author: By ti-ie Court.

text:
    The State of Ohio v. Murray.

      Accused indicted for owning building — In which bucket-shop was permitted — Proof that owner himself conducted business — Variance between indictment and facts — ATo warrant for verdict for defendant — Claim of privilege by witness.

    1. Where on the trial of an indictment charging the accused as owner and occupier of a certain building, with having unlawfully and knowingly permitted to be kept therein a bucket-shop office and place wherein he permitted the pretended- buying and selling of stocks, grain, etc., on margins, the proof shows that the accused himself kept the place and personally conducted and carried on therein said unlawful business, there is no such variance between the allegations of the indictment and the facts proved as to warrant the court in directing a verdict for the defendant.
    2. When a witness refuses to answer a question propounded to him, on the ground that his answer will tend to criminate him, his claim of privilege is properly allowed by the court if from the circumstances of the particular case and the nature of the question asked, it appears there is reasonable ground to apprehend that his answer would have the effect claimed by him.
    (No. 12109
    Decided June 7, 1910.)
    Exceptions by prosecuting attorney to decision of the Court of Common Pleas of Coshocton county.
    This case comes into, this court under favor of Sections 7305 and 7306, Revised Statutes, on ex-' ceptions filed by the prosecuting attorney to the decision of the court of common pleas of Coshocton county. The facts so far as thev are material to the points presented are stated in the opinion of the court.

      Mr. Joseph L. McDowell, prosecuting attorney, and Mr. William S. Merrell, assistant prosecuting attorney, for the exceptions.
    The view the trial court seemed to take of testimony was that all the evidence introduced showed that the defendant was an active participant in all the transactions had in said place and that it did not matter whether he acted as agent for some other person or for himself he was nevertheless not guilty under Section 6934a-5, Revised Statutes; in other words, that a person, guilty of doing any ,of the acts prohibited by Section 6934a-l, Revised Statutes, could not be convicted under Section 6934a-5, Revised Statutes. This view of the court was clearly erroneous; for, if the court should hold that a person could not be convicted of permitting himself to do these acts in his own building, he could certainly be convicted if he permitted others to do the same acts in his building, and this the testimony tended to prove., The court seems to lose sight of the fact that Section 6934a-l is aimed at the act and Section 6934a-5 is aimed at the improper use of his property. This indictment not only charges that defendant knowingly permitted (a) the keeping of a bucket-shop but also (b) the pretended buying and selling in his building. If the evidence showed that he permitted either, he was properly indicted and was guilty under the evidence as given. Groves v. State, 51 S. E. Rep., 627.
    The words “permit,” “allow,” “suffer,” are synonymous in popular speech. Statutes should be construed with reference to convenience, and the object sought, rather than nice philological distinctions, which probably never entered the mind of the general assembly. Board v. Board, 10 C. C., 620, 54 Ohio St., 643; Thompson v. Ackerman, 21 C. C., 747; 9 Words & Phrases Judicially Defined, 5315; Gregory v. United States, 17 Blatch., 330.
    As to the refusal of Rex to answer certain questions the court said: “Mr. Rex, it is your right to refuse to answer any question tvhich in any way might tend to incriminate you in any manner. It is for you to determine for yourself whether the answer to the question in any manner would tend to incriminate you, and if you think it would you can refuse to answer.”
    Counsel for the state then insisted the court pass upon the question and determine whether his answer would tend to incriminate him and that the court had power to institute an inquiry into the matter, but the court refused.
    This case illustrates the danger to which such a rule of the court would lead. In cases of this kind where all the parties are in league against the enforcement of the law, all they would have to do would be to answer, “I refuse to answer. I will place it on the ground that it might tend to incriminate me,” and it would be impossible to procure a conviction. This court has touched upon this question before and if we construe the language of the court correctly, the trial court was certainly in error. McGorray v. Sutter, 80 Ohio St., 400.

      Mr. James Glen and Mr. J. C. Adams, against the exceptions.

      The indictment was drawn under favor of Section 6934a-5, Revised Statutes, which makes it an offense to permit a building to be used for a “bucket-shop.” That statute has no application to cases where the owner himself of the building is engaged in keeping a “bucket-shop” or buying and selling stocks and grains on margins, as such offenses are condemned by Section 6934a-1, Revised Statutes. That Sections 6934a-1 and 6934a-5 define different and distinct offenses is clearly manifest, as under each respectively the penalties vary in amount.
    If the defendant was actually engaged in operating a “bucket-shop” he should have been indicted for keeping a place, under Section 6934a-l, Revised Statutes.
    We maintain the court was right in not requiring Rex to answer certain questions put to him, because their answers would disclose incriminating evidence against himself.
    While we do not contend that the conclusion of the witness that his answer “might tend to incriminate him,” is in all cases conclusive upon the court; but it' is manifest in this case that inquiry by the court would invade the immunity of the witness. The ruling of the court in this case is not in conflict with the rule announced in McGorray v. Sutter, 80 Ohio St., 400.
   By ti-ie Court.

At the January term, 1909, of the court of common pleas of Coshocton county, the grand jury of said county returned against the defendant herein, John J. Murray, the following indictment:

“The jurors of the grand jury of the state of Ohio, within and for the body of the county of Coshocton, impaneled, sworn and charged to inquire of crimes and offenses committed within said county of Coshocton, in the name and by the authority of the state of Ohio, on their oaths do find and present that John J. Murray, late of said county, on the first day of November in the year of our Lord one thousand nine hundred and eight in said county of Coshocton and state of Ohio, and on divers other days and times between that day and the first day of February, A. D. 1909, in said county and state, unlawfully and knowingly did permit to be kept in a certain brick building and erection of his, the said John J. Murray, the same brick building being then and there in the care and possession of him, the said John J. Murray, a bucket-shop, office and place there situate, wherein he, the said John J. Murray, permitted and suffered the buying and selling of stock of divers railroad companies, the names of which are to the grand jurors unknown, and the •buying and selling of wheat, corn, oats and other produce on margins without any intention on the part of the buyer or seller of receiving or paying for the property so bought, or of delivering the property so sold; and wherein he, the said John J. Murray, permitted and suffered the pretended buying and selling of such property on margins; wherein divers persons whose names are to the •grand jurors aforesaid unknown, bought and sold such property, and offered to buy the same, but did not at the time intend to receive the said property so purchased, or to deliver the property so sold; and wherein the said John J. Murray permitted and suffered said divers persons to contract for option to buy and sell at a future time wheat, corn, oats and stocks of such divers railroad companies, wherein such persons intended at the time aforesaid, to-wit: at the time the contract for such option was entered into, to secure not the article contracted for in said option, but the right and privilege of receiving the difference in money between the contract price of such article or commodity as set forth in said option, and for which the option was contracted for, and the future market price of said article or commodity contemplated in said option, and wherein there was no intention upon the part of the buyer or seller of receiving or paying for the article or commodity or of delivering the article or commodity for which such option was bought or sold, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Ohio.

“Joseph L. McDowell,
“Prosecuting Attorney

Said indictment was found and presented under favor of an act of the general assembly passed February 7, 1889 (86 O. L., 12), entitled: “An act to suppress bucket-shops and gambling in stocks, bonds, petroleum, cotton, grain, provisions and other produce,” the whole of which act is now embraced in Sections 6934a-l to 6934a-5, Revised Statutes, inclusive. Section 6934a-1, so far as its provisions are here pertinent, provides: “That it shall be unlawful for any corporation, association, chamber of commerce, board of trade, copartnership or person to keep or cause to be kept within this state any bucket-shop, office or other place wherein is conducted or permitted the pretended buying or selling of the shares of stocks or bonds of any corporation, or petroleum, cotton, grain, provisions or. other produce, either on margins or otherwise, without any intention of receiving and paying for the property so bought, or of delivering the property so sold; or wherein is conducted or permitted the pretended buying or selling of such property on margins, or when the party buying any of such property, or offering to buy the same does not intend áctually to receive the same if purchased, or to deliver the same if sold, and the keeping of all such places and any such pretended buying or selling are hereby prohibited.” Section 6934a-5 enacts and provides that: “Whoever knowingly permits any of the illegal acts aforesaidv in his building, house, or in any outhouse, booth, arbor or any erection of which he has the care or possession, shall be fined not less than five hundred dollars ($500.00) nor more than one thousand dollars ($1,000.00).” On the trial of this case in the court of common pleas the state, to maintain the issues on its part, introduced evidence tending to show that from November 1, 1908, to February 1, 1909, inclusive, the bucket-shop, office or place, which the indictment alleged was permitted by defendant to be kept in the building described in said indictment, was kept and operated by the defendant, John J. Murray himself, and that the prohibited and unlawful business which it was alleged and charged he permitted to be conducted and carried on in said building, to-wit: “the pretended buying and selling of the shares of stock of certain railroad corporations, and the pretended buying and selling of grain and provisions on margins,” etc., was conducted and carried on by the defendant in person. At the conclusion of the state’s evidence the court, on motion of the defendant’s counsel, instructed the jury to return a verdict of not guilty, for the reason, and on the sole ground, as we are informed in the briefs, and by counsel in oral argument, that, it having been shown by the evidence of the state that defendant himself owned and kept the building or place, and in person conducted and carried on therein the unlawful business of the pretended buying and selling of stocks on margins, etc., he, defendant, could not therefore rightfully be convicted under an indictment which charged him only with knowingly permitting such illegal acts in his said building. The fallacy of this position or claim lies in the fact that it necessarily rejects, and ignores the express provisions of the statute and the pertinent allegations of the indictment. ° It will be observed that Section 6934a-1 not only enacts that it shall be unlawful to keep a “bucket-shop,” but said section, in express terms, also prohibits and makes unlawful “the pretended buying or' selling of the shares of stocks or bonds of any corporation * * * either on margins or otherwise, without any intention of receiving and paying for the property so bought, or of delivering the property so sold.” And Section 6934a-5, Revised Statutes, provides that: “Whoever knowingly' permits any 1 of the illegal acts aforesaid in his building,” etc., shall be punished as in said section provided. The unlawful acts mentioned and referred to in Section 6934a-5 embrace and include all and singular the acts that are prohibited and declared to be unlawful by Section 6934a-l. Hence, it having been shown by the evidence in this case that the defendant, John J. Murray, was the owner and keeper of a building and place wherein divers persons, his patrons and customers, were permitted and allowed to make pretended purchases, and pretended sales, of stocks, grain, etc., on margins, such buying and selling being prohibited and unlawful, it would seem to be a perversion of the law and a burlesque upon the due administration of justice to say and hold that because he himself was the keeper of such office or place, and personally participated in and conducted the unlawful transactions, that therefore, in law, he cannot be held to have knowingly permitted such illegal acts. The latter being one of the offenses embraced in the statute, and being the particular offense defined and charged against the defendant in the indictment in this case, and such being the evidence by which said charge was supported, it was error for the court to instruct the jury to return a verdict of not guilty, and the exception of the prosecuting attorney to the action of the court in that behalf will be sustained.

