author: Shauck, J. Price, J.,

text:
    The State of Ohio v. Carl.

      Carnal abuse of female — Section 6816, Revised Statutes — Indictment reading “with her consent" — Proof of non-consent— Yariance not fatal to conviction — Interpretation of statute— Court procedure.

    On the trial of an indictment under section 6816, Revised Statutes, for carnally knowing and abusing a fefnale person under the age of sixteen years with her consent, the evidence having established the carnal knowledge and the alleged ages of the parties, evidence tending to show that the act was committed without consent does not constitute a fatal variance.
    (No. 8523
    Decided January 3, 1905.)
    Exception to the ruling of the Court of Common Pleas of Summit county.
    Carl was indicted by the grand jury of Summit county under section 6816, Revised Statutes, for abusing and carnally knowing E. W., a female person under the age of sixteen years, he being more than eighteen years of age.
    The indictment charged: That the defendant, “being then and there a male person of the age of eighteen years and upward, did- unlawfully and knowingly carnally know and abuse one, E. W., with her consent, she, the said E. W., then and there being á female person under the age of sixteen years, to-wit, of the age of fourteen years, contrary to the form of. the statute in such case made and provided and against the peace and dignity of the state of Ohio.”
    The defendant entered a plea of not guilty. Upon ' the trial the evidence showed, at least tended to show, the alleged carnal knowledge, that the defendant was more than eighteen years of age and that E. W. was less than sixteen years of age. When upon the witness stand she testified that she did not consent to the intercourse but that it was accomplished by the defendant forcibly and against all the resistance she was able to interpose.
    Thereupon counsel for the defendant asked the court to direct the jury to return a verdict for the. defendant upon the ground that with respect to her consent there was a fatal variance between the indictment and the evidence.
    That direction was given by the court and the prosecuting attorney’s exception thereto presents the question which is for consideration here.

      Mr■. H. M. Hagelbarger, prosecuting attorney.
    We claim that the trial court erred in directing the jury to return a verdict for the defendant.
    First: For the reason that although the prosecuting witness testified, that the act was committed forcibly and against her will, it was not material in the case, the state having shown that she was under sixteen years of age, and that the defendant was over eighteen years of age.
    Second: Under favor of section 7216, Revised Statutes, if there was a variance between the indictment and the proof, the variance was not material or prejudicial to the defendant, and the court should not have directed an acquittal.
    Third: If such variance was material, then under favor of section 7303, the jury should have been discharged.
    Counsel then cite and comment upon: Section 6816, Rev. Stat.; sec. 6817, Rev. Stat.; 95 O. L., 344; Baker v. State, 12 Ohio St., 214; Mitchell v. State, 42 Ohio St., 386; O’Meara v. State, 17 Ohio St., 516; Exon v. State, 33 S. W. Rep., 336; State v. Black, 63 Me., 210; Wood v. State, 46 Nev., 59; 23 Am. & Eng. Ency. Law (2 ed.), 854; Commonwealth v. Sugland, 4 Gray, 7; People v. McDonald, 9 Mich., 150; People v. Crosswell, 13 Mich., 427; 87 Am. Dec., 774; Ballinger’s Ann. Codes & St., sec. 7062; Regina v. Neale, 1 Car. & Kir., 591; 1 Den. C. C., 36; Gosha v. State, 2 Ann. Crim. Rep., 589; 56 Ga. Bep., 36; 4 Blackstone (Cooley), 210, 212; Stephens v. State, 11 Ga. Rep., 236; Coates v. State, 50 Ark., 330; State v. Erickson, 45 Wis., 86; Oliver v. State, 45 N. J., 46; Regina v. Day, 9 C. & P., 722; Buchanan v. State, 52 S. W. Rep., 769; State v. Mahoney, 61 Pac. Rep., 647; State v. Tuttle, 67 Ohio St., 440; People v. Verdegreen, 39 Pac. Rep., 607; People v. Roach, 61 Pac. Rep., 574; 129 Cal., 33; State v. Clark, 29 N. J. Law, 96; Tarbox v. State, 38 Ohio St., 581; Mitchell v. State, 42 Ohio St., 383.

      Messrs. Tibbals <& Frank, on behalf of the court.
    Three questions are made by the prosecutor. The determination of the first will probably dispose of the others.
    First: Section 6816, Bevised Statutes of Ohio, in defining the crime of rape divides the offense into two distinct grades and classes, viz.: Carnal knowledge of a female person forcibly and against her will irrespective of the age of the woman; and- again, carnal knowledge by a male eighteen years of age with her consent.
    The indictment in the case at bar was laid under the second of these classes. The proof brought it up under the first. Was it proper under such a state of facts to direct a verdict for the defendant?
    The indictment in this case did not charge the accused with “Having carnal knowledge of a female person forcibly and against her will,” but on the other hand charged that he did “Unlawfully and knowingly carnally know and abuse one Edna Weaver with her consent, she the said Edna Weaver then and there being a female person under the age of sixteen years.”
    This brings us to a discussion of the meaning of the words in the statute “with her consent,” and the purpose of the legislature in providing a statute different in its language from the statutes in the other states — statutes that omit the words “with her consent,” and making it an offense to have intercourse with a female under the statutory limit. •
    An examination of the various statutes discloses that although they have certain features in common, they differ somewhát in certain particulars. The age fixed as the age of consent varies from perhaps twelve years, the lowest, to eighteen years, the highest. With but very few exceptions' these statutes are silent as to the consent of the woman. In one state the language, “with or without the consent of the woman,” is used; while Nebraska has a statute practically like ours. In the other states, so far as the statutes have come under our notice, there appears no reference as to the consent of the woman.
    In those states where the statute is silent on. the subject of the assent of the woman, we find that the courts have held that under the specified age, that force is to be conclusively presumed; or, that under the specified age, the woman is conclusively presumed to be incapable of consenting to her violation.
    It must be apparent, even upon a casual examination of our statute, that our legislature did not intend to adopt either of these rules so uniformly met with in other states. The framers of our law must have felt that between the ages of twelve and sixteen the presumption' of force would not necessarily be a true presumption; and the inability of the woman to give full and intelligent consent might in many cases be nothing more than the purest fiction. Our legislature, therefore, intending to avoid both fiction and untenable presumption, framed our law so that resort to them would not be necessary. This clearly appears in the provisions ' of section 6816 by which the maximum punishment for rape is inflicted upon the offender against the virtue of a child finder twelve years of age; while the minimum punishment is put upon him who carnally knows a female person under the age of sixteen years with her consent.
    We believe-that an examination of our' statute must lead to the conclusion that the two classes of cases mentioned and provided for are distinct and definitely defined classes, as much so as if they appeared in different sections of the statute. There are two distinct lines of cases. One where force is used as wé understand it at common law, including the violation of children of such tender age that they are actually incapable of consenting, and the second class embracing a lesser offense, an offense against public morals, an offense against society, an offense against woman, but not so aggravated from the fact that the woman is capable of. becoming a party to it by yielding her assent to the forbidden conduct.
    The authorities whieh throw any light upon this proposition are not numerous. Our answer to those cited by the prosecutor is, that the rule in those states where the statute is silent on the subject of the consent of the woman, and where there is a conclusive presumption that force is used, and that the woman is incapable of consenting, do not furnish the proper test for the rule of this state, where it is' clear that the legislature meant it to be understood that the presumption of force should not prevail where none in fact is used, and that a woman under the age of sixteen years is not necessarily incapable of consenting to her violation. If the words “with her consent” can be stricken from section 6816; and if the small punishment fixed by section 6817 upon the man who had carnal knowledge of a woman under the age of sixteen years with her consent has no significance, then perhaps the prosecutor may be right; but we contend that the language of section 6816 is significant; that the words “with her consent” are important; and we think must receive due consideration in the construction of the section.
    Counsel then cite and comment upon: O’Meara v. State, 17 Ohio St., 516; Jenkins v. State, 29 S. W. Rep., 1078; Morgan v. State, 50 S. W. Rep., 718; Nicholas v. State, 5 S. W. Rep., 239; State v. Hamey, 65 S. W. Rep., 946; Hall v. State, 58 N. W. Rep., 929; State v. Wheat, 22 Atl. Rep., 720.
   Shauck, J.

The statutory definition of the crime for which Carl' was indicted is found in section 6816 of the EeviSed Statutes:

“Whoever has carnal knowledge of a female person, forcibly and against her will, or, being eighteen , years of age, carnally knows and abuses a female person under sixteen years of age, with her consent, is guilty of rape.”

The ruling of the judge of the court of common pleas must have been prompted by the view that the phrase “with her consent” defines an essential element of the crime charged. At least that view pervades the brief in support of the ruling. To justify the ruling it is essential that the view be maintained since a variance is a disagreement between the allegations and the proof in an essential matter. In this view the omission of the phrase “with her consent” would have rendered the indictment fatally defective because of the failure to charge an essential element of the crime. It imputes to the legislature an intention to make an act of the character of this a crime if committed with consent, although under the circumstances it would not be if committed without consent. Obviously the terms of the statute do not require that it be so astonishingly interpreted. In this regard the effect of the statute is to nullify the consent of the female under sixteen years of age. It is as if with respect to such persons the provision was that the crime shall be complete notwithstanding her consent. To say that the view taken by the judge of the court of common pleas is necessary in order that the accused may have proper opportunity to prepare his defense is only another mode of presenting the same misconception of the statute. The essential elements of the crime charged are the' commission of the act by a male person more than eighteen years of age upon a female person less than sixteen years of age. Certainly the accused was to be tried for the offense charged and no other. It being alleged that the act was committed .with consent, it was not competent to show that it was done otherwise. The jury should have been instructed to return a verdict of guilty if the evidence established the offense charged but otherwise to acquit. The accused was not entitled to an opportunity to prepare to prove a fact which if proved would have left him guilty of the offense charged. The supposed necessity for proving that the act was done with consent was disposed of by the terms of the indictment, and it would have been obviated by the exclusion of incompetent testimony and by the proper instruction as to the circumstances under which the jury should convict or acquit.

