source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Driscoll v. The Cincinnati Traction Company. The State of Ohio v. Tuttle.

      Judgment should not be reversed for misconduct of counsel, when— Effect of retraction by counsel—And admonition of court— Court procedure.

    1. A judgment should not be reversed for such misconduct of counsel for the prevailing party as tends only to discredit the administration of justice without subjecting the claim of the adverse party to prejudicial considerations not involved in the case. For misconduct of that character the trial court is authorized to apply more appropriate correctives.

      2. A judgment should not be reversed for misconduct of counsel for the prevailing party in alleging facts which no evidence tends to establish if from the nature of the case the retraction of counsel and the admonition of the court, it appears that the natural effect of the misconduct has been averted.
    (Nos. 13778 and 13826
    Decided May 6, 1913.)
    Error to the Circuit Court of Hamilton' county.
    Error to the Circuit Court of Marion county.
    Facts are stated in the opinion.

      Messrs. Strieker & Johnson, for Driscoll; Messrs. Kinkead & Rogers, for the traction company.

      Messrs. Mouser & Maloney and Mr. Charles L. Justice, for the state; Mr. H. E. Hill and Messrs. Crissinger & Guthery, for Tuttle.
   By the Court.

However wide may have been the difference between the original cases out of which these proceedings in error arose, judgments of reversal were rendered by the circuit courts in both cases because of the misconduct of counsel for the prevailing parties, and the propriety of the judgments of reversal should be tested'"by considerations which are substantially identical. In both cases the misconduct for which the circuit court reversed the judgments consisted of remarks, obviously improper, which counsel made in presenting the case to the jury. Remarks of counsel to jury always constitute misconduct when they either tend to diminish respect for the administration of justice or to subject the claims of the adverse party in the case to prejudice not warranted by the case actually presented for determination. But misconduct of the former character may constitute a very grave offense against the administration of justice without entitling the adverse party to a new trial if he suffers only in common with his fellows, all of whom are entitled to have proceedings in courts conducted with such decorum and propriety as to win the respect of all observers. For offenses of that character a new trial is an expensive and inappropriate remedy to which the judge of the trial court is not driven by any necessity, there being within his power modes of correction which will both secure the orderly conduct of procedure and avert the delays incident to mistrials. But for such remarks as naturally induce a jury to test the case of the adverse party by considerations not presented in or suggested by the evidence a new trial is the indispensable corrective if such improper effect is not averted by the court or counsel or both. The records show that misconduct of both kinds was committed in the trial courts in the present cases.

In the case firstly entitled, Miss Driscoll recovered a judgment in the trial court against the traction company for a personal injury alleged to have been received by her while a passenger on one of its cars caused by the negligent starting of the car by the conductor while she was in the act of alighting therefrom. In addressing the jury after the testimony had been adduced her counsel said: “Of course, he paid no attention to her. He rang the bell thinking she was off. just as it happens every day, the car started before she was off and this accident happened.” Assuming that evidence of other incidents of like character would have been competent there was no evidence of such other incidents in the case. Objection to the remark was promptly made by counsel for the company, in response to which counsel for Miss Driscoll as promptly said: “Gentlemen of the jury, disregard my remarks,” and the court admonished them that the evidence to establish the facts of the case could come only from the witness stand.

It is entirely obvious that this observation, of counsel unsupported by any evidence in the case tended to the prejudice of the defendant. What could be done to avert its natural effect was promptly done by both offending counsel and by the court. The withdrawal of the remark by counsel and the admonition of the court certainly informed the jury that the remark so improperly made should not have any influence whatever in determining their verdict. The proceedings of courts frequently require the conclusive assumption that jurors regard the instruction of the court as to matters of this character. If, over the objection of counsel for the traction company, evidence of other like incidents had been admitted and the court had subsequently concluded that the admission was improper and had directed the jury to disregard it, it would hardly be doubted that the instruction to disregard the evidence would have cured the error in its admission. And we cannot say, nor could the circuit court say, that effects of .the improper remark of counsel remained in the case to operate to the prejudice of the defendant.

In the same case counsel for the traction company requested several special instructions to be given to the jury which were given by the court. In his address to the jury counsel for the plaintiff referring to these special instructions, said: “They run in here a lot of charges that you want to watch very carefully.” To this characterization of one of the appointed modes of getting instructions to juries, counsel for the defendant naturally objected. That it constituted misconduct can hardly be doubted, but that it would operate to the prejudice of the traction company in the case is not apparent. So that, as to the improper remarks firstly quoted, we think their effect should have been regarded as averted by the retraction of counsel and admonition of the court, and as to the observation lastly quoted, that it did not prejudice the defendant in the trial.

In the other original case, Tuttle was placed on trial upon an indictment for an assault upon a woman. In his defense much reliance was placed upon testimony tending to separate him from the assault by so short a distance that precision as to time was quite necessary. The witnesses upon this point were quite noticeably precise, and some of them explained their precision by testifying to their observation of the strokes of a clock in the neighborhood and their recollection thereof at the time of trial, although Tuttle was not accused for several days after the assault. It appeared from the evidence that shortly before the trial was entered upon counsel for the accused were in the neighborhood interviewing persons who were supposed to be informed as to his presence in that neighborhood at the time of the assault with a view to calling them as witnesses. There was no testimony in the case whatever to show that they took any improper steps to secure testimony. In the closing argument on behalf of the state to the jury, as we gather from a record that does not seem to have been very carefully prepared, counsel for the state made some insinuations against the propriety of the conduct of adverse counsel in that behalf. He was engaged at the time in pressing upon the attention of the jury the efficacy of suggestion in starting the belief that one has observed what in fact he has not observed and that he remembers what in fact he does not remember. The psychological law suggested is within the observation of all of us and comment upon it was strictly within the function of counsel for the state. To the proper effect of legitimate comment upon that subject no force would be added by insinuations against the propriety of the conduct of counsel for the accused, and the misconduct appears to be only an offense against the decorous administration of justice, but without special prejudice to the accused.

One cannot read records of this character without sincere regret that honorable and intelligent counsel should become so consumed with a desire for victory as to discredit the modes appointed by the law for the ascertainment of truths which are involved in the administration of justice. Extended comment upon these cases does not seem to be necessary. None of the counsel involved can think for a moment that those who observed the administration of justice in these cases bore away from the courtroom as miich respect for the administration of justice as they had brought with them when they entered it.

. But in view of the considerations suggested thus briefly, we think the misconduct did not, in either case, justify a. judgment of reversal. In both cases the judgment of the circuit court will be reversed and the original judgment affirmed.

Reversed.

Shauck, C. J., Johnson, Donahue, WanAmakee, Newman and Wilkin, JJ., concur.


author: Wilkin, J.

text:
    Boehmke v. The Northern Ohio Traction Company.

      Plaintiff in action for damages—Sues defendant under mistaken name—Real wrongdoer voluntarily answers—Latter thereby submits himself to the jurisdiction of the court—And may be substituted as real defendant—'Question of statute of limitations.

    1. Where one knows himself to be the wrongdoer sought to be made liable in an action of damages for the wrong, and voluntarily appears by his attorney and answers in the name of and ostensibly as another person who was by the plaintiff named as defendant, and served with process in the mistaken belief that the latter person did the wrong, the former person thereby submits himself to the jurisdiction of the court and may be substituted as the real defendant in place of the nominal defendant sued by mistake; and the substituted defendant will be bound by the verdict and judgment rendered against him in the case.
    2. The statute of limitations will cease to run from the time the real defendant appears and answers in name of the nominal defendant.
    (No. 13147
    Decided June 10, 1913.)
    Error to the Circuit Court of Cuyahoga county.

