author: Wanámaker, J.

text:
    Gibbs v. Village of Girard.

      Municipalities not insurers of safety of streets and sidewalks— But required to keep same in reasonably safe condition— Right of trial by jury inviolate—Cause for damages presents jury issue, when—Order of judge to direct verdict—Violation of right of jury trial, when—Question of ordinary care.

    1. Municipalities are not insurers of the safety of their streets and sidewalks, but are required to exercise ordinary care in keeping their streets and sidewalks in a reasonably safe condition for public travel, and a failure of duty in this respect is negligence.
    2. The right of trial by jury, being guaranteed to all our citizens by the constitution of the state, cannot be invaded or violated by either legislative act or judicial order or decree.
    3. A cause of action for damages brought against a village for negligence in the care of its sidewalks, by reason of which it is claimed, plaintiff was injured, presents a jury issue if there is some evidence tending to prove every essential fact necessary ■ to entitle plaintiff to recover; and an order of the trial judge at the close of the plaintiff’s case directing a verdict in favor ,of defendant over the objection of such plaintiff is a denial and violation of the right of trial by jury arid therefore reversible error.
    4. What is ordinary care, what is reasonable safety, and the like, are, in the first instance, usually questions for the determination of the jury under all the evidence and proper instructions - by the court appropriate to the particular circumstances of each case and the issues thereof.
    (No. 13045
    Decided May 6, 1913.)

      Error to the Circuit Court of Trumbull county.
    The plaintiff filed a petition in the court of common pleas of Trumbull county charging the village of Girard with negligence in the care of its sidewalks in the following particulars, to-wit: That on or about the 7th of August, 1909, about the hour of nine o’clock p. m., she was going north on the westerly sidewalk on a street in said village known as State street; that the sidewalk in front of the Stuttler lot was paved with flagstones; that the sidewalk in front of the next northerly lot, known as the Jones lot, was paved with cement; that at the point where the flagstone and cement joined, there was about a two-inch sudden fall or drop causing an offset; that this had been caused by a sewer underneath ,the-cement sidewalk undermining the same and causing the same to fall or depress; that this defective • condition had existed for a period of several years; that it was well known to the village or by the exercise of ordinary care should have been known to said village; that it was not known to the plaintiff; that she was a stranger in the village and to the sidewalk; that it was dark and unlighted at the point of the sidewalk where the injury occurred; that such sidewalk at that point was one of the most frequented and traveled parts of said village and • but a short distance from the business center of the village; that in coming upon such sidewalk at such point the toe of her shoe became caught in the lower part of said walk, whereby she was suddenly and without warning thrown to the ground and .sustained serious injury; that she was all the while in the exercise of ordinary care; that the defect in the sidewalk where such injury occurred was not discernible to her by reason of the darkness aforesaid.
    The village of Girard answered denying all negligence and charging further that if the plaintiff was injured it was by reason of her own negligence - directly or contributing to such negligence as might be found against the village.
    At the close of the plaintiff’s case a motion to direct a verdict in favor of the defendant village was sustained by the trial judge.
    Error was prosecuted to the circuit court, which affirmed the judgment below. Error is now prose-' cuted to the supreme court to reverse the judgments of both -the common pleas and circuit courts.

      Messrs. Pierson '& Casey and Mr. Charles Koonce, Jr., for plaintiff in error.
    The court erred in sustaining the motion of the defendant to direct a verdict in its favor. Village of Cardington v. Admr. of Fredericks, 46 Ohio St., 446; 15 Am. & Eng. Ency. Law (2 ed.), 440, 441; 1 Shearman & Redfield on Negligence, Sec. 350; Goodfellow v. New York, 100 N. Y., 15; Bullock v. New York, 99 N. Y., 654; Heckman v. Evenson, 7 N. Dak., 173; Williams v. West Bay City, 126 Mich., 156; City of Lawrence v. Littell, 9 Kans. App., 130; City of Osage v. Brown, 27 Kans., 130; Laurie v. City of Ballard, 25 Wash., 127; Keen v. Mayor, etc., of Havre de Grace, 93 Md., 34; Dickerman v. Weeks, 108 App. Div., 257; Corson v. New York, 118 App. Div., 679; District of Columbia v. Arms, 107 U. S., 519; Chicago & N. W. Ry. Co. v. Netolicky, 67 Fed. Rep., 672, 14 C. C. A., 615; Giantz v. South Bend, 106 Ind., 305, 6 N. E. Rep., 632; Urtel v. City of Flint, 122 Mich., 65, 80 N. W. Rep., 991; Baxter v. City of Cedar Rapids, 103 Ia., 599, 72 N. W. Rep., 790; City of Aurora v. Cox, 43 Neb., 727, 62 N. W. Rep., 66; Wilkins v. City of Flint, 128 Mich., 262, 87 N. W. Rep., 195; Wedderburn v. City of Detroit, 144 Mich., 684, 108 N. W. Rep., 102; Lamb v. City of Worcester, 177 Mass., 82; Welsh v. Inhabitants of Amesbury, 170 Mass., 437; Town of Watertown v. Greaves, 50 C. C. A., 172, 112 Fed. Rep., 183.

      Mr. Wade R. Deemer and Mr. G. P. Gilimer, for defendant in error.
    The court did not err in sustaining the motion of defendant to direct a verdict in its favor. City of Dayton v. Glaser, 76 Ohio St., 471; Buswell on Personal Injuries (2 ed.), Secs. 53, 168; Chase v. Cleveland, 44 Ohio St., 514; City of Cincinnati v. Fleischer, 63 Ohio St., 234; Durbin v. Napoleon, 11 O. C. D., 584; Kaweicka v. Superior, 136 Wis., 613; Young v. Citz. St. Ry. Co., 148 Ind., 54; Village of Leipsic v. Gerdeman, 68 Ohio St., 7; Town of Gosport v. Evans, 112 Ind., 133; Bennett v. St. Joseph, 146 Mich., 382; Weisse v. Detroit, 105 Mich., 482; Yotter v. Detroit, 107 Mich., 4; Gastel v. New York, 194 N. Y., 15; Hamilton v. Buffalo, 173 N. Y., 72; Butler v. Village of Oxford, 186 N. Y., 444;
      Corson v. New York, 78 App. Div., 481; City of Richmond v. Schonberger, 111 Va., 168, 68 S. E. Rep., 284; Marvin v. New Bedford, 158 Mass., 464; George v. Haverhill, 110 Mass., 506.
   Wanámaker, J.

