text:
    The State, ex rel. The Cleveland, Cincinnati, Chicago & St. Louis Railway Co., v. Creamer, Treasurer.

      Doctrine relating to repeals and amendments — By implication, applies alike to constitution and statute — Provision of the state constitution — Concerning election of officers and the convening of general assembly — Change of date of election of members— Changes date of assembling of legislature — Constitutional law— Section ¡5 of the General Code,

    1. The doctrine relating to repeals and amendments by implication applies alike to constitutions and statutes, and it requires that earlier expressions yield when it is necessary to give effect to the latest expression of the intention of those whose intention is entitled to control.
    2. The express provisions of the constitution of the state establish such relation between the election of state officers and the convening of the general assembly that since the seventeenth article, adopted- in 1905, has expressly changed the date of the election from November of the odd numbered years to the same month of the even numbered years, the provision for the convening of the regular session of the general assembly then elected must be regarded as changed by implication from the first Monday of January in the even numbered years to the first Monday of the same month in the odd numbered years.
    3. Section 35 of the General Code is a valid enactment, the present session of the general assembly convened pursuant to its provisions is regular, and such of its acts as are passed in the exercise of legislative power and not transcending any limitation which the constitution places upon the exercise of that power are valid.
    (No. 12901
    Decided March 28, 1911.)
    In Mandamus.
    The- relator presented a warrant drawn upon the treasurer by the .auditor of state for the transportation of troops called to Coluinbus and Newark in the months of Jüne, July and August, 1910, on account of .emotional carnivals, commonly called riots, which then occurred in those cities. The defendant, though admitting that at the present session of the general assembly an act was passed to make the necessary appropriation for this purpose, denies the validity of the act upon the ground that the session of the general assembly has not been lawfully convened, and that the act for that reason is invalid. The facts are submitted to us in admitted allegations and an agreed statement. In so far as they are material to the question suggested, they will he stated in the opinion.

      Mr. James R. Garñeld and Mr. John H. Clarke, for respondent.
    Powers of the general assembly are limited by the constitution. Railroad Co. v. Commissioners, 1 Ohio St., 77, 85.
    Courts cannot nullify legislation, much less a constitutional provision, on the ground that it is opposed to the “spirit” supposed to underlie the constitution. Walker v. Cincinnati, 21 Ohio St., 15.
    Where the language is clear there is no room for construction and the function of the court is to declare the constitution as written, and leave it to the people to make such changes as they desire. Wilcox v. Nolze, 34 Ohio St., 520; Little v. Seminary, 72 Ohio St., 417; State v. Board, 80 Ohio St., 471.
    The object of construction, as applied to a written constitution, is to give effect to the intent of the people in adopting it. In the case of all written laws, it is the intent of the. lawgiver that is to be enforced. But this intent is to be found in the instrument itself. It is to be presumed that language has been employed with sufficient precision to convey it, and unless examination demonstrates that the presumption does not hold good in the particular case, nothing will remain except to enforce it. Cooley on Const. Lim. (7 ed.), 89.
    The plain reading of the language will be adopted, and an elaborate process of construction rejected. State, ex rel., v. Foraker, 46 Ohio St., 677.

    In interpreting clauses we must presume that words have been employed in their natural and ordinary meaning. Cooley on Const. Lim. (7 ed.), 92.
    Repeals by implication are not favored with respect to statutes and for a stronger reason they should not be favored with respect to constitutional provisions. We are not constructing a new constitution. State v. Pattison, 73 Ohio St., 305; State v. Metcalfe, 80 Ohio St., 259.
    The maxim “expressio unius est exclusio alterius,” applies to constitutional construction. State v. Guilbert, 75 Ohio St., 47.
    There can be no doubt, of course, that the adverb “biennially” as used in Section 25, Article III, of the constitution, means “once in two years.” 4 Am. & Eng. Ency. Law (2 ed.), 33.
    The constitution clearly required not only that there shall be one regular session of the general assembly and only one held in any two-year period, but it expressly fixes the first Monday in January, 1852, as the date from which all subsequent biennial periods under the constitution must be calculated.
    The result of the provisions of Section 25, Article II of the Constitution of Ohio is that it is impossible to lawfully hold a regular session once, and only once, in two years as' the constitution commands without having such session commence on the first Monday of January in the even numbered years after 1852. For to hold it earlier than the first Monday in January, 1854, or in any even numbered year thereafter would be to hold two regular sessions within two successive years, while to delay commencing the session until a later date than the first Monday of January, 1854, or of any subsequent even numbered year would violate the express command that all regular sessions shall commence on the first Monday of January, biennially.
    The first regular session of the general assembly held under the constitution of 1851 commenced on the first Monday of- January, 1852, and also that a regular session commencing on the first Monday of January was held in each even numbered year from that time to and including 1910. In this last year, 1910, the regular biennial session commenced on the first Monday of January, the third day of the month, and adjourned without day on the 10th day of the May following.
    It is under the provision of an act passed April 22, 1910 (101 O. L., 137), without call by the governor, that the members of the general assembly elected last November convened on the first Monday of January, 1911, and are since that time assuming to act in regular session.

      It appears from the foregoing' that the session of the legislature, the validity of which we are questioning, purports to be a regular session, although but one year has elapsed since the last preceding general assembly convened in regular session on the first Monday of January in the even numbered year, 1910.
    It has been the accepted rule of the constitution, unquestioned since its adoption and hitherto unvaryingly acted upon until the session of 1911 was convened, that regular sessions could commence at no other time than on the first Monday of January in the even-numbered years.
    Assuming now that this biennial provision is a limitation upon the power of the legislature (Railroad Co. v. Commissioners, 1 Ohio St., 77, 85), and since its meaning is too plain for construction, there seems to us to be no theory of constitutional interpretation under which a claim can even be started that two regular sessions can be held in two successive years, unless it be that the provisions of Article XVII adopted in 1905, so clearly require that the members of the general assembly shall meet in regular session in the January next after their election as to effect a repeal or nullification of Article II, Section 25, by implication.
    By its own plain terms and by the decision of this court is it made clear that the intention to repeal Section 25 of Article II can not be found in any language used in the amendment but must, if it exists at all, be derived from an implied purpose and this implied purpose in turn must be derived chiefly, if not entirely, from the implication that the people did not intend to change the length of the period to elapse between the election of members and their meeting in regular session from what it had been prior to the amendment. So far as the legislative branch of the government is concerned the amendment purports to deal only.with the time of holding elections of members of the general assembly, and with the extension of terms of office so as to effect the purpose expressed in section one of the article. State v. Metcalfe, 80 Ohio St., 244.
    No suggestion is to be found in it of disposition to deal with sessions of the legislature, regular, extraordinary or adjourned.
    Since the assumed intention to repeal Article II, Section 25, is not expressed in the language used in the amendment of 1905, if it is really repealed so as to make valid the act of April 22, 1910, and the current session of the legislature, such repeal must be by implication because of irreconcilable repugnancy between the section and the amendment. State v. Metcalfe, 80 Ohio St., 259; Little v. Seminary, 72 Ohio St., 417; State v. Board, 80 Ohio St., 471.
    Clearly the amendment does not “expressly abrogate,” and it seems very clear also that it is not “irreconcilably in conflict” with Section 25, Article II of the constitution, for if we gave full force and effect to the amendment and also to Section 25, Article II, we still have provided not only a consistent and workable form of government administration, but one which has precisely the adjustment between the time of election and of the meeting of representatives in regular session (with only one month added) which has been in existence and in successful operation in the federal constitution ’ and government for now 120 years.
    In 1889 the general assembly of the state (86 O. L., 129) caused to be submitted to the people a proposal to amend their constitution by providing for biennial elections, and the first section of the proposed amendment reads:
    “Section 25. The regular session of each general assembly shall commence on the first Monday of January next after it is chosen.”
    By this amendment the opportunity was afforded the people to make precisely the change in their constitution which it is now sought to make by implication, but the amendment failed of adoption at the polls.
    Again in 1906 (98 O. L., 413) — it will be noted that this was in the year after the adoption of Article XVII- — the general assembly submitted to the people again a like proposal to amend their constitution, but this also failed to receive the vote requisite to its adoption.
    In this twice repeated action of the electors of the state we have seemingly the best obtainable evidence of their intention with respect to the very question we are considering.
    The action of the 68th general assembly in 1889 shows by the form which was given it, that in the opinion of that body a specific amendment of Article II, Section 25, was necessary to accomplish that purpose.
    Again in 1908 the 77th general assembly on the first day of the regular session of that year adopted a resolution declaring its opinion that the 1905 amendment on Article II, Section 25, required the general assembly to meet in regular session on the day mentioned in said joint resolution, to-wit, the first Monday in January, 1908. (99 O. L., 615.)
    Again, in its regular session, to-wit, on February 28, 1906, the 77th general assembly put its interpretation upon its powers under Article XVII, which had been adopted by approving vote of the people in the November preceding, by passing an act in exercise of the power expressly conferred by the amendment, extending the terms of its members so that they “shall hold their office for three years” and without any other provision whatever.
    Here is seemingly presented occasion for a second application by this court of the maxim ex-pressio unius est exclusio alterius, which this court so strongly applied in State v. Guilbert, 75 Ohio St., 47.
    Again the action of the 77th general assembly in meeting in a second regular session on the first Monday in January, 1908, and of the 78th general assembly in meeting in regular session on the first Monday in January, 1910, shows that the members of these two bodies were of opinion that Article II, Section 25, was not repealed by the amendment of 1905.
    And yet again the governor of the state, under power vested in him by the constitution to call the general assembly together in extraordinary session, summoned it to meet in such session on the fourth day of January, 1909, on the date on which the regular session should have commenced, if the amendment of 1905 by implication repealed Article II, Section 25, and shifted the regular sessions from the even to the odd numbered years, as we are assuming must be claimed in this proceeding.
    Thus does it appear that two legislatures and a governor — the two coordinate branches of the state government — in the necessary discharge of their duties, have placed a construction upon the amendment of 1905 wholly inconsistent with what must be claimed by the relator in this proceeding. And such construction — -especially when contemporaneous as in this case- — by coordinate branches of the government, is always given great consideration by the judicial branch in construing a constitutional provision. Cooley Const. Lim. (7 ed.), 102, et seq.; Railroad Co. v. Commissioners, 1 Ohio St., 83.
    In the discharge of the duty of interpretation, it is not required or permitted to courts to go beyond the plain meaning of the language which the legislature (here the people) has used to express its intention.
    When counsel ask us to the consideration of the sufficiency of the supposed reason for discrimination, they invite us to an inquiry that is not open to us. Little v. Seminary, 72 Ohio St., 417.
    And we may add that to accede to the request of relator would be to abrogate the power of making the constitution what the court may think it ought to be instead, of simply declaring what it is. Walker v. Cincinnati, 21 Ohio St., 15.
    Permit us to discuss this claim briefly. It is true that the terms of members of the general assembly begin on the first day of January next after their election, and that the validity of their election must be determined by the general assembly itself. But first of all a prima facie case of validity of election is made by the certificate of the deputy state supervisor of elections, General Code, Section 34.- In the next place provision is made by statute for filing notice of contest as in cases of contests of election of county officers, General Code, Section 5146, and provision is also made for taking testimony before any notary public, Section 5147, which shall be transmitted to the clerk of the general assembly on or before the “tenth day of the first session of the general assembly after the election.”
    The contest may be instituted irrespective of whether the meeting of the general assembly is at a regular session or in pursuance of the call of the governor, or at an adjourned session. State v. Harmon, 31 Ohio St., 250.
    With these statutory provisions and this decision before us, there is surely no exigency calling for this court to amend our constitution so as to provide opportunity for contesting the election of members of the general assembly.
    Such exigency rarely arises, and-should it arise the power in the governor to call an extraordinary session is certainly ample for meeting the occasion.
    With this decision before us also, the claim that the tie vote cases on executive officers (Article III, Section 3) can be decided only by the general assembly in regular session needs no discussion, and as to declaring the result of election of executive officers, the constitution expressly provides (Article III, Section 4) the procedure to be followed, “should there be no session of the general assembly in January next after an election” of such officers.
    The suggestion that if Article II, Section 25, is taken in its plain meaning, we shall be without a legislative branch of the government for a year after each January following the biennial election of members, because there can not be said to be a general assembly until the houses are organized, is very conclusively answered in Harmon v. State, 31 Ohio St., 250, wherein it is said that the gen-, eral assembly in legal contemplation is a continuing body, which when it is not in session has a potential existence, and its members are at all times liable to be called together to act as an organized body.
    We may approach this doctrine of implication from still another direction.. The general rule regarding repeals by implication is greatly' modified and restricted when applied to constitutional mandates and limitations. Cooley’s Const. Lim. (6 ed.), 78.
    Article II, Section 25, is a mandatory provision. The time for holding a- regular session is absolutely fixed. Nothing' by way of implication is needed to make it effective, nothing by way of implication should be permitted to change it. Field v. People, 3 Ill., 79; People v. Bollam, 182 Ill., 528; People v. Draper, 15 N. Y., 544.
    Clearly the fundamental purpose of Section 25, Article II, was to do away with annual sessions of the legislature such as were held under the old constitution and to limit that body to biennial sessions. From 1852 to 1894 the plain provision of the constitution requiring biennial sessions • was evaded by the holding of adjourned sessions so that there was a session each year during that period.
    The 71st general assembly in regular session on the 14th day of March, 1894, adopted a joint resolution declaring that “its present session shall be ended by adjournment without day,” and on the 21st day of May, 1894, the 71st general assembly adjourned sine die, and since that time the constitutional mandate abolishing annual sessions has been obeyed.
    May it not well be inferred that the people rejected the proposed amendment of 1906, because they desired to make the rule of biennial sessions effective and to place it beyond the power of the legislature to annul it as it had done before?
    It is evident that if the regular session is held during the last year of the life of the general assembly, annual sessions cannot be made possible by holding adjourned sessions, and the possibility-of evading the constitutional restriction is thereby almost entirely removed.
    But one of the most obvious objections to this construction is that it requires to be demonstrated by such elaborate process of occult reasoning upon the meaning of words and phrases so different from the apparent meaning as to warrant the belief that it never occurred to the framers of the constitution and the people who adopted it. State, ex rel., v. Foraker, 46 Ohio St., 677.
    If it be true, as counsel for relator contend, that the amendment of 1905 created such disharmony in the constitutional scheme of government as to raise by implication the power to suspend and amend Article II, Section 25, as the legislature attempted to amend it in 1910, surely that necessity arose immediately upon the adoption and taking effect of the ameridment and not five years later, and therefore the requirement was as imperative perhaps in 1906, but certainly in 1908 and 1910 as in 1911.
    Thus it necessarily results from their contention that all sessions of the general assembly, certainly since that of 1906 must have been without constitutional warrant and illegal, excepting only perhaps the session called by Governor .Harris, which was held in 1909.
    Constitutions are solemn instruments. JThey are not made to be altered, changed, revised or amended except in strict compliance with the method which the instrument itself suggests. State, ex rel., v. Foraker, 46 Ohio St., 681.
    The members of the state legislature, although they are duly chosen by the people, cannot meet at such time and in such place or manner as the whim of the majority of the members may direct. 1 Andrews’ American Law (2 ed.), Sec. 331.
    Assemblies of individuals can exercise the legislative power of a state only when they are created and established by the constitution and organized in accordance therewith. 1 Andrews’ American Law (2 ed.), Sec. 329; State, ex rel., v. Cunningham, 81 Wis., 482; Tennant’s Case, 3 Neb., 409; People v. Hatch, 33 Ill., 9; Cooley’s Const. Lim. (7 ed.), 186.
    An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as. inoperative as though it had never been passed. Norton v. Shelby County, 118 U. S., 425; State v. Kiesewetter, 45 Ohio St., 261; State, ex rel., v. Holliday, 63 Ohio St., 165.
    To constitute a valid session of any governmental body there must be not only duly elected members of that body, but they must act together at a time and place prescribed by law. 8 Am. & Eng. Ency. Law (2 ed.), 22; People v. Opel, 188 Ill., 194; Johnston v. Hunter, 50 W. Va., 52; In re Allison, 13 Colo., 528; Commissioners v. Gwin, 136 Ind., 562; Dunn v. State, 2 Arle, 229; Wicks v. Ludwig, 9 Cal., 173; Gruner v. Moore, 6 Colo., 530; State v. Woodson, 61 S. W. Rep., 252; State, ex rel., v. Hixon, 41 Mo., 210; Appendix, 18 Me., 464; Railroad Co. v. Varnum et al., 10 Ohio St., 623.
    We may add that we think the books will be searched in vain for an example of the application of the doctrine of de facto to validate the acts of the members of a legislature assuming to act in a session at a time and place not prescribed by law, except in times of revolution or of civil war. A de facto legislature can exist only as a part of a de facto government, and while peace and orderly government prevail a de facto general assembly is an anomaly not to be thought of or tolerated. In re Gunn, 50 Kans., 155.
    As this court has recognized many times, no appeal should be answered more sternly than that based upon convenience and expediency. To yield to it shatters and finally destroys constitutional government. Cooley’s Const. Lim. (7 ed.), 93.

