author: Spear, J.

text:
    Corrigan v. Rockefeller.

      Arbitration — Chosen by parties to action in common pleas court —Agreement to submit law and facts for final determination — Prevailing party to have judgment — Award conforms to all agreement requirements — In absence of fraud is binding — An “opinion” submitted by arbitrators not competent evidence to impeach the award, when — Rules of evidence.

    1. Where the parties to an action .pending in the court of common pleas enter into an agreement of arbitration, the same not being made a rule of court, which agreement provides-for the submission to arbitrators in such agreement named, of all the issues of law and fact joined between the parties in the action, to hear and finally determine the same, and provides further that the award of the arbitrators shall be final and conclusive upon the parties, and that the prevailing party shall have judgment, and the arbitrators take upon, themselves the burden of the submission, and trial is had before them pursuant to its terms, and award is rendered which conforms in all respects to the requirements of the submission, such award, in the absence of fraud and of such manifest mistake as naturally works a fraud, is binding upon the parties and entitles the successful party to judgment thereon.
    2. A paper called an “opinion” signed by the arbitrators and delivered in such case by them to the counsel of the parties, accompanying the award, which paper purports to cite reasons for the decision of the arbitrators, but is not made part of the award nor in any way referred to in the award, and is not required by the agreement of submission, or the’ oaths of the arbitrators, is not competent evidence to impeach the award.
    3. Nor is the testimony of the arbitrators in such case competent evidence to impeach the award.
    (Decided December 16, 1902.)
    Error to the Circuit Court of Cuyahoga county.
    The controversy in this court grows out of a suit brought June 30,1897, by the plaintiff in error, James Corrigan, against the defendant in error, John D. Rockefeller, in the common pleas of Cuyahoga, wherein it was sought to obtain the rescission of a certain contract dated February 19, 1895, between the parties, whereby the plaintiff had sold to the defendant twenty-five hundred shares of what was known as Standard Oil trust certificates, said certificates having theretofore been pledged for the purpose of securing the defendant for sundry large sums of money, amounting to $275,000.00 or over, loaned by defendant to plaintiff prior to said date. The ground of the relief asked was that the plaintiff had been induced to enter into the contract by the fraud of the defendant, the said defendant being a trustee for the plaintiff, and, owing to his relation to the Standard Oil trust, having superior knowledge as to the value of the stock in question which he did not disclose to plaintiff as it was his duty to do, and that at the time of the sale, the stock was of much greater value than the price at which the same was sold; also that defendant had actually misrepresented to plaintiff the condition of the trust, and the value of the trust certificates. The relief asked was that the contract be set aside, that the certificates be returned to plaintiff, and that defendant be required to account for the earnings thereof during the time the same had been in his possession. Issue was taken by answer as to divers statements of fact, and especially as to all averments of fraud, actual or constructive, and new matter pleaded which it is not necessary to here repeat. As to this new matter a reply was filed denying the same, and thus the issues were made up.
    The cause rested in court until, on September 16, 1899, the defendant filed a supplemental answer alleging that the cause had been, by written agreement of the párties, submitted to the arbitrament of arbitrators, heard by the arbitrators in conformity with the submission, and an award made and returned to the parties finding all the issues for the defendant, and pleading further that by express written stipulations of the parties, the defendant was entitled to a judgment dismissing the action, and praying for such judgment. To the pleading was attached a copy of the agreement of submission, a copy of the award, and a copy of the stipulation.
    The controlling features of the agreement of submission here follow, viz.:
    “An action is now pending in the court of common pleas in and for the county of Cuyahoga, state of Ohio, in which James Corrigan is plaintiff, and John D. Rockefeller is defendant, being cause No. 60,101 upon the docket of the said court, and Mr. Corrigan and Mr. Rockefeller have agreed to submit and refer all the issues of fact and of law joined between the parties in the said action to the award and determination the said William G. Choate, of New York, William A. Lynch, of Canton, Ohio, and John W. Simpson, of New York.” * * * Also: “We, the said James Corrigan and John D. Rockefeller, have nominated and appointed, and do hereby nominate and appoint, ■ the said William G. Choate, of New York, William A.' Lynch, of Canton, Ohio, and John W. Simpson, of New York, to be arbitrators between us, to whom we refer all the issues of law and -of fact joined by the pleadings in the said action, to hear and finally determine the same.” * * * “The hearing before the said arbitrators shall be conducted under the pleadings and proofs in the said action and in all respects in the same manner as though the said issues were regularly tried in the court of common pleas in the state of Ohio.”
    It *is then provided that the persons named shall sit as a court; that the parties shall produce books and papers and other evidence, and the powers of the arbitrators are fully pointed out and expressed.
    “Hearings may be adjourned from time to time and from place to place by a majority of the arbitrators, but in all other matters all of them must concur. The award of the arbitrator's must be in writing, in duplicate, and signed by all the arbitrators.
    “The award of the arbitrators, made in accordance with this submission, shall be final and conclusive upon the parties. The parties agree each for himself that he will not withdraw from the arbitration provided for in this agreement, and that he will stand to, abide by and perform the award and determination of the said arbitrators made in accordance with the provisions of this agreement. Simultaneously with the execution of this agreement, the parties will execute and deliver to tlie said arbitrators to be held by them in escrow the following instruments: Plaintiff and his attorneys will execute and deliver a stipulation providing that judgment may be rendered in the action forthwith, dismissing the action in the common pleas upon the merits without costs as against the defendant, and will also execute and deliver a general release from himself to defendant from all claims, etc. The defendant will execute and deliver a stipulation providing that judgment may be entered therein as prayed in the petition.”
    These respective stipulations were to be delivered by the arbitrators each to the opposite party in case either should refuse to abide by the award, or withdraw from the submission.
    It was further provided for the substitution of other arbitrators in case any named should decline to serve; and Mr. Simpson declining 'to serve, William D. Guthrie, Esq., was substituted and served as one of the arbitrators.
    The award in hace verba follows:

      “In the Matter of The Arbitration between James Corrigan, plaintiff, and John D. Rockefeller, defendant, in an action (No. 60,101), pending in the Court of Common Pleas of Cioyahoga County, Ohio.

    “award.
    “This award, of William G. Choate, William D. Guthrie and William A. Lynch, in the above entitled matter, witnesses:
    “1. That heretofore, to-wit, on October 11, 1898, James Corrigan, of Cleveland, Ohio, and John D. Rockefeller, of the city of and state of New York, entered into an agreement in writing by which they agreed and bound themselves to submit and refer all the issues of law and fact joined between them in the action above referred to to the determination and award of William G. Choate, of New York, William A. Lynch, of Canton, Ohio, and John W. Simpson, of New York, as arbitrators between them; it being further provided in said agreement that in case either Mr. William G. Choate or Mr. John W. Simpson declined to serve as arbitrator, then the parties nominated and appointed Mr. William D. Guthrie, of New York, to be arbitrator in the place of the one so refusing to act. Said William G. Choate and William A. Lynch consented to act as arbitrators, but said John W. Simpson declined to act as such arbitrator, and thereupon said William D. Guthrie consented to act in that behalf.

      "2. That said William G. Choate, William D. Guthrie and William A. Lynch thereupon took upon themselves the burdens of said arbitration and fixed January 24,1899, at 11 o’clock A. M., as the time, and the office of said William G. Choate, at 40 Wall street, New York city, as the place for holding said arbitration, of which they gave to both parties due notice.

      “3. That at the time and place last mentioned the arbitrators met and the plaintiff, with the Hon. Stevenson Burke, as his attorney and counsel, and the defendant, with Yirgil P. Kline and George Wei wood Murray, as his attorneys and counsel, appeared before the arbitrators, when the arbitrators in the presence and with the consent of the parties severally took the oath required by the laws of Ohio and said written agreement.
    “4. Before the commencement of the hearing the three written instruments required by the written submission, and which had been executed by the parties as therein stipulated and delivered to the arbitrators to be held in escrow, were examined and verified, namely, the stipulation in said action providing for the entry of judgment executed by the plaintiff and his attorneys, also a general release executed by the plaintiff to the defendant and' a stipulation executed by the defendant and his attorneys, all of which were found to be in strict conformity to the requirements of said written submission, and the same are now held in escrow for the purposes and subject to the provisions of said original agreement of submission.
    “5. Thereupon at said time and place, the parties proceeded in due order with the introduction of their testimony, the hearing being adjourned from time to time to suit the convenience of parties, and-upon the conclusion of the testimony the parties were fully heard in argument by brief and orally, and on or about February 17, 1899, the case was submitted by both parties and thereupon the arbitrators took the matter under advisement.
    “6. Said hearing was conducted under the pleadings and proofs in the action above referred to and in all respects in the same manner as though the issues, therein were regularly tried in the court of common pleas in the state of Ohio, the arbitrators hearing and determining all questions as though they were sitting and qualified to sit and hear and determine said action as a judicial court, and passed upon all questions arising under the pleadings and upon the competency and relevancy of evidence as though said action were tried in said court.

      “7. On March 27, 1899, it appearing that the arbitrators would be unable to make and deliver their award on or before April 1, 1899, as required by said written agreement of submission, said parties on that day entered into an agreement, in writing, amending said original agreement so as to provide for the making and delivery of the award of the arbitrators on or before April 15,1899, with like effect as if said date had been written in said original agreement.
    “8. And upon April 12, 1899, it appearing that the arbitrators would be unable to make and deliver their award on or before April 15,1899, said parties on that day entered into an agreement in writing amending said original agreement so as to provide for the making and delivery of the award of the arbitrators on or before May 1,1899, with like effect as if said date had been written in said original agreement.
    “9. And now, on April 20, 1899, said arbitrators having fully considered all the matters and things submitted to them and having considered the allegations of the parties, the testimony submitted and the arguments of counsel, and being fully advised in the premises, do hereby make and publish this as their award, to-wit:
    “ (a) They find and determine the issues joined in said action, in favor of the defendant, and that he is entitled to have said action dismissed upon its merits with taxable costs against the plaintiff.
    “(b) They find and determine that the costs of the arbitration, including the fees and traveling expenses of the arbitrators, which are hereby taxed in the aggregate at $4,750.00 shall be borne, one-half by the plaintiff and one-half by the defendant, and that the expense of the stenographic minutes taken upon said hearing be also equally divided between the plaintiff and the defendant.