The sole, single question is— Did the trial court err by directing a verdict at the close of plaintiff’s side of the case and the circuit court likewise err in affirming the trial court’s judgment ?

It will be refreshing and instructive to look at some of the ancient landmarks of America as to trial by jury.-

Article VII of our federal constitution reads: “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.”

Section 8 of Article VIII, Bill of Rights, Constitution of the state of Ohio, 1802, reads: “That the right of trial'by jury shall be inviolate.”

Section 5 of Article I, Bill of Rights, Constitution of 1851, reads: “The right of trial by jury shall be inviolate.”

Judge Ranney, in Work v. The State of Ohio, 2 Ohio St., 297, uses this language: “What, then, is this right-? It is nowhere defined or described in the constitution. It is spoken of as something already sufficiently understood, and referred to as a matter already familiar to the public mind. * * * The constitution furnishes no answer, nor was it necessary that'it should. If ages of uninterrupted use can give significance to language, the right of jury trial and the habeas corpus stand as representatives of ideas as certain and definite as any other in the whole range of legal learning.

“The institution of the jury referred to in our constitution, and its benefits secured to every person accused of crime, is precisely the same in every substantial respect as that recognized in the great charter and its benefits secured to the freemen of England, and again and again acknowledged in fundamental compácts as the great safeguard of life, liberty, and property; the same, brought to this continent by our forefathers, and perseveringly claimed as their birthright, in every contest with arbitrary power, and finally, an invasion of its privileges prominently assigned as one of the causes which was to justify them, in the eyes of mankind, in waging the contest which resulted in independence. Nor did their affection for it then diminish or cool. They made it a corner stone in erecting the state governments; and after the adoption of the federal constitution, without a provision securing it, they did not rest satisfied, until they had proposed and carried an amendment.”

Judge Ranney quotes with special favor the language of Blackstone, as follows: “Upon these accountsl the trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law. And if it has so great an advantage over others in regulating civil property, how much must that advantage be heightened- when it is applied to criminal cases.”

Lest Judge Ranney’s view's upon the trial by jury be misapprehended because the foregoing case was a criminal one, we quote his views in Ellis & Morton v. Ohio Life Ins. & Trust Co., 4 Ohio St., 644. In this case, a motion to direct a verdict, or for non-suit, was made and sustained and the questions involved were reviewed by the supreme court, Judge Ranney rendering the opinion: “The law of every case, in whatever form presented, belongs to the court; and it is not only the right of the judge, but his solemn duty, to decide and apply it. He must determine the_ legal requisites to the right of action, and the admissibility of the evidence offered to sustain it. When all the evidence offered by the plaintiff has been given, and a motion for a non-suit is interposed, a question of law is presented, whether the evidence before the jury tends to prove all the facts involved in the right of action and put in issue by the pleadings. In deciding this question, no finding of facts by the court is required, and no weighing of the evidence is permitted. All that the evidence in any degree tends to prove, must be received as fully proved; every fact that the evidence, and all reasonable inferences from it, conduces to establish, must be taken as fully established.

“The motion involves not only an admission of the truth of the evidence, but the existence of all the facts which the evidence conduces to prove. It thus, concedes to the plaintiff everything that the jury could possibly find in his favor, and leaves nothing but the question whether, as a matter of law, each fact indispensable to the right of action has been supported by some evidence. . If it has, no matter how slight it may have been, the motion must be denied; because it is the right of the party to have the weight and sufficiency of his evidence passed upon by the jury—a right of which he can not be deprived, and involving an exercise of power for which, without his consent, the court is incompetent.”

On the same page, and in the same connection, Judge Ranney further says: “But where he has given no evidence to establish a fact, without which the law does not permit a recovery, he has nothing to submit to the jury; and the determination of the court, that the fact constitutes an essential element in the right of action, necessarily ends the case.”

The importance of this question will allow a further quotation from Judge Ranney’s very excellent opinion: “Our conclusions upon this subject cannot be better stated than in the clear and explicit language of one of the learned judges of the court below: ‘Wherever there is any evidence* however slight, tending to prove the facts essential to make out a case for the plaintiff, a non-suit cannot be properly ordered; it is in no case a question as to the weight, but as to the relevancy of the testimony. If the testimony tends to prove a prima facie case for the plaintiff, a non-suit cannot be properly ordered.’ ”

It is manifest that this doctrine is the one legally known as the scintilla rule. This opinion of Judge Ranney’s was reaffirmed- in- Dick v. Railroad Co., 38 Ohio St., 389. Syllabus: “A motion to arrest the testimony from the jury, and render a judgment against the party on whom the burden of proof rests, involves an admission of all the facts which the evidence tends to prove, and presents only a question of law for the court; but if there is evidence tending to prove each material fact pht in issue, and indispensable to a recovery; it should be submitted to the jury under proper instructions

■ The same doctrine was announced and upheld by Judge Spear, in Cincinnati Street Ry. Co. v. Snell, 54 Ohio St., 197, citing the case of Ellis & Morton v. Ohio Life Ins. & Trust Co., 4 Ohio St., 627.

■ Judge Spear says: “The motion involved an admission of all the facts which the evidence in any degree tended to prove, and presented only a question of law, whether each fact indispensable to the right of' action, and put in issue by the pleadings, had been supported by some evidence. If "it had' been, no matter how slight the evidence; the motion should have been denied, because it was the right of the plaintiff to have the weight and sufficiency of his evidence passed upon by the jury. But if he had failed to give evidence tending-to establish any fact without which the law would not permit a recovery, he had nothing to submit to the jury, and a question of: law only remained. We are aware that this rule is much criticised, and plausible • arguments against its reasonableness have been adduced, but it has been followed uniformly, and should be applied until definitely overruled, or changed by legislation.”