On the trial of this case one Harry Rex, a broker, was called as a witness on behalf of the state and this question was asked him: “I will ask you, sir, if you or your company send or transfer to anyone or to any company in this county any money or its equivalent to be used by John J. Murray for transactions with traders in his building in this city between the days of November 1, 1908, and February 1, 1909?” Thereupon, at the request of counsel, the court fully explained to the witness his privilege and rights touching the matter of his answering said question, after which the witness refused to answer, stating to the court that he based his refusal on the ground that his answer might tend to incriminate him. Whereupon the court without further inquiry or examination of the witness touching his refusal to answer said question, refused to require him to answer the same. This it is claimed was error. It would seem to us to be so apparent, from a consideration of the circumstances of the case and the nature of the interrogatory itself, that an affirmative answer thereto would tend to incriminate the witness by connecting him with said unlawful business, that we think the court did not err in giving final effect to the claim of the witness that his answer to said question would tend to incriminate him. Other interrog'atorie-$ similar in character were propounded to the witness all of which he declined to answer for like reason. The court in each instance refused to compel him to answer, and in this we think there was no error.

The exception to the action of the court in directing a verdict, sustained. The exception to the court’s refusal to require witness to answer certain questions, overruled.

Crew, Spear, Davis, Si-iauck and Price, JJ., concur.


source: Caselaw Access Project

author: Price, J.

license: Public Domain

text:
    In Re Claim of Kendig v. The Commissioners of Greene County.

      Road superintendent under Section 4715, Revised Statutes — Gives order to sand bank owner — On township trustee for material taken — Tozvnship trustees certify to county commissioners— Latter refuse allozvance of claim — No appeal to common pleas cozirt — Sections 4744, 4745 and 896, Revised Statutes — Duties of county authorities.

    1. Where a road superintendent, acting under the provisions of Section 4715, Revised Statutes, enters upon the premises of the owner, situate within his road district, digs and carries away sand or gravel for the improvement or repair of á public road therein, for which sand or gravel such road superintendent gives the owner a certificate to the township trustees, under favor of Sections 4744 and 4745, Revised Statutes, and the said trustees examine and approve the claim, but on account of the amount thereof, certify the same to the commissioners of the county, who refuse to allow it as a claim against the county, there is no right of appeal from such refusal to the court of common pleas, under the provisions of Section 896, Revised Statutes, and it is not error for that court to dismiss an appeal so taken.
    2. If the amount so allowed by the township trustees is satisfactory to the landowner as his compensation for material taken for road purposes under authority of said Section 4715, and the county commissioners refuse to order the claim paid by the county, as is permitted by Section 4745, Revised Statutes, the same remains a valid claim against the township which may be enforced by civil action, if the trustees decline to make a levy for its payment.
    (No. 11981
    Decided June 28, 1910.)
    Error to the Circuit Court of Greene county.
    The facts appear in the opinion.

      Mr. M. R. Snodgrass, for plaintiff in error.

      Mr. William P. Orr, prosecuting attorney, for defendants in error.
   Price, J.

The record shows, that during the summer and fall of the year 1908 and up to December 10th, one E. S. Keiter, as road superintendent of district No. 1 of Xenia township, Greene county, appropriated for road purposes, three hundred and- forty-eight cubic yards of gravel, the property of the plaintiff in error, which said superintendent used for repairing the roads within said district. The value of the gravel was placed at eight cents per cubic yard for which the superintendent gave the owner a certificate to the township trustees showing the appropriation at said rate amounted to $27.84.

On the 28th day of December, 1908, the township trustees examined and allowed the bill in said amount, and certified the same to the commissioners of the county, under a provision of the statute for that purpose, on the ground that said trustees had within the past year paid out for such material for road purposes the sum they are authorized by law to pay, to-wit, $25.00. The plaintiff in error appeared before the county commissioners with his said certificate and asked for its payment, who after consideration, on the 30th day of January, 1909, refused to allow or pay the same, assigning as reason, that the claim is not just or equitable.

Thereupon, plaintiff in error gave notice to the commissioners of his intention to appeal from- the decision of the commissioners to the court of common pleas of Greene county, and -the commissioners fixed the bond for appeal at $110 which bond was given -and duly approved. A transcript of the proceedings had before the trustees and commissioners was filed in the court of common pleas, and also a petition setting out said claim, its allowance by the trustees and its disallowance by the county commissioners. The prayer of the petition “asks the court to hear and determine whether the claim of plaintiff is or is not just and equitable, and if the same be found just and equitable, that plaintiff’s claim be allowed with interest.”

The county commissioners were made defendants to the petition, and in due time filed a motion to dismiss the appeal for the following reasons:

“1st. There is no provision of law which warrants or provides for such appeal. .
“2d. The appeal is not one provided in Sections 4715 and 4688, Revised Statutes of Ohio.”

The court of common pleas sustained the motion and dismissed the appeal, and its judgment was affirmed by the circuit court. These judgments ■are for review here upon a petition in error for that purpose.

It is quite clear that the appeal attempted to be taken in this case is not authorized by Section 4715, Revised Statutes, referred to in the motion. It is in the first provision of chapter 5, title VII, entitled: .“Road Superintendents and Road Work.” The first clause prescribes the duties of such superintendents, and then provides tha-t they “may enter upon any uncultivated or improved lands, unencumbered by crops, near to or adjoining such roads, cut or carry away timber, except trees or groves, or improved lands planted or left for ornament or shade, and may dig or cause to be dug and carried away, any gravel, sand or stone which may be necessary to make, improve or repair any such road, and that the owner of such property so taken by the road superintendent be paid a reasonable compensation therefor to be assessed by the trustees, and said claimant, for his damages, may have an appeal as hereinbefore provided for in section forty-six hundred and ninety-nine (4699) and the amount found due shall be paid as provided in section four thousand seven hundred and forty-five (4745).”

When we turn to Section 4699, above referred to, for right of appeal, we find the following provision: “Every claimant.of compensation and damages on account of the establishment or alteration of a county or township road, or alteration of a state road, or change in width of a county road, may appeal to the probate court from the final decision of the county commissioners or township trustees, confirming the assessment of compensation and damages made by the viewers in his behalf, or the refusal of the viewers to award damages to him, which appeal shall be perfected and docketed in the mode hereinbefore prescribed in section forty-six hundred ninety (4690),” etc.

The latter section prescribes what transcript and papers, etc., shall be transmitted to the probate court and how the case shall be docketed. It is apparent that Section 4715 construed with Section 4699, authorizes an appeal in certain cases named to the probate court, but not to the court of common pleas. Nor do the sections cover a claim like the one here involved. Therefore, the appeal in this case cannot be sustained by those sections.

Neither can it be sustained by Section 4688, referred to in the motion, which reads: “An appeal from the final order of the county commissioners establishing a county road, or altering", or vacating, in whole or in part, a state or county road, or changing the width of a county road, may be taken to the probate court of the same county by any person having an estate in fee, for life, or years, in any lands or tenements, situate in any township in the county, in or through which township such new, altered, changed, or vacated road passes, or by the husband of any married woman, or guardian of any ward having such an estate.”

The title of the chapter of which this section forms a part is: “Appeals in Road Cases.” Clearly it does not cover or embrace the right to appeal in the present case. If it could be so construed, the appeal must go to the probate court and not to the court of common pleas.

However, the plaintiff in error has confidently selected Section 896, Revised Statutes, in support of his appeal. It reads: “If a person is aggrieved by the decision of the county commissioners in any case, such person may, within fifteen days thereafter, appeal to the next court of common pleas, notifying the commissioners of such appeal at least ten days before the time of trial, which notice shall be in writing and delivered personally to the commissioners, or left with the auditor of the county, and the court shall, at their next session hear and determine the same, winch decision shall be final.”

