author: Minshall, J.

text:
    Stevens v. The State.

      Local option — Act of March 3, 1888 — Sale of beer as beverage — In one township by agent of manufacturer located in another state — Interstate commerce act of congress of August 2, 1890 —Interpretation of law.

    The sale of beer as a beverage, in any quantity, whether by the manufacturer or not, is prohibited in a township where the people have availed themselves of the provisions of the local option law, passed March 3, 1888 (85 Laws, 55) ; and, being a police regulation, a sale of an unbroken package made in such township by an agent of a manufacturer, located in another state, is not protected from the operation of the law on the ground that it interferes with interstate commerce, such police power being conferred on the states by an act of congress adopted August 2, 1890, known as the Wilson act (26 Stab, 313),
    2. The fact that the provision in the local option law, restricting the sale of wine to such as is manufactured from the pure juice of the grape “cultivated in this state,” may be invalid as a discrimination in favor of domestic wines, does not affect the provisions of the statute as a whole; the other provisions being open to no such objection are valid.
    (Decided January 30, 1900.)
    Error to the Circuit Court of Jefferson county.
    The plaintiff in error was indicted and convicted in the common pleas court of Jefferson county, on the charge of unlawfully selling intoxicating liquors in a prohibition township of the county. He plead not guilty. The parties waived a jury, and submitted the issue to the court on the following agreed statement of facts:
    “That said Emil Stevens, the defendant, on March 23rd, 1898, in the county of Jefferson and township of Mt. Pleasant, was then and there not a legally registered druggist, and then and there and without the limits of a municipal corporation sold intoxicating liquors other than cider or wine manufactured from the pure juice of the grape cultivated in the state of Ohio, as a beverage to divers persons, said selling being then and there prohibited, and said selling not being for exclusively known medicinal, art, scientific, mechanical or sacramental purposes. That at the time of said sale and for more than thirty days prior thereto, said township of Mt. Pleasant was a prohibition or local option township, in which the sale of intoxicating liquors was forbidden and unlawful, under the laws of the said state of Ohio. That said intoxicating liquors, sold as aforesaid, were beer manufactured in the state of West Virginia, and were shipped in small barrels, called kegs, from the manufactory in West Virginia, to the defendant, Emil Stevens, in the township of Mt. Pleasant, and there received by the said Emil Stevens, in said township and state. That each keg was a single package and was shipped singly by the manufacturer to the defendant, Emil Stevens, and was so received by him in'said township and state. That the sale heretofore admitted to be made by the said Emil Stevens was a sale of one of said kegs of intoxicating liquor, and was sold as aforesaid in exactly the same form and condition as received by him. That the sale was made of the original and unbroken package as shipped by the manufacturer from the manufactory in West Virginia, and as received by the defendant Emil Stevens in said township and state. • That the said defendant, Emil Stevens, was in the employ of said manufactory which shipped said kegs of intoxicating liquors, and that by virtue of said employment, it was- the business of the said defendant, Emil Stevens, to make sales in said township and state of the product of the said manufactory similar to the one hereinbefore described. That the keg of intoxicating liquor,' sold by the defendant as aforesaid, was one of the large number of such kegs, which several days prior to said sale and upon their receipt from said manufactory had been stored away in said township by said defendant and afterwards there sold to divers persons as aforesaid by said defendant. It is agreed that, for the intoxicating liquors sold by the said defendant in Mt. Pleasant township as aforesaid, the defendant then and there collected and received the purchase price from the vendees.
    The court found the defendant guilty and sentenced him to pay a fine and be imprisoned a certain number of days. A motion for a new trial and in arrest of judgment were made and overruled. The judgment was affirmed by the circuit court; and, upon the record, this court is asked to reverse both the lower courts and discharge the accused, on the ground that the judgment is contrary to law.

      Howard & Handlan, and John M. Cook, for plaintiff in error.
    First — Are the liquor laws of Ohio, police regulations under the act of congress, known as the Wilson act of August 8th, 1890?
    Subsequent to the line of decisions of Brown v. Maryland, 12 Wheaton, 443; Bowman v. Railway Co., 125 U. S., 425, and Leisy v. Hardin, 419 (to all of which reference is here made for the earlier law applicable to the case at bar), it must bé conceded that certain fundamental principles concerning rights secured by the constitution of the United States were established firmly; that congress alone had the power to regulate commercial transactions between the different states, and citizens thereof; that the states themselves had no right to prescribe rules or legislate upon the question, but it is now understood to be competent to a state to control and regulate the sale of and prescribe rules governing intoxicating liquors while remaining in the original package, and which have been shipped into such state from another state to the same extent that such state could control and regulate its own domestic products. Under the provisions of that law, however, the state seeking to control or regulate the sale of and govern imported intoxicating liquors must do so through its laws enacted in good faith in the exercise of its police powers.
    It matters not the supreme court of the United States has said that the law upon its face and in express terms states that it is a police law. The courts will, nevertheless, examine its provisions and then look to the object sought to be accomplished by means of such a law. Brimmer v. Rebman, 138 U. S., 78.
    Section 8907 (2) of the Revised Statutes of Ohio (by Giauque) expressly excepts from the operation of the prohibition, the manufacture and sale of cider or sale of wine manufactured from the pure juice of the grape.
    Section 8892 recognizes the difference and distinction between various liquors intoxicating in their nature as spirituous, vinous, malt and other kinds.
    And Section 4327 and following contemplate the inspection of spirituous liquors alone, as distinguished from vinous or malt liquors and other kinds.
    To what extent can the state go in the exercise of the police power? Robins v. Shelby Taxing Dist., 120 U. S., 493.
    The prohibition, so far as it extends, does not go to the use of intoxicating liquors, does not declare its use to be unhealthy or dangerous, does not treat intoxicating liquor as deleterious or injurious, but simply forbids the sale and makes a sale unlawful as to the seller. In re Rahrer, 140 U. S., 561.
    We submit this law has not gone far enough to make it a valid exercise of the police power. Its provisions do not relate or extend to its avowed purpose or objects, and that it must do this, and answer this requirement, is well established. Nugler v. Kansas, 132 U. S., 861; Railway Co. v. Husen, 95 U. S., 465.
    Farther reaching in its sweeping effect than any of the foregoing or hereinafter cited cases is the very latest opinion of the supreme court of the United States on the question of the sufficiency of statutory necessities, and the relative weight and consideration that that court gives to the stated reasons for, and purpose of a given law as compared to its effect and operation. Collins v. New Hampshire, 18 Sup. Ct. Rep., 769; Scott v. Donald, 165 U. S., 100; Vance v. Vandercook, 18 Sup. Ct. Rep., 674.
    Second — Do the state laws restrain a sale by a manufacturer?
    It is contended on behalf of the defendant Stevens, that all of the provisions and liquor enactments of the state of Ohio, both constitutional and statutory, do not apply at all to a manufacturer of intoxicating liquors and to sales made by the manufacturers of such liquors at the manufactories thereof, but apply only to the wholesale or retail dealer as distinguished from the manufacturers, and particularly are they aimed at the retail business of trafficing in intoxicating liquor. Kaufman v. Hillsboro, 45 Ohio St., 700; Senior v. Rattorman, 44 Ohio St., 678; Schollenberger v. Penns., 18 Sup Ct. Rep., 766.
    Third — Do the statutes of the state of Ohio discriminate in favor of the manufacturers of beer within that state against the manufacturers of beer in other states?
    A brewery situated in Ohio could have lawfully made this sale in a township where the inhabitants had not voted “against the sale.” There is no law in Ohio that regulates sales by the manufacturer in a township that authorizes the sale, and applies a different rule or regulation to a manufacturer whose plant is in a township which has declared “against the sale.” The law as to the manufacturer, and sales by him, at his plant, is one of those which the constitution speaks of as “of a general nature and must be uniform in its operation throughout the state.” Sec. 26, Article 2 of the Constitution of Ohio.

      If the Ohio brewer could legally have made the sales at his plant in the prohibition township, then the foreign manufacturer must be accorded the same privilege. Woodruff v. Parkham, 8 Wall, 140; Hinton v. Lott, 8 Wall, 150; 8 Wall, 152; Welton v. No. 91 U. S., 280; Brown v. Md., 12 Wheaton, 419; Guy v. Baltimore, 100 U. S., 443; County of Mobile v. Kimball, 102 U. S., 691; Webber v. Va., 103 U. S., 351; Walling v. Michigan, 116 U. S., 446; Minnesota v. Barber, 136 U. S., 313; “State Freight Tax Case,” 82 U. S., 15 Wall, 232.

      A. C. Lewis, Prosecuting Attorney, for defendant in error.
    The questions presented by the plaintiff in error, more specifically stated, are as follows:
    First — Is the local option law a valid exercise of police power?
    Second — Does it restrain a sale by the manufacturer?
    Third — Does it discriminate against the foreign brewer?
    The first question appears to us to be so well settled that we do not care to discuss it. Gordon v. The State — Santoro v. The State, 46 Ohio St., 607 et seq.; McGuire v. The State, 42 Ohio St., 530 et seq.; Black on Intoxicating liquors, Secs. 45, 92.
    In the consideration of the second question, plaintiff in error bases his argument on the provisions of the Dow law, rather than on the plain terms of the local option statute. The former expressly excepts manufacturers “in quantities of one gallon or more,” thereby implying the inclusion of manufacturers in smaller quantities. Hence, for the purpose of determining the scope of the latter enactment, if the definition of “trafficking” found in the Dow law is of any aid it indicates the legislative intent to include manufacturers.

      The attempt of the legislature to exempt “the manufacture and sale of cider” and wine, shows that sales of other liquors by the manufacturer were intended to be prohibited. See Sec. 4, Local Option Law; Black on Intoxicating Liquors, Secs. 100,141; Bailey Liq. Co. v. Austin, 82 Fed. Rep., 785; Vance v. Vandercook Co., 18 Sup. Ct. Rep., 674; Rhodes v. State of Iowa, Id., 664.
    Besides, it must be remembered that the local option law is aimed expressly against the evils resulting from the sale of liquor as a beverage. And, “will any one say that evils are likely to arise from the sale to * * * a person of a drink of liquor, and none likely to follow the sale to the same person of a gallon?” Senior v. Ratherman, 44 Ohio St., 677.
    It has been held that a brewer cannot engage in the retail trade without taking out a license as a retailer. 69 Amer. Dec., 226; 45 N. W. Rep., 149; 22 Atl. Rep., 1; 68 Wise., 538; Pim v. Nicholson, 6 Ohio St., 177.
    Where. the text of the statute is plain and unambiguous, the title cannot have the effect to modify it. Boston Min. Co. in re. 51 Cal., 624.
    If we are right in our position that the local option law does not prohibit the sale of liquor as a beverage by the manufacturer as well as the wholesaler and retailer, then the third question presented by plaintiff in error must be answered in the negative.
    Against this conclusion it might be argued that the law discriminates against foreign wines not manufactured from native grapes, because it allows the “sale of wine manufactured from the pure juice of the grape cultivated in this state.”
    But this court has held that this provision excepting domestic wines is not invalid. McGuire v. The State, 42 Ohio St., 530.
    However, should the court, upon reconsideration, hold that such proviso is discriminatory and void, it would not affect the validity of the remainder of the statute. Moreover, the sale of all wines would then be in violation of the valid part of the statute. Black on Intox. Liquor, Sec. 44.
    We claim that the case of Vance v. Vandercook Co., 18 U. S. Sup. Ct. Rep., 674 et seq., which was decided since the plaintiff in error was convicted, is decisive of this case.
   Minshall, J.