      “Executed in duplicate at the city of New York, April 20, 1899.
    “Wm. 6. Choate,
    “William D. G-uthrie,
    “Wm. A Lynch.”
    To this answer a reply was filed, admitting the execution of the papers, copies of which were given with the answer, but alleging that the award consisted of two parts, one called an “opinion,” and the other called “award,” both instruments being delivered to both parties at the same time, and as the award and decision of the arbitrators. A copy of the “opinion” was attached. The pleading further averred that the award was not in accordance with the submission in that the arbitrators did not and could not concur in opinion as to all the facts in issue, but disagreed, and did not at any time agree or concur in opinion as to the issues of fact joined in said action and submitted to them for decision, and had, therefore, no lawful authority to make any award, and the pretended award is null and void for want of authority. Other ■allegations followed averring irregularities in the proceedings of the arbitrators which, it was charged, rendered their award void and of no effect.
    The charge of failure to agree is based upon this paragraph of the paper called “opinion,” viz.:
    “Third — The arbitrators are not unanimous on the question whether the defendant had shown affirmatively that his purchase of the stock was for its full value at the time of the purchase, or that, in fact, he had no advantage in the transaction from the superior knowledge which he gained from his relation of trustee. Assuming, however, that the purchase was impeachable or voidable, on the ground that it was a purchase by a trustee from a cestui que trust, they are of opinion that the plaintiff was bound within a reasonable time after he was advised of his right to rescind , the contract, to signify his election to make such rescission unequivocally and to give notice thereof to the defendant which would fix the rights of the parties. It is quite evident from the testimony that when this contract was entered into neither party understood that the relation between them was such that the plaintiff had the right to rescind the contract, but within a very few weeks after the contract was ■executed the plaintiff was fully advised of this right, and in our opinion the defendant in good faith offered to give him the information which he sought which would have borne upon the question of the value of the stock so far as such information was within the defendant’s possession. The defendant offered to show him the statements, such as were accessible for the information of the stockholders, but the plaintiff saw fit not avail himself of this means of information. While he may have had a right to rescind he was not at liberty to play fast and loose with the defendant in the matter, nor to wait and see whether subsequent changes in the value of the stock made it for his interest to rescind, or to let the purchase stand, and to govern his action accordingly. This is a just and inflexible rule and applies with especial force to a transaction in securities of a fluctuating character, such as was the stock in question. The plaintiff was bound to make his election promptly. He did not do so, but waited about two years, when he commenced this action. We are of opinion that whatever right to rescind he ever had had then expired by reason of his not. having within a reasonable time made his election and notified the defendant thereof.”

      The cause was tried in the common pleas, and resulted in judgment for the defendant. From this plaintiff appealed to the circuit court, and in this court judgment was, also, upon trial, rendered for defendant At the trial the plaintiff offered in evidence the paper called “opinionalso the depositions of two of the arbitrators, which were received over the objection of defendant, and which testimony affords the basis for the complaint of plaintiff in error in this court

      Mr. Stevenson Burke and Mr. H. H. Poppleton, for plaintiff in error, cited and commented upon the following authorities:
    Morse on Arbitration, 340, 345; Montague v. Smith, 13 Mass., 396; Stanton v. Henry, 11 Johns., 133; Bhear v. Harradine, 7 Exch., 269; Hough v. Parker, 4 Dall., 285; Commonwealth v. Proprietors, 7 Mass., 399; Brown v. Hankerson, 3 Cow., 70; Lyle v. Rodgers, 5 Wheat., 394; Red v. Gibbons, 7 S. & H., 204; Lee v. Anstall, 11 Pick., 296; Shoens v. Gray, 2 Harring, 347; Gibson v. Powell, 5 S. & M., 712; Adams v. Adams, 8 N. H., 82; Richards v. Drinker, 6 N. J., 307; Barker v. Hough, 7 N. J., 428; Varney v. Brewster, 14 N. H., 49; Stone v. Phillips, 4 Bing. N. C., 37; James v. Thurston, 1 Clif., 367; Edwards v. Stevens, 1 Allen, 315; Wright v. Wright, 5 Cow., 197; Jackson v. Ambler, 14 Johns., 96; Randall v. Randall, 7 Est., 45; Mitchell v. Stavley, 16 Est., 58; Carnochan v. Christie, 11 Wheat, 446; Russell on Arbitration (2 ed.), 235; Allen v. Galpin, 9 Barb., 246; Tudor v. Scovell, 20 N. H., 174; Filley v. Pope, 115 U. S., 213; Anderson’s Law Dic., 222; Bouvier’s Law Dic., 467; Pomeroy’s Equity, section 885; Traill v. Baring, 4 DeG. J. & S., 318; Ship v. Crosskill, 10 L. R. Eq., 73;
      Hovenden v. Lord Annesley, 2 Sch. & Lef., 607; Rawlins v. Wickham, 3 DeG. & J., 304; Hadley v. Importing Co., 13 Ohio St., 502; Perry on Trusts, sections 194, 197; Pomeroy Eq. Jur., section 958; Pomeroy’s Eq., 901; Wyman v. Hammond, 55 Me., 534; Culver v. Ashley, 17 Pick., 98; Shearer v. Handy, 22 Pick., 417; Skipper v. Grant, 10 C. & R, 237; Price v. Popkin, 10 Ad. & Ell., 139; Cook v. Carpenter, 34 Vt., 121; Blanton v. Gale, 6 B. Mon., 260; Butler v. Mayor, 7 Hill, 329; Russell on Arbitration (3 ed.), 235; Bishop on Contracts, section 580; Benjamin on Sales, section 361; Anderson’s Law Dic., section 222; Berkmeyer v. Kellerman, 32 Ohio St., 253; Morse on Arbitration, 212; Woolen Co. v. Day, 12 Cush., 128; Railroad Co. v. Railroad Co., 14 Gray, 253; Merrill v. Gold, 1 Cush., 457; Cook v. Jaques, 15 Gray, 59; Woodbury v. Northy, 3 Greenl., 85; Spruck v. Crook, 19 Ill., 415.

      Mr. Virgil P. Kline and Mr. George Welwood Murray, for defendant in error, cited and commented upon the following authorities:

      Harker v. Hoyle, 7 N. J. L., 428; Stone v. Phillips, 4 Bing. N. C., 37; Varney v. Brewster, 14 N. H., 49; Richards v. Drinker, 6 N. J. L., 307; Lyle v. Rodgers, 5 Wheat., 394; Jackson v. Ambler, 14 Johns., 96; Commonwealth v. Proprietors, 7 Mass., 399; Upton v. Tribilcock, 91 U. S., 45; Vigers v. Pike, 8 Cl. & Fin., 562; Peters v. Delaplaine, 49 N. Y., 362; Bliss v. Pritchard, 67 Mo., 181; Emmitt v. Brophy, 42 Ohio St., 82; Smith v. Clay, 3 Bro. Ch., 640; Norway v. Rowe, 19 Ves. Jr., 144; Grymes v. Sanders, 93 U. S., 55; Twin-Lick Oil Co. v. Marbury, 91 U. S., 587; Hoyt v. Latham, 143 U. S., 553; Rolling Stock Co. v. Railroad Co., 34 Ohio St., 450; Sheldon v. Rockwell, 9 Wis., 183; Cox v. Montgomery, 36 Ill., 396; Gilmer v.
      Morris, 80 Ala., 78; Rice v. Hassenpflug, 45 Ohio St., 379; Scott v. Reedy, 5 Am. Law Rec., 367; Ormsby’s Admrs. v. Bakewell, 7 Ohio (pt. 1), 98; Morse on Arbitration, 47, 59, 293, 296; Railway Co. v. Burke, 54 Ohio St., 121; Beach v. Sterne, 67 Hun, 341; 1 Freeman on Judgments (4 ed.), section 2; Kochler v. Hughes, 148 N. Y., 510; Randall v. Railroad Co., 149 N. Y., 213.
   Spear, J.

At the threshold of the inquiry we are-met with the question as to the admissibility as evidence of the paper denominated “opinion,” and the depositions of the two arbitrators, inasmuch as the entire contention of plaintiff in error rests upon that-testimony. The specific purpose in offering the-“opinion” was to establish the claim of failure on the part of the arbitrators to concur as to a material question of fact necessary to be decided in order to enable the arbitrators to decide the ultimate issue between the parties, and the depositions were offered for that purpose and also to establish the charge of fatal irregularities in the conduct of the arbitrators. The award itself affirms that the hearing was conducted under the pleadings and proofs in the same manner as-though the issues therein were regularly tried in the court of common pleas of Ohio, and the arbitrators heard and determined all questions, and passed upon all questions arising under the pleadings. The effort of plaintiff was to show that the arbitrators did not proceed regularly, and did not determine or agree upon all the issues of fact because they were not unanimous on the question whether the defendant had shown affirmatively that his purchase of the stock was for its full value at the time, or that he had no advantage from his superior knowledge. In other words, the paper embraced the reasons, or mental methods of procedure, given out by the arbitrators, separate from their award, not purporting to be a. part of the award, not referred to in any manner in. the award, and not made in obedience to any duty enjoined by the submission agreement, or the law, or the oaths of the arbitrators, but presumably given out only in response to personal requests of counsel, is to be considered as equal in solemnity and conclusiveness as the award which they are bound by their oaths, and the terms of the agreement of submission, to render ; and the testimony of the arbitrators, given after-their duties had been fully performed, is to be-heard in order to contradict the award, and to demonstrate-that, in divers important particulars, the arbitrators had failed in the performance of their duties. That is. to say, that the arbitrators themselves by the written paper which, as an act of courtesy to. counsel they gave out, and their testimony by deposition, are to be used as witnessés to impeach their’ award.

