author: By the Court :

text:
    Ickes v. The State of Ohio.

      When accused may he tried, in his absence — Section 7801, Revised Statutes — Not obligatory upon court to try accused without jury, when — Interpretation of statute.

    Section 7301 o£ the Revised Statutes, which provides “that a person indicted for a misdemeanor may, upon his request in writing subscribed by him and entered on the journal, be tried in his absence or by the court,” does not make it obligatory upon the court to try the accused without a jury.
    (Decided December 21, 1900.)
    Error to the Circuit Court of Licking county.
    The plaintiff in error was indicted for criminal libel, and before his trial came on, he filed in the case, and caused to be entered on the journal of the court, the following waiver of the right to trial by jury: “I, Joseph M. Ickes, defendant in the above case, waive my right to trial by jury upon the charge made against me in this case, and request that I be tried by the court. .Respectfully, Joseph M. Ickes.” When the case came on for trial, as the journal entry shows, the defendant presented to the court the above waiver in writing and demanded to be tried by the court. His application in that behalf was overruled, to which he excepted. The trial, which was had to a jury, resulted in a conviction, which was affirmed by the circuit court. The only ground of error noticed here is that which relates to the refusal of the court to try the defendant without a jury.
    Only such portions of counsels’ briefs are inserted as pertain to the point considered by this court.— Reporter.

      B. G. Smythe; J. B. Waight, and Alfred O. Cassatt, for plaintiff in error.
    By the enactment of section 7301, Revised Statutes, it was the legislative intent to give to an accused a right, and to impose upon the trial judge the duty of acquiescing in that right when requested by the accused.
    If the legislature intended that a defendant should have such right only by the assent of the court, those words or their equivalent would have been inserted in the statute, as they are inserted in other sections for the purpose of giving expression to that intent. For instance:
    Section 5204, Revised Statutes, provides that in civil actions, except in actions arising on contract, the parties, may “by the assent of the court,” waive the jury.

      Section 7301 does not say that a person indicted for a misdemeanor may “by the assent of the court” be tried by the court.
    It is our contention that the legislature intended by enacting section 7301 to confer on the accused a right, and privilege; that it was intended for his benefit exclusively, and not for the benefit of the judge; that the intent was to give the defendant the option to exercise the right or not, and that if necessary to secure to defendant that right and option the word “may” in the statute should have been read as “shall.” 30 Mo., 521.
    Thus in Bouvier’s Diet., title “May“The words ‘shall’ and ‘may’ in general acts of the legislature are to be construed imperatively.” And again:
    “Whenever a statute directs the doing of a thing for the sake of justice or the public good, the word ‘may’ is the same as ‘shall’.” Bouvier L. D., 2 Vol.,150; Railroad Co. v. Mowatt, 35 Ohio St., 284; Sifford, v. Beaty, 12 Ohio St., 189.
    Section 6188, Revised Statutes, provides that “executors and administrators may be allowed the following commissions upon the amount of the personal estate, etc.” Sec. 6578, Rev. Stat.; Pope v. Pollock, 1 Circ. Dec., 193, 1 O. C. C., 347; 2 Cal., 412; City of N. Y. v. Furge, 3 Hill, 612; Lord v. Veazie, 50 U. S. (9 How.), 250; 5 Minn., 148; Railroad Co. v. Commissioners, 35 Ohio St., 1, 2.
    No good reason can be given why a common pleas judge should have the power, especially in a misdemeanor, to defeat a prisoner’s desire not to be tried by the jury. A prisoner and his counsel will not elect to waive the jury except for good cause. They are in a better position than the judge to know whether the prisoner can have an impartial trial before the jury. If the prisoner and his counsel after investigaing the surroundings desire to go to trial before a conscientious and learned judge alone why should the judge defeat that desire?
    Is it a discretion indeed which lie exercises. Then on what is the discretion predicated?
    The disposition of judges, as is well known, would be to shirk the responsibility of trying such cases alone, and seldom indeed would the prisoner’s request be acquiesced in by the judge if the option is with him.
    Section 7316, Revised Statutes, it has been decided in Craig v. State, 19 Ohio St., 115, gives to a defendant the right to waive a jury when the offense charged against him is murder. He may plead guilty. He has the option to do so, and if he does, he thereby waives the jury and compels the judge to try the case, to hear witnesses for and against him, and to render judgment accordingly.
    A prisoner has the right in any trial, in any court, to be tried with or without a jury, and the court is. authorized and required, at the election of the prisoner, (at least) in crimes of the lessor grade,to try him Avithout a jury, although there may not be a statute specially authorizing that mode of trial. But in the case at bar the court was fully authorized and required by statute to try the case without a jury.
    In behalf of Mr. Ickes we claim that independent of section 7301, Revised Statutes, his waiver of a jury and request to be tried by the court should have been sustained.
    The notion that a jury cannot be waived in a criminal case is founded on the constitutional provision that “the right to trial by jury shall remain inviolate,” and therefore to allow the jury to be waived would infringe upon that provision. Article 1, section 10,, of our constitution.
    The constitution itself in terms merely guarantees to the accused a right of trial by jury, and does not prohibit any other mode of trial. It does not prohibit a trial without a jury. Its language simply guarantees a right, and it does not impose a command upon a defendant or the court. Section.5 of that instrument provides simply that “the right of trial by jury shall be inviolate,” and section 10, provides that “in any trial, in any court, the party accused shall be allowed * * * to have a speedy public trial by an impartial jury.” The constitution does not say that a defendant shall be tried by jury. State ex rel. v. Cincinnati, 20 Ohio St., 18.
    If it is a defendant’s right to be tried with a jury it is his right to be tried without a jury. It is not his right to be tried with a jury if it is compulsory on him to submit to a jury. “The right of trial by jury belongs exclusively to the accused.” 46 Conn.,. 356.
    A right is something within the control of a man’s will. Webster defines a right as “that Avhich one has a legal claim to exact.” “In rights lie one’s positive powers. There are no rights AArhatever without corresponding duties.” Coleridge, 5 Iowa, 578; 5 Criminal L. Mag., 670; Abbott T. Briefs, 177; State v. Sackett, 38 N. W. Rep, (Minn.), 773; 1 Metc. (Ky.), 365; Fouts v. State, 8 Ohio St., 98.
    He may Avaive his constitutional right to be present at his trial. Fight v. State, 7 Ohio, 181; Carlisle v. Hetherington, 47 Ohio St., 235; Rose v. State, 20 Ohio, 33; to be confronted with the witnesses against him face to face. Blythe v. State, 47 Ohio St., 234;, 52 Ind., 463; 65 Mich., 288; 61 Mo., 374; He may waive Ms right to defend with counsel, and to have a speedy public trial, etc., and all of these things may be done in the absence of a statute specially authorizing it. 28 Ga., 581; Logan v. State, 12 S. E. R., 406; Work v. State, 2 Ohio St., 296; 51 Iowa, 578; 1 Metc. (Ky.), 365; People ex rel. v. Hanschell, 1 Ill., 109; State v. Potter, 16 Kan., 80; 11 Nev., 128; 51 Ill., 286; 63 Wis., 285; 31 Am. Rep., 34; 33 Am. Rep., 148; Billigheimer v. State, 32 Ohio St., 435; Williams v. State, 12 Ohio St., 622; 167 Cal., 113.

      Thos. W. Phillipps, prosecuting attorney; J. B. Jones, assistant prosecuting attorney, and Samuel M. Hunter, for defendant in error.
    Counsel for the accused, in their brief, seem to attach much importance to section 7301, Revised Statutes. So far as can be ascertained this section has not received a judicial construction by the court of last resort. The grammatical construction of this section is obvious. First: The accused may be tried in his absence. When, and under what circumstances may one accused of a misdemeanor be tried in Ms absence? He may have given a recognizance for his appearance upon the day of trial, but he prefers to be absent. He may not wish to show himself to the court and jury; or he may have forfeited his recognizance and may not care what the trial will result in. Of course, under this section he is to be tried by a jury. Does any one think that this section confers upon the person accused of a misdemeanor the right and privilege to remain out of court and compel the court to try him before a jury in his absence? By this provision he does not waive a jury. So then the gist of this section is, that if one accused of a misdemeanor remains beyond tbe jurisdiction of tbe court, or declines to come into court, and puts bis written request on the journal, tbe court may empanel a jury and try bim in bis absence. In sucb a case, which is to exercise the discretion, the court or tbe accused? Certainly not tbe accused. But suppose tbe ■court orders tbe sheriff to bring in tbe accused so that be may have a fair trial before a jury of bis countrymen, and be protests, and bis counsel except, and tbe trial proceeds in bis presence and tbe jury returns a verdict of guilty, and on bis motion, one of tbe grounds for a new trial is that tbe court would not try bim in bis absence, with what favor would any court look upon that as error prejudicial to bim? He ought not to complain if there has been accorded to bim a legal trial. Tbe trial judge could not, under section 7350, Revised Statutes, -grant to him a new trial unless for some reason materially affecting bis substantial rights. To be tried according to law would not affect bis substantial rights.
    By tbe bill of rights, sections 5 and 10, tbe right to a trial by jury is inviolable, no matter what tbe offense charged is. But tbe legislature has provided that for offenses of a less grade than felony a court may try tbe accused if be waive a jury. By this section tbe accused is simply authorized to waive a jury, but before be can be tried by tbe judge of the court, sucb judge must elect to do so; tbe discretion is in him, and tbe request of tbe accused is not mandatory upon tbe judge, but is simply permissive.
    It is conceded that the word “may” is sometimes construed “shall,” but never except where tbe context clearly requires it. In this section sucb construction would reduce its meaning to an absurdity. Tbe usual meaning must be attached to tbe word “may,” and the construction of the sentence is clear. If the offense is a misdemeanor, the accused may waive his constitutional right to be present and meet the witnesses face to face, or may be present and waive his constitutional right to a trial by jury, and may be-tried by the court.
   By the Court :

Section 7301 of the Revised Statutes, reads as follows: “A person indicted for a misdemeanor may,, upon his request in writing, subscribed by him and entered on the journal, be tried in his absence, or by the court.” And the only question here is whether the court is required on such application to try the accused without the intervention of a jury. We are of opinion that the statute simply confers authority upon the court to try the accused in that class of cases,, and that it is not compulsory upon the court to do so. The statute is declaratory, and was designed to prevent any question being made in regard to the legality of the waiver of the right of trial by jury.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    No. 6066.
    Thompson v. Romig & Company et al.
    (Decided May 15, 1900.)
    Error to the Circuit Court of Tuscarawas county.

      T. H. holler and J. T. Holmes, for plaintiff in error.

      Healea & Greene, for defendants in error.
   Judgment affirmed.


text:
    No. 6069.
    Dodd v. Groll et al.
    (Decided May 15, 1900.)
    Error to the Circuit Court of Henry county.

      W. W. Campbell and E. W. Tolerton, for plaintiff in error.

      James P. Ragan, for defendants in error.
   Judgment affirmed.


text:
    No. 6083.
    Throckmorton v. Reeves.
    (Decided May 15, 1900.)
    Error to the Circuit Court of Ross county.

      J. I.Throckmorton and Frank P. Hinton, for plaintiff in error. • '

      Enos é Johnston, for defendant in error.
   Judgment affirmed.


text:
    No. 6279.
    Ragland v. Bailes.
    (Decided May 15, 1900.)
    Error to the Circuit Court of Jackson county.

