author: Minshall, J.

text:
    Estabrook v. Royon, Guardian.

      Life estate — Forfeiture for non-payment of taxes — Errors in tax sale — Section 2852, Revised Statutes.

    No forfeiture of the estate of a life tenant accrues, under section 2852, Revised Statutes, from the failure of the tenant to pay the taxes on the land, in consequence of which the land is sold at delinquent tax sale, where, by reason of errors or irregularities in levying the tax or in making the sale, no valid deed can be made by the auditor to the purchaser at the tax sale.
    (Decided February 5, 1895.)
    Error to the Circuit Court of Shelby county.

      S. L. Wicoff, for plaintiff in error.

      C. M. Hughes, and Royon & Hess, for defendant in error.
   Minshall, J.

The action below was a suit in partition, brought by Royon, as guardian of Coral W. Henderson, a minor, claiming his ward to be tenant in common with the defendant of the undivided one-half of the premises described in the petition. The defendant answered that she is the widow of William Line, deceased, who died seized of the property, and, by his will, devised the same to her for life, or during widowhood, and at her death or remarriage, to their children; that she is in possession of the property under the will, having accepted its provisions; and that the plaintiff’s interest in the property is simply as heir of one of the deceased children of the testator. The averments of the answer are not denied, but, by way of avoidance, the plaintiff replied, that being in possession as such life tenant, the defendant has neglected to pay the taxes on the land for so long that, on January 18, 1887, they were, on due advertisement, sold by the auditor of the county for the taxes delinquent thereon for the years 1885 and 1886, and'did not redeem them in the time prescribed by law (section 2852, Revised Statutes), whereby her life estate in the land became forfeited to the next in estate. But the reply also- states, that on March 30, 1888 (over a year after the sale), the defendant deposited with the treasurer of the county, upon the warrant of the auditor, the sum of $269.10, and that Royon, the holder of the certificates of purchase at the tax sale, received the money and surrendered the. certificates to the auditor.

A trial was had and judgment rendered for the plaintiff, which was affirmed by the circuit court. After the determination of the case in the common pleas, defendant, Elizabeth Line, inter-married with one Estabrook, hence the'change that appears in her name. On the trial a bill of exceptions was taken, setting forth all the evidence. From this it appears that the defendant had on February 16, 1889, become the owner in fee simple of the undivided one-half of the land by purchase from the heirs of the other children, and that the plaintiff at the termination of the life estate of the defendant, would be the owner and entitled to the possession of the other half; that the land was in three separate tracts, and had been so listed for taxation in the name of William Line, no change having 'been made at his death; that only a part of each of these tracts had in fact been sold for the taxes delinquent on each — that is to say, seven acres out of a tract of twenty acres, ten acres out of a tract of forty acres, and ten acres out of a tract of forty-one acres. And it also appeared that there were a number of irregularities in the listing and sale of the land. The south half of one of the tracts had not been returned as delinquent in any sum by the treasurer; and his returns showed no reasons why the taxes on any of the tracts- had not been collected, as required by section 1043, Revised Statutes; the advertisement as to the amount due did not correspond in amount with the delinquencies returned by the treasurer, being greater; it in-eluded a delinquency on a ditch tax, which was not in the return of the treasurer; and a large part of the entire delinquency embraced an assessment for a turnpike, an equitable part of which should have been paid by the remaindermen. Section 2268, Revised Statutes. In fact the sale is admitted to have been void, and, as a consequence, no valid deed could have been made the purchaser at the tax sale by the auditor. The admission may be regarded as compelled by the course of the decisions in this state. Stambaugh v. Carlin, 35 Ohio St., 209; Younglove v. Hackman, 43 Ib., 69; Benner v. Denny, 18 Ib., 246; Woodward v. Sloan, 27 Ib., 592; Kemper v. McClelland, 19 Ohio, 308. Forfeitures are a matter of strict right and can only be claimed where the requirements of the law have been strictly complied with.

