author: Spear, J.

text:
    State ex rel. Attorney General v. Mulhern, Sheriff.

      Construction of legislative act — Order of several provisions entitled to due consideration — Later part of act does not necessarily repeal earlier one — Court may hold full act inoperative, when — Act of April 2, 1906 — Conformity of terms of various state officers to biennial constitutional provisions — Term of commencement and of ending of official' term — Term of office of county commissioners — Conflict of laws.

    1. In giving construction to a legislative act the position in the order of precedence of the several provisions will be given due consideration, but there is no arbitrary rule which requires that a provision found in the later part of the act shall necessarily be given an effect to repeal conflicting provisions in the earlier part of the act.
    2. Where such conflicting provisions are irreconcilable, the court may, if the subject-matter is of minor interest, hold the whole act to be inoperative. But where the matter is of vital interest, a court will seek such construction as will make the act enforceable, and in doing so will be governed by the apparent purpose and obvious policy and intent of the general assembly, as gathered from the whole act, even though it results in a disregard of the later provision.
    3. The provision in the second section of the act passed April 2, 1906, entitled "An act to conform the terms of various, state and county officers to the constitutional provisions for biennial elections,” which requires that the term of office of county commissioners shall commence on the first day of December next after their election is in irreconcilable conflict with the provision of the first section which extends the terms of certain county commissioners to the third Monday in September of the odd numbered years next succeeding the time when they would otherwise expire, and as both cannot be enforced, and as the last above stated provision more nearly conforms to the obvious policy and intent of the general assembly in passing the act, the provision of section 2, fixing December 1st after the election for commencement of terms is inoperative.
    4. The successor to a commissioner elected in the year 1903 will be chosen at the November election of the present year.
    (No. 10086
    Decided June 26, 1906.)

      Mandamus.
    A petition was, filed in this court by Mr. Wade H. Ellis, attorney general, April 25, 1906, setting forth that the defendant, George G. Mnlhern, is the sheriff of Cuyahoga county; that William F. Eirick, was, on November 3, 1903, elected county commissioner for Cuyahoga county for a term of three years; that he assumed the office September 19, 1904, and that his term will expire September 16, 1907. That it is the duty of the defendant, as such sheriff, by virtue of the statutes of the state, to give notice by proclamation of the time and place of holding an election to elect a county commissioner to succeed said Eirick; that the defendant declines, refuses to and declares that he will not give such notice; that relator has no adequate remedy by the ordinary course of law, and prays a writ of mandamus to compel the defendant to give notice by proclamation for such election.
    The defendant answered taking issue only with the allegation as to the expiration of Eirick’s term, and alleging that the term will not terminate until the first day of December, 1908. It therefore is not the duty of the defendant to give notice by proclamation of the time and place of holding an election for commissioner upon the first Tuesday after the first Monday in November, 1906, and he still refuses so to do and will not give such notice.
    To that answer a general demurrer is filed.

      Mr. Wade H. Ellis, attorney general; Mr. Charles P. Mine and Mr. W. S. Miller, for relator,
    cited and commented upon the following authorities:

      State v. Brown, 60 Ohio St., 499; State v. Beal, 60 Ohio St., 208; State v. Heffner, 59 Ohio St., 368;
      State v. Hall, 67 Ohio St., 303; State v. Brewster, 44 Ohio St., 589; article XVII, secs. 1 and 3, Constitution; McCormick v. Village of Duluth, 47 Minn., 272; Sutherland on Statutory Construction, sec. 221; State v. Heffner, 59 Ohio St., 363.

      Mr. James M. Williams, for defendant in error,
    cited and commented upon the following authorities:

      State v. Beal, 60 Ohio St., 208; McCormick v. Village of Duluth, 47 Minn., 272; Hand v. Stapleton, 135 Ala., 156; State v. Brown, 60 Ohio St., 499; State v. Hipp, 38 Ohio St., 199; article XVII, secs. 1 and 2; article II, sec. 2.
   Spear, J.

One question only is presented. That is, when does the term of commissioner Eirick expire? ■ Is it September in the year 1907, or December in-the year 1908? The proper answer to this question requires a construction of the act of April 2, 1906, 9% Ohio Laws, 271. . That act is entitled: “An act to conform the terms of office of various state and county officers to the constitutional provisions of biennial elections.” Bearing on the office of commissioner it is in the first section provided that the existing terms of office of such officers which would otherwise expire in any even numbered year are extended to the following dates respectively of the odd numbered year next succeeding the time when they would so otherwise expire, viz.: member of the board of county commissioners to the third Monday in September. Incumbents at the time when said existing terms would otherwise expire shall continue to hold and enjoy the same until the expiration of said respective terms as so extended. At any ■election for state and county officers hereafter held, successors to all such officers whose terms will expire during the odd numbered year next succeeding the holding of such election, shall be elected for terms to commence at such time during such odd numbered year as is provided by law, and to continue: county commissioners, two years. Provided that the term of office of any such officer expiring in the year 1906, whose successor was elected prior to the passage of this act, shall not be extended.

The second section provides for the repeal of certain sections of the Revised Statutes, and then, with respect to commissioners, makes this provision: “Sec. 839. The board of county commissioners shall consist of three persons, to be elected biennially, who shall hold their office for two years, commencing on the first day of December next after their election.”

It is apparent that there is a conflict between the last clause fixing the first day of December next after the election as the time when the commissioner will take office and the provision in the first section fixing the third Monday in September as the time, for it is impossible to extend the term of the officer whose term would expire in an even numbered year to September of the next odd numbered year without interference with the term of the one who enters upon the office December 1st after the election. In this condition of the statute which provision should prevail?

The time for holding elections for state and county officers is indicated, and the power to extend terms to conform thereto is given by the recent amendment to the constitution, adopted November 7,1905. Section 1 of this amendment (Art. XVII), requires such elections to be held on the first Tuesday after the first Monday in November in the even numbered years, and section 2 gives the general assembly “power to so extend existing terms of office as to effect the purpose of section 1.” Section 3 provides that “every elective officer holding office when this amendment is adopted shall continue to hold such office for the full term for which he was elected, and until his successor shall be elected and qualified as provided by law.”

Significant features applicable to this case are to be emphasized: (1) the election for commissioners can be held only in the even numbered years; .(2) the term of the incumbents then (November 7,1905), in office cannot be abridged, and they may hold -until their successors are elected and qualified, and (3) the power to extend terms is given only to effect the purpose of the provision for biennial elections.

Two opposing contentions arise with respect to the statute, one that the general purpose of the act is .better subserved by giving effect to the first section and discarding that provision of the second section which fixes December 1st as the date of the commencement of the term, and the other that the latter provision, being the last expression of the legislative will because coming later in the act, and being expressed in clear, unmistakable terms, should control in this respect. The authority cited to us supporting the claim of counsel with respect to the controlling effect of a later clause in an act is Hand v. Stapleton, 135 Ala., 156, the third section of the syllabus of which is: “As between conflicting sections of the same act, the last in order of arrangement will control, and such conflict or inconsistency will not nullify the entire enactment where the intention of the legislature can be effectuated by giving effect to the latter section and others in harmony with it.” Looking to the case we find that the act in question was one to remove a county seat. It was attacked as violating a clause of the constitution which provides “that no power of suspending laws shall be exercised except by the general assembly. ’ ’ The first section of the act purported to unconditionally remove the seat from its then location to another named while the tenth section made the removal conditioned that the commissioners appointed should ascertain that the amount realized from certain subscriptions, in addition to the amount that might arise from the sale of the present court house and jail and the real estate owned by the county, will be sufficient to erect the new buildings so as not to require an increase of the present tax rate of the county. The court was of opinion that, viewing the whole act, it was the intention of the legislature that the court house and jail were only to be removed in the event that new buildings could be erected upon the land at the new site to be donated and without increasing the tax rate, a conclusion' which seems entirely obvious. The question therefore was, could the act be enforced giving effect to all its provisions, and that reached the question whether the act could be made to take effect upon the happening of certain events in the future. Thereupon the court held in the first paragraph of the syllabus that “the legislature may pass a valid statute, to take effect upon the happening of a future event, and may delegate to an officer or person the power of determining and announcing whether such event has happened,” and sustained the act as so construed. ' The case seems hardly to fit the crux of our case. It was easily determinable by the rule announced in the last quoted paragraph of the syllabus, which is the same principle which is invoked in our local option legislation and which was applied in the case in this court concerning township local option, Gordon v. The State, 46 Ohio St., 607. The real intent of the legislature seems not hard to arrive at without reference to the location in the act of the proviso as to its taking effect.

The text-books cited give all sides of the proposition. Endlich on Int. of Stat., sec. 183, after stating that where there is an irreconcilable conflict as between clauses, the one last in order of local position will prevail, and citing some authorities which are supposed to sustain it, adds this: “And it has been seen that a reading of the provisions of the whole statute together may give to earlier sections the effect of restricting the meaning of later ones, as well as to the latter the effect of restricting the operation of the former.” Sutherland on Stat. Con., 2nd ed., sec. 349, gives the conclusion that in case of irreconcilable conflict the provision which is latest in position repeals the other, and cites a number of cases, some of which it is fair to say give support to the author’s conclusion. And yet others give support in appearance only. Farmers’ Bank v. Hale, 59 N. Y., 53, is much relied upon by the author. The action was a suit upon a note to which the defense was usury, and the issue depended upon the construction of the statute of that state respecting interest which had conflicting clauses, in which the later was held to be a proviso and its use to qualify and restrain the general provisions of the act. In the opinion Church, C. J., says: “When different constructions may be put upon an act, one of which will accomplish the purpose of the legislature and the other render it nugatory, the former should be adopted; but when the provisions of an act are such that to make it operative would violate the declared meaning of the legislature, courts should be astute in declaring it inoperative.” The rules given in the syllabus are: “Where the intent and meaning of a statute is expressly declared by a provision therein,, to carry out that intent all other parts of the act must yield. A proviso in an act repugnant to the purview thereof is not void, but stands as the last expression of the legislative will. Where the provisions of an act are such that to make it operative would violate the declared meaning and intent of the legislature, it will be construed as inoperative.” The fact that the clause in dispute was found later in the act does not appear to have had any special bearing on the subject, save that it was treated as a proviso and thus the whole act given effect. It is held in Gibbons v. Brittenum, 56 Miss., 233: “Differences of time are to be disregarded in construing apparently conflicting provisions of - the code, if by disregarding them, and looking at the work as a whole, harmony can be thereby produced. But if, after exhausting every scheme of reconciliation, there remains a palpable and irrepressible conflict in the provisions of the code, the court is compelled, in the absence of anything else indicative of the legislative will, to determine it, to adopt the latest declaration thereof. The code is to be regarded as a whole, established uno flatu; and in order to harmonize apparently conflicting provisions, the court will look through the entire work, and gather such assistance as may be afforded by a complete survey of it. Its many sections are to be heldi as. parts of a single statute, which must be made to harmonize, if possible; but if there be an irreconcilable conflict in its parts the section last adopted must prevail.”