In First National Bank v. Hayes & Sons, 64 Ohio St., 101, Judge Minshall, delivering the opinion of the- court, uses this language: “Thue '.case was tried to a jury, and at the close of the evidence on both sides, the plaintiff -moved the ‘court to instruct the jury to return a verdict in .its favor, and the defendants made a like motion for a verdict in their favor. On consideration the .court instructed the jury to return a verdict for the defendants, to which the plaintiff excepted, .but did not request the court to submit the case to the jury for its determination on the evidence. ■The first question that arises is whether this was .error, though there may have been some evidence ■ tending to support the plaintiff’s case. If no .motion had been made by the plaintiff- and there ,was any evidence tending to support its cáse, it would- have had the undoubted right to have had the same -submitted to the jury, and it would have been error in the court to direct a verdict for the defendants. Of this there can be no question,”

Numerous other citations might be made from •both' supreme and circuit court cases, tracing the history and development and constant reaffirmance of this doctrine, but time and space forbid. We content ourselves merely with the brief statement that.we heartily reaffirm the doctrine.-'

To hold otherwise would not only commit but permit, in a multitude of cases, a sinister' árid indirect invasion and usurpátion of the right of trial by jury. A legislative act impairing it would be clearly unconstitutional. How, then, can a judicial order or judgment-thát indirectly but most effectually defeáts the right of trial by jury, be otherwise than an invasion arid violatiori of a ■party’s rights? The right is merely to have ■questions of fact determined in the first iristance by a jury under proper instructions of the court appropriate to the issues and the evidence. If the jury shall err, the trial judge may thereafter correct the error^ and if he fail to correct it, the higher courts are 'still available. .

- We come now to examine the question as to whether or not there was. some evidence touching or tending to prove each and every material fact -necessary to entitle the plaintiff to recover.

The three grounds upon which the trial judge directed the verdict were as follows: First, that the •plaintiff by her own testimony has raised a presumption. of contributory negligence on her part; second; that the . testimony in this case fails to show any express or implied notice to this defendant of the condition of the sidewalk; third, that' the defect in the sidewalk as shown by the testimony is as a matter of law not such a defect that plaintiff' can recover, and that the court is authorized as a matter of law to say that the village was not negligent in permitting such a defect in the street..

A mere statement of these three questions of fact, the determination of which was squarely and directly taken away from the jury, shows the length to. which trial'courts may go under the guise of law in defeating the right of trial by jury. Ordinarily, the question of negligence, if not one of fact, is of mixed law and fact, and is a proper issue for the determination of the jury. If negligence raises a proper issue for the determination of the jury, certainly contributory negligence must likewise raise a proper issue for the determination of the jury. It will not do to say that the negligence of the defendant was a question for the jury, but that the negligence of the plaintiff with respect to the same transaction, whether you call it contributory or not, was a question for the court. They both involve the question of want of ordinary care in the particular situation and both must be determined by substantially the same rules, of evidence.

In this particular case, however, the plaintiff is walking along in the usual and ordinary way on a perfectly ■ flat, smooth, flagstone sidewalk, when she comes to this point where there is a sudden and immediate two-inch drop. At this point, she testifies: “And I stepped on the walk it seems to me it was higher where my heel was and my toe went down low and when I stepped up my toe went in this place and it threw me this way and I struck on this hip and wrenched this ankle and limb.”

This was about 8:30 in the evening, in the month of August, 1909. The plaintiff was a comparative stranger to the town, and an entire stranger to this walk. The night was sufficiently dark and the arc light far enough removed so that the defect in the sidewalk was not discernible at the time to the plaintiff. Walking along in her usual way under these circumstances ■ she fell and was injured by reason of the condition of this walk.

How then can it be said as a matter of law that she was guilty of contributory negligence?

As to the second proposition, that there was no notice express or implied to the defendant of the condition of the sidewalk, the evidence showed that the sidewalk had been practically in this condition for more than two years; that three or four other accidents, not so serious, however, but accidents, had occurred at this particular place. Can it be consistently' said that these facts furnish no evidence whatsoever as to constructive notice or implied notice to the defendant as to the condition of this walk? The statement of the question suggests its own proper answer.

Third, that the defect in the sidewalk, as shown by the testimony, is, as a matter of law, not such a defect that the plaintiff can recover. If the court may say, as a matter of law, that a two-inch defect is not a defect, it may say that a four-inch defect, or a six or ten-inch defect, .is not a defect upon which to predicate an action for negligence. For the purpose of this motion, the defect must be admitted, and it was a question for the jury to say whether or not the continuation of that defect, for two years or more, under all the circúmstances of the case, was or was not want of ordinary care upon the part of the village to keep its streets in a reasonably safe condition, and whether or not the village knew or ought to have known of that fact. The very fact that the defect was undisputed was some evidence tending, to show, negligence, which, together with all- the other facts and circumstances in the case, cer-' thinly furnishes an issue for the determination of. the jury.

1 True, many .cases can be cited, from other states. holding the contrary doctrine. .In some the-court has directed a verdict where there was a defect or depression in streets or sidewalks of two' inches, .three inches, four inches, five inches, six inches, ■and even more, holding, in ■ such cases, that the defect was a matter of law, assuming, indeed, to make an exception in cases of negligence against municipalities and applying a different rule than .is applied in negligence' cases against private corporations. Obviously, this is not a mathematical question to be decided upon some mathematical or lineal standard; but, on the contrary, it is an ethical question. There is no reason why an exception should be made in favor of municipal corporations, the citizens and taxpayers of which are usually well represented on the jury and' always keen and anxious to protect the rights' of their own municipality.

Special attention has been invited to the Case of City of Dayton v. Glaser, 76 Ohio St., 471, as sustaining the doctrine in support of the judgments below. We approve the rule laid down in the syllabus, which is not at variance with any doctrine announced here; but, so far as the written opinion approves the doctrine laid down in Beltz v. City of Yonkers, 148 N. Y., 67; Grant v. Town of Enfield, 11 N. Y. App. Div., 358; and Morgan v. City of Lewiston, 91 Me., 566, the same is disapproved.