      Mr. Timothy S. Hogan, attorney general; Mr. U. G. Denman; Mr. Clarence D. Laylin and Mr. Francis W. Treadway, for relator.
    The true rule, as we understand it, is, that no words or phrases of a constitution may, with propriety be considered separately and apart from related provisions. Constitutions are units, not mere collections of disjointed and unrelated enactments; especially is this true with regard to an unamended constitution, one adopted by the people as a whole, like the constitution of 1851; more especially is it true of articles within a constitution, and of all provisions therein which relate to the same subject-matter. Cooley’s Const. Lim. (7 ed.), 51, 69, 71; People v. Fancher, 50 N. Y., 288; Tazewell v. Herman, 60 S. E. Rep., 767; Brown v. Galveston, 75 S. W. Rep., 488; People, ex rel., v. Metz, 193 N. Y., 148; Swift & Co. v. Newport News, 105 Va., 108; 2 Lewis’ Sutherland Stat. Const. (2 ed.), Secs. 368, 369, 370; Hawkins v. Filkins, 24 Ark., 286.
    Let this rule be applied to the interpretation of Section 25 of Article II, of the constitution of 1851, and the falsity of counsels’ conclusion respecting it will be at once apparent. In pari materia with this section are nearly all of the sections of the original constitution of 1851.
    Section 2 of Article II and Section 2 of the schedule together may be assumed to have required senators and representatives to be elected in the fall of the odd numbered years.

      Section 2 of Article II provides also that the terms of office of senators and representatives shall commence on the first day of January next after their election; on the same theory this would require the terms of office of senators and representatives to commence on the first day of January of the even numbered years. There is thus presented what may be a mere coincidence — an arrangement of dates made without design — provisions relating to the machinery of government fortuitously inserted in the constitution; that is to say, we have a provision which means that the regular sessions of the general assembly shall commence early in the even numbered years and another that the terms of office of senators and representatives shall begin with the even numbered years.
    Is this arrangement of dates without design, and are these sections not in pari materia but wholly independent of each other?
    Let the following points be noted:
    1. The term of office of senators and representa-
    tives must commence on the first day of January, after they are elected. (Article II, Section 2.) .
    2. The validity of the election of a senator or a representative cannot be determined until the houses are organized. (Article II, Section 6.)
    3. The qualifications of a senator or a representative cannot be determined until the houses are organized. (Article II, Section 6.)
    4. The executive' officers of the state must be elected on the same day on which senators and representatives are elected. (Article III, Section 1, and schedule, Section 3.)

      5. The terms of office of-the executive officers of the state commence — by coincidence let us say — a week after the regular session of the general assembly was required, by the original constitution of 1851, to commence. (Article III, Section 2.)
    6. The returns for the election of the executive officers of the state must be canvassed by the members of both houses of the general assembly during the first week of the. session (Article III, Section 3), and if there should be a tie, one of those receiving an equal number of votes must be chosen by the joint vote of both houses.
    All of the foregoing seems to us, irresistibly, to lead to the conclusion that there is a real, though implied, connection in the original constitution of 1851 between the date of the election of senators and representatives, and that of the commencement of the regular session of the general assembly.
    Further, to illustrate our point, let ,the consequences of a postponement of the date of the commencement of the regular session' of the general assembly be imagined. In the first place, Article III, Section- 3, providing for the canvassing of votes and the breaking of a tie, in the case of an election of executive officers, would be simply inoperative. The conclusion is irresistible that the session referred to in that section is the regular session. To postpone the date of the commencement of the regular session, without also shifting the date of election of senators and representatives, and all other dates provided for in the related sections, would set at naught, all of Section 3 of Article III.

      Furthermore, there is not now, and never has been, under the constitution of 1851, any provision for deciding a tie vote in the case of the election of executive officers excepting by the houses of the general assembly. (See Section 27 of the act of May 3, 1852, 50 O. L., 311. now Section 5100, General Code.)
    Again, should the time of holding the regular session be postponed, without also postponing the time of. electing senators and representatives, we would have the anomalous condition of being without any general assembly at all for the period of such postponement. Surely, there can not be said to be a general assembly until the houses are organized. Surely, there are no members of the house and the senate until those bodies have respectively passed upon their election and qualifications.
    Again, permit us to point out that no provision is made by the constitution or the laws of this state, for the organization of either house of the general assembly, nor for the determination of the election and qualifications of the members thereof, otherwise than at the commencement of a regular session.
    The silence of the constitution and the statutes in this respect is significant; it establishes, it seems to us, beyond a reasonable doubt that the framers and adopters of the constitution of 1851, in view of the related sections, to which we have called attention, did not intend that there should be occasion for convening the general assembly before the, commencement of the regular session.