      On September 25, 1900, the plaintiff entered suit in the common pleas court of Cuyahoga county against The Akron, Bedford & Cleveland Company, for damage for personal injuries received by him as he was about to enter a pássenger car on the interurban electric railway, then known as The Akron, Bedford & Cleveland line. At ten o’clock of the night of August 19, 1900, he was upon a platform maintained by the railway company owning and operating the line, at the side of the track, for the use of passengers on its cars. The night was dark. The platform was level with the street which the railway crossed at this point, but the other end of the platform was four feet above the ground. The plaintiff walked forward, when the car came, to enter the smokers’ compartment. The platform being shorter than the car, unlighted, and having no guard rail at the forward end, plaintiff stepped off and fell four feet to the ground and. sustained a fracture of both bones of his right leg.
    • July 12, 1899 (before the date of the injury), The Akron, Bedford & Cleveland Company had been merged with the street railway company operating the Akron city lines, and the consolidated company thus formed was known as The Northern Ohio Traction Company, which on August 19th owned and operated the interurban line, but the interurban cars bore the name “Akron, Bedford & Cleveland,” and the plaintiff and his attorneys' believed that the company of the same name still owned and operated the railway when the petition herein was filed

      For brevity we now designate the two companies The A. B. C. and The N. O. T.
    At the time of the merger the attorneys of The A. B. C. Co., Messrs. Ford, Snyder & Henry, became the attorneys of The N. O. T. Co.
    Summons was served on The A. B. C. Co. by copy delivered to its president, H. A. Everett, September 26, 1900. The answer to the petition was filed October 13, 1900, as the answer of The A. B. C. Co., but it was prepared and filed at the instance of The N. O. T. Co. by Ford, Snyder & Henry, formerly attorneys of the former company, now attorneys of the latter company, who signed as “attorneys for The A. B. C. Co.,” though they were then under pay of The N. O. T. Co.
    From that time till October 17, 1906, there were notices to, and continuances with the consent of, said attorneys, and a deposition was taken to which they appeared “as attorneys for The A. B. C. Co.” On the last-named date the plaintiff moved for leave to amend the petition by substituting the name of The N. O. T. Cot as defendant in place of The A. B. C. Co. The leave was granted, The N. O. T. Co. objecting.
    An amended petition was filed May 17, 1909, and the answer of The N. O. T. Co. was filed July 1, 1909, by Ford, Snyder & Tilden as “attorneys for The N. O. T. Co.” The defenses set up are not material to the disposition of the case here. The first trial resulted in a verdict for defendant. A new trial was granted and a verdict was returned for plaintiff, upon which judgment was entered for $2,000 and costs.

      Error was prosecuted to the circuit court, which reversed the judgment on the grounds: (1) That the common pleas court erred in permitting the substitution of The N. O. T. Co. for The A. B. C. Co. as defendant; and (2) “in ruling adversely to defendant on the agreed statement of facts with respect to the plea of the statute of limitations.”

      Messrs. Ong, Thayer & Mansfield, for plaintiff in error.
    As the court of common pleas ordered the substitution of The N. O. T. Co. for The A. B. C. Co., reserving only the question of jurisdiction so to do, and no bill of exceptions was taken thereon, the only question which arises on this point concerns the power of the court to make such substitution. Caldwell Furnace Foundry Co. v. The Peck-Williams on Heat. & Vent. Co., 6 C. C., N. S., 629, 76 Ohio St., 585; Lee v. Benedict, 82 Ohio St., 302.
    The court had power to make such substitution. L. S. & M. S. Ry. Co. v. Elyria, 69 Ohio St., 414; 1 Bates’ Pleading (2 ed.), 140-144.
    By the consolidation of the two companies, the old ones were extinguished. Compton v. Railway Co., 45 Ohio St., 615; Lee v. Sturges, 46 Ohio St., 169; Ashley v. Ryan, 49 Ohio St., 529; Shields v. Ohio, 95 U. S., 319.
    We insist that The N. O. T. Co. was carrying on the defense of this case in the name of a fictitious party, which would not only of necessity make The N. O. T. Co. the real party to the case, but would even as to it make the judgment therein res adjudicata. Roby v. Eggers, 130 Ind., 416;
      Claflin v. Fletcher, 7 Fed. Rep., 851; 2 Black on Judgments (2 ed.), Sec. 539.
    . The court had power to permit amendments to pleadings by striking out or adding the name of any party “in furtherance of justice.” Section 5114, Revised Statutes.
    Such amendments are proper, and take effect as of the beginning of the original case. Lilly v. Tobbein, 103 Mo., 477; School Town v. Grant, 104 Ind., 168; Railroad Co. v. Bills, 118 Ind., 221; Snider’s Exrs. v. Young, 72 Ohio St., 494.

      Messrs. Ford, Snyder & Tilden, for defendant in error.
    The plaintiff in error says that after the consolidation of The A. B. C. Co. with another company on July 12, 1899, it was no longer in existence; that it could not sue and be sued; that it had no actual existence and was a mere fiction.
    The old companies are declared to be in existence so far as is necessary to preserve the rights of their creditors, and they may sue and be sued. Compton v. Railway Co., 45 Ohio St., 592; Harris v. C. H. & D. Ry. Co., 16 O. D., N. P., 653.
    The legislature having provided certain specific cases when the statute begins to run, from the discovery of the wrong, in all other cases the statute begins to run from the date of the wrong, and not from the date of its discovery, even though it may have been fraudulently concealed. Fee’s Admr. v. Fee, 10 Ohio, 470; Howk v. Minnick, 19 Ohio St., 462; Williams v. Pomeroy Coal Co., 37 Ohio St., 583; State, ex rel., v. Standard Oil Co., 49 Ohio St., 137; A. T. & S. F. Ry. Co. v. Atchison

      Grain Co., 68 Kans., 585; Wood on Limitations, (3 ed.), Sec. 276.
   Wilkin, J.

Section 3384, Revised Statutes (the law at the time of the amalgamation), provides as follows:

Upon the election of the first board of directors of the company created by the agreement of consolidation, the rights, privileges and franchises of such company and all the property, and debts due on account of subscriptions of stock or other things in action, shall be deemed to be transferred to and vested in such new company, all property and other interests shall be effectually the property of the new company as they were of the parties to the agreement * * * but all rights of creditors, and all liens upon property of either shall be preserved unimpaired, and the respective companies may be deemed to be in existence to preserve the same; and all debts, liabilities and duties of either shall thenceforth attach to the new, and be enforced against it as if such debts, liabilities and duties had been contracted by it.

The consolidation or absorption of The A. B. C. Co. into the defendant company, though in fact a dissolution of the constituent company, did not destroy its existence in contemplation of law for one purpose. It is deemed still to have a being to answer the suit of its creditors; the legal entity survives the merger, with its property, for this purpose.

Such seems to be the rationale of the case of Compton v. Railway Co., 45 Ohio St., 592.

But the opinion in that case refers to this legal conception as a fiction of the chancellor to protect creditors.

This seems necessarily to involve the idea that the merger of the two companies is nevertheless an actual blending of the absorbed and the absorbing corporations into one composite legal person. The notion of separate entity is only a figment of the mind, not appropriate to the case at bar, for the tort-obligor here is The N. O. T. Co., not The A. B. C. Co.

The composite or consolidated company, by express declaration of the statute, is liable for the obligations of the component companies. So that if a judgment had been- taken in the- case against The A. B. C. Co., that judgment would have immediately become the obligation of The N. O. T. Co. Therefore The N. O. T. Co. had an interest in the case, to. defeat a recovery.

The determinative question is: Did the latter company appear in the case?

Stipulation No. 11 in the agreed statement of facts signed and filed in the suit by the plaintiff and the now defendant, The N. O. T. Co., gives the answer to this question. By that stipulation The N. O. T. Co. admits that the answer which its attorneys filed in the case was only ostensibly the answer of The A. B. C. Co.; that The N. O. T. Co. requested its attorneys to prepare and file the answer, and paid them for that service. The inference is that the service was rendered for The N. O. T. Co. at whose instance it was performed, and that the service was for the benefit of the latter company, which paid for the service, to defend it from liability for its own wrong.

The conclusion,, therefore, must be that the attorneys for The N. O. T. Co. who appeared only ostensibly for The A. B. C. Co., which'was sued by mistake, appeared in fact as attorneys :for and in behalf of-The N. O. T. Co.

Our statute of amendments is-very -liberal. In furtherance of justice the court-may ainehd ahy pleading, process or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party or; a mistake in any other respect. Section 11363,' General Code.

The real party who did the wrong complained of was in court. It operated the railway on which it invited the plaintiff to become a passenger, under the name A. B. C. published on the'cars. The plaintiff naturally mistook The A. B. C. Company for the owner and operator of the railway, and sued it for his damage instead of The N. O. T. Co., the real party responsible for his injury.

The court was right in amending the proceeding by substituting the name of the real defendant for whom its own attorneys appeared and made the defense for it in fact, though ostensibly for the company which was sued by mistake and ■ whose legal personality, franchises, assets and obligations it had absorbed.

Having voluntarily come into court, though in the guise of The A. B. C. Co., and filed an answer in its own defense, though ostensibly for the nominal defendant sued by mistake, The N. O. T. Co. stopped the statute of limitations from running in its favor during the long period it graciously permitted the case to be continued in the false hope that the bar of the statute would ripen.

The clever argument made by counsel for defendant in error is that The N. Q. T. Co. was free to let the plaintiff deceive himself to the end of time; it was not the defendant’s duty to “undeceive” him. True; and counsel frankly state that the defendant was aware of plaintiff’s mistake but contributed fn no way to that mistake. True, also. But that mistake became a mere irregularity in the judicial formulary of the suit when the real party came to the defense wearing the mask of the formal party. A court of law is a dangerous place for masquerade, for the law looks beneath the apparent and beholds the real.