So long as the trial by jury is a part of' our system of jurisprudence its constitutional integrity .and importance should be. jealously safeguarded. The right of trial by jury should be as inviolate in the working of our courts as it is in the wording of our constitutions.

The judgments below are reversed and the cause is remanded to the court of common pleas for a new trial, and such other proceedings as are required by law.

Reversed.

' Johnson, Donahue, Newman and Wilkin, JJ-, concur.


source: Caselaw Access Project

author: Donahue, J.

license: Public Domain

text:
    Edmondson, Auditor, et al. v. Deckebach.

      Contract by county with person—To search for concealed and unassessed taxable realty—Omitted from tax duplicate—Employed searcher to receive percentage of taxes recovered— Searcher not entitled to compensation for taxes collected—• In and for time subsequent to expiration of contract, when —Services rendered after life of contract gratuitous, when— Tax inquisitor—Law of contracts.

    1. A contract made by a county through its proper officers, employing a person to search for and discover concealed and unassessed taxable real estate that had been omitted from the assessment rolls and tax duplicate of that county, upon which property the taxes “are lawfully due and unpaid,” which contract provides that the person so employed is to receive for his services a certain percentage of the taxes actually recovered by the county treasurer from assessments on such omitted real estate and further provides that the compensation agreed upon “shall not be deemed due and owing until the taxes upon such omitted real estate have actually been paid into the county treasury,” does not authorize the payment : 'of any compensation to such person so employed out of . taxes levied and collected on this real estate at and for a time subsequent to the expiration of the term of the contract.
    2. Such contract, by its express terms, relates to and comprehends only the taxes' that then are lawfully due and unpaid upon such omitted real estate, and these taxes not only measure the amount of compensation to be paid him under this contract, but also provide the only fund out of which he can be paid for such .services.

      3. Where, under such contract, omitted property is discovered by the person so employed, and the taxes then due, with penalties, are placed upon the tax duplicate against this property, but these taxes and penalties are never actually paid into the county treasury, the reasons for failure to collect the same are unimportant. In such case, under the express terms of this contract, there is nothing due and owing to the person so employed for his services in securing these taxes and penalties to be placed upon the tax duplicate, and his right to compensation out of these taxes, had they been collected, can not be transferred to other taxes subsequently collected upon the same property.
    4. The right of the person so employed to compensation for his services, under the' terms of this contract, is confined to the services rendered by him during the life of the contract, and any' services rendered by him at a later time, by which he induced a subsequent auditor to make use of the facts discovered by him and place the property on the tax duplicate for a period of years long subsequent to the termination of the contract, must be held to be gratuitous and do not entitle him to be paid out of the taxes collected for these subsequent years for any services rendered during the term of the contract.
    (No. 13903
    Decided May 6, 1913.)
    Error to the Circuit Court of Hamilton county.
    On the 22nd day of January, 1912, George O. Deckebach filed in the superior court of Cincinnati a petition against the plaintiffs in error, averring, among other things, that on the 30th day of April, 1887, he entered into a contract with Herman Goesling, John Zumstein and William Anthony, who then constituted the board of county commissioners of Hamilton county, Fred Raine, auditor, and Frank Ratter man, treasurer, of said county, which contract is as follows:
    “This agreement made and entered into this thirtieth day of April, A. D. 1887, by and between Herman Goesling, John Zumstein’ and William Anthony, members of the board of county commissioners for Hamilton county,- Ohio; Frederick Raine, auditor, and Frank Ratterman, treasurer, of Hamilton county, Ohio (or a majority of said officers) of the first part, and George O. Deckebach of the city of Cincinnati, Ohio, of the second part.
    “Witnesseth, that by this contract the party of the second part is hereby employed and appointed by the party of the first part, to diligently search for and discover in a lawful manner, omitted, concealed and unassessed taxable real estate, that has been omitted from the assessment rolls and tax duplicates of Hamilton county, Ohio, and upon which said property the taxes are lawfully due and unpaid. Said party of the second part shall honestly and faithfully report his said discoveries to the county auditor, with such facts and evidence connected therewith that will enable said auditor to lawfully subject said real estate to taxation, and enable the treasurer to collect taxes thereon.
    “For and in consideration of the above services being done and performed by the party of the second part, as compensation therefor the party of the first part covenant and agree to pay said party of the second part, a sum equal to twenty-five per cent, of the taxes actually recovered by- the treasurer of Hamilton county, Ohio, from the assessment of such omitted real estate and by reason of the discoveries and reports of said party of the second part, provided that said sum of twenty-five per cent, nor any part thereof shall be deemed due and owing until the taxes on such omitted real estate aforésaid has actually been paid into the county treasury. Payments shall be made by the county commissioners upon the certificate of the county treasurer showing the taxes to have been paid into the treasury in compliance with this contract.
    ' “This contract shall continue and be in force for the term of two years from the second day of May, 1887.
    ’ “Witness our hands and seals in duplicate this thirtieth day of April, 1887.”
    That on or about the 15 th day of February, 1888, plaintiff, acting under this contract and in pursuance thereof, furnished to Fred Raine, auditor of Hamilton county, the facts and evidence necessary to authorize him to subject to taxation certain tracts of land in the city of Cincinnati, owned by Cincinnati but leased to private corporations and individuals and not used for public purposes,- and requested said auditor to charge the same as taxable, which property, prior to this date, had entirely escaped taxation and was omitted from the tax duplicate; that, thereupon, said Raine, auditor, did place said omitted property on the tax duplicate for the years 1881 to 1887, inclusive, charging said property and taxes against the lessees of said property, as in his judgment it was proper so to do, in accordance with the provisions of Section 2733, Revised Statutes; that, thereupon, Said lessees brought an action to restrain the county auditor and county treasurer from the collection of the taxes so charged;’ that, upon the trial of said cause • in the common pleas court of . Hamilton county, the injunction was dissolved and the petition dismissed; that an appeal was taken to the circuit court of that county, and that court entered a perpetual injunction against the auditor and treasurer enjoining the collection of these taxes; that this judgment of the circuit court was affirmed by the supreme court; that plaintiff employed counsel prior to the furnishing of the facts and evidence to the auditor to. examine and determine the question as to the taxability of said property, and also to take part in the preparation of the defense of the auditor and treasurer in the injunction suit in the common pleas, circuit and supreme courts, and furnish the facts and evidence necessary to sustain the contention of the county officials that said property was taxable.
    That after this case of Zumstein, Treasurer, v. The Consolidated Coal & Mining Company was decided by the supreme court, this plaintiff requested the then auditor of Hamilton county to use the facts and evidence furnished by him during the existence of his contract, and charge said property and taxes against the city of Cincinnati, and continued to urge upon each subsequent auditor so to charge said taxes against the city of Cincinnati, but the same was not done until the 13th day of January, 1905, when Eugene L. Lewis, auditor, at the request of the plaintiff, did charge said omitted property and taxes on the tax duplicate against the city of Cincinnati, using the facts and evidence furnished by plaintiff in 1888 to the then auditor of Hamilton • county; that this property was still under lease, six of the tenants being the same as in 1888; that in every lease made subsequent to February, 1888, except in one instance, the lease, provided for the payment of taxes, if any, by the lessee.
    That after said property had been so placed on the tax duplicates, the city of Cincinnati brought an action against the auditor and treasurer of Hamilton county to enjoin them from collecting the -same; that such proceedings were had in that cause in the common pleas, circuit and supreme courts- that resulted in a final- judgment refusing injunction and dismissing the city’s petition; that this plaintiff also employed counsel to urge upon the different auditors their right' and duty to charge said property and taxes against the city of Cincinnati, and employed counsel to take part in the preparation of the defense of the injunction suit in all of said courts; that plaintiff furnished the facts and evidence necessary in the hearing of said cases, being the same facts and’ evidence furnished by him to Raine, auditor, in 1888; that afterwards the city of Cincinnati paid to the county treasurer the taxes charged against this omitted property, amounting to $74,369.53; that, notwithstanding the payment of these taxes by the city of Cincinnati, the county auditor, treasurer and commissioners decline to recognize the right of plaintiff to compensation out of the same, in pursuance with the terms of the statute and his contract, and threaten to make distribution of the money paid in as taxes' among the different funds to which these taxes are to be apportioned without paying any part thereof to this plaintiff; that if they are permitted to make such distribution, this plaintiff will be remediless and totally unable to recover compensation due him under his contract.