      The year 1852 was selected as a mere starting point; it was selected because it conformed to the scheme of government created by other related sections. The biennial sequence of even numbered years required, if at all, by its provisions, was to continue only so long as that scheme of government should remain undisturbed.
    From all of the foregoing then, we think that it clearly appears that the framers of the constitution of 1851, while they may not have used that language, really intended to say, that, the regular sessions of the general assembly should commence on the first Monda)'- of January of the first year of the terms of the senators and representatives constituting the general assembly.
    We are construing an amendment to the constitution, Article XVII, which displaces the constitution so far as it expressly abrogates or is irreconcilably in conflict with former provisions. State v. Pattison, 73 Ohio St., 305.
    Here we are not called upon to apply constitutional limitation to an act passed by the general assembly under its general grant of legislative power,, but to apply such a limitation to an act specially authorized by the constitution. An act of the legislature authorized by a constitutional amendment and enacted to make the amendment operative is not necessarily subject to the provisions of the constitution limiting the legislative power but is to be interpreted as if part of the constitutional amendment. State v. Harris, 77 Ohio St., 481.
    Now let it be noted that the word “biennially” as used in Section 2 of Article II was, and is still of continuing force just as the same word may be conceded to be of continuing force in Section 25 of the same article. Nevertheless, its intendment was violated when the Seventeenth Article was adopted, and there was no election of senators and representatives as between the years 1905 and 1908 — a period of three years. After 1908, however, elections for senators and representatives were held biennially again.
    If the adoption of the Seventeenth Article amended anything in Article II, Section 2, it was the implied requirement that senators and representatives be elected in the odd numbered years, but it must be noted that this amendment could not be carried into effect without temporarily violating, in a sense, the intent of the section. We are. led to conclude that this implication of Article II, Section 2, is an implication which may for purposes of adjustment to the intent of a subsequent constitutional provision be violated, without affecting its permanent effect, just as Article X, Section 3, was temporarify violated, but neither amended nor repealed under authority of said Article XVII, as shown in the Harris case, supra.

    Which is the greater “amendment,” which the more violent “repeal by implication” — the temporary “suspension” for which we are contending,, or the absolute repeal by implication of Article III, Section 3, which would result from counsel’s construction ?
    We submit with confidence, that of the two alternatives, this court will take the less violent and will hold that the adoption of the Seventeenth Article temporarily “suspended” the continuing force of Section 25 of Article II.
    This suspension is neither an implied repeal nor an implied amendment; it is simply 'a temporary yielding' of a general and permanent provision to a specific and temporary emergency. Because Article II, Section 25 of the constitution is in pari materia with a group of sections, all of which were thus suspended, it is fair to assume that the people intended that it should be likewise suspended. Indeed, it is imperative that it be suspended, because otherwise, the scheme of government under the amended constitution will be essentially and diametrically different from what it was before the adoption of the Seventeenth Article; and no intention to create such a difference can be found in the article.
    Whatever legislation is necessary to carry out the manifest intent of a constitutional amendment may be passed by the legislature without specific authority in the constitutional amendment, and when so passed, is not subject to constitutional limitations, otherwise preventing such legislation. People, ex rel., v. Supervisors, 100 Ill., 495.
    If the general assembly is given express power to adjust terms of office to the new scheme of elections, does it not follow that it has the power to adjust the time of holding the regular sessions, as a power flowing by necessary implication from the power to adjust terms?
    The maxim “expressio unms exclusio alterius est” cannot be applied to an amendment of this sort in the same way that it would be applied to a statute, nor, even in the same way that it is applied, for the purpose of ascertaining whether or not the amendment is self-executing.
   Shauck, J.

The appropriation act, whose validity is called in question, was passed at the present session of the general assembly. The general assembly convened on the first Monday of January, 1911, pursuant to Section 35 of the General Code as amended April 22, 1910, so as to provide that “The regular session of the general assembly shall commence on the first Monday of January following the election of its members.” The members had been elected at the general election in November, 1910. The session was not called by the governor. It is said that the appropriation act is invalid because the session is irregular, being convened at a date forbidden by the constitution. Section 35 of the General Code is said to be repugnant to Section 25, Article II of the constitution, which' provides that “All regular sessions of the general assembly shall commence on the first Monday of January biennially. The first session under this constitution shall commence on the first Monday of January one thousand eight hundred and fifty-two.” This section of the constitution has not been expressly changed or superseded by any amendment of the instrument, though on behalf of the relator it is said to have been amended and the act fixing the first Monday in January of the present year for the convening of the general assembly authorized, by the Seventeenth Article of the constitution, adopted in 1905. That article was adopted as an amendment to the constitution without designating the sections of the instrument which were to be amended or superseded. Section 2 of the schedule of the constitution of 1851 provided that the first election for members of the general assembly should be held on the first Tuesday of November, one thousand eight hundred and fifty-one. Section 2 of the Second Article required that senators and representatives should be elected biennially on the first Tuesday after the first Monday in November, and that their terms of office should commence on the first day of January next thereafter, and continue two years. The Seventeenth Article adopted in 1905, provides for the election of the senators and members on the first Tuesday after the first Monday in November in the even numbered years. From the peculiar mode of making this amendment, it results that except as to the time for the election its effect upon other provisions of the constitution must be determined by the rules, which have been adopted to ascertain and give effect to the latest expression of the intention of those whose intention is entitled to govern, in whatever form it may be expressed. Counsel for the defendant insist that the provisions already referred to are so clear in their effect to require the regular sessions of the general assembly to convene on the first Monday of January of the even numbered years that there is no opportunity for interpretation. They do not, however, deny that to ascertain the meaning of the words and phrases regard should be had to the entire instrument in which they are used. A constitution being an instrument locating the powers of government and defining the modes of their exercise, thus establishing and providing for the maintenance of a system of government, its interpretation as an entirety becomes a duty obviously incumbent upon the courts. The occasions for the more comprehensive view are more frequent in the interpretation of constitutions than in interpretation of other instruments. In the present case the duty of considering all related provisions is made more difficult by the fact that the Seventeenth Article is silent with respect to the numbers of the sections of the amended instrument which are to be effected by it. It does not even designate the section which it supersedes by its express terms. It is, therefore, as if it were written therein in express terms that all provisions of the constitution inconsistent with this expression of the will of the electors shall be regarded as amended or abrogated to the extent that may be necessary to give it full effect, which is the familiar rule for amendments and repeals by implication. Counsel for the defendant concede that the former provision for the election of members in the odd numbered years is so palpably inconsistent with the terms of the amendment that they shall be elected in the even numbered years that it must he regarded as amended by implication. But they deny. that the amendment affects any other provision involved in this inquiry, and they ask us to conclude that whatever inconvenience or embarrassment might result from postponing the session of the general assembly until fourteen months after the election of its members must be suffered in deference to the terms of the section referred to fixing the initial election for the biennial period in an odd numbered year. Considerate attention is due to this suggestion, for no time in our history has afforded more solemn admonitions than the present that the plain provisions of the organic law should not be violated from considerations of convenience or mere caprice, and that the scheme of government devised with so much care and wisdom should not be changed except upon due deliberation and in the mode appointed for that purpose.

But is there not expressed in the scheme of government set up by the constitution of 1851 such a relation between the dates of the election of members and their regular session that the former 'date having been admittedly changed by the express terms of the Seventeenth Article, the latter should be regarded as changed to give full effect to the latest expression of the controlling intention? It was ordained by the constitution that the members should be elected in the odd numbered years, and that their regular session should convene on the first Monday of the January next following. It is ordained by the Seventeenth Article that their election shall be in the even numbered years and by the Thirty-fifth Section of the General Code that they shall convene on the first Monday of January next following. It is true that upon the former occasion to meet the exigencies arising from the fact that the plan of government devised by the constitution was then being put into operation, precise dates were employed to fix the beginning of the biennial period, which was the chief object of the provision, and likewise to fix the dates of the election of the members and their convening in session, the relation being precisely the same as that now fixed by the amendment and by the statute. Will a reverent believer in the sacredness of the constitution assert that an obviously intended relation of substance should be sacrified to a mere form of expression? Attention to other provisions of the constitution will show the very grave importance which must be attached to the relation of the dates of election and convening. It results from the provisions of the Second Article of the constitution that the official terms of senators and representatives must begin on the first day of January after their election, and neither house can exercise its power to determine the election and qualification of its members until it is convened and organized. Another consideration seems to be entirely conclusive of the question presented. The Seventeenth Article requires that the executive officers of the state be elected in November ,of the even numbered years, the Second Section of the Third Article provides that their terms of office shall commence on the second Monday of January next after their election, and Section 3 of Article III that the returns of their election, having been transmitted to the president of the senate, shall during the first week of the session be opened and published and the result declared “in the presence of a majority of the members of each house.” These sections relate to the orderly conduct of the government of the state, and they imperatively and expressly required the general assembly to be in session during the first week of the present year.

By what authority should the general assembly have been convened, if not by the authority of the constitution and the statute already quoted? The constitution recognizes only regular and _ extraordinary sessions. The suggestion 'that the session should have been called by the governor will not bear scrutiny. The occasion, as we have seen, was created by express provisions of the constitution under whose operation like occasions will recur in the first week of every odd numbered year, so long as the present provisions remain unchanged. The authority of the governor to convene the general assembly by proclamation is conferred by the Eighth Section of the Third Article, and by its terms the authority is expressly limited to extraordinary occasions.” We should pay no sincere deference to the constitution or to the plain meaning of its terms if we should hold those occasions to be extraordinary for whose unfailing return at regular intervals the constitution makes elaborate apd careful provisions. In many respects constitutions do not execute themselves, and the enactment of Section 35 of the General Code pursuant to whose provisions the legislature convened in regular session was a wise precaution to avoid doubts that might have arisen but for its enactment. It may have been unnecessary, but we perceive no warrant whatever for saying that it is unconstitutional.

An objection to the conclusion intimated is of so much apparent force that it may be entitled to brief attention. It is said that the electors of the state have expressed their opinion against the conclusion intimated and against the change of the regular session to the first Monday of January in the odd numbered years, because in the years 1889 and 1906 amendments were submitted providing for that change, and in each instance the amendment failed for want of a sufficient affirmative vote. Many considerations would mitigate the force- of this objection. . If we might assume that the electors so far misconceived the force of the amendments proposed as to regard them as effecting only the change in the year of the convening of the general assembly, we might also assume with respect to the later instance that they protested against the extension of the activities of the codifier into the field of constitutional law by so amending the constitution as to mean what it already means. But it is more decorous and consistent with proper interpretation to assume that whatever may have been the state of mind of those who framed the amendments in both instances, the electors comprehended that the proposed change in Section 25 of Article II would, if adopted, abrogate the provision for biennial sessions. This must be so for the amendment submitted upon both occasions was as follows: “Section 25. The regular session of each general assembly shall commence on the first Monday in January next after it is chosen.” The electors, therefore, had no opportunity to change the time fixed by the original section for the beginning of the session without at the same time abrogating its requirement respecting biennial sessions. We have heard and read with sympathetic interest the presentation by counsel for the defendant of impressive reasons for believing that the framers of the constitution were insistent that sessions of the general assembly should be biennial, and we agree with them that the signs of the times do not indicate a change of opinion upon that subject. .These •considerations perhaps suggest the real reasons why the amendments failed on the two occasions referred to. They do not incline us to' an interpretation of the constitution which would involve the alternative that either the required regular session of the general assembly shall not be held at all, or that there should be annual sessions, one called for the first Monday of January in the odd numbered years to perform the duties imposed upon it with reference to the election of executive officers in the preceding November, and the other a year later to give perpetual effect to a date whose substantial purpose was served when the constitution was put into operation sixty years ago.

We conclude that Section 35 of the General Code, pursuant to which the general assembly met in regular session on the first Monday of January last, is constitutional, that the session is regular and the appropriation act referred to is valid.