Exception sustained.

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

Price, J.,

(dissenting).

In my judgment the exceptions of the prosecuting attorney should be overruled.

The accused was put on trial charged by indictment with having carnal knowledge of a. female person under sixteen years of age with her consent, he being at least eighteen years of age. The statute makes such intercourse rape. So is it rape to have carnal knowledge of a female person forcibly and against her will, and in such case the age of the accused need not be alleged or proven. The entire section defining the offense (section 6816, Revised Statutes) is as follows: “Whoever has carnal knowledge of a female person, forcibly and against her will, or, being eighteen years of age, carnally knows and abuses a female person under sixteen years of age, with her consent, is guilty of rape.” These' are separate and distinct offenses, having different penalties, as is manifest from the above section and the provisions of section 6817, Revised Statutes, as amended in 95 O. L., 344, under date of May 2, 1902, which was the law when, the case under review was tried. .

In Howard v. The State, 11 Ohio St., 328, this court speaking of the definition of the crime of rape, as the law then stood, laid down this rule: “The ■crime of a person in having.‘carnal knowledge of his ■daughter or sister, forcibly and against her will, ’ as defined in the fourth section of the act of March 7, 1835 (S. & C., 404), and the crime of a person having ‘carnal knowledge of any other woman or female child than his daughter or sister, as aforesaid, forcibly and against her will’ as defined in the fifth section of said act, are distinct and separate crimes, •and not merely different grades of the same crime.” In the course of changes by amendments, the several classes or definitions of the crime of rape have been grouped into one section, now section 6816, Revised Statutes, omitting the words “daughter or sister,” but raising the age of consent upon, the part of the female to sixteen years and fixing a minimum age of ■eighteen years for the male person in case the carnal knowledge is had with the consent of such minor female. But the rule as to “distinct and separate ■crimes” still applies to the statute as it is now found .and for the same substantial reasons. The legislature has seen fit to. pro vide that whoever “being •eighteen years- of age, carnally knows and abuses a female person under sixteen years of age, with her consent, is guilty of .rape.” And “whoever has. carnal knowledge of a female person forcibly and against her will * * * is guilty of rape. ’ ’

It is therefore plain to even the layman that the legislature has provided against at least two distinct and separate crimes. The intent to do so is seen in the description of the two offenses.

In the case at bar, it is alleged in the indictment that the accused, being eighteen years of age, had carnal knowledge of a female person, under sixteen years of age, naming her, with her consent. Under the latter part of the section defining this crime, it became necessary to allege and prove certain facts-essential to a conviction, to-wit: (a) That the accused was at least eighteen years of age; (b) that the female person was under sixteen years of age; (c) the carnal knowledge; and (d) that it was had with her consent.

An indictment, omitting either of these facts would be fatally defective. If each of the four facts must be alleged to make a sufficient charge of the crime, each fact must be established by the evidence, to warrant a conviction. If, under such indictment the proof should show that the accused was under eighteen years of age at the time of the intercourse, the variance would be fatal. If the proof should show that the female was over sixteen years of age at the time of the intercourse, the variance would likewise be fatal. And for as sound a reason, if the proof should show that the female did not consent, but resisted, the variance is fatal. This is true unless we abandon all our' knowledge of criminal pleading and evidence. In the case at bar, the prosecuting witness, the “female person,” denied that she consented to the carnal knowledge, and testified that it was had by force and against her will. The trial co art held the variance fatal, and directed a verdict for the defendant. It seems to me that this was the only course to pursue under the circumstances. He might have been held in custody to await the sitting of another grand jury, but that does not affect the question here. It is one of the fundamental* rules of our Bill of Eights, that one accused of crime has a right “to demand the nature and cause of the accusation against him and have a copy thereof * * It would seem axiomatic that he could not be convicted of a crime not embraced in the indictment. It was not the purpose of the penal section defining rape, to abolish former well-known rules of criminal pleading, prominent among which is the right to be informed by the indictment and with reasonable precision of the nature of the charge the accused is to meet; According to the majority opinion this rule is no longer in force,, at least in rape cases, and what an accused person may expect to meet, when brought to trial, is a surprise, as evidently occurred in the case under review.

The crime charged by the prosecutrix on the witness stand if contained in the indictment, would afford to the defendant a very different line of defense. In such case, the general character of the prosecutrix for chastity could be put in issue, while under the indictment here, no such evidence would be either necessary or competent, for it would be folly in the accused to show that the female was of lewd character and therefore likely to consent.

■Not only was this character of evidence cut off from the accused by the surprise in the new charge made on the witness stand, but his opportunity to prepare to meet the charge of force, by evidence as to time, place and circumstances involved in the violent consummation of the crime. The time, the place and the surroundings — the scene as laid by the prosecutrix might be such as would tend to disprove the entire charge, or render its truth highly improbable. The prisoner could not be expected to be ready with this line of defense on the accusation made in this indictment.

The opinion of the majority condemns the. action of the trial court, but it utterly fails to point out what other course it should have pursued. If there should have been a conviction under this indictment on the evidence adduced by the state, then it would follow by the same logic, that under an indictment for rape by force and against the will of the victim, there may be a conviction on proof that, the carnal knowledge was had, not by force, but with the consent of the female, which would be a degree of liberality seldom extended to bills of particulars before a justice of the peace.

It' is no answer to say that, the performance of the criminal act in either of the modes described by the statute is rape, and therefore the form of the charge is immaterial. As well say, that because it is larceny to steal a horse, or an ox, the property of another, a person may be convicted of stealing an ox under an indictment for stealing a horse.

Let us apply a few simple tests to illustrate the situation. If the prisoner had objected to the prosecutrix testifying to acts of force, or violence, what would have been the duty of the trial court? Force or violence are not alleged in the indictment. That form of rape is not charged by the state. On the contrary it alleges the carnal knowledge by one eighteen years of age of a female under sixteen with her consent. I think any lawyer who has come in touch with criminal pleading and practice will say, that the court should have sustained the objection to the evidence.

Again, if the evidence reached the jury, as it did in this case, how should the court charge upon the subject ? The usual explanation of the terms of the indictment would be idle, because there was no evidence to support one of its material parts. Should the court have told the jury they might convict on the evidence of rape by force, when no such charge is contained in the indictment? Surely not. The statute has clearly defined the crime, and the legislature, and not the courts, has power to change it.

Another rule of criminal procedure is that the verdict of the jury should respond to the allegations of the indictment. What kind of a verdict should have-been rendered in this case? Guilty as charged in the indictment? or, guilty as charged on the witness stand by the prosecutrix? If the former, there is no evidence to support an essential allegation in the indictment. If the latter, then the verdict would not respond to the indictment, but would be a finding of guilt of a distinct and different crime,

Again: when the court should come to administer the proper punishment, for which crime should the accused be sentenced — the one charged in the indictment? or, the one charged on the witness stand? It makes some difference, as we have suggested. On conviction of the offense charged in the indictment, the defendant may be sentenced to imprisonment in the penitentiary not exceeding twenty years, nor less than one year, or six months in the county jail, or workhouse, at the discretion of the court, and the court is authorized to hear evidence in mitigation or aggravation; while on conviction of having the .carnal knowledge by force and against the will of the victim, the lowest penalty is three years. These observations I think clearly show that the trial court committed no error.

Nor is this case helped out by the provisions of section 7216, Revised Statutes, upon the subject of “what is variance.” It does not provide, that one material element of the crime, as defined by statute and as alleged in the indictment, may be wholly ignored and its very opposite asserted in the testimony. And after enumerating the matters in which a variance may occur — none like the one at bar — the section concludes “unless the court before which the trial is had find that such variance is material to the merits of the case, or may be prejudicial to the defendant.” In this case the trial court found the variance material and to the prejudice of the defendant.

The reasoning of this court in Fox v. The State, 34 Ohio St., 377; Hagar v. State, 35 Ohio St., 268; and Pratt v. The State, 35 Ohio St., 514, is in point.

In Hagar v. The State, supra, this court decided that “an indictment charging that the prisoner broke into a store-room, is insufficient, under the statute (74 O. L., 248) making it an offense to break into a ‘store-house;’ and the defect is available to •him, although the objection was not made until the verdict had been rendered.”

In Pratt v. State, supra, it was held that “where the separate property of a wife has been stolen from the family residence, such fact alone will not authorize a conviction under an indictment laying the property in the husband.”

This holding was made although it was established on the trial that the husband as head of the family was in custody and control of the property stolen just as he had of all property in the house.

These cases were decided long after the adoption of our criminal code containing section 7216, Revised Statutes, on the subject of variance, and show that the established rules of pleading and practice in criminal cases, are still in force and must be observed, and I am unwilling to concur in the dangerous departure taken by the majority of the court.

Cbew, J. I concur in the dissenting opinion.


source: Caselaw Access Project

author: Davis, J.

license: Public Domain

text:
    The State of Ohio ex rel. v. Robins.

      .Surety bonds — Act of April 20, 1904 — Relating to giving of same ' —Invalid—Constitutional law.

    The act of the general assembly entitled “An act to amend section 3641c of the Revised Statutes of Ohio, relating to the giving of surety bonds,” passed April 20, 1904 (97 O. L„ 782), is unconstitutional and void, being in violation of article 1, sections 1 and 2 of the constitution.
    (No. 9232
    Decided January 3, 1905.)
    Mandamus.
    The facts appear in the opinion.

      Mr. Latvrence T. Neal, for relator.
    This act is, as we maintain, unconstitutional, and therefore, void, on several separate and distinct grounds.
    1. A necessary requirement of all legislation is that it shall not be unequal or partial in its character and effect.