      Plaintiff asks for an injunction restraining the county treasurer and auditor from distributing these taxes among the different funds without reserving twenty-five per cent, thereof to pay the compensation of this plaintiff, and that upon final hearing the county treasurer be ordered to certify to the county commissioners that the taxes have been paid into said treasury in compliance with the contract of said plaintiff; that the county commissioners be ordered to allow the claim of plaintiff, and for such other and further relief to which plaintiff may be entitled either in law or equity.-
    To this petition the defendants filed the following demurrer: First, that the pretended legislation; upon which the plaintiff’s action is based, is in-violation of Section 26 of Article II of the Constitution of the state of Ohio, and is unconstitutional and . void. Second, the petition does not state facts sufficient to constitute a cause of action against these defendants. This demurrer was overruled by the superior court of Cincinnati, and the defendants, not desiring to plead further, judgment was entered against them, as prayed in the petition. The defendants then prosecuted error iri the circuit court of Hámilton county, and that court affirmed the judgment of the superior court. This proceeding in error is now prosecuted in this court to reverse the judgments of both the circuit and superior courts.
    - Mr.. Thomas L. Pogue, prosecuting attorney, and Mr. John V. Campbell and Mr. Charles A. Groom, assistant prosecuting attorneys, for plaintiffs in error.

      Mr. Rufus B. Smith; Mr. John J. Weitzel and Mr. A. W. Bruck, for defendant in error.
   Donahue, J.

It is admitted that, the statute authorizing the county commissioners, auditor and treasurer to enter into this contract with plaintiff is unconstitutional, but it is insisted, on the part of defendant in error, that legislation of this character had heretofore been held constitutional by this court, that he relied upon such holding in making his' contract and performing the services thereunder, and that, therefore, his claim comes within the doctrine announced in the case of Thomas v. State, ex rel., 76 Ohio St., 341.

Our attention is called to the case of State, ex rel., v. Crites, Auditor, 48 Ohio St., 142, wherein the court held similar legislation constitutional. That case was decided February 24, 1891, and, as plaintiff’s contract was made long before that time, it can avail him but little in support of his contention.

The case of State, ex rel., v. Cappeller, 39 Ohio St., 207, is also cited by counsel for defendant in' error, and it does appear that in that case this court held Section 1 of the act of April 14, 1880 (77 O. L., 205), constitutional, but it does not appear that that act had anything to do with the question in that case. In the August settlement, 1.881, the county auditor sought to withhold from the state its share of costs and counsel fees in suits against the auditor and treasurer in relation to their duty in respect to the collection of taxes, and also certain amounts paid by the county to local collectors for collecting delinquent personal taxes for the years 1869 to 1876, inclusive. Section 1 of the act of April 14, 1880 (77 O. L., 205), applied only to persons employed to ascertain and furnish to .the county auditor facts, and evidence necessary to authorize him to subject to taxation property improperly omitted therefrom prior to the passage of that act, and did not relate, to the employment of persons to assist in the collection of delinquent taxes already charged on the tax duplicate.

The determination of the foregoing question, however, is wholly unimportant to the disposition of the case at bar. Conceding that the defendant in error, when he made and entered into this contract with the officials of Hamilton county, had the right to rely upon the judgment of this court in the case of State, ex rel., v. Cappeller, supra, and that, having done so, he should now be protected under the doctrine announced in the case of Thomas v. State, ex rel., 76 Ohio St., 341, it does not necessarily follow that this defendant in error is entitled to be paid the compensation provided for in his contract out of taxes other than the taxes due and unpaid at the time the services, were performed.