This section with a slight change of a few words not affecting its meaning, has been in our statutes before and since the year 1853 (S. & C., 247), and is a part of chapter 1, title VIII, which prescribes the powers and duties of county commissioners. Among the powers conferred and duties devolved are the making and enforcing various contracts with relation to county affairs, allowance of claims against the county, etc.

A claim of this character was involved in Shepard v. The Commissioners of Darke County, 8 Ohio St., 354 — a claim made by the county recorder for indexing records under a contract. Dispute over the amount charged for the work arose. The commissioners allowed part of the bill and refused the remainder. It was held that a right of -appeal to court of common pleas existed.

The section was under consideration again in Bowersox et al. v. Watson et al., 20 Ohio St., 496, and the principle there held is, that under its provisions, “appeals are allowed from the decisions of boards of county commissioners made only in cases founded upon claims and demands against the county in its quasi corporate capacity.”

The same statute was again under consideration in Commissioners of Belmont County v. Ziegelhofer. 38 Ohio St., 523. It is there decided that where a claim against a county, which must be allowed by the commissioners before it can be paid, is founded exclusively on a statute the remedy by «appeal provided by Section 18 (now 896) is exclusive; but where such claim is founded upon a contract, which the commissioners are authorized to make, and they refuse to perform, or disallow the claim, the remedy by' appeal is cumulative merely. In the case at bar there was no contract or arrangement for the gravel with the county commissioners. The claim was made to the township trustees and it being for more than twenty-five dollars was by them certified to the commissioners by virtue of Section 4745, Revised Statutes. The commissioners refused to order it paid, and it never became a claim against the county. There is a later case where the question of appeal has been discussed and decided— Hendershot v. The State, 44 Ohio St., 209. The syllabus of the case is silent on the subject of appeal, but it is considered in the disposition made of it in the opinion of the court. It is stated in the syllabus that, “there is no provision in the statutes whereby the owner of materials taken by a supervisor for the repair of a public highway, under Section 4715 of the Revised Statutes, can have its compensation assessed by a jury as required by Section 19 of the bill of rights, and it is therefore invalid, and the owner, resisting a' supervisor entering upon his lands under the provisions of said section, is not guilty of resisting an officer under the provisions of Section 6908 of the Revised Statutes.”

This syllabus indicates the nature of that case. A supervisor of the highway was resisted in his attempt to enter upon the premises of the accused and remove therefrom materials for the repair of the highway. The officer relied for his authority upon Section 4715, Revised Statutes. It makes no provision for the assessment of his compensation by a jury as required by Section 19 of the bill of rights, and for this reason the court held the section void.

In the opinion of the court it is -said: “We fail to find any provision in the statutes by which the owner of property taken under Section 4715 of the Revised Statutes can have his compensation assessed by a jury. It is not found in Sections 4744 and 4745. These sections only provide a mode by which he may be paid such sums as may be allowed to him by the township trustees, and where the amount exceeds the sum of $25, by the latter in connection with the county commissioners. No appeal is given from the decision of the trustees or commissioners to a court in which the owner may have his compensation assessed by a jury. The provisions of Section 8p6, Revised Statutes, giving an appeal from the commissioners, is not applicable to this case. Provision is made in Sections 1483 and 1484 whereby material may, in conformity to the constitution, be condemned for the repair of roads; but no such condemnation had been made in this case.”

In pursuance of the above holding the accused was discharged, thus upholding the right of the accused to resist the officer.

We have here an express holding that the plaintiff in error had no right to appeal to the court of common pleas under Section 896, Revised Statutes.

The claim involved here was certified by the road supervisor, stating its nature and amount, and the trustees examined and allowed it as a valid claim, but as it was for more than $25 they' certified it to the commissioners who held it not to be “just and equitable” as against the county. By the examination and allowance, the trustees ratified the act of the supervisor who is subject to the will of the trustees, and it need not be said that because there is no right of appeal from the decision of the county commissioners to the court of common pleas the owner is without remedy.

The case of Hendershot v. The State, supra, was decided by this court in the year 1886. It would seem that after the statute then existing was held invalid in that case, the legislature attempted to so amend Section 4715, Revised Statutes, as to avoid the force of the decision, and on April 10, 1889, the general assembly did amend the section to provide for an appeal in the following language: “And the owner of such property so taken by ’the supervisor, be paid a reasonable compensation therefor, to be assessed by the trustees, and said claimant, for his damages, may have an appeal, as herein provided for in section fortjr-six hundred and ninety-nine, and the amount found due shall be paid as provided in Section 4745.”

. We have already found that Section 4699 provides for an appeal to the probate court, and not to the court of common pleas, and hence the court of common pleas did not err in dismissing the appeal in the present case.

But why appeal to any court as a remedy for plaintiff in error? The trustees did assess his damages, or compensation, and allowed the claim. Therefore, a trial by jury was not necessary. There was no attempt to appeal on account of the amount allowed. That was satisfactory to the landowner, and the only subject of controversy was the source of payment. The trustees, thinking the amount beyond their jurisdiction under the statute, as it exceeded twenty-five dollars, certified the same to the commissioners, under Section 4745, and that board, having discretion in the matter declined to order payment by the county. What is the result? The statute (Section 4715) says, “the amount found due shall be paid * * This bill is still the debt of the township, the 'commissioners having refused payment. The township trustees cannot avoid the debt by merely certifying it to the commissioners. The former made a satisfactory assessment of the compensation, and, under the facts, they are liable for its payment. They appropriated the gravel for public purposes, or ratified the act of the i;oad supervisor in appropriating it, and if they failed to shift the claim to the county, it remained as a debt against the township. If they refuse on demand to make payment, or a levy to make payment, the trustees are capable of being sued in a civil action to recover the amount of the bill allowed by them.

We have thus gone somewhat beyond the point necessary to be decided in this case, to end a controversy, or point out a remedy which the party may pursue, if he so desires.

Judgment affirmed.

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


text:
    Lindsay, Trustee, etc., v. Runkle et al.

      Trustee of bankrupt estate — Cannot bring suit for partition of real estate — In which bankrupt is tenant in common, when.

    A tmstee of the estate of a bankrupt selected or appointed under the provisions of the national bankruptcy act, is without legal capacity under the statutes of Ohio to bring and maintain a suit for the partition of real estate in which such bankrupt is a tenant in common with others.
    (No. 11993
    Decided June 28, 1910.)
    Error to the Circuit Court of Pickaway county.
    On the 29th day of September, 1908, the plaintiff in error filed in the court of common pleas of Pickaway county, his petition in which he prayed for the partition of certain real estate in which the bankrupt, William H. Runkle, was a tenant in common with the defendants in error.
    Omitting description of the several tracts of land, that part of the petition important in the consideration of this case is as follows:
    “The plaintiff says that he is the duly appointed, qualified and acting trustee in bankruptcy of the estate of William H. Runkle, a bankrupt; that it is to the best interest of the said estate that this proceeding be brought, and that he has a legal right to and is seized in fee simple and entitled to possession as such trustee of William H. Runkle, a bankrupt of the undivided one-fourth part of the following described real estate situate in the county of Pickaway, in the state of Ohio, and in the townships of Madison and Walnut, and being,” etc. Here follows a description of five different tracts. of real estate, some of them containing but a few acres.
    The petition alleges that William H. Runkle, the bankrupt, is the son and heir at law of Henry M. Runkle, deceased, and that the personal property of the deceased “is sufficient to pay all the ■debts and claims against his estate.” It is also alleged that Saloma Runkle is the widow of the deceased and entitled to dower in said premises, and that the other defendants, now defendants in error, are tenants in common in said premises with said bankrupt, each entitled to one-fourth part of the premises subject to said dower.
    The prayer of the petition is to have the interest of said bankrupt set off to him in severalty, and “that the dower of said Saloma Runkle be assigned to her, and that subject thereto, that partition be made, and his interest set off to him in severalty if the same can be done without manifest injury to the property, but if his interest cannot be so set off without injury to the value of said property, that same majr be appraised and sold, and • for such other relief as may be provided for in law and equity.”
    The defendants demurred to the petition on two grounds: (1) That the plaintiff has not a legal capacity to sue. (2) That the petition does not state facts sufficient to constitute a cause of action. The court sustained the demurrer, and the plaintiff not desiring to amend the petition, the same was dismissed at costs of the plaintiff.
    The latter prosecuted error in the circuit court for the reversal of said judgment, but the same, on final hearing, was affirmed.

      Mr. Joseph W. Adkins and Mr. George W. Lindsay, for plaintiff in error.
    Plaintiff claims that under Section 47a-2, Bankruptcy Act of 1898, authority is conferred upon the trustee to pursue any way which the court shall direct to reduce the property of the estate to money, having in view at all times the best interests of the parties in interest (the creditors) and for the purposes of this demurrer, it must be taken as a fact “that it is to the best interests of said estate” that this property be reduced to money through proceedings in partition. The trustee or assignee, under both the present and former bankruptcy acts, is clothed with the power and duty to sue whenever suit is necessary, and he is given the same right in any litigation he may institute which the bankrupt would have had if no decree in bankruptcy had been rendered. Sanger v. Upton, 91 U. S., 56; Sparhawk v. Yerkes, 142 U. S., 1; Sections 11c, 11d, Bankruptcy Act of 1898; Section 5046, U. S. Revised Statutes; Hiscock v. Bank, 206 U. S., 28; Holden v. Stratton, 198 U. S., 202; Hewit v. Machine Works, 194 U. S., 296; Bardes v. Bank, 178 U. S., 524; Dudley, v. Easton, 104 U. S., 103.
    The trustee succeeds to all the interests -of the bankrupt, becomes in effect the owner of his property, and subject to his accountability to the court, holds absolute title to such property. Section 70a, Bankruptcy Act of 1898; 5 Cyc., 339; Davis v. Crompton, 158 Fed. Rep., 735, 20 Am. Ban. R., 53; Randolph v. Canby, 20 Fed. Cas., 258; Bromley v. Smith, 2 Bissell, 511; Leighton v. Harwood, 111 Mass., 67.