      The right of equal prótéction to our people under the law is guaranteed to them, both by the constitution of our state and the constitution of the United States. Article one, section two, in the bill of rights in'our own state, after declaring that “all political power is inherent in the people, ’ ’ provides that “government is instituted for their equal protection and benefit;” and in the fourteenth amendment to the constitution of the United States we have a provision similar in character, it being by it provided that no state shall “deny to any person within it's jurisdiction the equal protection of the laws.” Bill of Rights, constitution of Ohio, article 1, section 2; constitution of the United States, fourteenth amendment.
    Class legislation, it would seem from these constitutional provisions, is not to be tolerated, under any guise. It is condemned and prohibited by them, and is, in all eases, invalid.
    This law is, upon this ground, unconstitutional and void. It makes an unjust and unjustifiable discrimination between surety companies and natural persons by giving to the former rights and privileges, which are denied to the latter; and if the giving 6f such exclusive privileges to these corporations does not constitute class legislation, we are unable to comprehend the meaning of the term.
    The exact language of the act is that “the execution or guaranteeing, as surety, of all bonds and undertakings for the faithful performance of official or fiduciary duties; or the faithful keeping, applying or accounting for funds or property or for one or more of such purposes, excepting bonds of the superintendent of insurance, and of notaries public, or of executors, administrators, guardians, trustees' or other fiduciaries, whose bonds are fixed by the court at an amount not in excess of $2,000.00, is hereby required to be by such company.or companies.”
    This requirement of the act can but be fatal to its validity. It abolishes personal suretyship on bonds, except bonds of the superintendent of insurance and notaries public, and except bonds of executors, administrators, guardians, trustees and other fiduciaries under $2,000.00 in amount; and, repudiating the principle that all stand iipon an equality under the provisions of the constitution, creates a favored class to which is extended a species of favoritism as odious as it is unjust.
    It can not, with any show of reason, be argued that two persons, have equal protection under the law, when one, in giving a bond as executor or administrator for $2,000.00 or less, can have under the law a bond executed by personal sureties approved and accepted; and the other, in giving a bond for the same purpose for $2,001.00, or any larger amoiint, is denied by law the right to execute a bond with personal sureties and compelled to have it executed by a surety company before it can be legally approved and accepted.
    It was upon this principle of. equal protection under the law, that this court held the act of April 20, 1894, imposing a direct inheritance tax to be unconstitutional. Rejecting and overruling every other objection urged against the validity of the act,, the decision was that it was unconstitutional because it exempted estates of $20,000.00 and under from taxation, and, in case the estate exceeded $20,000.00, it taxed the entire estate without any exemption whatever, and further discriminated against large estates by taxing them at a higher rate per centum than small estates. State v. Ferris, 53 Ohio St., 314.
    The same principle induced this court, in another ease, to declare unconstitutional and void an act of the legisláture authorizing an attorney fee not in excess of five dollars to be included in the costs of the plaintiff in an action before a justice of the peace for wages, in all cases in which the plaintiff was successful, when a demand in writing for such wages had been made by him, and such wages had not been paid within three days from such demand, and an additional fee not in excess of fifteen dollars in the court of the common pleas, if the judgment of the justice of the peace in favor of the plaintiff should, on appeal by the defendant, be affirmed. Coal Co. v. Rosser, 53 Ohio St., 12.
    The application of this principle is aptly illustrated by this court in another case of recent date, in which an act requiring stationary engineers to be examined and licensed was held to be unconstitutional because, in one section, it permitted licenses to be granted, without examination, to applicants who had been continuously employed as engineers for three years next prior to the passage of the act and denied the privilege to others who had not been so employed, and thereby arbitrarily formed a favored class. Harmon v. State, 66 Ohio St., 249.
    The cases in which the courts, state and federal, have applied the principle of no discrimination and equal protection under the law, are almost without number. The citation of a few of them will, however, fully subserve the purposes of this case: State v. Gravett, 65 Ohio St., 289; Williams v. Donough, 65 Ohio St., 499; State v. Gardner, 58 Ohio St., 599; Railway Co. v. Baty, 6 Neb., 37; Wilder v. Railroad

      Co., 70 Mich., 382; Chair Co. v. Runnels, 77 Mich., 104; Durkee v. Janesville, 28 Wis., 464; Holden v. James, 11 Mass., 396; Missouri v. Lewis, 101 U. S., 22; Barbier v. Connolly, 113 U. S., 27; Yick Wo v. Hopkins, 118 U. S., 356; Railway Co. v. Ellis, 165 U. S., 150; Commonwealth v. Clark, 195 Pa. St., 634.
    2. Another objection to the validity of the act in question is this. The legislature has, by one of its provisions, made a discrimination in favor of surety companies more objectionable, if possible,, than either of those which have been suggested, by actually assuming to delegate to these companies the power to determine what kind of a bond or undertaking any party or officer, other than the superintendent of insurance and notaries public, and executors, administrators, guardians, trustees and other fiduciaries whose bonds do not exceed $2,000.00 in amount, shall be required to give.
    While all parties or officers — save such as are within the exceptions stated — are required by the act to procure and file the bond of a surety company, there is no requirement that such company shall, on the application of a party or officer, furnish him with such bond. It is at liberty to reject his application and to refuse him a bond. And if,'upon such rejection of his application, the party required to give a bond shall make and file with the head of department, court, judge or officer, whose duty it is to approve and accept his bond, an affidavit that he has applied to a surety company for a bond and that his application has been refused or rejected by it, a bond with personal sureties may be given by him.
    It follows from this, therefore, that a surety company can by its own arbitrary act grant or withhold from a party the right to give a bond with personal sureties'; ánd we submit that it is not within the province of the legislature to invest these companies with any such power.
    • It is, in effect, a delegation of legislative power to surety companies; and the constitution and a wise public policy alike forbid the delegation of any such power to a private corporation. This is particularly true, when, as in this case, the power delegated is to be exercised upon the mere volition of an interested party.
    The following authorities, among others, fully establish this proposition: Harmon v. State, 66 Ohio St., 249; People v. Bennett, 29 Mich., 451; Senate, etc. v. Supervisors, 99 Mich., 117; Fogg v. Union Bank, 60 Tenn., 435.
    3. The constitutionality of this act may well be ■questioned on another ground. Courts of record have the inherent power to determine judicially as to the sufficiency of any security to be required from persons subject to their order. This power is beyond legislative interference. But the legislature in this act usurps this power of the courts, when it requires that all official bonds, recognizances and undertakings, except those of the superintendent of insurance and notaries public, and all bonds of executors, administrators, guardians, trustees and other fiduciaries, not in excess of $2,000.00 in amount, shall be executed by a surety company, and when it forbids the acceptance of any bond otherwise executed, although the sufficiency of such bond may, in the judgment of the court,' be beyond question, and the security offered by it may be higher and better than that of any such company.
    The fact that this limitation upon the right of the company to become thé surety upon any one bond is seemingly for the purpose of adding to the value of the security to be given, does not in any way detract from the force of our proposition, that the act in this respect undertakes to control, and does control, the judicial discretion of the courts. It arbitrarily takes away from the courts the power to judicially determine for themselves the question as to whether the company might not justify as surety for an amount greater than twenty per cent, of its paid up capital stock.
    It matters not, however, what the motive or purpose of the legislature may have been in imposing this limitation. If it has the effect, as claimed by us, of. interfering with the power of the courts to determine for themselves the sufficiency of the bond of any company tendered as security, it is invalid, and, by reason of its invalidity, renders the whole act unconstitutional. In re The Banking and Trust Co., 17 Pa. Co. Ct. Rep., 274; 4 Pa. Dist. Rep., 757.
    4.' There is still another ground upon which this act must be held unconstitutional.
    The right to acquire, possess and protect property is guaranteed to the people of this state by our bill of rights, and is declared by it to be one of the inalienable rights of man. Constitution of Ohio, Bill of Bights, article 1, section 1.
    This right includes the right tó 'make and enforce contracts. Palmer & Crawford v. Tingle, 55 Ohio St., 423; Cleveland v. Construction Co., 67 Ohio St., 219; Coal Co. v. People, 147 Ill., 66; Ritchie v. People, 155 Ill., 98; Fiske v. People, 188 Ill., 200; People v. Gillson, 109 N. Y., 389.
    This statute by its provisions interferes with the ■ right- to make contracts. It not only interferes with this right, but it absolutely denies to the people of this state the right to make contracts, which shall be beneficial to them.
    5. If an officer plead the authority of an unconstitutional act for nonperformance or violation of his duty, it will not prevent the issuing of a writ of mandamus. An unconstitutional law will be treated as a nullity by the courts. Board of Liquidation v. McComb, 92 U. S., 532; Davis v. Gray, 16 Wall., 220; Osborn v. Bank, 9 Wheat., 859; Norton v. Shelby County, 118 U. S., 426.
    6. The rule is well settled that courts and judges will be required by mandamus to approve and accept bonds as well as to perform other duties imposed upon them by law. The following cases relating to the approval and acceptance of bonds are directly in point: Adamson v. Lafayette County, 41 Mo., 225; Beck v. Jackson, 43 Mo., 117; Coates v. State, 133 Ind., 36; Bosely v. Woodruff, 28 Ark., 306; State v. Plambeck, 36 Neb., 401; Cox v. Rich, 24 Kan., 20; Church v. United States, 13 App. Cas., D. C., 264.

      Messrs. Goulder, Holding é Hasten, for respondent.
    Relator asserts that it was the duty of defendant to accept and approve the bond offered. This duty must be clearly shown before she is entitled to the relief prayed for. The position of defendant is that his duties have been defined and declared by the general assembly, and that he is prohibited by law from doing that demanded of him. Relator responds that the law is unconstitutional and void, in that it is in violation of article 1, sections 1 and 2 of the constitution of Ohio and of the fourteenth amendment of the constitution of the United States.