An analysis of this contract shows that plaintiff was employed and appointed by the commissioners, auditor and treasurer of Hamilton county “to diligently search for and discover in a lawful manner, omitted, concealed and unassessed taxable real estate that has been omitted from the assessment rolls and • tax duplicate of Hamilton county, Ohio, and upon which said property the taxes are lawfully due and unpaid.” Out of these taxes, when collected, he was to be paid twenty-five per cent, of the total amount actually recovered by the treasurer of Hamilton county, Ohio, from the assessment of such omitted real estate, and it was specially provided in the contract that “nor any part thereof shall be deemed due and owing until the taxes on such omitted real estate aforesaid have actually been paid into the county treasuryThis contract related to and comprehended only the conditions then existing in Hamilton county, and not with conditions that might exist in 1905. By the clear terms of the contract, the taxes out of which he was to be paid for his services were the taxes that were then lawfully due and unpaid, and not out of taxes that might become lawfully due and unpaid twenty years thereafter. He was not entitled to project this contract to include taxes that might accrue beyond the time limited for its termination. The contract was to continue for two years from the 2nd day of May, 1887, and if, by reason of his services, any of the taxes then lawfully due and unpaid upon omitted .real estate, or any taxes that might become lawfully due and unpaid upon omitted real estate during the term of his contract, should be paid into the county treasury, either before or after the expiration of his contract, he would be entitled out of those taxes, and no other, to be paid the compensation provided in the contract.

It is true that his petition does not state for what years the auditor, in 1905, placed this omitted real estate upon the tax duplicate, but, under the law, it could not have been any of the years preceding the date of the termination of this contract. According to the averments óf his petition, he furnished this information to the auditor on the 15th day of February, 1888, and out of whatever taxes were then lawfully due and unpaid on omitted real property prior to that date and were actually procured to be paid into the county treasury, he would be entitled by the terms of his contract to be compensated, but not out of the taxes paid upon that same property for a later period. Through a mistake of the taxing officer, this omitted real estate, discovered by defendant in error, was placed upon the tax duplicate in the names of persons who were not liable for the payment of the same, and by reason of this error, these taxes, which he had been instrumental in having placed upon the tax duplicate, never were collected and' never can be collected, and thóug'h the failure to collect the same was, probably, through no fault of his, yet under the terms of his contract, he was to be paid only out of these taxes, and cannot, therefore, be paid out of any other.

The services that he was to render the county, under this contract, so far as this property is concerned, ended with the disclosures he made to the auditor on the 5th day of February, 1888. He does aver in his petition that he furnished evidence in the trial of the several cases, that he employed counsel to assist in the litigation, and that, from time to time, he urged upon the various auditors to place this property upon the tax duplicate for years subsequent to 1888. These services were not contemplated in this contract. They were not the services for which he was to be paid. They were rendered long after the expiration of his contract. These services, so far as tne contract is concerned, were voluntary on his part, and cannot affect his legal rights under the contract. When' he furnished this information to the auditor in February, 1888, he was through with the transaction, except that when collected he was to be paid for this service out of the taxes that were then placed upon the tax duplicate by the county auditor in pursuance of the information furnished to him by defendant in error. That was the' only fund out of which he could be paid. The contract specifically so provided. That fund never came into the county treasury. These taxes never were collected and never will be. They are forever lost, not only to the county, but to all persons interested therein, and while it is unfortunate that this defendant in error should lose his compensation, yet it is equally unfortunate that the county must lose the seventy-five per cent, of these taxes that should have gone into the county treasury, and it would be still more unfortunate for the county if, in addition to this loss, it is compelled to pay out of the taxes accruing many years later the defendant in error’s proportion of the original loss.

It is urged that the taxes now collected by the county on this same property would never have been collected but for the services of this defendant in error. That is perhaps' true, and that was in contemplation at the time the contract was made. ” It was undoubtedly the intention of the parties to the contract that this defendant in error seek for and discover omitted real estate upon which taxes were then legally due and unpaid, that the taxes then legally due and unpaid should be placed upon the tax duplicate, and then out of these taxes, and no others, he should be paid for his services. But it was not the intention of either party to the contract that, after that time, notwithstanding the property should still continue upon the tax duplicate and still continue to be taxed, defendant in error should receive any part whatever of these future taxes. In other words, the whole contract, by its specific terms, related to the taxes then due and unpaid, and not to future taxes that might thereafter be charged against this property.

These facts all appearing from the petition, it follows that the superior court of Cincinnati erred in overruling the demurrer to the petition and that the circuit court also erred in affirming that judgment.

Judgment reversed and judgment for plaintiff in error.

Shaucic, C. J., Johnson, Wanamaker, Newman and Wilkin, JJ., concur.


author: Johnson, J.

text:
    Hupp et al. v. The Hock-Hocking Oil & Natural Gas Company.

      Such interpretation of a provision of the constitution—Will be given as will promote the objects of its adoption, when—Amendments Sections 2 and 6 to Article IV of Constitution—Adopted September 3, 1912—Do not revoke jurisdiction of supreme court to review cases—Decided by the circuit court prior to January 1, 1913—In which petition in error was Med in supreme court after that date—Constitutional law—Court procedure.

    1. Such interpretation will be given to a provision of the constitution as will promote the object of the people in adopting it, when such object is clearly indicated in the context, and to this end narrow and technical definitions of particular words will be disregarded.
    2. Rights to invoke the jurisdiction of courts of review, which are secured to litigants by valid laws in force during the progress of a litigation, will not be held to have been afterwards revoked by amendment, unless by express language or by provisions from which it must follow by necessary implication that such result was intended.
    3. The amendments—Sections 2 and 6 to Article IV of the Constitution—adopted September 3, 1912, and which, by the schedule adopted at the same election, went into effect January 1, 1913, do not revoke the jurisdiction of the supreme court to review cases decided by the circuit courts prior to January 1, 1913, in which the petition in error was filed in the supreme court after that date in accordance with the laws in existence at the time of the decision by the circuit court.
    (Decided May 6, 1913.)
    Error to the Circuit Court of Hocking county.
    The original action was ' commenced in the common pleas of Hocking county, and passed to j'udgment in that court in April, 1912. The case was appealed to the circuit court, where judgment was rendered December 30, 1912. Plaintiffs . in error filed their petition in this court Februar}■17,. 1913, to reverse the judgment of the circuit court. Defendant in error has filed its motion to strike from the files, and dismiss the petition in error, “for the reason that the supreme court has no jurisdiction to review the judgment of the circuit court of Hocking county entered therein -on December 30, 1912, This proceeding in error not having been commenced prior to January 1, 1913.”
    •' A number of similar' motions in other cases have been filed in which the same question raised in the motion in this case is presented. All of these motions are considered together. . The various counsel in the different cases have submitted briefs touching the question involved, all of which have been considered.