We see -no reason why the same strictness should not be required to work a forfeiture of a life estate for the nonpayment of taxes, under the provisions of section 2852, Revised Statutes, as is required to work a forfeiture to the state, or to support a title acquired on a sale of delinquent lands. It would seem somewhat remarkable to hold that a sale, which, by reason of irregularities, would not support a title to a purchaser, nor work a forfeiture to the state, would, nevertheless, work a forfeiture of a life estate to the one next in estate. Such a holding is not required by the reason nor by the letter of the statute. The language of the statute, as far as applicable, is as follows: “If any person * * * who shall be seized of lands for life, * * * shall neglect to pay the taxes thereon, so long that such lands shall be sold for the payment of the taxes, and shall not, within one year after such sale, redeem the same, according to law, such person shall forfeit to the person or persons next entitled to such lands in remainder or reversion, all the estate which he or she, so neglecting as aforesaid, may have in said lands.” By the terms of this statute the forfeiture is made to depend upon a sale for the nonpayment of taxes, and a failure to redeem within one year from the sale. Its language necessarily imports a valid sale, since an invalid sale is, in contemplation of law, no sale (cases above cited); and where there is no sale there is no forfeiture, and, consequently, nothing from which a redemption can be required. According to the usage of language, where a word is employed, without qualification, it is to be understood in its integral, and not in a partial or negative sense. To illustrate — a contract for the execution and delivery of a deed is not performed by the delivery of a defective deed. And so, in Cincinnati v. Diekmeier, 31 Ohio St., 242, an agreement to pay a contractor in “assessments” was-held to be an agreement to pay in “valid assessments.” So that, in this case, the statute can only, be held to apply where there has been a valid sale of the land. Where the sale is invalid, no title can be made the purchaser, and no loss of estate can, therefore, result either to the next in estate or to the life tenant. It is the loss that may result to the next in estate from the nonpayment of taxes on the land, which constitutes the reason and spirit of the statute, and when such loss cannot result from the neglect of the life tenant to pay taxes, the important fact is wanting on which the limitation in law, provided by the statute can take effect and work a forfeiture of the estate of the life tenant.

The case of McMillan v. Robbins, 5 Ohio, 28, is relied on to support the conclusions of the court below. But it is far, as we think, from so doing. It was the case of a sale made upon a valid' assessment — no question being made as to the amount of the tax or the regularity of the proceedings by which it was levied and the sale made. The case held that the happening of the event on which the forfeiture is made to depend, terminates the estate of the life tenant, and that the next in estate may enter without the judgment of a court leclaring the forfeiture. This we accept as the law, although it was held otherwise in Johnson v. Pettit, 1 C. S. C. R., 25, Stopper, J., delivering the opinion. The provision of the statute is in the nature of a limitation in law, which caunot be relieved against by a court of equity; Pomeroy’s Eq. Juris., § 458 ; the occurrence or the fact terminates the estate. But the fact must occur before the limitation takes effect; a void sale is not within the limitation and does not, therefore, work a forfeiture.

Again, it should be observed that under this statute 'it is' only the land sold that is declared forfeited; so that where, as in this case, only a part of the land is sold to pay the taxes on the entire tract, the forfeiture extends simply to the land sold.

It is argued that under the construction given the statute the land, by the neglect of the tenant, may be burdened with an accumulation of unpaid taxes, which the next in estate will have to pay when he comes into possession. This does not necessarily follow. Such accumulations can only result from the failure of the state, or purchaser, on a void sale for taxes, to pursue the proper legal remedy. Various methods are provided to the state for the collection of taxes; and the purchaser at a void sale is substituted to the lien and rights of the state; and, on a void purchase, may collect what is justly due from a life tenant as from a tenant in fee simple. Section 2880, Revised Statutes. So that the supposed hardship is more imaginary than real. At any rate the injustice of forfeiting the estate of a life tenant for failure to pay an illegally assessed tax, or to redeem from a void sale, may well be balanced against such possible hardships to the next in estate. And it is these considerations that have uniformly influenced the courts to apply the law with great strictness where forfeitures are claimed. They are odious in law, because they necessarily work a sacrifice of the rights of the party whose estate is forfeited. Where equity mayrelieve the sacrifice is less ; but where, as in this case, it cannot, and nothing but the pound of flesh will satisfy the demand, it is the duty of courts to see that all the requirements of the law have been complied with.

Judgments of the courts below reversed and cause remanded to the common pleas for further proceedings.

Williams and Bradbury, JJ., dissent.


source: Caselaw Access Project

author: Dickman, C. J.

license: Public Domain

text:
    Cincinnati v. Batsche et al.

      Street improvement — ■Condemnation of property — Special assessment by the foot front — Section 2264, Rev. Stat.