      .While the probate court is the creature of the constitution, its jurisdiction is exercised in accordance with laws passed by the general assembly, which has since the institution of the court made provision for procedure therein for the administration and settlement of estates. Nor do we think the right of the general assembly to enact laws for the prompt, efficient and complete administration and settlement of estates over ,which the constitution has given probate courts jurisdiction has ever before been questioned. These laws have been for the protection of creditors, heirs, devisees, and all interested in the distribution of decedents’ estates.
    The subject-matter of the act was, therefore, one for legislative consideration and action, and its constitutionality depends upon its operation and effect.
    That the general assembly has authority to legislate with reference to the administration and settlement of estates, and in furtherance of such purpose to require bonds to be given with sureties of sufficient property qualification, and to be approved by the probate judge, is in effect conceded by the allegations of the petition. And it seems to us it must logically follow that if such authority exist, the general assembly has discretion to determine what bonds will give needful protection to the property rights of persons in estates.
    It is to be noted here that relator is not the party interested in the bond and its sufficiency; that the law is not for her protection, but for the benefit and protection of those for whom she desires to act as trustee, and to save them harmless against loss resulting from her omissions and commissions.
    It is well settled that the act does not violate the fourteenth amendment to the federal constitution. Barbier v. Connolly, 113 U. S., 27; Railway Co. v. Humes, 115 U. S., 512; Lawton v. Steele, 152 U. S., 133; Addyston Pipe & Steel Co. v. United States, 175 U. S., 211.
    Nor does it contravene any provision of the state constitution. No right of any citizen is denied or infringed thereby. He is not deprived of his property or property rights, nor are the latter abridged or curtailed; nor is he denied the equal benefit and protection of law.
    The general assembly has for many years provided for the giving of bonds for the faithful performance of trusts and in,legal proceedings, and has required sureties to reside in the state and to •possess a property qualification, which it has also required to be submitted for approval of designated officers. The discretion exercised by it in this regard has never been doubted or questioned.
    Is there any unlawful or unjust discrimination in the provision fixing the amount at $2,000.00?
    It is certain that personal sureties have frequently failed to respond to their obligations, and of such general knowledge is this fact that it was not only the right of the general assembly to afford more ample and sufficient security to those whose property the state places in the hands of others for administration, if it could be done, but it was its duty so to do.
    It is also evident that the greater the financial obligation of personal sureties, the greater the liability of failure to respond, and will it be said that the general assembly has abused its discretion or exceeded its authority to exercise its discretion because in its judgment the liability of loss is so slight or has been so infrequent where the bond required is $2,000.00 Or less, that personal security is ample and sufficient! “If there are other persons requiring protection, such protection should be sought through the general assembly by increasing the protected class, rather than by removing all protection, through the action of the courts.” State v. Nelson, 52 Ohio St., 102.
    Such discretion has been permitted the general assembly in the passage of laws, and many discriminations are ‘found in our statutes. Thus, if the probable value of a decedent’s estate is less than $500.00, the probate court may direct the omission of an inventory, required in all other cases. We also find a discrimination in amount in our inheritance tax law, which this court has sustained.
    The general assembly may make reasonable classification of the subjects to which legislation shall apply. State v. Nelson, 52 Ohio St., 88; Lawton v. Steele, 152 U. S., 133; Minot v. Winthrop, 162 Mass., 113; Day v. Lawrence, 167 Mass., 371.
    . The law further protects those interested in that it fixes a maximum premium, in excess of which the surety company cannot demand.
    The law also contains provision to prevent surety companies from assuming obligations beyond their resources. In order that there may be no interference with the administration and settlement of estates or with the performance of duties exacted of trustees, the law further provides that if such company or companies do not desire to enter into the undertaking with the person selected and appointed as trustee,, that such trustee may give such bond or undertaking with such personal surety or sureties as may be required by law.

      Does the law abridge or deprive distributees of estates of their constitutional rights? Certainly a bond which affords them greater security than one executed by individuals does not impair any property rights they may have. Nor can it be claimed that-the right to receive property is an absolute one, to be enjoyed without any burdens being imposed upon the property by the state, such as are reasonably necessary for the general welfare and protection of the public and those interested in the estate, for “the right to receive property is under the control of the legislature, and it has the power to regulate and lay such burdens thereon as it may see fit within the provisions of the constitution.” State v. Ferris, 53 Ohio St., 325.
    The authority of the general assembly to require a bond in such matters and to dictate the qualification of sureties has never been disputed, and certainly the general assembly acted within its constitutional powers when it made the security of a character in which losses to those entitled to protection and indemnity will be prevented or minimized. That which conserves rights certainly does not impair or destroy them. That which protects persons in the enjoyment of rights does not deprive them thereof. Hence, we submit that whatever the bill of rights gave distributees has not been denied them.
    Does it infringe a constitutional right of the citizen to execute bonds and make contracts ? The general assembly has never been denied authority to restrain the right and liberty of contract if such restraint were imposed for the common public welfare. The right of giving bond has not been permitted to all citizens, but limited to those who have property qualification, and so long as the administration of estates is conducted in conformance with and in obedience to laws enacted by the general assembly, considerable discretion must be vested therein to determine the best means for accomplishing the just distribution of property and the enforcement of its laws regulating the administration. A law more surely guaranteeing the performance ■of the duties of the trustee, in whose custody the estate is placed, cannot be said to be a denial of the right to contract to one who wishes to become security for such performance. It will not be claimed that personal sureties are either seeking or obtaining happiness when they execute bonds, but it can be ¡said that the frequent insufficiency of such bonds has been productive of much unhappiness, discomfort and suffering, both to the indemnified and the indemnifier.
    In many instances the right to restrain the liberty ■of contract when for the common welfare has been exercised and upheld. As illustration, are statutes limiting the investment of trust funds to particular securities. Such restraint is also found in our laws .against usury. So in our exemption laws (Palmer v. Tingle, 55 Ohio St., 441), ánd in many other laws are such restraints exhibited.
    It may be contended that it is the granting of a special privilege to surety companies. Our constitution does not deny to the general assembly the right to grant special privileges. The very section of that instrument herein invoked (article 1, section 2) recognizes that right. Many rights are conferred upon corporations not enjoyed by individuals, although the latter, by association under contract between themselves, might be capable of doing the very things corporations are authorized to do. It has been the policy of the state to regulate the exercise of the special privileges granted. The general assembly has been especially careful in-making regulations for those who contract to indemnify against loss of life or property. It compels them not only to regard certain rules of conduct prescribed for their dealings with citizens, but also reserves to the state the right of constant examination of the finances and standing of all such companies doing business in the state, and further exacts of them the setting aside and placing in safe custody approved securities of the par value of $200,000 fox* the payment of their obligations. Such privileges may be of a character that the single individual cannot-enjoy, because of the regulations made and the restrictions imposed, but the mere fact that a law gives a special privilege is not reason sufficient to-declare it unconstitutional. The privileges granted to corporations are presumed to be for the public good and the coxümon welfare, and until it appear that they are an unreasonable interference with the rights possessed by others or are of a character expressly prohibited by the constitution, they will not be declared invalid. That'the provisions of this law do not interfere with the right of any citizen guaxanteed by the constitution and are not unreasonable, we have above shown, we trust.
    If its intention were to protect the citizen and the operation and effect of the law is to give better and greater protection to' the indemnified,'surely it is. within the power and authority of the general assembly so to dó. That it does give better protection will not be gainsaid, and the intention of the general assembly and its motive in passing the act should be presumed to have been a public one and not for private purpose, gain or favoritism. Indeed, we' may-add that courts cannot impute to the legislature any other than a public motive for their acts. And if the subject-matter of legislation be not prohibited by the constitution, the provisions of the law must' ,be clearly unreasonable before the courts will declare it invalid. Railway v. Cooper, 33 Pa. St., 283; Clark’s Estate, 195 Pa. St., 524; Johnson v. Johnson, 88 Ky., 279; Coleman, Admr. v. Parrott, 18 S. W. Rep., 525.
    A rule of court prohibiting attorneys and officers of courts from signing attachment, appeal and other bonds, was held valid. Wallace v. Scoles, 6 Ohio, 429; Love v. Shefflein, 7 Fla., 40; Tessier v. Crowley, 17 Neb., 210.
    Provisions requiring public officials, state, county, and municipal, to furnish bonds, we submit are also within the constitutional power of the general assembly.
    It is, therefore, evident; that the general assembly has power to pass laws for the conduct of the affairs of the offices created and existing, to designate the duties of public officials, and the manner in which they shall be performed, and before any person elected or appointed shall enter upon the performance of the trust, provide for the giving of bonds as security for their faithful performance, according to the oath of office and the laws of the state. This' court has said that-a bond is a “collateral security for the faithful performance of the officihl duties of the officer. ’ ’ State v. Blake, 2 Ohio St., 147.
    It has been said by this court that there is no con-, tract or property right in a public office; that it is a trust held for the benefit of the public; that the duty of a public official is a public duty conferred by pub-lie authority for public purposes; that the incumbent may be entitled to the emolument of the office if he perform the duties, but that he cannot and does not have under our system of government any property in the office itself, and that the emolument is a usual but not a necessary element to constitute the office.
    To prescribe the manner of election to a public office and the qualifications therefor, except as provided in the constitution, is an ordinary legislative function. If, as must be conceded, it is within the power of the general assembly to require security from public officials, it logically follows that .it has authority to determine the kind and sufficiency of the security to be received by the state.
    The statute does not interfere with the right to hold office, and as it does not require public officers to take from their emolument the amount of the premium necessary to obtain the bond, it may be said to have been unwisely generous, but such generosity is not denied the general assembly by the constitution. That body has the right where it exacts of county officials bonds which could not be obtained without the expenditure of money, to provide for payment from the public fund, as the duties of the office are performed for the public, benefit.
    In other words, if the general assembly considered it wise to have better collateral security by having the state pay for it, it was clearly within its legislative power.. We may add, it was also an exhibition of wisdom in the general assembly, which has passed more than three hundred special acts to relieve personal sureties from losses upon their obligations resulting from the maladministration of their principals as public officials, to require sureties which have their property in its hands or under its control sufficient to discharge all obligations to the state.. If losses caused by the maladministration of trustees be thereby prevented, it will be a consummation devoutly to be wished. Ex parte Buckley, 53 Ala., 42; Schuff v. Pflanz, 99 Ky., 97.
   Davis, J.