      S. F. White, for plaintiff in error.

      A. Leach; John T. Moore; and John Bobbins, for defendant in error.
   Judgment affirmed.


text:
    No. 6355.
    Spellmire et al. v. Bourgmann.
    (Decided May 15, 1900.)
    Error to the Circuit Court of Hamilton county.

      Denis F. Gash and G. H. Spellmire, for plaintiffs in error.
    ■ Barton & Dorger and Edward Barton, for defendant in error.
   Judgment affirmed.


text:
    No. 6438.
    Campbell v. Campbell et al.
    (Decided May 15, 1900.)
    Error to the Circuit Court of Williams county.

      M. M. Boothman, for plaintiff in error.

      J ohn M. Killets and J ohn B. White, for defendants' .in error.
   Judgment affirmed.


text:
    No. 6472.
    O’Farrell v. O’Farrell et al.
    (Decided May 15, 1900.)
    Error to the Circuit Court of Perry county.

      H. D. Oochran and J ohn Ferguson, for plaintiff in error.

      Donahue, Spencer & Donahue, for defendants in error.
   Judgment affirmed.

Shauck, C. J., and Davis, J., dissent.


text:
    No. 6475.
    Horner v. Koons, Admr., et al.
    (Decided May 15, 1900.)
    Error to the Circuit Court of Knox county.

      Hile & Horner, for plaintiff in error.

      William, M. Koons; Gritchfield & Graham and A. B. Melntire, for defendants in error.
   Judgment affirmed on authority of Eckert V-Myers, 45 Ohio St., 525.


text:
    No. 6476.
    Peck, Ex’r, et al. v. Peck, Guard.
    (Decided May 15, 1900.)
    Error to the Circuit Court of Morrow county.

      Jabes Dickey and Theo. S. White, for plaintiffs in error.

      Olds & Olds, for defendant in error.
    Judgment affirmed.


text:
    No. 6485.
    Thompson et al v. Hull et al.
    (Decided May 15, 1900.)
    Error to the Circuit Court of Hancock county.

      O. H. McElroy and George W. Carpenter, for plaintiffs in error.

      Blackford & Blackford, for defendants in error. Judgment affirmed.


text:
    No. 6068.
    Defiance Water Company v. Olinger.
    (Decided May 22, 1900.)
    Error to the Circuit Court of Defiance county.

      Henry and Robert JSfeiobegin, for plaintiff in error.

      Enos & Johnston, for defendant in error.
   Judgment affirmed.


text:
    No. 6494.
    Crew v. Crew et al.
    (Decided May 22, 1900.)
    Error to the Circuit Court of Marion county.

      Dam, Babst and Scofield, Durfee & Scofield, for plaintiff in error.

      W. Z. Davis, for defendants in error.
    Judgment affirmed.
    Davis, J., not participating.


text:
    No. 6537.
    Rafferty v. Armstrong et al.
    (Decided May 22, 1900.)
    Error to the Circuit Court of Cuyahoga county.

      Noble, Pinney & Willard, for plaintiff in error.
    O. C. Pinney and Solders, Hogsett & Tilden, for ■defendants in error.
   Judgment affirmed.


text:
    No. 6538.
    Turner v. Biles & Co.
    (Decided May 22, 1900.)
    Error to the Circuit Court of Hamilton county.

      Charles W. Baker, for plaintiff in error.

      O. Black and Stephens & Lincoln, for defendants in error.
   Judgment affirmed.


text:
    No. 6698.
    Gilt Edge Building & Saving Co. v. Glemser et al.
    (Decided May 22, 1900.)
    Error to the Circuit Court of Hamilton county.

      Drausin Wulsinj Simrall & Galvin; A. H. Bode and William E. Little, for plaintiff in error.

      John G. Healy and P. H. Kumler, for defendants in error.
   Judgment modified as shown by journal entry.


text:
    No. 6084.
    Poll v. Hellebush et al., Ex’rx and Ex'r.
    (Decided June 5, 1900.)
    Error to the Circuit Court of Hamilton county.

      Healy & Brannon and A. J. Cunningham, for plaintiff in error.

      W. A. Hicks and Kramer & Kramer, for defendants in error.
   Judgment affirmed.

Shauck, C. J., and Davis, J., dissent.


text:
    No. 6531.
    Lower, Assignee, v. National Furniture Company.
    (Decided June 5, 1900.)
    Error to the Circuit Court of Cuyahoga county.

      Zangerle, Higley & Maurer, for plaintiff in error.

      Smith & Blake, for defendant in eror.
   Judgment affirmed.


author: Judgment affirmed.

text:
    No. 6536.
    Wagner Lake Ice Company v. Doyle, Surviving Partner.
    (Decided June 5, 1900.)
    Error to the Circuit Court of Erie county.

      Kelly é Merrill, for plaintiff in error.

      T. E. Tarnsney and John F. McCrystal, for defendant in error.
   Judgment affirmed.


text:
    No. 7008.
    State of Ohio v. Embry.
    (Decided June 5, 1900.)
    Error to the Circuit Court of Hamilton county.

      John G. Schwarts, prosecuting attorney, and Oliver B. Jones, for plaintiff in error.

      W. A. Hicks, for defendant in error.
   Judgment affirmed.


text:
    No. 7012.
    Maumee Brewing Company v. Yost, Treas.
    (Decided June 5, 1900.)
    Error to the Circuit Court of Lucas county.

      B. A. Hayes, for plaintiff in error.

      G. E. Sumner, for defendant in error.
   Judgment affirmed.


text:
    No. 6539.
    Brown v. Clough.
    (Decided June 12, 1900.)
    Error to the Circuit Court of Ross county.

      Entrehin & Phillips, for plaintiff in error.

      Henry W. Woodrow, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.


text:
    No. 6088.
    Jones et al. v. Railroad Company.
    (Decided June 12, 1900.)
    Error to the Circuit Court of Seneca county.

      Jesse Stephens and J. G. Royer, for plaintiffs in error.

      J. H. Gollins and McQtmley é Weller, for defendant in error.
   Judgment affirmed.


text:
    No. 6467.
    Conine v. Jones.
    (Decided June 12, 1900.)
    Error to the Circuit Court of Putnam county.

      Sutton & SohmitscTwlte, for plaintiff in error.

      Bailey & Bailey, for defendant in error.
   Judgment affirmed.


text:
    No. 6493.
    Parker et al., Trustees, v. City or Findlay.
    (Decided June 12, 1900.)
    Error to the Circuit Court of Hancock county.

      Marion G. Foster: George H. Phelps and Pendleton & Whiteley, for plaintiffs in error.

      Ross & Kinder and W. F. Duncan, for defendant in error.
   Judgment affirmed.


text:
    No. 6507.
    McKinzie v. France.
    (Decided June 12, 1900.)
    Error to the Circuit Court of Seneca county.

      Cameron & Gameron and John K. Rohn, for plaintiff in error.

      George E. Seney; Milton Sayler and John W. Snyder, for defendant in error.
   Judgment affirmed.


text:
    No. 6731.
    Wagner, Admrx., v. Railway Company.
    (Decided June 12, 1900.)
    Error to the Circuit Court of Fulton county.

      Alonso G. Duer, for plaintiff in error.

      E. D. Potter and Thomas Emery, for defendant in error.
   Judgment affirmed.


text:
    No. 6890.
    Wedow, Admr., v. Marx, Admr.
    (Decided June 12, 1900.)
    Error to the Circuit Court of Cuyahoga county.

      Goulder, Holding & Hasten, for plaintiff in error.

      Orestes C. Pinney, for defendant in error.
   Judgment affirmed.


text:
    No. 6929.
    Brown v. Railway Company.
    (Decided June 12, 1900.)
    Error to the Circuit Court of Lucas county.

      J. P. Crawford and A lonso G. Duer, for plaintiff in «error.

      Doyle & Lewis, for defendant in error.
   Judgment affirmed.


text:
    No. 6970.
    Halbidel, Auditor, v. State ex rel. Boseker & Co.
    (Decided June 12, 1900.)
    Error to the Circuit Court of Wyandot county.

      Benjamin Meek, for plaintiff in error.

      Garter & Goodrich and Beer & Honette, for defendant in error.
   Judgment affirmed.


text:
    No. 6392.
    Adams v. Palmer et al.
    (Decided June 19, 1900.)
    Error to the Circuit Court of Wood county.

      Charles C. Wilson, for plaintiff in error.

      James O. Troup, for defendants in error.
   Judgment affirmed.


text:
    No. 6506.
    Hegler et al. v. Grove.
    (Decided June 19, 1900.)
    Error to the Circuit Court of Jackson county.

      Mills Gardner and John Logan, for plaintiffs in error.

      Van Deman & Chaffin and J. M. McGillivray, for defendant in error.
   Judgment modified as shown by entry. Reversed on rehearing, same case, ante 404.

Williams, J., not sitting.


author: Shauck, C. J.,

text:
    No. 6555.
    Garrett v. Ottinger, Receiver.
    (Decided June 19, 1900.)
    Error to the Circuit Court of Richland county.

      Cummings & McBride; A. C. Voris and E. F. Voris, for plaintiff in error.

      Brucker & Cummins; Sidles & Sidles and Smith & Blake, for defendant in error.
   Judgment affirmed.

Davis, J., dissents.

Shauck, C. J.,

concurs upon the ground that the pleadings not being printed, there is no compliance with section 6711, Revised Statutes.


text:
    No. 6822.
    Korb et al., Commissioners, v. State ex rel. Turpin.
    (Decided June 19, 1900.)
    Error to the Superior Court of Cincinnati.

      Wilson, Cosgrave & Jones, County 'Solicitors; L. W. Goss and W. F. Fox, for plaintiffs in error.

      Smith & Kuhn and Charles Evans, for defendant in error.
   Judgment affirmed.


text:
    No. 7051.
    Geier, for Herself and Others v. Cincinnati et al.
    (Decided June 19, 1900.)
    Error to the Superior Court of Cincinnati.

      F. C. Ampt, for plaintiff in error.

      Ellis G. Kinkead; Wade E. Ellis and George E. Kattenhorn, for defendants in error.
   Judgment of general term reversed and that of special term affirmed.

Minshall, J., dissents.


text:
    No. 7066.
    State ex rel. Lantz v. Bowlus, Mayor.
    (Decided June 19, 1900.)
    In Mandamus.

      J. AL Sheets, Attorney General; Frank W. Geiger and Botoman & Bowman, for plaintiff.

      John L. Zmmerman, for defendant.
   Peremptory writ allowed.


text:
    No. 7067.
    State ex rel. Daniels v. Cott, Director of Accounts.
    (Decided June 19, 1900.)
    In Mandamus.

      M. B. Barnhart, for plaintiff.

      Grum, Butler & Marshall, for defendant.
   Writ refused on the ground that the act of April 16, 1900, “to provide a license on trades, etc.,” is invalid.


text:
    No. 6092.
    Smiley et al., Trustees, v. State ex rel. Harnned et al.
    (Decided June 26, 1900.)
    Eeeob to the Circuit Court of Franklin county,
    O. W. Aldrich, for plaintiffs in error.

      E. B. Wilson, for defendants in error.
   Judgment affirmed.


text:
    No. 6095.
    Fowler, Admrx., v. Putt.
    (Decided June 26, 1900.)
    Eeeob to the Circuit Court of Knox county.