Attention is called to a number of decisions which appear to be somewhat of opposite tenor. In McCormick v. Village of West Duluth, 47 Minn., 272, the action was brought to restrain the issue of certain bonds of the village on account of a local improvement. In section 8 of the act it was provided that the bonds shall be made payable in five equal annual instalments, the first maturing one year from the date of the bonds, while by a later clause of the same section it was provided that the bonds shall be made payable at the option of the village after five years, and absolutely at the expiration of seven years, two apparently irreconcilable clauses respecting the character of the bonds. The rule that the clause found last in the statute must govern, and the earlier one declared nugatory, was invoked, but the court, taking the view that the first clause expressed the legislative intent, held that “where the first clause in a section in an act of the legislature conforms to the obvious policy and intent of the legislators, as elsewhere indicated in the act, it is not rendered inoperative and void by a later inconsistent clause which does not conform to this policy and intent. In such cases the later clause is .nugatory, and must be disregarded.” In K. P. Ry. Co. v. Commissioners, 16 Kan., 587, it is held that: “Where there is no way of reconciling conflicting clauses of a statute, and- nothing to indicate which the legislature regarded as of paramount importance, force should be given to. those clauses which would make the statute in harmony with the other legislation on the same«subject, and which would tend most completely to secure the rights of all persons and parties affected by such legislation.” In Sams v. King, 18 Fla., 557, it is held that: “Where the last clause of one section of a statute is plainly inconsistent with the first portion of the same section and with another preceding section of the statute, and this section and part of section conform to the obvious policy and intent of the legislature, the last clause, if operative at all, must be so construed as to give it an effect consistent with the other section and part of section, and with the policy they indicate.” See, also, Delk v. Zorn, 48 S. C., 149, and Link, Treas. v. Jones, 15 Col. App., 281.

From this view, and upon principle, we reach the conclusion that there is no hard and fast rule which inquires a court to give controlling effect to one provision of an act simply and only because it is found later than other provisions bearing upon the same subject; that the rule giving the later clause controlling effect is purely arbitrary, springing rather from the necessity of some rule in peculiar cases than upon any sound reason, and is not to be applied to the defeat of the manifest purpose of the lawmakers where that purpose can be gathered from the context. We are therefore remitted to an ascertainment of the policy and intent of the legislature by a construction of the entire act.

This situation, which presents two irreconcilable provisions respecting the time when the commissioner will take office, probably arose from the undue haste which characterized much of the late work of the session, and appears, as was stated by counsel at the oral hearing, to be a case of too many cooks. Such, legislation is sometimes held wholly inoperative, and were the subject-matter of minor interest we would be disposed to hold in this case that the number of cooks had spoiled the broth utterly. But it is not a matter of minor interest but of general interest reaching as it does to every county of the state, and affecting vitally the conduct of each county’s business, and it undoubtedly is the duty of the court to endeavor to give effect to the act in one way or the other. Which construction, therefore, will more nearly effectuate the purpose. intended, and which will be freest from objection in the practical working out of the law?

It is apparent that the general assembly was undertaking to provide for an emergency. It had been given by the recent constitutional amendment, what had been denied to it before, the power to extend existing terms, where necessary, and possibly to the extent of exceeding, in a case of over-weaning necessity, the constitutional limit. But that power was restrained by the amendment itself to what should be necessary to effect the purpose of the first section of the amendment which is to provide for biennial elections, and to fix the time of such elections with respect to state and county offices, viz.: in November of the even numbered years. This condition seems to have been fully comprehended by the general assembly, for the title of the act is “to conform the terms to the constitutional provision of biennial elections.’’ This indicated the character of the emergency to be met. It is' true that the title is not part of the act yet it may be resorted to when the intent is in question; As held by Hitchcock, J., in Steamboat Monarch v. Finley, 10 Ohio Rep., 384: “It may well .be considered in its construction as furnishing an index ,by which doubtful matters in the body of the.statute may be settled. Especially is this proper where, as in this state, the title is prefixed by a solemn vote of the legislature passing the law. ’ ’ To this may be added the requirement of section 16 of article 2 of the constitution, that: “No law shall contain more than one subject which shall be clearly expressed in its title. ’ ’ We are aware that this provision is regarded as directory and not mandatory, so that a court will not sit to inquire whether an act is rendered unconstitutional because of the failure to observe it, yet a presumption still remains that the general assembly will not intentionally depart from a constitutional direction, but, out of a sense of duty and by reason of their official oaths, the members will endeavor to conform their legislation to all provisions, of the constitution. This clearly bears upon the question of intent. See, also, with respect to the effect of purpose expressed in the title, Harris v. State, 57 Ohio St., 92, and Burgunder v. Weil, 60 Ohio St., 234.

It would follow, if the foregoing test is the proper one as to intent, that the construction of the act in question which operates the more reasonably and with the closest adherence to the limitation upon the power to extend terms, is the one that should be adopted. With this in mind let us contrast the results as to extension of terms and other incidental results which would be worked out in a practical application of each construction. The commissioner-elected in 1902, and whose three-year term expires September of this year, passes out by virtue of the statute; so we are not concerned with him. Assuming that there is to be no election in 1906, and that the terms are to begin December 1. The proposition of the defendant is that the statute itself works an extension of Eirick’s term from September, 1907, when it would expire if not extended, to December, 1908, one year and about three months. If this be so then the same rule would work an extension of the term of the commissioner elected for three years in 1904, and whose term but for such extension would expire September, 1908, to December, 1908, about three months. Also an extension of the term of the commissioner elected for three years in 1905, and. whose term if not extended would expire September, 1909, to December, 1910, one year and about three months. And, since this commissioner would remain in office until December, 1910, it would follow that but two could be elected in 1908, for otherwise, the term of the one elected in 1905 would be abridged, which the legislature may not do. It 'would follow further that the two elected (for two years) in 1908 and the one elected; in 1905, whose term had been extended, would constitute the board, and that the expressed legislative purpose to elect three at a time could not be carried out until the election of 1910.

But the statute does not extend the. term of the commissioner elected in'1903. As hereinbefore stated the statute,-section 1, provides for the extension-of the terms of officers whose term would otherwise expire in any even numbered year; the term of the commissioner elected in 1903 (Eirick) will expire in an odd numbered year, viz.: 1907. Nor is' the term of the commissioner elected in 1905 extended.' Such extension is not made by the statute because that officer’s term will expire in an odd numbered year. It is not made by the constitutional amendment because that provides for tbe extension of the terms of only those “holding office” at the time of its adoption. And there being no provision for the election of a commissioner to fill the interim between September, 1909, and December, 1910, the result of fixing December 1st as the time for the commencement of terms will be to create a vacancy to be filled by appointment. This the general assembly has no power to do. State ex rel. v. Heffner, 59 Ohio St., 368; State ex rel. v. Beal, 60 Ohio St., 208.

Now take the other proposition, which assumes that a commissioner is to be elected this year. By it the term of the commissioner elected in 1903 (Eirick), would expire by its own limitation September, 1907, and he would give way to a successor elected in November of the present year. This would result in the extension of the term of the one who was elected in 1904, and which but for the extension would expire in September, 1908, to September 1909, just one year. It would require no other extension of term, but would cause this commissioner’s term to expire contemporaneously with that of the one elected in 1905, for three years, and of the one to be elected the present year for two years. It would also avoid the result of creating •.vacancies. It would also give effect-to two of the provisions of section 839, as amended, viz.: that which directs that the three commissioners shall be elected biennially, for the term of two years, and would, at the earliest possible date, give full effect to the provision by an election of the three at the .same election, while it would ignore only the provision ■ for the fixing of the beginning of terms. Again it would effectuate the purpose of that clause of section one of the act which provides that at any election thereafter held successors shall be elected to those whose terms will expire during the odd numbered year next succeeding the holding of such election, a purpose clearly indicating that, as Eirick’s term will expire in September, 1907, his successor should be elected in 1906.

It seems to us that the construction which requires an election of commissioners this year is the more reasonable one, as it works fewer changes than the other and fewer extensions of terms, and is in accord with the expressed spirit of the constitutional amendment, and with the dominant purpose of the general assembly expressed in the title of the act and in the immediate succeeding provisions. It also avoids conflict with the provision of the late constitutional amendment that the term of office of all county officers shall not exceed four years. The extension of Eirick’s term to December, 1908, would cause him to serve more than four years, and would thus be in conflict with the spirit of the above limitation. We are not required here to determine whether or not in any case the general assembly could, by force of section 2 of the constitutional amendment, extend the term of any officer so that he would serve beyond the limit fixed by the constitution, but it would excite surprise to find two contradictory provisions respecting the same subject in the same section of the same article. And it is not unreasonable to hold that at least the necessity for extension beyond the limit fixed in the constitution should be apparent and the purpose to do so should be expressed by an act the entire language of which respecting that subject is free from serious doubt.

It is insisted by the eminent counsel for defendant that the first section of the act should be disregarded because unnecessary, the/constitutional amendment fully covering the object sought. In this we think the learned counsel is mistaken. The subject is not adequately covered, if at all, by the constitutional amendment. The provision of section 3- is that “every elective officer holding office when this amendment is adopted shall continue to hold such office for the full term for which he was elected and until his successor shall be elected and qualified as provided by law, ’ ’ clearly implying that it is incumbent upon the general assembly to so provide. Failing that, the effect of the constitutional amendment would seem to be to give the newly elected officer the right to succeed to the office so soon after the election as he could secure a commission, a result involving much confusion and surely riot intended by the constitution.