      An assignee for the benefit of creditors has the power to sue for and recover, in the name of such assignee, everything belonging or appertaining to the assigned estate, and, generally, to do whatever the debtor might have done in the • premises. 2 U. S. Ency., 629; Hubbard v. Tod, 171 U. S., 474; Lenox v. Roberts, 2 Wheat., 373; Mueller v. Nugent, 184 U. S., 14; Brent v. Bank, 10 Pet., 596; Section 21e, Bankruptcy Act of 1898; Page v. Edmunds, 187 U. S., 596; Section 5046, U. S. Revised Statutes; Section 14, act of March 2, 1867, ch. 176, 14 U. S. Comp. Statutes, 522; Pearsall v. Smith, 149 U. S., 231; Claflin v. Houseman, 93 U. S., 130; Phelps v. McDonald, 99 U. S., 298; Hammond v. Whittredge, 204 U. S., 538.
    It is the policy of the law of the state of Ohio to permit anyone having the legal title to property held in common with others, to have partition of the same, and the plaintiff does not need to go farther and show that partition is required by the demands or the interests of a beneficial owner, or that the same is necessary to protect the rights of those beneficially interested. Lindsay v. Zanoni, 6 C. C, 477; Horstman v. Ritter, 6 N. P. 470; Section 5757, Revised Statutes; Byers v. Wackman, 16 Ohio St., 441; Williams v. Van Tuyl, 2 Ohio St., 337; Tabler v. Wiseman, 2 Ohio St., 208; Section 5772, Revised Statutes.
    The only way defendants can defeat the right of this trustee to bring and maintain this suit is by showing that the bankrupt himself did not have title to the property, such as would enable him to maintain partition. They have no interest in the property oí the bankrupt, are not his creditors and cannot be heard to object as to the manner in which this trustee chooses to collect and reduce this property to money.
    As to any tenant who might be compelled to suffer partition, may maintain partition himself, see Horstman v. Ritter, 6 N. P., 470, and Section 5754, Revised Statutes.
    As to making the right to elect to take at appraisement a test of the right to maintain partition, the law provides that the premises shall be appraised at their fair market value by three competent freeholders of the vicinity, and it is to be presumed that these appraisers will act fairly, and if the appraisement is not fairly made, the trustee would undoubtedly, on proper showing, have the power to have it set aside and a new appraisement made. The trustee of a bankrupt takes more than a bare power of sale in the property of the bankrupt. By the Bankruptcy Act, 1898, Section 47a-2, he shall collect and reduce the property of the estate for which he is trustee, and he has • the power to sue for and recover, as such trustee, everything belonging or appertaining to the assigned estate, and generally to do whatever the bankrupt might have done, had not bankruptcy intervened.
    The purchaser from the trustee or assignee in bankruptcy does not acquire by his purchase any greater rights than those possessed by such trustee or ' assignee. 2 U. S. Ency., 915; Greene v. Taylor, 132 U. S., 415; Adams v. Collier, 122 U. S., 382; Crawford v. Halsey, 124 U. S., 648; Easton v. Bank, 127 U. S., 532; Roby v. Colehour, 146 U. S., 153; Cramer v. Wilson, 195 U. S., 408.

      If the' trustee can convey absolute title to this real estate, he surely possesses such a title, and if the bankrupt, at the time of his adjudication of bankruptcy, had an absolute title, this title vests in the trustee. Van Arsdale v. Drake, 2 Barb., 599; Sandmeyer v. Insurance Co., 2 S. Dak., 346; Walker v. Ross, 150 Ill., 50; Johnsons Appeal, 103 Pa. St., 373; Burnham v. Logan, 88 Tex., 1.
    Furthermore, it has been held that a trustee having the power of sale- may maintain partition and is entitled to exercise his own judgment and discretion upon the question as to whether, or not it is to the best interests of his trust estate to partition the same. Gallic v. Eagle, 65 Barb., 583.
    A power to dispose of real estate conferred by will upon a trustee, authorizes a partition. Phelps v. Harris, 101 U. S., 370.
    It has been very generally held that an assignee for the benefit of creditors, upon proper showing, may maintain partition of premises held in common by his assignor with others. Horstman v. Ritter, 6 N. P., 470; Jewett v. Perrette, 127 Ind., 97, 26 N. E. Rep., 685; Smith v. Scholtz, 68 N. Y., 41.
    This suit in partition is not a part of the proceedings in bankruptcy, but an independent suit brought by the trustee in bankruptcy to assert his rights to property of the bankrupt and to collect and reduce that property to money and is against strangers to the bankruptcy proceedings. Bardes v. Bank, 178 U. S., 524; Whitney v. Wenman, 198 U. S., 539; Pirie v. Trust Co., 182 U. S., 438.
    The character in which plaintiff holds title or the manner in which he acquired 'it, is immaterial to the defendants, unless they can show better title to the premises in themselves. If plaintiff is the legal owner, this is sufficient. 30 Cyc., 194; Phelps v. Townsley, 10 Allen, 554; Smith v. Gaines, 38 N. J. Eq, 65; Paine v. Sackett, 27 R. I., 300, 61 Atl., 735.
    In this case at bar, the partition will not only “noE be in contravention of the trust,” but for the best interests of the trust.

      Mr. Clarence Curtain, for all defendants in error, except William H. Runkle.
    The two grounds of the demurrer filed to said petition are: \
    1. That the plaintiff has not a legal capacity to sue.
    2. That the petition does not state facts sufficient to constitute a cause of action.
    It will be observed that' the petition does' not contain any averment to the effect that the trustee in bankruptcy had been ordered or directed by the bankruptcy coun to commence any such action.
    In order to determine • this question it will be necessary to examine some of the provisions of the Bankruptcy Act of 1898 as well as .our statute in reference to partition. Sections 2, 47a and 70a, Bankruptcy Act; Sections 5754, 5-756, 5757, 5763, 5764, ’’5765, 5766 and 5770, Revised Statutes of Ohio.
    The primary purpose of the bankruptcy act is expressed by Section 2 thereof, which defines the power of courts thereunder.
    It will be observed that Section 47a expressly limits the authority of trustees in bankruptcy and that they can do no act under Section 47a, unless it be “under the direction of the court.” It may be observed here that the petition in this case fails to show that the trustee in filing the petition in this case was acting “under the direction of the court.” If-nothing further appeared in this case, that would be sufficient to sustain the judgments of the circuit and common pleas court in sustaining the demurrer to said petition.
    Section 70b of the bankruptcy act provides the manner in which the property of the bankrupt may be sold.'
    These provisions are all inconsistent with the theory that a trustee in bankruptcy without a special order for that purpose made by the bankruptcy court has the power or authority to commence a suit in partition in a state court. If a trustee in bankruptcy has the right tó commence and prosecute a suit in partition in a state court he must do so under the laws of the state and he must have authority to submit himself to and comply with the laws of the state.
    We fail to find any provision in the bankruptcy law by which the trustee could elect to take the estate at the appraised value or by which the court appointing him would have power to direct him to do so. Under the state law if neither party elects to take the estate at the appraised value it must be sold and it may be sold at two-thirds of the appraised value thereof. Under the bankruptcy act the trustee cannot sell without the approval of the court for less than seventy-five per cent, of the appraised value. Where lands are sold in partition a deed for the same is to be made by the sheriff of the county. Under the bankruptcy act it is made the duty of the trustee upon a sale of the property to make a deed therefor to the purchaser!

      In the case of Rector, Trustee, v. Reinhard, (unreported and unpublished), the circuit court of Franklin county in substance held that while a trustee in bankruptcy might be compelled to “suffer partition” under Section 5754, Revised Statutes of Ohio, that he did not have such an estate or interest that he could compel a partition of real estate under that section of the statutes.
    We now have the holding of two common pleas courts (in the case at bar and the Rector case) and of two circuit courts (same cases) that a trustee in bankruptcy has not the right to maintain an action for the partition of real estate, the title to which the bankrupt held prior to his having been adjudicated a bankrupt, as a tenant in common with others, and unless these courts are clearly wrong the judgment in this case should be affirmed in view of the fact that titles to real estate will be made to depend, in cases of this character, upon the decision rendered in this case.
   Price, J.

The plaintiff in error, as trustee of William H. Runkle, a bankrupt, holds that position under certain provisions of the bankruptcy act, whereby the creditors of the bankrupt may elect a trustee, or on failure to so act, the court of bankruptcy may appoint the trustee. If the trustee elected by a majority of the creditors is an incompetent or unsuitable person, the bankruptcy court may disapprove of the selection and another may be .appointed by the court after such creditors have failed to select a suitable person, and when the trustee so created has accepted and become duly qualified as required by the statute, he is invested with the title of the bankrupt to his estate real and personal of whatever character, not exempt under the law. This is so by virtue of the statutes relating to the subject and not by virtue of any direction or will of -the bankrupt.