The law favors the amicable adjustment of difficulties, and arbitration has been favored by the courts, in this state from early times. It is considered that arbitrators are constituted by the parties chancellors,, judges and jurors, having jurisdiction of the law and of the facts. In general the award is final. The reason is obvious. By procurement of the parties whose cause is in court, a tribunal other than that provided by the ordinary processes of law, has been substituted. The very purpose is to reach, in a speedy and inexpensive way, a final disposition of the controversy between them, and to avoid future litigation concerning the same matters. It is in furtherance of this purpose that, by the general rule, the award cannot be overturned by the dissatisfied party. And so the rule is that it cannot be impeached for error; nothing but fraud, in the parties or in the arbitrators, or such manifest mistake as naturally works a fraud, can be alleged to avoid it. Such is the holding in Ormsby v. Bakewell, 7 Ohio, 98. See, also, Rice v. Hassenpflug, 45 Ohio St., 377; Morse on Arbitration, 47, 49, 59, 293, 296, to the effect that courts construe the act of arbitrators with liberality, and with an inclination to support arbitration where substantially regular, and that an award covering the issues, made in good faith upon a full hearing, and in obedience to the submission, is final.

If the efforts of parties to adjust their differences by arbitration are to be encouraged, it would follow that trivial objections should not avail to defeat the purpose, and final effect should be given the award of arbitrators unless substantial grounds appear to the contrary. Arbitrators are not a court, nor in fact a jury, and yet they have attributes strongly resembling both. In reason, therefore, their solemn decisions should not be overturned lightly. The award which they render is intended to be their final judgment on the issues. And, as a reviewing court does not look to the opinion of the lower court for its decision, but to the judgment actually rendered, unless the judgment refers to the opinion so as to make it a part of the record (see Beach v. Sterne, 67 Hun, 341, affirmed in 143 N. Y., 634; Koehler v. Hughes, 148 N. Y., 507; Randall v. Railroad Co., 149 N. Y., 211; Freeman on Judgments, section 2), so the opinion of the arbitrators not in any way made a part of the award, or referred to in the award, would seem to be in like manner- irrelevant. Russell in his work on Arbitration, page 471, speaking of voluntary statements by arbitrators giving an explanation of the grounds of the award, says: “When the arbitrator is willing that the principle of his decision should be reviewed by the courts, he should raise the question by stating a case in his award. If the parties do not, during the reference think fit to ask for a case, and the losing party applies for a statement of the grounds j of his decision afterwards, the courts will not notice ; it.” Citing London Dock Co. v. St. Pauls, 32 L. J. Q. B., 30, which decision fully supports the text. We are of opinion that the paper called “opinion” was not competent evidence. If the proper construction and legal effect of it is that claimed by plaintiff in error, then, there is a flat contradiction between that paper and the award, while if that contention be untenable, and the “opinion” is consistent with the award then the “opinion” was of no consequence in determining the issue before the court. In either view it should not be considered.

But the same point was sought to be made by the testimony of two of the arbitrators. An arbitrator has no privileged standing to exempt him from being called, and it is settled that for some purposes he is a competent witness. It has been held that arbitrators are competent to prove what matters are presented before them, and what claims were or were not included in the award; also as to the time when and the circumstances under which the award was made. Morse on Arbitration, 214. It has been held, also, that he may be called to prove admissions made by the parties other than those for the purpose of bringing peace. Other holdings of like import appear in the books. On the other hand, Mr. Russell, at page 469, cites, without dissent, Shelling v. Farmer, 1 Stra., 646, as holding that “where the award was general and purported to decide all the differences, the court refused to allow the arbitrator to be called to prove that in respect of a claim made before him within the submission, he had refused to award compensation.”

An examination of authorities, those cited by counsel and many others, leads to the conclusion that there is conflict, as between the earlier and the later decisions, with respect to the conclusiveness of an award regular on its face, and that the later decisions incline to hold the rule much more strongly in the support of such awards than many of the old decisions, and to exclude the testimony of arbitrators under circumstances where before such testimony might have been admitted, although there are not wanting decisions of remote date which are in accord with the spirit of the more recent ones. But, be that as it may, it is believed that the weight of modern authority, adjudicating upon common law arbitrations, is against the admissibility of testimony by arbitrators when adduced to impeach their award. Such is the conclusion of Mr. Russell, and many late decisions are cited in support. He says, page 298: “When an award is good on its face, the cases do not all agree in showing how far the courts will allow it to be impeached by extraneous evidence of statements of the arbitrator, showing that he has decided on reasons not tenable in law. As the courts of law are now inclined to hold that awards are not to be impeached for mistakes in-law or fact not apparent on the award, they will, it is apprehended, at the present day in general reject such statements.” And this conclusion seems consonant with reason. As before stated, arbitrators are in a sense jurors. It is remarked by Mr. Russell at page 477 that: “An award for the plaintiff in an action for a nuisance will, in the court of chancery, on proceedings for an injunction to prevent the continuance of the nuisance, be regarded as highly as the verdict of a jury establishing the existence of the nuisance.” And if an award stands with as much favor as a verdict of a jury why should it not be surrounded by equal safeguards? We assume it to be now settled, as a general proposition in this state, that jurors cannot be called to impeach their verdict. The principle is distinctly held in Hulet v. Barnett, 10 Ohio, 459, where the ground is well stated by Grimke, J., as follows: “Now if there is any rule which can be considered as completely settled, and which has been framed for the purpose of setting bounds to the discretion of the court, it is that testimony of this kind should not be received. The rule is a most wholesome one, inasmuch as it is founded upon the wisest reasons of public policy. If an inquisition of this kind were to be established over the conduct of the jury, there is no knowing where it would terminate. It would produce a great deal more mischief than it could by possibility prevent. It would degrade the jurors in their own estimation, and in the estimation of the public, and they would soon lose that character of independence which gives value to the institution. The inquiry would not only be impossible in the great majority of instances, but it would work the deepest injury to the administration of justice. In those instances where the misconduct was the greatest, it would never be divulged, because those would be the very cases in which the jurors could not be prevailed upon to implicate themselves; and to permit those of the jury who were not parties to the misconduct complained of, to impeach the behavior of their fellow jurors, would open the door to every species of insinuation, and would detract from that relation of confidence which should be established among the members of the jury. The rule is a wise one which absolutely forbids the admission of such testimony.” See, also, Holman v. Riddle, 8 Ohio St., 384; Farrer v. The State, 2 Ohio St., 54; and Kent v. The State, 42 Ohio St., 426. In these two criminal cases it is sought to engraft exceptions upon the general rule, but the rule itself is not questioned, and the exceptions bear no relation to the present inquiry. As to the rule in other jurisdictions see Graham & Waterman on New Trials, 114; and authorities cited; Baylies on New Trials, 591, and authorities; and Hilliard on New Trials, section 63. Undoubtedly the infrequency of trials before arbitrators as compared with jury trials, renders the matter of less relative importance, but it is a difference of degree and not of kind. The principle is the same. Applying this rule it follows that the depositions of the arbitrators, at least in so far as their statements were sought for the purpose of impeaching the award, were incompetent. If they can be resorted to for any purpose, it is proper to add that they fully establish that the paper called “opinion” was not prepared by reason of any supposed duty to do so, but wholly because personally requested by the counsel, and from motives of courtesy to them, and that the arbitrators did not regard the “opinion” as any part of their award, but did regard the paper marked “award” as the only award and the only decision. The depositions also negative any charge of irregularity in their methods of procedure and in the conduct of their deliberations.

This conclusion makes it unnecessary to consider at length the other branch of the case. But it is not out of place to make brief reference to it. With respect to the claim that the award was void for the reason that the arbitrators did not agree upon all questions submitted to them, it was the judgment of the circuit court, and of the common pleas as well (which courts took cognizance of the “opinion” and of the depositions), that there being no question of fraud involved in the two questions not determined, and there being a clear way for the conclusion that followed on a question that was assumed favorable to plaintiff, the judgment was reached in a logical manner without the two questions on which the arbitrators did not agree being determined. That is, the questions to be found add nothing to the clear right the plaintiff had independent of them, viz.: the right of rescission. Not finding these facts would, therefore, not be prejudicial to the plaintiff, as he got all the advantages under the facts assumed, that he could have had if the facts had been found.

We see no reason to doubt the correctness of these conclusions, applying to them the rules either of logic or of law.

Judgment affirmed.

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


source: Caselaw Access Project

author: Btjrket, C. J.

license: Public Domain

text:
    Chisholm v. Shields, Treas.

      Legacy of husband to wife — Certain payments annually in lieu of dower — Bonds to be bought ancl interest paid to legatee — ■ Such legacy not annuity — Law of loills.

    A husband gave a legacy to his wife in his will as follows: “And I further give and bequeath to her, my said wife, in lieu of all dower the sum of eight thousand ($8,000.00) dollars annually, for and during the term of her natural life, and I hereby direct my executors to pay this legacy to my said wife in equal quarterly installments from the day of my death. * * * I desire _ to have my last will and testament carried out in the following manner, to-wit: For the payment of my wife’s legacy, I desire that a sufficient amount of my personal estate, either of stocks, bonds, or money, shall be used to purchase government bonds, or equally good bonds of such an amount that the interest thereon shall be sufficient to pay the quarterly installments of two thousand ($2,000.00) dollars, and that the same shall be paid to her promptly upon the very day they shall fall due.”