Counsel naively, assert that The N. O. T. Co. had a perfect right to employ counsel to defend for The A. B. C. Co. Yes; but at the risk of being substituted as soon as the plaintiff discovered he had sued the wrong company and that the right one was in court defending. Counsels’ mistake was in thinking their client could enjoy the privilege of defending a lawsuit and dodge the responsibility that goes with it.

Assenting to the plaintiff’s mistake, the defendant accepted the suit and thus cured the irregularity. “Consensus tollit errorem is a maxim of the common law and the dictate of common sense,” says Broom, citing Coke, “for qui facet consentiré videtur!’

The defendant’s innocent mistake of law neatly and effectually corrected the plaintiff’s innocent mistake of fact, and repaired the defect in the title of the suit.

Judgment of the circuit court reversed and that of the common pleas affirmed.

Shauck, C. J., Johnson, Donahue, Wanamaker and Newman, JJ., concur.


author: Wan am aker, J.

text:
    The State, ex rel. Maher, Prosecuting Attorney, v. Baker.

      Remedial statutes should be liberally construed—Moneys paid into county treasury—For construction of county ditch are public moneys, when—Duty of prosecuting attorney to recover excess paid on ditch contract, when—Sections 4447 and 1277, Revised Statutes, and 6443 and 2921, General Code.

    1. Remedial statutes should be liberally construed so as to furnish all the remedy and accomplish all the purposes intended by the statutes.
    2. Moneys paid into the county treasury by virtue of proceedings for the location and construction of a county ditch in conformity with Section 4447, et seq., Revised Statutes, and Section 6443, et seq., General Code, are public moneys within the meaning of Section 1277, Revised Statutes, and Section 2921, General Code. (Overruling Loe v. State, ex rel, 82 Ohio St., 73.)
    3. It is not only the right but the duty of the prosecuting attorney to bring and maintain an action to recover from any contractor for the construction of such ditch any amount received by him in excess of the amount stipulated in the contract.
    (No. 13119
    Decided June 10, 1913.)
    Error to the Circuit Court of Darke county.
    Plaintiff filed in the common pleas court of Darke county, Ohio, the following amended petition :
    “Comes now John F. Maher as the duty elected, qualified and acting prosecuting attorney of Darke county, Ohio, and brings this action as such prosecuting attorney, in the name of the state of Ohio and for the use and benefit of Darke county and its taxpayers, and further says:

      “That on or about the ninth day of June, A. D. 1906, one Abe Oda entered into a written contract with- the 'county surveyor of Darke county, Ohio, for the construction of a portion of Bridge creek ditch improvement, and which written contract was duly approved by the board of county commissioners of Darke county, Ohio (a copy of said contract'-is hereto annexed marked Exhibit ‘A’). That the said Abe Oda duly entered into a bond for the faithful performance of said contract as provided by law with the said Ezra Baker and E. E.' Studebaker and' Samuel Dull as sureties; that thereafter the said Oda failed and neglected to complete-said improvement and to perform-his said contract according to the terms thereof, and the said' Ezra Baker, defendant herein, as such bondsman,' undertook to complete the said contract; that-thereafter, to-wit: March 18, 1907, the board of county commissioners of said Darke coúnty modified the specifications of the said contract whereby the grade was raised one (1) foot from the outlet of said ditch to the road on the section line between sections fourteen (14) and twenty-three; (23) in . Neave. township; that the said written' contract and specifications provided among other Things as follows: ‘There shall be added, or deducted from the contract price, accordingly, as the change required more or less labor or material/ That by reason of the said change in ' the said specifications less labor was required to complete the said contract and the said Ezra Baker did thereupon complete said contract according to said change in said specifications, and that the said county .surveyor, in charge of said ditch, in making a final estimate upon said improvement and his certificate therefor, to the said Ezra Baker, deducted from the original contract price the sum of $597.75, the said amount being the value of labor saved, calculated pro rata upon said original contract price, from being performed by reason of said change in said specifications.
    “That thereafter the said Ezra Baker presented a certain bill to the said county commissioners for the said amount of $597.75, which bill was false, fraudulent and ñctitious and said Darke county had received no services, property or other things of value therefor from the said Ezra Baker nor any one for him; that about September 21, 1907, the said then county commissioners undertook and pretended to allow said false and fictitious bill in the sum of $497.75; that at said time the legality of said bill had not been approved by the prosecuting attorney of said county, and was never thereafter so approved by the prosecuting attorney. Nor at said time had the said county surveyor, engineer in charge of said ditch improvement approved the said bill, and that the then auditor of Darke county, Ohio, upon the direction and order of the prosecuting attorney, refused to issue a warrant in payment for the said bill or in any part thereof.
    “That a long time thereafter, to-wit: December 2, 1908, the said Ezra Baker procured the then auditor of said county to issue a warrant upon the county treasurer for said amount, which warrant is in the words and figures following, to-wit':

      ‘Series P. $497.75.
    ‘Auditor's Office, Darke County, Ohio,
    ‘Greenville, Ohio, December 2, 1908.

      ‘The Treasurer of Darke County:

    ‘Pay Ezra Baker, or order, four hundred ninety-seven and 75-100 dollars for final estimate on Bridge creek ditch improvement out of the ditch funds, by order of comrs.
    ‘No. 1675. Frank Snyder, Auditor.’

    “That thereupon the said Ezra Baker presented said warrant to the county treasurer and received thereon public moneys of Darke county, Ohio, from the said treasurer in the sum of $497.75; that at said time there was not any money due and owing the said Ezra Baker from Darke county, Ohio, in the sum of $497.75, or any other sum whatever, and that the said payment of said money to the said Ezra Baker and the receipt thereof by him, was at the time illegal and unwarranted.
    “That the county of Darke, as a corporate entity, was and is interested in the said Bridge creek ditch improvement and the said Darke county was 'assessed and did pay in the construction of said improvement the sum of $390, and said county was and is an interested taxpayer in said improvement.
    “That by reason of the premises above set out, there is now due the said Darke county, Ohio, from the said Ezra Baker , the said sum of $497.75, together with six per cent, thereon from December 2, 1908.
    “That due demand has been made upon said Ezra Baker for the payment of said sum and interest and which demand has been ignored.

      “Wherefore, said plaintiff prays judgment against the said Ezra Baker, in the sum of $497.75, together with six per cent, interest from December 2, 1908, for the use of said Darke county, Ohio, and costs herein and all proper relief.”
    To this amended petition the defendant interposed the following demurrer:
    “By leave of court, on the application of said defendant, the motion heretofore filed by him having been withdrawn, the said defendant comes now and demurs to the amended petition herein for the reasons:
    “1. That said plaintiff has not legal capacity to sue.
    “2. The said amended petition does not set forth facts sufficient to constitute a cause of action herein.”
    Upon hearing, the common pleas court sustained the demurrer to the amended petition and plaintiff not desiring to further amend, judgment was entered in favor of the defendant.
    Thereupon plaintiff prosecuted error to the circuit court, which affirmed the judgment below.
    Error is here prosecuted to the judgments below.

      Mr. John F. Maher, prosecuting attorney, and Mr. O. R. Krickenberger, for plaintiff in error.

      Messrs. Robeson & Yount and Mr. D. W. Bowman, for defendant in error.
   Wan am aker, J.

The case at bar is for the recovery back of money claimed to have been unlawfully paid out of the county treasury by virtue of Section 2921, General Code, upon the state of facts set forth in the petition, which, boiled down, are substantially as follows:

Ezra Baker was surety upon the bond of one Abe Oda, who became a contractor for the construction of a ditch improvement known as the Bridge creek ditch improvement; that Ocla became unable to carry out this contract and the defendant Ezra Baker took the contract and proceeded to execute it; that in the course of the work the county commissioners changed the specifications so as to materially reduce the amount of work; that the written contract provided among other things that where a change is made there should be added to or deducted from the contract price accordingly as the change required more or less labor or material; that under this provision of the contract the engineer in charge of the work made an estimate of the amount that Baker was to receive; that this estimate was $497.75 less than the contract for the original work; that the amount of this estimate was allowed and paid by the commissioners; that subsequently Baker presented a bill to the commissioners for the additional amount of $497.75, which was allowed by the commissioners; that an order or warrant was drawn in favor of Baker by the auditor upon the treasurer in' the following words and figures:

“Series P. $497.75.
“Auditor's Office, Darke County, Ohio.
“Greenville, Ohio, December 2, 1908.
“The Treasurer of Darke County:
“Pay Ezra Baker, or order, four hundred ninety-seven and 75-100 dollars for final estimate on Bridge creek .ditch improvement out of the. ditch funds, by order of Comrs.
“No. 1675. Frank Snyder, Auditor.”

Thereupon the said Baker presented said warrant to the county treasurer and received thereon public moneys of Darke county, Ohio, from the said treasurer in the amount of the warrant; and that at said time there was not any money due or owing the said Baker from Darke county, and that the said payment of said money to said Baker was at the time without any warrant or authority ■of law.