The relator, Jean D. McKell, was.appointed administratrix of her late husband’s, estate, and she was ordered to give bond in • the sum of $200,000. The relator immediately tendered a bond in the required amount; but the probate judge refused to accept it, solely on the ground that it was signed by personal sureties and not by a surety company, as required by the act of the general assembly, entitled “An act to amend section 3641c of' the Revised Statutes of Ohio, relating to the giving of surety bonds,” passed April 20, 1904 (97 O. L., 182). The probate judge was fully satisfied that the bond was sufficient in every other respect. The relator therefore prays • for a writ of mandamus commanding the respondent, the probate judge, to approve and accept the bond so tendered. The respondent answers that he did not accept and approve said bond because the said statute provides that any administrator’s bond in excess of $2,000.00 must be. executed and guaranteed by a surety company or companies authorized by the laws of Ohio to guarantee the fidelity of persons holding places of public or private trust, unless the person required to give; such bond shall make affidavit that he has applied to. such surety company or companies for such bond., and has been refused or rejected; that the bond, offered by relator being in excess of $2,000.00 and: not being executed and guaranteed by such- surety company or companies, but by personal sureties, and no affidavit, as provided by-law, having been filed,, he was prohibited by the aforesaid statute from accepting or approving said bond.

To this answer the relator has filed a demurrer.

It is insisted on behalf of the relator in support of the demurrer that this statute is unconstitutional.

The provisions of the act are so interdependent and interwoven that the whole- act must stand or fall together. It provides that the execution of all bonds for the faithful performance of official or fiduciary' duties, or the faithful keeping, applying or accounting for funds or property, or for one or more of such purposes, with certain exceptions, is thereby required to be by a surety company or companies. We are therefore not able clearly to perceive that the general assembly intended in any event to require bonds to be executed by- a surety company or companies in any one of the classes mentioned to the-exclusion of another. This being so if the statute is void as to administrators, or other fiduciaries, it is void as to public officers, and if void as to public-officers. it is void as to fiduciaries, and the contention Rere made as to the bond of an administratrix involves as well the question as to the validity of the-bonds of public officers.

- Liberty to contract is one of the inalienable rights-of man which is guaranteed to every citizen by the bill of rights (Constitution, article 1, section 1) subject only to such restrictions as clearly appear to be for. the general welfare. The mere fact that the general assembly has enacted a law which narrows the liberty of contract as to the whole people or as to a class of citizens, is not decisive. If it were So, the constitutional guaranty might be made a dead letter by bills passed through the procurement of interested parties or in response to the demands of extremists in times of popular excitement. It is the province of the courts to determine whether a given statute infringes the constitution, which is the supreme law, and therefore it is within the province of the courts to decide whether the common welfare demands a restriction of the right of individuals to contract freely for their own benefit or convenience.

It is the undoubted right of the general assembly to require bonds to be given “for the faithful performance qf official or fiduciary duties, or the faithful keeping, applying or accounting for funds or property, or for one or more such purposes,” and to make reasonable requirements as to execution, approval and security to effectuate fully the purposes thereof. But unless the public welfare should justify and require it, the power of the general assembly is so limited by the constitution, article 1, section 1, that it cannot deny or restrict the liberty of the officer or fiduciary to obtain or contract for a bond on terms satisfactory to himself. Before the enactment of this statute an officer was at liberty to present a bond signed by personal sureties or by a surety company or companies, as his own interest or convenience might suggest. The right of choice between the classes of sureties is now denied him. It is now made compulsory upon him to give bond signed by surety companies, and personal security is in effect abolished. It is very plain that the security companies may be greatly benefited by this legislation, but an adequate corresponding benefit or protection to the general public, such as would justify such a radical and drastic limitation upon individual rights, is not apparent. The amount of loss to the state, county, township or municipality on official bonds, or to the beneficiaries under bonds of executors, administrators, guardians, trustees or other fiduciaries, comparatively speaking, is trifling. Indeed it is possible that the loss is no greater than would result when the bonds shall be signed exclusively by incorporated companies, which sometimes become insolvent as individuals do. It is true that the loss, if any default occurs, falls on the sureties, and that there have been special acts of the general assembly for the relief of sureties in cases in which it was claimed that the principal was not in fault. Some of these acts are meritorious, many of them improvident and most of them unconstitutional. It argues nothing in favor of the legislation which is assailed here that sureties sometimes seek to. escape from the consequences of their contract of surety-, ship. The fact remains that those whose interests are protected by personal bond rarely lose. We have not been advised of any necessity for, or general demand for, the abolition of personal security and the substitution therefor of corporate security, and the reasons which we have given persuade us that the public welfare does not require it.

But further, not only is the person who gives .a bond deprived of the right to obtain it of whomsoever- and however he pleases, subject only to the requirement that it really protects and secures the obligee, but the obligee is compelled to pay a security company for protection. The burden is. not put on the. officer or fiduciary to. give protection, but on the public or estate to obtain protection. The requirement of the statute is that an executor, administratoi', guardian, trustee or other fiduciary shall give a security company as bondsman, and that the estate shall pay for it, which is a taking of private. property for private uses without compensation, and that a public officer shall give bond with a surety company as surety, the premium to be paid out of the public funds. The effect of the latter provision is to require the state, county, township or municipality to pay to the enrichment of security companies, each year, vastly more than it would lose by defaulting public officials; and it thus becomes evident that it would be more economical for the public to become its own insurer of the good faith of its officials, which would result perhaps in no official bond in any case. It does not seem to us, therefore, that any part of this statute was promoted by considerations of public necessity or public welfare, and thence it follows that it is an unconstitutional restriction upon the liberty to contract which is guaranteed by article 1, section 1 of the constitution of this state.

It is contended on the part of the respondent that no citizen has an inalienable right to act as a legal representative or public officer; that the general assembly has power to provide for the descent and distribution of estates and for the appointment and qualifications of executors and administrators, including the giving of bonds; that the general assembly has power to prescribe the manner of election to a public office and the qualifications therefor; and that it logically follows from these premises that the general assembly has, authority to determine the kind and sufficiency of the security to be given. The general soundness of this argument is not to be questioned; but it is pressing the conclusion too far to maintain that the legislature may go beyond the purpose of the security to be given, and may require -things to be done which do not increase the protection of the obligee, which abridge individual rights without contributing to the general welfare, and which enrich a designated class of sureties to the exclusion of all others. Such a conclusion would lead not only to violation of article 1, section 1 of our constitution, as already shown, but of article 1, section 2, also, which declares that “government is instituted for the equal protection and benefit” of the people. This basic principle of the constitution is also violated when executors, administrators, guardians, trustees or other fiduciaries, whose bonds are fixed at an amount not in excess of two thousand dollars, are excepted from the operation of the act. No good reason for this discrimination is apparent. If personal bonds are a public evil they should be abolished altogether. If bonds signed by surety companies are the only ones fit for the security of estates, all estates should be permitted to enjoy equally both the protection and the benefit. If any discrimination were necessary it would seem to be the better way to allow all estates, large and small, to procure personal bonds or security company bonds as they might be able or might prefer, instead of compelling the larger estates to pay tribute to the surety companies while the smaller estates, presumably less desirable risks to the surety compánies, are still permitted to give either personal bonds or bonds of security companies — if the latter do not reject their applications, as the statute provides that they may do.

We do not regard any of the cases cited for the respondent as decisive of the question now before us. The issue raised here is whether the general assembly may make security by security companies exclusive and compulsory. It is not whether corporations may be authorized to secure bonds, nor whether the person giving bond may at his option give a bond signed either by personal securities or by security companies.

Our conclusion is that the statute is unconstitutional and it is accordingly ordered and adjudged that the demurrer to the answer be sustained and a

Peremptory writ of mandamus allowed.

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


author: Spear, C. J.

text:
    Strauch v. The Massillon Stoneware Co.

      Bill of exceptions — Perfected according to act of October 22, 1902 — Becomes an original paper under section 6716, Revised Statutes — Sections 5S01, 5801a and 5802, Revised Statutes — Court procedure.

    A bill of exceptions, perfected in accordance with the terms of the act of October 22, 1902, amending sections 5301, 5301a, and 5302 of the Revised Statutes (96 O. L., 17), thereby becomes an original paper within the meaning of section 6716, and a journal entry ordering such bill to he made a part of the record is not necessary in order to entitle it to be considered by a reviewing court.
    (No. 8848
    Decided January 3, 1904.)
    Error to the Circuit Court of Crawford county.
    The case below was that of The Massillon Stoneware Co. v. A. Strauch, tried in the common pleas of Crawford at its February term, 1903, in which case the Company recovered judgment. - Strauch took a bill of exceptions and prosecuted error to the circuit court. That court, on motion of the Company, refused to consider and struck off the bill .of exceptions; and, there being no error otherwise shown, affirmed the judgment. Strauch brings error.

      Messrs. Harris & Sears, for plaintiff in error, cited and commented upon the following authorities:

      Railroad Co. v. Kernochan, 55 Ohio St., 306; Blinn v. Railroad Co.; Shriver et al. v. Beal, Assignee; secs. 5301, 5301a, 5301b, 5302, 5334 and 6716, Rev. Stat.

      Messrs. Finley & Gdllinger, for defendant in error, cited and commented upon the following authorities;

      Acheson v. Bank, 8 Ohio, 117 ; Baldwin v. State, 6 Ohio, 15; Hill v. Bassett, 27 Ohio St., 597; Felch v. Hodgman, 62 Ohio St., 312; Riverside Rubber Co. v. Manufacturing Co., 63 Ohio St., 66; Smith v. Board of Education, 27 Ohio St., 44; secs. 5202, 5301, 5301a, 5301b, 5334, 6709 and 6716, Rev. Stat.
   Spear, C. J.

The ground on which the motion to strike off the bill of exceptions was sustained was that there was no journal entry of the common pleas making, or directing that the bill of exceptions be, a part of the record. Whether this action of the circuit court was or not erroneous is the sole question in the case. Plaintiff in error contends that, whatever may have been the rule with respect to the necessity of a journal entry making a bill of exceptions a part of the record prior to the passage of the act of October 22,1902 ,(96 O. L., 16), the true intent o.f that act is to make such journal entry unnecessary, while the contention of the defendant in error is that no change in the particular named was made by that enactment.