      J. B. Waight, for plaintiff in error.

      Wm. M. Koons, for defendant in error.
   Judgment affirmed.


text:
    No. 6101.
    Muhnhauser, Ex’x, v. Kahnheimer.
    (Decided June 26, 1900.)
    Error to the Circuit Court of Cuyahoga county.

      Meyer & Mooney, for plaintiff in error.

      Lawrence & Estep, for defendant in error.
   Judgment affirmed.


text:
    No. 6346.
    State ex rel. Guilbert, Auditor, v. Akins, Auditor.
    (Decided June 26, 1900.)
    In Mandamus.

      J. ill. Sheets, Attorney General; J. E. Todd, Assistant Attorney General; F. S. Monnett and Smith W. Bennett, for plaintiff.

      W. W. Boynton and W. T. Horr, for defendant.
   Writ refused.


text:
    No. 6465.
    Hillelson et al. v. Cane et al.
    (Decided June 26, 1900.)
    Error to the Circuit Court of Erie county.

      King & Guerin and Phinney & Merrill, for plaintiffs in error.

      H. L. Peehe and George-E. Reiter, for defendants in error.
   » Judgment affirmed.


text:
    No. 6491.
    Warrener et al. v. Henry, Executor, et al.
    (Decided June 26, 1900.)
    Error to the Circuit Court of Athens county.

      Lewis & Sayre, for plaintiffs in error.

      Grosvenor, Jones & Worstell, for defendants in error.
   Judgment affirmed.


text:
    No. 6562.
    Koehler v. Hartinger, Treasurer.
    (Decided June 26, 1900.)
    Error to the Circuit Court of Meigs county.

      Russell & Webster, for plaintiff in error.

      H. G. Fish and E. O. Hecox, for defendant in error.
   Judgment affirmed.


text:
    No. 6583.
    Foster v. Roberts et al.
    (Decided June 26, 1900.)
    Error to the Circuit Court of Jackson county.

      S. F. White, for plaintiff in error.

      Rowell & Eubanlcs, for defendants in error.
   Judgment affirmed.


text:
    No. 6588.
    Hermann v. Wiehe, Guardian, et al.
    (Decided June 26, 1900.)
    Error to the Circuit Court of Hamilton county.

      Theodore Horstman, for plaintiff in error.

      Wm. Hartley Pugh, for defendants in error.
   Judgment affirmed.


text:
    No. 6603.
    Summers v. Craig.
    (Decided June 26, 1900.)
    Error to the Circuit Court of Muskingum county...

      (J. 8. Yandenbark, for plaintiff in error.

      O. T. Marshall, for defendant in error.
   Judgment affirmed.


text:
    No. 6936.
    Coppin, A Taxpayer, v. Hermann et al., Trustees, et al.
    (Decided June 26, 1900.)
    Error to the Superior Court of Cincinnati.

      John G. Healy, for plaintiff in error.

      Ellis G. Kinkead; Wade H. Ellis and Jonas B. Frenkel, for defendants in error.
   Judgment affirmed.


text:
    No. 6418.
    Rose v. Gould.
    (Decided June 29, 1900.)
    Error to tbe Circuit Court of Pickaway county.

      Ent rekin & Phillips; George B. Bitzer and Charles Dresbach, for plaintiff in error.

      Abernethy & Folsom and Paul Jones, for defendant in error.
   Judgment affirmed.


text:
    No. 6597.
    Allen et al. v. Townsend et al.
    (Decided June 29, 1900.)
    Error to tbe Circuit Court of Licking county.

      8. L. James and J. A. Flory, for plaintiffs in error.

      J. R. Davies and C. E. Follett, for defendants in error.
   Judgment affirmed.


text:
    No. 6613.
    Greve, Receiver, v. Reno et al.
    (Decided June 29, 1900.)
    Error to tbe Circuit Court of Hamilton county

      Charles T. Creve and Robertson é Buehwalter, for plaintiff in error.

      Follett & Kelley and Maw May, for defendants in error.
   Judgment affirmed.


text:
    No. 6925.
    McCann v. City of Youngstown.
    (Decided June 29, 1900.)
    Error to the Circuit Court of Mahoning county.

      A. J. Woolf and W. 8. Anderson, for plaintiff in error.

      W. T. Gibson and if. A. Norris, for defendant in error.
   Judgment affirmed.


text:
    No. 7081.
    Walsh et al. v. Sisler, Auditor, et al.
    (Decided June 29, 1900.)
    Error to the Circuit Court of Summit county.

      Charles T. Grant and C. H. Howland, for plaintiffs in error.

      Orland Wilcox and Emory A. Prior, for defendants in error.
   Judgment affirmed.


text:
    No. 7161.
    State ex rel. Attorney General v. Sullivan et al.
    (Decided June 29, 1900.)
    In Quo Warranto.

      J. M. Sheets, Attorney General; Ellis G. Kinlcead and H. K. Rogers, for plaintiff.

      John F. Follett and W. M. A/mpt, for defendants.
   Demurrer to petition overruled and judgment of ouster. Decennial appraisers to be appointed by the auditor of Cincinnati under the “Royer Act.”


text:
    No. 6094.
    Crater v. Schneider.
    (Decided October 2, 1900.)
    Error to the Circuit Court of Tuscarawas county.

      J. F, Wilkin, for plaintiff in error.

      Mitchell & Bowers, for defendant in error.
   Judgment affirmed.


text:
    No. 6646.
    Woodard et al. v. Curtis et al.
    (Decided October 2, 1900.)
    Error to the Circuit Court of Knox county.

      Selwyn N. Owen; W. Stillwell and Oritchfield & Graham, for plaintiffs in error.

      Follett, Kelley & Follett; Cooper & Moore; J. B. Waight, and Critehfield & Devin, for defendants in error.
   Judgment affirmed.


text:
    No. 6715.
    Britton et ux. v. Pennsylvania Company.
    (Decided October 2, 1900.)
    Error to the Circuit Court of Mahoning county.

      R. B. Murray and Charles Koonce, Jr., for plaintiffs in error.

      Carey, Boyle & Mullins, for defendant in error.
   Judgment affirmed.


text:
    No. 6813.
    Crater v. McCleary.
    (Decided October 2, 1900.)
    Error to the Circuit Court of Tuscarawas county.

      J. F. Wilkin, for plaintiff in error.

      Mitchell & Bowers, for defendant in error.
   Judgment affirmed.


text:
    No. 7040.
    Craig v. Railway Company.
    (Decided October 2, 1900.)
    Error to the Circuit Court of Harrison county.

      D. A. Hollingsworth, for plaintiff in error.

      J. Dunbar, for defendant in error.
   Judgment affirmed.


text:
    No. 6960.
    Thomas v. Boyson.
    (Decided October 9, 1900.)
    Error to the Circuit Court of Franklin county.

      W. C. Bates and G. A. Livensperger, for plaintiff in error.

      John J. Chester and A. T. Seymour, for defendant in error.
   Judgment vacated and cause remanded to the circuit court for consideration of bill of exceptions.


text:
    No. 7049.
    Thomas v. Wotring.
    (Decided October 9, 1900.)
    Error to tbe Circuit Court of Franklin county.

      J. D. Sullivan, for plaintiff in error.

      Rankin & Rector, for defendant in error.
   Judgment affirmed.


text:
    No. 7107.
    Collins, Admr., v. Railroad Company et al.
    (Decided October 9, 1900.)
    Error to tbe Circuit Court of Licking county.

      Flory & Flory and S. M. Hunter, for plaintiff in error.

      J. H. Collins and Kibler & Kibler, for defendants in error.
   Judgment affirmed.


text:
    No. 6233.
    Stone et al. v. Owen et al.
    (Decided October 16, 1900.)
    Error to tbe Circuit Court of Franklin county.

      Powell é Minaban; Taylor, Taylor & Taylor and E. P. Hatfield, for plaintiffs in error.

      Booth, Keating & Peters and J. T. Holmes, for defendants in error.
   Judgment affirmed.


text:
    No. 6888.
    Jones Shoe Manufacturing Co. v. Harris, Admr.
    (Decided October 16, 1900.)
    Error to the Circuit Court of Franklin county.

      Powell & Minahan, for plaintiff in error.

      M. B. Barnhart, for defendant in error.
   Judgment affirmed.

Davis, J., dissents.


text:
    No. 7101.
    Diebold Safe & Lock Company v. Younginger, Admx.
    (Decided October 16, 1900.)
    Error to the Circuit Court of Stark county.

      Wilcox é Friend and Clark, Ambler & Clark, for plaintiff in error.

      Wann & Bow and A. A. Thayer, for defendant in error.
   On consideration whereof it is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same hereby is, reversed; and this court proceeding to render the judgment ivhich the said circuit court should have rendered, it is considered that the said judgment of the court of common pleas be, and it hereby is, reversed for error of said court of common pleas in refusing to give the jury the instruction requested by said plaintiff in error as shown on page 181 of the printed record in this case, and it is considered that said plaintiff in error recover its costs herein taxed.

Judgment reversed.

Minshall, J., dissents.


text:
    No. 7274.
    State ex rel. Poorman v. Wilson, Sheriff.
    (Decided October 16, 1900.)
    In Mandamus.

      J. M. Sheets, Attorney General; W. F. Corbett, and Waters & Bayliss, for plaintiff

      J. S. Snook, for defendant.
   Peremptory writ allowed.


text:
    No. 6102.
    Hodge v. McAfee et al.
    (Decided October 23, 1900.)
    Error to the Circuit Court of Greene county.

      T. L. Magruder, for plaintiff in error.

      Little <& Spencer; Won. F. Orr; Marcus Shoup and Hamilton Brothers, for defendants in error.
   Judgment affirmed.


text:
    No. 6105.
    Bowman v. Squire et al.
    (Decided October 23, 1900.)
    Error to the Circuit Court of Lucas county.

      Hurd, Brumback & Thatcher, for plaintiff in error.

      J. Kent Hamilton and Clayton Murphy, for defendants in error.
   Judgment affirmed.


text:
    No. 6108.
    Ammon v. Randolph.
    (Decided October 23, 1900.)
    Error to the Circuit Court of Miami county.

      A. F. Broomhall and Filis E. Kerr, for plaintiff in error.

      A. B. Byrkett; J. A. Davy and McMahon & McMahon, for defendant in error.
   Judgment affirmed.


text:
    No. 6110.
    Akron Street Railway & Illuminating Co. v. City of Akron.
    (decided October 23, 1900.)
    Error to the Circuit Court of Summit county.

      Allen é Cobbs, for plaintiff in error.

      Osborn Esgate, City Solicitor, and A. J. Rowley, for defendant in error.
   Judgment affirmed.

Minshall, Burket and Davis, JJ., dissent.


text:
    No. 6113.
    Trustees of Ohio State University v. Cuppett et al.
    (Decided October 23, 1900.)
    Error to tbe Circuit Court of Scioto county.
    . Frank 8. Monnett; J. W. Bannon and T. C. Anderson, for plaintiff in error.

      E. B. Dillon; N. W. Evans and Duncan Livingstone, for defendants in error.
   Judgment affirmed.


text:
      No. 6551.
    Firemen's Insurance Company v. Smith et al.
    (Decided October 23, 1900.)
    Error to tbe Circuit Court of Montgomery county.

      Craighead & Craighead, for plaintiff in error.

      Gottschall, Crawford & Limbert, for defendants in error.
   Judgment affirmed.


text:
    No. 6561.
    Gramlich et al. v. Kenton National Bank et al.
    (Decided October 23, 1900.)
    Error to tbe Circuit Court of Hardin county.