The questions involved in this case are substantially the ones raised by the demurrer to the amended petition.

1. Has- -the plaintiff legal capacity to sue?

2. Does the amended petition set forth facts sufficient to constitute a cause of action?

It is conceded by counsel on both sides of this case that this action depends very largely upon the interpretation to be given to Section 2921, General Code. The statute reads as follows:

“Upon being satisfied that funds of the county, or public moneys in the hands of the county treasurer or belonging to the county, are about to be or have been, misapplied, or that any such public moneys have been illegally drawn, or withheld from, the county treasury, or that a contract in contravention of law has been, or is about to be entered into, or has been or is being executed, or that a contract was procured by fraud or corruption, or that any property, real or personal, belonging to the county is being illegally used or occupied, or is being used or occupied in violation of contract, or that the terms of a contract made by or on behalf of the county are being or have been violated, or that money is due the county, the prosecuting attorneys of the several counties of the state may apply, by civil action in the name of the state, to a court of competent jurisdiction, to restrain such contemplated misapplication of funds, or the completion of such illegal contract not fully completed, or to recover, for the use of the county all public moneys so misapplied or illegally .drawn or withheld from the county treasury, or to recover, for the benefit of the county, damages resulting from the execution of such illegal contract, or to recover, for the benefit of the county, damages resulting from the non-performance of the terms of such contract, or to otherwise enforce it, or to recover such money due the county.”'

What is the common-sense construction of this statute as applied to the facts of this case?

In construing any written instrument, whether' it be a will, contract, statute, or constitution, the primary and paramount rule is: What was the intent or purpose of the makers of such written instrument? And it is conceded to be the almost universal law that that intent or purpose shall be chiefly gathered from the language employed in such instrument.

If it be a penal statute that is under consideration, it is to be strictly construed in favor of the persons to be punished. If it be a remedial statute, it is to be liberally construed in favor of the persons to be benefited.

The strict construction, however, must not squeeze out the. lifeblood of the statute, nor should the liberal construction result in the exercise of the legislative power of amendment under the mask of so-called interpretation. In short, it is not the proper province of the court to add to or subtract from the intended meaning and scope of the statute. In any case, the interpretation should be reasonable, consistent with the language used, and conducive to the purposes to be accomplished by the enactment of the statute.

What was the intention of the lawmakers who made this statute? What was their purpose in passing it?

Upon the most superficial reading of this statute, can any fair-minded person, in the . light of common sense as well as the common law, doubt that the design and purpose was to protect the public in their contracts, their property and their moneys ?

If not, what was it?

An analysis of the foregoing Section 2921, General Code, discloses the following classification with reference to the moneys or funds specified in the statute, to-wit:

1. Funds of the county.

2. Public moneys in the hands of the county treasurer; or

3. (Public moneys) belonging to the county.

•It is claimed on the part of the defendant that by reason of the fact that the money paid Baker was for the balance of the contract price for the construction of a ditch improvement, which ditch was ultimately paid for by the adjacent and abutting owners who are benefited by the improvement, through assessments duly made upon their several lands, the moneys in ■ question were not public moneys, or county moneys, as specified by the statute, but that they were in truth and in fact private moneys belonging to the parties assessed for the construction of the ditch.

It is therefore contended by the defendant that if there was any remedy in anybody to recover back süch money so wrongfully paid out, it would not be in the prosecuting attorney for and' on behalf of the county, but. in some party assessed for the ditch in behalf of himself and others, who were likewise severally assessed, and that, therefore, the plaintiff had no capacity to sue.

As to classes one and three above cited, to-wit: (1) Funds of the county, and (3) public moneys belonging to the county, there might be at first blush some doubt in the strict and literal meaning of the words designating the funds. Still, even applying the strictest rule of construction, it must be conceded that the funds in question upon which the warrant was drawn, or out of which the warrant was paid, were then in the custody of the county.

The county, therefore, was the bailee of these funds at the time and had therefore their rightful custody, if for no other purpose, as a disbursing agent, or as a political subdivision of the state exercising certain administrative functions conferred by law.

Manifestly the bailee has a right to protect his; funds while they are rightfully in his custody, and, if necessary, may do so by a suit at law or in equity, the more so where the power is directly conferred by statute.

Suppose, for- instance, these funds had been stolen and the indictment charged that the money, wa.s the. property of. said Darke county, Ohio, and. upon the trial it should turn out that this was money in the custody of the people of the county arising out of the ditch assessments, and that, therefore, they were not properly, really, or strictly,, county funds or public moneys, but that the county simply had the right of possession as a bailee. Would there be any question but that the thief could be convicted of larceny notwithstanding the fact that the indictment alleged the ownership of the property absolutely and unconditionally in the county?

Certainly not. The books are full of just such cases.

If ownership of the property in a larceny prosecution may be pleaded and proved in the bailee as the real owner, much more so in the ordinary civil proceeding to recover back money may the ownership of property be pleaded and proven in the bailee as owner.

Conceding for the purpose of this case that the fund out of which the warrant was paid was a fund raised by ditch assessment (though neither the petition nor the warrant discloses whether it was ditch funds raised by general taxation or taxation of the persons benefited in the neighborhood of the ditch), what was each contributor’s interest in said fund after he had paid his assessment into the county, treasury?

Had such contributor not fully and eternally lost all control, dominion and interest in said fund? Had he not absolutely parted with his property in the same ? ■ Indeed, has it not been repeatedly held by courts without number that if after payment of the assessment the law under which the ditch was constructed or the assessment made was held unconstitutional the assessment cannot be recovered back unless payment was made under a proper protest? 30 Cyc., 1315.

Title to those moneys must be somewhere and in somebody.. It is not in the contributors to the fund. Where else can it be than in the county or its agent, the county treasurer?

Irreverent as it may seem to some, courts after all are but the people’s agents in the transaction of public business.

If agents in the transaction of private business use their power against their principals’ interests, we know what speedily happens. Why should there be any less fidelity in the transaction and protection of the public business by our courts?

The purpose, phrasing and power of the statute all happily combine to protect the people’s purse and property and to protect and promote official honesty. Our construction should' defend and not defeat the sound statesmanship of this statute.

The legislature, however, seemed to anticipate that some court might interpret this statute with superlative strictness upon the question of ownership, and therefore they put in another class: (2)-Public moneys in the hands of the county treasurer.

Does anybody doubt that this money paid to Baker was, before the payment by the county treasurer, in the hands of the county treasurer?

No doubt, by a splitting of frog hairs, it could be urged with equal force that it was not in the hands of the county treasurer but that it was in the vaults of the county treasury. This is the kind of construction wherein the letter killeth but the spirit giveth life.

Authority for the judgments below is claimed by virtue of the case of Loe v. State, ex rel., 82 Ohio St., 73. The syllabus reads as follows:

“Moneys which are paid into the county treasury by virtue of proceedings for the location and construction of a county ditch in conformity with Section 4447 and cognate sections of Revised Statutes, are not ‘funds of the county/ nor ‘public moneys in the hands of the county treasurer belonging to the county/ within the meaning of Section 1277, Revised Statutes; and where one who has contracted for the construction of all or a part of a county ditch has been fully paid by the county treasurer on warrants issued to such contractor by the county auditor, when the work of construction so contracted for was but partially performed, the prosecuting attorney is not authorized by said Section 1277 to bring and maintain an action to recover back from the contractor the amount received by him in excess of the work actually performed.”

It will be observed that as far as the essential facts are concerned the cases are on all fours. The syllabus of this case, however, overlooked one very important distinction in the language of the statute, and that is the second class above referred to: “Public moneys in the hands of the county treasurer.”

The legislature evidently intended that not only public mollejas belonging to the county might be recovered in a suit at law, but public moneys in the hands of the county treasurer were also to be recoverable in a suit at law. The latter class of public moneys seems to have been overlooked in the Loe case.

How public must money be before it is public enough to be embraced in this statute?

In the first place, we take it that a county ditch is certainly a public matter. Section 6443 et seq.} General Code; Section 4447, et seq., Revised Statutes, all recognize it as a public matter. It is petitioned for by the public. The petition itself recites that the improvement is for the “public health, convenience and' welfare,” and the commissioners must so find upon their journal before the ditch may be constructed. The petition is addressed to the board of county commissioners. The legislation from one step to another is conducted by the board of county commissioners, the viewers appointed by them, and the county surveyor. The assessments are made by public officers and collected by public officers. The contract is let and supervised by the public officers. And yet it is seriously contended that it is a private transaction, or, at all events, the moneys in the hands of the county treasurer arising from this improvement and assessment upon the abutting landowners, is not within the scope, purpose and limitations of the statute.