From the agreed statement of facts it appears that on March 23, 1898, the defendant below, Emil Stevens, as the agent of the manufacturer located in the state of West, Virginia, sold a keg of beer to a person in Mt. Pleasant township, in Jefferson county, the township having before that time by a vote of its electors, availed itself of the provisions of the local option law, prohibiting the sale of intoxicating liquors in such townships as a beverage (85 Laws, 55). The sale was made in an unbroken package as a beverage and not for any of the permitted purposes specified in the law. Prior to what is known as the Wilson act, adopted by congress August 8, 1890, such a sale under the previous decisions of the supreme court of the United States, would have been permissible, notwithstanding any law of the state prohibiting the same, it having been held that until the package is broken the article remains within the protection of inter-state commerce over which the states have no control. But the act just referred to changed the law of the United States in this regard, and provided,

“That all fermented, distilled or other intoxicating liquors or liquids, transported into any state or territory, or remaining therein for use, consumption, sale or storage therein, shall, upon arrival in such state or territory, be subject to the operation and effect of the laws of such state or territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors had been produced in such state or territory, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise.” (26 Stat., 313.)

Notwithstanding the plain power here conferred on the states in the exercise of the police power to regulate the traffic in intoxicating liquors, irrespective of whether the traffic be interstate or domestic, it is contended that to be a police regulation within the above statute of the United States, the prohibition of the sale of intoxicating liquors must be absolute; and because as claimed, the local option law permits the sale of cider, and wine manufactured from the pure juice of the grape, it is not a proper exercise of the police power within the act of congress. There is nothing in the language of the statute that gives countenance to such construction. It makes all intoxicating liquors, transported into any state for sale or consumption, subject to the operation and effect of all laws of such state enacted in the exercise of its police powers. There is no purpose manifested here as to what shall be the character of these laws, other than that they shall be of a police nature; and any law that regulates the traffic is of a police nature, and within the above statute, unless it should discriminate against the products of other states.

The contention is based upon a misconception of some things said in Scott v. Donald, 165 U. S., at p. 100. That it is a misconception is clearly pointed out by Justice White in the subsequent case of Vance v. Vandercook, 170 U. S., 438, 446. This having been pointed out, it is then said: “From the fact that the state law permits the sale of liquor, subject to particular restrictions and only on enumerated conditions, it does not follow that the law is not a manifestation of the police power of the state. The plain purpose of the act of congress having been to allow state regulations to operate upon the sale of original packages of intoxicants coming from, another state, it would' destroy the obvious meaning to construe it as permitting the state laws to attach and control the sale only in case the state absolutely forbade sales of liquor, and not to apply in case the state determined to restrict or regulate the same.” The local option law, section 2, prohibits the sale of all intoxicating liquors as a beverage, or the keeping of a place therefor, in all townships availing themselves of its provisions. It, however, permits the manufacture and sale of cider, and the sale of wine manufactured from the pure juice of the grape, cultivated in this state, but prohibits the keeping of a place where wine and cider are sold as a beverage. It also permits the sale by a registered druggist of pure wine or liquors for mechanical, medicinal or sacramental purposes. The law seems sufficiently drastic, and, if enforced, must conduce to the peace, good order and sobriety of a township; and is therefore in every sense a police regulation. The constitutional validity of the law was sustained in a well considered opinion by Dickman, J., in Gordon v. State, 46 Ohio St., 607; and “the overwhelming preponderance of authority,” as said by Black, is the same way. See his work on Intoxicating Liquors, Sec. 45.

A somewhat elaborate argument has been made to show that under the local option law the defendant had the right to sell beer by the keg, being the agent of a manufacturer. The argument is based on the provision of the Dow law, which permits the manufacturer to sell at his place of business in quantities of one gallon or more at any one time. The two laws are, however, different systems adopted by the legislature for the purpose of regulating the evils resulting from the traffic in intoxicating liquors, under the power conferred by section 18 of the schedule, and are not to be construed together; that is the meaning of the language as limited in the one, cannot be referred to to ascertain the meaning of the language used in the other. In either case the language employed must be interpreted with reference to the object and purpose of the act in which it is found. The Dow law seeks to regulate the evils resulting from the traffic, by imposing a tax on it and the place where it is carried on; the local option law seeks to regulate the evils by prohibiting the traffic in intoxicating liquors as a beverage in any form at any place in a township where the people have availed themselves of its provisions.

But it may be said, and is probably true, that, so far as the local option law restricts the sale of wine to that manufactured from the pure juice of the grape “cultivated in this state,” it is invalid as .a discrimination in favor of domestic wine. This, however, is not necessarily an integral part of the law, and does not therefore affect it in its entirety. The discrimination being, for the reason stated, invalid, may be disregarded, so that wine manufactured from the pure juice of the grape, cultivated in another .state, may be sold under the same restrictions imposed on wines produced from grapes cultivated in this state. Tierman v. Rinker, 102 U. S., 123. The extent, however, to which this may be done is quite limited: It cannot be sold as a beverage at any place kept therefor in the township (last clause, section 2). As to whether it could be peddled through the township as a beverage, we are not called on to determine. But in view of the purpose and object of the law — the prevention of intemperance — we may say that such a construction would be quite doubtful.

But there is, in the law, no discrimination in favor of beer produced in this state; and the only purpose of mooting the question here, is to show that, however decided, it cannot affect the whole statute. It will stand with the invalid clause eliminated by the force and effect of the commercial clause, as well as by that of the equal privileges clause, of the federal constitution.

We see no error in the record and the judgment is

Affirmed.


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    Ohio and Indiana Torpedo Company v. Fishburn, et al.

      Opinion evidence — Nature of — May be given, when — Action for negligent discharge of nitro glycerine — In oil well — Expert testimony — Charge to jury must be construed as a whole.

    1. Opinion evidence may not be given where an opinion is asked as to the precise, ultimate fact in issue which is to be tried by the jury, but such testimony is not necessarily incompetent if it calls for an opinion as to a matter which is evidentiary only and merely tends to establish a fact which may be involved in the issue.
    2. Such evidence is not competent where the matter inquired about is one within the common knowledge of men of ordinary information, and it is practicable to place before the jury all the primary facts upon which a conclusion is to be based, but where a witness is shown to be learned, skilled or experienced in a particular business, he may be asked to give an opinion as to pertinent matters which are not the subject of common knowledge, and as to which the jury is not so competent as is the witness to draw the proper conclusion from the general facts proven.
    3. In the trial of an action for the negligent discharge of a nitroglycerine torpedo in an oil well, it is competent for a witness who, by experience in such work, has made himself familiar with the character and explosive qualities of that article, and
    • • the effect of the explosion of it in forcing out gas and the dangers incident to the contact of such gas with the atmosphere and with fire, to testify as an expert, whether or not the hour of 7 :30 p. m. in the month of September is a proper time to explode such torpedo in a well located in a village within 80 to 200 feet of buildings in which lights or fires are burning.
    4. Where joint negligence is charged against two defendants, and the evidence establishes actionable negligence against one, such defendant cannot shift the responsibility exclusively upon the other, and himself escape, by showing that the other was also negligent.
    6. A charge to a jury is to be construed as a whole, and if, construing the whole charge, the law of the case appears to have been correctly given to the jury, and in a way that will reasonably enable them to understand the rules of law which they are to apply to the evidence before them, the charge will not be held erroneous simply because every condition to a recoveiy or a defense is not embraced in each paragraph, and the paragraph excepted to is not in itself calculated to mislead.
    (Decided January 30, 1900.)
    Error to the Circuit Court of Wood county.
    The action below was by Clarence L. Fishburn, by next friend, against the Ohio and Indiana Torpedo Company and George E. Grant, to recover for personal injuries alleged to have been caused by the joint negligence of those parties.
    In substance the petition of Fishburn sets out that the defendant, the Ohio & Indiana Torpedo Company, a New Jersey corporation authorized to do business in the state of Ohio, is engaged in the manufacture of nitro-glycerine and other explosives, and in shooting and cleaning out oil and gas wells by exploding nitro-glycerine in them; that nitroglycerine is a highly explosive and dangerous substance, and that great care is required in handling and using it; that in the shooting and cleaning out of such wells by the explosion of nitro-glycerine therein, great quantities of gas are generated, which rises to the surface of the earth, and under certain atmospheric conditions settles upon and near the surface, and when exposed to fire readily ignites and explodes, and that the defendants in this case well knew these things to be facts; that on the seventh day of Sptember, 1897, defendants, with full knowledge of all the foregoing, negligently and carelessly shot off and exploded about one hundred quarts of nitro-glycerine in a certain oil well in the village of Cygnet, in Wood county; that the.well was located about forty feet from the track of the Toledo & Ohio Central Railroad company and within one hundred and fifty feet of the main street of said village, and near other streets much frequentd by pedestrians; that the well was situated among business houses and dwellings occupied by citizens of the village; and that the atmosphere at the hour of 7:30 P. M. of said day surrounding the well was such as to make an explosion highly probable if exposed to fire, all of which defendants then well knew; that about said hour plaintiff was passing along the railroad track toward his home, and when at a point opposite said well, the great quantity of gas in the atmosphere brought to the surface by reason of the explosion of nitro-glycerine in the well ignited, through fires and lights, and exploded around plaintiff, causing great flames of fire to envelope him and burn his body, head, face and limbs and to permanently injure him.
    The defendant, George Grant, for his answer to plaintiff’s claim, admitted that there was an explosion in the village of Cygnet on the seventh day of September, 1897, denied all liability for injuries complained of, and denied every other allegation in the petition, and charged that if plaintiff was injured as he alleges, it was his own fault.
    The defendant, the Ohio & Indiana Torpedo Company, in its answer admitted that it is engaged in the manufacture of nitro-glycerine and exploding the same in oil and gas wells; that the same is a very dangerous explosive, and that this is well known to defendant; and that bn September seventh, 1897, this defendant placed one hundred quarts of nitro-glycerine in an oil well drilled by said Grant on a lot in Cygnet; that said owner exploded said glycerine in said well, and that a quantity of gas from the well took fire, and denies each and every other allegation in the petition. The defendant further alleges that the inhabitants of the village of Cygnet are largely, engaged in the oil business, and earn a living in that way; that many oil wells have been drilled in the village and by the consent of the citizens thereof; and that the oil well in question was drilled by said Grant, and no objection was made thereto, although the same was in process of completion for weeks. And that it is the invariable and known practice throughout the oil field, to explode torpedoes of nitro: glycerine in wells after they are drilled, and in most instances oil cannot be produced in paying quantities without shooting them by explosives. Defendant further alleged that after placing the torpedo.in this well it advised Grant, who was the owner of the well and had control of the same, not to explode the torpedo until the next morning; that the explosion of the torpedo' was entirely within the control of said owner, and beyond the control of defendant; and that said owner himself dropped the instrument into the well which exploded the torpedo; that at the time the torpedo was exploded there was a fire near said well under a boiler used in putting the torpedo in the well, and it was the duty of the owner, before exploding, the torpedo to put out the fire, but failed to do so entirely, and that by reason of the premises the gas and oil around the boiler ignited and set fire to the well; and if the plaintiff received the injuries complained of it was through his own negligence.
    Reply was filed by the plaintiff to the answer of Grant, denying the contributory negligence therein alleged, and a reply to the answer of the Torpedo Company, denying a like allegation and other allegations of new matter in its answer.
    A trial resulted in a verdict for the plaintiff against the Torpedo Company alone, and judgment followed, which was affirmed by the circuit court. To reverse these judgments the present proceeding is brought.