It is further insisted that the first of December was inserted in the act by amendment because it was considered that it would be little less than a public calamity that a board of commissioners defeated in November, because their acts were unsatisfactory, should be continued in office for ten months longer, and if the commencement of terms is not changed now it cannot be done except by an amendment to the constitution. Of course this presents a legislative consideration. We can’t know what special purpose or desire entered into the minds of the members who voted for this alleged amendment, and it wouldn’t be any of our business if we could. We must construe the law by a consideration of its language. We doubt, however, that the situation is in fact so grave as feared by counsel, and it is not perceived that the general assembly might not, if the necessity continues to commend itself to its members, remedy the trouble by an act changing the date of the commencement of terms, and providing for the election of officérs to hold ad interim.

The demurrer to the ansiver will be sustained and the tvrit awarded.

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


source: Caselaw Access Project

author: Summers, J.

license: Public Domain

text:
    The Cincinnati Traction Company v. Holzenkamp.

      Proof of falling of a trolley pole — TJpon person standing at car stopping place — Question of negligence by traction company —Law of evidence.

    Proof of the falling of a trolley pole from an electric car, when it stopped at a usual stopping place, upon a person standing there for the purpose of getting upon the car, raises the presumption of negligence on the part of the traction company, and unless rebutted the party injured is entitled to recover.
    (No. 9820
    Decided June 26, 1906.)
    Error to the Superior ‘Court.of Cincinnati.
    Plaintiff, Anna Holzenkamp, recovered a judgment against the defendant, The Cincinnati Traction Company, for personal injuries received by her by the falling of the trolley poles or one of the trolley poles of one of defendant’s cars as she was about to step upon it on a street in the city of Cincinnati.
    She avers that she was standing in the street at a point where the car would be supposed to stop; that the car stopped and thereupon just as she was about to step upon the car the trolleys fell and struck and injured her by reason of the negligence of the defendant in that the trolleys were defective and were improperly handled.
    The defendant offered no evidence, excepting as to the extent of the plaintiff’s injuries. The undisputed facts are that the plaintiff and three other ladies were standing in the street where there was a “Y” in the track of the defendant and to which place the car would come from the “Y” onto the main track, and where it usually stopped for passengers. The plaintiff and her sister intended to take the car. The sister signalled the car to stop and it did so, but whether in response to her signal or because it was its usual stopping place does not. appear. The ear was of a kind that is operated by means of double trolleys, and the conductor in charge of the car was trying to place the trolleys on thl wires at the time the car stopped, when the pole of one or both of the trolleys snapped and one or both fell striking the plaintiff before she had placed herself in contact with the car.
    Before argument the court at request of plaintiff gave the following instruction to the jury:
    “If the jury find from the testimony that the plaintiff had gone to the corner of Franklin avenue and Harrison avenue and that thereupon the car of the defendant came to said point and stopped for the purpose of taking the plaintiff on board as a passenger, and that it was at a point near the corner where the cars of the defendant were in the habit of stopping to take on passengers, and that plaintiff was standing in the street adjacent to and by the car track along which the car came going to the city, and that the plaintiff intended to get on the car and was about to do so, and the car stopped at the point where she was standing to enable her to do so; and if the jury find that just as the plaintiff was about to step on the car she was struck by the broken or falling trolley, then I charge you that for the purposes of this case the plaintiff was a passenger on the car, and if the plaintiff was then and there struck and injured by the trolley breaking and falling upon her from the said car, then the presumption arises in the absence of other proof that the Traction'Company was guilty of negligence.”
    And in its general charge the court said:
    ‘ ‘ The law is, as applied to the facts of a case like this, that if a piece of iron or heavy metal which forms part of an overhead apparatus of a railroad of this character breaks and falls down and injures somebody, even one passing by, but more particularly one who is there in proper position to and is about to become a passenger upon this railway, that there the law raises a presumption, out of the mere fact that the thing occurred, that it occurred through the negligence of the defendant.
    “ And if no evidence is introduced to you to show you by testimony that this apparatus had been properly inspected, that it was properly built, and that it was in all respects such as is usual and proper, and was in a proper condition, and therefore that the accident was simply an accident which no foresight could have prevented, then you are justified in presuming, from the occurrence of the accident itself, that it was through either some defect of the apparatus which could have been remedied and ought to have been remedied, and would have been discovered by proper inspection, or that it resulted through some careless and improper handling, whereby it was made to fall down and produce this injury.”

      Messrs. Óutcalt S Foraker, for plaintiff in error,,
    cited and commented upon the following authorities:

      Gordon v. Railway, 40 Barb., 546; Barth v. Railway, 142 Mo., 535; Railway v. Gongwahr, 1 O. S. C. D., 30; 22 W. L. B., 280; Exton v. Railway, 62 N. J. Law, 7; Rogers v. Steamboat Co., 86 Me., 261; Allender v. Railway, 37 Ia., 264; Warren v. Railway, 8 Allen, 227; Ganiard v. Railway, 50 Hun, 22; Brian v. Bennet, 8 C. & P., 724; Hazelton v. Railway, 71 N. H., 589; Smith v. Railway, 32 Min., 1; Miller v. Railway, 66 Minn., 192; Gaffney v. Railway, 81 Minn., 459; Booth on Street Railways, sec. 326; Joyce on Electric Laws, sec. 528; Donovan v. Railway, 65 Conn., 201; Schepers v. Railway, 126 Mo., 665; Gordon v. Railway, 175 Mass., 183; Holzenkamp v. Traction Co., 14 Dec., 586; 2 N. P. (N. S.), 157; Davey v. Railway, 177 Mass., 106; Duchemin v. Railway, 186 Mass., 353; Keator v. Traction Co., 191 Pa. St., 102; Railway v. Kister, 66 Ohio St., 326; Railway v. Wichmann, 70 Ohio St., 446; Railway v. Lockwood, 72 Ohio St., 586; Pitcher v. Railway Co., 154 Pa. St., 560; Pitcher v. Railway Co., 174 Pa. St., 402; Udell v. Railway Co., 152 Ind., 507; Baltman Railway Co. v. State, etc., 28 Atl. Rep., 397; Monroe v. Railway Co., 79 N. Y. App.Div., 587; Riedy v. Railway Co., 27 Misc. (N. Y.), 527; Schaefer v. Railway Co., 128 Mo., 64; Traction Co. v. Holzenkamp, 15 Dec., 673; 3 N. P. (N. S.), 537 (dissenting opinion of Hoffheimer, J.); Clark on Street Railway Law, sec. 1; Shearman & Redfield on Negligence, 488; Elliott on Railways, pp. 24-6, 2460; Patterson on Railway Accident Law, 210-214; 3 Thompson Commentaries on Negligence, sec. 264; Nellis on Street Railway Accident Law, secs. 2-4;
      Railway Co. v. Carroll, 206 Ill., 318; Railway Co. v. Patterson, 9 App. D. C., 423; Carroll v. Railway Co., 65 S. C., 378; Baldwin v. Railway Co., 68 Conn., 567; Jamison v. Railway Co., 55 Cal., 593; Railway Co. v. Merl, 134 Ind., 609; Keator v. Traction Co., 191 Pa. St., 102.

      Mr. Charles W. Baker, for defendant in error,
    cited and commented upon the following authorities:

      Holzenkamp v. Traction Co., 14 Ohio Dec., 586; Gordon v. Railway, 40 Barb., 546; Smith v. Railway, 32 Minn., 1; 18 N. W. Rep., 827; 50 Am. Rep., 550; Keator v. Traction Co., 191 Pa. St., 102; 43 Atl. Rep., 86; 44 L. R. A., 546; 71 Am. St. Rep., 758; Brian v. Bennett, 8 C. & P., 724; Gordon v. Railway, 175 Mass., 181; 55 N. E. Rep., 990; Schaefer v. Railway, 128 Mo., 64; 30 S. W. Rep., 331; Schepers v. Railway, 126 Mo., 665; 29 S. W. Rep., 712; Carney v. Railway, 8 Dec., 587; Donovan v. Railway, 65 Conn., 201; 32 Atl. Rep., 350; 29 L. R. A., 297; Rogers v. Steamboat Co., 86 Me., 261; 29 Atl. Rep., 1069; 25 L. R. A., 491; Allender v. Railway, 37 Ia., 264; 4 Elliott on Railroads, 2460; Booth on Street Railways, sec. 326; Joyce on Electric Law, sec. 528; Railway v. Gongwahr, 1 O. S. C. D., 30 (22 W. L. B., 280); Railway v. Jennings, 89 Ill. App., 335; Railway v. Treat, 75 Ill. App., 327; Railway v. Riley, 39 Ind., 568; Barth v. Railway, 142 Mo., 535; 44 S. W. Rep., 778; Choate v. Railway, 67 Mo. App., 105; Exton v. Railway, 63 N. J. Law, 356; 46 Atl. Rep., 1099; Haselton v. Railway, 71 N. H., 589; 53 Atl. Rep., 1016.
   Summers, J.

The record does not show an exception to the giving of the special charge, so that the question so ably argued is not presented by the record.

The special charge seems to have been fashioned after the ruling in Brian v. Bennett, 8 C. & P., 724, where an omnibus stopped to take on a person who had hailed it but started just as he was putting his foot on the step so that he was thrown down and injured. The court said “I think that the stopping of the omnibus implies consent to take the plaintiff as a passenger and that it is evidence to go to the jury.” It is to be observed that the facts here are materially different and that the instruction goes farther and that its correctness may be questioned.

The relation of carrier and passenger arises from contract. The passenger must expressly or impliedly have agreed to compensate the carrier to transport him and the carrier must expressly or impliedly have agreed to carry him and performance of the contract must have been commenced and the passenger be under the care of the carrier.

But, as has been said, the question is not presented in the record, and even if an exception to the charge had been noted it would not have been necessary to determine the question, for the court held that the maxim res ipsa loquitor applied, and in effect instructed the jury that there was a legal presumption that the defendant was negligent from the fact that the trolley fell and injured the plaintiff although she was not a passenger but only about to become one.