    Where a city appropriates land for the purpose of widening a part of a street, and provides by ordinance that the costs and expenses of the appropriation, shall be assessed by the foot front, upon the lots and lands abutting upon the part widened, and upon other lots and lands abutting upon the line of such street between certain designated points, such abutting lots and lands being declared by the council to be those which, in its opinion, will be specially benefited by the appropriation — Held:

      1. The assessment will be deemed to be on the foot front plan, as distinct from an assessment in proportion to the benefits that may result from the improvement, or according to the value of the property assessed, as provided by section 2264 of the Revised Statutes.
    2. The assessment will be held -valid and binding only as to such lots and lands as bound and abut on the improvement.
    3. The improvement, within the statutory meaning, has reference to the specific thing, of definite location, which is done or added to the street whereby it is improved. The term is not to be applied indiscriminately to any part of the street because it may have been improved, in the sense of having been benefited, by a change or addition made elsewhere on the street.
    4. Where a strip of ground from one side of a street is appropriated for the purpose of widening such street, the lots and lands fronting on the opposite side of the street at the part widened, will be held to abut on the improvement, although the street may intervene between the abutting lots and lands and the strip of ground appropriated.
    (Decided February 5, 1895.)
    Error to the Superior Court of Cincinnati in General Term.
    The original action was begun in the Superior Court of Cincinnati by Henry Batsche, one of the defendants in error, on behalf of himself and other persons named in his petition, to wit: Margaret Wilmer, The Walton Architectural Iron Company, The American Cotton Oil Company, Clifford Perm, Johanna Kirkpatrick, The Queen City Spring Company, Charles Harkness, F. A. Sudbeck heirs, and H. W. Schorfheide, to enjoin the collection of a special assessment levied by the city of Cincinnati, one of the plaintiffs in error, on their property abutting on Culvert street, between Fifth and Sixth streets, in said city, to pay the cost of condemning’ property to widen and open Culvert street to its full width between said points.
    Prior to July 22, 1887, Culvert street, between Fifth and Sixth streets, was partly opened to the width, of forty-three feet, but at the corner of Fifth street was only open about twenty feet, a lot belonging to the said Clifford Perin extending out into the street for about twenty-three feet at Fifth street, and running back about 166 or 167 feet, and extending about fourteen feet into the street at the rear, as shown by the plat attached to the original petition of which the following is a copy:

      This lot, so projecting into the lines of the street and shown by crossed lines on the plat, was condemned and appropriated by ordinance of the city of Cincinnati duly passed July 22, 1887. Said ordinance directed the city solicitor of said city to institute the necessary proceedings in a proper court to ascertain the compensation to be paid the owners of said ground so condemned, and also provided for a special assessment in the following words:
    “Section 2. The amount so found, together with the costs and expenses of said appropriation and the interest on bonds issued, shall be assessed per front foot upon the lots and lands bounding and abutting upon said Culvert street, as opened between the north line of Fifth street and the south line of Sixth street; the said lots and lands so bounding and abutting Culvert street, between the points aforesaid being, and the same are hereby declared to be the lots and lands which, in the opinion of common council, will be specially benefited by said appropriation according to the laws and ordinances on the subject of assessments; the assessment therefor to be payable in ten annual installments, and the same collected as provided bylaw and the assessing ordinance hereafter to be passed, and bonds shall be issued in anticipation of such assessment.”
    In pursuance of said ordinance, the city solicitor instituted proceedings for the purpose of ascertaining the value of the property appropriated, and such value was found to be $4,340.00. The bonds of the city were .issued in anticipation of the collection of the assessment, and the compensation for the property taken and costs paid. Thereafter, on February 2, 1889, the city passed an assessing ordinance to' assess a special tax on the real estate bounding and abutting on Culvert street between Fifth and Sixth streets, on each front foot at the rate of $5.233767 per foot, payable in ten equal annual payments, with interest at five per cent, per annum on the deferred payments, and in default of payment when due to be certified forthwith to the county auditor* to be by him placed on the tax duplicate and collected according to law.
    The cause to enjoin the collection of such, special assessment was heard in the Superior Court at special term, upon the original papers and pleadings on file, but the court finding that important questions of law and fact were raised by the parties, it was ordered that the cause be, and the same was reserved to the Superior Court in general term upon the certified bill of evidence filed in the case.
    The Superior Court, in general term, found that the said lot of Clifford Perin, 166.43 feet front and a part of which was the condemned strip, is the only lot bounding and abutting- on the strip of ground condemned; and also, that the lot of Henry Batsche, 150 feet front, and 16.43 feet of the lot of Margaret Wilmer bound and abut upon the part of Culvert street where it was widened under the condemnation proceedings; but further found, that none of the property owned by any of the other complainants in the petition, either bounds or abuts upon the condemned strip, or lies opposite the condemned strip, but all of it abuts upon Culvert street where no change in width was made by said condemnation proceedings.
    The court thereupon ordered, adjudged and decreed, that the assessments for the opening and widening of Culvert street be, and the same were declared null -and void as against all the parties complaining- and . named in the petition, except Johanna Kirkpatrick and Margaret Wilmer (as to whom the. cause was not taken from the special term on reservation), and except the assessment upon the said lot of Clifford Perin, which was held to be valid and binding. It was further ordered and adjudged, that the defendants, the city of Cincinnati, Edwin Stevens, city comptroller, Fred Raine, county auditor, and John Zumstein, county treasurer, be, and they were perpetually enjoined from demanding’, collecting or certifying any of said assessment, as against any of said parties named in the petition, as to whom, said assessments were found null and void; and that the cause be dismissed as to Clifford Perin, and that the defendants pay the cost of the action. Clifford Perin excepted to the judgment as to him, but authorized no petition in error to be filed, and the defendants excepted to that part of the judgment finding said assessments void, and enjoining the collection of the same.
    To reverse the judgment of the Superior Court in general term, this proceeding in error is instituted.