The record does not disclose how many individual people were assessed for this improvement. But evidently there was a considerable number in the neighborhood of the ditch. Enough at all events to invoke the jurisdiction of the public authorities to legislate upon and construct a public improvement. And it would be folly to say that in order to protect the fund arising from this improvement the public officers who assessed and collected it were powerless to protect it from crooks, criminals and plunderers, and that the same might be converted to private use by embezzlement and the public authorities be powerless to prevent or punish.

From time immemorial ditches have been recognized as proper public uses. It would, seem by a parity of reasons and logic that the funds contributed, no matter by whom, and paid into the public treasury would thereby become public funds within the meaning of the statute. So that we have “public” as a word of qualification and characterization not only as to the use but as to the funds necessary to pay for the use.

Lest some, however, be in want of authority of other courts upon the question and meaning of the word “public” in this connection, the following are cited:

“The term ‘public’ does not mean all the people, nor most of the people, nor very many of the people of a place; but so many of them as contra-distinguishes them from a few.” State v. Luce, 9 Houst. (Del.), 396, 399, 32 Atl. Rep., 1076; United States v. Luce, 141 Fed. Rep., 385, 392. 32 Cyc., 747 et seq.; Thomas v. County Commissioners, 5 N. P., 449, 5 O. Dec., 503.

The interpretation necessary to sustain the judgments below is of the sort that bleeds statutes to death and pulls the teeth out ■ of • remedial laws not only designed, but absolutely essential, to protect the public interests and safeguard the public funds. We desire to squarely and distinctly disapprove and reverse the case of Loe v. State, supra, so far as it relates to the case at bar.

Aside, however, from the construction of the statute as aforesaid, we believe that the petition itself stated a good cause of action when it averred the language of the statute as follows:

“That thereupon the said Ezra Baker presented said warrant to the county treasurer and received thereon public moneys of Darke county, Ohio, from said treasurer in the sum of $497.75.”

Here was a square, straight declaration that it was public money of Darke county, Ohio, that had been paid out.

Clearly this, in the first instance, brought the petition squarely under the language of the statute above cited even under the Loe case.

But we have not been disposed to decide this case upon this last proposition, because at once upon the close of the plaintiff’s case a motion would doubtless be interposed to direct a verdict by reason of the authority of the Loe case, supra, and therefore we have gone into the whole question, so that the power of the prosecuting attorney in reference to public moneys, propert)'-, contracts, and the like, may be construed in the spirit in which the statute was enacted, to-wit, the full and complete protection of the people’s property, the people’s contracts, the people’s moneys, whether that money be a fund created by a dozen contributors for a ditch, a hundred contributors for a road, or ten thousand contributors for a general tax fund.

Judgments of the common pleas and circuit courts reversed, and cause remanded to the court of common pleas of Darke county, with instructions to overrule said demurrer, and for further proceeding's according to law.

Reversed.

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

Shauck, C. J., concurs in the judgment.


author: Donahue, J.

text:
    Assur, a Taxpayer, v. The City of Cincinnati et al.

      Act of general assembly of April io, 1913 (103 0. L., 141)—Au-thorising certain county and municipal authorities—To borrow and expend moneys—For repairing and replacing public property —Damaged and destroyed by the flood of March, 1913—And to issue bonds therefor—Is a valid exercise of legislative power.

    The act of the general assembly of Ohio, passed April 10, 1913 (103 O. L., 141), entitled: “An act to authorize county commissioners, township trustees, boards of education, road commissioners, councils of municipal corporations and boards and officers thereof temporarily to repair, reconstruct and replace public property and public ways destroyed or injured by floods occurring in March and April, 1913; to authorize county commissioners and councils of municipal corporations to borrow and expend money for the purpose of cleansing public places and private grounds and buildings and removing therefrom any matter deposited therein by said flood which is inimical to the public health, safety or convenience; and to exempt proceedings for the permanent repair, reconstruction and replacement of such public property and public ways, and bonds issued and levies made for such purposes from certain requirements and limitations,” is a valid exercise of legislative power conferred by the constitution on the general assembly of this state.
    (No. 14198
    Decided June 10, 1913.)
    Error to the Court of Appeals of Hamilton county.

      On.the 8th day of May, 1913, plaintiff in error filed his amended petition in the common pleas court of Hamilton county averring among other things that he is a taxpayer of the city of Cincinnati ; that he 'had made demand on the city solicitor of Cincinnati to bring appropriate proceedings to restrain the sale and issue of bonds of that city in the amount of $125,000, issued in pursuance of the provisions of ordinance No. 201, passed April 15, 1913; that the city solicitor had refused to bring such action, and that the plaintiff brings this action as a taxpayer of the city of Cincinnati and for and in its behalf.
    To the petition is attached a copy of the ordinance. That ordinance authorizes the issue of the bonds of said city in the sum of $125,000 for the purpose of temporarily repairing, reconstructing, and replacing public property and public ways destroyed or injured by floods occurring in March, 1913, in the city of Cincinnati, and purports to be in pursuance of authority conferred upon the councils of munióipal corporations of this state by an act of the general assembly of Ohio, passed April 10, 1913 (103 O. L., 141), entitled: “An act to authorize county commissioners, township trustees, boards of education, road commissioners, councils of municipal corporations and boards and officers thereof temporarily to repair, reconstruct and replace public property and public ways destroyed or injured by floods occurring in March and April, 1913; to authorize county commissioners and councils of municipal corporations to borrow and expend money for the purpose of cleansing public places and private grounds and buildings and removing therefrom any matter deposited therein by said flood which is inimical to the public health, safety or convenience; and to exempt proceedings for the permanent repair, reconstruction and replacement of such public property and public ways, and bonds issued and levies made for such purposes from certain requirements and limitations.”
    The amended petition avers that ordinance No. 201 is unconstitutional, invalid and void and prays that the defendant, the city of Cincinnati, and Ira D. Washburn, auditor of said city, be temporarily restrained from the sale and issue of these bonds and that upon final hearing such injunction may be made perpetual.
    To this amended petition the defendants filed a general demurrer, which demurrer .was sustained by the common pleas court, and the plaintiff not desiring to plead further judgment was entered dismissing the petition at plaintiff’s costs.
    Error was prosecuted by the plaintiff in the court of appeals for the first judicial district of Ohio and that court affirmed the judgment of the common pleas court, and this proceeding in error is now prosecuted in this court to reverse the judgment of the common pleas court and the judgment of the court of appeals affirming the same.

      Messrs. 'Kohl & Assur, for plaintiff in error.
    The act is a law of general nature not operating uniformly throughout the state. State, ex rel., v. Davis, 55 Ohio St., 15; Hixson v. Burson, 54 Ohio St., 470; State, ex rel., v. Spellmire, 67 Ohio St., 77; Kelley v. State, 6 Ohio St, 269; State v. Nel

      son, 52 Ohio St., 99; City of Kenton v. State, ex rel., 52 Ohio St., 61; Gentsch v. State, ex rel., 71 Ohio St., 167; State, ex rel., v. Buckley, 60 Ohio St., 273; Cincinnati St. Ry. Co. v. Horstman, 72 Ohio St., 93.
    The act is a special act conferring corporate powers. State, ex rel., v. Cincinnati, 20 Ohio St., 18; State v. Pugh, 43 Ohio St., 98; P., Ft. W. & C. Ry. Co. v. Martin, 53 Ohio St., 386; Adams v. Nemyer, 35 W. L. B., 31; Platt v. Craig, 66 Ohio St., 75; Cincinnati v. Trustees of Hospital, 66 Ohio St., 446.
    The act vests legislative powers in the court of commoft pleas. City of Zanesville v. Telephone & Telegraph Co., 63 Ohio St., 442, 64 Ohio St., 85; Village of Fairview v. Giffee, 73 Ohio St., 183.

      Mr. Alfred Bettman, city solicitor, for defendants in error.
    The following Ohio authorities completely sustain the constitutionality of this act: Platt v. Craig, 66 Ohio St., 75; State v. Nelson, 52 Ohio St., 88; Cincinnati St. Ry. Co. v. Horstman, 72 Ohio St., 93; Village of Fairview v. Giffee, 73 Ohio St, 183.
    What is a- law of a general nature, and when does it have uniform operation throughout the state? 8 Cyc., 1054; Arms v. Ayer, 192 Ill., 601; Warner v. Hoagland, 51 N. J. L., 66.

    •• Temporariness of time does not render a statute unconstitutional. Railway Co. v. Horstman, supra.

    The statute in question is not a special act con-f erring corporate powers. Railway Co. v. Horstman, supra, 107.
    The statute is not an unconstitutional delegation of legislative power. Village of Fairview v. Giffee, supra; 8 Cyc., 835.
   Donahue, J.