Peremptory writ awarded.

Davis, Price, Johnson and Donaeiue, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    No. 11280.
    The Ohio Central Traction Co. v. Shumaker.
    Decided October 4, 1910.
    Error to Circuit Court of Crawford county.

      Messrs. Cummings, McBride & Wolfe, for plaintiff in error.

      Messrs. Leuthold & Leuthold and Mr. R. V. Sears, for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew, Spear and Price, JJ., concur.


text:
    No. 11971.
    Royer v. Yesteramski.
    Decided October 4, 1910.
    Error to Circuit Court of Portage county.

      Messrs. Muser, Kimber & Huffman and Mr. C. B. Newton, for plaintiff in error.

      Mr. I. H. Phelps; Mr. C. H. Curtiss; Mr. O. S. Rockwell and Mr. A. S. Cole, for defendant in error.
   Judgment affirmed.

Summer, C. J., Crew, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 12114.
    Zimmerman et al. v. Crutchfield.
    Decided October 4, 1910.
    Error to Circuit Court of Wayne county.

      Messrs. Cum

      mings, McBride & Wolfe, for plaintiffs in error.

      Mr. L. R. Critchfield, Sr.; Mr. H. R. Smith and Mr. C. A. Weiser, for defendant in error.
   Judgment affirmed.

Crew, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 11130.
    Springfield Fire & Marine Insurance Co. v. Wagner et al.
    Decided October 11, 1910.
    Error to Circuit Court of Seneca county.

      Mr. J. W. Mooney, for plaintiff in error.

      Messrs. Platt & Black and Mr. G. B. Keppel, for defendants in error.
   Judgment affirmed.

Crew, Spear and Shauck, JJ., concur.


text:
    No. 11309.
    The City of Cincinnati et al. v. Fagin et al.
    Decided October 11, 1910.
    Error to Circuit Court of Hamilton county.

      Mr. Edward M. Ballard, city solicitor, and Mr. Fyffe Chamber, assistant city solicitor, for plaintiffs in error.

      Mr. Drausin Wulsin, for defendants in error.
   Judgment affirmed.

Crew, Shauck and Price, JJ., concur.


text:
    No. 12065.
    Nielsen, doing business as The N. C. T. Stamping Co. v. Taylor.
    Decided October 11, 1910.
    Error to Circuit Court of Cuyahoga county.

      Mr. I. Sylvester Kohn, for plaintiff in error.

      Messrs Guthery & Guthery, for defendant in error.
   Judgment affirmed.

Davis, Shauck and Price, JJ., concur.


text:
    No. 12067.
    Shafer v. The Board of Trustees of Henry Township et al.
    Decided October 11, 1910.
    Error to Circuit Court of Wood county.

      Mr. George F. Pendleton, for plaintiff in error.

      Mr. N. R. Harrington, for defendants in error.
   Judgment affirmed.

Summers, C. J., Crew, Spear. Davis, Shauck and Price, JJ., concur.


text:
    No. 12068.
    The Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co. v. The City of Steubenville.
    Decided October 11, 1910.
    Error to Circuit Court of Jefferson County.

      Messrs. Dunbar & Sweeney, for. plaintiff in error.

      Mr. John A. Huston, for defendant in error.
   Judgment affirmed on authority of The Lake Shore & Michigan Southern Ry. Co. v. The City of Elyria, 69 Ohio St., 414.

Summers, C. J., Crew, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 12076..
    Miller v. Grossman et al.
    Decided October 11, 1910.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Feniger & Kastriner and Mr. James Lawrence, for plaintiff in error.

      Mr. Walter D. Meals, for defendants in error.
   Judgment affirmed.

Davis, Shauck and Price, JJ., concur.


text:
    No. 12116.
    The Continental Trust & Savings Bank Co. v. Heinsen.
    Decided October 11, 1910.
    Error to Circuit Court of Lucas county.

      Messrs. Rhoades & Rhoades, for plaintiff in error.

      Mr. M. D. Merrick, for defendant in error.
   Judgment reversed on authority of The List & Son Co. v. Chase, 80 Ohio St., 42.

Summers, C. J., Crew, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 12198.
    The State of Ohio v. Aunger.
    Decided October 11, 1910.
    Error to Circuit Court of Ashtabula county.

      Mr. F. R. Hogue, prosecuting attorney, and Mr. H. E. Starkey, for plaintiff in error.

      Messrs. Taylor & Soules, for defendant in error.
   Judgment of the circuit court reversed and judgment of the court of common pleas affirmed.

Summers, C. J., Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 12274.
    Murray v. The State of Ohio.
    Decided October 11, 1910.
    Error to Circuit Court of Delaware county.

      Messrs. Marriott, Freshwater & Bliss and Mr. E. S. Owen, for plaintiff in error.

      Mr. F. A. McAllister, for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 12276.
    The State of Ohio v. Shriner.
    Decided October 11, 1910.
    Error to Circuit Court of Hocking county.

      Mr. H. E. Sparnon, prosecuting attorney, and Mr. O. W. H. Wright, for plaintiff in error.

      Mr. Edwin D. Ricketts;

      Mr. Elmer O. Pettit and Mr. C. V. Wright, for defendant in error.
   Judgment of the circuit court reversed and judgment of the court of common pleas affirmed.

Summers, C. J., Spear, Davis and Shauck, JJ., concur.


text:
    No. 12310.
    The State of Ohio v. Hughes.
    Decided October 11, 1910.
    Exceptions to Probate Court of Wood county.

      Mr. William Dunipace, prosecuting attorney; Mr. U. G. Denman, attorney-general; Mr. E. C. Froelich and Mr. George P. Hahn, for the exceptions.

      Mr. S. P. Harrison and Mr. W. B. Stevens, against the exceptions.
   Exceptions sustained.

Summers, C. J., Crew, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 12325.
    Wagner v. The State of Ohio.
    Decided October 11, 1910.
    Error to Circuit Court of Wyandot county.

      Messrs. Meek & Stalter, for plaintiff in error.

      Mr. H. H. Newell, prosecuting attorney, and Mr. U. G. Denman, attorney-general, for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 12326.
    Haupt v. The State of Ohio.
    Decided October 11, 1910.
    Error to Circuit Court of Wyandot county.

      Messrs. Meek & Stalter, for plaintiff in error. Mr. H. H. Newell,
      prosecuting attorney, and Mr. U. G. Denman, attorney-general, for defendant in error.

   Judgment affirmed.

Summers, C. J., Crew, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 12327.
    Straser v. The State of Ohio.
    Decided October 11, 1910.
    Error to Circuit Court of Wyandot county.

      Messrs. Meek & Stalter, for plaintiff in error.

      Mr. H. H. Newell, prosecuting attorney, and Mr. U. G. Denman, attorney-general, for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 12328.
    Scheidegger v. The State of Ohio.
    Decided October 11, 1910.
    Error to Circuit Court of Wyandot county.

      Messrs. Meek Sr Stalter, for plaintiff in error.

      Mr. H. H. Newell, prosecuting attorney, and Mr. U. G. Denman, attorney-general, for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 12329.
    Hinkleman v. The State of Ohio.
    Decided October 11, 1910.
    Error to Cir-court Court of Wyandot county.

      Messrs. Meek & Stalter, for plaintiff in error.

      Mr. H. H. Newell, prosecuting attorney, and Mr. U. G. Denman, attorney-general, for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 12352.
    The State of Ohio v. Wills.
    Decided October 11, 1910.
    Error to Circuit Court of Coshocton county.

      Mr. J. A. White; Mr. U. G. Denman, attorney-general; Mr. W. B. Wheeler and Mr. R. L. Donley, for plaintiff in error.

      Mr. J. C. Adams; Mr. James Glenn and Mr. T. H. Wheeler, for defendant in error.
   Judgment affirmed.

Crew, Shauck and Price, JJ., concur.


text:
    No. 12353.
    The State of Ohio v. Johnson.
    Decided October 11, 1910.
    Error to Circuit Court of Coshocton county.

      Mr. J. A. White; Mr. U. G. Denman, attorney-general; Mr. W. B. Wheeler and Mr. R. L. Donley, for plaintiff in error.

      Mr. J. C. Adams; Mr. James Glenn and Mr. T. H. Wheeler, for defendant in error.
   Judgment affirmed.

Crew, Shauck and Price, JJ., concur.


text:
    No. 12366.
    The State of Ohio v. Whiting.
    Decided October 11, 1910.
    Exceptions to Common Pleas Court off Summit county.

      Mr. Frank J. Rockwell, prosecuting attorney, and Mr. C. T. Grant, assistant prosecuting attorney, for the exceptions.

      Mr. Loyd R. Read, against the excepceptions.
   Exceptions overruled.

Crew, Davis, Shauck and Price, JJ., concur.


text:
    No. 12449.
    Humston v. The State of Ohio.
    Decided October 11, 1910.
    Error to Circuit Court of Greene county.

      Mr. M. R. Snodgrass and Mr. T. E. Scroggy, for plaintiff in error.

      Mr. William F. Orr, prosecuting attorney, and Mr. Harry D. Smith, city solicitor, for defendant in error.
   Judgment affirmed.

Davis, Shauck and Price, JJ., concur.


text:
    No. 12080.
    Gilfillan et al. v. The State, ex rel. Seymour, Prosecuting Attorney.
    Decided October 18, 1910.
    Error to Circuit Court of Franklin county.

      Mr. J. T. Holmes and Mr. J. H. Dyer, for plaintiffs in error.

      Messrs. Webber, McCoy, King & Game; Mr. Fred C. Rector; Mr. M. E. Thrailkill and Messrs. Huggins, Huggins, Johnson & Hoover, for defendant in error.
   Judgment affirmed.

Crew, Shauck and Price, JJ., concur.


text:
    No. 12083.
    Reese v. The Mannen & Esterly Co.
    Decided October 18, 1910.
    Error to Circuit Court of Cuyahoga county,

      Mr. E. Jay Pinney, for plaintiff in error.

      Messrs. Smith, Taft & Arter, for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew, Davis, Shauck and Price, JJ., concur.


text:
    No. 12090.
    Schradin, Admr., v. Harmon, Receiver, et al.
    Decided October 18, 1910.
    Error to Circuit Court of Butler county.

      Mr. Ed. H. Jones and Mr. Stanley Shaffer, for plaintiff in error.

      Messrs. Shotts & Millikin, for defendants in error.
   Judgment affirmed.

Summers, C. J., Crew, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 12091.
    International Harvester Co. of America v. Powell.
    Decided October 18, 1910.
    Error to Circuit Court of Hancock county.

      Messrs. Burket & Burket, for plaintiff in error.

      Messrs. Franks & Franks, for defendant m error.
   Judgment of the circuit court reversed and judgment of the court of common pleas affirmed.

Summers, C. J., Crew, Davis and Shauck, JJ., concur.


text:
    No. 12093.
    Schultis v. Gebhart.
    Decided October 18, 1910.
    Error to Circuit Court of Butler county.

      Mr. Walton S. Bowers and Mr. Harry S. Wonnell, for plaintiff in error.

      Messrs. Andrews, Harlan & Andrews, for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew, Davis and Shauck, JJ., concur.


text:
    No. 12099.
    The State, ex rel. Welty, Prosecuting Attorney, v. The Ohio National Bank of Lima.
    Decided October 18, 1910.
    Error to Circuit Court of Allen county.