      Theodore Horstman and John Galvin, Corporation Counsel, for plaintiffs in error.
    This is a front foot assessment. The assessment involved in this ease is one by the foot front plan. It is not by the benefit plan nor by the valuation plan in any sense, nor does it, in any sense, involve any consideration of either of the latter plans. It is a front foot assessment and nothing else. The only question in the case, in our judgment, is, whether the property, involved and assessed abuts and abounds the improvement, in the words of section 2264, Revised Statutes, providing for front foot assessments; or, in other words, whether in making this assessment by the front foot, property was mistakenly included and assessed which does not abut the improvement.
    It was claimed by counsel for the property owners in the court below, that this assessment involves both the benefit plan and the front foot plan, and that an assessment involving more than one plan is void. He cited in connection the case of Kelly v. Cleveland, 34 Ohio St., 468, but we submit that that case does not bear out the argument he deduces from it. That case involved an assessment by benefits, but instead of apportioning the benefits in the manner provided by law (now sections 2277, 2278, 2279, 2280, 2281 and 2282, Revised Statutes), it was. attempted to simply make a uniform apportionment of the assessment by the front foot.
    We admit, of course, that an assessing district is necessary and also a determined, fixed plan of apportionment.
    The assessing district in this case is the property abutting the improvement. The plan is the front foot plan. The ground upon which counsel bases his claim and argument about this involving a benefit assessment as well as a front foot, of course assumes that some of this property does not abut the improvement, and, therefore, is not assessable by the front foot, and the use in the condemnation ordinance of this language, after defining the property to be assessed, viz., the said lots and lands so bounding and abutting Culvert street, between the points aforesaid, being and the same are hereby declared to be the lots and lands which, in the opinion of the common council, will be specially benefited by said appropriation.
    No property can be assessed which is not benefited. Section 2283, Revised Statutes. The recital that the lots to be assessed are specially benefited is not an attempt to make an assessment by benefits, in any sense. It is a mere necessary recital that the lots. abutting the improvement assessed by foot front are specially benefited. It seems to us merely necessary to state the proposition that this is an assessment by the foot front and does not involve an assessment by benefits as a plan in any sense, and that therefore any property which abuts the improvement is liable for this assessment; and that the claim of defendants in error that the assessment, even against Perin, who admittedly abuts the improvement (the grounds taken under their theory of what constitutes the improvement), is fallacious and will not stand.,
    By the amended petition of July 6, 1892, coun.sel for defendants'in error takes exactly the opposite shoot from that set up as his second cause of action in his original petition, by claiming that the improvement means only the ground condemned and taken, and not the street as improved. This same question was also raised, argued, and submitted to this court by counsel who represents the defendants in error in this case, in the case of The City of Cincinnati v. Larz Anderson, Executor, decided by this court with the case of Caldwell v. The Village of Carthage, 49 Ohio St., 334.
    The assessment in the Anderson case was a front foot assessment, exactly the same as the assessment in the case at bar. The condemnation ordinance in said case provides that the cost and expense of the condemnation and appropriation, together with costs of the action, shall be assessed per front foot upon the property abutting on Ravine street and Undereliffi avenue between Tusculum avenue and the northeast corporation of the city, etc. The Longworth property was a half mile or more from the property condemned, or the part of street widened; yet this court held that assessment valid. 49 Ohio St., 351.
    The Rademacher case decided at the same time, and with the-Carthage case and the Anderson case above, 49 Ohio St., 351, was also exactly like the case at bar, in that the street as improved was assessed, and not simply the property abutting the ground condemned to open the street.
    The case of Scoville v. Cleveland, 1 Ohio St., 126, will no doubt be cited and relied on by counsel, as holding that the improvement means the part of streets widened or opened, and not the whole street (though his contention in this ease and the finding of the general term goes even further than that, and is, that not even the part of the street widened is the improvement, but only the ground taken to widen the street), but an examination of the Seoville case will show that the assessment there was by the benefit plan to pay the cost of improving by a surface improvement a part of a street, and it was claimed that the assessment should be upon the whole street, part of which was improved, and the court held that the language of the law that an assessment by benefits should be levied on property abutting the street improved and other lots near thereto, meant the part of the street improved and lots near thereto, and did not require the assessment to be levied upon the whole street, perhaps a mile or more away from the improvement.
    In Creighton v. Scott, 14 Ohio St., 438, the assessment was also for the surface improvement of the street, and it was held that the assessment was properly limited to the part of street improved.'
    We admit that proposition. And in a surface improvement it is easy to determine what is the improvement. It is the tangible, perceptible thing done. But we are still confronted with the question at issue in this case, viz.: What constitutes the improvement where property is condemned to widen or open a street ? Is it simply the ground taken? Surely, that does not constitute the improvement. Take, for instance, the case at bar. The triangular strip of g’round projecting- out from Perin’s' property into what should be Culvert street, when condemned and appropriated, certainly does not constitute the improvement. But, on the other hand, is it not the reasonable and only fair thing to say that Culvert street, as opened and widened from Fifth street to Sixth street, constitutes the improvement.
    It is true that this court in the case of Smith v. Toledo, 24 Ohio St., 121, held that the extension of a street was not necessarily an improvement of the street extended. In the Smith v. Toledo case, the assessment was levied upon the property immediately abutting the ground taken, which was declared by the council in that case to be the improvement; and the court upheld the assessment in the face of the claim of such property owners, that the improvement was the whole street.
    We submit that that decision unholds our claim that the improvement is what the city council declares it to be in their condemnation ordinance.