This ordinance purports to have been adopted under the authority of the act of the general assembly passed April 10, 1913 (103 O. L., 141), as amended 103 O. L., 760, and generally designated as “The Flood Emergency Act.” The validity of the ordinance depends upon the constitutionality of this law.

It may be said in passing that if the state has no power to meet this emergency and to relieve the flood-stricken districts from the devastation wrought by this unprecedented calamity, then the state is inherently weak and fails in one of the most important purposes of its organization.

It is perhaps true that when our constitution was written and the various amendments thereto adopted, the people of the state may not have contemplated any such disaster as has overtaken us, and may not therefore have specifically provided the means and methods by which the resulting-conditions might be met and mastered.

On the other hand, however, it must be made to appear that this legislation is clearly in violation of the positive provisions of the constitution before a court would declare it unconstitutional. It is true that this court has said many times that in determining the constitutionality of an act the wisdom or beneficent purpose of the legislation under consideration is in no wise important: that the only duty of the court is to determine whether the general assembly of the state has acted within its constitutional authority; and undoubtedly that principle must obtain in the determination of the constitutionality of this act. But in view of the terrible catastrophe our state has just suffered and the urgent need for prompt and efficient action, certainly mere technicalities or a- refinement of reasoning that might suggest a possible doubt as to the legality of this act ought not to find much favor with the court.

The first contention on the part of plaintiff in error is that this act. is invalid because it violates the provisions of Section 26 of Article II of the state constitution.

This provision of the constitution requires that all laws of a general nature shall have uniform operation throughout the state. It has been adjudicated many times by this court that a law that “operates upon every person brought within the relation and circumstances provided for and in every locality where the condition exists is a law of uniform operation throughout the state.” State, ex rel., v. Miller, 87 Ohio St., 12; City of Cincinnati v. Steinkamp, 54 Ohio St., 284, 295; State, ex rel., v. Creamer, 85 Ohio St., 349; Miller v. Crawford, 70 Ohio St., 207; State, ex rel., v. Spellmire, 67 Ohio St., 77.

The principal argument urged in behalf of the claim that this law violates this provision of the constitution is that not only can it not have operation now in every locality within the state, but by reason of the fact that it is limited to the repair of damages wrought by the floods in March and April, 1913, it forecloses any possibility of other parts of the state where no damage now exists from these floods from ever coming within the provisions of this act.

If this court is correct in its former holdings that a general law that operates in every locality where the conditions exist is a law of uniform operation throughout the state, then this argument must fail, for this law operates in every such locality.

It is also a matter of general knowledge that this flood was not local in its character, but was general throughout this state, as well as in adjoining states, and practically all the portions of this state heretofore subject to floods, as well as many portions of the state that had never before suffered therefrom, were affected by the floods specified in this act. In fact, in all the history of this state there has never except this once been a flood of such a general nature or of such a devastating character both to the lives and property of our people; and applying these historical facts in aid of human judgment which, in view of the sad experiences we have just passed through, is at best lamentably uncertain, it is not a very strong argument to urge that the terms of this statute should have provided that other parts of the state might avail themselves of its provisions when other floods affected them in like manner.

It amounts to saying in fact that no valid legislation. can be passed for relief of flood disasters in the valleys and lowlands of the state because forsooth the hills and highlands have not suffered; for it was practically only the hills and highlands of the state that were exempt from the devastation of this flood.

But this act is in its very nature an emergency act. It deals with conditions that now confront us, and with conditions that we hope and have reason to hope may never be known again in this state. It is not the ordinary, everyday experience or condition, but an extraordinary situation requiring extraordinary remedies and remedies' that cannot well be delayed for a change in our organic law.

These conditions are necessarily temporary in character, and the legislature is to be congratulated upon its optimistic view deducible from the provisions of this act that this experience will not be repeated. The legislature has therefore dealt with it as a thing apart from the ordinary routine of public affairs. The fact that it applies to present conditions only, does not affect its uniform operation throughout the state. It might just as well be said that a law authorizing the pensioning of soldiers in the War of the Rebellion is not of uniform operation, because that war is over and only soldiers who participated in that war could receive such pension; and because no other persons except the soldiers engaged in that war could ever by any means or methods come Avithin the operation of that law. But that law does not prevent the passage of an act to pension soldiers of another war AAdien the necessity occurs, nor does this law prevent the passage of an act of the general assembly to take care of conditions arising from future floods, if that unhappy necessity should ever present itself for its consideration.

Our attention is called, however, to the fact that this law purports to confer on courts of common pleas in the affected counties a jurisdiction not conferred on these courts in other localities, and for that reason it is not of uniform operation throughout the state.

What has been said in reference to the uniform operation of this law in every locality where the condition specified in the act exists also applies to this contention. This act confers jurisdiction on the common pleas courts, or any judge of the common pleas courts of this state the same authority, to act when the matter is presented in the manner and form provided for in the act itself.

It does fix the venue in which the application shall be made. But every common pleas court in the state is granted the same authority and the same jurisdiction, the only requirement being as to venue. The fact that there may be some counties in the state where such an application may never be filed is in no wise important. The fact that it may be filed in such court when the venue is properly laid is sufficient to show that it has uniform operation throughout the state. The legislature has fixed the venue for all other kinds and character of actions, and while the legislature has necessarily conferred like jurisdiction on all common pleas courts it has very properly limited its jurisdiction to the venue fixed for the bringing of such action. For example, all common pleas courts have jurisdiction in actions for money only, and yet the legislature has limited the venue of such an action to the county in which the defendant or one of the defendants may be served with •summons.

It is said, however, that this act vests legislative powers in the courts of common pleas. The language of the act is not subject to such construction. It provides that the common pleas court or a judge thereof shall hear and determine if such public necessity exists, if such proposed repair, construction or replacement is temporary in its nature and should be made forthwith, and if the amount of money proposed to be expended therefor is reasonable and justified by such necessity. These questions so submitted to the court are not legislative but justiciable questions in every sense of the word. This provision is written into this law for the evident purpose of safeguarding public moneys and public credit and is in lieu of the general laws provided for such purpose in the transaction of ordinary public business.

It is claimed that the fact that these laws are suspended by the act in question is another reason why the act is not of' uniform operation throughout the state, because of the fact that in all other localities except flood districts the general laws apply to all the matters and things contemplated to be done under this act, and that this exemption can apply only in the counties affected.

This is not a valid objection to the law, because a law is of uniform operation if it applies in every locality of the state where the condition named in the law exists.

It is also claimed that this is a special act conferring special powers on particular municipalities and on the courts of common pleas in the counties in which they are located, and to meet local conditions only. The reasons already given why this law is of uniform operation throughout the state apply with equal force to this contention. It cannot be doubted that- the general laws may apply to certain localities only, if such laws apply to all persons who are similarly situated in such localities and to all parts of the state where like conditions exist. Laws are not held to be general and uniform because they operate upon every person in a state. If that were true, very, little legislation would be constitutional; for laws do not as a rule operate upon every person in the state; but rather upon every person who is within the relation and circumstances provided for in the law; .and that being true, the number of persons or the extent of territory affected is in no wise important, either in determining the uniform operation of the act or the general nature of the law. An act is not a special act merely because every individual in the state and every part of the territory within the limits of the state do not come within its operation. It is a general law if it applies to all persons similarly situated and to all localities where like conditions exist.

For these reasons, we have reached the conclusion that' the act in question is constitutional and that the ordinance passed under authority of this act is a valid ordinance of the city of Cincinnati.

Judgment affirmed.

Shauck, C. J., Johnson, Wanamakér, Newman and Wilkin, JJ., concur.


author: Johnson, J. Spear, C. J.,

text:
    Spengler v. Sonnenberg et al.

      Proceedings to enforce specific performance—Written contract for sale of real estate—Signed by agent under express authority— Authority must conform to identical contract sued on—Parol authority of agent must be clearly proven—Law of agency.