      Gilbert Harmon and Jesse Stevens, for plaintiff in error.

      James é Sever stock, for Fishburn.

      Baldwin & Harrington, for Grant.
   Spear, J.

Complaint is made by plaintiff in error of the admission of incompetent testimony against its objection, to the refusal of the trial court to give instructions to the jury requested by it, and to the charge as given.

1. The question of evidence. One Heron, a witness for the plaintiff below, had testified that he had resided at Bowling Green, Wood county, about nine years; that he had been engaged in the business of shooting oil wells for about thirty years, and was acquainted with the duties of one called upon to shoot a well, and knew the prevailing custom in that respect. He was then asked this question:

“Now, I will ask you, Mr. Heron, suppose the shooter of a well brings one hundred quarts of nitroglycerine to said well, the nitro-glycerine had been placed in the shells, lowered in the well, the well logged in, the derrick boarded up, except the opening facing towards the engine and belt house, the said well being at a distance of from 80 to 200 feet of the residence and buildings- adjoining and surrounding it, located in a village of twelve to thirteen hundred people; the condition of the atmosphere such that when the gas is liberated from the well, it settles to the surface of the earth; would the hour of 7 :80 o’clock on the seventh day of September in any year when darkness had intervened so that fires and lights are lit in certain of such business and dwelling houses be, in your opinion, a proper time to shoot such well; that is to say, explode such torpedo therein?”

Objection by the Torpedo Company was overruled and exception entered.

Answer: “It is not a proper hour.”

The objection urged is that this was error because the fact sought was a matter to be found by the jury. We do not think the admission of the evidence was error. The fact called for was evidentiary. It tended to prove one fact involved in the issue, but was not the ultimate fact in issue. Nor was it a subject of common knowledge, or one of which the jury could as well judge as the witness. As an expert his knowledge extended to all the dangers incident to an explosion of such a quantity of nitro-glycerine at such a place, at such an hour, and with such surroundings. The average juror might not intelligently and fully determine the natural connection between cause and effect, and draw the proper conclusion from the general facts proven. At least the jury might be aided in that duty by the opinion of one whose experience and knowledge, especially as to the violent effects incident to the explosion, and as to the inflammable character of gas when mixed with the atmosphere and brought in contact with fire, and the extent of the attendant dangers, was greatly superior to their own. Steamboat Clipper v. Logan, 18 Ohio, 375; Stewart v. The State, 19 Ohio, 302; Protection Ins. Co. v. Harmer, 2 Ohio St., 452; Railroad Co. v. Schultz, 43 Ohio St., 270.

2. Instruction refused. The defendant, the Ohio & Indiana Torpedo Company, requested the court to charge the jury as follows:

“If the jury find from the evidence that the Torpedo Company’s servant placed the torpedo in the well as directed by Grant, the owner, and that after it was in place, the owner said to the company’s servant that he, the owner, would drop the go-devil; and if they further find that the torpedo was so placed and arranged that it could be surely exploded by dropping the go-devil, and that it was so exploded; and if the jury also find that the owner did explode said torpedo, then the jury would be justified in finding that the owner of the well assumed the duty and responsibility of exploding tbe torpedo himself; and if the jury so find, then the responsibility of the Torpedo Company ended with the proper placing of the torpedo,. and it can not be made liable in damages to the plaintiff in this action.”

The request was properly refused. The term “as directed by Grant, the owner,” is indefinite. It does not adequately express the supposition that Grant was in exclusive 'control of the work, and had assumed the duty and responsibility, as between him and the Company, of exploding the torpedo himself so as to justify the conclusion that the Company could not be liable in damages to plaintiff, even if, in any condition of the case as between the defendants that conclusion would be warranted. It appears to be based upon the assumption that the Company, although negligent itself as between it and the plaintiff, might escape responsibility by showing that Grant was also negligent, and leave out of view the duty of the Company’s servant to see that the explosion of the torpedo was made at a time when, under the circumstances, it was reasonably safe to explode it, as well with respect to the public as to the persons engaged in thb work. Whether or not the Company was negligent in that regard depended upon the evidence as to the entire transaction, and not wholly upon whether the agent placed the torpedo as directed by Grant and left it to be exploded by Grant, and was one of the questions to be determined by the jury upon tiie whole evidence.

3. The charge as given. At request of defendant, Grant, the court gave in the charge the following, viz:

“First. If you find from the evidence that nitroglycerine is a dangerous explosive, and that the defendant Torpedo Company used nitro-glycerine in shooting the oil well in question, and if you further find that in the shooting of said well, gas was liable to arise therefrom, which gas was liable to ignite and explode, it was the duty of said Torpedo Company to so handle, use and control said nitro-glycerine and not to explode the same, unless the conditions and surroundings of said oil well were such as not to be liable to cause the gas arising from such well to ignite or explode, and if said defendant Torpedo Company failed or omitted to perform its duty in this regard, such failure and omission would be negligence on the part of said Torpedo Company.”
“Second. If the business of shooting oil wells is attended with danger to persons and property in the vicinity, and if such business requires the exercise of especial knowledge and skill, and if the defendant, the Ohio & Indiana Torpedo Company, at the time of shooting said well was a reputable company, skilled in said business, the defendant, George E. Grant, had the right to employ said Company to do the shooting of said well, and had the right to rely upon the care and skill of said Company in the performance of said work.”
“Third. If you find from the evidence that the defendant, George E. Grant, had the well in question in readiness to be shot, and that the defendant, Torpedo Company, undertook to do the work of shooting said well, and commenced the same in time so that in the usual and ordinary course of such work the same would have been completed before darkness set in, and if the defendant, Torpedo Company, from any cause delayed the work, so that it did not have said shot ready to explode until darkness set in, and if the jury find from the evidence that the exploding of said shot at that time was negligent, and that said Torpedo Company so caused the same to be done at that time, and by reason thereof an injury occurred to the plaintiff, the defendant, the Torpedo Company, would be liable therefor.”

If the propositions were proper in themselves we ■cannot see that the Company should complain because they were given at the request of defendant, Grant. If proper the court might have given them of its own motion, and what the court might give sua sponte it surely might give upon request.

The objections urged are that the first request assumes that the Company controlled the time of exploding the torpedo; that it was the duty of the Company to see that the fires were put out, and that the- company actually exploded the torpedo, while the second request applies to the company the doctrine of an independent contractor, and the third request assumes that there is evidence from which the jury might find that the Company caused the torpedo to be exploded, while the evidence conclusively shows that it was Grant and not the Company’s servant, which caused the torpedo to be exploded.

We are unable to see that either objection is well taken. The Company was then and there using nitroglycerine for the purpose of having it exploded in the well. The explosion was caused by dropping in the well an iron instrument pointed at one end, called a go-devil. The “shooting” of the well, as it is called, was accomplished by the explosion of the torpedo, and was the purpose for which the Company had been employed. Whether, therefore, the dropping of the go-devil was by the hand of the Company’s servant, or by the hand of Grant, could make no difference with the Company’s responsibility for the consequence as between it and the plaintiff, provided the dropping was a necessary step to the result which the Company was there employed to produce. Evidence had been given, pro and con, to show the custom of the business with respect to whether or not, under the custom, it was the duty of the “shooter” to drop the go-devil and explode the torpedo, or of the owner, and the jury had been, at the beginning of the charge, instructed in substance that if the proof established that the owner of the well had, under the custom and usages of the business, power to decide when the well shall be shot, and that the shooter, after placing the nitro-glycerine in the well, had no authority over the owner, either to hasten or delay the shooting, then the responsibility of the Company ended in the placing of the torpedo in the well, and it would not be responsible for any negligence occurring at the shooting by reason of the lateness of the hour, or the condition of the atmosphere, and could not be held responsible for any consequence of such negligence. So that from the whole charge it became apparent that if the above hypothesis had been established by the evidence, then the shooting ivas in fact and laAV the act of the owner and not of the Company, while if the evidence showed that the authority to decide when the torpedo should be exploded was with the Company, and not with the owner, then the responsibility for consequences would be upon the Company, and it would be the party who was “shooting the well.” The expression “if the Company used nitro-glycerine in shooting the well” was the equivalent of saying that “if the Company shot the well with nitro-glycerine.” This was given on the hypothesis, fully stated in preceding parts of the charge, that if it should be found that, as between Grant and the Company, the latter had the authority to determine the time the Avell should be shot, then the Company was to be considered as having shot the well, and, when so considered was not an assumption on the part of the court, either that the Company controlled the time of exploding the torpedo, or that it actually exploded the torpedo. So, too, the court had, in other parts of the charge, given full instructions respecting the duty of seeing that the fires were out, and it was not necessary to repeat such instructions in these propositions, and it cannot reasonably be said that there was an assumption that such duty devolved on the Company in this request. A charge to a jury is to be taken as a whole, and if, considering the whole charge, the law of the case appears to have been correctly given to the jury, and in a way that will reasonably enable them to understand the rules of law .which they are to apply to the evidence before them, the charge will not be held erroneous simply because every condition to a recovery or a defense, is not embraced in each paragraph, where the paragraph excepted to is not in itself calculated to mislead.