      Mr. B. F. Welty, prosecuting attorney; Mr. Frank H. Downing and Mr. John W. Roby, for plaintiff in error.

      Mr. J. W. Halfhill, for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 12103.
    Myers v. Myers.
    Decided October 18, 1910.
    Error to Circuit Court of Richland county.

      Messrs. Cummings, McBride & Wolfe, for plaintiff in error.

      Mr. Clark B. Hines, for defendant in error.
   Judgment affirmed.

Summers, C. J., Spear and Davis, JJ., concur.


text:
    No. 12117.
    Darmody, Admr., v. Richardson et al., Receivers.
    Decided October 18, 1910.
    Error to Circuit Court of Butler county. Mr.

      M. R. Waite; Mr. J. D. Miller and Messrs. Shotts & Millikin, for plaintiff in error.

      Mr. B. F. Harwitz; Mr. L. A. Ireton and Mr. W. C. Shepherd, for defendants in error.
   Judgment affirmed.

Summers, C. J., Crew, Spear and Davis, JJ., concur.


text:
    No. 12119.
    The Newburgh Brick & Clay Co. v. Chojnicki.
    Decided October 18, 1910.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Green & Zmunt, for plaintiff in error.

      Mr. Geo. C. Johnson and Mr. Thos. S. Dunlap, for defendant in error.
   Judgment affirmed.

Summers, C. J., Spear and Davis, JJ., concur.


text:
    No. 12152.
    The Citizens Motor Car Co. v. Hamilton.
    Decided October 18, 1910.
    Error to Circuit Court of Hamilton county.

      Messrs. Maxwell & Ramsey, for plaintiff in error.

      Messrs. Horstman & Horstman, for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew, Spear, Shauck and Price, JJ., concur.


text:
    No. 12335.
    The State of Ohio v. Buddeke.
    Decided October 18, 1910.
    Error to Circuit Court of Hamilton county.

      Mr. Henry T. Hunt,prosecuting attorney, and Mr. Coleman Avery, assistant prosecuting attorney, for plaintiff in error.

      Mr. Louis J. Dolle; Mr. Ulric Sloane and Mr. J. B. O’Donnell, for defendant in error.
   Judgment affirmed.

Crew, Davis and Price, JJ., concur.


text:
    No. 12385.
    The State of Ohio v. Walker.
    Decided October 18, 1910.
    Exceptions to the Common Pleas Court of Delaware county.

      Mr. F. A. McAllister, prosecuting attorney; Mr. F. M. Marriott and Messrs. Pugh'& Pugh, for the exceptions.

      Mr. J. B. Waight, against the exceptions,
   Exceptions sustained.

Summers, C. J., Crew, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 12401.
    The State of Ohio v. Abt.
    Decided October 18, 1910.
    Error to Circuit Court of Stark county.

      Mr. Warren Thomas, for plaintiff in error.

      Messrs. Shields & Pomerene and Mr. Oscar M. Abt, for defendant in error.
   Judgment affirmed.

Crew, Spear and Shauck, JJ., concur.


text:
    No. 11323.
    Wheeler, Admx., v. Post et al.
    Decided October 25, 1910.
    Error to Circuit Court of Erie county.

      Mr. George E. Reiter and
      Mr. H. L. Peeke, for plaintiff in error.

      Messrs. King, Williams & Ramsey, for defendants in error.
   Judgment affirmed.

Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 11782.
    Edwards, Admr. de bonis non, v. Kyle, Exr.
    Decided October 25, 1910.
    Error to Circuit Court of Greene county.

      Mr. Horace L. Smith, for plaintiff in error.

      Mr. C. H. Kyle; Mr. Charles L. Spencer; Mr. W. S. Little and Mr. Louis Hicks, for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 12055.
    Taylor, Exrx., et al. v. Valentine et al.
    Decided October 25, 1910.
    Error to Circuit Court of Fulton county.

      Mr. George A. Everett and Messrs. Files & Paxson, for plaintiffs in error.

      Mr. Frank S. Ham and Mr. T. H. Limpert, for defendants in error.
   Judgment affirmed. Grounds stated in journal entry.

It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same is hereby, affirmed, on the ground that the. third amended petition stated a case in which the plaintiffs were entitled to ask the direction or judgment of the court respecting the rights of the parties in interest under the will in question, the court of common pleas erred in sustaining the demurrer and the circuit court properly reversed the judgment and remanded the cause to the court of common pleas for further proceeding. Other questions argued are not considered or determined.

Summers, C. J., Spear, Davis and Shauck, JJ., concur.


text:
    No. 12120.
    Hathaway v. The Toledo & Western Railroad Co.
    Decided October 25, 1910.
    Error to Circuit Court of Lucas county.

      Mr. J. H. Southard; Mr. M. D. Merrick and Mr. Ross Hedges, for plaintiff in error.

      Messrs. Smith & Baker, for defendant in error.
   Judgment affirmed.

Summers, C. J., Davis and Shauck, JJ., concur.


text:
    No. 12122.
    The Lake Shore Electric Ry. Co. v. Brandt.
    Decided October 25, 1910.
    Error to Circuit Court of Huron county.

      Mr. A. V. Andrews and Messrs. M. B. & H. H. Johnson, for plaintiff in error.

      Mr. Jesse Vickery and Messrs. C. P. & R. D. Wickham, for defendant in error.
   Judgment reversed and cause remanded.

Summers, C. J., Crew, Spear, Davis and Shauck, JJ., concur.


text:
    No. 12129.
    Jamison v. Wonders, Admr., et al.
    Decided October 25, 1910.
    Error to Circuit Court of Logan county.

      Messrs. Hozvenstine & Huston, for plaintiff in error.

      Mr. John R. Cassidy and Mr. Dozv Duncan, for defendants in error.
   Judgment affirmed.

Crew, Davis, Shauck and Price, JJ., concur.


text:
    No. 12131.
    The Peirce-Williams Co. v. The Keasbey-Mattison Co.
    Decided October 25, 1910.
    Error to Circuit Court of Montgomery county.

      Messrs. Rowe, Shuey, Matthews & James, for plaintiff in error.

      Messrs. Van Deman, Burkhart & Smith, for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew, Spear Davis and Shauck, JJ., concur.


text:
    No. 12140.
    Leech, an Infant, by etc., v. The Cleveland Trinidad Paving Co. et al.
    Decided October 25, 1910.
    Error to Circuit Court of Franklin county.

      Mr. C. D. Saviers and Mr. George E. Trump, for plaintiff in error.

      Mr. G. J. Marriott; Messrs. Belcher & Connor; Mr. E. L. Weinland, city solicitor; Mr. B. W. Gearhardt; Mr. J. L. Davies and Mr. Chas. A. Leach, for defendants in error.
   Judgment of the circuit court reversed and judgment of the court of common pleas modified. 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 which said circuit court should have rendered, and it appearing upon the evidence in the case that the primary liability for the injuries so sustained by said plaintiff is upon the Trinidad Paving Company.

It is considered and adjudged that the following modified judgment of the court of common pleas be entered: It is, therefore, considered by the court that the said James Bernard Leech, an infant, by E. Guy Leech, his next friend, recover from said defendants, The Cleveland Trinidad Paving Company and the city of Columbus, Ohio, the sum of $5,838, as heretofore by the verdict of the jury found due plaintiff, and interest thereon from the 18th day of June, 1908, together with his costs herein expended taxed to $-and that execution upon this judgment shall run, firstly, against said Trinidad Paving Company, and, secondly, against the city of Columbus on failure to realize the amount of said judgment on the execution against the said Trinidad Paving .Company.

Summers, C. J., Spear, Davis and Shauck, JJ.,


text:
    No. 12180.
    Hayback et al. v. Edwards et al., Exrs.
    Decided October 25, 1910.
    Error to Circuit Court of Greene county.

      Mr. Charles L. Spencer; Messrs. Frasier & Hicks and Mr. W. S. Little, for plaintiffs in error.

      Mr. Horace L. Smith and Mr. Harry D. Smith, for- defendant in error.
   Judgment affirmed.

Summers, C. J., Crew, Spear, Shauck and Price, JJ,, concur.


text:
    No. 12433.
    The State of Ohio v. Dodig.
    Decided October 25, 1910.
    Error to Circuit Court of Jefferson county.

      Mr. Jay S. Paisley, for plaintiff in error.

      Messrs. Erskine & Smith, for defendant in error.
   Judgment of the circuit court reversed and judgment of the court of common pleas affirmed.

Summers, C. J., Crew, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 11339.
    Veite, Admr., v. City of Cincinnati.
    Decided November 1, 1910.
    Error to Circuit Court of Hamilton county.

      Messrs. Phares, Gusweiler & Phares, for plaintiff in error.

      Mr. Edward M. Ballard, city solicitor, and Mr. Dudley V. Sutphin, assistant city solicitor, for defendant in error.
   Judgment affirmed on authority of City of Troy v. Brady, by etc., 67 Ohio St., 65, and Village of Mineral City v. Gilbow et al., 81 Ohio St., 263.

Summers, C. J., Crew, Davis, Shauck and Price, JJ., concur.


text:
    No. 11989.
    The State, ex rel. Nobil, v. Kline, Clerk of Courts.
    Decided November 1, 1910.
    Error to Circuit Court of Summit county.

      Messrs. Grant, Sieber & Mather and Messrs. Otis, Beery & Otis, for plaintiff in error.

      Messrs. Allen, Waters, Young & Andress, for defendant in error.
   Judgment affirmed.

Crew, Spear and Shauck, JJ., concur.


text:
    No. 12147.
    Fohner v. Billman, Constable.
    Decided November 1, 1910.
    Error to Circuit Court of Van Wert county.

      Mr. C. S. Mauk, for plaintiff in error.

      Mr. H. L. Conn, for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew, Davis and Shauck, JJ., concur.


text:
    No. 12153.
    Cooper Insurance Co. v. Stewart.
    Decided November 1, 1910.
    Error to Circuit Court of Knox county.

      Messrs. Owen & Carr and Mr. I. W. Mooney, for plaintiff in error.

      Messrs. Kerr & La Dow and Messrs. Waight & Moore, for defendant in error.
   Judgment affirmed.

Summers, C. J., Spear, Davis and Shauck, JJ., concur.


text:
    No. 12160.
    Hyde v. The American Gypsum Co.
    Decided November 1, 1910.
    Error to Circuit Court of Ottawa county.

      Mr. Scott Stahl, for plaintiff in error.

      Mr. George A. True, for defendant in error.
   Judgment affirmed.

Summers, C. J., Davis and Shauck, JJ., concur.


text:
    No. 12162.
    Wright v. Wright.
    Decided November 1, 1910.
    Error to Circuit Court of Lawrence county.

      Mr. T. N. Ross, for plaintiff in error.

      Mr. A. R. Johnson and Mr. Dan C. Jones, for defendant in error.
   Judgment affirmed.

Summers, C. J., Davis and Shauck, JJ., concur.


text:
    No. 12163.
    Phillips, Exrx., et al. v. Thompson et al.
    Decided November 1, 1910.
    Error to Circuit Court of Cuyahoga county.