Without considering all the particular steps to be taken or observed by the trustee in discharge of his duties, it is- sufficient here to notice some of the consequences of the procedure.

By clause 2 of Section 47 of the Bankruptcy Act, it is made the duty of the trustee to reduce to money the property of the estate, under the direction of the court, and by clause 6 he is required to keep regular accounts showing' all amounts received and from what source. The provisions of Section 70 which relate to sales of property are as follows: “All real and personal property shall be appraised by three disinterested appraisers; they shall be appointed by and report to the court. Real and personal property shall, when practicable, be sold subject to the approval of the court; it shall not be sold otherwise than subject to the approval of the court for less than seventy-five per 'centum of its appraised value. The title to property of a bankrupt estate/ which has been sold as herein provided shall be conveyed to the purchaser by the trustee.”

In Section 58 (Bankruptcy Act) - it is provided that creditors shall have at least ten days’ notice by mail of all proposed sales of property ct cet.

Another provision of the act requires that - all sales shall be by public auction unless otherwise ordered by the court. There are provisions as to sale of property encumbered by lien; giving the court, on proper petition by the trustee, the power to order sale, subject to or free of liens as may be considered best, by the court. The trustee is carefully instructed by the Bankruptcy Act as to his powers and duties, and in discharge of many of his duties he is under the control of and answerable to the court of bankruptcy.

We need not further occupy this field of investigation, but we have gone far enough to see that the jurisdiction and powers of the court of bankruptcy are peculiar to that court, made so by the law creating and regulating its jurisdiction, and we are now to determine the standing and rights of such trustee when he enters the state courts claiming to be a tenant in common asking partition of real estate.

He comes to the state court as a stranger to its jurisdiction, although he may resort to it to enforce his rights in certain cases. He says in his petition that he belongs to another jurisdiction, and gives the sign by which he may be known, viz., he is trustee of a tenant in common who is a bankrupt. He does not disclose in his petition that the court of bankruptcy had ordered or authorized him to come into the state court, for any purpose, nor does he ask the state court to order a sale in either of the ways pointed out by the statute under which he was appointed and qualified.

Is he a tenant in common, or is he but the trustee of a tenant in common?- He is invested with the title of the bankrupt, not as a purchaser, or under other form of contract, but solely by operation of law and for a special purpose, that he may convert the estate into money with which to pay the debts of the bankrupt.

He may, in the bankruptcy proceedings, and according to the law on that subject, sell the undivided interest of the bankrupt in the lands, and convey such interest to the purchaser who may thus become a tenant in common with the owners of the other interests, and that path appears to be free from doubt or obstruction.

But what confronts the trustee as he asks partition in the state court?. The suit must be entertained and conducted under the laws of the state. What would the trustee do or say, in case one or more of the tenants in common should answer and charge that the bankrupt tenant in common had received and enjoyed the rents and profits of the estate for years, and ask an accounting for the same? Would he have to consult the bankruptcy court as to his duty in such case? If the dower of a widow is to be assigned, as is required in this case, it must be done under the state law. If the commissioners appointed to make partition “are of opinion that the estate cannot be divided without manifest injury to the value thereof, they shall return that fact to the court with a just valuation of the estate, whereupon if the court approve the return, and one or more of the parties elect to take the estate at such appraised value, the same shall be adjudged to him or them, upon his or their paying to the other parties their proportion of the appraised value thereof according to their respective rights,” etc. >

This right of election is vested by law m each of the tenants in common, but it could not be exercised by the trustee, without using the estate otherwise in his hands to make the necessary payments to other co-tenants.

If no such election is made, “the court may, at the instance of a party, make an order for the sale thereof at public auction by the sheriff who executed the writ of partition, or his ■ successor in office.” (Section 5764, Revised Statutes.) Section 5765 provides: “but the estate shall, not be sold for less than two-thirds of the appraised value thereof as returned by the commissioners.” Here would be a conflict between the state and bankruptcy courts, for we have observed that it is provided in Section 70b of the Bankruptcy Act, that “all real and personal property belonging to bankrupt estates shall be appraisedJby three disinterested appraisers; they shall be appointed 'by, and report to the court. Real and personal property shall, when practicable, be sold subject to the approval of the court; it shall not be sold otherwise than subject to the approval of the court for less than seventy-five per centum of its appraised value.”

The court mentioned is the bankruptcy court.

The sale in the partition case is governed by prescribed rules which, as we see by comparison, are in plain conflict'^with the provisions for sale in the bankruptcy proceeding, and the trustee seems insistent in promoting and maintaining that conflict. We know of no method of blending these jurisdictions in order to have partition made that will be just and equitable to the widow and all the tenants in common as their rights may appear.

It is not our duty to entertain the suit of the trustee when it is inevitable that a conflict of jurisdiction will arise between the state and federal courts. The trustee may sell the estate of the bankrupt without partition, as before observed, with results less harmful than a complication of questions and interests likely to follow such an action for partition. ■

We still think the trustee in bankruptcy is not a tenant in common, as recognized in partition proceedings, but is but a trustee of a tenant in common.

The foregoing reasons áre sufficient to sustain the judgment of the lower court and its judgment is affirmed.

Judgment affirmed.

Summers, C. J., Crew, Spear, Davis and Si-iauck, JJ., concur.


author: Shauck, J.

text:
    Summers et al. v. The Thomas Manufacturing Company.

      Dissolution of corporation — By action of minority shareholders — Not error for court to refuse to order prodtiction of inventories, etc. — Until plaintiffs offer proof dissolution beneficial to shareholders — Corporation and stockholders regarded as separate persons — Effect of offer of majority shareholders to buy minority shares — At fixed value — Sections 5673 and 5652, Revised Statutes.

    1. In an action brought under Section 5673, Revised Statutes, by the holders of a minority of the shares in a private corporation for its dissolution it is not error for the court to refuse to order its officers to file the inventories, accounts and statements mentioned in Section 5652, Revised Statutes, until the plaintiffs have shown by evidence that the dissolution will probably be beneficial to the interests of the stockholders.
    2. On the hearing of the application of the plaintiffs for such order, as well as upon the final determination of the question of dissolution, the corporation and its stockholders are to be regarded as distinct persons, and if it appears that its dissolution would be beneficial to the latter in view of considerations affecting alike the owners of the majority and the minority of the shares, the order should not be refused because it would prejudicially affect the corporation.
    3. On such hearing it is not competent to prove that the holders of a majority of the shares had offered to fix a value upon the shares if the owners of the minority would agree in advance either to purchase or sell at such valuation and that the offer ' was refused, it being the right of the minority to insist, if the evidence shall justify their belief that the corporation is without substantial capacity to earn dividends and that the value of all the shares is only that of its present assets, that the value shall be ascertained and realized in the mode fixed by the statute for the dissolution of corporations.
    (No. 12018
    Decided June 28, 1910.)
    Error to the Circuit Court of Clark county.
    The plaintiffs in error being' the owners of more than one-fifth of the paid up stock of The Thomas Manufacturing Company, a corporation, instituted an action in the court of common pleas of Clark county for the dissolution of the corporation upon the grounds that its business cannot be profitably conducted, and that its dissolution will he beneficial to its stockholders. It was specifically alleged that in the fifteen years preceding the filing of fhe petition, the corporation had paid but three dividends, one of six per cent, and two of five per cent, each, and that during the eight years since the death of the founder of the business it had been carried on lay the owners of a majority of the shares at a net loss of more than three thousand dollars, that there had been a great depreciation of its property, and that for the last eight years the salaries of its officers and general expenses, not including manufacturing expenses, had aver-, aged more than 33 per cent, of the gross sales.
    The defendant answered admitting that the plaintiffs were the owners of the proportion of the capital stock by them alleged, but denying that the business of the corporation cannot be profitably conducted, and denying that its dissolution would be beneficial to its stockholders. The answer also set out at some length the history of the corporation and the vicissitudes of its business during.the 22 years of its existence to show that in its earlier history it had profitably manufactured agricultural* implements; and, while not denying the allegations of the petition respecting the unprofitable nature of the business in recent years, it alleged reasons therefor and facts respecting its present situation as the predicate of the averment that its stockholders might now look hopefully to its future.
    The answer also alleged that on or about April 26, 1905, for the adjustment of differences which had arisen among the stockholders, two of the plaintiffs, who are sisters of the president of the corporation, agreed that if in their opinion the terms of said agreement were faithfully kept by him they would not bring proceedings to dissolve the corporation within six years from the date of the agreement. It further alleged that to the successful prosecution of the business it was necessary that there should be no doubt respecting its permanency, and that the prosecution of its business would be rendered impossible by an order requiring the filing of the schedules and the publication of the notice of a hearing for its dissolution before a referee as provided bv the statute for the dissolution of corporations. It, therefore, asked that the petition-.be: dismissed. Upon a hearing in the court of common pleas the petition was dismissed and the judgment was affirmed by the circuit court. Other facts necessary to an understanding of the points considered will be found in the opinion.
    Exhibit No. 4 was submitted in evidence:

      Mr. Alfred B. Benedict and Mr. George A. Beard, for plaintiffs in error.
    ' Messrs. Martin & Martin and Messrs. Bowman & Bowman, for defendant in error.
   Shauck, J.