      Mr. W. E. Sykes; Mr. H. M. Whitcroft; Mr. C. V. Wright; Mr. A. D. Metz; Mr. J. W. Campbell; Mr. Joseph P. Owens; Mr. J. J. Weadock; Messrs. Welty '&* Downing; Mr. Thomas E. Powell; Mr. Edward T. Powell; Mr. E. L. Mills; Mr. Carl Norpell; Mr. David Fording; Messrs. Armstrong, Light S’ Shappell and Messrs. M. B. & H. H. Johnson, for plaintiffs in error.

      Mr. M. A. Daugherty; Mr. B. F. McDonald; Mr. Walter C. Ong; Mr. Charles E. Ballard; Mr. George W. Mannix, Jr.; Mr. D. W. Bowman; Mr. W. N. King; Mr. E. D. Davis; Mr. Joseph Gallagher; Mr. Joseph 0. Frits; Messrs. Grosvenor, Jones & Worsted; Messrs. Sheets & West; Messrs. Owen & Ware and Messrs. Waite & Deaton, for defendants in error.
   Johnson, J.

The ground of the motion is that the amendments, Sections 2 and 6 to Article IV of the Constitution, adopted by the people at the election held in September, 1912, and which, by the schedule adopted at the same election, went into effect Januarjr 1, 1913, deprive this court of jurisdiction to review cases decided by the circuit court prior to January 1, 1913, in which the petition in error was filed in this court after that date.

Prior to the adoption of the amendments referred to, Section 2 of Article IV of the Constitution contained the provision: “It [the supreme court],, shall have original jurisdiction in quo warranto, mandamus, habeas corpus and procedendo, and such appellate jurisdiction as may be provided by law.”

Under the authority therein conferred, Section 12250, General Code, was enacted: “A judgment rendered or a final order made by a circuit court or a judge thereof, court of common pleas or a judge thereof, probate court, insolvency court or a superior court or a judge thereof,- may be reversed, vacated or modified by the supreme court, on a petition in error, for errors appearing on the record.”

Pertinent parts of the amended Sections 2 and 6 are as follows:

“Section '2.' * * * All cases pending in the supreme court at the time of the adoption of this amendment by the people, shall proceed to judgment in the manner' provided by existing law.”
“Section 6. * * * The courts of appeals shall continue the work of the respective circuit courts and all pending cases and proceedings in the circuit courts shall proceed to judgment and be determined by the respective courts of appeals, and the supreme court, as now provided by law, and cases brought into said courts of appeals after the taking- effect hereof shall be subject to the provisions hereof, and the circuit courts shall be merged into, and their work continued by, the courts of appeals.”

The schedule provides: “The several amendments passed and submitted by this convention when adopted at the election shall take effect on the first day of January, 1913, except as otherwise specifically provided by the schedule attached to any of said amendments. All laws then in force, not inconsistent therewith, shall continue in force until amended or repealed; provided that all cases pending in the courts on the first day of January, 1913, shall be heard and tried in the same manner and by the same procedure as is now authorized by law. Any provision of the amendments passed1 and submitted by this convention and adopted by the electors, inconsistent with, or in conflict with, any provision of the present constitution, shall be held to prevail.”

It is insisted that inasmuch as the judgment of the circuit court was rendered prior to January 1, 1913, and the petition in error was not filed in this court before that date, it was not then a “pending case,” and, therefore, not within the saving provision of Section 6, that “All pending cases and proceedings in the circuit court shall proceed to judgment and be determined by the respective courts of appeals, and the supreme court, as now provided by law.”

Was it the intention of the people, when they adopted the amendments above referred to, to withdraw from the supreme court jurisdiction to review judgments, such as described, and which it exercised under original Section 2 and Section 12250, General Code, above quoted?

The duty of the court, and its only proper purpose, in the construction of these amendments, is to ascertain and give effect to the intent of the people when they wrote them into their constitution.

In the endeavor to promote the, objects for which they were framed and adopted, rules which are merely technical should not be permitted to thwart the attainment of those objects, by forcing from them a meaning which their framers never held. No narrow reasoning should be allowed to lead to the disregard of these principles, which have become fixed and fundamental.

If the contention of those supporting the motion be correct, then the convention which submitted the amendments and the people adopting them left a hiatus in the system for the administration of ■justice; that is' to say, they left a period in which parties to cases pending in the circuit courts and decided prior to January 1, 1913, should not have the benefit of existing laws as to review of such causes, unless the proceeding was brought before that date, while cases pending in the..same’ circuit court at the same time, but not decided bv the court of appeals until after that date,' could be reviewed by this court in the manner provided by law.

By adopting this construction, we would hold that the circuit court had final jurisdiction in the cases which .it had- decided, as above described, although there is not contained in the constitution or laws in effect prior to the adoption of - the amendments, and there is not ■ contained in the amendments themselves, any provision that the circuit court should have final jurisdiction, in the sense that its judgments should not be subject to review.