      George K. Nash; L. G. Addison and Smiek & Hoge, for plaintiff in error.

      Stillings & Stillings; Johnson é Johnson; Frank C. Dougherty; Crow é Durbin; William P. Henderson and George E. Crane, for defendants in error.
   Judgment affirmed.


text:
    No. 6602.
    Bowles, Exr., et al. v. Arnold et al.
    (Decided October 23, 1900.)
    Error to tbe Circuit Court of Hamilton county.

      Milton Sater; Charles Follett and Follett, Kelley & Follett, for plaintiffs in error.

      Swing, Cushing & Morse and George B. Goodhart, for defendants in error.
   Judgment affirmed.


text:
    No. 6920.
    Badger v. Board of Education.
    (Decided October 23, 1900.)
    Error to the Circuit Court of Wyandot county.

      Carter & Goodrich, for plaintiff in error.

      Benjamin Meek, for defendant in error.
   Judgment affirmed.


text:
    No. 7029.
    Railway Company v. Wolski.
    (Decided October 23, 1900.)
    Error to the Circuit Court of Cuyahoga county.

      E. A. Foote and John T. Dye, for plaintiff in error.

      For an, McTigue & Baker, for defendant in error.
   Judgment affirmed.

Davis, J., dissents.


text:
    No. 6120.
    Railroad Company v. Banking Company.
    (Decided October 30, 1900.)
    Error to the Circuit Court of Franklin county.

      J. H. Collins, for plaintiff in error.

      Rankin & Rector, for defendant in error.
   Judgment affirmed.


text:
    No. 6126.
    McGugin et al. v. Railway Company.
    (Decided October 30, 1900.)
    Error to the Circuit Court of Lawrence county.

      McMahon & McMahon and John Hamilton, for plaintiffs in error.

      B. D. Marshall and Lawrence Maxwell, Jr., for. defendant in error.
   Judgment affirmed.


text:
    No. 6129.
    Rees v. Cleveland Rolling Mill Company.
    (Decided October 30, 1900.)
    Error to the Circuit Court of Cuyahoga county.

      Brinsmade & Armstrong, for plaintiff in error.

      Williamson, Gushing & GlarJc and Wilcox & Friend, for defendant in error.
   Judgment affirmed.


text:
    No. 6130.
    Upham Manufacturing Company v. Warrington et al.
    (Decided October 30, 1900.)
    Error to the Circuit Court of Hamilton county.

      H. P. Lloyd, for plaintiff in error.

      William W. Prather, for defendants in error.
   Judgment affirmed.


text:
    No. 6605.
    Kidd & Company v. Long, West & Company.
    (Decided October 30, 1900.)
    Error to the Circuit Court of Hamilton county..

      Shay & Gog an, for plaintiff in error.

      Wilson & Herrlinger, for defendants in error.
   Judgment affirmed.


text:
    No. 6615.
    Hinkleman v. Upper Sandusky et al.
    (Decided October 30, 1900.)
    Error to the Circuit Court of Wyandot county.

      A. E. Walton, for plaintiff in error.

      W. R. Hare, for defendants in error.
   Judgment affirmed.


text:
    No. 6627.
    Hartford Life & Annuity Ins. Co. v. Mack.
    (Decided October 30, 1900.)
    Error to the Circuit Court of Richland county.

      Henry G. Hedges and John W. Leidigh, for plaintiff in error.

      ,Tenner & Weldon, for defendant in error.
   Judgment affirmed.


text:
    No. 6628.
    Niman et al. v. National Linseed Oil Company.
    (Decided October 30, 1900.)
    Error to the Circuit Court of Richland county.

      Donnell & Marriott, for plaintiffs in error.

      Laser & Huston, for defendant in error.
   Judgment affirmed.


text:
    No. 6637.
    Paris, Ex'r, v. Coppock et al.
    (Decided October 30, 1900.)
    Error to the Circuit Court of Hamilton county.

      W. A. Hicks and.O. F. Malsbary, for plaintiff in error.

      Ooppoek & Hertenstein, for defendants in error.
   Judgment affirmed.


text:
    No. 6642.
    Sawyer et al. v. Bennett et al.
    (Decided October 30, 1900.)
    Error to the Circuit Court of Hamilton county.

      Howard Douglass and George W. Harding, for plaintiffs in error.

      John R. Holmes and H. L. Cooper, for defendants in error.
   Judgment affirmed.


text:
    No. 6844.
    Upham Manufacturing Company v. Warrington et al.
    (Decided October 30, 1900.)
    Error to the Circuit Court of Hamilton county.

      H. P. Lloyd, for plaintiff in error.

      William W, Prather, for defendants in error.
   Judgment affirmed.


text:
    No. 6444.
    State ex rel. Ames v. Board of Trustees.
    (Decided November 13, 1900.)
    Error to the Circuit Court of Erie county.

      E. R. Daniels and Sherman Culp, for plaintiff in error.

      John Ray and Roy H. Williams, for defendant in error.
   Judgment affirmed.


text:
    No. 6622.
    Fehr v. Ritter et al.
    (Decided November 13, 1900.)
    Error to the Circuit Court of Hamilton county.

      Goebel & Bettinger, for plaintiff in error.
    Shay & Cogan and Arnold Speiser, for defendants in error.
   Judgment affirmed.


text:
    No. 6639.
    Guthrie, Sheriff, v. Upson et al.
    (Decided November 13, 1900.)
    Error to tbe Circuit Court of Ricblaud county.

      Jenner & Weldon, for plaintiff in error.

      Kerr & LaDow, for defendants in error.
   Judgment affirmed.


text:
    No. 6651.
    Railway Company v. Lewis.
    (Decided November 13, 1900.)
    Error to tbe Circuit Court of Licking county.

      Killer & Killer, for plaintiff in error.

      J. B. Jones, for defendant in error.
   Judgment affirmed.


text:
    No. 6654.
    State ex rel. Thompson v. Zimmerman, Supervisor.
    (Decided November 13, 1900.)
    Error to tbe Circuit Court of Greene county.

      E. O. Armstrong; D. I. Worthington and Lee Ram-kin, for plaintiff in error.

      Snodgrass & Shoup, for defendant in error.
   Judgment affirmed.


text:
    No. 6662.
    Bergin v. Dundon.
    (Decided November 13, 1900.)
    Error to the Circuit Court of Franklin county.

      J. E. Safer and L. F. Safer, for plaintiff in error.

      Gf. J. Marriott, for defendant in error.
   Judgment affirmed.


text:
    No. 6664.
    Cincinnati Roofing Co. v. Walton Iron Co.
    (Decided November 13, 1900.)
    Error to the Superior Court of Cincinnati.

      Ed. H. Williams, for plaintiff in error.

      Robertson & Buchwalter, for defendant in error.
   Judgment affirmed.'


text:
    No. 6666.
    Miller v. Overholt.
    (Decided November 13, 1900.)
    Error to the Circuit Court of Wayne county.

      Johnson & Taylor, for plaintiff in error.

      J. E. Snyder and McGlure & Smyser, for defendant-in error.
   Judgment reversed on authority of Felch, Assignee, v. Hodgman, 62 Ohio St., 312, and cause remanded to circuit court for consideration of bill of, exceptions.


text:
    No. 6667.
    Messner v. Heller.
    (Decided November 13, 1900.)
    Error to the» Circuit Court of Wayne county.

      Johnson & Taylor, for plaintiff in error.

      J. E. Snyder and McClure & Smyser, for defendant in error.
   Judgment reversed on authority of Felch, Assignee, v. Hodgman, et al., 62 Ohio St., 312, and cause remanded to circuit court for consideration of bill of exceptions.


text:
    No. 6668.
    Johnson et al. v. Findley, Admr.
    (Decided November 13, 1900.)
    Error to the Circuit Court of Wayne county.

      Johnson & Taylor, for plaintiffs in error.

      J. E. Snyder and McClure & Smyser, for defendant in error;
   Judgment reversed on authority of Felch, Assignee, v. Hodgman, et al., 62 Ohio St., 312, and cause remanded to circuit court for consideration of bill of exceptions.


text:
    No. 6675.
    Lemoine v. Village of Versailles et al.
    (Decided November 13, 1900.)
    Error to the Circuit Court of Darke county.

      Long & Kyle and John C. Ciarle, for plaintiff in error.

      C. W. Studébaleer and A. Caldenoood, for defendants in error.
   Judgment affirmed.


text:
    No. 6676.
    Peoples Building and Loan Company v. Hanson et al.
    (Decided November 13, 1900.)
    Error to the Circuit Court of Ashtabula county.

      Hoyt & Munsell, for plaintiff in error.

      H. E. Starkey, for defendants in error.
   Judgment affirmed for reasons given same case,, 5. Nisi Prius Rep., 162.


text:
    No. 6693.
    Poll v. Oppenheim et al.
    (Decided November 13, 1900.)
    Error to the Circuit Court of Hamilton county.

      A. J. Cunningham, for plaintiff in error.

      Cobb & Howard, for defendants in error.
   Judgment affirmed.


text:
    No. 6672.
    Thompson et al. v. Flaugher.
    (Decided November 20, 1900.)
    . Error to the Circuit Court of Brown county.

      C. Bambach & Son and White & Campbell, for plaintiffs in error.

      Young & Barnes, for defendant in error.
   Judgment affirmed.


text:
    No. 6691.
    Sherman v. Peoples Investment Company.
    (Decided November 20, 1900.)
    Error to tbe Circuit Court of Lucas county.

      B. A. Hayes, for plaintiff in error.

      Smith & Beckwith, for. defendant in error.
   Judgment affirmed on authority of Bassett v. Avery, 15 Ohio St., 299.


text:
    No. 6694.
    Commissioners et al. v. Hutchins et al.
    (Decided November 20, 1900.)
    Error to tbe Circuit Court of Paulding county.

      W. F. Corbett, for plaintiffs in error.

      Snook & Savage and Snook & Wilcox, for defendants in error.
   J udgment affirmed.


text:
    No. 6699.
    Stewart v. East.
    (Decided November 20, 1900.)
    Error to tbe Circuit Court of Licking county.

      C. & C. H. Follett, for plaintiff in error.

      Waldo Taylor, for defendant in error.
   Judgment affirmed.


text:
    No. 6709.
    Smith, Admr., v. Kelley.
    (Decided November 20, 1900.)
    Error to the Circuit Court of Scioto county.

      Lawrence T. Neal, for plaintiff in error.

      J. W. Bannon, for defendant in error.
   Judgment affirmed.


text:
    No. 6739.
    Walker Company v. McTigue, Adm'x.
    (Decided November 20, 1900.)
    Error to the Circuit Court of Cuyahoga county.

      Wilcox & Friend, for plaintiff in error.

      Kerrmsh, Chapman & Kerrmsh, for defendant in error.
   Judgment affirmed.


text:
    No. 7304.
    Cover v. State ex rel. Woodlief.
    (Decided November 20, 1900.)
    Error to the Circuit Court of Clermont county.

      F. Q. Crane and H. L. Nichols, for plaintiff in error.

      Hulick & Bishop and Frazier & Hicks, for defendant in error.
   Judgment reversed on authority of State ex rel. Culvert v. Kinney, ante.


text:
    No. 6529.
    Brodhead v. Railroad Company et al.
    (Decided November 27, 1900.)
    Error to the Circuit Court of Allen county.