    1. In a proceeding to enforce specific performance of a written contract for the sale of real estate, signed by an agent under express authority, it must be shown that the authority was such as to permit the making of the identical contract sued on, and not one differing therefrom in a material respect.
    2. If an agent, acting under express authority to enter into a written contract for the sale of land, makes a contract for his principal which includes terms not authorized, the agreement is void, and its performance will not be enforced.
    3. Where the express authority of an agent to sign an agreement in writing for the sale of lands rests in parol, the proof must be clear and convincing not only of such parol authority, but also that the authority was such as to permit the inclusion of all of the material terms which are embodied in the instrument.
    (No. 13327
    Decided June 10, 1913.)
    Error to the Circuit Court of Henry county.
    This was a proceeding for the specific performance of a written contract for the sale of eighty acres of land in Henry county and certain personal property and rights.
    The petition alleged that Spengler, the defendant below, was the owner of the land and that on the 26th day of February, 1910, he entered into an agreement in writing, signed by his duly authorized agents, Hanna & Konzen, whereby he agreed to and did sell the said premises for the sum of $10,800.00, payable $3,000.00 on or before March 20, 1910, $2,000.00 on or before June 1, 1910, deferred payment to be secured by three equal notes due in one, two and three years from date respectively, with six per cent, interest payable annualfy, with privilege of payment in sums of $100.00 or more on any interest day. Said notes to he secured by mortgage on said premises. The plaintiffs to have the tile, logs, lumber and wire .fencing then' on said premises for the improvement of the same; also to have the farm’s share, as given by the renter thereof, for the season 1910.
    The petition further alleges that the plaintiffs tendered to the defendant the sums of money stated and the notes secured by the mortgage, in accordance with the agreement, but that the defendant refused and still refuses to receive said payments and notes and refuses to execute and deliver to plaintiffs a good and sufficient deed or any deed for said premises.
    The answer of the defendant admits that he is the owner of the lands and in possession of the same and has been in possession for many years last passed and denies all the other allegations in the petition.
    On the hearing in the common pleas, a finding and decree was entered in favor of the plaintiffs. The case was appealed to the circuit court where it was ordered and decreed that the plaintiffs, within five days, deposit with the clerk of the court the $5,000.00 in money and the three notes and the mortgage securing the payment of the same, and that defendant shall “within five days thereafter, execute and deliver to plaintiffs a warranty deed for the premises described in said1 petition, and that upon failure of defendant to execute and deliver to plaintiffs such a deed, this decree shall stand for and operate as such conveyance.”
    It was further ordered that in the event plaintiff failed to deposit said money, notes and mortgage within the time specified, plaintiffs’ petition shall stand dismissed.
    A finding of facts was made by the circuit court on which its judgment was entered. From this it appears that in May, 1909, William Spengler owned the lands described in the petition; that in said month he verbally authorized Hanna & Konzen, who were real estate brokers at Napoleon in said county, to sell said land at not less than $130.00 an acre, upon a fair contract, to a purchaser who was a responsible man, for a reasonable payment at the time of the consummation and execution of the deed, and the balance on any reasonable terms to suit the purchaser. Deferred payments were to bear six per cent, interest, payable annually, secured by mortgage. That the' defendant authorized Hanna & Konzen when and as soon as they found such purchaser, who would buy the lands on the terms stated, to enter into a written contract with such purchaser on behalf of the defendant.
    The. finding further shows that at the time defendant authorized the real estate agents to sell the land, nothing was said between the defendant and the agents concerning the kind of deed to be made, that nothing was said relative to an abstract of title nor about the crops, the rents, the time when possession should be given, payment of taxes or about all, or any, of the items of personal property, mentioned in the contract thereafter made by the agents with the plaintiffs, or about any personal property whatsoever.
    It is further shown that some nine months later, on the 26th of February, 1910, the agents entered into a written contract with the plaintiffs below, who' were responsible men, and signed the defendant Spengler’s name to the contract and delivered it to the plaintiffs. The written contract was included in the finding of facts and purports to be a sale by Spengler to plaintiffs of the land described for $10,800.00, payable in the manner stated in the petition, the owner to execute and deliver a warranty deed and abstract of title by June 1, 1910, and included the provision: “It is understood and agreed that second party is to have the tile that is on the farm at this time; also all logs, lumber and wire fencing, etc., that are on the farm to be used for the improvement of said farm. It is also understood and agreed that second party is to have the farm’s share of the rent as agreed by said first party with the renter on the farm for season 1910. Second party to have the right to enter on said farm to make improvements so long as they do not interfere with growing crops of the renter on said farm.”
    The finding further shows that at the date of the contract there was on the farm, belonging to the defendant, fencing, drainage tile, farm lumber and logs, which had been procured by him but which had not been used on said farm; that at that time the farm had been rented by the defendant until March 1, 1911, to the tenant who was in possession.

      The finding also shows that immediately after the execution of the contract the agents notified the defendant of what they had done, and asked him to be ready to carry out the contract, but that he refused to do so and that in a few days thereafter he notified the plaintiffs that he would not carry out the terms or provisions of the contract of February 26th, and that thereafter the plaintiffs tendered to the agents and to the defendant the money and notes provided for by the contract to be paid and delivered by them. The finding further shows that at the time of the trial in the common pleas and in the circuit courts, the plaintiffs tendered to the defendant $5,000 in cash and the notes and mortgage above referred to and demanded that defendant execute and deliver to them a deed' for said lands as provided in said contract and demanded full performance of said contract by him, but that said defendant refused to make said deed of performance of contract.
    This proceeding is brought to reverse the judgment of the circuit court and for judgment.

      Messrs. Harris & Shaw, for plaintiff in error.
    The cases involving unauthorized sale by agents of fencing, lumber, logs, tile, abstract and warranty, .in addition to the sale of land, are not/numerous. There are, however, a number of cases wherein. analogous questions relating to commissions, taxes, interest, time in which to make sale, and the terms of payment for land bargained by agents have arisen when specific performance was sought. We believe that all such cases that have been reported, sustain the views we urge. Among them are: Dayton v. Buford, 18 Minn., 126; Siebold v. Davie, 67 Ia., 560, 25 N. W. Rep., 778; Monson v. Kill, 144 Ill., 248, 33 N. E. Rep., 43; Munson v. Jacques, 144 Ill., 651, 33 N. E. Rep., 757; Jackson v. Badger, 25 Minn., 52, 26 N. W. Rep., 908; Miller v. Sawbridge, 29 Minn., 442, 13 N. W. Rep., 671; Hamlin v. Wistar, 31 Minn., 418, 18 N. W. Rep., 145; Oliver v. Sattler, 233 Ill., 536, 84 N. E. Rep., 652; Hoyt v. Shipherd, 70 Ill., 309; Kinman v. Botts, 147 Ia., 474, 124 N. W. Rep., 773; Hartenbower v. Uden, 242 Ill., 434, 90 N. E. Rep., 298, 28 L. R. A., N. S., 738; Tripp v. Smith, 180 Mass., 122; DeSollar v. Hanscome, 158 U. S., 216; Brown v. Grady, 16 Wyo., 151, 92 Pac. Rep., 622; Downing Investment Co. v. Coolidge, 46 Colo., 345, 104 Pac. Rep., 392; Morris v. Ruddy, 20 N. J. Eq., 236; Speer v. Craig, 16 Colo., 478, 27 Pac. Rep., 891; Hampton v. Moorehead, 62 Ia., 91, 17 N. W. Rep., 202; Wilkin v. Voss, 120 Ia., 500, 94 N. W. Rep., 1123.

      Messrs. Donovan '& Dittmer and Mr. W. W. Campbell, for defendants in error.
    It is a general rule that when a power is conferred upon an agent, he has by implication such incidental authority as is necessary to carry his power into effect. Insurance Co. v. Williams, 39 Ohio St., 588; Pollock v. Cohen, 32 Ohio St., 514; 31 Cyc., 1335, 1364.
    The proper authority includes all mediate powers which are necessary to carry it into effect, and this applies equally to general and to special agencies. 31 Cyc., 1344; Bell v. Moss, 5 Whart., 189;
      Peck v. Harriott, 6 Serg. & R., 146, 9 Am. Dec., 415.
    The implied powers and authority of an agent employed for a particular service depend largely upon the circumstances in each case and upon what is necessary or reasonable to enable him to effect the purpose of his agency. N. Y., etc., Mining Co. v. Fraser, 130 U. S., 611; National Bank of Republic v. Old Town Bank, 112 Fed. Rep., 726, 50 C. C. A., 433; 31 Cyc., 1366; General Cartage & Storage Co. v. Cox, 74 Ohio St., 294.
   Johnson, J.

From the finding of facts, it appears that the defendant in May, 1909, verbally authorized the real estate agents to sell the land referred to, for the price and on the conditions named, and also authorized them to enter into a written contract with the purchaser when found.

The’ finding shows that, in the employment of the agents by the defendant, nothing was said as to the kind of deed to be made; nothing as to an abstract of title, nor as to the crops, rents, time when possession was to be given, payment of taxes, nor about any personal property whatever.

Notwithstanding this, all of these matters were covered by the contract which the agents made, and plaintiff in error contends that, as he did not authorize the making of such a contract, he was warranted in refusing to carry it out, and that the circuit court erred in finding that the plaintiffs below, were “entitled to have the agreement performed as to the real estate.”

The contract which the defendant repudiated was the one embodied in the written instrument signed by the agents, the one on which suit was brought and the one which, as shown by the finding, plaintiffs demanded full performance of by the defendant, on the trial in both of the courts below.

. It is the settled law of this state that a real estate agent is without authority to execute a contract of sale which shall be binding on one who places real estate in his hands for sale, unless such authority is specially conferred. Weatherhead v. Ettinger, 78 Ohio St., 104.