Respecting the charge as to independent contractor, it is enough to say that the Company cannot well complain of what was said on that subject. Whether or not the plaintiff below might have objected to that instruction we need not consider.

Nor does the third request assume that there was evidence from which the jury might find that’ the Company caused, the torpedo to be exploded in the sense of dropping the go-devil by the hand of the Company’s servant. It was conceded that the act was the act of Grant, the owner, but there still remained the question whether in doing that he was not in fact acting for the Company, and if he was, then the Company caused the same to be done, and there was evidence from which the jury might find the existence of that claim. In short, the record shows that evidence was adduced tending to establish each one of the conditions embraced within this proposition, and the jury was properly instructed as to the legal effect that would follow a finding on their part that the evidence established each hypothesis. Had the Company desired instructions in connection with this more definite in detail, or embracing converse propositions of law, it was its privilege to ask for them.

The court further said to the jury:

“If, under the facts as you find them, it was the joint duty of both the owner and shooter engaged in a joint enterprise imposed upon them by the contraet, neither can shift the responsibility exclusively to the other, but it belongs to both, and either of them would be guilty of negligence in not seeing that the fire was extinguished under the boiler, for it is conceded by both sides that the extinguishment of that fire is a necessary preliminary precaution in the business, and would be just as much the Company’s duty to see that the fire was extinguished under the boiler when the go-devil was dropped, as it would be to see that it was extinguished when it became necessary to explode the well by a jack squib.”

It is insisted that the court should not have told the jury that the foregoing “is conceded by both sides,” and assumed that it would be the duty of the Company to see that the fire under the boiler is extinguished “when it becomes necessary to explode a well with a jack-squib,” because the matter as to jack-squib was only casually mentioned as something used in some supposed cases, but no necessity existed for it in this case, as the torpedo exploded when the ‘iron was dropped; nothing such as is assumed was conceded, nor was any evidence offered tending to establish such facts.

There was some reference in the testimony to the custom of putting in of jack-squibs, and the record fails to show that the fact stated by the court was not conceded. The court had just before instructed the jury that:

“If it was the exclusive duty of the defendant Company to explode the well by dropping the go-devil as well as by putting in squibs —• if that should become necessary, then likewise, there was an obligation on said Company to see that the fire in the boiler was extinguished, but, perhaps not his exclusive duty under any circumstances, for possibly the owner would have the duty imposed upon him by virtue of his ownership in any event.”

We are unable to see that this matter objected to was prejudicial. Even if not conceded, it was illustrative at most, and although not a very clear statement, cannot have worked prejudice.

The court also said to the jury:

“You may look to the existence of the custom and say whether or not under the circumstances a prudent shooter of oil wells using nitro-glycerine, should leave the extinguishment of the fire entirely to the owner in such an extraordinarily dangerous operation. If you find from the evidence that it was a negligent act to rely on such custom, the defendant Company would be liable in this case, just as the owner would be, because of any duty that rested upon him in respect of the extinguishment of the fire.”

There was evidence respecting the custom as to whether or not it was usual for the “shooter” to leave the extinguishment of fires to the owner, and it was the claim of the Company, alleged in the answer and sought to be sustained by proof, that the duty of looking to the extinguishment of fires was wholly on the owner. In the light of that claim we are unable to see that the instruction was improper.

A number of other exceptions are argued. It seems hardly worth while to take space to further discuss the record. Indeed, more space has already been taken than probably the importance of the questions justify. Suffice it to say that we have examined all exceptions and do not find prejudicial error as to any.

It is argued by the defendant in error that the Company is liable, under the evidence, wholly irrespective of the question of negligence, because it was keeping and handling a dangerous substance. We do not find it necessary to discuss the question and express no opinion upon it.

Finding no error in the record, the judgments below will be

Affirmed.


author: Williams, J.

text:
    Hessler et al. v. The Cleveland Punch and Shear Works Company et al.

      Liability of incorporators under Section 3244, Rev. Stat. — For amount of deficiencies in payment of ten per cent, of authorized capital — Suit lo enforce this shotild be for benefit of all creditors — Allowance by court for attorney fees.

    1. The liability of the incorporators under Section 3244, of the Revised Statutes, is for the amount of any deficiency in the actual payment of ten per cent, of the authorized capital stock of the corporation, at the time of their certifying, as therein provided, to the secretary of state, and not merely for one-tenth of that amount.
    2. This liability is a security for the creditors of the corporation, in addition to the liability of the stockholders; and it is not necessary, to entitle a creditor to its benefit, that he should have knowledge of the making of the certificate, or of its contents.
    3. Suit to enforce the liability of the incorporators should be prosecuted for the benefit of all the creditors, as in cases against the stockholders, and the liabilities of both classes may be enforced in the same action.
    4. In such case the court may, in its discretion, allow reasonable attorney’s fees to counsel for plaintiff, and order the same to be paid out oj the fund recovered.
    (Decided January 30, 1900.)
    Error to the Circuit Court of Cuyahoga county.
    A sufficient statement of the case is contained in the opinion.

      Gilbert & Sills, for plaintiffs in error.

      Carpenter d Young, for the Cleveland Punch and Shear Works Company, defendant in error.
   Williams, J.

In May, 1895, the plaintiffs in error, Hessler, Walworth, and Watterson, together with P. W. Prentiss and J. W. Morris,* executed and acknow-' ledged, in due form, and filed in the office of the secretary of state, articles for the incorporation of the Morris Crusher and. Pulverizer Company. The articles stated that the corporation was “formed for the purpose of making, buying, using and selling rock breakers, ore crushers, pulverizers, engines and other mining and milling machinery, and all supplies and appliances adapted for use in connection therewith. Also to build mills and manufacturing plants and equip them with such engines, machinery, supplies and appliances, and to own and operate such mills and plants on its own account, or to sell the same to others at its option. And, the capital stock of the corporation shall be one hundred thousand ($100,-000.00) dollars, divided into one thousand (1,000) shares of one hundred dollars ($100.00) each.”

Books for subscription to the stock of the corporation were soon after opened, and Morris subscribed for all the stock except six shares, one of which was taken by each of the other incorporators, and one by each of two other persons. The incorporators then, in June, 1895, certified in writing to the secretary of state, that all of the capital stock of the corporation had been subscribed; and the subscribers thereupon proceeded to, and did, elect a board of directors. for the corporation, and organized it for business. Thereafter, the corporation, through the officers so chosen, purchased of the defendant in error, the Cleveland Punch and Shear Works Company, certain machinery to be used in the business of the corporation, amounting to something over $3,900.00, and paid thereon $1,400.00; and contracted other indebtedness. The amount paid on the machinery had been borrowed for that purpose, and no other payment has been made thereon. At the time the incorporators certified to the secretary of state that the capital stock of the corporation had all been subscribed, nothing whatever had been paid on the stock, and nothing has been paid since; and when the indebtedness for the machinery purchased, and to the other creditors, was incurred, the corporation was insolvent, and has since so continued; and Morris and Prentiss also were and still are insolvent.

The defendant in error, the Punch and Shear Works Company, brought the action below in behalf of the creditors, against the plaintiffs in error and all other incorporators and stockholders, to subject to the payment of the debts of the corporation, the unpaid subscriptions to its stock, and the statutory liability of the stockholders, and to hold the incorporators for the deficiency. On the trial the court found the facts, substantially as above stated, and “that plaintiff, when its said claim was contracted, had no actual knowledge of the contents of said articles of incorporation, ' or of said certificate to the secretary of state concerning the subscription to said capital stock.” The court also found that after apportioning to the plaintiff’s claim its share of all the solvent stockholders’ liability, and of their unpaid subscriptions to the stock, there still remained due to the plaintiff on its claim, a balance of $2,033.11; and, as shown by the record, “it further appearing that if said ten per cent, of the authorized capital of the defendant company had been paid in at the time the said incorporators certified to the secretary of state that all of said capital stock had been subscribed, there would have been sufficient money to pay plaintiff’s claim in full, the court held as a conclusion of law, “that plaintiff has been injuriously affected, by the deficiency in the actual payment of said ten per cent, to the amount of said balance of its said claim, to-wit: $2,033.11, and that the defendant incorporators, other than the said Morris, should jointly contribute said sum, in addition to the foregoing stock liability,” and rendered judgment for that balance, against the incorporators, and ordered that an attorney’s fee of $250.00 be paid to the plaintiff’s counsel out of the fund.

The plaintiffs in error make no complaint against the judgment of the court in directing the application of the unpaid subscriptions, and statutory liability of the solvent stockholders, to the claims of the creditors, nor against the finding of the balance remaining due to the Punch and Shear Company. Their complaint is against the judgment holding them responsible as incorporators, for that balance, and to other creditors, and to the allowance of an attorney’s fee.

One objection made to the judgments below involves the construction of section 3244, of the Revised Statutes, which provides that, when ten per cent, of the capital stock of a corporation is subscribed, “the subscribers of the articles of incorporation, or a majority of them, shall so certify in writing to the secretary of state, and thereupon shall give notice to the stockholders as provided in section 3242, to meet at such time and place as they may designate, for the purpose of choosing not less than five and not more than fifteen directors, who shall continue in office until the time fixed for the annual election, and until their successors are chosen and qualified;” and that, “the incorporators of the company shall be liable to any person affected thereby to the amount of any deficiency in the actual payment of said ten per cent, at the time of so certifying.”