      Powell & Minaban and G. B. Adgate, for plaintiff in error.

      Judson Earmón and Doyle & Lewis, for defendants in error.
   Judgment affirmed.


text:
    No. 6656.
    Spry v. Draper, Treasurer.
    (Decided November 27, 1900.)
    Error to the Circuit Court of Scioto county.

      N. W. Evans and Duncan Livingstone, for plaintiff in error.

      James S. Thomas, City Solicitor, and James W. Bannon, for defendant in error.
   Judgment affirmed.


text:
    No. 6685.
    Commercial National Bank v. Pultney Foundry and Engineering Company et al.
    (Decided November 27, 1900.)
    Error to the Circuit Court of Mahoning county.

      Thomas W. Sanderson, for plaintiff in error.

      King, McVey & Robinson; J. R. Johnston and S. D. L. Jackson, for defendants in error.
   Judgment reversed on authority of Andres v. Morgan, Trustee, 62 Ohio St., 236.


text:
    No. 6710.
    Kepner et al. v. Alspach et al.
    (Decided November 27, 1900.)
    Error to the Circuit Court of' Hancock county.

      George H. Phelps and E. T. Dunn, for plaintiffs in error.

      John Poe and J. Frank Axline, for defendants in error.
   Judgment affirmed.


text:
    No. 6713.
    Henline v. Jackson, Ex'r, et al.
    (Decided November 27, 1900.)
    Error to the Cirucit Court of Hancock county.

      John Poe, for plaintiff in error.

      Blackford & Blackford, for defendants in error.
   Judgment affirmed.


text:
    No. 6758.
    Brodhead v. Railroad Company et al.
    (Decided November 27, 1900.)
    Error to the Circuit Court of Allen county.
    • Powell & Minaban, and C. B. Adgate, for plaintiff in error.

      Judson Harmon and Doyle & Letois, for defendant® in error.
   Judgment affirmed.


text:
    No. 6990.
    Kane v. Marble.
    (Decided November 27, 1900.)
    Error to the Circuit Court of Yau Wert county.

      P. R. Kerr and Glenn & Allen, for plaintiff! in error.

      G. L. Marble, for defendant in error.
   Judgment reversed on authority of Buckeye Pipe Line Co. v. Fee, 62 Ohio St., 543, and remanded for consideration of bill of exceptions.


text:
    No. 7014.
    Railway Company v. Zipperlein.
    (Decided November 27, 1900.)
    Error to the Superior Court of Cincinnati.

      Maxwell & Ramsey and 17. W. Ramsey, for plaintiff in error.

      Wright & Wright and J. J. Muir, for defendant in error.
   Judgment affirmed.


text:
    No. 7097.
    Railroad Company v. Suhrwiar.
    (Decided November 27, 1900.)
    Error to the Circuit Court of Lucas county.

      Squire, Sanders & Dempsey and Doyle & Lewis, for plaintiff in error.

      Seney & Johnson, for defendant in error.
   Judgment reversed for failure to give the Fourth Instruction requested.


text:
    No. 6193.
    Kerr v. Westwater, Ex'r, et al.
    (Decided December 4, 1900.)
    Error to tbe Circuit Court of Franklin county,

      A. L. Ralston, for plaintiff in error.

      J. W. Mooney; H. E. Bradley; Gilbert H. Barger; Belwyn N. Owen; G. E. Irvine and Charles J. Pretsman, for defendants in error.
   Judgment affirmed.


text:
    No. 6194.
    Mihalovitch et al. v. Sugar Refining Company.
    (Decided December 4, 1900.)
    Error to tbe Circuit Court of Hamilton county.

      J. Bhroder and Bhay & Cogan, for plaintiffs in error.

      Peck & Bhaffer and Joseph B. Kelley, for defendant in error. '
   Judgment affirmed.


text:
    No. 6327.
    Finney, Admr., v. Newberger et al.
    (Decided December 4, 1900.)
    Error to tbe Circuit Court of Hamilton county.

      Frank B. Finney and W. A. Hicks, for plaintiff in error.

      J. Bhroder, for defendants in error.
   Judgment affirmed.


text:
    No. 6592.
    Burnham, Stoepel & Co. v. Meldrum & Anderson Co.
    (Decided December 4, 1900.)
    Error to the Circuit Court of Seneca county.

      Seney & Sayler and Touvelle, Masters & Adams, for plaintiffs in error.

      Jesse Stephen and J. G. Royer, for defendants in error.
   Judgment affirmed.


text:
    No. 6698.
    Insurance Company v. Cohn.
    (Decided December 4, 1900.)
    Error to the Circuit Court of Cuyahoga county.

      Weed & Meals and Goulder & Holding, for .plaintiff in error.

      Kerruish, Chapman & Kerruish, for defendant in error.
   Judgment affirmed on authority of Coleman & Co. v. Insurance Co., 49 Ohio St., 310.


text:
    No. 6733.
    Martin et al. v. Derschem et al.
    (Decided December 4, 1900.)
    Error to the Circuit Court of Darke county.

      Allread & Teegarden; D. P. Irwin and Devor & De■vor, for plaintiffs in error.

      H. F. Dershem and Anderson & Bowman, for defendants in error.
   Judgment affirmed.


text:
    No. 6220.
    Clark et al. v. Sun Fire Office.
    (Decided December 11, 1900.)
    Error to the Circuit Court of Cuyahoga county.

      White, Johnson, McCaslin é Cannon, for plaintiffs in error.

      C. W. Fuller; Henry G. Ranney and Moses R. Dickey, for defendant in error.
   Judgment affirmed.


text:
    No. 6243.
    Simon v. Railway Company.
    (Decided December 11, 1900.)
    Error to the circuit Court of Darke county.

      Allread & Teegarden and T. C. Miller, for plaintiff in error.

      L.' F. Limbert and John T. Dye, for defendant in error.
   Judgment affirmed on ground that judgment of circuit court involves the weight of the evidence.


text:
    No. 6312.
    Howison v. Kelley, Trustee, et al.
    (Decided December 11, 1900.)
    Error to the Circuit Court of Franklin county.

      Arnold & Morton; J. T. Holmes; W. E. Babcock and Harrison, Olds, Henderson & Harrison, for plain-, tiff and cross-petitioners in error. '

      J. W. Mooney, for defendants in error.
   Judgment in favor of Alfred Kelley, Trustee, reversed, and judgment for plaintiff in error. On cross petition of Mary D. Kelley, judgment affirmed.


text:
    No. 6727.
    Bonham, Assignee, Etc. v. Mersman.
    (Decided December 11, 1900.)
    Error to the Circuit Court of Hamilton county.

      Scott Bonham, for plaintiff in error.

      Robertsoy, & Buchwalter, for defendant in error.
   Judgment affirmed.


text:
    No. 6254.
    Hayes et al. v. Hunt, Admr.
    (Decided December 18, 1900.)
    Error to the Circuit Court of Sandusky county.

      B. A. Hayes, for plaintiffs in error.

      H. W. Ingersoll and Hunt & DeRan, for defendant in error.
   Judgment affirmed.


text:
    No. 6270.
    Dodds et al. v. Mather, Executor.
    (Decided December 18, 1900.)
    Error to tbe Circuit Court of Jefferson county.

      John M. OooJc and James O. Bigger, for plaintiffs in error.

      R. G. Richards and David M. Gruber, for defendant in error.
   Judgment affirmed.


text:
    No. 6273.
    Cosgrave v. Hutchinson.
    (Decided December 18, 1900.)
    Error to tbe Circuit Court of Guernsey county.

      Durban & McDermott, for plaintiff in error.

      J. A. Troette, for defendant in error.
   Judgment affirmed.


text:
    No. 6582.
    Hayes et al. v. Hunt, Admr.
    (Decided December 18, 1900.)
    Error to tbe Circuit Court of Sandusky county.

      B. A. Hayes, for plaintiffs in error.

      R. W. Ingersoll and Hunt & DeRan, for defendant in error.
   Judgment affirmed.


text:
    No. 6598.
    Mason v. Smaill et al.
    (Decided December 18, 1900.)
    Error to tbe Circuit Court of Muskingum county.

      W. H. Ball and S. M. Winn, for plaintiff in error.

      J. T. Drew; McHenry & O’Neal and Durban & Mc-Dermott, for defendants in error.
   Judgment affirmed.


text:
    No. 6749.
    Courtright et al. v. Friesner.
    (Decided December 18, 1900.)
    Error to the Circuit Court of Franklin county.

      (}. J, Marriott, for plaintiffs in error.

      Harrison, Olds é Henderson and John S. Fries.ner, for defendant in error.
   Judgment affirmed.


text:
    No. 7108.
    Railroad Company v. Aller.
    (Decided December 18, 1900.)
    Error to the Circuit Court of Lucas county,

      Swayne, Hayes & Tyler, for plaintiff in error.

      Hurd, Br uni bade & Thatcher, for defendant in error.
   Judgments of the circuit court and common pleas-courts reversed for reasons previously stated.


text:
    No. 6260.
    Life and Trust Co. v. Brookmann.
    (Decided December 21, 1900.)
    Error to the Circuit Court of Hamilton county.

      Charles W. BaJcer, for plaintiff in error.

      Cofey & Mallon, and Robertson & Buchwalter, for-defendant in error.
   Judgment affirmed.


text:
    No. 6278.
    Manhattan Life Insurance Company v. Brockmann
    (Decided December 21, 1900.)
    Error to the Circuit Court of Hamilton county.

      Maxioell & Ramsey, for plaintiff in error.

      Coffey & Mallon and Robertson & Buchwalter, for •defendant in error.
   Judgment affirmed.


text:
    No. 6296.
    Hegler v. Railroad Company.
    (Decided December 21, 1900.)
    Error to the Circuit Court of Hamilton county.

      Stephens & Lincoln, for plaintiff in error.

      Maxwell & Ramsey, for defendant in error.
   •Judgment affirmed.


text:
    No. 6301.
    Winslow v. City of Cincinnati.
    (Decided December 21, 1900.)
    Error to the Superior Court of Cincinnati.

      Harmon, Colston, Goldsmith & Hoadly; John F. ~Winslow and Spotswood D. Bowers, for plaintiff in ■error.

      Filis G. Kinhead, Corporation Counsel, and Edward Barton, for defendant in error.


text:
    No. 6695.
    Fulton et al. v. Doty et al.
    (Decided December 21, 1900.)
    Error to tbe Circuit Court of Licking county.

      Flory & Flory and Fulton & Fulton, for plaintiffs in error.

      John M. Swartz and Samuel M. Hunter, for defendants in error.
   Judgment affirmed.


text:
    No. 6759.
    Village of Belmont v. Schooley.
    (Decided December 21, 1900.)
    Error to tbe Circuit Court of Belmont county.

      N. K. Kennon and James M. Reese, for plaintiff in ■error.

      G. L. Weems and H. T. Shepherd, for defendant in ■error.
   Judgment affirmed.


text:
    No. 7084.
    Kelley et al. v. Peabody et al.
    (Decided December 21, 1900.)
    Error to tbe Circuit Court of Greene county.

      M. J. Hartley, for plaintiffs in error.

      Young & Young, for defendants in error.
   Judgment affirmed.


author: Davis, J.

text:
    Russell et al. v. Bruer et al.

      Course of descent of real property controlled by legal title— Trust engrafted on absolute deed may be shown by paroi evidence, when.