      Held: That such legacy does not constitute an annuity under our tax statutes, and that no part of said legacy is taxable against the widow until after the same shall be received by her.
    (Decided December 16, 1902.)
    Error to the Circuit Court of Cuyahoga county.
    Henry Chisholm, the husband of the plaintiff in error, made his last will and testament in the year 1876, which will, among many other bequests, contained the following: “And I further give and bequeath to her, my said wife, in lieu of all dower the sum of eight thousand ($8,000.00) dollars annually, for and during the term of her natural life; and I hereby direct my executors to pay this legacy to my said wife in equal quarterly installments from the day of my death. * * * I desire to have my last will and testament carried out in the following manner, to-wit: For the payment of my wife’s legacy, I desire that a sufficient amount of my personal estate, either ■of stocks, bonds, or money, shall be used to purchase ■government bonds, or equally good bonds, of such an amount that the interest thereon shall be sufficient to pay the quarterly installments of two thousand ($2,000.00) dollars, and that the same shall be paid to her promptly upon the very day they shall fall due.”
    Mr. Chisholm having departed this life, his. will ■was duly admitted to probate and record in the year 1881, and she elected to accept under the will. The United States bonds mentioned in the will, were purchased in 1882, and held by the executors, and the $2,000.00 was paid to her quarterly as provided in the will. She and the executors resided in Cleveland, ■and the estate was administered in Cuyahoga county.
    She did not list her said bequest for taxation and paid no taxes thereon. She wrns cited by the auditor to answer as to her taxable property, and he assessed taxes against her on said bequest for the years 1887 to 1892 inclusive, the tax without penalty for 1892 being $1,237.50, the total tax for all the years being $8,624.-30, and the penalties $4,312.15.
    The auditor as a basis for the taxation of the bequest ascertained its present value by means of tables of mortality and expectancy of life, fixing the value at $56,000.00 in 1887, and gradually decreasing the same each year, so that in 1892 the taxable value, as fixed by him, was $45,000.00.
    Thereupon she filed her petition in the court of common pleas to enjoin the treasurer from collecting said taxes and penalties, and a temporary injunction was allowed, which was made perpetual, except as to the taxes and penalty for the year 1892, $1,806.25, and as to that sum her petition was dismissed, and she appealed to the circuit court. Upon trial in that court the injunction was made perpetual as to the penalty for the year 1892, and also as to all taxes and penalties for previous years, but as to the simple taxes of 1892, $1,237.50, the injunction was dissolved and her petition dismissed. Thereupon she filed her petition in error in this court, seeking to reverse said judgment against her.

      Messrs. Williamson, Cushing & Clarke, for plaintiff in error, cited and commented upon the following authorities:

      Wetmore v. State, 18 Ohio, 77; McNeill v. Hagerty, 51 Ohio St., 265; Frazer v. Siebern, 16 Ohio St., 623; Myers v. Seaberger, 45 Ohio St., 234; Insurance Co. v. Cappellar, 38 Ohio St., 569; Insurance Co. v. La Rue, 2 Cin. Sup. Ct. Rep., 495; Payne v. Watterson, 37 Ohio St., 124; Ash v. Ash, 9 Ohio St., 383; State v. Stout, 49 Ohio St., 284; Allen v. Russell, 39 Ohio St., 336; State v. Stockley, 45 Ohio St., 304; Shotwell v. Moore, 45 Ohio St., 640; Income Tax Case, 157 U. S., 581; Orr v. Moses, 52 Me., 287; Nutter v. Vickery, 64 Me., 490.

      Mr. P. H. Kaiser, county solicitor; Mr. O. L. Neff, assistant county solicitor, and Mr. Ed. S. Meyer, for defendant in error, cited and commented upon the-following authorities:

      Wetmore v. State, 18 Ohio, 77; Frazer v. Siebern,. 16 Ohio St., 624; Hunt v. Hayes, 10 Circ. Dec., 388; 19 C. C. R., 151; Hayes v. Hunt, 63 Ohio St., 599; Myers v. Seaberger, 45 Ohio St., 232; Insurance Co. v. Ratterman, 46 Ohio St., 153; Hubbard v. Brush, 61 Ohio St., 267; In re Cooper’s Estate, 147 Pa. St., 322;
      Additon v. Smith, 83 Me., 558; People v. Insurance Co., 92 N. Y., 328; Nutter v. Vickery, 64 Me., 490; Van Allen v. Assessors, 3 Wall., 573; People v. Commissioners, 4 Wall., 244; Trust Co. v. Lander, 62 Ohio St., 266.
   Btjrket, C. J.

That the legacy of $8,000.00 to the widow each year for the term of her natural life is in character, under our taxing statutes, the same' as a like legacy to another person, is too clear for argument. The fact that she accepted under the will of her deceased husband does not turn the legacy into an annuity, if a like legacy to a son, a daughter, or a stranger in blood, would not constitute such annuity. In taxation the corpus of the property is taxed without reference to its source, or the means by which the owner acquired the same.

Section 2 of article 12 of the constitution imposes upon the general assembly the duty of passing laws taxing all property at its true value in money, with certain named exceptions. Under this section the general assembly has enacted our tax laws, and has made a general provision in section 2731 that “all property, real or personal, in this state, and whether belonging to individuals or corporations; and all moneys, credits, investments in bonds, stocks, or otherwise, of persons residing in this state” shall be taxed, etc.

It is claimed by counsel for defendant in error, that this legacy is an investment in an annuity, and being of the same general class as credits, investments in bonds and stocks, that it is included within the word “otherwise ” that all property must be taxed, and that as this legacy is property, it must also be taxed. But this section is only the declaratory section, and subsequent sections, especially 2736, 2737 and 2739 carry this declaratory section into execution, and prescribe the manner in which taxation is to' be imposed upon property therein specified; and property not so specified in any section, is not taxed; as for instance, investments in life insurance policies are not taxed, for the reason that no statute authorizes their taxation, although thousands, if not millions of dollars are invested in them,, many being'fully paid up, and'others having a surrender value. Such policies are clearly property, and very valuable property at that, but not taxed, because no statute specifically requires their taxation. The same is true of many other valuable investments. So that the word “otherwise” in section 2731 includes only such property or investments as are specifically mentioned and required to be taxed in the subsequent sections, and property or investments not so mentioned cannot be taxed. And in so specifically mentioning and requiring to be taxed, the property must be such as is ordinarily included in the description given, and not such as can be brought within the description by a process of reasoning only, or by a strained construction. The general assembly must be presumed to be able to fairly describe such property as it desires to tax, without resorting to a strained construction, or a course of fine reasoning.

True annuities are specifically mentioned as taxable in sections 2736, 2737 and 2739, and must therefore be held to be within the word “otherwise” in section 2731, and if this legacy is an annuity within the meaning of those sections, it is taxable. But is it such annuity? We think not.

An annuity, as understood in common parlance, is an obligation by a person or company to pay to the annuitant a certain sum of money at stated times during life or a specified number of years, in consideration of a gross sum paid for sucb obligation, and this in substance is the kind of annuity covered by ■said sections of the statute. In such an annuity there is no connection, in a tax sense, between the annuity and the gross sum paid therefor. The separation is as complete as where one loans money and takes a bond* therefor, in which case the borrower must pay tax on the money, and the lender must pay tax on the bond; or where a horse is sold on credit, and a note taken to secure the price, taxes must be paid on both horse and note, because they are completely separated, and the note is independent of the horse.

But in the matter of the legacy in question, the estate is retained by the executors, and they invest a sufficient amount thereof to bring in $8,000.00 of interest annually, and pay that interest to the widow, and thereby her legacy remains connected with the estate, ■and dependent thereon for its payment. In fact, payment must be made out of the estate, the legacy and estate being combined and both together constituting but one; and as the estate is and must be taxed on its full value, to tax her on her legacy as an annuity, would clearly be double taxation. It would be the same in principle as where a man has a building worth $200,000.00 and makes a lease thereof for, say, six years at a rental of $8,000.00, payable quarterly, $2,000,00 each quarter, and the authorities would tax him on the building, and then call the rental an annuity, or sum of money receivable at stated periods, and fix its present worth according to the tables at, say, $45,000.00, and thus compel him to pay tax on both building and rental. Or suppose a man should invest $200,000.00 in four per cent, railroad bonds having, say, six years to run, the interest payable quarterly, so that the interest would be a sum of money receivable at stated periods; would it be lawful to regard the interest as an annuity, and fix its-present worth at, say, $45,000.00, and compel him to-pay taxes on both bonds and interest? We think not.

In the case of a mortgage on realty there is no connection between the mortgage and the realty. They are owned by, at least, two different persons, and each must pay taxes on his holdings. The money to pay the mortgage does not grow out of the realty, but may come from the world at large. But in the supposed case of rental the rent grows, as it were, out of the-building, and both building and rental constitute but one property. So also as to the railroad bonds and the interest thereon. So also as to this estate and legacy. The legacy grows out of the estate each quarter, and on failure of sufficient interest, part of the principal may be taken, but even that part adheres to the estate, grows out of it, cannot be separated therefrom before payment to the widow, and payment cannot be made out of any other fund. The estate is, therefore, a trust fund in the hands of the executors for the payment of the quarterly installments of her legacy. It is a case of trustee and beneficiary, and’ not debtor and creditor. Neither is it an annuity; and to hold it to be such by construction, is to give the will a character which it has not, and take from it a character which it clearly has. This cannot be done.

Tt is therefore clear that until received by the widow each quarter, the legacy remains merged in the estate as a part thereof, that the taxes paid by the estate are all that can be lawfully exacted, and that she ■cannot be taxed on any part of her legacy until after its receipt by her.