The question presented in argument is whether the amount for which, the incorporators are liable under this section, is the deficiency in the acutal payment of ten per cent, of the authorized capital stock of the corporation at the time they certify as therein provided to the secretary of state, or only one-tenth of that amount; it being the contention of the plaintiffs in error, that the liability is limited to the latter amount. And, if that is so, the judgment against them was excessive, otherwise it was not. It is argued in support of the construction contended for, that since an election of directors is authorized when it is certified that ten. per cent, of the capital stock has been subscribed, and, by section 3243, but one installment of ten per cent, on each share subscribed is payable at the time of the subscription, the liability of the incorporators extends no further than for any deficiency in the actual payment of ten per cent, of ten per cent, of the capital stock, or one per cent, on the whole capital stock. It must be conceded that this construction is at variance with the language of the section. The phrase “said ten per cent,” in the last clause, by which the liability of the incorporators is defined, undoubtedly refers to the “ten per cent.” mentioned in the first clause, which is “ten per cent, of the capital stock” of the corporation. Obviously, it could refer to nothing else, for nowhere else in the section is ten per cent, mentioned. And we find nothing in the section that warrants a construction different from this plain import of its language. Nor, does a consideration of the section as it formerly stood lead to a different result. Before it was enacted into its present form, May 18, 1894 (91 O. L., 304), it authorized an election of directors, when five incorporators certified to the secretary of state that fifty per cent, of the capital stock was subscribed “and ten per cent, of the capital stock paid,” and contained the same provision as now, that the “incorporators of the company should be liable to any person affected thereby, to the amount of any deficiency in the actual payment of said ten per cent., at the time of so certifying.” It is manifest that “said ten per cent.” in this clause of the section in its then form, meant ten per cent, of the entire capital stock of the corporation, and that the incorporators were liable for any deficiency in the actual payment of that amount. While, by the amendment of 1894, the amount of stock necessary to be subscribed previous to the election of directors was reduced to ten per cent., and the requirement that any amount should be paid was omitted, the provision fixing the liability of the incorporators to the amount of any deficiency in the actual payment of the ten per cent, of the authorized capital stock of the corporation was left unchanged, and its effect remains the same.

A further objection made to the judgment is, that upon the facts of the case the plaintiff below was not entitled to enforce the liability of the incorporators. It is claimed that no right to that remedy is shown, because the plaintiff had no knowledge of the certificate filed with the secretary of state, and did not extend credit upon the faith of it, to the corporation; and, therefore, was not a party affected, within the meaning of section 3244. Whatever obscurity there is in the meaning of the last clause of the section, with respect to those who, as persons “affected thereby” may have recourse to the liability of the incorporators, arises from the introduction, by way of amendment, between that clause and the first one, of the proviso, authorizing waiver of notice of the meeting for the election of directors.. By the introduction of the amendment in the place it now occupies, the immediate connection theretofore existing bétween the two clauses, was broken; but they were not otherwise affected so as to render necessary a different construction of either. Looking to both in their proper connection, and to their purpose, it seems reasonably clear that those who become creditors of the corporation, are the persons affected by the deficiency in the payment of the required amount of the capital stock, and who may, therefore, when necessary, resort to the liability of the incorporators for such deficiency. The power of the general assembly, under section 3, of article 13, of- the constitution, to provide means for securing the creditors of corporations, is not exhausted by the imposition of a personal liability on each stockholder, over and above the stock owned by him, and any amount unpaid thereon, to a further sum equal to the amount of his stock. Express authority is conferred to provide other means of security. And, it was the purpose of the statute under consideration to provide additional security for the creditors of corporations, by holding the incorporators responsible for the forthcoming of what the legislature deemed it proper to regard a substantial fund as a basis on which the corporation might be permitted to commence business. In effect, the incorporators are made guarantors, of the corporation to that amount. Some provision of this nature seems necessary to insure good faith in the formation of corporations, and for the protection of those who deal with them. The liability of the incorporators, like that of the stockholders, is a security for all the creditors. All are presumed to deal with the corporation in reliance upon the securities which the law has required; and, therefore, knowledge by a creditor of the filing of the certificate with the secretary of state, or of its contents, is not necessary in order to entitle him to the benefit of the security. Suit to enforce this liability of incorporators should be prosecuted for the benefit of all the creditors, as in cases against the stockholders; and we see no reason why liabilities of both classes may not be enforced in the same action, as was done in this case, so that all the securities for the same debts may be properly marshalled, and distribution made on principles of equity.

And in such a case, upon the grounds stated in Mason v. Alexander, 44 Ohio St., 318-337, the court may, in its discretion, allow reasonable attorney’s fees to the plaintiff’s counsel, and order them paid out of the fund.

Judgment affirmed.


author: Shauck, J.

text:
    Fraternal Mystic Circle v. State ex rel Fritter.

      Private corporation — Por mutual benefit of members — Member unlawfully expelled — Not entitled to mandanus to restore him.

    A member of a private corporation organized for the mutual protection and relief of its members, though, unlawfully expelled and excluded from participation in its benefits, is not entitled to a writ of mandamus to compel it to restore him to membership, • because:
    1. Such restoraiion is not an act specially enjoined by law.
    2. He has a plain and adequate remedy in the ordinary course of the law.
    (Decided December 14, 1897.)
    Error to the Circuit Court of Franklin County.
    The relator commenced an original action in the circuit court for a peremptory ivrit of mandamus, to compel the Fraternal Mystic Circle to restore him to membership with all its privileges and benefits.
    A demurrer to his original petition having been sustained, he filed an amended petition, alleging, in substance, that the Fraternal Mystic Circle is a corporation organized under the laws of this state, for the purpose of the mutual protection and relief of its members, and for the payment of stipulated sums of money to the families of its deceased members. In the corporation is a small body known as the Supreme Ruling, which claims to be vested with and exercise the supreme power of the corporation for the management of its business. The Supreme Ruling holds but one session a year, and in the interim of its sessions, an executive committee of five persons, claims to be vested with all the powers of that body, except legislative powers and the power to • fix salaries of supreme officers. The constitution and bylaws of the corporation, provide no mode or right of appeal from a decision of the Supreme Ruling, or of the executive committee.
    The relator having all qualifications, became a member of tbe corporation and of tbe supreme ruling, and a. contributor to its -benefit fund, December 10, 1884. On January 9, 1885, he received from the corporation a certificate of membership and insurance, stipulating for the payment to named beneficiaries of $8,000.00, upon satisfactory evidence of the relator’s death; or the payment of a sum not exceeding $1,500.00, in accordance with rules governing the benefit fund, on satisfactory evidence of his total disability, and further, that it would pay to the beneficiaries seventy-five per cent, of all benefit assessments paid by him if he should die after being a member five years or more, it being, however, a condition to the obligation of the corporation, that the relator be a member in good standing, at the time of his death or disability.
    The relator performed all his duties as a member, and until February 3, 1892, he enjoyed all the rights and privileges of membership. At that time, against his protest and objection, he was denied the privilege of voting for officers and from attending the meetings, and from all participation in the affairs of the corporation. He has frequently demanded that said privileges be restored to him, but the demand has been refused, upon the ground that he had been expelled from the corporation. His said expulsion was illegal because contrary to the regulations of the corporation, in that he was never fully and fairly informed of the nature of the charges against him, nor served with notice of the time and place of trial, nor permitted to be fully and fairly heard, nor to know the names of his accusers, nor to hear the evidence offered against him, nor to offer evidence in his own behalf. The corporation has a large fund to which the relator has contributed, and in whose distribution he, as a member, would be entitled to share. The relator tendered all assessments made against members, prior to the commencement of the action.

      Issues were joined by answer and reply, and the plaintiff introduced evidence tending to establish the facts alleged in his petition. After hearing the evidence offered by the parties, the circuit court found in favor of the relator and ordered a peremptory writ of mandamus, restoring the relator to membership in the corporation.
    A petition in error is filed here for the reversal of the judgment of the circuit court.

      Merrick & Tompkims, and Cyrus Huling, for plaintiff in error.

      Nash & Lentz; Louis G. Addison and Lincoln Fritter, for defendant in error.
   Shauck, J.

Numerous questions are presented by the record and discussed in the briefs of counsel, but enough of the case has been stated to raise the only question which is'thought deserving of attention: Whether mandamus will lie for the redress of such grievances as are alleged in the petition.

Courts in other states have allowed the writ so frequently in cases quite similar to this, that some writers on benefit societies have stated it as a general rule, that if a member is wrongfully expelled from a society, he may be restored by mandamus. We have, however, to determine the question in accordance with the provisions of our own constitution and statutes, upon the subject. The legislation upon the subject of mandamus is in chapter two, of title four, of the revised statutes. While the procedure with respect to this form of relief has been brought approximately into subjection to the provisions of the code of civil procedure, the writ retains it extraordinary and prerogative character. It may be that the legislature has not attempted to deprive it of that character, because it has regarded itself as without power to do so. The constitution vests original jurisdiction in mandamus in the circuit court and in the supreme court. Through repeated decisions it has become well known that tbe general assembly cannot add to tbe original jurisdiction of those courts, because tbe constitutional grant is exclusive. An attempt to enlarge tbe purposes of tbe writ so as to make it a substitute for actions at law, and suits in equity would fail as an attempt to accomplish a forbidden purpose by indirection. This may account for tbe fact that tbe legislature has not attempted to add to tbe purposes for which tbe writ may be resorted to as they were known at the adoption of tbe constitution. It is doubtless because of tbe extraordinary character of tbe remedy that it is prosecuted in tbe name of tbe state, and original jurisdiction with respect to it is conferred upon tbe higher courts which have not original jurisdiction in private actions at law and suits in equity.

That tbe general assembly may increase tbe number of cases in which resort may be bad to this remedy, is not doubted. Indeed, it does so whenever it enacts a law which specially enjoins tbe performance of an act as a duty resulting from an office, trust, or station. But such laws do not change tbe character or purpose of tbe remedy.

Contemporaneously with tbe adoption of tbe constitution, tbe legislature defined mandamus as “a writ issued in tbe name of tbe state, to an inferior tribunal, a corporation, board or person, commanding tbe performance of an act which tbe law specially enjoins as a duty resulting from an office, trust or station.” This, like tbe other provisions of tbe statute, did not change tbe character of tbe writ or tbe purposes for which it may be invoked, but only reduced to tbe form of a statute, tbe commonly accepted definitions and principles upon tbe subject. This definition recognizes tbe public character of tbe action, and clearly excludes tbe idea that it may be resorted to for tbe purpose of enforcing tbe performance of duties in which tbe public have no interest. That interest is appropriately manifested by a statute enjoining the particular act as a duty resulting from an office, trust or station. “The object of the remedy by mandamus, is to compel public officers and private individuals, in matters relating to the public, to perform their public duties.” Tillson v. Commissioners of Putnam County, 19 Ohio, 415. This is only saying, that private actions are appropriate for the redress of private wrongs.

The definition shows with perhaps even more clearness, that mandamus is not a preventive remedy. It is essentially a coercive writ. It commands performance, not desistance. The real grievance of the relator is that he is unlawfully excluded from participation in the advantages of membership in the corporation, and the appropriate remedy would be that the corporation desist from such exclusion, or compensate him in damages for the wrong. The inference from the nature of the writ, that its extraordinary character is incompatible with the redress of private wrongs, is in accordance with the express provision of the statute, (Sec. 6744) : “The writ must not be issued in a case where there is a plain and adequate remedy in the ordinary course of the law. Assuming that the relator is wrongfully excluded from participation in benefits, he may recover in an action at law, the damage he has sustained. If that remedy would be inadequate, he would be entitled to an injunction to prevent his further exclusion. Whether his remedy would be at law or in equity, we need not determine here, for in this comparison both of those remedies are in the ordinary course of the law.