The business of a real estate agent is to find prospective purchasers for property, whose owners desire to sell, and if employed he has earned his commission when he has found a person willing and able to pay the price stipulated, or has brought, parties together who afterwards agree. The fact that the owner of real estate employs an agent to find a purchaser for it, does not raise an implication that the agent is authorized to make a written contract with reference to it. And while the weight of authority seems to sustain the proposition that special authority to an agent to enter into a written contract may be verbally conferred, the proof must be clear and decisive, not only of such parol agreement, but that the agent had authority to make all of the terms for his principal which he includes in the written contract. If the agent assumes to make a contract in excess of this authority, the agreement is void and unenforceable. Where special power is conferred upon an agent, persons dealing with him are bound to ascertain the extent of his power. Pomeroy Spec. Perf., Sec. 77; Morris v. Ruddy, 20 N. J. Eq., 238; Merritt v. Wassenich, 49 Fed. Rep., 785; Campbell v. Hough, 73 N. J. Eq., 601; Payne v. Potter, 9 Iowa, 549; 31 Cyc., 1350; Ward v. Thrustin, 40 Ohio St., 347.

It would seem that the justice and salutary force of these rules would be obvious. The owner of land is not bound to perform any contract for its sale unless it is in writing. A prospective purchaser is presumed to know that such is the law. When he deals with the person who claims to have verbal authority to sign such a contract as the agent of the owner, he does so with the knowledge that the principal will not be bound unless he had specially authorized the agent to make the contract which he assumes to make. The statute of frauds itself is but the expression of a wholesome desire to avoid some results of the infirmities of human nature.

Our attention is called to some cases in which the rule is announced that when a power is conferred upon an agent he has by implication such incidental authority as is necessary to carry his power into effect and defendants in error contend that inasmuch as the only direction which Spengler gave to the agents in this case was that the price should not be less than $130.00 an acre, all other matters necessary to be determined in the making and execution of the contract were left open without any specific instructions or limitations.

There is no doubt as to the correctness of the rule stated, but the incidental authority which the agent has by implication is only such as is necessary to carry into effect the power actually conferred on him. It cannot be said that where an agent was employed to sell a piece of land for $130.00 an acre, he had incidental authority to convey other valuable property and rights, in addition to the land, for the same price, and yet that is what the written contract made by the agents in this case provided for. The tile, the fencing material, the lumber and the logs, all were personal property belonging to Mr. Spengler, separate and apart from the realty. The contract also provided that the purchaser should have the landlord’s share of the rents for the year 1910, and, at the same time, provided- that the making of the deed should be postponed till June 1, 1910, at which time the cash payments should be completed.

The contract was made February 26th, the taxes became a lien in April, the deed and complete cash payment were postponed until June. By the arrangement stated, the purchaser would secure the rent for the year 1910 and Spengler would be compelled to pay a j^ear’s taxes which became a lien more than a month after the making of the contract. Moreover, under that provision of the contract, Spengler, in addition to giving up the rent and assuming taxes which became a lien after he made the contract, would lose the interest for the time between February 26th and June 1st on $7,800.00 of the purchase price.

None of these things was included in the authority given to the agents, and none of these things can, under any just rule, be held to be necessarily incidental to the power given by the verbal agreement. The effect of such provisions was to reduce the price to be paid for the land itself, below the sum for which the owner had authorized it to be sold.

The written contract made by the agents also provided that the vendor should furnish to the purchaser an abstract of title to the premises and should convey them by warranty deed.

• Authority to contract for an abstract of title would not be implied, because the vendor is under no obligation, in the absence of express provisions, to furnish the vendee with an abstract of title. Thomas v. Guaranty Title & Trust Co., 81 Ohio St., 432. The same remark may be made as to the provision for a warranty deed.

The learned circuit court seems to have been of the opinion that the written contract, in so far as it provided for the conveyance of the personal property and rights referred to, was not binding-on the defendant Spengler, but they found that “as to said real estate plaintiffs were entitled to have said agreement enforced.”

The contract was entire. The price named was one entire sum for all of the property contracted for, not apportioned in any manner. The decree entered by the circuit court in effect subjected the vendor to the payment of the taxes referred to, as well as the loss of the interest on the sum above stated. All of this was as much unauthorized as the provisions for the conveyance of the personal property and the making of the abstract. The whole arrangement lacked the essential element of mutuality.

Courts will compel parties to perform contracts in accordance with their terms, but they have no power to and will not make contracts for persons and compel the execution of them. Where the contract is entire and the consideration indivisible, if any material part of it is unauthorized, none can be enforced. Specific performance of contracts is a matter resting in the sound discretion of the court, not arbitrary, but controlled by principles of' equity, on full consideration of the circumstances of each particular case.

In City of Wellston v. Morgan, 59 Ohio St., 147, the statute under which the contract was made provided that it could be made for any period not exceeding ten years. A contract was made by the city for ninety-nine years. Its validity being attacked, it was contended that it was good for the ten years authorized by law, but the court held that the contract was entire and unseverable. It was held that the court could not make a different contract for the parties than the one they had made, by enforcing it for part of the time.

Spear, C. J.,

in the opinion, declares: “We are dealing with the subject of contract. It implies parties and a meeting of the minds. The paper presented undertakes to stipulate for the furnish-ing of light and an agreed price therefor, for a period of ninety-nine years. The proposition is that we now treat it as a contract for ten years; that is, that the court shall make a new contract for the parties for ten years, and then enforce it.' How can we say that the company would have incurred the great expense and outlay of money and labor, which the petition declares was incurred, for the period of ten years only? And if the court were of the opinion that probably, the company would have been willing to so contract, where is there any authority in the court to now alter the terms that they did agree upon and then enforce them as changed? We are of the opinion that neither in law nor reason is there any ground for such a proposition.”

In Morris v. Ruddy, 20 N. J. Eq., 236, it is held that a broker employed to sell lands has no implied authority to sign a contract of sale on behalf of his principal, but that, if he had authority and the contract varies from his instructions, the principal will not be bound by it.

It was contended that the contract made by the agent varied from his authority in that by the contract the owner who employed the broker was left to pay the commissions, while the authority was to sell for $3,000 net, free of charge for commissions. The owner testified that these were the instructions, and the broker, who was the only other witness, admitted -that he was so instructed by the defendant. The court says: “He says that the complainant, by a verbal agreement, was to pay the commission and the complainant offers to pay them. But the written bargain is for $3,000, not for that and commissions. If the defendant is bound by the bargain as written, he can no more claim commissions than he could claim $3,030 on a parol understanding. If authority should be given in writing to contract to sell -lands for $1,000, retaining the right to occupy for three months, a written contract to sell for $1,000 would not be valid, although there was a verbal understanding which the purchaser will comply with, permitting the occupation. The defendant is bound by this written contract to a different bargain from the one he authorized.” The court refused to enter a decree.

In Campbell v. Hough, 73 N. J. Eq., 601, there was a sale made by an agent who claimed to have been verbally authorized to sign a written agreement for the owner. The court, in the opinion, points out that the agreement as claimed by the agent, did not give him authority to bind the owner to pay the taxes due after sale, and say: “The authority, however, must be such as to permit the making of the identical contract sued on and not a contract different from the one actually authorized.”

The case we have in hand differs from those in which equity will enforce ■ specific performance as to part of the property contracted for, when it appears that the vendor does not own all of the interests he has agreed to sell, and is, therefore, unable to convey them in full in accordance with his contract.

In such case, the vendor is estopped from asserting his inability to perform, and the purchaser is permitted to insist that the vendor shall perform pro tanto. Here the purchaser was bound to know the extent of the agent’s authority. The contract made by the agent exceeded that authority, and the principal repudiated it as soon as he learned that it had been made. The case contains none of the elements which must be present before the application of the doctrine of estoppel can be insisted upon. There was no conduct or representation by the owner upon which the purchaser relied. Nothing whatever was done by the purchaser which was induced by the silence of the owner with knowledge of the facts. / On the contrary, the purchaser being charged with knowledge of the extent of the agent’s authority is presumed to have known that many items which were included in the contract were not authorized, and that, therefore, the contract itself, in its entirety, was subject to the approval of the owner when brought to his knowledge and that he would not be bound by it unless and until he had approved it. There is a clear distinction between an entire indivisible contract, which was only authorized in part, and a contract made by an owner or by his duly authorized agent, which he is only able to perform in part. The vendee may waive performance of the part which the vendor is unable to perform and insist on the rest, but as to a contract which was unauthorized, a decree of specific performance, in whole or in part, would be to enforce a contract which the owner never made.

For these reasons, the judgment of the court below will be reversed and judgment entered for plaintiff in error.

Judgment reversed. .

Shauck, C. J., Donai-iue, Wanamaker, Newman and Wilkin, JJ., concur.