Counsel for defendant in error cite and rely upon Wetmore v. State, 18 Ohio, 77, and claim that the case at bar must be ruled by that case. We do not think so. That case was decided under a constitution which did not require uniformity and equality in taxation as is now required. And while there is great similarity in the statutes they are not exactly alike, and at this day it is impossible to determine all the considerations that may have influenced the court. Besides, the case seems to have been meagerly argued, and the controlling questions entirely overlooked.

The court concedes that the matter ip question in that case was not strictly and technically an annuity, but argues that it was then included in “credits;” while here it is conceded that it is not included in “credits,” but is claimed to be included in the word “otherwise.” But even if that be so, we have already shown that such a legacy is not an annuity, ■and therefore not taxable. We are, however, free to say, that from all we can gather from the Wetmore case, the interest received at stated times by Mrs. Wetmore, did not constitute an annuity under our present tax laws, although the court found as the law then stood, that it was taxable as an annuity included in the term “credits.”

Judgment reversed and judgment for plaintiff in error.

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


author: Burket, C. J.

text:
    Zumstein v. Mullen et al.

      Organization of cities — Municipal code — Aei of October 22, 1902— .Legality of passage — Number of wards for Cincinnati — Cowstitutional law.

    1. The act of October 22, 1902, entitled “An act to provide for the organization of cities and incorporated villages and to restrict their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit so as to prevent the abuse of such power as required by the constitution of Ohio, and to repeal all sections of the Revised Statutes inconsistent herewith,” was legally passed by the general assembly and the same is not a special, but a general act, having a uniform operation throughout the state.
    2. Under said act the city of Cincinnati is entitled to only twenty-nine members of council, and of that number twenty-four are to be elected from wards, and five by the electors of the city at large.
    3. Under said act the city of Cincinnati must be subdivided into twenty-four wards, no more and no less.
    (Decided December 16, 1902.)
    Error to the Circuit Court of Hamilton county.
    The plaintiff in error filed his petition in the court of common pleas as a taxpayer on behalf of the city of Cincinnati, against Michael Mullen, W. W. Granger and Charles H. Urban, as follows:
    “Plaintiff says that the city of Cincinnati is a municipal corporation, being organized as a city of the first grade of the first class under the laws as existing prior to the enactment of October 22, 1902, and that under said act it becomes a city; that Charles J. Hunt is the corporation counsel of said city; that plaintiff is a taxpayer of said corporation and has in writing requested said Charles J. Hunt to apply for an injunetion as herein applied for, but that said request has been refused and neglected.
    “Plaintiff says that at the regular meeting of the board of legislation of the city of Cincinnati, held November 17, 1902, a certain resolution was passed authorizing the appointment of a committee to prepare ordinances for re-districting the city of Cincinnati into twenty-six wards; for fixing the number of members of the board of public service for the city of Cincinnati at five, and the number of members of the board of public safety at four; and for fixing the salaries and bonds of all officers to be elected at the election to be held on the first Monday in April, 1903, and the salaries and bonds of the members of the board of public safety to be first appointed.
    “And said resolution further authorized the said committee to prepare, or cause to be prepared, plans, maps or other drawings that may be required to show the new wards and the boundaries thereof, and to employ for this purpose such clerks, engineers, stenographers, draughtsmen and surveyors as they may deem necessary, and to pay all the expenses incident to the work of said committee out of the funds of this board appropriated for committee expenses and other incidentals.
    “Plaintiff further says that pursuant to said resolution the defendants, Michael Mullen, W. W. Granger and Charles H. Urban, were appointed a committee to carry out the purposes of said resolution, and are preparing to, and unless restrained by the order of this court will execute the duties devolved upon them by said resolution, and expend the moneys authorized for the purposes in said resolution stated.
    “Plaintiff says that said resolution was passed under the pretended authority of an act of the legisla* ture, passed October 22, 1902, entitled ‘An act to provide for tbe organization of cities and incorporated villages, and to restrict their power of taxation, assessment, borrowing money, contracting debts and loaning their credit so as to prevent the abuse of such power as required by the constitution of Ohio, and to repeal all sections of the Revised Statutes inconsistent herewith.’
    “Plaintiff says that the said resolution does not conform to the powers attempted to be conferred by said act in that it authorizes the re-districting of the city of Cincinnati into twenty-six wards, which is not the number required by said act; that the city of Cincinnati had at the last federal census a population of 325,902.
    “Plaintiff further says that the said act is invalid and of no force, for the reason that the same was irregularly passed in that all parts, amendments and substitutes did not have the concurrence of both houses of the general assembly.
    “Plaintiff further says that said act is invalid and of no effect in that it contravenes the constitution of the state of Ohio, being a special act conferring corporate power, and a law upon a general subject not having a uniform operation throughout the state.
    “Wherefore, plaintiff prays that said defendants, and each of them, may be enjoined from incurring any expenses or obligations on behalf of the city of Cincinnati as in said resolution authorized, and that a temporary restraining order may issue nending the final hearing of this cause, and that upon such final hearing the said injunction may be made perpetual, and for his costs and other relief.”
    A copy of said resolution is attached to the petition, but is here omitted, because it is not necessary to an understanding of the case.
    The defendants filed the following answer ;

    “Now come the defendants, and by way of answer admit that the city of Cincinnati is a municipal corporation organized as a city of the first grade of the first class under the laws as existing prior to the enactment of October 22, 1902; that under said act it became a city; that Charles J. Hunt is the corporation counsel of said city; that plaintiff is a taxpayer of said corporation, and has, in writing, requested said Charles J. Hunt to apply for an injunction, as therein prayed for, and that said request has been refused.
    “Defendants further admit that at a regular meeting of the board of legislation of the city of Cincinnati, had November 17, 1902, a certain resolution was passed, authorizing the appointment of a committee to prepare ordinances for re-districting the city of Cincinnati into twenty-six wards, for fixing the number of members of the board of public service for the city of Cincinnati at five and the number of members of the board of public safety at four, and for fixing the salaries and bonds of all officers to be elected at the election to be held on the first Monday of April, 1903, and the salaries and bonds of the members of the board of public safety to be first appointed.
    “Defendants further admit that said resolution, in terms and conditions, was as set forth in the petition; that pursuant to said resolution defendants were appointed a committee to carry out the purposes of said resolution, and are preparing to, and unless restrained by the order of this court, will execute the duties devolved upon them by said resolution, and expend the moneys authorized for the purpose in said resolution stated.
    “These defendants further admit that said resolution was passed under and by virtue of an act of the legislature, passed October 22, 1902, entitled ‘An act to provide for the reorganization of cities and incorporated villages and to restrict their powers of taxation, assessment, borrowing money, contracting debts and loaning their credit, so as to prevent the abuse of such power, as required by the constitution of Ohio, and its repeal of all sections of the Revised Statutes inconsistent herewith.’
    “Defendants deny that said resolution does not conform to the powers attempted to be conferred by said act in authorizing the re-districting of the city of Cincinnati into twenty-six wards, admitting, however* that the city of Cincinnati had, at the last federal census, a population of 325,902.
    “Defendants further deny that said act was irregularly passed in any of its parts, amendments and substitutes, and that it did not have the concurrence of both houses of the general assembly, and defendants say that said act was regularly and properly passed by both houses of the general assembly.
    “Defendants say that said act, as senate bill No. 1* was passed by the senate of the general assembly, with the concurrence of a majority of all the members elected thereto, and a vote thereon taken by yeas and nays, and entered upon the journal; that said bill was duly and regularly messaged to the house of representatives; that said bill, with certain amendments, was passed by the house of representatives of the general assembly, with the concurrence of*a majority of all the members elected thereto, and a vote thereon taken by yeas and nays, and entered upon the journal; that the house returned said bill to the senate with the amendments aforesaid for the concurrence of the senate; that the senate refused to concur in the amendments of the house and returned the bill to the house; that the house insisted upon its amendments, and asked for the appointment of a conference committee in the manner provided by the rules of the general assembly; that said conference committee was appointed to adjust the differences between the two houses upon said bill and made its report to both houses adjusting said differences; that both the senate and house of representatives, by constitutional majorities and by a yea and nay vote entered upon the journal, agreed to and concurred in the report of the conference committee, and no other vote was taken upon said bill; and that said report, with the adjustment of differences as aforesaid, was in words and figures the act involved in this case; and that the presiding officer of each house publicly, in the presence of the house over which he presided while the same was in session, and capable of transacting business, signed said bill and the same became a law.
    “Defendants further say that all these proceedings were taken in conformity with the rules of the senate and house of. representatives of the general assembly of Ohio, and in conformity with the uniform practice of said houses.
    “Wherefore defendants pray to be dismissed hence with their costs, and for all other and proper relief.”'
    The plaintiff filed a general demurrer to this answer which the court of common pleas overruled. The plaintiff not desiring to reply, the court rendered final judgment against him and dismissed his petition, to all which he excepted.
    The circuit court affirmed the judgment, and thereupon the case was brought here to reverse the judgments below.