      Messrs. Toland & Pearson, for plaintiffs in error.

      Mr. Amos B. Thompson and Mr. Charles P. Hine, for defendants in error.
   Judgment affirmed.

Summers, C. J., Davis and Shauck, JJ., concur.


text:
    No. 12257.
    The State, ex rel. Bates et al., v. Makemson et al., Commissioners et al.
    Decided November 1, 1910.
    Error to Circuit Court of Champaign county.

      Messrs. Buroker & Zimmer; Mr. James Kirnan and .Mr. John A. Price, for plaintiff in error.

      Mr. Ernest Thompson, prosecuting attorney, and Mr. George Waite, prosecuting attorney, for defendants in error.
   Judgment affirmed on authority of State, ex rel. v. Commissioners, 49 Ohio St., 301.

Summers, C. J., Crew, Spear, Shauck and Price, JJ., concur.


text:
    No. 12370.
    Mathers et al. v. City of Norwood et al.
    Decided November 1, 1910.
    Error to Circuit Court of Hamilton county.

      Mr. W. F. North, for plaintiffs in error.

      Mr. H. E. Engelhardt, for defendants in error.
   Judgment affirmed.

Crew, Spear and Shauck, JJ., concur.


text:
    No. 11199.
    The Pullman Co. v. Irvine, Receiver, et al.
    Decided November 15, 1910.
    Error to Circuit Court of Franklin county.

      Mr. Francis B. Daniels; Messrs. Squire, Sanders & Dempsey and Mr. Emmett Tompkins, for plaintiff in error.

      Messrs. Stewart & Stewart; Mr. F. C. Rector; Mr. Thomas E. Powell; Mr. J. T. Holmes, Jr., and Messrs. Herron, Gatch & James, for defendants in error.
   Judgment affirmed on rehearing.

Spear, Shauck and Price, JJ., concur.


text:
    No. 11350.
    The Chatfield & Woods Co. v. Blair.
    Decided November 15, 1910.
    Error to Circuit Court of Hamilton county.

      Mr. Joseph W. O’Hara, for plaintiff in error.

      Messrs. Roettinger & Gorman, for defendant in error.
   Judgment affirmed.

Summers, C. J., Spear, Shauck and Price, JJ., concur.


text:
    No. 11574.
    Pennsylvania Co. v. The First National Bank of Warren et al.
    Decided November 15, 1910.
    Error to Circuit Court of Trumbull county.

      Messrs. Arrel, Wilson & Harrington, for plaintiff in error.

      Mr. T. H. Gillmer and Mr. T. I. Gillmer, for defendants in error.
   Judgment affirmed. Grounds stated in journal entry.

This cause came on to be heard upon the transcript of the record of the circuit court and of the court of common pleas of Trumbull county and was argued by counsel.

Upon consideration whereof this, court, finding from the record of the court of common pleas that the claim of the plaintiff below was based upon allegations of permanent damage to plaintiffs property, and the cause was tried in that court upon said claim, .and was submitted to the jury by the trial court upon the instruction that unless the alleged injury was shown to have been permanent and irreparable there could be no recovery against the defendant company, it is here adjudged that the judgment rendered is a final judgment; and no future action could be maintained by plaintiff against the defendant company for damage to said property by reason of the wrongs complained of in the petition of said plaintiff.

Upon further consideration whereof this court finds no prejudicial error in the judgments and proceedings of the court of common pleas, or in the judgment of the circuit court affirming the same.

It is therefore considered and adjudged that the said judgment of the.circuit court be and the same is in all respects affirmed,' and there being reasonable ground for the prosecution of error no penalty is allowed.

Crew, Spear and Shauck, JJ., concur.


text:
    No. 11585.
    State, ex rel. Irish et al., v. Oviatt et al., Commissioners.
    Decided November 15, 1910.
    Error to Circuit Court of Summit county.

      Messrs. Kohler & Mottinger, for plaintiffs in error.

      Mr. Frank I. Rockwell, prosecuting attorney, and Mr. Henry M. Hagelbarger, for defendants in error.
   Judgment affirmed. Grounds stated in journal entry.

It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same is hereby, affirmed, upon the ground that although upon the facts alleged in the original petition herein the chemical company is without right to maintain said dam, the commissioners' may have-refused the order because they did not so find the facts to be; and upon the further ground that upon the assumption of the truth of said allegations the parties whose lands are injured by said obstruction are entitled to a mandatory injunction for its removal and there being that remedy in equity mandamus will not lie.

Crew, Spear and Shauck, JJ., concur.


text:
    No. 11594.
    Whigam et al. v. The First National Bank of Akron.
    Decided November 15, 1910.
    Error to Circuit Court of Summit county.

      Mr. G. M. Anderson, for plaintiffs in error.

      Messrs. Grant & Whittemore and Mr. F. H. Waters, for defendant in error.
   Judgment affirmed.

Crew, Spear and Shauck, JJ., concur.


text:
    No. 11873.
    Erie Railroad Co. v. Rodtke.
    Decided November 15, 1910.
    Error to Circuit Court of Mahoning county.

      Messrs. Hine; Kennedy & Manchester, for plaintiff in error.

      Messrs. Anderson, Anderson & Barnum, for defendant in error.
   Judgment of the circuit court reversed and judgment of the court of common pleas affirmed.

Crew, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 12173.
    Young v. Groner.
    Decided November 15, 1910.
    Error to Circuit Court of Stark county,

      Mr. D. F. Reinoehl, for plaintiff in error.

      Mr. Charles Krichbaum, for defendant in error.
   Judgment affirmed.

Summers, C. J., Davis and Shauck, JJ., concur.


text:
    No. 12179.
    Amstutz et al., Trustees, v. Graber.
    Decided November 15, 1910.
    Error to Circuit Court of Wayne county.

      Mr. Hiram B. Swartz, for plaintiffs in error.

      Mr. Eugene Carlin and Mr. Price Russell, for defendant in error.
   Judgment affirmed.

Summers, C. J., Spear, Shauck and Price, JJ., concur.


text:
    No. 12184.
    Brown et al., Partners as Eagle Storage & Moving Co., v. Gray.
    Decided November 15, 1910.
    Error to Circuit Court of Cuyahoga county.

      Mr. J. J. McCormick, for plaintiff in error.

      Mr. Jesse A. Fenner, for defendant in error.
   Judgment affirmed.

Summers, C. J., Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 12185.
    Modern Woodmen of America v. Robbins.
    Decided November 15, 1910.
    Error to Circuit Court of Tuscarawas county.

      Mr. Benjamin D. Smith and Messrs. Richards & Kinsey, for plaintiff in error.

      Mr. Henry Bowers and Mr. P. S. Olmstead, for defendant in error.
   Judgment. affirmed.

Spear, Davis and Price, JJ., concur.


text:
    No. 12189.
    Leiner v. The Board of Commissioners of Wayne County.
    Decided November 15, 1910.
    Error to Circuit Court of Wayne county.

      Mr. A. D. Metz and Mr. J. O. Fritz, for plaintiff in error.

      Mr. Eugene Carlin and Mr. L. R. Critchfield, Jr., for defendants in error.
   Judgment affirmed.

Spear. Davis and Price, JJ., concur.


text:
    No. 12195.
    Gast v. Jones.
    Decided November 15, 1910.
    Error to Circuit Court of Delaware county.

      Messrs. Marriott, Freshwater & Bliss and Mr. George W. Barry, for plaintiff in error.

      Messrs. Jewell & Benton, for defendant in error.
   Judgment affirmed.

Spear, Davis and Price, JJ., concur.


text:
    No. 12197.
    The Dennison Mining Co. v. Hughes.
    Decided November 15, 1910.
    Error to Circuit Court of Tuscarawas county.

      Mr.. John A. Buchanan, for plaintiff in error.

      Mr. G. W. Reed and Mr. J. F. Greene, for defendant in error.
   Judgment affirmed.

Spear, Davis and Price, JJ., concur.


text:
    No. 12219.
    The Delaware Gas Co. v. Park.
    Decided November 15, 1910.
    Error to Circuit Court of Delaware county.

      Messrs. Arnold, Morton & Irvine and Messrs. Jewell & Benton, for plaintiff'in error.

      Messrs. Pugh & Pugh and Messrs. Marriott & Freshwater, for defendant in error.

   Judgment affirmed.

Summers, C. J., Crew, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 12295.
    Craine, Admr., v. Radcliffe et al.
    Decided November 15, 1910.
    Error, to Circuit Court of Wood county.

      Mr. A. P. Crane and Mr. F. P. Riegle, for plaintiff in error.

      Mr. Benjamin F. James, for defendants in error.
   Judgment affirmed.

Crew, Spear and Shauck, JJ., concur.


text:
    No. 11359.
    Dominick v. The Stowe-Fuller Co.
    Decided November 22, 1910.
    Error to Circuit Court of Cuyahoga county.

      Mr. W. S. Kerruish and Messrs. A. A. & A. H. Bemis, for plaintiff in error.

      Messrs. Henry & Couse and Mr. Horace Andrevus, for defendant in error.
   Judgment affirmed.

Summers, C. J., Davis, Shauck and Price, JJ., concur.


text:
    No. 11364.
    Switzer v. Howey.
    Decided November 22, 1910.
    Error to Circuit Court of Wayne county.

      Messrs: Kean & Adair, for plaintiff in error.

      Messrs. Weygandt & Weiser, for defendant in error.
   Judgment affirmed.

Summers, C. J., Davis, Shauck and Price, JJ., concur.


text:
    No. 11582.
    Boynton v. Straus et al.
    Decided November 22, 1910.
    Error to Circuit Court of Lorain county.

      Mr. Norton T. Horr and Mr. W. W. Boynton, for plaintiff in error.
    Messrs. Webber, Wilford & Gillie, for defendants in error.
   On rehearing; former judgment adhered to.


text:
    No. 11595.
    Snell v. The W. A. Banks Co.
    Decided November 22, 1910.
    Error to Circuit Court of Cuyahoga county.

      Mr. David B. Carpenter, for plaintiff in error.

      Messrs. White,

      Johnson, McCaslin & Cannon, for defendant in error.
   Judgment affirmed.

Crew, Spear and Shauck, JJ., concur.


text:
    No. 11898.
    The Mahoning Valley Railway Co. v. Anderson, by etc.
    Decided November 22, 1910.
    Error to Circuit Court of Mahoning county.

      Messrs. Arrel, Wilson & Harrington, for plaintiff in error.

      Messrs. Anderson, Anderson & Barnum, for defendant in error.
   Judgment affirmed.

Spear, Davis and Price, JJ., concur.


text:
    No. 12164.
    Renner, Jr., v. Hermann.
    Decided November 22, 1910.
    Error to Circuit Court of Mahoning county.

      Mr. E. N. Brown, for plaintiff in error.

      Mr. Aaron Esterly and Mr. M. C. McNab, for defendant in error.
   Judgment affirmed.

Summers, C. J., Shauck and Price, JJ., concur.


text:
    No. 12188.
    Swartz v. Young.
    Decided November 22, 1910.
    Error to Circuit Court of Clark county.

      Mr. John M. Cole and Mr. Chase Stewart, for plaintiff in error.

      Messrs. Martin & Martin, for defendant in error.
   Judgment affirmed.