Some of the numerous eases cited by counsel for the relator, are in view of the provision quoted, opposed to his position, since they hold that in such case injunction will lie, to prevent the exclusion of the members. In some, the writ of mandamus has been allowed without consideration of the propriety of the remedy. None of them offers such reasons for its allowance as would be entitled to prevail against the objections stated, if it were yet an open question. It is, however, held in Freon v. The Carriage Co., 42 Ohio St., 30, that “mandamus is not the proper remedy to enforce the performance of a duty imposed upon the officers of a private corporation, organized for profit merely, where such duty is not specifically enjoined by law, and where there is a plain and adequate remedy either at law or in equity.” The point there, authoritatively decided, is according to a familiar rule of this court, stated in the syllabus.

The provisions quoted from the statute, and the case cited, justify the conclusion that the writ should not have been allowed in favor of the relator, because the act whose performance is commanded, is not specially enjoined by law, and because the relator, assuming that he has a cause of action, has a plain and adequate remedy in the ordinary course of the law. That conclusion is inferentially supported by numerous other decisions of this court in which the writ has been refused. We find no decision of this court in which the writ has been allowed in cases or upon principles inconsistent with the conclusions stated.

Although both remedies are administered in the same court, it has generally been held, that a suit to enjoin cannot be maintained where an action for damages would afford adequate relief. But the distinction in this respect, between mandamus and remedies in the ordinary course of the law, is obviously of much greater importance, since by the allowance of the writ of mandamus in forbidden cases, the circuit court and this court would in effect extend their original jurisdiction beyond the constitutional grant upon that subject.

Judgment reversed and original petition dismissed

Minshall, J., dissents.


text:
    Felch, Assignee v. The Hodgman Mfg. Co. et al.
    Reporter’s Note.
    In printing the syllabus in this case, as reported at page 93 of this volume, there was omitted, by some oversight not now understood, after the word “exceptions” this clause: “and the journal entry made on the 48th day after the overruling shows only that on this day comes the plaintiff and presents his bill of exceptions, which upon examination is found to be true and correct and is by the court hereby allowed, signed, sealed and ordered to be made a part of the record.”
    The omission is of minor importance, however, inasmuch as the matter was subsequently reconsidered, and the order sustaining the motion set aside and the motion overruled. A full report of the final disposition of the motion will be found in volume 62 of these reports.
   Motion by defendant to strike bill of exceptions from the files in cause No. 6778 on the general docket.


text:
    No. 5951.
    Schubert v. Rackle et al.
    (Decided October 3, 1899.)
    Error to the Circuit Court of Cuyahoga county.

      Willson & David, for plaintiff in error.

      Hessenmueller & Bemis, for defendants in error.
   Judgment affirmed.


text:
    No. 5952.
    McCormic v. Wolf & Co.
    (Decided October 3, 1899.)
    Error to the Circuit Court of Wyandot county.

      A. E. Wolton, for plaintiff in error.

      W. B. Hare, for defendant in error.
   Judgment affirmed.


text:
    No. 6009.
    Missionary Society of The M. E. Church v. Ely et al.
    (Decided October 3, 1899.)
    Error to the Circuit Court of Lorain county.

      G. E. Pennewell and Webber <& Stroup, for plaintiff in error.

      W. W Boynton and E. G. Johnson, for defendants in error.
   Judgment affirmed.


text:
    No. 6514.
    Railroad Company v. Riley.
    (Decided October 3, 1899.)
    Error to the Circuit Court of Huron county.

      Samuel E. Williamson and G. P. <& L. W. Wichliam., for plaintiff in error.

      Andrews Bros., for defendant in error.
   Judgment affirmed.


text:
    No. 6533.
    Collier, v. Village of Gibsonburg et al.
    (Decided October 3, 1899)
    Error to the Circuit Court of Sandusky county.

      Frank I. Isbell; W. J. Mead; R. A. Merrill and G. F. Watts, for plaintiff in error.

      Hunt & DeBan and W. W. Campbell, for defend, ants in error.
   Judgment affirmed,


text:
    No. 5911.
    Equitable National Bank v. Jacobs Cordage Co. et al.
    (Decided October 10, 1899.)
    Error to the Circuit Court of Cincinnati.

      Heal/y <& Brannan and Edmund K. Stallo, for plaintiff in error.

      Follett & Kelley; Wilson da Herrlinger and Goebel da Bettinger, for defendants in error.
   Judgment affirmed.


text:
    No. 5945.
    Wellman v. Converse, Jr.
    (Decided October 10, 1899.)
    Error to the Circuit Court of Franklin county.

      Wardlow da Saokett, for plaintiff in error.

      Watson, Burr da Livesay, for defendant in error.
   Judgment affirmed.


text:
    No. 5955.
    McRoberts, Treasurer, v. State ex rel. Richmond.
    (Decided October 10, 1899.)
    Error to the Circuit Court of Lorain county.

      W. B. Bedortha, for plaintiff in error.

      A. R. Webber, for defendant in error.
   Judgment affirmed.


text:
    No. 5969.
    Wade v. Loach et al.
    (Decided October 10, 1899.)
    Error to the Circuit Court of Henry county.

      W. W. Campbell, for plaintiff in error.

      John Poe, for defendants in error.
   Judgment affirmed.


text:
    No. 6246.
    Village of Hyde Park v. Davy.
    (Decided October 10, 1899.)
    Error to the Circuit Court of Hamilton county

      P. A. Harrison and W. J. Davidson, for plaintiff in error.

      F H. Kinney; Hollister c& Hollister; Edwin Gholson and Harmon, Colston, Goldsmith & Hoadly, for defendant in error.
   Judgment affirmed.


text:
    No. 6271.
    City of Cincinnati v. Hess et al.
    (Decided October 10, 1899.)
    Error to the Circuit Court of Hamilton county.

      Ellis G. Kinhead, Corporation Counsel, and Jones & James, for plaintiff in error. .

      Drausin Wulsiri; Herron, Gatch ds Herron; Benjamin II. Cox; Jerome D. Creed and Wm. Rendigs, County Solicitor, for defendants in error.
   Judgment affirmed.


text:
    No. 6378.
    McLaughlin et al. v. State of Ohio.
    (Decided October 10, 1899.)
    Error to the Circuit Court of Vinton county.

      J. M. McGillivray, for plaintiffs in error.

      Otto E. Vollemu eider, Prosecuting Attorney, for defendant in error.
   Judgment affirmed.


text:
    No. 5889.
    Betz et al. v. Esterly & Co.
    (Decided October 10, 1899.)
    Error to the Circuit Court of Columbiana county.

      Billingsley, Taylor <& Clark and Grosvenor, Tones c& Worsted, for plaintiffs in error.

      J. A. Ambler and W. G. Weds, for defendant in error.
   Judgment affirmed.


text:
    No. 5958.
    Village of Home City et al v. Hey.
    (Decided October 17, 1899.)
    Error to the Circuit Court of Hamilton county.

      James B. Matson, for plaintiffs in error.

      Barton & Dorger, for defendant in error.
   Judgment affirmed.


text:
    No. 5959.
    Village of Home City et al. v. Park.
    (Decided October 17, 1899.)
    Error to the Circuit Court of Hamilton county.

      James B. Matson, for plaintiffs in error.

      Barton <& Dorger, for defendant in error.
   Judgment affirmed.


text:
    No. 6070.
    Henderlich v. Fox.
    (Decided October 17, 1899.)
    Error to the Circuit Court of Harrison county.

      Swayne, Hayes c& Tyler and C. I York, for plaintiffs in error.

      I). A. Hollingsioorth, for defendant in error.
   Judgment affirmed.


text:
    No. 6080.
    Gilmore v. Gilmore.
    (Decided October 17, 1899.)
    Error to the Circuit Court of Knox county.

      L. B. Houck and J. B. ■Waight, for plaintiff in error.

      C. L. McClelland and John W. Jenner, for defendant in error.
   Judgment affirmed.


text:
    No. 6127.
    Jenkins v. Mapes.
    (Decided October 17, 1899.)
    Error to the Circuit Court of Knox county. '

      Cooper da Moore and B. F. da J. B. Ewing, for plaintiff in error.

      Critehfield da Graham and J. B. Waight, for defendant in error.
   Judgment affirmed.


text:
    No. 6388.
    Hauser, Kramer & Co. v. Curran et al.
    (Decided October 17, 1899.)
    Error to the Superior Court of Cincinnati.

      Brausin, Wulsin and Frank O. Suire, for plaintiffs in error.

      C. W. Baker, for defendants in error.
    Judgment reversing judgment at Special Term affirmed, and final judgment for defendants in error. ‘
   And the court being of the opinion that the evidence offered by the defendants below did not .constitute a defense to the action, nor entitled the defendants to any legal relief by way of damages; and did not support the amended answer and cross-petition, by such proof as would have warranted the reformation of the written.agreement between the parties, and its rejection would not therefore be prejudicial to the defendants, it is ordered and adjudged by this Court that the judgment of the General Term, reversing that of the Special Term, be and the same is hereby affirmed with costs to be taxed.

And proceeding here to render the further judgment that the General Term, as well as the Special should have rendered upon the admitted facts, it is ordered and adjudged that the plaintiff’s below recover of the defendants below the sum of $535.00, with interest at the rate of eight per cent, from November 22, 1886, which amounts upon October 17, 1899 (the date of this judgment), to the sum of $1,086.63.

It is further considered that the plaintiffs below recover of the defendants their costs in the Court and in the General and Special Terms of the Superior Court, to be taxed.


text:
    No. 6411.
    Railway Company v. Foltz.
    (Decided October 17, 1899.)
    Error to the Circuit Court of Guernsey county.

      Mathews <& Heads, for plaintiff in error.

      Bóbt. T. Scott, for defendant in error.
   Judgment affirmed.


text:
    No. 6521.
    Windham et al. v. Commissioners of Hardin county et al.
    (Decided October 17, 1899.)
    Error to the Circuit Court of Logan county.

      West & West and Kernan & Cassidy, for plaintiffs in error.

      S. H. West; Thomas C. Mahon and Price & Shea, for defendants in error.
   Judgment affirmed.


text:
    No. 6543.
    Lander, Treasurer, v. Adams et al., Ex’rs.
    (Decided October 17, 1899.)
    Error to the Circuit Court of Cuyahoga county

      P. II. Kaiser, County Solicitor; Edward 8. Meyer; James M. Jones and N. E. Warwick, for plaintiff in error.

      Boynton db Horr and W. B. Sanders, for defendants in error.
   Judgment affirmed.


text:
    No. 5685.
    Shields v. Murphy et al.
    (Decided October 24, 1899.)
    Error to the Circuit Court of Licking county.