      Mr. Ellis G. Kinkead, for plaintiff in error.
    Plaintiff in, error contends that thq new municipal code is invalid for two reasons: (1) That it is unconstitutional, and (2) That it was not regularly passed.
    Plaintiff further contends that if the act be valid, it requires a city of the size of Cincinnati, 325,902, to be re-districted into twenty-four wards, and not twenty-six, as attempted to be done in said resolution.
    I. It is not necessary to review the many cases upon the classification of municipalities. The latest two, State ex rel. v. Jones, 66 Ohio St., 453, and State ex rel. v. Beacom, 66 Ohio St., 491, clearly enunciate the principle that the classification by the legislature of municipalities beyond the classes directly authorized by the constitution, to-wit, cities and villages, is invalid.
    The method of classification of municipalities heretofore adopted has been by population. The new code introduces'a new method of classification equally unauthorized by the constitution. The essential difference between these methods is that the code establishes a variety of governments for cities, and authorizes a municipality through its legislative board to determine into which of these it desires to be placed.
    This is done through the departments of public service and of public safety. In section 138, the code provides that there shall be in every city a department of public service consisting of three or five directors, and that the number of said directors shall be fixed by council. In section 146, the code provides that there shall be a department of public safety administered by two or four directors, as council shall determine. These provisions effectually classify cities into the following classes:
    (1) Cities having a board of public service of three and a board of public safety of two members.
    (2) Cities having a board of public service of three and a board of public safety of four members.
    (3) Cities having a board of public service of five and a board of public safety of two members.
    (4) Cities having a board of public service of five and a board of public safety of four members.
    This classification is as rigid as any which might be based upon population, and differs from that method chiefly in that the municipality through its council is authorized to determine into which class it will go.
    In the present case, the resolution of the board of legislation of Cincinnati attempts to place that city in the fourth of the above classes.
    Plaintiff in error contends that the classification' of the constitution of all municipalities into cities and villages is exclusive of any other classification.
    II. The answer sets forth the method by which the legislature attempted to pass the municipal code. The said code was introduced into the legislature as senate bill No, 1, and was passed by the senate in due form. It was then duly and regularly messaged to the house, where it was amended and passed by the house in its amended form; the house returned the bill to the senate as amended for the concurrence of the senate. The senate refused to concur in the amendments of the house, and returned the bill to the house; the house insisted upon its amendments and asked for the appointment of a conference committee; said conference committee was appointed to adjust the differences between the two houses upon said bill, and made its report to both houses adjusting said differences: both the senate and the house of representatives by constitutional majorities and by a yea and nay vote entered upon the journal agreed to and concurred in the report of the conference committee, and the said report with the adjustment of differences was in words and figures the act involved in this case; the presiding officers of each house, in the presence of the house over which he presides while the same was in session, and capable of transacting business, signed said bill.
    The constitution provides, article 2, section 9, that on the passage of every bill, in either house, the vote shall be taken by yeas and nays, and entered upon the journal, and no law shall be passed in either house without the concurrence of the majority of all the members elected thereto. The steps taken in the house and senate as set forth above and shown by the record in this case do not conform to this provision of the constitution.
    This section of the constitution clearly requires the formal passage of every bill by yea and nay vote entered upon the journal. In the present case there was no vote taken upon the question, “Shall the bill be passed?” but only upon the question, “Shall the report of the conference committee be adopted and concurred in?” Plaintiff in error submits that this was not a compliance with the constitutional requirement, and that therefore the bill was never regularly passed.
    III. If, however, the bill be valid, the question then arises as to the number of members of council and the number of wards authorized by the code. This involves the construction of section 116, which is as follows:

      “Section 116. The legislative power of every city, shall be vested in, and exercised by, a council, composed of not less than seven members, four of whom shall be elected by wards and three of whom shall be elected by the electors of the city at large; provided, that for the first 20,000 inhabitants in any city, in addition to the original 5,000, there shall be two additional members of council elected by wards, and for every 15,000 inhabitants thereafter there shall be one additional member similarly elected. Provided, further, that whenever the total number of members of council is fifteen or more, one member of every five-shall be elected at large, and the remainder from wards. Members of council shall serve for a term of two, years and until their successors are elected and qualified.”
    There is no ambiguity in this section. The method fixed by it of determining the number of members of council is complicated,, but the expression of that method is clear.
    It provides for a minimum council of seven, four of whom shall be elected by Avards, and three of whom shall be elected at large. It next provides that for the first 20,000 inhabitants in any city, in addition to. the original 5,000, there shall be two additional members of council elected by wards. It is apparent that this provision fixes definitely the number of members for a city of 5,000 inhabitants at seven, and continues that number up to a city containing 25,000, when the council shall consist of nine members.
    In the first group of cities from 5,000 to 25,000, there are four councilmen to be elected-by wards and three at large. In the second group of cities of 25,000, there are six members elected by wards and three elected at large.

      From this point on, the statute provides that there shall be one additional mémber elected by wards for every additional 15,000 inhabitants, until the total number of members of council is fifteen or more, and that thereafter one member of every five shall be elected at large, and the remaining four of every five shall be elected by wards.
    [Counsel here insert in their brief the table to be found in Judge Burket’s opinion infra. — Reporter.]
    It will be seen by this table that a city of the size of Cincinnati should have a council consisting of twenty-nine members, twenty-four elected by wards and five at large, and that therefore the city should be 'redistricted into twenty-four, and not twenty-six, wards, as provided for in the resolution in this case.
    Without going through the entire table, the same result is reached by a simple analysis of the population, 325,000. For the first 25,000 there are to'be six members elected by wards and three at large or a total of nine. For every 15,000 thereafter there shall be one additional member, and, three hundred divided by fifteen giving a quotient of twenty, there áre twenty additional members, in all, twenty-nine members. Now, the subdivision of this total of twenty-nine is provided for by the last proviso of this section, declaring that whenever the total number of members of council is fifteen or more one member of every five shall be elected at large, and the remainder from wards.
    For a council of twenty-five members this would mean that five should be elected at large and twenty by wards. For a council of twenty-nine, this number not being sufficient to add a member at large, there are four added to twenty, and the total membership of twenty-nine is divided into five members elected at large and twenty-four by wards.
    No other construction of this section will give full force to every proviso contained therein, and it is respectfully submitted that in a city of the size of Cin cinnati there should be a council of twenty-nine members of whom five should be elected at large and twenty-four by wards; and that, further, the city «f Cincinnati should be re-districted into twenty-four wards, and not twenty-six, and the committee appointed for the purpose of redistricting the city into twenty-six wards should be restrained from expending any funds appropriated for that purpose, such expenditure being clearly unauthorized by law and a misappropriation of the corporate funds within the meaning of sections 1777 and 1778.

      Mr. Chas. J. Hunt and Mr. Wade H. Ellis, corporation counsel, for defendants in error.
    1. The grounds upon which plaintiff in error claims that the act in controversy in this case is unconstitutional are not well taken. We need not argue again the questions of classification under the constitution of Ohio. They may be regarded as settled.
    Taking the Toledo and Cleveland cases, in the 66 Ohio State, to the utmost limit to which they may be said to go, we find nothing in the act in controversy that offends against the principle laid down in these decisions. Even if it be true that there can be no classification of municipalities in this state, except that which divides them into cities and villages, the new municipal code is constitutional, for that is the only division it makes.
    But plaintiff in error says that this act introduces a new method of classification and establishes “a variety of governments for cities,” authorizing the council in each to determine into which class it desires to be placed. We submit that there is no variety of governments authorized. There is only one form oPgovernmeni for each city and one form for each village in the state. The fact that one city may have a board of public service, consisting of three members, and another may have a board of public service, consisting of five members, does not produce different forms of government in the two cities. Each city is required to have a board of public service. The objections to special acts, applying to particular grades and classes of municipalities, and arising before the passage of the new code, went to the point that they contravened either section 26 of article 2 or section 1 of article 13 of the constitution. The present act clearly does neither. The contention of plaintiff in error must be founded" upon section 6 of article 13, which ordains that the general assembly shall provide for the organization of cities and incorporated villages by general laws, and to sustain his contention this provision must be held to mean that, not only shall the legislature provide the same form of government for each city and the same administrative boards, but that each board must have the same number of members. We submit that, though it be assumed that each city must have a board of public service and a board of public safety, if such boards are established in any city, yet, it can not be said that one city having a board of three members and another having a board of five members, each with the same powers and duties, is organized under a different form of government. Guckenberger v. Henderson, 66 Ohio St., 692.

      IT. The pleadihgs, as stated by the brief of counsel for plaintiff in error, set forth clearly the manner in which the act in controversy was passed. It was passed just as the general assembly of Ohio has always passed bills reported from a conference committee. It was passed in accordance with the rules •of both houses and the uniform custom of the legislature. This is set out in the answer and admitted by the demurrer. The authorities are all one way upon the proposition, that, where a bill has passed one house of the legislature, and subsequently passed the other house with amendments, and, in each instance, by constitutional majority and by a yea and nay vote, the only questions thereafter arising' upon said bill are either, first, that the house in which the bill originated shall concur in the amendments, or, second, that the house which passed the bill with the amendments shall recede from its action upon the amendments, or, third, that both houses shall concur in the report of a conference committee appointed to adjust their differences. The cases upon which we submit this question arise in states having constitutional provisions identical with our own.
    The constitution of Ohio, article 2, section 9, requires that, “on the passage of every bill, in either house, the vote shall be taken by yeas and nays and entered upon the journal; and no law shall be passed in either house without the concurrence of a majority oí all the members elected thereto.” In the present instance, this requirement was fully complied with. On the passage of this act the vote was taken by yeas and nays, in each house and entered upon the journal, and a majority of the votes in each house were recorded in the affirmative.
    The report of the conference committee, adjusting the differences between the two houses, was, likewise, concurred in by a yea and nay vote, and by a majority in each house. To construe this provision of the constitution, as requiring that the question, “Shall the bill pass?” must be again put after it has already passed each house, and the only question is upon the one house concurring in the amendments of the other, or upon both houses concurring in the report of a conference committee, would be to require a vain thing and would be to regard the bill as a new bill every time it was amended in any way. Nelson v. Haywood Co., 20 S. W. Rep. (Tenn.), 1; McCullough v. State, 11 Ind., 424; State v. Buckley, 54 Ala., 612; People v. Chenango Co., 8 N. Y., 317; Norman v. Kentucky Board of Managers, 20 S. W. Rep. (Ky.), 901.
    But it is admitted in the case at bar that this act was passed in accordance with the rules and the uniform practice of the general assembly. We submit, therefore, that, even if the mode of procedure were not strictly in accordance with that prescribed by the constitution, the bill, nevertheless, became a law. Fordyce v. Godman, 20 Ohio St., 1; Miller v. State, 3 Ohio St., 475; Division of Howard County, 15 Kan., 194.
    III. Cincinnati, a city having a population of 326,000 inhabitants, must have twenty-six wards, twenty-six councilmen elected ’ by wards, and six elected at large, a total of thirty-two councilmen.