It has been held in some cases that the maxim applies only where the relation of carrier and passenger exists, but, while the presumption may arise when that relation exists from circumstances that, in the absence of such relation, would not give rise to it, attention to the reason of the maxim and to decided cases as well, will show that it does not depend upon the existence of that relation.

In Cooley on Torts, 799, the learned author says: ‘ ‘ The rule applied to carriers and passengers is not a special rule to govern only their conduct, but is a general rule which may be applied wherever the circumstances impose upon one party alone the obligation of special care.”

In Judson v. Giant Powder Co., 107 Cal., 549, 555, which was a case of destruction of property by an explosion of dynamite, Garoutte, J., says: “As was well said by the court in Rose v. Stevens, etc., Co., 11 Fed. Rep., 438: ‘Undoubtedly the presumption has been more frequently applied in cases of carriers of passengers than in any other class, but there is no foundation of authority or reason for any such limitation of the rule of evidence. The presumption originates from the nature of the act, not from the nature of the relation between., the parties. ’ The carrier’s contract with his passenger is simply to exercise a certain degree of care in his transportation. It is the duty which the law enjoins upon him; and the law also enjoins the duty upon this appellant and all others, in the conduct of their business, to exercise a certain degree of care toward this respondent and all mankind. The duty which the law enjoins in the two cases only differs in the degree of care to be exercised. The principle of law involved is wholly the same; and, as has been said, the reason of the rule is not found in the nature of the relations existing between the party insuring and the party insured. The presumption arises from the inherent, nature and character of the act causing the injury. Presumption arises from the doctrine of probabilities. The future is measured and weighed by the past, and presumptions are created from the experience of the past. What has happéned in the past, under the same conditions,, will probably happen in the future, and ordinary and probable results will be presumed to take place until the contrary is shown.” The maxim is thus stated by Shearman & Redfield on Negligence, (5 ed.), sec. 59: “Proof of an injury, occurring as the proximate result of an act of the defendant, which would not usually, if done with due care, have injured any one, is enough to make out a presumption of negligence. When a thing which causes the injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen, if those who have the management use proper care, it affords reasonable evidence, in 'the absence of explanation by the defendant, that the accident arose from want of care.” The following cases selected at random from a much longer list, will serve to illustrate the application of the maxim in cases where the relation between the parties was not based upon contract. Mullen v. St. John et al., 57 N. Y., 567, is one of the earliest and a leading case in this country. In that case the wall of a building fell out and a person standing on the sidewalk was injured by the bricks and mortar. It was held that the maxim applied. In Scott v. London Dock Co., 3 Hurl. & Colt., 596, an injury had been caused by the falling of bags of sugar on the plaintiff as he was passing by a warehouse. The court said: “There must be reasonable evidence of negligence. But where the thing is shown to be under the management. of defendant or his servants, and the accident is sncli as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.” In Richmond Ry., etc., Co. v. Hudgins, 100 Va., 409, the plaintiff’s horse took fright from the sudden stopping of an electric car and an unusual volume of smoke coming from under it. In Campbell v. Consolidated Traction Co., 201 Pa. St., 167, the plaintiff was seated in his wagon which was standing on a track of the defendant’s road in one of the streets of the city of Pittsburg. In front of him were two cars, the second car in front of him moved across the. track on an ascending grade. The trolley pole slipped from the wire and the car stopped and then slipped backward about sixty feet and struck the car back of it, and the force of the collision drove the rear car against the plaintiff’s horse and wagon, or the motorman of that car moved it backward to avoid a collision. In Uggla v. West End Street Railway Co., 160 Mass., 351, the plaintiff while driving on Park Square in Boston, was struck by a broken iron attached to a wire guy. The iron was part of an ear used to clasp a trolley wire and applied to it a strain from the guy, in order to keep the trolley wire in place around a curve and over the defendant’s track. The ear broke with the strain, and one part of it fell, striking the plaintiff on his head. In Manning v. West End Street Railway Co., 166 Mass., 230, a switch stick flew from the hands of the conductor as he was using it -on the top of an electric car and injured a person on the sidewalk in the street. The conductor was using the stick to free a trolley which had caught in the frog, at the junction of some overhead wires. Similar accidents had occurred there half a dozen times before. Held, in an action for personal injuries, that there was evidence of defendant’s negligence, ■either in defective construction of the trolley wires and poles, or in the conductor’s use of the switch stick. In Thomas v. Western Union Telegraph Co., 100 Mass., 156, the hind wheels of plaintiff’s wagon became entangled with one of the defendant’s wires which was swinging across a public highway. Held, that the fact, unexplained and unaccounted for, that the wire was in such a condition, was in itself evidence for the jury on the issue of negligence of the ■defendant. In Hogan v. Manhattan Railroad Co., 149 N. Y., 23, a piece of iron fell from an elevated xailioad structure in a city street upon a person lawfully in the street. In Clarke v. Nassau Electric Railroad Co., 9 App. Div. (N. Y.), 51, the plaintiff’s horse stepped upon one of the rails of the defendant’s tracks, sprang into the air and fell down upon the track where it died in a few minutes. The plaintiff also received a shock when he seized the hames of the harness. In Jones v. Union Railway Co., 18 App. Div. (N. Y.), 267, one of the span wires that supported the trolley wires of defendant’s railroad broke and swung to the sidewalk where it struck and injured the plaintiff. In O’Flaherty v. Nassau Electric Railroad Company, 34 App. Div. (N. Y.), 74, a. trolley wire used in connection with the defendant’s railroad broke and fell to the ground, and the current shocked the plaintiff. This case is approved without report in 165 N. Y., 624.

The. plaintiff was not only lawfully in the street but she stood where she had an implied invitation from the defendant to stand and it was the duty of the defendant to nse reasonable care to avoid injuring her, and the court was warranted in taking judicial notice of the fact, as it did, that such a thing as the breaking of the trolley pole and the falling of the trolley with a portion of the pole does not happen in the ordinary course of events unless there was some negligence either in its construction or in the management of it, and, this being so, the court very properly charged the jury that the plaintiff in the absence. of any evidence tending to rebut the presumption of negligence was entitled to recover for her injuries. The judgment is

Affirmed.

Pbice, Cbew and Spear, JJ concur.


author: Crew, J.

text:
    The Eldridge and Higgins Company et al. v. Barrere.

      Journal entry confessedly made and entered on certain day— Same entry later fixing time within which ■ decree is to he performed — Latter entry not regarded as nunc pro tunc, when — Question of date of validity of decree — Motion for new trial — Pleadings—Legal procedure.

    1, Where a journal entry confessedly made and entered on the fourth day of November, 1904, begins with the recital: “This day this cause came on to be heard on the pleadings and the evidence and was argued by counsel; on consideration whereof the court does find on the issues joined in favor of the plaintiff and against the defendants,” etc., but thereafter the same entry, in fixing the time within which the • decree it records is to be performed, uses the following language: “within thirty days from the rendering of this decree, to wit: the twenty-fourth day of October, 1904,” the latter recital will not be held so far controlling as. to give to such entry the effect of an entry nunc pro tunc, nor does It operate to give said decree force and validity from October 24, 1904. But such decree is valid and operative only from November 4, 1904, the date of its entry, and a motion for new trial filed within three days thereafter is in time.
    '2. An order of the court dismissing and striking from the files a motion for new trial without considering or determining such, motion on its merits, is a final order reviewable on error. (Young v. Shallenberger, 53 Ohio St., 291, distinguished.)
    (No. 9553
    Decided June 26, 1906.)
    Ebbob to the Circuit Court of Franklin county.
    The original action, out of which the present proceeding in error arises, was commenced by the defendant in error Carlisle Barrere against plaintiffs in error The Eldridge & Higgins Company et al., in the court of common pleas of Franklin county, Ohio, on March 30, 1903. Judgment having gone against them in the court of common pleas, plaintiffs in error on December 31, 1903, appealed said cause to the circuit court. The cause was again tried in the circuit court, and the judgment being again adverse to the plaintiffs in error (defendants in the courts below), they, on November 4, 1904, filed their motion for new trial, which motion was as follows:
    “Now come the said defendants by their attorneys and move the court here to vacate the judgment herein rendered and to grant a new trial of this case for the following reasons substantially affecting the rights of the said defendants.
    “1. Said judgment is contrary to the evidence in the ease and against the manifest weight thereof.
    “2. Said judgment is contrary to law.
    “3. Said judgment was given for the plaintiff when it ought to have been given for said defendants.

      “4. The defendants were entitled to a judgment in the case upon the uncontradicted evidence and the pleadings.
    “5. Other errors apparent upon the record.
    “Wherefore the defendants pray the court to vacate and set aside said judgment and for a new trial of this action.”
    Thereafter, on March 6, 1905, the defendant in error, Carlisle Barrere (plaintiff below), filed in said cause the following motion:
    “The plaintiff moves the court to strike from the files of this court the motion for a new trial filed by defendant herein on the fourth day of November, 1904, for the following reasons to-wit:
    “1. Said motion was not filed within the time required by law.
    “2. No motion for a new trial in this ease was or is necessary.”
    On April 1, 1904, this motion was - sustained by the circuit court for the cause alleged in the first paragraph thereof, and the motion for new trial filed by plaintiffs in error, was ordered to be stricken from the files. Additional facts are stated in the opinion herein.

      Mr. Thomas E. Powell, for plaintiffs in error.

      'Messrs. Huggins, Huggins & Johnson, for defendant in error.
   Crew, J.

This proceeding is prosecuted by plaintiffs in error to obtain the reversal of an order made by the circuit court of Franklin county, Ohio, dismissing and striking from the files, — for the alleged reason that the same was not filed within the time required by law, — the motion of plaintiffs in error for a new trial, without considering or determining said motion on its merits. Section 5307, Revised Statutes, provides: “The application for a new trial must he made at the term the verdict, report, or decision is rendered; and, except for the cause of newly discovered evidence, material for the party applying, which he could not with reasonable diligence have discovered, and produced at the trial, shall be made within three days after the verdict or decision is rendered, unless such party is unavoidably prevented from filing the same within such time.” It is not disputed in this case that the motion for new trial filed by the plaintiffs in error, was filed at the term of the circuit court at which the final decision was rendered, but it is the contention of counsel for defendant in error that said motion, which was filed on November 4, 1904, was not filed within three days after such decision was made, and it is their claim that this fact is affirmatively shown by the following entry in said cause made and entered upon the journal of the circuit court on November 4, 1904.

