inhibition against authorizing a county, or the municipalities of the state establishing such institutions. All institutions for these purposes are not required to be state institutions ; but when state institutions are created for the purpose, the constitution requires the trustees to be appointed in the mode therein provided.

The provision has no application to institutions for these purposes founded by individuals, or particular localities, under authority granted for the purpose. Nor do such institutions become state institutions from the fact that they are subject to legislative government and control. All institutions and corporations created for public purposes are subject to be thus governed.

Nor is the character of the institution affected by the fact that the legislature has contributed to its support. The institution was created to administer in a particular county a public charity, which the state is enjoined to foster, and there is no inhibition against the general assembly giving it such aid as it may deem just. '

The ease of the State ex rel. v. Oglevee, Auditor (36 Ohio St. 211), is relied upon in support of the judgment. The question in that case was,whether an appropriation for Longview Asylum, in the act of April 15, 1880, required for its validity the vote of two-thirds of the members of each branch of the general assembly. It was claimed on behalf of the defendant that the appropriation was the payment of a claim, on behalf of Hamilton county, within the meaning of sec. 29, art. 2, of the constitution. This was held not to be the case, and the appropriation not coming within that provision of the constitution no objection existed to its validity. It was said that the object of the appropriation was the support of a public institution which the constitution enjoins upon the general assembly. All that was meant by this was that Longview Asylum, being for the benefit of the insane, was one of the institutions which it was the duty of the general assembly to foster and support. That the institution was a public one was not questioned. Whether it belonged to the county or the state was not considered ; nor was it material to the point decided.

Judgment reversed, the demurrers to the answers overruled, and judgment will be entered for the plaintiffs in error.


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    The State of Ohio v. George K. Pardee.
    The receiving of stolen goods of the value of $35, knowing them to be such, with intent, by concealing the same, to induce the owner to pay to the receiver money for the return of the goods to him, is a crime within the meaning of section 26 of the crimes act of March 7, 1835.
    Exceptions by the prosecuting attorney to the Court of Common Pleas of Summit County.
    George K. Pardee was jointly indicted in the court of common pleas of Summit county, with one David Croy, under section 26 of the crimes act of 1835 (S. & C. 112), which provides: “ That if any person shall receive or buy any goods or chattels of the value of thirty-five dollars or upwards, that shall have been stolen or taken by robbers, knowing the same to have been stolen or taken by robbers, with intent to defraud tbe owner,” &c. The defendants were charged in the indictment with having received on May 30, 1877, at the said county, certain goods and chattels of the value of $540.59, the property of one John Ileib, which had been recently stolen, knowing the same to have been stolen, with intent to defraud the owner. At the October term, 1877, of said court, Pardee being tried separately, the state offered testimony tending to prove the larceny of the goods, as alleged in the indictment, and that Pardee was acting as attorney for the thief after his arrest for said larceny, and that Ileib, the owner of the goods, had offered, by publication, a reward of $50 for the return of said goods. Evidence was also offered by the state, “tending to prove that said George IL Pardee and David Croy, having knowledge that said goods had been stolen as aforesaid, acquired information, from said thief, where said goods were secreted ” (in the city of Akron, in said county), “ and with the consent and direction of said thief, they, the said Pardee and Croy, jointly received and removed said goods to another place of concealment in said city of Akron, on 31st day of May, 1877, where they remained until the 9th day óf June, 1877, when they were discovered on search by an officer acting under and by virtue of a search warrant.” Evidence was also produced by the state tending to prove “that before said defendants received said stolen goods, and during the time they were keeping them concealed as aforesaid, they were endeavoring to persuade and induce the owner of said property to deposit sixty dollars with some third party to be paid over to defendants upon the’delivery of said goods to said owner—defendants saying to said owner that it would cost about the sum of sixty dollars to send a man out of the state to find the goods and bring them back.” Also, “ that a portion of said sixty dollars was to have been used in paying certain expenses to be incurred in feigning to send an officer out of the state after said goods; and that a portion of said sixty dollars was to have been paid by. said defendant Pardee to the thief, from whom they, Pardee and Croy, learned where the goods were first hid.”

      The court, among other things, charged the jury: “ In thus fixing the penalty in accordance with the value of the property in the case of receiving stolen goods, we think it was the plain intention of the legislature that the fraud intended towards the owner of the goods is to deprive him of the goods he is charged with receiving.” Also, “If the defendant received the property under the circumstances and in the manner above indicated, and at the time he so received the property honestly intended to return all the property to the owner at some future time, but he did at same time intend to induce the owner to pay to him a reward for such return, such transaction would not constitute the intent to defraud the owner within the meaning of the statute under which this indictment was found.” Again, “An intent to defraud the owner of the property into paying a reward for a return to him of the property, if at the same time he honestly and in good faith intended to return the same to such owner, would not fall within the purview of our statute.” To those instructions the prosecuting attorney excepted, and the verdict having been for defendant, he now asks the opinion of this court upon such exceptions.

      John J. Hall and E. W. Stuart, for plaintiff in error
   McIlvaine, J.

The statute makes it an offense to receive stolen goods, of the value of $35, knowing them to have been stolen, with intent to defraud the owner. According to the view of the v.ourt below, the only fraud intended against the owner, within the meaning of the statute, is one which de prives him of the property so received in whole or in part. In our opinion, this construction of the statute is too narrow. The terms of the statute include every form of fraud upon the owner, of which the receiving may constitute an element. Ilence, the receipt of stolen goods, knowing them to have been stolen, with intent to use the possession thus acquired as a means to induce the owner to pay the receiver money for their return to him, is a fraud within the meaning of the statute. And when such intent exists in the mind of the re ceiver, it. excludes the existence of an honest intention to return the goods to the owner. The right to the possession of stole], goods is in the owner. The immediate and unconditional possession is his right. It is the duty of every one receiving them, knowing them to have been stolen, to return them to the owner, or, at least, to hold them for his use. Hence, it is a fraud against the owner for any one so receiving them to conceal them and withhold the possession from him for the purpose of inducing him, in ignorance of the facts, to pay or agree to pay for their return.

Whether a person receiving stolen goods, knowing them to have been stolen, may rightfully demand a reward, which may have been voluntarily offered for the return of the goods by the owner, is a question not involved in the exceptions before .us. The fraud in this case consisted in receiving the goods, having knowledge of the owner and that the same were stolen, with intent, by concealing the fact of possession in the receiver, to induce the owner to part with other property as a compensation to the receiver for the return of the goods. This was a fraud within the meaning as well as within the words of the statute. See People v. Wiley, 3 Hill, 194, and Berry v. State, 31 Ohio St. 219.

Exceptions sustained.