    If we examine sections 1655a.., 1672, 1672-6 and 1545-89, Revised Statutes, we find that in cities and villages, divided into wards, a specific number of councilmen must be elected from each ward, but as under •Section 1628, Revised Statutes, the number of wards in a city or village is left to the discretion of council, the number of councilmen is therefore fixed by council itself. No court, however closely it may have hewn its way back to the constitution, has ever intimated that the vesting of such discretion in the council by proper laws, was unconstitutional. If, under the new ■code, the number of council is in any way dependent upon the action of council itself, there would be nothing unconstitutional in so doing, and in constructing the new code, if we find that such discretion is left in council, we can not assume that its exercise is restricted except as we find restrictions by express-terms or necessary implication therefrom.
    The general clause of section 116 of the new code,, gives.a discretion to council as to the maximum number. The limitations are found in the provisos.
    The sections of the new code pertaining to the number of councilmen, the manner of their election and the number of wards, are sections 116 and 117. Reversing present methods under which the number of members in council is regulated by the number of wards, the new code provides in section 117 that the number of wards is to be regulated by the number of councilmen to be elected by wards; and, further provides, that all councilmen are to be elected by wards or at large. Section 116 of the new code fixes the number of councilmen at a “not less” or minimum number, limiting the maximum number in part by an' express direction as to the number of members to be. elected by wards, and in part by the proportion which the number of members elected at large must bear to the maximum number of councilmen.
    Admitting, as we all must, that there is at least apparent ambiguity or conflict in the different clauses and provisos of the section, (116 and 117) we must,, if possible, in accordance with the rule laid down in Medical College of Ohio v. Zeigler, 17 Ohio St., 52, at page 67, so read the act that the construction adopted will be fairly deducible from a full consideration of the whole section and such as can be made to harmonize with the main purposes of the act and all the provisos therein. When we have obtained such construction, then we have obtained the true construetion. Subordinate to this governing principle, there are other rules of construction.
    If some clauses are clear and others ambiguous, the ambiguous clauses musttgive way, if necessary, to the operation of clauses clearly expressed; for the legislature must be presumed to be consistent with itself, and if in one clause the legislature has expressed its intention clearly, it must be presumed that it is still of the same intention until it appears that such intention iis modified. Endlich on Statutory Construction, section 182; Wayman v. Southard, 10 Wheat. (U. S.), 30 Minis v. United States, 15 Pet. (U. S.), 443.
    The maxim “Expression of one is the exclusion of the other” in connection with the analogous rule that the expression of a particular intention modifies the general intention, applied to the case at bar, would limit the increase in the number of councilmen to those conditions under which the statute provides specifically for such increase.
    All of these rules are subordinate to a construction under which effect can be given to every word, phrase and punctuation mark of the act, consistent with the general purposes of such act or section. Remembering, however, that the meaning of the law is the law itself as finally passed.
    The purview or enacting clause of the section under consideration as distinguished from its provisos is: “The legislative power of every city shall be vested in, and exercised by, a council, composed of not less than seven members, four of whom shall be elected by wards and three of wham shall be elected by the electors of the city at larga” Endlich on Statutory Construction, section 185%; The San Pedro, 2 Wheat. (U. S.), 132.

      The phrase “Four of whom shall be' elected by wards and three of whom shall be elected by the Rectors of the city, at large” manifestly qualifies the minimum seven and while a specific direction as to the election o»f such serven, the number seven, except as a minimum, applies only to cities of less than 25,000 inhabitants; for as to cities of more than 25,000 inhabitants, express provision is made in the subsequent clauses of . the section. ■ In other words, the provisions applicable to cities of more than 25,000 inhabitants, to which the number seven is applicable only as a minimum, negatives or excludes the application of seven as a mere minimum to cities of less than 25,000 inhabitants, thereby as to such cities, making seven a maximum as well as a minimum number of councilr men, with express directions as to the method of their election, i. e., four by wards and three at larga
    In cities of more than 25,000 inhabitants and less than 40,000, the four to be elected by wards is a mere minimum as to such councilmen for there is an express provision as to the election of two additional councilmen by wards, and such express provision as to two, is also necessarily a limitation. In like manner for cities of over 40,000 inhabitants, the provision for additional members to be similarly elected, i. e., by wards, is also a limitation.
    As to all cities of less than 115,000 inhabitants, the minimum to be elected at large in view of the express provision in the second proviso for an increase in the number of such members, negatives or excludes the theory of any increase in such number upon any other conditions than those prescribed in the proviso-
    Construing the section in accordance with, these rules, we have for a city of 115,000 inhabitants, twelve councilmen elected by wards and three at larger a total of' fifteen. We then come within the operation of the second proviso' and thereafter the number of councilmen at large is ascertained by reference to the second proviso. The rule, in accordance with which the councilmen at large in cities of less than 115,000 inhabitants was limited to three, being that the second proviso providing specifically and by results for the increase in the number of such councilmen excludes the intention of any increase in such number except under the conditions of such second proviso, when we come within such conditions as we manifestly do when a city has a population of over 115,000 inhabitants, then such rule has no application to the number three, because such number for councilmen at large in cities of 115,000 is a mere minimum, as provided in the purview of the section.
    Starting again with cities of 115,000 inhabitants, we increase the number of councilmen elected by wards in accordance with the first proviso. We apply the rule of proportion found in the second proviso in order to find the number of councilmeii to be elected at large. It is no longer necessary to consider the required •minimum “three” for that is provided as a minimum in the conditions under which- the second proviso is applicable, i. e.,- when the number of council is fifteen or more. One in fifteen or more is not less than three. No increase in councilmen at large results from the application of this required rule of proportion until we reach a city of 190,000 inhabitants, when, having by the first proviso seventeen councilmen elected by wards and a minimum of three elected at large, we have at least twenty councilmen altogether; but the rule of proportion requires four members elected at large, making the total number of councilmen twenty-one. The phrase “and the remainder from wards” in the second proviso is a mere appendix and in connection with the verb of the proviso “elected” is a mere recital of a necessary result;, for as section 117 provides that all members of council are to be elected at large or from wards, those that are not elected in one way must be elected in the other. If under any construction we find the number to be elected at large, all other councilmen must be elected from wards. The word “remainder” undoubtedly refers to the other part of the whole but does not require any particular method in the ascertainment of what may be such whole, it may be certain by express terms, or it may be certain because it is capable of being made certain under the rules and conditions given. That is certain which can be made certain.
    Proceeding further with cities as they increase in population, under the section as construed under these rules, we find that a city of 190,000 inhabitants has increased its councilmen elected at large, to four, a city of 250,000 inhabitants would increase such number to five, a city of 310,000 inhabitants to six and a city of 370,000 to seven.
    Cincinnati having more than 325,000 inhabitants and less than 310,000 would have twenty-six councilmen elected by wards and six at large, a total of thirty-two.
    If we apply the section as construed under legal principles to Cincinnati alone, a less complex but no less correct construction would produce the same result.
    The purview of the section, as to Cincinnati, a city of 326,000 inhabitants, fixes seven as the minimum number of councilmen, at least four of whom are to be elected by wards and three at large. No maximum number of councilmen is prescribed, such maximum number or the exact number is to be ascertained from the provisos. This proposition is conceded by plaintiff in error.
    There are two classes of councilmen to be elected, councilmen by wards and councilmen at large. We find two provisos. Roth provisos are presumptively applicable to the purview of the section and independent of each other. The first proviso, by its express terms, applies only to councilmen elected by wards, and fixes the number of such members in Cincinnati at twenty-six. That subject-matter seems to have been completely provided for. The second proviso, therefore, in any orderly statement, would naturally and logically apply to the only other subject-matter for which provision is to be made, and to that exclusively; such other subject-matter being councilmen to be elected at large. Consistently with the minimum prescribed in the purview of the section, this second proviso provides for a definite increase in the number of such councilmen. This proviso as read by both the plaintiff in error and defendants in error, is in substance iliat the number of members elected at large is one-fifth of the nearest multiple of five below the total number of councilmen. In other words, if in dividing the aggregate number of councilmen by five, a fraction would result, such fraction is to be disregarded.
    Applying these rules, a very simple mathematical process gives us the number of councilmen - to be elected at large.
    The first proviso gives us twenty-six councilmen to be elected by wards.
    Let X equal the number of councilmen to be elected at large.

      26 + X would equal the total number of councilmen.
    The second proviso requires that
    26 + X
    X =-
    5
    Therefore:
    5 X =-- 26 + X
    4 X = 26
    X = 6|
    Disregarding the fraction, we have six councilmen to be elected at large. These with the twenty-six to ¡be elected by wards make a total of thirty-two councilanen.
    The determination of the number of councilmen to be elected by wards in the city does not require us to consider the second proviso, but as we desire to fix the number of councilmen to be elected at large and to show that such number is consistent with the entire section, we have gone into the construction of the whole section.
   Burket, C. J.

The contention of plaintiff in error to the effect that the act in question was not passed by the general assembly is not well taken. The allegations in the answer, and admitted by the demurrer, show a legal passage of the act.