“November 4,1904. This day this cause came on to be heard on the pleadings and the evidence and was argued by counsel; on consideration whereof the court does find on the issues joined in favor of the plaintiff and against the defendants; that the defendants have abandoned all defense as to the second cause of action in plaintiff’s petition contained; and concede plaintiff’s right thereto; that the plaintiff is in law and equity the rightful holder of the certificates of stock Nos. 29 and 37, as described in plaintiff’s petition, as pledgee, for value as for a present consideration, and that he is entitled to have the same transferred upon the books of the defendant company as prayed for in his petition herein.

“It is therefore ordered, adjudged and decreed that, unless said John E. McIntosh. redeem said certificate of stock No. 29 within thirty days from the rendering of this decree, to-wit, the twenty-fourth day of October, 1904, by paying the amount loaned by plaintiff thereon, with interest from the time said loans were made, the defendants, The Eldridge & Higgins Company, Charles C. Higgins, as president thereof; T. W. Bulford, as secretary thereof; David S. Gray, J. M. Parker, J. H. Cartzdafner, J. E. McIntosh, Charles C. Higgins and Frank Jones, as directors of said defendant company, and each of them, transfer said certificate of stock on the books of the defendant, The Eldridge & Higgins Company, from the name of said John E. McIntosh to the name of plaintiff, and that the president and secretary of said company cancel said certificate of stock No. 29 and issue a new certificate of stock for said certificate No. 29 to plaintiff and in plaintiff’s name, and that said defendants enter upon the books of said company, among the stockholders thereof, the plaintiff as the owner of said shares of capital stock of said corporation, and that said corporation pay all dividends declared by said company upon said stock since the twelfth day of May,. 1902, to plaintiff, with interest. To all of which judgments, rulings, orders and decrees of the court,, the said defendants, by their counsel, except.

It is admitted that this entry was made at the time it bears date — November 4, 1904, — and that no entry of any judgment or decree by the circuit court, in this case had been previously made. The ques-lion therefore is, whether in computing and determining the time within which plaintiffs in error were required to file their motion for new trial, the judgment and decree of the circuit court, as evidenced by this entry, is to be given effect as a judgment and decree of October 24,1904, or whether the same shall be considered and given effect as a judgment and decree of November 4, 1904, the time of its entry upon the journal of said court. It will be noticed that in fixing the time within which defendants were to perform the duty enjoined upon them by the decree rendered, the language used in the entry is, “within thirty days from the rendering of this decree, to-wit: the twenty-fourth day of October, 1904,” and it is claimed for this language, thus used, that it affirmatively and conclusively establishes the fact that the decree in this case was rendered on October 24, 1904, and to all intents and purposes gives to said decree the same force and effect as if made and entered on that day. To give effect to such claim in this case, is not only to ignore the earlier recitals in said entry, that the cause came on to be heard on the pleadings and evidence and was argued and submitted on November 4, 1904, but it would be to invest this entry, because of this language, with the attribute and office of an entry nunc pro tuno, and at the same time give to it a force, and effect different from that the law would give it as such entry. But this entry is not, neither does it purport to be, an entry nunc pro tunc. And even though it should be given effect as such, it could not operate to give this decree validity as of the twenty-fourth day of October, 1904, for it is well settled law, that an entry nunc pro tunc can give retroactive operation and effect to the judgment it records, only in the furtheranee of justice, and such can never he its office and effect where, as in the present case, it would operate to deprive a party of a substantial right. Again, section - 5331, Revised Statutes, provides: “AIL judgments and orders must be entered on the journal of the court, and specify clearly the relief granted or order made in the action.” This court has said in Coe v. Erb et al., 59 Ohio St., 263, that: “The requirement that all judgments must be entered on the journal carries the implication that until that is done the judgment is inchoate only, it is incomplete. Though possessing the character of potentiality it lacks the character of actuality, and hence is without probative force.” The circuit court being a court of record, its judgments, orders and decrees do not rest in parol. It speaks through its records, and so far as its record now before us discloses, the only decree ever made by it in the present case, was made and entered on November 4, 1904. We must conclude therefore that the motion for new trial filed by plaintiffs in error on that day, was filed in time. It is suggested in argument in this case that this court is without jurisdiction to entertain this proceeding in error, for the reason that an order dismissing and striking from the files a motion for new trial, is not a final order to which error can be prosecuted. In support of their contention in this behalf counsel cite the case of Young v. Shallenberger, 53 Ohio St., 291, where it is held that the overruling of a motion for new trial is not a final order from which error can be prosecuted. This case we think does not control the case at bar. There is an essential difference between an order of the court sustaining or overruling a motion for a new trial, and an order made dismissing or striking such motion from the files. An order of the court striking a motion for new trial from the files, without considering or determining said motion on fits merits, is an order that affects a substantial right, namely: the right of the unsuccessful party to appeal to the discretion of the court for a new trial, a right that is secured to and given him by statute. It is an. order that finally and effectually prevents a judgment- on the motion, and its effect may be to deprive a party of his remedy on error. It is therefore a final order reviewable on error.

It follows that the circuit court erred in striking from the files the motion of plaintiffs in error for a new trial. The judgment .of the circuit court must therefore be reversed and the cause remanded to that court with instructions to consider and determine said motion for new trial on its merits.

Judgment reversed.

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


author: Peice, J.

text:
    Peeke v. Fitzpatrick et al.

      Action for divorce and alimony — Decree requiring husband to pay wife a gross sum — Making said sum, a lien upon husband’s real estate — Decree not dormant because no execution within five years — Statute of limitations.

    1. In an action for ■ divorce and alimony, or for alimony alone, a decree of the court requiring the husband to pay the wife a gross sum as alimony, and making said sum a lien upon his real estate situate in the county where the action is pending, does not become dormant because no execution was issued thereon for more than five years from the date of the decree. Lemert v. Lemert et al., 72 Ohio St., 364, approved and followed.

      2. Such decree having been made on the twenty-third day oí February, 1893, an action commenced by the divorced wife on the twelfth day of March, 1904, against the husband and others claiming an interest in the lands encumbered by said decree, to marshal the liens thereon, and for an order of sale of the premises to satisfy the decree, is not barred by the statute of limitations set up by one who acquired the title and interest of the husband therein, on the nineteenth day of November, 1903.
    (No. 9598
    Decided June 26, 1906.)
    Error to the Circuit Court of Erie county.
    On the twelfth day of March, 1904, Mary A. Fitzpatrick, one of the defendants in .error, filed her petition against the plaintiff in error and others, in the court of common pleas of Erie county, in which she set up a decree for alimony in her favor and against her husband, James Fitzpatrick, in the sum of $1,000, which decree was made by the court of common pleas at the January term for the year 1893, and on the twenty-third of February of that year. A decree of divorce was also made at the same time. It was found in the decree of alimony, that the husband owned in fee simple, certain real estate situate in Erie county subject to the life estate of his mother, Catherine Fitzpatrick, and the land is described in the decree which made the alimony .a lien thereon.
    The petition alleges that nothing has been paid ■on the decree and that it is still due with interest from January 3, 1893, and that the husband since the making of the decree has sold and conveyed all his right, title and interest in and to the said real •estate to H. L. Peeke and Nannie B. McQuown; that the husband owns no other real estate to her knowledge; that her decree for alimony is the first and best lien on the interest of the husband in said premises,', but she says, that by reason of the claim of title made by said grantees of her husband, she is unable to effect a sale of the property on execution; and she therefore asks that the claimants set up their claims, if they have any, and that her decree be declared the first and best lien; and that the real estate be sold and the proceeds applied in satisfaction of her alimony. '
    The husband answered that on the nineteenth day of November, 1903, he sold and conveyed all his interest in the premises to H. L. Peeke for which he has been fully paid. The answer of Peeke says that he received the conveyance from the husband November 19, 1903, and that he still owns the interest so conveyed. He further alleges that no execution was ever issued upon said judgment for alimony, and that it became dormant after five years from its date, and has ceased to be a lien on the premises. The prayer at the close of his answer is, that the court find him to be the sole owner of said premises subject to the life estate of Catherine Fitzpatrick and a certain mortgage for $200.00, executed in 1900, to H. L. Peeke, by the husband and Catherine Fitzpatrick, which was afterwards assigned by Peeke to the Erie County Investment Company about the date of its execution.
    No one contests the life estate of Catherine Fitzpatrick, the mother of the husband. The interest of Nannie B. McQuown is the title to a strip one rod in width off the west end of said premises, which she holds under a deed from James Fitzpatrick and Catherine Fitzpatrick, dated August 20, 1903.
    The case was taken to the circuit court on appeal, where the cause was heard, and the facts found, the substance of which. we have already stated, and found, (1) that the plaintiff, Mary A. Fitzpatrick, has the first and best lien upon the premises, subject to the life estate of Catherine Fitzpatrick; (2) that the Erie County Investment Company for the amount due it, has the best lien on the life estate or interest of said Catherine Fitzpatrick, and the second lien on the interests of defendant, James Fitzpatrick, conveyed to said Peeke; (3) that Peeke has the second lien upon the life estate or interest of said Catherine Fitzpatrick, except that portion of the premises conveyed to Nannie B. McQuown on the twentieth day of August, 1903.
    An order of sale and distribution was made accordingly. Peeke prosecutes error in this court to reverse the order of the circuit court.

      Mr. H. L. Peeke, for plaintiff in error,
    cited and commented upon the following authorities:

      Lemert v. Lemert, 72 Ohio St., 364; Doyle v. West, 60 Ohio St., 438; Zuellig v. Hemerlie, 60 Ohio St., 27; Neal v. Nash, 23 Ohio St., 483; Water Co. v. Defiance, 68 Ohio St., 520; Conrad v. Everich, 50 Ohio St., 476; Kurtz v. Kurtz, 38 Ark., 119; secs. 5380 and 5367, Rev. Stat.