      S. M. Hunter, for plaintiff in error.

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


text:
    No. 5686.
    Phœnix Insurance Company v. Port Clinton Fish Co. et al.
    (Decided October 24, 1899.)
    Error to the Circuit Court of Ottawa county.

      Wm. Gordon and Dickey, Breioer, Bentley & McGowan, for plaintiff in error.

      C. I York and E. G. Love, for defendants in error.
   Judgment affirmed.


text:
    No. 5983.
    Dumm v. Columbus Central Railway Co.
    (Decided October 24, 1899.)
    Error to the Circuit Court of Franklin county.

      J. H. Collins and II. R. Wilson, for plaintiff in •error.

      Merrick & Tompkins and Ceo. C. Rlcmkner, for defendant in error..
   Judgment affirmed.


text:
    No. 5995.
    Levy et al. v. Ginn, Adm’r.
    (Decided October 24, 1899.)
    Error to the Circuit Court of Lake county.

      Homer Harper; Bosworth & Hammar and Geo. H. Shepherd, for plaintiffs in error.

      Osborne & Reynolds and Blandin, Rice & Cinn, for defendant in error.
   Judgment affirmed on authority of Doan et al v. Bitely, 49 Ohio St., 588.


text:
    No. 5996.
    State ex rel. Ashtabula Bank Co. v. Wilkinson.
    (Decided October 24, 1899.)
    Error to the Circuit Court of Lake county.

      Theodore Hall, for plaintiff in error.

      Wade db Betts, for defendant in error.
   Judgment affirmed on authority of Board of Education v. Andrews & Co., 51 Ohio St., 199.


text:
    No. 5997.
    Hewitt v. Chapman.
    (Decided October 24, 1899.)
    Error to the Circuit Gourt of Ashtabula county.

      Theodore Hall, for plaintiff in error.

      Hoyt <& Munsell and A. G. White, for defendant' in error.
   Judgment affirmed.


text:
    No. 6003.
    Hooper v. Kissell et al.
    (Decided October 24, 1899.)
    Error to the Circuit Court of Putnam county.
    Handy, Ogan <& Unverferth and Guy B. Kitten, for plaintiff in error.

      Leasure <& Powell; John H. SPraman and W. W. Sutton, for defendants in error.
   Judgment modified.

On consideration whereof, and the Court being of the opinion that in an action to recover money lost at gaming or in betting, the plaintiff is not entitled to recover ■ interest on the money so lost, it is considered that the judgment should be modified by striking out the interest so recovered in the action below. It is therefore considered that the judgment of the Court of Common Pleas and the affirmance thereof by the Circuit Court be and the same is modified by striking therefrom the sum of $7.50, the interest so recovered; and that said judgment be affirmed in all other respects.

It is further considered that the said plaintiff in error, Samuel B. Hooper, recover of the defendants in error his costs in this Court and in the Circuit Court to be taxed.


text:
    No. 5709.
    The Henry St. Clair Co. et al. v. Eddins et al.
    (Decided October 31, 1899.
    Error to the Circuit Court of Preble county.

      J. W. King; Gottsehall, Orawford & Limbert, for plaintiffs in error.

      James A. Gilmore; J. H., 8. B. & G. G. Foos and E. P. Vaughn, for defendants in error.
   Judgment affirmed.


text:
    No. 5728.
    Railroad Company v. Montgomery et al.
    (Decided November 14, 1899.)
    Error to the Circuit Court of Licking county.

      J. K. Gollins and Kibler da Kibler, for plaintiff in error.

      B. G. /Smythe, for defendants in error.
   Judgment affirmed.


text:
    No. 6022.
    Carlisle et al. v. Lamb.
    (Decided November 14. 1899.)
    Error to the Circuit Court of Licking county.

      J. A. Flory, for plaintiffs in error.

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


text:
    No. 6025.
    Milroy v. Allen.
    (Decided November 14, 1899.)
    Error to the Circuit Court of Logan county.

      James Kernan, for plaintiff in error.

      W. S. Plum, for defendant in error.
   Judgment affirmed.


text:
    No. 6035.
    Bales et al. v. Starry.
    (Decided November 14, 1899.)
    Error to the Circuit Court of Miami county.

      W. B. MoKinney and F. V Flinn, for plaintiffs in error.

      A. F. Broomhall, for defendant in error.
   Judgment affirmed.


text:
    No. 5715.
    Casement et al. v. Railway Co. et al.
    (Decided November 21, 1899.)
    Error to the Circuit Court of Clinton county.

      John J. Glidden and J. W. Bannon for plaintiffs in error.

      Hollister & Hollister; Walter A. Be Camp and A. G. Thompson for defendants in error.
   Judgment affirmed.

Minshall, J., dissents.


text:
    No. 5727.
    Railroad Co. v. Reid et al.

    (Decided November 21, 1899.)
    Error to the Circuit Court of Lorain county.

      M. Lessick and E. G. Johnson, for plaintiff in error.

      Burke da Ingersolls, for defendants in error.
   Judgment affirmed.


text:
    No. 6019.
    Walker v. Walker et al., Assignees, et al.
    (Decided November 21, 1899.)
    Error to the Circuit Court of Darke county.

      James A. Gilmore, for plaintiff in error.

      Williams & Kriekenberger; Alh'ead <& Te egarden ; Anderson da Bowman and Jackson da Starr, for defendants in error.
   Judgment affirmed.


text:
    No. 6057.
    Newman v. McDorman et al.
    (Decided November 21, 1899.)
    Error to the Circuit Court of Putnam county.

      Bailey da Bailey, for plaintiff in error.

      Treasure da Powell for defendants in error.
   Judgment affirmed.


text:
    No. 6063.
    Czatt v. Case & Taylor.
    (Decided November 21, 1899.)
    Error to the Circuit Court of Harrison county.

      M. J. McCoy and P. W. Boggs, for plaintiff in error. . .;

      Albert O.'Ba/rnes and John O. Dickerson.-tor defendants in error.
   Judgment affirmed.


text:
    No. 6751.
    Newman v. Warden.
    (Decided November 21, 1899.)
    Error to the Circuit Court of Putman county.

      Bailey <£¡ Bailey, for plaintiff in error.

      Leasure <& Powell, for defendant in error.
   Judgment affirmed.


text:
    No. 5676.
    Quigley v. Murphy.
    (Decided December 5, 1899.)
    Error to the Circuit Court of Lucas county.

      Hurd, Brumbach & Thatcher, for plaintiff in error.

      Parks & Van Campen, for defendant in error.
   Judgment affirmed.


text:
    No. 5756.
    Hunger v. Lawson, alias Brown.
    (Decided December 5, 1899.)
    Error to the Circuit Court of Cuyahoga county.

      James M. Shallenberger and Ha/rrison J. Uhl, for plaintiff in error.

      Foran & Hawley and F. A. Beecher, for defendant in error.
   Judgment affirmed.


text:
    No. 5757.
    Phœnix Insurance Company v. Akron Belting Company.
    (Decided December 5, 1899.)
    Error to the Circuit Court of Summit county.

      Allen ds Cobbs, for plaintiff in error.

      F. H. Water, for defendant in error.
   Judgment affirmed.


text:
    No. 5763.
    Rawlinson et al. v. Osborn et al.
    (Decided December 5, 1899.)
    Error to the Circuit Court of Knox county.

      Critchfield & Devin and Arnold, Morton da Irvine, for plaintiff in error.

      John Adams, for defendants in error.
   Judgment affirmed.


text:
    No. 6071.
    Schneider et al. v. Central Committee of the Independent Order of Foresters.
    (Decided December 5, 1899.)
    Error to the Circuit Court of Cuyahoga county.

      Harrison J. Ewing ,and Willson da David, for plaintiff in error.

      J. H. MaoMath, for defendants in error.
   Judgment affirmed.

The ground of reversal being that the verdict was against the evidence.


text:
    No. 5475.
    State ex rel. Attorney General v. St. Paul Fire & Marine Insurance Company of Minnesota. Same v. Home Insurance Company of New York. Same v. Royal Insurance Company of Liverpool, England. Same v. Liverpool and London and Globe Insurance Company of Liverpool, England. Same v. London and Lancashire Insurance Company of Liverpool, England. Same v. North British and Mercantile Insurance Company of London and Edinburg, Great Britain. Same v. Caledonian Insurance Company of Edinburg, Scotland. Same v. British America Assurance Company of Toronto, Canada. Same v. Western Assurance Company of Toronto, Canada. Same v. Manchester Fire Assurance Company of Manchester, England. Same v. Buffalo German Insurance Company of Buffalo, New York.

      No. 5476.
    No. 5489.
    No. 5490.

      No. 5491.
    No. 5492.
    No. 5493.
    No. 5494.
    No. 5495.
    No. 5515.

      No. 5519.
    (Decided December, 12, 1899.)
    Quo Warranto.

      F. S. Monnett, Attorney General; F. B. Kinlcead and Smith W. Bennett, for plaintiff.
    Harrison, Olds, Henderson <& Harrison; Paxton, Warrington <& Boutet and M. B. Patterson, for defendants.
    Causes dismissed on the ground that the evidence does not support the averments of the petitions.
   Minshall, J.

I am of the opinion that the' Court has no jurisdiction in the matter, the power to act in the premises being conferred by the statute on the Commissioner of Insuranc. B.ut the court having assumed jurisdiction, it has been erroneously exercised, as appears to me, on the ■facts disclosed by - the evidence. For the same reason, I dissent in each of the other cases argued with this one.


text:
    No. 5679.
    Real Estate and Improvement Company of Baltimore City, Maryland v. Roessing, County Treasurer.
    (Decided December 12, 1899.)
    Error to the Circuit Court of Henry county.

      J. H. Collins, for plaintiff in error.

      James P. Bagan, and W W. Campbell, for defendant in error.
   Judgment affirmed.


text:
    No. 5783.
    Citizens’ National Bank v. Wehrle et al.
    (Decided December 12, 1899.)
    Error to the Circuit Court of Erie county.

      Phinney do Merrill, for plaintiff in error.

      Theo. Alvord; J. W. Bannon; Kline, Carr, Tolies do Goff and E. E. Poppleton, for cross-petitioners in error.

      W. H. A. Bead; John F. Crystal and C. P. W%ch-ham, for defendants in error.
   Judgment affirmed.


text:
    No. 5794.
    Coghlin v. Hughes.
    (Decided December 12, 1899.)
    Error to the Circuit Court of Lucas county.