The record shows that upon the filing of the petition for the dissolution of the corporation, and its answer thereto, the plaintiffs made an oral motion for an order requiring the officers of the corporation, within a reasonable time, to file in court the inventories, accounts and statements required by Section 5652, Revised Statutes, which is a part of the statutory scheme for the dissolution of corporations, that the court required a notice to be given and a hearing to be had upon the motion and the pleadings, and that upon such hearing it denied the application and dismissed the petition, to which counsel for the plaintiffs excepted. As we understand counsel for the plaintiffs, their first criticism upon the action of the court is, that it should, without a hearing, have required "the filing of the inventories, accounts and statements mentioned in- Section 5652, Revised Statutes, because they would be necessary to a determination of the question whether the interests of the stockholders required the dissolution of the corporation. The petition was filed under favor of Section 5673, Revised Statutes, and so far as it concerns the pleadings counsel have proceeded in apparent accord upon the familiar view that when a statute confers a right without prescribing special procedure for its enforcement, a civil action is intended. This action is equitable in its character, and in denying the motion of the plaintiffs made without evidence the court did nothing more than to insist that there should be a prima facie case upon both allegation and evidence. This was not only in accordance with the nature of the case, but also with the terms of the section which requires the order to be made if the court deem it beneficial to the interests of the stockholders. The answer did not admit the allegation that the interests of the stockholders required a dissolution of the corporation. On the contrary it denied it, whatever may be thought of. its circumstantial allegations made to support the denial. In requiring evidence to make a prima facie case, the court exercised properly the discretion conferred in view of the unavoidable consequences of a serious nature that would follow the making of the order, and no substantial right of the plaintiffs was thereby 'prejudiced.

In compliance with the ruling of the court upon the. motion, the parties introduced testimony upon the question whether the corporation should be dissolved or not. In view of the nature of the inquiry, as well as the terms of the statute, it was not with the view to an order of dissolution at that stage of the inquiry, for the statements to be filed pursuant to the order sought would be important in the final, determination of the question of dissolution, and the section provides for such final order after the filing of the statements and an opportunity to persons interested to be heard. In Armstrong v. The Herancourt Brewing Co., 53 Ohio St., 467, it was held that in view of the preliminary character of such an order when made, it is not reviewable. But the effect of a refusal to make such order is necessarily to prevent further inquiry and give a final character to the action of the court. In the present case the common pleas court consciously gave that character to its order by adjudging that the petition be dismissed.

The evidence submitted upon the hearing of the motion is all embodied in the bill of exceptions, upon which the circuit court affirmed the judgment, and it is now presented to us. The duty with which the court of common pleas was charged upon the hearing was to exercise a legal discretion in determining whether the interests of the stockholders, the interests in which those who own a minority of the shares and those who own a majority, are identical in all respects, probably required that the corporation should be dissolved. The terms of the statute show that the relief which it affords is to be upon the initiative of the owners of a minority of the shares, it being obvious that the owners of the majority of the shares, having control of the affairs of the corporation, may, by the exercise of their power and by resorting to other provisions of the statute, protect their own interests. The purpose of the statute is to give practical effect to the manifest truth that so far as the stockholders are concerned the only legitimate purpose in the operation of private corporations is the realization of dividends as return upon investments in shares. No other consideration peculiar to the owners of a majority of shares and inducing them to oppose the dissolution is entitled to any consideration whatever. Did this conception of the purpose of the statute conduct to the judgment which was rendered upon the evidence submitted, and in the admission of evidence? From the figures offered to show the financial history of the corporation and its present condition, and opinion testimony as to its condition and prospects, counsel derive widely different conclusions; but, hopes and conjectures aside, enough appears in the evidence to show that the corporation, according to the practical test of thirteen years of experience, is without a substantial earning capacity and that the value of all its stock is practically identical with the total value of its present assets. A statement by its president, who is the owner of the largest number of its shares and the leading opponent of its dissolution, is in the record. It shows that its business was quite successful from 1887 to 1893 inclusive, when a marked abatement of its prosperity began. Its showing for the thirteen years from 1896 to 1908, inclusive, gives the following summarized result. The total profits of the years in which profits were realized was $129,191.00. The total losses in the years in which losses were sustained- was $57,533.00. The depreciation during the thirteen years was $101,225.00. The losses for the year 1907 were $23,000.00. The profits for the year 1908 were $600.00. The statement shows that only two dividends were paid in the thirteen years, and that no dividend has been paid since 1899. The corporation has a capital stock of $300,000.00. There is annually paid in salaries of the officials of the corporation $9,600.00. The plaintiffs- admit that the salaries paid are not excessive for the positions, but they do not admit that the positions should continue to exist. Indeed their action in the present case is a practical affirmance of the proposition that they should not exist. In no view that can be taken of the facts which exhibit the financial history and experience of the corporation for fifteen years, can it be thought that the interests of the stockholders require that it should be continued. The considerations which are urged in that behalf are based upon hopes which cannot be inventoried, which the owners of 'the minority shares do not entertain, and which have no intimate relation to the history of the corporation or the purpose for which it was formed.

Much attention was given upon the hearing of the motion to testimony introduced to show that the making of the order would disastrously affect the interests of the corporation by impairing its credit and diminishing the confidence of those who purchase or contemplate purchasing its -products. It appears not only from the judgment which the court of common pleas entered upon the evidence submitted, but as well from the opinion of the trial judge, that much importance was attached to that consideration. While it is true that judicial opinions do not constitute a part of the record, and that a resort cannot be had to them in reviewing courts as the predicate of errors, the relation of judgment to evidence contained in the record is obviously a proper consideration. In an inquiry of the, nature of this, the corporation and its stockholders are to be regarded as distinct persons. It cannot be that a statute which provides for the dissolution of a corporation in the interests of its stockholders should contemplate that controlling consideration be' given to its interests as distinct from theirs.

The answer avers that before the institution of this suit, Mr. W.. S. Thomas and others holding together the majority of the shares of the stock of the corporation, proposed to the plaintiffs that the proponents would place a value on the shares and give to the plaintiffs the option to purchase or sell at the value so fixed, but that the proposition was rejected. On the hearing there iwas introduced in evidence a letter from the same proponents written after the proceeding was instituted purporting to be a renewal of the former proposition. In the letter no value of the stock was fixed, the proposal being that the writers would fix it within two days after the plaintiffs should signify their assent thereto. The record also contains an answer from the plaintiffs rejecting this proposition. This evidence had no proper place in the case and it may have aided in diverting the attention of the court from the question which it should have determined. Certainly the plaintiffs were not. obliged to accept a proposition which, if accepted would be an assumption that they were as well able to determine the .value of the stock as those who had been for many years in control of the company’s affairs, and which in a contingency might have required them to acquire- more of the stock. Upon the facts by them alleged and shown by the submitted statements, it was their right to realize their interest in the corporation through its dissolution. No inference prejudicial to them should be drawn from their insistence upon their rights.

Upon the questions so far considered we are not advised' that the views of the circuit court differed from those here expressed. Its judgment affirming that of the court of common pleas appears to have resulted from its view respecting the question yet to be considered. It is alleged in the answer that in April, 1905, in consideration of the payment of a large sum of money due from the company to the sisters of its president, who are of the plaintiffs, and that the payment of the large sum due from it to him should be deferred, they agreed not to bring proceedings for dissolution within six years if they were satisfied that said agreement was faithfully kept by him. A written contract of -that date was introduced in evidence on the trial apparently to support this allegation. It is not executed by the corporation but only by W. S.. Thomas, his sisters and W. S. Thomas as trustee of his brother under the will of his father. It does not recite or contemplate the payment of money from the corporation to the sisters except debts and dividends. It imposed no obligation whatever upon the corporation. It required W. S. Thomas annually to report to his sisters respecting the affairs of the company. It contained some stipulations which certainly, and some which apparently, relate to the affairs of the estate of the late John H. Thomas of whose will W. S. Thomas was an executor. It does contain the stipulation that neither of the sisters should within six years institute any legal proceeding- to dissolve The Thomas Manufacturing Compan)q “if in her opinion the letter and spirit of this agreement has been. faithfully 1-cept” by W, S. Thomas. This is the only express, and it is, therefore, the controlling stipulation upon the subject. References to the six year period in other paragraphs of the contract relate to this stipulation. It will be easier to assume than to demonstrate that' the agreement of the sisters is supported by any consideration whatever, and that the corporation, though a stranger to the contract, may allege it in bar of a proceeding for its dissolution. Making both assumptions it is quite clear that the sisters reserved the right to bring such proceeding “if in their opinion the spirit and letter of the agreement should not be faithfully kept” by W. S. Thomas. Each of them testified that she was of the opinion that it had not been so kept by him, and the evidence of incorrect and partial reports shows ground for such belief. These discrepancies may all have resulted from defective bookkeeping and an undue sense of personal proprietorship following the long connection of the president of the corporation with the management of its affairs and those of the co-partnership which preceded it. His personal integrity is not questioned either in the petition or in the evidence. The circuit court appears to have been ■satisfied from the evidence that the differences between the parties were sincerely entertained, but it omitted from its elucidation of the case the process by which it reasoned to the conclusion that their sincerity authorized it to eliminate the express condition upon which they agreed not to institute a proceeding, for- dissolution.