      Mr. John Ray and Mr. John F. McCrystal, for defendants in error,
    cited and commented upon the following authorities:

      Webster v. Dennis et al., 2 Circ. Dec., 566; 4 C. C. R., 315; Lemert v. Lemert, 25 O. C. C., 253; State on Complaint of Cook v. Cook, 66 Ohio St., 566; Coffman, Admr., et al. v. Finney, Admr., et al., 65 Ohio St., 68.
   Peice, J.

As a fact omitted in onr statement of this case, we note that James Fitzpatrick, the defendant in the divorce and alimony action, has tiled in this court his cross-petition in error,, in which he assigns practically the same errors complained of by plaintiff in error. Except for his own amusement, we see no reason for his having done so. On the nineteenth day of November, 1903, he conveyed all his title and interest in the premises involved in this proceeding to the plaintiff in error, and thereafter had no interest to protect, unless it would be his covenants of warranty contained in his deed to Peeke of that date.

The controversy, if it can be so dignified, is between the plaintiff in error and the defendant in error, Mary A. Fitzpatrick, in whose favor the decree for alimony was made on the twenty-third day of February, 1893, and in his answer he attacks the decree on the sole ground that it had become dormant because no execution was ever issued for its collection, and was dormant when she brought her action and obtained the decree under review.

The controversy thus raised is foreclosed, unless we overrule the judgment of this court, rendered in Lemert v. Lemert et al., 72 Ohio St., 364, where it is distinctly held that, “a decree for alimony does not become dormant because of the failure to issue execution thereon for more than five years.” On page 368 this court says: “A decree for alimony is not a judgment within the meaning of section 5380, Revised Statutes, which provides that a judgment on which execution has not issued for five years shall become dormant and shall cease to operate as a lien on real estate, nor is it a judgment or finding within the meaning of section 5367, which provides for the revivor of a dormant judgment, or a finding for money in any equitable proceeding. ’ ’

We still think the law is correctly stated in that ease, and therefore follow it in this proceeding. Indeed, the plaintiff in error has not assailed the soundness of that decision either in his brief or oral argument. He opens his brief in this language: “The question in this case is — ‘When does a decree for alimony in gross cease to be a lien on land?’ We claim it ceases to be a lien in ten years. ”

The dormancy of the decree relied on in his answer to plaintiff’s petition seems now to be abandoned, and a statute of- limitations substituted, which formed no part of the issues made by the pleadings. This might be sufficient for us to say on the subject, but perhaps the spirit of enthusiasm in which the argument was presented, deserves further notice. He suggests that in the Lemert case, supra, the decree was six years old, while the decree of Mary A. Fitzpatrick was eleven years old when she commenced her action now under consideration. What does that fact signify? Absolutely nothing. We have seen that the decree is not dormant, and we add now, that we are not aware of any statute that limits its life. The records of the courts are devised and intended to perpetuate judgments and decrees, and unless their lives are limited or cut off by statute, they are the permanent record of what the court has done, until reversed, or otherwise legally set aside. No statute has been cited limiting or cutting off the life of this decree, and it has not been reversed, modified or set aside in any proceeding brought to our attention. Therefore, it was a living decree in her favor when the plaintiff below brought her action, and it was the proper basis for the relief she demanded in that action. Her decree was made a lien on real estate subject to the life estate therein, of another party, and during its life, the husband who was the remainderman, conveyed his estate to plaintiff in error. The remainderman and the owner of the life estate, subsequent to the date of the decree, had executed a mortgage to a third party encumbering their interests in the premises, and a rod in width off one end thereof had been conveyed to still another party. These facts furnished a sufficient ground for the action instituted by plaintiff below, to the end that she might subject the real estate encumbered by her decree to the payment of the same. Her case was in the nature of an equitable execution, as held in some of the cases, and she was simply seeking to enforce her legal rights. The premises were in the actual possession of the life tenant. The defaulting husband could not defend by pleading the statute of limitations against a continuing, permanent decree. The plaintiff was not asking possession of the encumbered estate, but its sale under the continuing decree. The plaintiff in error acquired his title on the nineteenth day of November, 1903, from the defaulting husband, and the action before us was commenced on the twelfth day of March, 1904.

There is no place in the facts or in the law for any statute of limitations to find lodgment.

We find no error in the record, and the judgment of the lower court is affirmed.

Judgment affirmed.

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


author: Shauck, O. J.,

text:
    State ex rel. Wilson, County Solicitor, v. Lewis, Auditor, et al. Thomas et al. v. State ex rel. Gilbert, a Taxpayer.

      Tax inquisitors — Law authorising their employment by county commissioners — Act of April 10, 1888 — Act of April 83, 1885 —Sections 1343-1 to 1843-4 and 1848a and 1848b, Revised Statutes — Invalidity of acts because of special nature — Section 86 of article 8 of the constitution — Uniformity of laws— Constitutional law.

    1. Since it is not within the judicial function to give to a statute an operation which the legislature does not intend, the Act of April 10, 1888 (Revised Statutes, sections 1343-1 to 1343-4 inclusive), to authorize the employment of tax inquisitors, cannot by interpretation be extended to the four counties in which the Act of April 23, 1885 (Revised Statutes, sections 1343a and 13436), was intended to be operative, the legislative intention to provide for their concurrent operation being expressed in the later act.
    2. The acts relate to a subject of a general nature and, there being substantial differences in their provisions, they are repugnant to section 26, article 2 of the constitution which requires that “all laws of a general nature shall have a uniform operation throughout the state.”
    (Nos. 9807 and 9913
    Decided June 26, 1906.)
    Error to the Superior Court of Cincinnati.
    Error to the Circuit Court of Montgomery county.
    In case No. 9807, State ex rel. Wilson v. Lewis, suit was brought in the superior court of Cincinnati by the county solicitor to enjoin the further execution of making payments under a contract entered into between the auditor, treasurer and commissioners of Hamilton county of one part and H. W. Morganthaler of the other, the contract being in substance that said Morganthaler was employed to ascertain and furnish to the county auditor of Hamilton county facts and evidence necessary to authorize the auditor to subject to taxation property improperly omitted from the tax lists and duplicates, to continue in force from the seventeenth day of September, 1902, to the eleventh day of February, 1905, and providing for the compensation of said Morganthaler for said services at the rate of twenty per centum of the money so caused to be paid into the treasury. ' The contract was alleged to be void for numerous reasons among them that the laws of the state made it the duty of the county auditor to ascertain said facts and discover said evidence and that, therefore, the contemplated payments to Morganthaler would be a misapplication of public moneys and that there was no authority of law for the making of such contract. In the special term of the superior court demurrers to the petition were sustained and the petition was dismissed. That judgment was affirmed by the general term.
    In case No. 9913, Thomas et al. v. State ex rel. Gilbert, suit was brought in the court of common pleas by the defendant in error against the plaintiffs in error who are the acting tax inquisitor and the auditor and treasurer and commissioners of Montgomery county to enjoin the further performance of a like contract for the rendering of like services in Montgomery county for a like compensation and to enjoin the further payment of such compensation. The contract was alleged to be void for numerous reasons among them that there was no valid legislation to authorize it and that the contract purports to give to said Thomas, the inquisitor, the exclusive right and entire discretion in the matter of investigation .and examination for omitted property. Issues of fact were joined upon which the cause was tried, the record before us being made in the circuit court to which an appeal had been taken from the judgment of the court of common pleas. The conclusion of law reached by the circuit court was that the statute by which the contract was supposed to he authorized was unconstitutional and void.
    The cases, involve both the validity and interpretation of two acts of the general assembly touching the employment of tax inquisitors. They are known as the acts of 1885 and 1888. Those acts with their sectional numbers in the Revised Statutes are as follows:
    Act ok 1885.
    R. S. 1343a. ‘ ‘ That the county commissioners, county auditor and county treasurer, or a majority of said officers of any county in this state containing a city of the first class, and in any county •containing a city of the first grade of the second class, shall have full power and final power to employ any person or persons to ascertain ■ and furnish to the county auditor the facts and evidence necessary to authorize him to subject to taxation any property improperly omitted from the tax duplicate; no payment for such services to be made except in accordance with the terms of an agreement between the said officers, or a majority of them, and such person or persons; and. such payment shall be made to such person or persons only out of money actually paid into the county • treasury- as taxes on such omitted property; and such-coinpensation shall he apportioned ratably by the county auditor among all the funds entitled to share in the distribution of such taxes, including the state itself, as well as the counties, townships, cities, villages, school districts, and other organizations entitled thereto. ’ ’■
    R. S. 1343&. “Any assessor in such counties who shall wilfully omit to return any property for taxation, or any auditor who shall wilfully omit any property from the tax duplicate that is liable to taxation, or any persons conspiring to wrongfully increase the number or amount of any tax omissions, shall be deemed guilty of a misdemeanor, and on conviction thereof before any court of competent jurisdiction, shall be sentenced by the said court to pay a fine not exceeding two hundred dollars, or be imprisoned in the county jail not exceeding sixty days or both, at the discretion of the court, and it is ¡hereby made the duty of the prosecuting attorney of the county to enforce the provisions of this section.”
    Act of 1888.
    R. & 1343-1. “The county commissioners, county auditor, and county treasurer, or a majority of said officers in any county, when they have reason to believe that there has not been a full return of property within the county for taxation, shall have power to employ any person to make inquiry and furnish the county auditor the facts as to any omissions of property for taxation and the evidence necessary to authorize him to subject to taxation any property improperly omitted from the tax duplicate; no payment to be made for such services except in accordance with the terms of agreement between the officers, or a majority of them and such person, and such payment shall be made only out of monéy actually paid into the county treasury as taxes on such omitted property, and such compensation shall not exceed 20 per cent, of the amount of such taxes, on the returns of omitted moneys, credits, investments in bonds, stocks, joint-stocks, annuities or other valuable interests, held by a resident of this state or by others for him; and all such allowances shall be apportioned ratably by the county auditor among all the funds entitled to share in the distribution of such taxes. ’ ’
    R. S. 1343-2. “Any assessor who shall wilfully omit to return any property for taxation, or any auditor who, shall wilfully omit any property from the tax duplicate that is liable to taxation, or any persons conspiring to wilfully increase the number or amount of any tax omissions shall, upon conviction thereof, pay a fine not exceeding two hundred dollars, or he imprisoned in the county jail not exceeding sixty days, or both. ’ ’
    R. S. 1343-3. “The person or persons with whom the contract provided for in section one of this act is made, shall, before entering upon such employment, give bond to the state in the sum of one thousand dollars, conditioned on the faithful performance of the duties required by the contract; said bond shall be approved by a majority .of those authorized to make the appointment and filed with the county auditor.”
    R. S. 1343-4. “This act shall not in any manner affect the provisions of sections one thous- and, three hundred and forty-three (a) and one thousand, three hundred and forty-three (b) of the Revised Statutes of Ohio, as enacted April 20,1885. ”