It is further contended by plaintiff in error, that the act is invalid, in that it contravenes the constitution of this state, being, as is alleged, a special act conferring corporate power, and a law upon a general subject, not having a uniform operation throughout the state.

We regard the act as general, and not special, and as having a uniform operation throughout the state. The power conferred upon all cities alike to provide by ord inance for the number of members to constitute the board of public service and the board of publie safety, within the limits fixed by the act, does not render the act special, nor does it introduce a special classification. All cities have exactly the same powers, but they may exercise those powers by ordinance within the limits of the act, as may be best for the respective cities.

While all cities must have the same powers they cannot be required to exercise them in the same manner. Uniformity of powers, does not imply uniformity of ordinances.

The answer to the petition as to the passage of the act, and as to its validity, therefore states a good defense to the petition, and as to these matters the demurrer to the answer was properly overruled.

The question remains as to whether the answer states a good defense to the petition as to the number of wards into which the city of Cincinnati .should be divided under the act in question.

The resolution requires the city to be divided into» twenty-six wards, and plaintiff avers in his petition, that this is not the number required by the act in question, because the population of the city at the last federal census was 325,902, but he fails to state the-number of wards which that population requires. The answer avers the correct number to be twenty-six.

Section 117 of the act provides that the council* shall subdivide the city into wards equal in number to the members of council in said citv who are to be elected from wards therein. Therefore the number of members of council to be elected from wards must be first ascertained, and that will determine the num-her of wards.

Section 116 of the act provides as to the number of members, and is as follows:

'“Section 116. The legislative power of every city shall be vested in, and exercised by, a council, composed of not less than seven members, four of whom shall be elected by wards and three of whom shall be elected by the electors of the city at large; provided, that for the first 20,000 inhabitants in any city, in addition to the original 5,000, there shall be two additional members of council elected by wards, and for every 15,000 inhabitants thereafter there shall be one additional member similarly elected. Provided, further, that whenever the total number of members of council is fifteen or more, one member of every five shall be elected at large, and the remainder from wards. Members of council shall serve for a term of two years and until their successors are elected and qualified.”

By another section, at least 5,000 inhabitants are required to constitute a city, and by the above section a city of 5,000 and under 25,000 inhabitants, will have seven members of council; no more and no less. Where there are 20,000 inhabitants in addition to the original 5,000, two more are allowed, making nine for a city of 25,000, and under 40,000 inhabitants. After passing the 25,000 mark, it is provided that for every 15,000 inhabitants, one additional member shall be elected. Take said first 25,000 from the total population of the city 325,902 and there will remain 300,902. This divided by 15,000, gives twenty members to be elected by reason of said 300,902 inhabitants. The first 25,000 gave nine members, which added to the twenty, makes twenty-nine in all, as the total for the whole city

Now as to the manner of election. The first 25,000 inhabitants gives nine members, six to be elected from wards, and three in the city at large. For every 15,000 after the first 25,000 one member is added'to be elected from a ward; but whenever the total number of members reaches fifteen or more, four out of every five are to be elected from wards, and one at large, .so that only three would be elected at large so long as the number of members is under twenty, but at twenty, four would be elected at large, and at twenty-five members, five would be elected at large, and it would stand at five until the number of members would reach thirty, but as the total number in Cincinnati is only twenty-nine, only five can be elected at large, and the remainder, twenty-four, from wards.

The same result is reached in another way. The first 25,000 inhabitants gives nine members, six to be elected from wards and three at large. When the number of members reaches fifteen, one out of every five, is to be elected at large. Fifteen divided by five gives three to be elected at large. To entitle a city to fifteen members, would require at least 115,000 inhabitants. After passing 115,000 inhabitants, with fifteen members of council, the next five members would require 75,000, which added to the 115,000, would make 190,000 inhabitants, and out of these five members, one would be elected at large, which added to the three, would make four to be so elected out of twenty members. Another 75,000 would give five more members, one to be elected at large, which added to the four would make five, and consume 265,000 inhabitants, which would leave only 60,902 inhabitants, only enough for four more members, and therefore the number to be elected at large would remain at five.

Those to be elected from wards would be twelve out of the first fifteen members, four out of the next five members, four out of the succeeding five members, and the four members given by reason of the last 60,902 inhabitants, making twenty-four in all to be elected from wards, and five at large, the total being thus twenty-nine.

The same result is reached in any correct manner of figuring. The total number of members must be first ascertained without reference to the manner of their election, and when thus ascertained, the total number is twenty-nine.

The section of the statute in question is so constructed that the same result is attained whether the total number of members be divided by five, and the quotient five, taken as the number to be elected at large, and the remaining twenty-four as the number to be elected from wards, or whether the original three to be elected at large be added to the two to be elected at large out of the ten next after the first fifteen.

This construction and manner of calculation is fully warranted by the language used in the section, ¿nd is undoubtedly what the general assembly intended. It is the plain common sense of the section, without resorting to algebraic equations, or fine spun theories.

The calculation of counsel on both sides agree until the number of members reaches nineteen, and 175,000 inhabitants are consumed. The next 15,000 inhabitants are entitled to but one member, but defendants in error count two, one to be elected at large, and one from a ward. This is an error of one. The same error is made as to the 15,000, from 235,000 to 250,000, two members are given for the same 15,000 inhabitants, one to be elected at large and one from a ward. The same error occurs as to the 15,000 from 295,000 to 310,000, two members are counted for the same 15,000 inhabitants. In this way six members are counted for the same 45,000 inhabitants, while the section authorizes but three, one for each 15,000. Of the three members thus erroneously injected into the count, two are counted to be elected from wards, making twenty-six, when the correct number is only twenty-four, and one is counted as being elected at large, making six, while the correct number is only five.

To sustain this erroneous count counsel for defendants in error invoke the law as to provisos in statutes, and cite Wayman v. Southard, 10 Wheat., 30, and Minis v. United States, 15 Pet., 443, 445. But these cases are not .of sufficient weight to induce this court to be misled in the construction of this statute. The controlling rule of construction is to ascertain the intent of the. general assembly, and when that is clear, from the language used, other rules of construction are not regarded.

In this section the word “provided” is used twice, and hence it is argued that there are two provisos in the section, that each must in some manner modify the enacting clause, and that the last proviso cannot modify the first.

“A proviso is generally used in a statute to qualify, limit or restrain the operation of general terms contained in a previous part of the section or act, and not to introduce a distinct and independent proposition.” Allen v. Parish, 3 Ohio, 187, 193. It will be noticed that this rule as to provisos does not go to the extent of holding that a second proviso cannot modify a preceding one.

In 23 Am. and Eng. Ency. Law’- (1 ed.), 436, the rule is stated thus: “The proviso should be- confined to what immediately precedes, unless the contrary intent clearly appears.” Under this rule the second proviso in this section, wrnuld modify the first, because the first immediately precedes the second.

But these rules after all are intended only as aids to the court in ascertaining the intent of the general assembly, and should not be used to render that uncertain, which Avould otherwise be reasonably certain.

What is called the first proviso, does not in any manner qualify, limit or restrain that w’hich precedes it, but on the contrary it is an enactment in addition to what precedes. Up to the first proviso a city is given a council of seven members, no more, no less, four to be elected from wmrds, and three at large. The first proviso does not change this, but permits it to stand in all cases, and as the population increases makes an additional enactment, giving two more members up to 25,000 inhabitants, and then adds a further enactment giving one member for every 15,000 additional inhabitants. It is therefore clear that the first proviso is not strictly a proviso, but an additional enactment. That enactment having laid dowm a rule for ascertaining the number of members of ■council in every city in the state, is qualified, limited and restrained, as' to the manner of election, by wdiat is called the second proviso, so as to require one member out of every five, after fifteen, to be elected at large, and the remainder by wards.

' It is therefore clear that the city of Cincinnati is entitled to a total of only twenty-nine members of council, and that only twenty-four are to be elected from wards, and that the city must, therefore, be sub divided into tw-enty-four Avards. The ansAver as to the number of wards is therefore not a defense to the petition, and the demurrer thereto should have been sustained, and the court of common pleas erred in ■overruling it, and also erred in rendering judgment in favor of said defendants beloAV. And the circuit court erred in affirming the judgment of the common pleas.

In argument counsel for plaintiff in error presented the following table, Avhich has been carefully examined by the court and found correct. As it may be useful to the cities of the state, the same is here inserted.

For the errors above pointed out. both judgments of the courts beloAV will be reversed, the said demurrer to the answer sustained, and the cause remanded to. the court of common pleas for further proceedings according to law and this opinion.

Judgments reversed and cause remanded.

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


author: By the Court:

text:
    The Board of Commissioners of Gallia County v. The State of Ohio ex rel. Riggs.

      Construction of roads by general tax — Submission of question to voters — Question limited to certain named roads — Discretion of commissioners — Sections 4763 and 4766, Bev.Stat.

    (Decided January 20, 1903.)
    Error to the Circuit Court of Gallia county.

      Mr. R. M. Switzer; Mr. C. W. White and Mr. J. H. Thomas, for plaintiff in error.

      Mr. Roscoe J. Mauck and Mr. E. D. Davis, for defendant in error.
   By the Court:

“The question, as to the policy of constructing such roads by. general tax,” to be submitted to the qualified voters of the county, under Section 4763,. Revised Statutes, is not the question of inaugurating and carrying forward a general policy of constructing such roads by general tax as in the judgment of the commissioners may be necessary to the public convenience, and promotive of the public interest, but on the contrary the question to be submitted is as to the policy of constructing by general tax certain named roads; and in case the vote should be favorable, tbe commissioners may then proceed and construct by general tax such of tbe roads, so favorably voted for, as in their judgment may be necessary to the public convenience, and promotive of the public interest, as provided in section 4766.

Judgment affirmed.

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