The history of legislation in this state has been a tortuous one with respect to the perfecting of bills of exceptions, and it is not at all to be wondered at that confusion has arisen among legal gentlemen and that courts have differed in their construction t of these statutes; nor is it probable that any solution now offered will prove satisfactory to all the con-. testants. However, the members of this court, while recognizing that fair argument may be made on both sides of the contention, have encountered no insurmountable difficulty in disposing of the question presented by the record in this case, and have reached a conclusion with which they are reasonably satisfied.

It would not be a judicious use of space to here discuss the reasons for the rule stated in a number of decisions of this court to the effect that, under the statute as it existed prior to the act named, a journal entry ordering the bill to be made a part of the record was necessary in order to make it the duty of a reviewing court to pass upon the alleged errors shown by the bill. It may, however, not be out of place to briefly refer to the statute which has been regarded as having application to the perfecting of. such bills. Such reference will show, we think, that the statute bearing on this precise matter has been, until the passage of the act cited, substantially the same for nearly a century. It will appear also by reference to the reports, that the decisions of this court, with a solitary exception, have been uniform in holding that a journal entry making the bill a part of the record was essential to its sufficiency in a reviewing court. We think, also, that the understanding and practice of the careful lawyers throughout the state has been in accord with this current of decision. The first practice act to which we call attention is the act entitled “An act to organize the judicial courts, and regulate their practice,” passed February 23,1816, 14 O. L., 310. That act provides for the signing and sealing of the bill •of exceptions in order that the same may, “if such party desire it, be made a part of the record in such suit, if the same suit should be taken by writ of •error to a superior court.” With phraseology somewhat changed the provision has been preserved in meaning through the varióus amendments of the •statute down to and including the act of April 16, 1900 (94 O. L., 398), where, in an amendment to section 5302 of the Revised Statutes, it is phrased thus': “The bill of exceptions shall be filed with the pleadings, and, if the party filing the same shall request it, made a party of the record, but not spread upon the journals. The decisions of this court referred to which hold that the provision of statute requires thát the bill be ordered to be made a part of the record, some by direct language and others by inference, are: Hosmer v. Williams, Wright, 355; Baldwin v. The State, 6 Ohio, 15, and note; Acheson- v. Bank, 8 Ohio, 117; Black v. George, 26 Ohio St., 631; Burk v. Railway, same volume, 643; Hill v. Bassett, 27 Ohio St., 597; Potter v. Meyers, 31 Ohio St., 103; Fetch, Assignee, v. Hodgman Mfg. Co., 62 Ohio St., 312; Rubber Co. v. Midland Mfg. Co., 63 Ohio St., 66. These decisions rest upon the proposition that a bill of exceptions, to be effective, must be made a part of the record, and that it is not a part of the record unless expressly made so by an order of the court, giving effect to the motion or request of the •excepting party, and that such order is properly evidenced by an entry on the journal. That this construction .was generally, if not universally, accepted and followed in practice is shown by the Ohio text books upon the subject of forms of journal entries. See Wilcox Ohio Forms and Practice, 413; 2 Nash’s Pleadings and Practice, 1037: 2 Bates’ Pleadings, etc., 1009; Wild’s Journal Entries, 91; Whittaker’s Annotated Code, 241; Kinkead’s Instructions and Entries, 589; Winch & Hinman’s Journal Entries, 125. Each one of these learned authors approves a form embodying such order.

The purpose of this retrospect is to enforce attention upon the precise statute which has been regarded as applying to the authentication of bills of exceptions, and to avoid misleading impressions because of other sections of the statute not relating to the subject of such authentication. Section 5334, as amended April 21, 1890 (87 O. L., 236), by which it is enacted that: “The bill of exceptions shall be filed with the pleadings and papers, but not recorded unless the court for good reasons shall so order,” is cited and it is urged that it has an important bearing upon the question in this case. We think not, The amendment, if it has any force, but recognizes a rule already sufficiently established; it does not enact a new rule. Indeed it was extraneous to the real purpose and intent of the section as it stood prior to the amendment and appears to be simply an incongruous and wholly useless and mystifying addition to what before was clear, consistent and harmonious.

Having shown, as we think, that the decisions hereinbefore referred to were grounded upon the language of the original practice act, traced down to and made a part of section 5302 of the Revised Statutes, we inquire as to the effect of the amendment of October 22, 1902, upon the clause of this section under review. That clause, say the decisions, means that the bill shall not be regarded by a reviewing court as part of the record and thus presenting the alleged errors shown by the bill unless, in carrying out the request of the excepting party, the trial court has so ordered by an entry on the journal. That is to say, the clause referred to is the provision of the statute, and the only provision, which makes it necessary for the bill to become a part of the record. Now, section 5302, as it stood before the passage of the act of October 22, 1902, is by that act repealed, and we must look to the amendment then adopted for an expression of the legislative will upon the subject. We find that the amendment provides only:. “ Sec. 5302. It shall not be necessary to cause an entry to be made upon the journal of the court of the settling, allowance and signing of any bill of exceptions; but the signature of the trial judge, or other judge mentioned in section 5301a allowing, settling and signing such bill, shall be sufficient evidence of such fact.” Not a syllable respecting the necessity for making the bill a part of the record. This implies, as we think, a purpose to eliminate that requirement entirely, and with that eliminated, the previous decisions giving effect to this clause appear to have no bearing upon the question in this case.

How, then, is the matter left? What must the reviewing court have before it in order to justify consideration of the errors complained of in the bill? Now, it is true that jurisdiction to reverse or modify is, by section 6710, Revised Statutes, “for errors appearing on the record,” but this section does not undertake to point out what, for the purpose of review, is to be treated as part of the record. For this information we go to section 6716, where the question is specifically answered in this language: “The plaintiff in error shall file with his petition either a transcript of the final record, or a transcript of the docket or journal entries, with such original papers or transcripts thereof as are necessary to ■exhibit the error complained of.” Having provided, therefore, by the amendment to section 5302, that the authentication as to the settling, allowance and signing of the bill, is sufficiently attested by the signature of the trial judge, and by the preceding sections for the filing of the same by the clerk, we think it follows, at least as clearly as legislative intent is usually expressed in our statutes, that it was the intent of the legislature that a bill perfected in the manner pointed out by these sections, and filed, should become, within the meaning of section 6716, an original paper in the case “necessary to exhibit the errors complained of,” and properly a part of that which the reviewing court may review, and that a journal entry making the bill a part of the record is therefore no longer necessary.

Giving, effect to that conclusion the judgment of the circuit court will be. reversed and the cause remanded to that court with direction to consider the bill of exceptions, and for further proceedings according to law.

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


author: Summers, J.

text:
    Venedocia Oil & Gas Co. v. Robinson.

      Oil and gas contract — Right to enter premises to drill and operate for oil and gas — Grantor to have one-sixth of the product— Implied duty of lessee — Performance within ninety days — Or penalty payable by lessee — Lease becomes null and void, when — Law of contracts.