No reason is apparent in the terms of the amendments, and none is suggested, why such discrimination was intended to result from the merging of the circuit courts into the courts of appeals. There is not disclosed, in any language used, any intention on the part of the people to withdraw the right of parties to have the judgments of the circuit courts reviewed in the manner provided by the 'constitution and the laws in existence at the time the amendments were adopted. On the contrary, there is a very apparent purpose shown in the amendments and in the schedule, to preserve to 'litigants, who had already invoked the jurisdiction of the circuit courts, the right to have their causes proceed as before. The evident determination was to merge the old courts into the new, fully and completely, in such manner as to secure all rights which parties had been entitled to under the earlier tribunal. Is the phrase, “pending cases and proceedings in the circuit courts,” of such, clear, definite and limited meaning' as. to - exclude cases filling . within the class above referred to?- We. do not think that such a narrow and technical construction of that phrase, as it is used in this amendment, is. warranted.;.-. •

In this connection, we remark that in the ;same amendment—Section 6—it is provided that, - with certain specific exceptions, “the judgments of the courts of appeals shall be final.” Heretofore, under our procedure,, it was necessary that • a judgment should be final before it was subject to review, but it is manifest that, in the amendment referred to, the word “final” is used in . a -sense which means that the judgments are-not subject to review. The phrase “pending cases and proceedings” seems not to have a definite meaning— fixed by authority—although the provisions of Section 26, General Code, with reference to the effect of the repeal or amendment of a statute, on pending actions, have been construed by this court in a number of cases. The meaning of such a phrase must be gathered from its context, and the' assistance to be had from any decided case must necessarily depend on the similarity of the context to that of the phrase involved in the inquiry. ■

In Bode, Admx., v. Welch, 29 Ohio St., 19, a judgment was recovered against Welch before--a justice of the peace on March 26, 1875. Defendant was entitled by the law then in force to an appeal, on giving a bond within ten days. This he did, giving his appeal bond on April 5; 1875. On March 30, 1875, the section of the law .giving this right of appeal was repealed without any saving clause as to actions pending or causes of actions subsisting. But it was provided by the act of February 19, 1866 ( 63 O. L., 22), that “whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending' actions * • * * unless otherwise expressly provided in the amending or repealing act.” The court held that the act of March 30, 1875, must be construed as though the above-quoted section of the act of 1866 were appended to it, and that the case, after judgment in the justice court, was a pending action or proceeding or cause thereof, so that the amendatory act of 1875 did not affect the right of appeal therefrom. The court say: “It is true, in a strictly technical sense, that there was no ‘action’ or ‘proceeding’ pending at the time the repealing act took effect, because a ‘final judgment’ had been rendered therein. But the judgment was final only with reference to the power of- the court, and its action in the case. With reference to the rights of the parties it was not final. That which can be vacated and superseded is not final, as between the' parties having the power to set it aside.”

■ In Wegman v. Childs, 41 N. Y., 159, the question presented was whether the supreme court, under the constitution- of 1846, had jurisdiction to award an execution upon a judgment entered in the court of common pleas before the adoption of the constitution, where such judgment was rendered in a suit-originally commenced in that court. It was provided by the 5tlx section of article XIV of the -constitution that jurisdiction of all suits and proceedings pending in the supreme court and-court of chancery, and all suits and proceedings originally commenced and pending in the court, of common pleas, except .in the city /and county of New York, on the first Monday of July, 1847, should become vested in the supreme court thereby established. It was held that- an action is pending in a court, though judgment has been rendered, as long as the judgment is unsatisfied. The court say: “It was also decided in this court, in the case of Suydam v. Holden, that the supreme court has power under the constitution of 1846, which gives to that court jurisdiction over all suits pending in the court of chancery on the first day of July, 1846, to vacate the entry of satisfaction of a final decree of that court, entered on its records prior to 1846, on the return of the execution unsatisfied, and to order a new execution to be issued on the decree.”

In the case of United States v. Taylor, 44 Fed. Rep., 2, it is held in the syllabus that “Where a territorial court, by its final decree in a case, granted an injunction for the protection of a continuing right, the case is after such decree, still a ‘pending’ case, within the meaning of the 23d section of the act providing for the creation of state governments for Washington and other' territories, and is transferable to the court which by said act is made the successor of said territorial court.”

As to the contention that because a final decree ‘had been previously rendered, the case had terminated and was not a pending case, the court say: “The decision upon this point involves simply a definition of' the word ‘pending,’ as used in the 23d section of what is commonly called ‘the Enabling Act.’ * * *

“When all its provisions' are considered, the act manifestly shows that congress intended 'to fully protect and preserve not merely the rights of' parties in a few select and especially favored ones of the . cases . commenced in the territorial-courts, but every right of every party in every case which at any time had been or should be commenced in those courts during their existence; and the' words, ‘all ■ cases, proceedings and matters pending/ used in the act, must be construed to embrace all cases, proceedings and matters initiated in the territorial courts, and in which at the time of' the actual transformation of the territorial judicial system into the state and national system there should be yet any vitality, force or virtue.”

;This view of the meaning of the word “pending-,”, in different connections in which it has been used, has been upheld in O’Maley v. Reese, 1 Barb., 643; Howell v. Bowers, 2 Cr. M. & R., 621; Ex parte Howland, 3 Okl. Crim. Rep., 142; Ulshafer v. Stewart, 71 Pa. St., 170; Mitchell & Rammelsburg Furniture Co. v. Sampson, 40 Fed. Rep., 805; Sherrer v. Caneza, 33 La. An., 314. Courts for the review of legal proceedings' are, and have 'been, an essential part of our judicial system. Valuable rights acquired under a system in full and legal operation should not be held by the' court to have been withdrawn and destroyed; unless by express language or by provisions from-which' it must follow, by necessary implication; that such result was. intended. This doctrine was upheld in Commonwealth v. Balph, 111 Pa. St., 379; Endlich on Interpretation of Statutes Sec. 522. .

A careful consideration of the purposes of .the amendments in question and of the results which would follow the adoption of the construction contended for by those favoring these motions, leads us to conclude that all rights which parties had in cases, pending in the circuit courts prior to January 1, 1913, are preserved in their full integrity, whether judgment was entered in such cases by the old circuit courts or by the courts of appeals into which they were merged.

The motions will be overruled.

Shauck, C. J., Donahue, Wanamaker, Newman and Wilkin, JJ., Concur.