There being in the record no conflict in the evidence respecting the facts which are controlling in their nature, there remains only the duty of applying the law to those facts, in. so far as the question of a prima facie case is concerned. To require the minority stockholders to submit longer to a wholly unprofitable investment in its shares would be inconsistent with natural justice, with legitimate business enterprise and with the terms and manifest purpose of the statute.

The judgments of the circuit court and the court of common pleas are reversed, and the cause is remanded to the court of common pleas with direction to that court to order the officers of the defendant to file in court the inventories, accounts and statements mentioned in Section 5652, Revised Statutes, and to proceed further in said cause according to law.

Judgments reversed.

Crew, Spear, Davis and Price, JJ., concur. Summers, C. J., not participating.


author: Davis, J.

text:
    Duncan, Supervising Judge, v. The State, ex rel. Brown.

      Affidavit claiming disqualification of judge — Not conclusive proof of disqualification, when — Sections 550 and 469, Revised Statutes — Judicial discretion of judge.

    The affidavit setting forth the fact of disqualification of a judge, as provided in Section 550, Revised Statutes, is not conclusive proof of the disqualification, and the supervising judge is, by said section and Section 469, Revised Statutes, invested with a judicial discretion to require additional information satisfactory to him, regarding such disqualification.
    (No. 11970
    Decided June 28, 1910.)
    Error to the Circuit Court of Hancock county.
    This action- was commenced by the defendant in error against the plaintiff in error in the circuit court of Hancock county.
    In her petition in said case she alleges that she is the plaintiff in an action pending in Wyandot county, one of the counties of the tenth judicial district of the state, and that the defendant, Wil-liam F. Duncan, is the supervising judge of said judicial district.
    That on the 31st dajr of March, 1909, she filed with the clerk of the court of Wyandot county her affidavit, also affidavits of her counsel, that Judge Babst, one of the judges of the common pleas court in said district and the judge assigned to try her said case had a bias and prejudice against her and her counsel, and on account thereof was disqualified to sit and hear and determine the case.
    That the clerk of said court entered the fact of the filing of the affidavits on the trial docket in said cause and notified the defendant as supervising judge that said affidavits were so filed.
    That the defendant in said action as such supervising judge refuses to assign any other judge of the common pleas court of said district to try said cause, and she asks that the writ of mandamus may issue commanding the said defendant as such supervising judge to assign some other judge of the district to try said cause.
    In his answer to said oetition, Judge Duncan claims:

      First. That the affidavits filed are insufficient in their allegations and in law to operate as a disqualification of said Judge Babst to hear and determine the plaintiff’s cause.

      Second. That the statutes made and provided for such cases vest the supervising judge with a discretionary power within which he may determine, when required by affidavits filed for that purpose, whether or not the judge attempted to be disqualified entertains bias or prejudice against either party to a cause, etc., and that it was in the exercise of such discretion that he refused to designate another judge to hear the plaintiff’s cause.

      Third. That upon a hearing of which all parties had due notice he became satisfied and so found, and avers as a fact, that no bias or prejudice exists on the part of Judge Babst against the plaintiff in said cause or her counsel; that the affidavits of prejudice were without foundation in fact; that no grounds existed for the filing of the same, and that they were not filed in good faith, but with a purpose to embarrass and obstruct the court in the administration of justice.

      Fourth. That Section 550, Revised Statutes, under which said affidavits were filed, and the assignment of another judge of said district to try said cause was demanded is unconstitutional as an attempt to abridge the powers and functions of a co-ordinate branch of the government and to provide for the impeachment of such judges without due process of law.
    To this answer of the defendant, the plaintiff in said cause demurred; the circuit court sustained said demurrer and allowed a peremptory writ of mandamus as prayed for in said petition.
    To reverse the said judgment of the said circuit court this proceeding in error is here prosecuted.

      Messrs. McConicci & Dzviggins and Mr. George E. Schroth, for plaintiff in error.
    Sections 469 and 550, Revised Statutes, are in pari materia and should be construed together. Him v. State, 1 Ohio St., 15; Bank v. Roosa, 13 Ohio, 335; Cincinnati v. Guckenberger, 60 Ohio St., 353; Cincinnati v. Connor, 55 Ohio St., 82.
    That the legislature may not by its enactments encroach upon the powers delegated by the constitution to the judicial department of government, is a proposition well recognized and understood-Cooley’s Const. Lim. (4 ed.), 110; 6 Am. & Eng. Ency. Law (2 ed.), 1048; Greenough v. Greenough, 11 Pa. St., 489.
    Section 550 confers upon' the litigant or' the maker of the affidavit the sole power and right to determine for himself the question of interest, relationship or bias of the trial nidge.' ; ' ''

      As the legislature cannot exercise judicial power itself/ neither can it confer that power upon anyone other than those designated by the constitution, to-wit, the judges of the different courts of the state. Van Slyke v. Insurance Co., 39 Wis., 390; Brown v. Haywood, 51 Tenn., 357; 6 Am. & Eng. Ency. Law (2 ed.), 1050; Wantlan v. White, 19 Ind., 470.
    While it is true that the court of common pleas may exercise only such jurisdiction as is conferred upon it by law, it is created by the constitution and exists by virtue of the provisions of the constitution only, and is invested with certain inherent powers incident and necessary to its creation and existence. Hale v. State, 55 Ohio St., 210.
    If by the terms of the constitution this judicial power is vested in the court of common pleas, then that court cannot be divested of that power by an act of the general assembly. Any act that authorizes the divesting of the court of its judicial power is to that extent in contravention to Article IV, Section 1 of the constitution. We claim that the right given to a litigant under Section 550, Revised Statutes, to disqualify judges on the charge of prejudice, does, by reason of the fact that that right is unlimited, authorize the divesting of the court of its judicial power to decide the case in which the affidavit is filed. Bouvier, “court;” 4 Am. & Eng. Ency. Law (1 ed. 1, 447; 11 Cyc., 652.

      Messrs. Meek & Stalter, for defendant in error.
    Section 550, Revised Statutes, was, no doubt, enacted in the interest of justice. For no man ought to be compelled to submit his cause to be tried by an interested, biased or prejudiced judge where in the very nature of things he can not have a fair and impartial disposition of his cause. We think it is the duty of the supervising judge under Section 550, .Revised Statutes, to act upon a statutory condition and his duties in that regard are ministerial and not judicial. This section of the statute is imperative. State v. Shaw, 43 Ohio St., 324; State, ex rel., v. Chapman, 67 Ohio St., 1; State, ex rel., v. Wolfe, 11 C. C., 591; Hunt v. State, 17 Cir. Dec., 16, 27 C. C., 16; Barclay v. Salmon, 9 Cir. Dec., 520; State v. Dislam, 18 Cir. Dec. 69, 28 C. C. 69.
    The statutory condition upon which the supervising judge is required to act under Section 550 of the statutes, is that a sufficient affidavit is filed by the proper party not less than three days prior to the time set for the hearing in such matter or cause. 98 O. L., 59.
    This condition does exist in cause No. 7654, (Werner v. The Supreme Council of the Catholic Mutual Benefit Assn. et al.) now pending in the common pleas court of Wyandot county. But this plaintiff in error is of opinion that before it is his duty to designate and assign another judge to try said cause, he should enter into the realms of metaphysics and satisfy himself that the state of Judge Babst’s mind is such that he is biased and prejudiced.
   Davis, J.

Section 550, Revised Statutes, was amended into its present form in 1889 and again in 1906. 86 O. L., 363, and 98 O. L., 59. Prior to the amendment of 1889 the section 'related merely to change of venue. Since that time it has provided for a change of judges in the same venue. As the statute now reads, upon the filing of an affidavit “setting- forth the fact” of interest, bias, prejudice or disqualification of a judge of the common pleas court in which a cause is pending, it shall be the duty of the clerk of the court to enter the fact of the filing of such affidavit upon the trial docket in such cause and forthwith notify the supervising judge of that subdivision or district.

Such filing of an affidavit and such action by the clerk, however, is only authorized when the judge is interested in the cause, or is related to a party thereto, or has a bias or prejudice for or against Tiny party to such cause or his counsel, or is otherzvise disqualified. Who shall determine whether the prerequisite fact exists? Not the clerk surely, because his sole duty is defined. He shall enter the fact of the filing of the affidavit on the trial docket and notify the supervising judge and with that his duty ends.

But the statute requires the supervising judge to “proceed in the same manner as provided in section four hundred and sixty-nine to designate and assign some other judge,” etc. Section four hundred and sixty-nine provides that when the supervising judge receives “satisfactory information” that by reason of illness or “other disability” a common pleas judge is unable to perform his duty, he shall assign another judge for that duty. Now taking these two sections together, it is clear that two things must concur before the supervising judge is authorized to appoint another judge: first, the actual fact of interest, relationship, bias or prejudice, or other disqualification ■ must exist and, second, he must have satisfactory information of .that fact. That is, the information which authorizes the supervising judge to designate another judge, must be of such a nature as to satisfy him that the disqualification really exists and is not a subterfuge. The affidavit is, at best, no more than prima facie evidence of the fact. The supervising judge may accept it and act upon it if he chooses to do so; but if, for any reason, he feels that further evidence of the disqualification is desirable, it is not only his privilege but his duty to require it. He is therefore invested with a judicial discretion which cannot be controlled by a writ of mandamus.