    1. The course of descent of real property is controlled by the legal title.
    2. A trust engrafted on an absolute deed may be shown by parol evidence; but the declaration of such trust must be contemporaneous with tne deed, and the evidence beyond a reasonable doubt as to the existence of the trust, and must be clear, certain, and conclusive as to its terms and conditions.
    (Decided January 22, 1901.)
    Error to the Circuit Court of Clark county.
    The facts are stated in the opinion.

      Chase Stewart with whom was George A. Beard, for plaintiffs in error.

      George Arthur, with whom were Cunningham é Boggs,- and Cochran, Rogers & Cochran, for defendants in error.
   Davis, J.

The plaintiffs in error, who are the brothers and sisters and the legal representatives of deceased brothers and sisters of William D. Johnson, deceased, filed a petition in the court of common pleas, for partition of twelve parcels of land belonging to Hannah M. Johnson, deceased, the widow of William D. Johnson, and alleged “that on or about the third day of June, 1875, William D. Johnson died without issue and intestate as to all the real estate in this petition described, of which he died seized, and left surviving him, his wife, Hannah M. Johnson, who as his relict and heir at law acquired title to a part of the real estate hereinbefore described, and to a large amount of personal property. Plaintiffs further say that on or about the twenty-fifth day of May, A. D., 1897, said Hannah M. Johnson, relict of said William D. Johnson, died intestate and without issue, possessed of the real estate acquired by her as relict of the said. William D. Johnson, said real estate of which said William D. Johnson died seized consisting of the first three tracts as described and designated herein, and also possessed of the real estate which she purchased and paid for out of the personal property which, came to her as the relict of the said William D. Johnson, and being the balance of the real estate described, to-wit, the last nine tracts as designated herein.

“There are no children, or their legal representatives living, of the said William D. Johnson and Hannah M. Johnson, they, the said William D. Johnson and Hannah M. Johnson, having both died intestate and without issue as aforesaid.”

To this petition for partition the defendants in error, who are the heirs at law of Hannah M. Johnson, filed an answer and cross-petition, from which it appears that three of these tracts of land came to Hannah M. Johnson by descent, from William D. Johnson, under section 4159, Revised Statutes of Ohio, and under and by virtue of section 4162 of the Revised Statutes of Ohio, descended one-half to the heirs of Hannah M. Johnson and one-half to the heirs of William D. Johnson, from whom said real estate came; and it is alleged that the other nine tracts of land described in the petition came to Hannah M. Johnson, and she acquired title thereto by purchase, and not by descent, devise, or deed of gift. The defendants, therefore, claim the whole of the said nine tracts. Several answers to this cross-petition were filed in which it was alleged that Hannah M. Johnson had inherited from William D. Johnson more than $125,000; that she had repeatedly expressed the desire that in the event of the distribution of said property, in whatever form it was invested, the same should be divided one-half among the brothers and sisters or the legal representatives, of William D. Johnson, and one-half among the brothers and sisters or their legal representatives, of Hannah M. Johnson; that whatever interest said Hannah M. Johnson had in said nine tracts of land in dispute, was treated by her as consisting as a part of the fund which had descended to her from William D. Johnson which, whenever distributed, was to be divided in the manner aforesaid; that during her widowhood Hannah M. Johnson made a partial distribution of the property which so descended to her, according to lier said plan and desire; that several of the said nine tracts were not purchased for investment, but that the said Hannah M. Johnson, to save loss in foreclosure proceedings, had accepted deeds from the sheriff, and that the said real estate, when "so taken for debts, was still held, considered and treated by her as part of the fund which descended to her from her husband, and upon distribution to be divided as aforesaid; and that after the death of said William D. Johnson, the said Hannah M. Johnson received legal advice which she believed, and upon which she relied that all of the property descending to her, if held, treated and invested by her as aforesaid, would in the event of her dying intestate, under the law of Ohio, be divided in the manner she desired, viz: one-half to the brothers and sisters, or their legal representatives, of William D. Johnson, deceased, and one-half to the brothers and sisters, or their legal representatives, of Hannah M. Johnson, deceased.

The final judgment of the court of common pleas was that the defendants in error, as the legal representatives of the deceased brothers and sisters of Hannah M. Johnson, took all of the said nine tracts of land by descent, at her death, under the third clause of section 4159 of the Revised Statutes. The circuit court having affirmed that judgment of the court of common pleas, the plaintiffs in error now seek to reverse the judgments of the court of common pleas and the circuit court.

It is so well settled in this state that the descent of real property is controlled by the legal title, that it would not be profitable to continue the discussion here. Brower v. Hunt, 18 Ohio St., 311; Stembel v. Martin, 50 Ohio St., 495; Higgins v. Higgins, 57 Ohio St., 239; Ellis v. Ellis, 3 C. C. Rep., 186. Hannah M. Johnson acquired the nine tracts of land now in controversy by purchase and not by descent, devise or deed of gift. The land Avas not property “which came to such intestate from any former deceased husband,” Revised Statutes, Sec. 4162; but it Avas purchased by the intestate Avith money Avhich Avas hers to consume, squander, invest, give aAvay or bequeath, as she might choose. The personal property Avhich she acquired from her deceased husband’s estate became hers in absolute right. None of the parties to' this action could have any claim to it except by some act of hers, or upon her death. If she chose to convert it into real estate, none could gainsay her. The deeds Avhich she obtained Avere not deeds of gift from.William D. Johnson, but were deeds of purchase from the several grantors; and.they are conclusively such. Patterson v. Lamson, 45 Ohio St., 77.

If Mrs. Johnson engrafted upon her absolute estate an express trust in favor of the collateral heirs of herself and her deceased husband, as the law stands in this state, that might be shoAvn by parol evidence; but the evidence must be beyond reasonable doubt as to the existence of the trust, and must be clear, certain and conclusive as to its terms and conditions. Miller v. Stokely, 5 Ohio St., 194; Stall v. Cincinnati, 16 Ohio St., 169. Nevertheless the declaration of the trust must be contemporaneous with the deed. As Avas said by Dickman, J.: “It is proper that the parol declarations Avhereby it is created should be contemporaneous Avith the conveyance upon which the trust is to be engrafted. If subsequent and not contemporaneous, the door might be open to constant frauds upon the right of property. When the conveyance is absolute on its face, it Avould be unsafe and contrary to the rules of evidence, to permit a third person, — a stranger to the instrument — to use the parol admissions or declarations of the grantor, made long after the conveyance, for the purpose of divesting the grantee of his rights by fastening a trust or incumbrance on the estate.” Harvey v. Gardner, 41 Ohio St., 647, 648.

These settled principles of the law enable us to say with a degree of positive assurance that not only was Hannah M. Johnson the owner of the land in controversy, by purchase, but also that she did not engraft upon her title a trust that the land should descend at her death,- one-half to the brothers and sisters, and. their legal representatives, of William D. Johnson, and one-half to the brothers and sisters and their legal representatives of Hannah M. Johnson. There is in the record an utter absence of any allegation or proof of any act or declaration by Mrs. Johnson, contemporaneous with the deeds, clearly and unqualifiedly creating such a trust and defining its terms and conditions. The allegations that she at some time indicated a desire that such should be the course of descent, and that she went so far as to consult counsel who advised her that the law would so distribute the property, and that she had treated the land as a part of the fund which had descended to her from her deceased husband, are of no significance. Acting on such mistaken advice she did nothing, by way of conveyance or will, to carry out her wish, and so her intention, if she had such intention, failed of fruition.

The judgments of the circuit court and of the court of common pleas are therefore.

Affirmed.

Shauck, C. J.; Minshall, Williams, Burket and Spear, JJ., concur.


text:
    Bruer et al. v. Johnson et al.

      Mile that descent of real property follows the legal title— Does not apply to personal property — Section Jfl6%, Rev. Stat. — Descent of estate by former husband or wife — Result where owner of personal property mingles same with com- ' mon fund which is to follow statute.

    The rule which prevails as to real property, that descent follows the legal title, does not apply to personal property; and where the owner of personal property, intending and desiring that it shall descend, upon the death of such owner, according to the provisions of Revised Statutes, section 4162, mingles the same in a common fund with property which is specifically within the terms of said section, and makes a partial distribution in accordance with such intention and desire, such fund is impressed with a trust that it shall so descend, and upon the death of the owner such fund will descend according to the provisions of section 4162.
    (Decided January 22, 1901.)
    Error to tbe circuit court of Clark county.
    The facts appear in the opinion.

      George Arthur, with whom, were Cunningham & Boggs and Cochran Rogers & Cochran, for plaintiffs in error.

      Chase Stewart, with whom were John L. Zimmerman and George A. Beard, for defendants in error.
   Davis, J.

This case was begun in the court of common pleas of Clark county, by the administrator of the estate of Hannah M. Johnson, deceased, to obtain the decision of the court as to the manner in which the personal property in the hands of such administrator should be distributed. The facts are very similar to those stated in Russell et al. v. Bruer et al., ante, 1, the chief difference being that this case involves the descent of personal property, instead of real property, as in the case referred to. The following finding by the court presents the essential facts, which must be considered in deciding the case:

“That the said Hannah M. Johnson, at the time of the death of said William I). Johnson, had no separate estate or property of her own, and that thereafter she never acquired any, excepting that which came to her from the said William D. Johnson, and such as she acquired with the proceeds and income thereof; that with the proceeds of a part of the personal property which came to her from said William D. Johnson she purchased real estate; that she did not set apart nor invest the personal property which came to her from said William D. Johnson as a separate fund, but that she commingled the proceeds thereof with the interest thereon and with the rents and income from the real estate in one common fund, and made disbursements therefrom without regard to the source from which it came, but she had been advised and believed and desired that all the real estate and personal property of which she should die possessed would pass and descend under the provisions of section 4162 of the Revised Statutes of Ohio, one-half to her brothers and sisters or their legal representatives, and one-half to the brothers and sisters or their legal representatives of the said William D. Johnson, and about ten years before her death, having given $15,000 to his blood relations, she gave the same amount to her blood relations; and it was her express desire that the value of the real estate and personal property of which she might die possessed should not be less than the value of the estate received by her from him; that of the personal property of which the said Hannah M. Johnson died possessed, 140 shares in stock of the First National Bank of Springfield, Ohio, and the household goods, books and pictures came to her from the said William D. Johnson under section 4159 of the Revised Statutes of Ohio; that the remainder of said personal property did not so come to her from him in the identical form in which the same was at the time of her decease, but such remainder is the proceeds of personal property which so came to her from said William D. Johnson, and is the remainder of the personal estate which came to her from the said William D. Johnson under the provisions of section 4159 of the Revised Statutes of Ohio.”

The circuit court decreed that the administrator should distribute the personal estate of Hannah M. J ohnson, as follows: One-half to the brothers and sisters, or their legal representatives, of said Hannah M. Johnson, and one-half to the brothers and sisters, or their legal representatives, of William D. Johnson.

The rule in Ohio that the course of descent of real property is controlled by the legal title, does not apply to personal property. The owner of personal property may, and generally does, acquire the title thereto in parol, and he may sell and transfer in parol, and as has been aptly said by a text writer of authority, “if he can transfer it by parol, there is no reason why he may not by parol transfer it upon such lawful terms, and to such uses and trusts, as he may desire. It has been so ruled in express decisions in the United States. When a person sui juris orally or in writing explicity or impliedly declares that he holds personal property in presentí for another, he thereby constitutes himself an express trustee.” Perry on Trusts, section 86.