      Dóyle do Lewis, for plaintiff in error.

      Scribner do Waite; Gordon T. Hughes and J. Kent Hamilton, for defendant in error.
   Judgment of Circuit Court reversed and that of Common Pleas affirmed.


text:
    No. 6141.
    Breidinger v. Emerine.
    (Decided December 12, 1899.)
    Error to the Circuit Court of Seneca county.

      Brewer do Brewer, for plaintiff in error.

      Seney d; Sayler and Me Cauley do Weller, for defendant in error.
   Judgment affirmed.


text:
    No. 6518.
    McCarren, Guardian, v. McCarren et al.
    (Decided December 12, 1899.)
    Error to the Circuit Court of Warren county.

      Brandon <& Burr, for plaintiff in error.

      Mills, Clevenger <& Ruis, for defendants in error.
   Judgment affirmed.


text:
    No. 6658.
    Cain v. State of Ohio.
    (Decided December 12, 1899.)
    Error to the Court of Common Pleas of Hamilton county.

      Shay <& Cogan, for plaintiff in error.

      John C. Schwartz, Prosecuting Attorney, and Thos. R. Darby, Ass’t Prosecuting Attorney, for defendant in error.
   Judgment reversed on authority of Kelch v. State, 55 Ohio St., 146.


text:
    No. 6682.
    Pennsylvania Company v. Hammond, Adm’x.
    (Decided December 12, 1899.)
    Error to the Circuit Court of Mahoning county.

      Carey, Boyle <& Mullins, for plaintiff in error.

      James Kennedy; W. S. Anderson and M. A. Morris, for defendant in error.
   Judgment affirmed.


text:
    No. 6860.
    State ex rel. Attorney General v. Railroad Company.
    (Decided December 12, 1899.)
    Quo Warranto.
    ■ F. 8: Monnétt, Attorney' General; Barlett <& Wilson; Hunt <& De Ban and Finch & Deioey, for plaintiff.

      Kinney <& O'Farrell; John F. Kumler; King <& Guerin and Henry A. Haigh, for defendant.
   Demurrer to petition sustained and petition dismissed on the ground that the statute authorizes the consent given by the commissioners to the construction of the trolley road upon the turnpike.


text:
    No. 5799.
    Schieble v. Schieble.
    (Decided December 19, 1899.)
    Error to the Circuit Court of Montgomery county.

      Kennedy & Manger, for plaintiff in error.

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


text:
    No. 5868.
    Union Central Life Insurance Company v. Hoover.
    (Decided December 19, 1899.)
    Error to the Circuit Court of Delaware county.
    Bamsey, Maxwell & Bamsey, for plaintiff in error.

      F. M. Marriott, for defendant in error.
   Judgment modified by deducting the sum borrowed with interest; costs divided equally.


text:
    No. 5869.
    Hippel v. Darling et al.
    (Decided December 19, 1899.)
    Error to the Circuit Court of Jackson county.

      John T. Moore; J. W. Bannon and T. W. Jones, for plaintiff in error.

      Powell <& Eubanks, for defendants in error.
   Judgment affirmed.


text:
    No. 5870.
    Darling et al. v. Hippel.
    (Decided December 19, 1899.)
    Error to the Circuit Court of Jackson county.

      Powell do Eubanks, for plaintiffs in error.

      John T. Moore; J. W. Bannon and T. W. Jones, for defendant in error.
   Judgment affirmed.


text:
    No. 6037.
    German Newspaper Company v. Doren.
    (Decided December 19, 1899.)
    Error to the Circuit Court of Montgomery county.

      Gunekel, Bowe <& Bhuey, and Carl L. Baumann, for plaintiff in error.

      Wright ds Ozias, for defendant in error.
   Judgment affirmed.


text:
    No. 6040.
    Leonard et al. v. Dannemiller et al.
    (Decided December 19, 1899.)
    Error to the Circuit Court of Stark county.
    Thayer, Weber & Turner, for plaintiffs in error.

      Sterling & Werntz, for defendants in error.
   Judgment affirmed.


text:
    No. 6118.
    Shields v. McBride.
    (Decided December 19, 1899.)
    Error to the Circuit Court of Trumbull county.

      S. D. L. Jackson, and I. W. King, for plaintiff in error.

      L. II. K. Lowry, and Wrn. W. Zimmerman, for defendant in error.
   Judgment affirmed.


text:
    No. 5780.
    Noble et al. v. Ayers et al.
    (Decided December 22, 1899.)
    Error to the Circuit Court of Butler county.

      Millikin, Shotts da MilliMn, for plaintiffs in error. ■

      Slayback & Harr and Millikin, Shotts & Millikin for defendants in error.
   Judgment affirmed.


text:
    No. 5830.
    Protected Home Circle v. Winter.
    (Decided December 22, 1899.)
    Error to the Circuit Court of Cuyahoga county.

      A. W. Williams and Mason c6 Taft for plaintiff in error.

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


text:
    No. 5942.
    First National Bank of North Baltimore, O. v. Central Press Brick Company et al.
    (Decided December 22, 1899.)
    Error to the Circuit Court of Wood county.

      Frank Ta/ylor; F. IT. Westenhaver and Beney, Johnson c& Friedman, for plaintiff in error.

      Baldwin & Harrington; H. F. Burhet and Bquvre, Banders c& Dempsey, for defendants in error.
   Judgment affirmed, the record not presenting the questions argued.


text:
    No. 6417.
    City of Cincinnati et al v. Longworth.
    (Decided December 22, 1899.)
    Error to the Circuit Court of Hamilton county.

      Ellis G. Kinkéad, Corporation Counsel; Wade H. Ellis and Geo. H. Kattenhorn, Assistant Corporation Counsel, for plaintiffs in error.

      Thomas McDougall; Alfred G. Cassatt and Nicholas Longworth, for defendant in error.
   Judgment affirmed.

Minshall, J., dissents.


text:
    No. 6023.
    Osborn, Admr. v. Portsmouth National Bank of Portsmouth, O.
    (Decided January 9, 1900.)
    Error to the Circuit Court of Scioto county.

      Duncan Livingstone and J. 8. Dodge, for plaintiff in error.

      Oscar W. Newman, for defendant in error.
   Judgment affirmed.


text:
    No. 6655.
    Eisman & Company v. Tracy, Treasurer.
    (Decided January 9, 1900.)
    Error to the Circuit Court of Scioto county.

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

      Henry Bannon, Prosecuting Attorney, and Oscar W. Neioman, for defendant in error.'
   Judgment affirmed.


text:
    No. 5968.
    Calvert v. Newberger & Brother.
    (Decided January 16, 1900.)
    Error to the Circuit Court of Scioto county.

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

      Bannon <& Bannon, for defendants in error.
   Judgment affirmed.


text:
    No. 6027.
    American Surety Company of New York v. Raeder, Assignee.
    (Decided January 16, 1900.)
    Error to the Circuit Court of Cuyahoga county;
    Garfield, Garfield do House, for plaintiff in error.

      Dickey, Bretoer <& McGowan; Hadden ds Park Bros.; Webster da Cook; Chas. Taylor; Hog sett Beacom, Excell da Gage and M. G. Norton for, defendants in error.
   Judgment affirmed.


text:
    No. 6038.
    Oakwood Street Railway Company v. Minnich, Treasurer, et al.
    (Decided January 16, 1900.)
    Error to the Circuit Court of Montgomery county.
    Gunckel, Howe ds Shvey. for plaintiff in error.

      Edwin P. Matthews, for defendants in error.
   Judgment affirmed.

Davis, J., dissents.


text:
    No. 6078.
    Morrow et al. v. Union Central Life Insurance Company.
    (Decided January 16, 1900.)
    Error to the Circuit Court of Licking county.

      J. A. Flory and Edward Eibler, for plaintiffs in error.

      Charles Follett and Maxwell da Ramsey, for defendant in error.
   Judgment affirmed.


text:
    No. 6128.
    City of Alliance v. Akins.
    (Decided January 16, 1900.)
    Error to the Circuit Court of Stark county.

      J'. W. Grains, for plaintiff in error.

      Fording & Harris and G. G. Bow, for defendant in error.
   Judgment affirmed.


text:
    No. 6132.
    Blakesley et al. v. Pogue et al.
    (Decided January 16, 1900.)
    Error to the Circuit Court of Hancock county.

      George II. Phelps, for plaintiffs in error.
    • John Poe and George H. Phelps, for defendants in error.
   Judgment affirmed.

Burkbt, J., not sitting.


text:
    No. 6140.
    Cover et al. v. Wade.
    (Decided January 16, 1900.)
    Error to the Circuit Court of Seneca county.

      Brewer & Brewer and J. V. Jones, for plaintiffs in error.

      A. Skransswfky and E. F. Williams, fon defendant in error.
   Judgment affirmed.


text:
    No. 6663.
    Standard Oil Company v. Kennedy, Adm’x., et al.
    (Decided January 16, 1900.)
    Error to the Circuit Court of Hamilton county.

      Kittredge db Wilby and 8tallo, Richards cé Shaw, for plaintiff in error.

      Pogue db Pogue; G. W. Baker ; ' John W. Wolfe; J. Shroder and George II. A. lyford, for defendants in error.
   As to Standard Oil Co., judgment of the Circuit Court is reversed and that of the Common Pleas affirmed.

As to Devere Electric Co., judgment of the Circuit Court affirmed.

As to Drach’s Administrator, judgment of Circuit Court affirmed.

From the judgment against the Electric Company, Burket, Davis and Shauck, JJ., dissent.

Minshall, J., dissents from reversal of judgment against The Standard Oil Co.


text:
    No. 5848.
    Smith v. Wiggins et al.
    (Decided January 23, 1900.)
    Error to the Circuit Court of Ross county.

      Lcmrence T. Neal and Albert Douglas, for plaintiff in error.

      W. II. Wiggins, for defendants in error.
   Judgment affirmed.


text:
    No. 5929.
    The Kelley Company v. Peabody et al.
    (Decided January 23, 1900.)
    Error to the Circuit Court of Greene county.

      M. J. Handley, for plaintiff in error.

      Young db Young, for defendants in error.
   Judgment affirmed, because the judgment of the Circuit Court involves the weight of the evidence.


text:
    No. 6091.
    Clow & Sons v. Wrought Iron Bridge Company.
    (Decided January 23, 1900.)
    Error to the Circuit Court of Tuscarawas county.

      John W. Buchanan and J. W. Yeagley, for plaintiffs in error.

      Neeley dt Patrick and Vann di Bow, for defendant in error.
   Judgment affirmed.