Spear, Davis and Shauck, JJ., concur.


text:
    No. 12207.
    Schneider v. Graus.
    Decided November 22, 1910.
    Error to Circuit Court of Clermont county.

      Messrs. Griffith & Nichols and
      Messrs. Nichols & Nichols, for plaintiff in error.

      Mr. J. R. Woodlief and Messrs. Frasier & Flicks, for defendant in error.
   Judgment of the circuit court reversed and judgment of the court of common pleas affirmed.

Summers, C. J., Spear, Davis and Shauck, JJ., concur.


text:
    No. 12215
    The Cleveland, Southwestern & Columbus Railway Co. v. Crandall, Admx.
    Decided November 22, 1910.
    Error to Circuit Court of Lorain county.

      Mr. A. V. Andrews and Mr. Q. A. Gillmore, for plaintiff in error.

      Messrs. Ingersoll & Stetson and Messrs. Herrick & Hopkins, for defendant in error.
   Judgment reversed and judgment for plaintiff in error.

Summers, C. J., Davis, Shauck and Price, JJ., concur.


text:
    No. 12266.
    Miller, Jr., v. The Board of Trustees of Van Buren Township et al.
    Decided November 22, 1910.
    Error to Circuit Court of Darke county.

      Mr. D. W. Bowman, for plaintiff in error.

      Messrs. Robeson & Yount, for defendants in error.
   Judgment affirmed.

Summers, C. J., Davis, Shauck and Price, JJ., concur.


text:
    No. 12313.
    The Mansfield Railway, Light & Power Co. v. Davis, Admx.
    Decided November 22, 1910.
    Error to Circuit Court of Richland county.

      Messrs. Cummings, McBride & Wolfe, for plaintiff in error.

      Mr. W. S. Kerr and Mr.

      Jesse E. La Dow, for defendant in error.
   Judgment affirmed.

Summers, C. J., Davis and Price, JJ., concur.


text:
    No. 12314.
    A. Leschen & Sons Rope Co. v. The Columbus Tool & Supply Co.
    Decided November 22, 1910.
    Error to Circuit Court of Franklin county.

      Messrs. Stewart & Stewart, for plaintiff in error.

      Messrs. Arnold, Morton & Irvine; Messrs. Watson, Stouffer & Davis and Mr. Q. R. Lane, for defendants in error.
   Judgment affirmed.

Crew, Davis, Shauck and Price, JJ., concur.


text:
    No. 12367.
    The State of Ohio v. Marple et al.
    Decided November 22, 1910.
    Exceptions to the Common Pleas Court of Lorain county.

      Mr. F. M. Stevens, prosecuting attorney, for the exceptions.

      Mr. P. H. Boynton, against the exceptions.
   Exceptions overruled.

Summers, C. J., Spear, Shauck and Price, JJ., concur.


text:
    No. 12412.
    Harmon, Receiver, v. Aldridge.
    Decided November 22, 1910.
    Error to Circuit Court of Lawrence county.

      Mr. A. R. Johnson; Mr. Dan C. Jones and Mr. W. I. Meyer, for plaintiff in error.

      Mr. J. O. Yates and Mr. T. A. Jenkins, for defendant in error.
   Judgment affirmed.

Summers, C. J., Spear, Shauck and Price, JJ., concur.


text:
    No. 12206.
    Pennsylvania Company v. Kronenberger.
    Decided November 29, 1910.
    Error to Circuit Court of Crawford county.

      Messrs. Wheeler & Bentley, for plaintiff in error.

      Mr. Thomas Beer and Mr. James C. Tobias, for defendant. in error.
   Judgment affirmed.

Summers, C. J., Spear and Price, JJ., concur.


text:
    No. 12211.
    Brooks v. The City of Cleveland.
    Decided November 29, 1910.
    Error to Circuit Court of Cuyahoga county.

      Mr. Frank C. Scott, for plaintiff in error.

      Mr. Newton D. Baker, city solicitor, and Messrs.

      Wilcox, Wilkin, Stevens & Hostetler, for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew, Spear and Shauck, JJ., concur.


text:
    No. 12214.
    Rudin v. Fauver et al.
    Decided November 29, 1910.
    Error to Circuit Court of Lorain county.

      Messrs. F. & J. Rudin, for plaintiff in error.

      Messrs. Stroup & Fauver, for defendants in error.
   Judgment affirmed.

Davis, Shauck and Price, JJ., concur.


text:
    No. 12220.
    Ganz v. The State, ex rel. Sayles, Prosecuting Attorney.
    Decided November 29, 1910.
    Error to Circuit Court of Sandusky county.

      Mr. J. D. Finch and Mr. M. W. Hunt, for plaintiff in error.

      Mr. E. C. Sayles, prosecuting attorney, for defendant in error.
   Judgment affirmed.

Davis, Shauck and Price, JJ., concur.


text:
    No. 12225.
    The City of Middletown v. Fetzer.
    Decided November 29, 1910.
    Error to Circuit Court of Butler county.

      Mr. H. L. Bell and Messrs. Andrews, Harlan & Andrews, for plaintiff in error.

      Mr. B. F. Harwitz and Mr. W. C. Shepherd, for defendant in error.
   Judgment affirmed.

Summers, C. J., Davis and Shauck, JJ., concur.


text:
    No. 12411.
    The Mutual Life Insurance Co. of N. Y. v. The State of Ohio.
    Decided November 29, 1910.
    Error to Circuit Court of Franklin county.

      Mr. James McKeen and Messrs. Arnold, Morton & Irvine, for plaintiff in error.

      Mr. U. G. Denman, attorney-general, and Mr. I. M. Sheets, for defendant in error.
   Judgment of the circuit court reversed and judgment of the court of common pleas affirmed on authority of Mutual Life Ins. Co. of N. Y. v. The State of Ohio, 79 Ohio St., 305.

Summers, C. J., Crew, Davis, Shauck and Price, JJ., concur.


text:
    No. 11316.
    The Colonial Distillery Co. v. Luce.
    Decided December 6, 1910.
    Error to Circuit court of Greene county:

      Messrs. McMahon & McMahon and Mr. Charles Darlington, for plaintiff in error.

      Mr. E. D. Smith and Messrs. Gowdy & Douglass, for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew, Spear and Price, JJ., concur.


text:
    No. 11328.
    Fugate, an Infant, by etc., v. Crabtree et al.
    Decided December 6, 1910.
    Error to Circuit Court of Franklin county.

      Messrs. Warner & Halterman, for plaintiff in error.

      Messrs. Seaton & Paine and Messrs. Williams, Williams & Taylor, for defendants in error.
   Judgment affirmed.

Crew, Davis, Shauck and Price, JJ., concur.


text:
    No. 11363.
    Finley v. Miller.
    Decided December 6, 1910.
    Error to Circuit Court of Jefferson county.

      Mr. Ernest Finley and Messrs. McClave & McClave, for plaintiff in error.

      Messrs. West & West and Messrs. Erskine & Smith, for defendant in error.
   Judgment of the circuit court reversed and judgment of the court of common pleas affirmed.

Summers, C. J., Crew, Spear and Shauck, JJ., concur.


text:
    No. 11587.
    Swett v. The Mutual Benefit Life Ins. Co.
    Decided December 6, 1910.
    Error to Circuit Court of Richland county.

      Mr. Lewis Brucker and Mr. B. F. Long, for plaintiff in error.

      Mr. John R. Sayler and Messrs. Cummings, McBride & Wolfe, for defendant in error.
   Judgment affirmed.

Crew, Davis and Shauck, JJ., concur. Summers, C. J., and Spear, J., dissent.


text:
    No. 11623.
    Recker v. Recker et al.
    Decided December 6, 1910.
    Error to Circuit Court of Putnam county.

      Messrs. Handy & Unverferth and Messrs. Bailey & Leasure, for plaintiff in error.

      Messrs. Straman & Straman and Messrs. Risser & Smith, for defendants in error.
   Judgment reversed and judgment for plaintiff in error. Grounds stated in journal entry.

It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same hereby is, reversed upon the ground that the deed tendered by said plaintiff, in error was a complete performance of his contract, since in said contract he had stipulated not for a title free from dower, but for a deed with covenant against dower. And this court proceeding to render the judgment which said circuit court should have rendered, the judgment .of said court of common pleas is reversed and the original petition in said cause dismissed.

Crew, Spear, Davis and Shauck, JJ., concur.


text:
    No. 12167.
    The M. O’Neil & Co. v. Perry.
    Decided December 6, 1910.
    Error to Circuit Court of Summit county.

      Messrs. Musser, Kimber & Huffman, for plaintiff in error.

      Messrs. Skiles, Green & Skiles and Mr. W. R. Talbot, for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew, Spear, Davis, Shauck and. Price, JJ., concur.


text:
    No. 12212.
    The Village of Wadsworth v. Butler.
    Decided December 6, 1910.
    Error to Circuit Court of Medina county.

      .Mr. Frank

      Heath and Messrs. Frank & Ream, for plaintiff in error.

      Messrs. Rogers & Rowley, for defendant in error.
   Judgment of the circuit court reversed and judgment of the court of common pleas affirmed.

Summers, C. J., Spear, Davis and Shauck, JJ., concur.


text:
    No. 12222.
    Price, Administrator de bonis non, v. Kennedy et al.
    Decided December 6, 1910.
    Error to Circuit Court of Logan county.

      Mr. Charles L. Fess and Mr. John A. Price, for plaintiff in error.

      Messrs. Briggs & Stewart and Messrs. West & West, for defendants in error.
   Judgment affirmed.

Summers, C. J., Spear and Shauck, JJ., concur.


text:
    No. 12230.
    The Cleveland Provision Co. v. Jackson et al.
    Decided December 6, 1910.
    Error to Circuit Court of Lorain county.

      Messrs. Ingersoll & Stetson, for plaintiff in error.

      Mr. W. B. Johnston, for defendants in error.
   Judgment affirmed.

Summers, C. J., Crew, Spear, Davis and Shauck, JJ., concur.


text:
    No. 12237.
    The Council of the City of Toledo v. State, ex rel. Davis, a Taxpayer.
    Decided December 6, 1910.
    Error to Circuit Court of Lucas county.

      Mr. Cornell Schreiber, city solicitor, and Mr. Alonso G. Duer, for plaintiff in error.

      Mr. Harry Levison, for defendant in error.
   Judgment of the circuit court and of the court of common pleas reversed and petition dismissed. Grounds stated in journal entry.

It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same hereby is, reversed upon the ground that Aaron Davis as a taxpayer was not entitled to make the relation in said case. And this court proceeding to render the judgment which said circuit court should have rendered, it is considered and adjudged that the demurrer to the petition of said relator be, and the same hereby is sustained, and said original petition is dismissed.

Summers, C. J., Crew, Spear and Shauck, JJ., concur.


text:
    No. 12241.
    Ancin et al. v. Ksenich et al.
    Decided December 6, 1910.
    Error to Circuit Court of Cuyahoga county.

      Mr. Eli E. Dosier and Mr. Lindley Fogg, for plaintiffs in error.

      Messrs. Palda & Svarc, for defendants in error.
   Judgment of the circuit court reversed and cause remanded to that court for further proceedings on authority of Charles v. Fawley et al., 71 Ohio St., 50.