The finding of the circuit court discloses that Mrs. Johnson not only mingled the property which came to her from her deceased husband with the proceeds thereof and interest thereon and with rents and income from the real estate which she possessed, in one common fund; but that she did this in the belief and desire that all of the personal property, and real estate as well, of which she should die possessed should and would descend, one-half to her brothers and sisters, or their legal representatives, and one-half to the brothers and sisters, or their legal representatives, of her deceased husband, William D. Johnson. In partial fulfillment of this desire and intention she gave to her husband’s relatives $15,000, and the same amount to her own relatives. Although, for the reasons stated in Russell et al. v. Bruer et al., referred to above, she failed in the accomplishment of her desire as to her realty, we see no obstacle to carrying out her purpose as to the personalty. On this she has clearly and intentionally stamped the character of property which came to her under the provisions of section 4159, and became thereby- a trustee for the beneficiaries so indicated, and upon her death it descended according to the provisions of Revised Statutes, section 4162. The judgment of the circuit court will be.

Affirmed.

Shauck, C. J. and Bukkbt, J., concur.


text:
    Reed et al. v. Ginsburg & Sons. Same v. Frank H. Blodgett. Same v. David E. Blodgett.

      Railroad mortgages and liens — Lien of mortgage on railroad covering after acquired property attaches, when, — Mechanic’s lien for labor and material in improving real estate is subsequent to the lien of mortgage on after acquired property, when — Act of April 6, 1883 — Section 320S, Rev: Stat.— Law of mechanic’s lien.

    The lien of a mortgage on a railroad covering after-acquired property, attaches at the time of the acquisition of the property, subject to all rights against the property then existing; but the lien of a mechanic’s lien for labor and materials used in making improvements on real estate after the title to such real estate was acquired by the mortgagor, is subsequent to the lien of such a mortgage on after-acquired property, when such mortgage was executed oefore the passage of the Act passed April 6, 1883, now section 3208 of the Revised Statutes, and before the acquisition of the property, and was recorded before such materials and labor were furnished.
    (Decided January 22, 1901.)
    Error to the circuit court of Alien county.
    The facts are stated in the opinion.

      Harmon, Colston, Goldsmith & Hoadly and Doyle cf Lewis, for plaintiffs in error.
    Certain propositions may be assumed as settled. We understand they are not questioned.
    A recorded mortgage, given by a railroad company on its roadbed and other property, creates a lien whose priority cannot be displaced thereafter, directly by a mortgage given by the company, nor indirectly by a contract between the company and a third party for the erection of buildings or other works of original construction. Railway Co. v. Hamilton, 134 U. S., 296; 6 O. F. D., 537.
    A mortgage covering a railroad built or to be built, and also all property thereafter acquired and used as part of the same, attaches to such property the moment it is acquired by the mortgagor. Coe v. Peacock, 14 Ohio St., 187; Coopers & Clark v. Wolf, 15 Id., 523; Dunham v. Railroad Co., 68 U. S. (1 Wall.), 254; Thompson v. Railroad Co., 132 U. S., 68; Central Trust Co. v. Kneeland, 138 U. S., 414; Wade v. Railroad Co., 149 U. S., 327.
    The mortgage, when it so attaches to after-acquired property, is inferior and subject to all liens and equities which existed upon it at the time it was acquired by the mortgagor or -which arose from the acquisition itself. Harris v. Bridge Co., 90 Fed., 322.
    It may be conceded, therefore, that if the Ginsburg lien had existed when the company acquired title to the property, it would prevail against the mortgage, although the latter was long prior in date. It may even be conceded, for argument’s sake, that if Ginsburg had, when the company obtained the title, already commenced the performance of a contract on whose completion he would, be entitled to a lien, such lien, when duly taken, would reach back and prevail over the mortgage. But the Ginsburgs are not helped by this. The company had acquired title and consequently the lien of the mortgage had attached long before the Ginsburgs appeared on the scene.
    The exact proposition they must maintain is that, no matter what the terms or conditions of a mortgage may be, a subsequent statute giving certain liens priority to the mortgage operates to displace such mortgage on property to which it has attached, when such property was acquired after the passage of the, law, in favor of liens the right to which arose and was perfected after the mortgage had so attached.
    We submit that there is neither reason nor authority in favor of this proposition, and that its application would, moreover, in this case, cause the law in question to contravene section 10, article 1 of the federal constitution, which prohibits the states from passing any “law impairing the obligation of contracts.”
    The act of 1883, giving a lien to certain persons for work and material on railroads cannot have a retroactive effect so as to displace liens already created and recorded.

      Feike v. Railroad Co., 12 C. C. R., 362, 5 Circ. Dec., 640; Kelley v. Kelso, 5 Ohio St., 198; Bernier v. Becker, 37 Ohio St., 72.
    The act, section 3208, Rev. Stat., to be valid at all, must be construed to mean as if Avritten: “Shall have precedence o\rer any lien taken or to be taken, after the passage of this act;” othenvise it would be, for this reason, unconstitutional.
    Section 3286 authorizes a mortgage on its property. Section 3287 authorizes a mortgage upon its property and income, and such mortgage may include personal as Avell as real property. Section 3288 relates to the recording.
    This mortgage or trust deed embraced in its terms as fully as did the one before the court in the case cited, “all the following present and future to be acquired property of the company.”
    The present mortgage embraced all property, including additions, extensions, branches, now owned or hereafter to be acquired; it included all the income of the property, all franchises and all legal and equitable interests.
    When it acquired the right'of way for this extension in 1893, as between the railroad company mortgage if the same is recorded in the recorder’s and the mortgagee, that right of way became subject to the lien of the mortgagee.
    Rails and ties, and other structures placed on that right of way, became a part of the railroad, and also subject to the mortgage, as much as would a house on a mortgaged lot.
    Any statute is unconstitutional as impairing the obligation of contracts which introduces a change into the express terms of the contract or its legal construction, or its' validity, or its discharge. The extent of the change is not material; any impairment of the contract is unlawful. Black’s Const. Law, p. 525; Bank v. Sharp, 47 U. S. (6 How.), 301-27; Life Ins. Co. v. Richardson, 77 Fed., 395; Am. & E. Enc. Law, Vol. 15, p. 1047; Note Vol. 10 L. R. A., page 405; Bronson v. Kinzie, 42 U. S. (1 How.), 311; Phinney v. Phinney, 4 L. A. R., 348; Yeatman v. King, 2 N. D., 421; Railroad Co. v. Hamilton, 134 U. S., 296, 10 Sup. Ct. Rep., 546; 6 O. F. D., 537.
    The state cannot interfere with the remedy given by existing laws to enforce a contract when the consequence is an impairment of the creditors’ rights. This doctrine has perhaps been more frequently enunciated and applied in the cases of an attempted statutory extension of the mortgagor’s right to redeem, made after the mortgage has been executed. Scobey v. Gibson, 17 Ind., 580; Inglehart v. Wolfin, 20 Ind., 32; Rucker v. Steelman, 73 Ind., 390; Ex parte Pollard, 40 Ala., 77; Collins v. Collins, 79 Ky., 88; Coddington v. Bispham, 36 N. J. Eq., 574; Car

      gill v. Power, 1 Mich., 369; Maloney v. Fortune, 14 Iowa, 417; Phinney v. Phinney, 81 Me., 450, 4 L. R. A., 348.
    Railway bonds were secured by deed of trust. The legislature endeavored to give a preference in the earnings to claims which before the enactment of the law, had no lien on such earnings. It was held that: Receiver v. Stanton, 86 Tex., 620; Phinizy et al. v. Railroad Co. et al., 63 Fed., 923; Crowther v. Fidelity Ins., Trust & Safe Co., 85 Fed., 41, 42 U. S. App., 701; Central Trust Co. v. Continental Iron Works, 51 N. J. Eq., 605, 28 Atl., 595; Nelson v. Railroad Co., 8 Am. Ry. Rep., 82; Trust Co. v. L. St. L. & T. R. R. Co., 70 Fed. Rep., 282.

      Gable & Parmenter and J. M. McGillivray, for defendants in error.
    We maintain the,decrees of the lower courts are correct for two reasons:
    1. At the time the Ohio Southern Railway Company executed its mortgage, 1881, it had no authority to mortgage or acquire any property in Clinton or Greene counties, Ohio, and the finding of said mortgage in said counties would not thereby make the same a lien on said extension, by virtue of, the after-acquired property clause therein contained.
    2. Should we be in. error as to the above proposition, and said mortgage became a lien on said Jeffersonville extension by reason of its provisions and the recording thereof as above stated, still we maintain the lien of said mortgage is subordinate to the said lien of defendants in error, and this is true notwithstanding the mortgage may have been filed fojr record at a date prior to. the delivery of the rails by defendants in error. Jones on Corp. Bonds and Mortgages, Sec. 105; Hatry v. Railway Co., et al., 1 C. C. R., 426, 1 Circ. Dec., 238; Meyer v. Johnson, 53 Ala., 237; 64 Ala., 603; 28 N. J. Equity (1 Stewart), 49; Coe v. Midland R. Co., 31 N. J. Equity, 145; Branch et al. v. Jessup, etc., 9 Am. & Eng. R. R. Cases, 558 (U. S. Sup. Ct. Jany. 15th, 1883.); Spies v. Railroad Co., 40 Am. & Eng. R. R. Cases, 401 (U. S. Cir. Ct. Southern Dist. of N. Y. Oct. 10, 1889); Thomp. on Corp., Sec. 6197; Rapalje & Mack’s Digest, Vol. 6, 425, et seq Coe v. Railroad Co., 4 Am. & Eng. R. R. Cases, 520, s. c. 34 N. J. Equity, 266; Calhoun v. Railroad Co., 9 Cent. Law Journal, 66; Rutherfoord v. Railway Co., 35 Ohio St., 559; Williamson v. Railway, 28 N. J. Equity, 277, 29 N. J. Equity, 311; Brooks et al. v. Railway Co., 101 U. S., 443; Railway Co. et al. v. Lewton, 20 Ohio St., 401; Harris v. Youngstown Bridge Company et al., 90 Fed Rep., 322.
    All the argument of counsel for plaintiff in error as to statutes being retroactive has no application to this case. They overlook the fundamental principle of the law that no man or corporation can give a mortgage upon property not by them owned; and that when a mortgage so given does eventually become effective and attach to something, it is subject to and restricted by the laws' in force at the then time and not some fifteen years prior when the mortgage had no force or effect upon the property thereafter sought to be held under it.
    The provision contained in the mortgage that it is to include property to be thereafter acquired by the mortgagor, does not create a lien upon such property at othe time of the execution of the mortgage, because neither a person or corporation can mortgage property which is not then in existence.