    1. A grant in consideration of one dollar of all the oil and gas under certain premises with the right to enter thereon for the purpose of drilling and operating for oil and gas excepting and reserving to the grantor the one-sixth part of all the oil produced and saved from said premises, to be delivered in the pipe lines with which the grantee may connect his wells, implies an engagement by the lessee to develop the premises for oil and gas.
    2. The time within which the implied engagement must be performed is postponed by acceptance of the sum specified in the condition of such grant that “in case no well is completed within ninety days from date hereof, unavoidable delay excepted, then this grant shall become null and void, unless second party shall pay to first parties, twenty-five cents an acre per year, payable by deposits at the - or directly to first party, after demand having first been made,” and does not commence to run until the end of the year for which payment is accepted, and the lease does not become null and void at the end of such year upon refusal of the grantor to accept payment for another year.
    (No. 8716
    Decided January 17, 1905.)
    Error to the Circuit Court of Van Wert county.
    Robinson, on December 16, 1901, made an oil and gas lease to C. S. King & Co., a copy of which is as follows:
    “In consideration of the sum of one dollar, the receipt of which is hereby acknowledged, H. O. Robinson and S. M. Robinson, first parties, hereby grant unto C. S. King & Co., second party, all the oil and gas in and under the following described premises, together with the right to enter thereon at all times for the purpose of drilling and operating for oil or gas, and to erect and maintain all buildings and structures, and lay all pipes necessary for the production and transportation of oil or gas taken from said premises. Excepting and reserving; however, to first parties, the one-sixth part of all oil produced and saved from said premises, to be delivered in the pipe line with which second party may connect his wells, namely: All that certain lot of land situated in the township of Liberty, county of Yan Wert, in the state of Ohio, bounded and de~. scribed as follows, to-wit: The east half of the southeast quarter,, section 8, town 3, range 2, containing* eighty acres, more or less.
    “To have and to hold the above premises on the following conditions: If gas only is found, second party agrees to pay one hundred dollars each year for the product of each well while the same is being used off the premises, and first parties to have gas. free of cost to heat all stoves in dwelling house during the same time.
    “Second party shall bury all oil and gas lines, and pay all damages done to growing crops by reason of burying and removing said pipe lines when so requested by first party.
    “No well shall be drilled nearer than 300 feet of house, bam or orchard without consent of first party.
    “In case no well is completed within ninety days from date hereof, unavoidable delay excepted, then this grant shall become null and void, unless second party shall pay to first parties, twenty-five cents an acre per year, payable by deposits at the---r- or directly to first party, after demand having first been made.
    “The second party shall'have the privilege to nse sufficient, gas, oil and water from said premises to operate machinery (water wells now on said premises excepted), and the privilege of .removing all their machinery and materials at any time.. It is agreed and understood by the. parties hereto when written conditions hereinafter provided for the drilling of additional wells after first well is completed, such additional wells must respectively be paying oil wells; if not further development shall be optional with second party.
    “If this lease is surrendered from any cause, such surrender shall not affect producing well or wells with ten acres surrounding them.
    “It is understood between the parties hereto that these agreements shall extend to and bind their heirs, executors, administrators and assigns.
    “Witness our hand this third day of December, 1901.”
    The lease was duly signed, witnessed and acknowledged, and filed for record with the recorder of Van Wert county, Ohio, and duly recorded. On December 18, 1902, King & Co. sold and duly transferred and assigned the lease to plaintiff in error. On February 2, 1903, Robinson entered into an agreement in writing with the defendant, W. C. Speaker, in which it was recited that in consideration of five dollars and the further consideration of valuable legal advice given to said first parties by second party, said advice being in regard to a contract made December 3, 1901, between the Robinsons and C. S. King, said first parties agreeing to use said legal advice as may be directed by second party,. and agreeing that if said advice shall result in. the , cancellation of the above-mentioned contract or if said second party shall surrender said contract, or fail to pay rental on same, that the first parties will then make a contract with the second-party as follows: (And then follows an oil and gas lease.)
    This lease was filed for record and duly recorded in the recorder’s office of said county. Rent under the first lease was paid to March 2,1903, and on that day the plaintiff in error tendered to Robinson as, rental the further sum of twenty dollars, which was refused. On March 6,1903, the defendant, Speaker, moved a load of lumber onto said premises for the purpose of erecting a derrick and drilling a well, and on March 7, 1903, plaintiff in error caused said material to be removed and itself placed a load of lumber on said premises with the intention of erecting a derrick and drilling a well. Plaintiff in error was prevented from drilling a well and thereupon commenced an action in the court of common pleas setting up its lease, the payment of rental, and averring that it had entered into possession of the premises for the purpose of erecting a derrick and drilling a well, and that it was in possession of the premises; it then sets out that Robinson is interfering with its said possession and that the defendants threaten to and will, unless restrained by the court, remove the lumber that had been by. it placed upon the premises, and will prevent the plaintiff from, drilling. For a second cause, of action it sets- out that a number of landowners, including Robinsons, desired to have a block of territory, undeveloped, tested for oil and gas, that King & Co. leased quite a. number of pieces- of property in the territory; and then it sets out what had been done, to develop the territory, and avers that at the time of the filing of the petition- no well had been drilled on any land in said block adjoining the land of defendants, Robinsons, nor had any well been drilled on any land outside of said block and contiguous to the land of the defendants which produced oil in paying quantities. It is unnecessary to set out this cause of action in full, but sufficient to state that its purpose was to set out facts which would show that the plaintiff had not unreasonably delayed drilling a well upon the lands covered by the lease. Plaintiffs prayed for an injunction to restrain the defendant from interfering with them in developing the- premises for oil and gas, and that the lease to Speaker might be declared null and void and be ordered to be cancelled. The defendants admit the averments of the first cause of action, as to the facts already stated. The court of common pleas granted the relief prayed for. The action was appealed to the circuit court which found for the defendants and dismissed the petition of the plaintiff. Error is prosecuted to this court.

      Messrs. Cable <# Parmenter, attorneys for plaintiff in error.
    First: The instrument set forth in the record and under which the plaintiff in error seeks to enter upon the land of defendants in error is a grant of all the oil underlying the land therein described, with the right to enter thereon for the purpose of developing the-same for oil and gas.
    The instrument grants the oil and gas, and also the land for the purpose of operating thereon for oil and gas. This is not a license, but is an absolute grant of the oil and a lease of the land for the purposes named in the instrument. Edwards v. McC

      lurg, 39 Ohio St., 41; Woodland Oil Co. v. Crawford, 55 Ohio St., 161; Kelley v. Ohio Oil Co., 57 Ohio St., 317.
    In every state in which the question has been raised (so far as we are advised) except Indiana, it has been uniformly held by the courts of last resort that oil and gas in place are part of the' realty and the subject-of grant, the same as coal, iron and other minerals. Kier v. Peterson, 41 Pa. St., 357; Stoughton’s Appeal, 88 Pa., 198; Duke v. Hague, 107 Pa. St., 57; Brown v. Beecher, 120 Pa. St., 590; Coal Co. v. Melon, 152 Pa. St., 286; Williamson v. Jones, 39 W. Va., 231; Oil Co. v. McIntire et al., 44 W. Va., 296.
    Second: The instrument in suit does not create a tenancy at will of the parties; it is based on a valid consideration and is not revocable at the will of the lessors.
    It it contended that the instrument relied upon by the plaintiffs in error creates a tenancy at will, and whatever rights or obligations are created by the instrument can be revoked by either party thereto. The instrument in question, unlike the one construed in Brown et al. v. Fowler et al., 65 Ohio St., 507, has no term of years specified therein, but is in many respects similar to the instrument referred to in Van Etten et al. v. Kelly, 66 Ohio St., 605.
    The instrument in controversy is based on a valid consideration, viz.: $1.00, the receipt of which is admitted in the answer of the defendants, Robinsons; it is further admitted that the plaintiff in error and those from whom it had purchased said instrument, had paid the rental in advance thereon to March 3,1903, and that on March 2,1903, the plaintiff in error tendered, in lawful money, to defendants, Robinsons, the sum of twenty dollars ($20.00) as rental under said instrument for one year in advance.
    The instrument in the case at bar has no term of years fixed for the drilling of a well; the plaintiff in error’ paid the consideration demanded by the landowner for the instrument; this consideration applied to the whole instrument and each clause thereof; hot to one clause, but, in the language of this court as above quoted, “for each clause and every part thereof:” One of the clauses of said instrument for which the lessee and his assigns paid, is the following:
    “In case no well is completed within ninety days from the date hereof, unavoidable delay excepted, then this- grant shall become null and void, unless second party shall pay to first party twenty-five cents an acre per year, payable by deposit at the ---or directly to the first party after demand having first been made.”
    The landowner did not require that the lessee should drill a well in any stated period of time; he gave the lessee the option of drilling’ a well within ninety days or (1) upon failure so to do, to have the lease terminate, or (2) to continue the right to drill in the future by payment of the stipulated rentals.
    The lessee paid for all these rights by the dollar consideration' mentioned in the instrument, and it is the duty of a court to enforce each and all of them; his right to terminate the lease by either of the methods therein provided, is a valuable, privilege of the lessee and assigns, and such options in. contracts are sustained by courts. Brown v. Fowler, 65 Ohio St., 507; Thayer v. Allison, 109 Ill., 180; Waterman v. Waterman, 27 Fed. Rep., 827; Gilbert

      & Ives v. Port, 28 Ohio St., 276; Estes v. Furlong, 59 Ill., 298 ; Hawralty v. Warren, 18 N. J. Eq., 124; Hall v. Center, 40 Cal., 63 ; Maughlin, v. Perry, 35 Md., 352; Backhouse v. Mohun, 3 Swanst., 434; Clason v. Bailey, 14 Johns., 484; Willard v. Tayloe, 8 Wall., 557; Hayes v. O’Brien et al., 37 N. E. Rep., 73; Preston v. American Linen Co., 119 Mass., 400; Grove v. Hodges, 55 Pa., 504; Barrett v. Dean, 21 Ia., 426; Cherry v. Smith, 22 Tenn., 19; Hayes v. O’Brien, 149 Ill., 411; Boyd et al. v. Brown, 34 S. E. Rep., 907.
    As no time was fixed in the contract when this right to thus extend the privilege of drilling a well should terminate, the law would and does intervene by providing that such option must be acted upon and conditions performed or abandoned within a reasonable time. Harris v. Oil Co., 57 Ohio St., 118.
    Where no time is limited, the law fixes a reasonable time to be determined by the circumstances of the case, and the inquiry as to a reasonable time resolves itself into an inquiry as to what time it is rational to suppose the parties contemplated, and the law will decide this to be that time which, as rational men, they ought to have understood each to have had in mind. Hanly v. Watterson, 19 S. E. Rep., 536; Fitzpatrick v. Woodruff, 96 N. Y., 565.
    Counsel then further cite and comment upon the following authorities: Simpson v. Plate Glass Co., 62 N. E. Rep., 753; Friend v. Mallory et al., 43 S. E. Rep., 114; Snodgrass v. Oil Co., 47 W. Va., 509; McMillan v. Philadelphia Co., 159 Pa. St., 142; s. c. 28 Atl. Rep., 220; Marshall v. Forest Oil Co., 198 Pa. St., 83; s. c. 47 Atl. Rep., 927; McKnight v. Kreutz, 51 Pa. St., 232; Glasgow v. Oil Co., 25 Atl. Rep., 232; Allegheny Oil Co. v. Snyder et al., 106 Fed. Rep., 764; Kenton Gas & Electric Co. v. Dorney et al., 9 Circ. Dec., 604; 17 C. C. R., 101; 4 Kent, 110; 2 Blackstone, 145; Doe v. Richards, 4 Ind., 374; Thayer v. Allison, 109 Ill., 180; Woodland Oil Co. v. Crawford, 55 Ohio St., 161; Lowther Oil Co. v. Guffey, 43 S. E. Rep., 101; s. c. 52 W. Va., 88; Foster v. Oil & Gas Co., 90 Fed. Rep., 178; Henne v. Oil Co., 43 S. E. Rep., 147; Gas Co. v. Eckert, 70 Ohio St., 127; Federal Oil Co. v. Oil Co., 112 Fed. Rep., 373; Federal Oil Co. v. Oil Co., 121 Fed. Rep., 674; Hancock et al. v. Glass Co. et al., 70 N. E. Rep., 149; Consumers’ Gas Trust Co. v. Littler, 70 N. E. Rep., 363; Consumers’ Gas Trust Co. v. Glass Co., 70 N. E. Rep., 366; Hukill v. Myers, 36 W. Va., 639; 15 S. E. Rep., 151; Thropp v. Field, 26 N. J. Eq., 82; Double v. Heat & Light Co., 172 Pa., 388; 33 Atl., 694.