      It seems to us that, whether we are not right or not, in our own claim as to the meaning of improvement, it certainly means more than the ground taken; it means at least the part of the street opened or widened. In other words, in this case, it means at least Culvert. street from Fifth street to a point 167 feet north, that being the part of the street widened; and hence Batsche and Wilmer, as well as Perin, abut the improvement, however narrow and limited a meaning may be given to that term.

      Coppock & Gallagher and Wm. C. Herron, W. M. Ampt, for defendants in error.
    Under section 2264, Revised Statutes, we claim that nonabutting property is not assessable' at all by the front foot, but is to be assessed by the benefit rule of apportionment. An assessing district is absolutely necessary as the basi s of a special assessment and a- fixed plan of apportionment covering the entire district, and a failure in either respect renders the assessment invalid. Section 2264, Revised Statutes; Welty on Assessments, section 297.
    The assessing district was properly established; but it is contended that the rule adopted for apportioning the assessment was fatally bad.
    Section 2264, Revised Statutes, not only requires ah assessing district to be established and a rule of apportionment to be adopted, but this is required to be done before the improvement is made. The assessing district, under section 2264, must include abutting property at all events, and adjacent and contiguous property also, if it is benefited.

      In this case the decree finds and sets out section 2 of the condemning- ordinance, from which it appears that the assessing district is Culvert street, from Fifth to Sixth, and that all the abutting property thereon is declared to be specially benefited, which finding of special benefit by a council is conclusive, if honestly made. This section also fixes the rule of apportionment, which is the foot front for the entire district. Our contention is, that while an assessing district has been established in a proper manner, yet that the rule of apportionment is fatally defective under section 2264, Revised Statutes.
    The result is, in this view, that no valid rule of assessment has been fixed as to that property which does not abut upon the improvement or the ground condemned for street purposes, although all of it is declared benefited.
    We claim further, that not even as to the abutting- property has a valid rule of assessment been established, and this by reason of the omission of a valid rule of assessment as to the non-abutting property, and that the assessment should be enjoined as to abutters as well as nonabutters.
    The rule of apportionment failing as to the non-abutting property, which, being found benefited, must be assessed, under section 2264, there is no rule of apportionment covering the entire assessing district; and so the assessment must fail as to the entire district as to the abutting as well as the nonabutting property. The exemption of a part of the district violates the rule of equality.
    The .foot front rule must fail as to the abutting property, because there is no means of ascertaining what proportion of the total cost is assessable on the abutting property, the gross amount assessable upon the nonabutting benefited, property being- unknown. The result is, that the assessing- district, as a whole, is without á rule of apportionment covering its entire extent; and the abutting and nonabutting parts have not the data or proportion of cost which is to be assessed upon each.
    The nonabutting property cannot be assessed under these proceeding’s because the foot front rule does not apply to it, and the condemning ordinance has not attempted to fix or apply any other rule of apportionment. And the abutting property is not assessable under these proceedings for the reason already stated, viz: in omitting to fix a rule for the nonabutting property, which the record shows, in each case, is the larger part, there is no blanket rule covering the whole assessing district. State v. Plainfield, 9 Vroom, 93, holds that where legal and illegal assessments for benefits are so blended that they cannot be separated, the whole assessment will be set aside. State v. Passaie, 9 Vroom, 169, holds where a principle of apportionment is adopted different from that prescribed, the assessment is void. State v. Commissioners, 9 Vroom, 190, holds that the mode of distributing the burden and of defining the property out of which the taxes are to be made, must both be designated, and some certain standard of assessment must be established. 8 Vroom, 12, 415. Kelly v. Cleveland, 34 Ohio St., 469, is a case where the plan of assessment adopted commingled the benefit and the frontage plan, and the assessment was not only held void but noncurable under the curative section.