      Messrs. Ireton, Collins, Schoenle é Poor and Messrs. Horstman $ Horstman, for the solicitor of Hamilton county, plaintiff in error (in case No. 9807),
    cited and commented upon the following-authorities :

      State ex rel. v. Cappeller, 39 Ohio St., 213; sec. 26 and 28, art. 2, Const.; act of April 14, 1880; 77 O. L., 205; State ex rel. v. Hagerty, 3 Circ. Dec., 161; 5 C. C. R., 325; State ex rel. v. Crites, 48 Ohio St., 142; State v. Lewis, 12 Ohio Dec., 46; State ex rel. v. Garver, 66 Ohio St., 555; State ex rel. v. Yates, Auditor, 66 Ohio St., 546; Gaylord v. Hubbard, 56 Ohio St., 25; State ex rel. v. Buckley, 60 Ohio St., 296; Burt v. Rattle, 31 Ohio St., 116; State ex rel. v. Baker, 55 Ohio St., 1; 90 L. Loc. L., 346; State v. Brewster, 39 Ohio St., 653; State ex rel. v. Bargus, 53 Ohio St., 94; secs. 1343-1, 1343-2, 1343-3, 1343-4, Rev. Stat. (1888); secs. 1343a and 1343b, Rev. Stat. (1885).

      Mr. Alfred B. Benedict and Messrs. Doyle, Lewis & Schaufelberger, for defendant in error (in case No. 9807),
    cited and commented upon the following authorities:

      State ex rel v. Crites, 48 Ohio St., 142; State ex rel. v. Buckley, 60 Ohio St., 273; Burt v. Rattle, 31 Ohio St., 116; 1 Sutherland on Statutory Construction, secs. 306, 598; State ex rel. v. Baker, 55 Ohio St., 1; People v. Knopf, 183 Ill., 410; Turner v. Fish, 19 Nev., 295; Hale v. McGettigan, 114 Cal., 112; Gager v. Prout, 48 Ohio St., 89; State ex rel v. Dombaugh, 20 Ohio St., 167; Railroad v. Commissioners, 31 Ohio St., 338; Gibbons v. Catholic Institute, 34 Ohio St., 289; In re Assignment of Judges to Hold District Court, 34 Ohio St., 431; Adler v. Whitbeck, 44 Ohio St., 539; Commonwealth v. Kimball, 24 Pick., 362; Cooley on Constitutional Limitation, 178; Bishop on Written Laws, sec. 34; People v. Kenney, 96 N. Y., 294; State v. Frame, 39 Ohio St., 411; People v. Hull, 46 N. Y., 57; Lathrop v. Mills, 19 Cal., 513; Allen v. Louisiana, 103 U. S., 80; Treasurer v. Bank, 47 Ohio St., 503; Stevens v. State, 3 Ohio St., 455; Musser v. Adair, 55 Ohio St., 466; Commonwealth v. Hitchings, 5 Gray, 482; Commonwealth v. Kimball, 24 Pick., 362; Robinson v. Bidwell, 22 Cal., 379; Hagerstown v. Dechert, 32 Md., 369; Exchange Bank v. Hines, 3 Ohio St., 15; Bowles v. State, 37 Ohio St., 35; Cooley on Constitutional Limitation (6 ed), 211; Gager, Treas. v. Prout, 48 Ohio St., 108; Kelley v. State, 6 Ohio St., 269; Toledo Commercial Co. v. Manufacturing Co., 55 Ohio St., 220; Railway Co. v. Cox, 55 Ohio St., 510; Cincinnati v. Connor, 55 Ohio St., 82; Packet Co. v. Keokuk, 95 U. S., 80; Baldwin v. Frank, 120 U. S., 678; Kimmish v. Ball, 129 U. S., 217; Field v. Clark, 143 U. S., 649; Presser v. Illinois, 116 U. S., 252; Taylor v. United States, 3 How., 210; Cliquot v. United States, 3 Wall., 114; State v. Sinks, 42 Ohio St., 351; Piqua v. Zimmerlin, 35 Ohio St., 507; Sedgwick on Statutory and Constitutional Constructions, 243; Paulinas Cargo v. United States, 7 Cranch, 60; Brower v. Hunt, 18 Ohio St., 341; Smith’s Commentaries on Statute & Constitutional Law, secs. 714, 647, 648; Dwarris, 582, 583; Wood v. United States, 18 Pet., 231; Commissioners v. Society for Savings, 90 Fed. Rep., 233; McCool v. Smith, 66 U. S. (1 Black), 459; Canal Co. v. Railroad, 4 Grill & J., 1; Bowen v. Lease, 5 Hill, 221; Williams v. Potter, 2 Barb., 316; State ex rel. v. Commissioners, 20 Ohio St., 424; Raudebaugh et al. v. Shelley, 6 Ohio St., 316; Ludlow v. Johnson, 3 Ohio, 553; Dodge v. Gridley, 10 Ohio, 173; Buckingham v. Railway Co.,
      10 Ohio St., 27; Gallup v. Commissioners, 20 Ohio St., 324; Quigley v. State, 3 Circ. Dec., 310; 5 C. C. R., 638; State v. Quigley, 11 Dec. Re., 340; 26 W. L. B., 129; Commissioners v. Board of Public Works, 39 Ohio St., 632; secs. 1343a and 1343b, Rev. Stat. (1885); secs. 1343-1, 1343-2, 1343-3 and 1343-4, Rev. Stat. (1888).

      Messrs. Bosler & Emanuel; Messrs. Young & Young and Mr. I. H. Goeke, for James R. Thomas et al., plaintiffs in error (in case No. 9913),
    cited and commented npon the following authorities:

      McCormick v. Alexander, 2 Ohio, 65; Lewis v. McElvain, 16 Ohio, 347; State v. Price, 4 Circ. Dec., 296; 8 C. C. R., 25; Railroad v. Clinton Co., 1 Ohio St., 77; Lehman v. McBride, 15 Ohio St., 573; Ireland v. Turnpike Co., 19 Ohio St., 369; State v. Cincinnati, 20 Ohio St., 18; Walker v. Cincinnati, 21 Ohio St., 14; Western Union Tel. Co. v. Mayer, 28 Ohio St., 521; Cincinnati v. Bryson, 15 Ohio, 625; Black on Interpretations, 307; Saterlee v. Stevens, 11 Ohio, 420; Tracy v. Card, 2 Ohio St., 431; Pollock v. Speidel, 27 Ohio St., 86; Cross v. Armstrong, 44 Ohio St., 613; State v. Peck, 25 Ohio St., 28; Platt v. Craig, 66 Ohio St., 75; Brower v. Hunt, 18 Ohio St., 341; Slingluff v. Weaver, 66 Ohio St., 628; Treasurer v. Bank, 47 Ohio St., 523; Bowles v. State, 37 Ohio St., 43; State v. Sinks, 42 Ohio St., 351; Commissioners v. Brown, 14 O. D., 241; State v. Russell, 11 Circ. Dec., 299; 20 C. C. R., 557; Chesnut v. Shane’s Lessee, 16 Ohio, 625; 8 Cyc., 804; Pump v. Commissioners et al., 69 Ohio St., 448; Burt v. Rattle, 31 Ohio St., 116; Robinson v. Rippey, 111 Ind., 116; Ex parte Yerger, 8 Wall. (U. S.), 105; Hurst v. Samuels, 29 S. C., 476; State
      v. Buckley, 60 Ohio St., 273; Railway v. Amrine, 10 Kan., 318; Butler v. Bailey, 2 (Bay) S. C., 244; Burlington v. Railway, 41 Ia., 134; Burgunder et al. v. Weil et al., 60 Ohio St., 242; Commissioners v. State ex rel., 50 Ohio St., 653; Deckebach v. Hagerty, Auditor, 3 Circ. Dec., 161; 5 C. C. R., 326; Insurance Co. v. Hard, Treas., 59 Ohio St., 248; McGoldrick v. Lewis, 12 Ohio Dec., 48; Musser v. Adair, 55 Ohio St., 476; Lessee v. Burgett, 1 Ohio, 469; Steamboat v. Finley, 10 Ohio, 384; State v. Granville Alexandrian Society, 11 Ohio, 1; Wilber v. Paine, 1 Ohio, 251; State v. Pugh, 43 Ohio St., 113; Lessee v. Corwin, 5 Ohio, 410; Harris v. State, 57 Ohio St., 92; sec. 26, art. 2, Const.; 23 Am. & Eng. Ency. Law (1 ed.), 224; Sweet v. Syracuse, 129 N. Y., 316; Endlich on Interpretation of Statutes, secs. 138, 363, 178 to 182; 1 Kent’s Commentaries, 447; Railroad v. Van Horn, 57 N. Y., 473; Roosevelt v. Godard, 52 Barb. (N. Y.), 533; 64 Am. St. Rep., 70, monographic note; Anderson v. Camden, 58 N. J. Law, 515; Ogden v. Saunders, 12 Wheat., 270; State ex rel. v. Crites, Auditor, 48 Ohio St., 142; State v. Hall, 25 O. C. C., 361; Douglass v. Pike County, 101 U. S., 677; Shoemaker v. Cincinnati, 68 Ohio St., 603; Silberman v. Hay, 59 Ohio St., 583; State v. Yates, 66 Ohio St., 546; State ex rel. v. Lewis, 12 O. D., 46; Gilbert v. Thomas, 16 O. D., 9; 26 Am. & Eng. Ency. Law, 568, 641; Norton v. Shelby Co., 118 U. S., 425; Boales v. Ferguson, 55 Neb., 565; Cooley on Constitutional Limitations, 188; Bartlett v. State, 73 Ohio St., 54; 50 O. L. B., 536; 70 O. L. R., 24; 23 Am. & Eng. Ency. Law (1 ed.), 225; State v. Tufley, 20 Nev., 427; State v. LaGrave, 62 Am. St. Rep., 768; 77 Am. St. Rep., 935; Widoe v. Webb, 20 Ohio St., 431; State v. Frame, 39 Ohio St., 399; Gager v. Prout, 48 Ohio St., 89; Pierce v. Board of Education, 8 O. D., 648; 1 N. P., 286; In re Brown, 9 Dec., 810; 6 N. P., 178; Squires v. Wiener, 10 Circ. Dec., 293; 19 R., 736; People v. Parks, 58 Cal., 624; Mathias v. Cramer, 73 Mich., 5; 19 Am. St. Rep., 275; Fisher v. McGirr, 1 Gray, 1; Brown v. Beatty, 34 Miss., 227; East Kingston v. Towle, 48 N. H., 57; Berry v. Railroad, 41 Md., 446; In re Groff, 21 Neb., 647; Turner v. Fish, 19 Nev., 295; State v. Estabrook, 3 Nev., 180; Evans v. Job, 8 Nev., 322; State v. Swift, 11 Nev., 147; secs. 1343a and 1343b, Rev. Stat. (1885); secs. 1343-1, 1343-2, 1343-3 and 1343-4, Rev. Stat. (1888).