Summers, C. J., Crew, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 12243.
    Webster v. Miller.
    Decided December 6, 1910.
    Error to Circuit Court of Lorain county.

      Mr. I. A: Webster, for plaintiff in error.

      Mr. G. A. Resek, for defendant in error.
   Judgment affirmed.

Summers, C. J., Spear and Shauck, JJ., concur.


text:
    No. 12260.
    Woebkenberg, a Minor, by etc. v. The Homan Manufacturing Co.
    Decided December 6, 1910.
    Error to Circuit Court of Hamilton county.

      Mr. Arthur C. Fricke and Air. Thomas L. Michie, for plaintiff in error.

      Messrs. Worthington & Strong, for defendant in error.'
   Judgment affirmed.

Summers, C. J., Spear, Davis and Shauck, JJ., concur.


text:
    No. 12561.
    The State of Ohio v. Ruggles et al.
    Decided December 6, 1910.
    Exceptions to Common Pleas Court of Franklin county.

      Messrs. Webber, McCoy, King & Game, for the exceptions.

      Mr. Cyrus Huling; Mr. Ralph West-fall; Mr. E. D. Howard and Mr. James M. Butler, against the exceptions.
   Exceptions overruled, on the ground that the indictment does not sufficiently charge that the bill paid was not a valid claim against the state.

Crew, Shauck and Price, JJ., concur.


text:
    No. 11409.
    Miller et al. v. Stasel, Receiver.
    Decided December 13, 1910.
    Error to Circuit Court of Licking county.

      Mr. Robbins Hunter and Messrs. Kobler & Montgomery, for plaintiffs in error.

      Mr. Albert A. Stasel, for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew, Spear and Davis, JJ., concur. Price, J., dissents.


text:
    No. 11428.
    Layne, Admr., v. The Board of Education of Aid Township.
    Decided December 13, 1910.
    Error to Circuit Court of Lawrence county.

      Mr. A. J. Layne and Mr. A. R. Johnson, for plaintiff in error.

      Mr. L. R. Andrews, for defendant in error.
   Judgment affirmed.

Davis, Shauck and Price, JJ., concur. Summers, C. J., dissents.


text:
    No. 11897.
    The Ohio Iron & Steel Co. v. Heffinger, Admx.
    Decided December 13, 1910.
    Error to Circuit Court of Mahoning county.

      Mr. Myron A. Norris and Mr. James V. Murphy, for plaintiff in error.

      Messrs. Anderson, Anderson & Barnum, for defendant in error.
   Judgment affirmed.

Summers, C. J., Spear and Price, JJ., concur.


text:
    No. 12039.
    The Baltimore & Ohio Railroad Co. v. Oldham.
    Decided December 13, 1910.
    Error to Circuit Court of Lorain county.

      Mr. J. M. Lessick; Messrs. E. G., H. C. & T. C. Johnson, for plaintiff in error.

      Messrs. Skiles, Green & Skiles and Messrs. Stroup & Fauver, for defendant in error.
   Judgment affirmed.

Summers, C. J., Spear and Price, JJ., concur.


text:
    No. 12079.
    The Western Ohio Railway Co. v. Thomas.
    Decided December 13, 1910.
    Error to Circuit Court of Allen county.

      Messrs. Wheeler & Bentley; Messrs. Armstrong & Armstrong and Messrs. Goeke & Anderson, for plaintiff in error.

      Mr. Kent W. Hughes, for defendant in error.
   Judgment affirmed.

Summers, C. J., Spear and Price, JJ., concur.


text:
    No. 12187.
    The Railroad Commission of Ohio v. The Ann Arbor Railroad Co. et al.
    Decided December 13, 1910.
    Error to Circuit Court of Franklin county.

      Mr. U. G. Denman, attorney-general; Mr. Freeman T. Eagleson and Mr. John R. Horst, for plaintiff in error.

      Messrs. Wilson & Rector; Mr. F. A. Durban; Messrs. Squire, Sanders & Dempsey; Mr. R. F. Denison; Mr. Theodore W. Reath; Mr. C. O. Hunter and M. Edward Colston, for defendants in error.
   Judgment affirmed.

Summers, C. J., Davis and Price, JJ., concur.


text:
    No. 12216.
    Sykora v. Djurdjeg.
    Decided December 13, 1910.
    Error to Circuit Court of Cuyahoga county.

      Mr. W. C. Rogers, for plaintiff in error.

      Messrs. Falda & Svarc, for defendant in error.
   Judgment affirmed.

Summers, C. J., Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 12227.
    Renick et al. v. Adams et al.
    Decided December 13, 1910.
    Error to Circuit Court of Franklin county.

      Messrs. Pugh & Pugh and Mr. I. N. Abernethy, for plaintiffs in error.

      Mr. Charles J. Pretzman; Messrs. Williams, Williams, Taylor & Nash-, and Mr. W. O. Hender
      son, for defendants in error.
   Judgment affirmed.

Summers, C. J., Spear, Davis and Shauck, JJ., concur.


text:
    No. 12240.
    The James Mullins Coal Co. v. Cox.
    Decided December 13, 1910.
    Error to Circuit Court of Tuscarawas county.

      Mr. J. G. Patrick and Mr. P. S. Olmstead, for plaintiff in error.

      Messrs. Wilkin & Wilkin, for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew, Spear, Shauck and Price, JJ., concur.


text:
    No. 12261.
    The Ohio Mutual Life Insurance Co. v. Hoffmann.
    Decided December 13, 1910.
    Error to Circuit Court of Hamilton county.

      Messrs. Peck, Shaffer & Peck, for plaintiff in error.

      Mr. Joseph B. Kelley, for defendant in error.
   Judgment affirmed.

Spear, Davis and Shauck, JJ., concur.


text:
    No. 12275.
    Maurath v. Stasel, Receiver.
    Decided December 13, 1910.
    Error to Circuit Court of Licking county.

      Messrs. Smythe & Smythe and Messrs. Kibler &. Montgomery, for plaintiff in error.

      Mr. A. A. Stasel, for defendant in error.
   Judgment affirmed.

Summers, C. J., Davis and Shauck, JJ., concur.


text:
    No. 12346.
    The Cincinnati, Hamilton & Dayton Railway Co. v. Tafelski, Admr.
    Decided December 13, 1910.
    Error to Circuit Court of Lucas county.

      Mr. Morison R. Waite and Mr. Julian H. Tyler, for plaintiff in error:

      Mr. O. S. Brumbacky for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew, Davis, Shauck and Price, JJ., concur.


text:
    No. 12347.
    The Superior Portland Cement Co. v. Irish, Admr.
    Decided December 13, 1910.
    Error to Circuit Court of Lawrence county.

      Mr. A. R. Johnson; Mr. Dan C. Jones and Mr. W. J. Meyer, for plaintiff in error.

      Messrs. Andrews & Irish, for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew and Spear, JJ., concur.


text:
    No. 12616.
    Clifton v. The State of Ohio.
    Decided December 13, 1910.
    Error to Circuit Court of Van Wert county.

      Mr. O. A. Balyeat and Mr. H. L. Conn, for plaintiff in error.

      Mr. O. W. Kerns and Mr. W. H. Dailey, for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew, Davis and Shauck, JJ., concur.


text:
    No. 11465.
    Thompson v. Schnader et al.
    Decided December 20, 1910.
    Error to Circuit Court of Summit county.

      Messrs. Kohler & Mottinger, for plaintiff in error.

      Messrs. Falmly & Castle; Mr. J. M. Poulson and Messrs. Grant & Whittemore, for defendants in error.
   Judgment affirmed.

Summers, C. J., Crew, Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 11467.
    Kaufman v. Wahl.
    Decided December 20, 1910.
    Error to Circuit Court of Hamilton county.

      Mr. Moses Ruskin and Mr. J. L. Kohl, for plaintiff in error.

      Messrs. Bates & Meyer, for defendant in error.
   Judgment affirmed.

Summers, C. J., Spear arid Davis, JJ., concur.


text:
    No. 11481.
    Lees et al., Trustees of Clay Township, v. Miller.
    Decided December 20, 1910.
    Error to Circuit Court of Montgomery county.

      Mr. Charles H. Kumler, for plaintiffs in error.

      Messrs. Chamberlain & Kuhns and Mr. W. A. Hallanan, for defendant in error.
   Judgment affirmed.

Crew, Davis, Shauck and Price, JJ., concur.


text:
    No. 11486.
    Davis, Admr., v. The Union Central Life Insurance Co.
    Decided December 20, 1910.
    Error to Circuit Court of Franklin county.

      Messrs. Pavey & Kahle and Messrs. Pugh & Pugh, for plaintiff in error.

      Mr. T. E. Powell and Mr. Robert Ramsey, for defendant in error.
   Judgment affirmed.

Crew, Spear, Davis and Shauck, JJ., concur.


text:
    No. 11634.
    Raison v. Pauley et al.
    Decided December 20, 1910.
    Error to Circuit Court of Montgomery county.

      Messrs. Thompson & Thompson; Mr. C. L. Raison, Jr.; Mr. L. S. Crickmore and Messrs. Galvin & Galvin, for plaintiff in error.

      Mr. Chas. E. Benedict and Messrs. McMahon & McMahon, for defendants in error.
   Judgment affirmed.

Crew, Spear and Shauck, JJ., concur.


text:
    No. 11639.
    The Grimes Candy Co. v. Menuez.
    Decided December 20, 1910.
    Error to Circuit Court of Erie county.

      Mr. H. L. Peeke, for plaintiff in error.

      Messrs. King, Guerin & Ramsey, for defendant in error.
   Judgment affirmed.

Crew, Spear and Shauck, JJ., concur.


text:
    No. 12248.
    The Mahoning Valley Railway Co. v. Harnett, a Minor, by etc.
    Decided December 20, 1910.
    Error to Circuit Court of Mahoning county.

      Messrs. Arrel, Wilson & Harrington, for plaintiff in error.

      Messrs. Anderson, Anderson & Barnum and Mr. D. F. Anderson, for defendant in error.
   Judgment of the circuit court reversed and judgment of the court of common pleas affirmed. Grounds stated in journal entry.

This court is of opinion that, whether the answer in this case should be considered a plea charging contributory negligence on the part of -the plaintiff below, or not, the instruction given by the court of common pleas to the jury with respect to the subject of negligence and contributory negligence was and is not prejudicial to the rights of the plaintiff below, and that the circuit court erred in reversing the judgment of the court of common pleas upon the ground in its judgment stated. It is therefore considered and adjudged by this court that the judgment of said circuit court be and the same is hereby reversed for error in reversing" and in not affirming the judgment of the court of common pleas. It is further considered that the said judgment of the court of common pleas be and the same is hereby in all things affirmed.

Summers, C. J., Crew, Spear, Davis and Shauck, JJ., concur.


text:
    No. 12264.
    The J. D. Smith Foundry Co. v. The Lorain County Banking Co.
    Decided December 20, 1910.
    Error to Circuit Court of Lorain county.

      Messrs. E. G., H. C. & T. C. Johnson and Messrs. White, Johnson & Cannon, for plaintiff in error.

      Messrs. Stroup & Fauver, for defendant in error.
   Judgment affirmed.

Summers, C. J., Crew, Spear, Shauck and Price, JJ., concur.