      Hence section 10, article 1 of the federal constitution has no application to this case. Rousculp v. Railroad Co., 10 C. D., 621, 19 C. C., 436; Cooley’s Const. Limitations, 6th Ed., pages 438-463; Pierce v. Emery, 32 N. H., 484; United States v. Railroad Co., 79 U. S. (12 Wall.), 362; Beall v. White, 94 U. S., 382; Beach on Eq. Jur., Sec. 817.
    The difference between counsel in this cause is easily stated: Our opponents assume and contend they have some rights to said branch which we are trying-to take away, while we deny that even today they have any interest in .the distribution of funds arising from the sale of said branch, because of never having acquired a lien thereon.
    Whether this be true or not may be immaterial in view of the fact that:

      a. A mortgage takes effect and becomes a lien upon the property described in it, not from the date of its execution, but from the date of its being delivered to the recorder of the proper county for record. Sections 3289, 4133, Bev. Stat.

      b. The date of execution of a mortgage is an immaterial matter, in a contention of priority between it and another lien. “As to third persons, mortgages have no effect either at law or in equity until delivered to the recorder of the proper county for record.” Bloom v. Noggle, 4 Ohio St., 45; Coe v. Railway Co., 3 0 Ohio St., 390; Doherty v. Stimmel, 40 Ohio St., 298.
    It follows, therefore, that until the mortgage was recorded, it was not a lien as against third parties, and as it did not take effect until after the passage of the act of April 6, 1883, it became a lien (if at all) subject to the provisions of that act, and as the liens under that act are prior to any lien “taken or to be taken,” they are superior to that of said mortgage.
    The trust company, as to this Jeffersonville branch, stands in no different or better position from what it would occupy if its mortgage had been executed in the spring of 1894. Jones on Corp., Bond and Mortgages, Sec. 105; Hatry v. Railroad Co., 1 C. C., 434, 1 Circ. Dec., 238; Meyer v. Johnson, 53 Ala., 237; Coe v. Railway Co., 31 N. J. Eq., 145; Branch v. Jessup, 106 U. S., 468; Spies v. Railroad Co., 40 Am. & Eng. R. Cas., 401; Coe v. Railroad Co., 34 N. J. Eq., 266.

      e. Subsequently acquired property, in order to find its way under an “after-acquired property” clause must be described in the mortgage; to use the language of Justice Brewer, “It is settled that such a clause is valid, and that thereby the mortgage covers not only the property then owned by the railroad company, but becomes a lien upon all property subsequently acquired by it which comes within the description in the mortgage.” Trust Co. v. Kneeland, 138 U. S., 414, 7 O. F. D., 1.
    And again — the after-acquired property must be “appurtenant” to said line of railroad — note the language, “and all other property of every kind or nature, appurtenant to the said line of railroad, whether now held and owned by the party of the first part, or hereafter to be acquired, and particularly including all its coal and other lands and mines.”
    And as one tract of land cannot be appurtenant to another tract, one railroad or piece of a railroad cannot be appurtenant to another railroad. Phila v. Railway Co., 58 Pa. St., 253.

      d. If said branch was described in said mortgage and found its way under it, in virtue of the “after-acquired” property clause, then the rule is that “a mortgage intended to cover after acquired property can only attach itself to such property in the condition in which it comes into the mortgagor’s hands. If the property is already subject to mortgages or other liens, the general mortgage does not displace them, although they may be junior to it in point of time. It only attaches to such interest as the mortgagor acquires; and if he purchase property, and give a mortgage for the purchase money, the deed which he receives and the mortgage which he gives are regarded as one transaction, and no general lien impending over him, whether in the shape of a general mortgage or judgment or recognizance, can displace such mortgage for purchase money.

      United States v. Railroad, 79 U. S. (12 Wall.), 362; Harris v. Bridge Co., 90 Fed., 322; Williamson v. Railway, 28 N. J. Eq., 277, 29 N. J. Eq., 311; Montgomery v. Keppel, 75 Cal., 128; Irrigation Co. v. Garland, 164 U. S., 1.
    And in the light of the further fact that under the act of March 20, 1889, sections 3201, 3202, 3203, 3204, 3205 and 3206, Rev. Stat. Mr. Blodgett being a contractor constructing said branch, was authorized to hold possession of the same until he was paid, as against the Ohio Southern Railroad Company; he took the necessary steps to fix his lien but was prevented from retaining possession by the appointment of the receiver, and seizure of the road by the court.
    If it be suggested that this act is unconstitutional, the answer has already been given — the rights of the railroad company, and of the trust company (if any it had) were acquired in 1894, and subsequent to the passage of the act. This matter was before the Supreme Court of the United States, where it was held: “In Iowa a mechanic’s lien has preference over a prior recorded mortgage.” Brooks v. Railway Co., 101 U. S., 443.
   Davis, J.

The several defendants in error are claiming a preference in the application of the fund arising from the sale of the Ohio Southern Railroad under a decree of foreclosure. The plaintiffs in error are the purchasers of the railroad on behalf of the holders of the first mortgage bonds and the Central Trust Company of New York. The fund is insufficient to pay the amount of the outstanding first mortgage bonds, with the interest, and the defendants in error insist that mechanics’ liens for materials and labor furnished by them respectively, in the construction of the Jeffersonville branch of the Ohio Southern Railroad are prior to the lien of the holders of the first mortgage bonds. The circuit court so held. 19 C. C., 436."

On May 23, 1881, the Ohio Southern Railroad Company made a mortgage or trust deed to the Central Trust Company to secure four million dollars of bonds. It was provided that 1920 bonds of $1,000 each should be issued immediately, and the remainder at the rate of $15,000 a mile for each and every mile of completed railroad, branch, extension or addition in excess of one hundred and twenty-nine miles, or when the purchase money of said bonds should be deposited in a suitable depositary, to be used only for the purpose of constructing, etc., said line, or any "branch or extension thereof. The property mortgaged was described as “all and singular the line of railroad of the party of the first part, extending from the city of Springfield in the county of Clark, in the state of Ohio, through the counties of Clark, Madison, Fayette, Highland, Pike, Ross, Jackson, Gallia and Lawrence, in said state, to the village of Rockwood in said county of Lawrence, and to all branches, additions and extensions pertaining thereto * " * all materials and other supplies for the constructing, operating, maintaining, repairing or replacing, or for the operating, or improvement of the said railroad or any part thereof, or any part of its equipments or appurtenances. Also all rights, powers, privileges and franchises connected with or relating to the said line of road or the construction and maintenance, operation or improvement thereof, and all other property of every kind or nature pertaining to the said line of railroad whether now held and owned by the said party of the first part or hereafter to be acquired.” It was provided that the liens of the bondholders as between themselves should be equal in priority.

In article 8 of said trust deed it was provided that the party of the first part “covenants and agrees that the entire- proceeds of the sale of bonds secured hereby shall and will be faithfully and exclusively applied to the redemption of the one million dollars of bonds lately issued by the Springfield Southern Railroad Company, to the building, constructing, completing, equipping, extending, renewing, and replacing of the said railroad and branches. * * * And that the said money shall not be appropriated to or used for any other purpose or purposes whatsoever.”

This mortgage was filed for record in Fayette county on the 26th of May, 1881, and it was filed for record in Greene county, June 22, 1894, and in Clinton and Warren counties somewhat earlier, these with Fayette county being the counties in which what was known as the Jeffersonville branch was located. It appears from the record that the railroad company acquired the right of way to the Jeffersonville branch by contract in 1883, and received deeds therefor during the year 1894. The defendants in error furnished materials and did work for the construction of the Jeffersonville branch from March, 1895, to May, 1895, and perfected mechanics’ liens on the Ohio Southern railroad in May, 1895.

It does not appear in the record that any of the money paid for these bonds was actually applied to the construction of thé Jeffersonville branch, nor does it definitely appear that it was not. But although the trustee, The Central Trust Company of New York, and the railroad company may not have applied the money strictly as provided in the trust, yet the holders of bonds purchased in the open market cannot be made to suffer for their delinquency. They should, at least, stand with equal favor before the court along with material men and laborers, so that the money furnished under this mortgage creates as strong an equity, appealing as forcibly to the conscience of the court, as that created by the furnishing of labor and materials.

The question made in this case is whether the mechanics’ liens of the defendants in error are prior to the lien of the mortgage aforesaid upon the after-acquired property of the Ohio Southern Railroad, namely, the Jeffersonville branch. The circuit court seems to have based its conclusion upon a proposition of law stated by Taft, J., in the case of Harris v. The Youngstown Bridge Co., 90 Fed. Rep., 322, to the effect that a mortgage covering after-acquired property attaches only to such interests as the mortgagor has at the time the mortgagor acquires the title thereto. This had been decided in many cases before the one mentioned, and the proposition is not controverted in this case by anyone. It is even conceded that if the defendants in error had, when the company obtained thé title to the Jeffersonville branch, already commenced the performance of a contract on the completion of which he would be entiled to a lien, such lien when duly taken would reach back and prevail over the mortgage. But just here the point of contention arises. When did the railroad company acquire title to the Jeffersonville branch? The circuit court seems to have assumed that the title was not acquired until the construction of the branch was completed, and that the lien of the. defendants in error accrued in the acquisition of the property. If the circuit court had taken the trouble to read carefully the opinion of Taft, J., in the case cited, it probably would not have relied upon that case as authority for the judgment which it rendered. For example this: “It follows that the lien given by the after-acquired property clause of the first mortgage attached to the rights of way in the streets immediately upon the passage of the ordinances, and that improvements upon the rights of way only increased the security by becoming a part of the realty. The lien asserted by Harris, trustee, on this part of the terminals, did not arise in the act of acquisition, but only in the improvement after acquisition. * * * It was the ordinance which passed the title, and not the laying of the tracks by its authority.” Harris v. The Youngstown Bridge Company, 90 Fed. Rep. 332.

We take this to be the law, and applying that principle to the present case, the Ohio Southern Railroad Company acquired the title to the Jeffersonville branch when it acquired its right of way in 1893 and 1894. The claims of the defendants in error arose, not in the act of acquisition, but in making the improvements on the property after the acquisition, in the year 1895. If the case stood thus, there could be little doubt that the lien of the first mortgage was prior to the mechanics’ liens. But what effect has the intervention of the statute of 1883, being now section 3208 of the Revised Statutes of Ohio? If the statute be prospectively construed, that is to say, if we construe it as though it should read “shall have precedence over any lien taken or to be taken after ihe passage of this act,” then it is contended that the mechanics’ liens are still prior to the liens under the mortgage, because the right to a mortgage lien on the Jeffersonville branch was not acquired until the title in the Jeffersonville branch was acquired and the mortgage was recorded in the counties through which it runs, that is, in 1894, so that the statute would give priority to those mechanics’ liens over a mortgage thus “taken” after the passage of the act. But the answer to this is that the contractual right of the plaintiffs in error to have a lien under the mortgage, was acquired at, and dated from, the time of its execution in 1881, and simply attached to and became operative upon, the after-acquired property, on the acquisition of the property in 1894. The argument that the mortgage on after-acquired property is operative only as a contract to mortgage and that a new mortgage must be executed in order to acquire a lien in behalf of the bondholders on that property, is untenable and hardly calls for analysis. But whether the instrument of 1881 be a mortgage or a contract for a mortgage, it must be conceded that it conferred a contractual right upon the bondholders to have the first lien on the after-acquired property, and hence, if the statute of 1883 be construed so as to defeat that right, then the statute is retroactive, and impairs the obligation of the contract, and it is so far unconstitutional and void.

We therefore conclude that the court of common pleas and the circuit court were in error in deciding that section 3208 does not violate any contract obligation held under and by virtue of this mortgage; and, in holding that it is not retroactive as to the mortgage of 1881, if it be held that, by force of the statute, the mechanics’ liens of the defendants in error have priority thereto.

The judgment of the court of common pleas and that of the circuit court are reversed and judgment is rendered for the plaintiffs in error.

Reversed.

Shauck, O. J.; Burket and Spear, JJ., concur.

Minshall and Williams, JJ., dissent.