      Messrs.' McMahon & McMahon; Messrs. Rowe é Shuey and Mr. Oscar M. Gottschall, for Phillip Gilbert, defendant in error (in case No. 9913),
    cited and commented upon the following authorities:

      Hixson v. Burson, 54 Ohio St., 470; State ex rel. v. Spellmire, 67 Ohio St., 77; State ex rel. v. Yates, 66 Ohio St., 546; State v. Lewis, 69 Ohio St., 202; Schumacher v. McCallip, 69 Ohio St., 500; sec. 26, art. 2, Const.; Menge et al. v. The Madrid, 40 Fed. Rep., 677; Commissioners v. Allman, 142 Ind., 573; Rumsey v. Railroad, 133 N. Y., 79; 26 Am. & Eng. Ency. Law, 184 (2 ed.), 5; Pollock v. Farmers’ Loan & Trust Co., 157 U. S., 429; 47 O. L. B., 633, 891; Gager v. Prout, 48 Ohio St., 89; Bowles v. State, 37 Ohio St., 35; Cooley on Constitution, 178; Cooley on Constitutional Limitation (6 ed.), 211; State ex rel. v. Crites, 48 Ohio St., 142; State v. Commissioners, 5 Ohio St., 497; sec. 28, art. 2, Const.; Ireland v. Turnpike Co., 19 Ohio St., 369; Humphreys v. Safe Deposit Co., 29 Ohio St., 608; Bridge Co. v. Commissioners, 8 Dec. Re., 564; 9 W. L. B., 16; Sandheger v. Commissioners, 8 Dec. Re., 569; 9 W. L. B., 20;
      State ex rel. v. Leivis, 8 Circ. Dec., 276; 15 C. C. R., 279; State v. Commissioners, 31 Ohio St., 271; Insurance Co. v. Cappellar, 38 Ohio St., 560; State ex rel. v. Raine, 47 Ohio St., 447; Commissioners v. Rosche Bros., 50 Ohio St., 103; S. & C., Revised Statutes, 1439; secs. 1038, 1343-1, 1343-2, 1343-3 and 1343-4, Rev. Stat. (1888); secs. 2731, 2734, 2800, 2803, 2804, 2805, 2813, 2815 and 2819-1, Rev. Stat.
    By leave of the court, briefs were filed in support of the validity of the contracts by Mr. J. T. Holmes and Messrs. Dyer, Williams & Stouffer, and against their validity by Mr. E. N. Huggins; Messrs. West & West and Mr. Fred C. Rector. An oral argument against the validity of the contracts was also made by Mr. Andrew Squire.

   Shauck, O. J.,

By allegations of fact in the pleadings, and by propositions of law in numerous briefs and in oral arguments, we are favored with a full and clear presentation of the considerations affecting the validity of the contracts for the employment of tax inquisitors in Hamilton and Montgomery counties. Those considerations conducted the superior court of Cincinnati to the conclusion that the contracts are valid, and the circuit court of Montgomery county to the conclusion that they are void. It will not be practicable, perhaps it would not be profitable, to attend to all those considerations in detail. The points of inquiry may be reached by the observation that there appear to be no substantial doubts respecting the validity of the contracts except those which concern the constitutional validity of the statutes by which the contracts are supposed to be authorized. These statutes are given in full in the statement of the cases.

From a comprehensive view of these statutes and' other statutes relating to the taxation of property, it appears to he true, as is urged against the validity of the contracts, that the legislative policy is to charge auditors and assessors with the duty of bringing all taxable property upon the duplicates, vesting them with ample power for that purpose, and providing for their liberal compensation for services so rendered to the public; and then by this particular legislation to offer inducements to remissness in the performance of those duties in order that there may be realized the extraordinary compensation of the inquisitors. This tendency of the acts of 1885 and 1888 is so obvious that it could hardly have escaped the attention of the legislature even before there had been opportunity to observe their practical operation. That it did not escape attention appears in the provisions of sections 13435 and 1343-2, proposing the possibility of criminal proceedings to check the cupidity excited. But the admission that the wisdom of this reliance has not been vindicated by prosecutions for such remissness will not justify the conclusion that any part of the legislation is void. It must have been solely in view of this aspect of the case that counsel for the inquisitors have so gravely admonished us that we must not, by annulling an act of the legislature, defeat the will of the people. These acts involve the exercise of no power that is not legislative, and, however unwise they may appear to be, they must be held valid, unless they are violative of some limitation which the people have imposed upon the exercise of that power. Constitutions not only locate the powers of government, but in important respects they peremptorily prescribe the modes of their exercise. More than a century has passed since Marbury v. Madison, and it would not now he decorous to counsel to assume that they either urge or entertain the view that the will of the people is expressed in acts of legislation which are passed in disregard of limitations which the people have expressly imposed upon their representatives who exercise their legislative power.

In support of the judgment of the circuit court of Montgomery county it is urged that the acts of 1885 and 1888 are alike violative of the provision' of section 26 of article 2 of the constitution that “all laws of a general nature shall have a uniform operation throughout the state.” In support of the judgment of the superior court of Cincinnati it is said that the act of 1888 is reconcilable with that provision of the constitution and that it, without aid from the act of 1885, authorizes the contracts whose validity is drawn in question. That taxation as the subject of legislation is of a general nature is established by a uniform course of decisions, and it is practically admitted in the present cases. The act of 1885, by its terms, is operative in but four counties of the state including Hamilton, and the contention of counsel for the inquisitors is that because of its limited operation it was and is a nullity and not now to be taken into account in the consideration of existing legislation upon the subject. The precise question is, does the act of 1888 operate uniformly throughout the state? By the terms of the first section of the act (R. S., sec. 1343-1), leaving out of view the provisions of the last section (R. S., sec. 1343-4), the officers of any county when they have reason to believe that there has not been a full return of property for taxation are empowered to contract for the services of an inquisitor. But the operation of the act was not left to the comprehensive terms of its first section. By its fourth section the act of 1885 was brought before the minds of the legislators to be dealt with as an act relating to the same subject matter. How did they deal with it? Certainly not in the mode which would have been most .usual and natural if the later act was intended to be the sole law upon the subject, that is, by the express repeal of the former act which, if continued in force, would prevent the operation of the later act throughout the state. Not only did the legislature not expressly repeal the earlier act, but care was taken, and apt language was chosen, to prevent the application to it of the legal rules with respect to repeals by implication. Could we regard ourselves as really attempting . interpretation if we should conclude that the legislature intended to nullify the former act by providing that it should not in any manner be affected? The suggestion that the general assembly knew that the former act was void because of its limited operation, and that the words by which it was saved are, therefore, regarded as meaningless, is inadmissible, for it would be an imputation of ethical obliquity. It is both just and decorous to assume that in both enactments the members of the legislature regarded themselves as performing duties enjoined upon them by the constitution and by their oaths to support that instrument. If the meaning of the legislature is sought where it should always be sought, in the words which it employs, and if the subject is regarded with a steady vision, it will not appear otherwise than that the concurrent operation of both acts was intended.

For the purpose of the present case at least it may be conceded that, since all acts relating to the same subject matter are to. be considered together, acts authorizing the employment of tax inquisitors do, according to their terms, operate throughout the state. But the requirement of the constitution is not merely of operation, but of uniform operation throughout the state. Regarding the differences in the conditions to official action and more especially the presence of the limitation upon the compensation of the inquisitors in one and the absence of such limitation from the other, it is obvious that the concurrent operation of these acts would not be uniform. There appears to be no reason to doubt that the provisions respecting compensation held a prominent place in the minds of “the people” who prompted this legislation. Counsel for the inquisitors naturally call State ex rel. v. Crites, 48 Ohio St., 143, to our attention. It is true that in that case the act of 1888 was, as against objections there considered, held to be constitutional, and it was treated as valid legislation for the purpose of the judgment in that ease. But the considerations which conduct us to the conclusion that the act is void do not appear to have been in the minds of the court in that case. • To regard a case as authority upon questions which are not considered tends to the expulsion of reason from the law. One attempting to reconcile this legislation with the constitutional requirement here considered would find nothing of support in the case cited. He would find much adverse doctrine in both earlier and more recent cases dependent upon the consideration and effect of these sections of the constitution. Moreover State v. Crites has not become a rule of property for the present case. Since there is no law operating uniformly throughout the ' state authorizing contracts with tax inquisitors, there is none which operates anywhere.

In State ex rel. Wilson v. Lewis, the judgment of the superior court of Cincinnati is-

Reversed.

In Thomas v. State ex rel. Gilbert, the judgment of the circuit court of Montgomery county is

Affirmed.

Price, ■ Crew, Summers, Spear and Davis, JJ., concur. " ¡