We adopt this construction of the statute the more readily, because, if the affidavit be taken as final and conclusive, it would raise a more serious question as to whether the legislature has overstepped constitutional limits, and it cannot be lightly assumed that it intended to do so.

• The judgment of the circuit court is

Reversed.

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


author: Spear, J.

text:
    Stout et al. v. Stout et al.

      Administrator's right to subject lands of intestate — To payment of debts of estate — Superior to rights of heirs at law — Heirs at law suing for land partition — Must give bond under Section 6146, Revised Statutes.

    1. The right of an administrator to subject the lands of his intestate to the payment of the debts of the estate is superior to the right of the heirs at law to have partition of such lands.
    2. So soon as the administrator has ascertained that the personal estate in his hands will be insufficient to pay all the debts, etc., of the estate, it is his duty to forthwith apply to the probate or common pleas court for authority to sell the lands for the payment of such debts, and in such case the heirs at law can prevent a sale and have partition of the lands only by giving bond for the payment of debts, etc., as provided by section 6146, Revised Statutes.
    (No. 12027
    Decided June 28, 1910.)
    Error to the Circuit Court of Highland county.
    The action out of which the controversy in this court grows was commenced in the court of common pleas of Highland, and was disposed of in both of the courts below upon the pleadings. The facts thereby shown necessary to an understanding of the legal question involved are as follows:
    Richard Stout, a resident of Highland county, died intestate December 16, 1907, seized of certain real estate situate partly in Highland and partly in Brown county. He left Anna B. Stout his widow and other parties in the court below and in this court his heirs at law. The next day after the decease of the father, viz: December 17, 1907, William R. Stout and Cornelius R. Stout filed in the court of common pleas of Highland their petition for partition, making the widow and heirs defendants. The petition averred that the personal property of the estate was sufficient to'pay all debts of the estate. Later, to-wit, February 8, 1908, a supplemental petition was filed averring that Anna B.' Stout had been appointed administratrix of Richard Stout, deceased; that she claimed some interest or right in and to the real estate and making her a party defendant as administratrix.
    December 24, 1908, Anna B. Stout as- administratrix filed an answer averring her appointment as such January 7, 1908; averring, also, that the personal estate of Richard Stout was wholly insufficient to pay the debts and costs of administration; and that the total value of the personalty was only $2,160.52 and that valid debts of the decedent amounting to over $4,304.18 had already been presented for allowance and allowed, and $614.17 more had been presented but not )^et allowed; that Richard Stout died December 16, 1907, and that on March 18, 1908, she brought suit in the probate court of Highland county, making necessary parties and asking an order to sell real estate to pay said debts, which suit has been heard on the pleadings and evidence and is now iñ the hands of the court for final decree. No person interested in the estate has given bond to her as such administratrix as provided by law for the payment -of the debts of said estate and said claims are valid claims against said estate. The jurisdiction of the probate court attached March 18, 1908, and the court of common pleas has no jurisdiction of this case.
    Upon hearing of a general demurrer to the answer of Anna B. Stout, as administratrix, the court of common pleas overruled the demurrer, and thereupon upon trial held that the plaintiffs in that court had no cause of action and dismissed their petition. .This judgment was affirmed by the circuit court. Error is prosecuted here by William R., Cornelius R., and Samuel A. Stout. The administratrix also, apparently out of abundant caution, filed a cross-petition asking affirmative relief in the partition case. To this a general demurrer interposed by plaintiffs was sustained by the court of common pleas. No complaint is made to this action in the common pleas by either party and that incident need not be further referred to.

      Mr. Carl W. Lens; Mr. Frank A. Collins, and Messrs. Wilson & McBride, for plaintiffs in error.

      Messrs. Worley & Wiggins, for defendants in error.
   Spear, J.

The question at issue is in a narrow compass. It is whether or not, upon the decease of a resident of Ohio who dies intestate being seized of real estate situate in this state, and owing debts, the heirs at law may have partition of the real estate as against the claim of the administrator to subject the land to the payment of debts of the estate, without giving bond to pay debts, etc., as required by section 6146, Revised Statutes. Both courts below answered this question in the negative. We think they answered it correctly.

It is true that the title to the land of the deceased intestate passes to the heirs at law. It-is also true that the administrator has no concern therewith except upon a condition to be considered later. The right to partition is controlled by statute. Chapter 9 of title I, division 7, Revised Statutes, prescribes the procedure. Tenants in common and coparceners are given the right of partition and are made subject to that right. The parties are to be the tenants in common, coparceners, or other persons interested in the land. The right thus given is not an unlimited right but is subject to certain specified restrictions. One of those restrictions is that where the title came' from an inhabitant of this state partition shall not be ordered within one year from the date of the death of the intestate unless the petition shall set forth and it be proved that all the debts and claims against the estate have been paid, or secured to be paid, or that the personal property of the deceased is sufficient to pay the same. This provision is a recognition of the universal rule that the lands of a decedent are subject to the payment of his debts. It is unnecessary to cite authorities to sustain this proposition since it runs through all the legislation and all the decisions of the courts bearing on the subject, and the sections of statute respecting partition must be construed in all cases in the light of this principle. It does not follow from this, however, that the administrator is a proper party in a partition suit. As a general proposition he is not. Within the meaning of the statute he is not a “person interested therein.” A widow, or one holding a lien, would come under that designation. Had there been in the present case no debts to be paid it would be entirely plain that the administratrix could not, on any conceivable ground, be a proper party, and it would seem just as clear that she could not be dragged in by the false statement in the petition as to debts. In other words, if there were no debts in excess of the personalty to be paid the administratrix could not possibly have any interest in the land, while if there were such debts the partition suit commenced the day after the decease of the intestate was simply an impertinence. Special provisions as to the rights of the administrator with regard to sale of land' to pay debts will be cited later on. Not being a proper partjr in the partition case, the common pleas, notwithstanding the service of summons on the administratrix and her appearance, acquired no power to adjudicate against her in that suit and committed no error in refusing to do so. It is true that more; than a jrear from the decease of the intestate had elapsed before, by the answer of the administratrix, the court was advised of the condition of the estate as to debts. But this fact cannot be of significance, inasmuch as the provision as to one jrear, found in section 5756, Revised Statutes, is merely negative, and by no means implies that a sale might be ordered after the expiration of one year notwithstanding it were made to appear, as it was in this case, that the debts of the estate exceeded the amount of personal property. There is force, too, in the suggestion that the proper inference as to the limit of one year is that a partition suit ought not to be commenced to apart lands of one who was a resident of this state earlier than one year after the decease of the intestate.

The foregoing conclusion is strengthened by a consideration of the sections heretofore referred to as bearing on the right and duty of the administrator to ask authority to sell real estate to pay debts. Upon it being ascertained that the personalty is insufficient to pay the debts, the procedure provided by sections 6136 to 6174, Revised Statutes, operates upon the res as well as upon the parties interested, and gives to the administrator the absolute right to subject the lands in the way prescribed unless advantage is taken by those interested by the interposition of a bond. The first section above cited in absolute terms requires the executor or administrator so soon as he shall ascertain that the personal estate will be insufficient to pay all the debts, etc., to apply to the probate or common pleas court for authority to sell the real estate, and then follow, in subsequent sections, minute provisions for the proper conduct of such sales. This absolute requirement is not abridged by any clause of any of the sections following. It is true, as urged by counsel for plaintiffs in error, that provision is made by sections 6173 and 6174 for the appropriation to the payment of debts of the proceeds arising from sales in partition proceedings where deficiency of assets is found to exist, but this falls very far short of a provision supplanting an application by the administrator for an order to sell by a suit by the heirs in partition. Indeed, the last clause of the last cited section distinctly neutralizes the proposition claimed. That clause is: “provided, that nothing herein contained shall be so construed as to prohibit any executor or administrator from proceeding to sell land belonging to such estate to pay any debts, when the same has been sold on partition or otherwise, or the proceeds of such sale fully distributed.” It is inconceivable to ascribe to the law makers a purpose to authorize a suit in partition by heirs the result of which would be to simply complicate ’ the affairs of the estate, while at the same time the administrator is given authority, as is given by the clause above quoted, to sell to pay debts notwithstanding the sale in partition and the proceeds of the sale fully distributed.

The action by the administratrix, commenced March 18, 1908, in the probate court for authority to sell the real estate for payment of debts, was strictly in accordance with the requirements of statute and with her duty in the premises. All the parties in the partition suit were parties in that suit and it was brought in a court having adequate jurisdiction to work out full relief to all. The partition case was primarily to apart the lands among the heirs, and only incidentally to effect a sale on one contingency. As the land is subject to the payment of debts the right to subject it to sale for that purpose is the superior right. Both cannot prevail. Necessarily the minor one must give way. Therefore, the parties in the partition suit were without legal right or power to compel the administratrix to abandon her proceeding to sell real estate to pay debts brought in a form provided by statute for that. purpose, a court which could afford to all parties full and complete relief. It follows, therefore, that the probate court acquired jurisdiction, as well of the subject matter as of the parties, at the commencement of the action by the administratrix, within one year after the decease of Richard Stout, and was proceeding to work out the rights and interests of the parties. Necessarily the case supplanted the partition case in the common pleas and that court was justified in so holding and deciding.

Judgment affirmed.

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