      Messrs. Saltzgaber, Hoke & Osborn and Messrs. Daily, Simmons & Daily, attorneys for defendants in error.
    1. Contracts like the one in suit are not given the same construction as contracts relative to solid substance; nor are such contracts ruled by the strict and well established rules applicable to the law of landlord and tenancy contracts.
    2. The production of oil and gas is the real and rpoving consideration in the execution of contracts like the one in suit, and if such consideration is, or can be delayed, for an unreasonable time, a court of equity will declare the contract at an end.
    3. Some cases hold that one dollar is not a sufficient consideration for contracts like the one in suit.
    4. The provision of this contract that “This grant shall become null and void unless the second party shall pay to first party twenty-five cents per acre per year, ’ ’ etc., is very indefinite.
    “It does not specify how much further delay for drilling may he had by such payment or when such drilling shall begin or end. In case the clause had gone further and provided that in case such payment should bé made the right to drill under the terms of the lease should be extended to some definite time, force and effect could be given to -the clause, but as it is it is incomplete and fails to state what shall follow such payment.”
    5. Under none of the adjudicated cases, can the one dollar mentioned in the lease in question, form a consideration for more than the ninety days given for the completion of the well.
    6. A contract which does not bind both parties thereto is void for want of mutuality.
    7. “Where there is no performance and no promise to perform on one side, a promise to perform on the other side is without consideration and without mutuality and such a contract can be held void on either or both grounds.”
    8. The clause of this contract which says “In case no well is completed within ninety days from the date hereof, unavoidable delay excepted, then this grant shall become null and void, unless second party shall pay,” etc., does not constitute a promise or obligation to pay rental, and that the lessee had the option to drill or pay rentals to keep the lease alive and on breach no action would lie for the recovery thereof.
    9. Since the second party to the contract has the right to terminate it any time, the first party has the same right.

      10; The relation of landlord and tenant does not exist under this contract, no possession having been taken, and no oil or gas having been produced.
    11. A lessee does not acquire -any vested rights in the land, or the oil and gas thereunder, until possession is taken and oil and gas actually produced.
    12. Under such contracts as the one in suit, the oil and gas under the land cannot be sold or conveyed. No one can become the owner of oil or gas until.it is reduced to possession. G-as and oil not reduced to possession is not property, and is in- . capable of ownership.
    13. The right of search or exploration is the highest and greatest right or estate that can be given by such contracts as the one in suit.
    14. The consideration for an oil and gas lease is developments for oil or gas, not payment of monthly rentals, which are only in the nature of penalties for not developing.
    15. A liberal construction should be put upon written instruments, so as to uphold them, if possible, and to carry into effect the intention of the parties. Written contracts should be so construéd as to give effect to them, rather than the contrary, and when they are informal, illiterate and unskillfully drawn, the intent is to be ascertained, if possible, without regard to technical rules; and the court should give such meaning to the words as was. understood by the parties, resort being had to every part of the instrument, and the intent, when thus ascertained, is the governing rule.
    16. To ascertain the intention of the parties to a written contract, regard must be had to the nature of the instrument itself, the condition of the parties executing it, and the objects which they had in view. And if the words employed are capable of more than one meaning, they are to be given that meaning which it is apparent the parties intended them to have.
    17. Contracts like the one in question, before actual possession is taken, are options only, and the lessee is not bound to pay rental, or develop the land for oil or gas. Gadbury v. Gas Co. (Ind.), 67 N. E. Rep., 259; Federal Oil Co. v. Oil Co., 121 Fed., 674;. Federal Oil Co. v. Oil Co., 112 Fed., 373; Maxwell v. Todd, 16 S. E. Rep., 926; Twin-Lick Oil Co. v. Marbury, 91 U. S., 592; Coal Co. v. Hise, 23 S. E. Rep., 303; Brown v. Vandergrift, 80 Pa., 142; Steelsmith v. Gartlan, 44 L. R. A., 107; Huggins v. Daley, 99 Fed., 606; 48 L. R. A., 320; Foster v. Oil Co., 90 Fed., 178; Munroe v. Armstrong, 69 Pa. St., 307; Nat. Oil & Pipe Line Co. v. Teel, 67 S. W. Rep., 545; Western Pennsylvania Gas Co. v. George, 28 Atl. Rep., 1004; Indiana N. Gas. Co. v. Pierce, 68 N. E. Rep., 691; Parish Fork Oil Co. v. Gas Co., 51 W. Va., 583; 59 L. R. A., 566; Glasgow v. Oil Co., 25 Atl. Rep., 232; Brown v. Fowler, 65 Ohio St., 507; Van Etten v. Kelly, 66 Ohio St., 605; Knight v. Coal & Iron Co.,, 47 Ind., 105; Venture Oil Co. v. Fretts, 25 Atl. Rep., 732; Chandler v. Plate Glass Co., 20 Ind. App., 165; Reese v. Zinn, 103 Fed., 97; Eclipse Oil Co. v. Oil Co., 34 S. E. Rep., 923; Trees v. Oil Co., 34 S. E. Rep., 933; Turnpike Co. v. Coy, 13 Ohio St., 84; Ohio Oil Co. v. Indiana, 177 U. S., 190; Hall v. Vernon, 34 S. E. Rep., 764; Jones v. Oil Co., 44 Atl. Rep., 1074; State v. Oil Co., 150 Ind., 21; Heal v. Oil Co., 150 Ind., 483; Hukill v. Guffey, 37 W. Va., 448; Bettman v. Harness, 42 W. Va., 433; Eaton v. Gas Co., 122 N. Y., 416; Law of Petroleum and Natural Gas (Bryan), page 79, sec. 64; Broom’s Legal Maxims, 540; 1 Beach on Modern Law of Contracts, see. 702; Brooks v. Kunkle, 24 Ind. App., 624.
   Summers, J.

For what reasons the circuit court dismissed the petition we are not advised. The execution and delivery of the written instrument and the performance of its express conditions are admitted, excepting that it is averred that no well was drilled within said ninety days and that possession of said premises never was taken or attempted to be taken otherwise than as narrated on said seventh day of March. So that plaintiff’s rights are to be determined by the interpretation of the lease.

In Harris v. The Ohio Oil Co., 57 Ohio St., 118, it is held that in such a lease, while as to the extent of development there is an implied covenant on the part of the lessee that he will drill and operate such number of oil wells on the lands as ordinarily would be required for the production of the oil therein contained, the breach of such a covenant does not work a forfeiture of the lease but that the remedy is in damages, and that certain causes of forfeiture being specified in the lease others may not be implied.

In Brown et al. v. Fowler et al., 65 Ohio St., 507, a lease almost identical in its provisions with the one under consideration, excepting that the habendum clause limited it for a term of two years, and that it contained a surrender clause, was interpreted, and it was there ruled that one dollar was a sufficient consideration, that the leáse was not void for want of mutuality, and that a clause giving the lessee the right to surrender the lease at any time did not create an estate at will.

In Van Etten et al. v. Kelly, 66 Ohio St. 605, another similar lease was under consideration. It contained the following clause: “In ease no well is completed within thirty days from this date then this grant shall become null and void unless second party shall pay to said first party thirty dollars each and every month in advance while such completion is delayed.” It- was held that this gave the lessee the option by making the payment to continue the lease in force to the end of the term without completing, the first well, or upon failure to make such payment, to allow the lease to become null and void at the end of thirty days after the date of the lease.

The case at bar respecting the question under consideration is not distinguishable from Gas Co. v. Eckert, 70 Ohio St., 127, where it is ruled that a ' grant without limitation as to time of all the oil, etc., upon the following terms: “First, second party agrees to drill a well upon said premises within six months from this date, or thereafter pay first party $160.00 annually until said well is drilled, or the property hereby granted is reconveyed to the first party” is, after the expiration of six months and until a well is drilled, a lease from year to year at the option of the lessee, at an annual rental of $160.00,

These cases lead to the conclusion that the plaintiff has a. valid lease of these premises for oil and gas and that the lessor, by acceptance of the stipulated rental, has waived performance, of the implied engagement to develop the premises, to the end of the last year for which rent was paid.

We have not undertaken to determine whether the instrument technically is a lease or a license, or less than a lease hut more than a license. It is the agreement the parties have seen fit to make, and since it does not contravene any rule of law and is not controlled by, statute, by it tbe rights of the parties should be determined. In Consumers’ Gas Trust Co. v. Litter, 162 Ind., 320, a similar lease was under consideration, and it is there held that there was an implied engagement by the lessee to explore for oil and gas which, if not performed within a reasonable time, entitled the lessor to a forfeiture, but that the’ lessor’s acceptance from year to year of the stipulated annual rental was a waiver from year to year of performance, and that the lessor could not, at the end of the last year, claim a forfeiture by refusing to accept another payment, but that the relations of the parties then stood, with respect to the lessor’s right of forfeiture, precisely as they were at the moment the contract was executed.

This gives effect to the agreement according to the intention of the parties. In case of default after demand, the lease, by its express terms is at an end. By accepting the rental stipulated, performance of the implied engagement to develop the premises was waived to the end of each year for which it was accepted and, by refusing to accept the rent tendered on March 2, 1903, the lessor refused longer to waive performance.

The lease under consideration in Harris v. The Ohio Oil Co., supra, in terms granted the premises for the purpose of operating for oil and gas, while in the lease in the case under consideration the grant is of the oil and gas under the premises, together with the right to enter thereon for the purpose of drilling and operating for oil and gas. It is there held that a breach of an implied covenant does not work a forfeiture of the lease. Whether the lease under consideration is so different that a failure by the lessee to perform the implied engagement to develop the premises would be ground of forfeiture, we do not determine. It is sufficient to say that the refusal to accept rent for the ensuing year did not eo instanti terminate the lease, but left the rights of the parties respecting the implied engagement to develop the premises as they were at the time of the execution of the lease.

It follows that the circuit court erred in dismissing the petition, and, upon the admitted facts, this court rendering the decree that court should have rendered grants the relief prayed for in the petition.

Reversed.

SpeA.r, C. J., Davis and Shauck, JJ., concur.