    Where an assessing district is established by bounds specifically defined, as in the cases at bar, and. the rule of apportionment is defective as to a part of the district, or where it is by the foot front rule when such a rule is inapplicable to such part, then there is no valid rule as to any part of the district, even for that part where the foot front rule is applicable, or has been applied. The rule of apportionment must be coextensive with the district. Jœger v. Burr, 36 Ohio St., 164.
    Section 2264 is a revision- and consolidation of all the sections of the code of 1869, relating to assessments, being the only section authorizing them. Section 576 authorized assessments on abutting property, and 579 authorized nonabutting property, if benefited, to be included in the same assessment. The cost was to be apportioned by council, so much to be assessed by the foot front on the abutting property, and so much on the nonabutting property by the rule of benefits. We claim that section 2264, Revised Statutes, is substantially the same, and should be so construed. State v. Stockley, 45 Ohio St., 308.
    We do not question the right to assess the property specially benefited in a given case. When it is said the whole of Culvert street between Fifth and Sixth is improved, it means that it is benefited by the particular thing done, and the particular thing which is done is the improvement, and the consequence of it in the way of special benefit is the foundation of an assessment upon property which does not touch the thing itself done. In a sense the surface improvement of apart of a street improves the whole street, or at least that part in the vicinity, yet you are not bound to assess the whole street under section 2264. 1 Ohio St., 126; 14 Ohio St., 438.
    The Anderson case, 49 Ohio St., 351, was not ex-aetly like the ease at bar, for we claimed there that one thoroughfare under two names in different parts was not the same street, and no question was raised, urged, argued, considered or decided as to the rule of apportionment as to nonabutting property. In the second cause1' of action in the case at bar, we claimed only a reduction of assessment based on the entire street being’ assessable under section 2271.
   Dickman, C. J.

The special assessment, theva-' lidity of which is in controversy, was on the front foot plan, one of the modes of assessment designated in the Revised Statutes. The only question in this case which we deem it necessary to consider is, whether the costs and expenses of appropriating property to open Culvert street, should have been assessed per front foot upon the lots and lands bounding and abutting upon Culvert street, as opened between the north line of Fifth street and the south line of Sixth street, or, should have been assessed only on the lots and lands bounding and abutting upon that section of the street which embraced the improvement or property appropriated. And the same question, in principle, it may be here stated, was not, as suggested in argument of counsel, considered or passed upon by this court in the Anderson and Rademacher cases, decided in Caldwell v. Carthage, 49 Ohio St., 334.

It is provided by section 2264 of the Revised Statutes, that vdien the corporation appropriates lots or lands for the purpose of opening, or widening a street, the council may decline to assess the costs and expenses of such appropriation on the general tax list, in which event, such costs and expenses “shall be assessed by the council on the abutting and such adjacent and contiguous or other benefited lots and lands in the corporation, either in proportion to the benefits which may result from the improvement, or according to the value of the property assessed, or by the foot front of the property bounding and abutting upon the improvement, as the council, by ordinance setting forth specifically the lots and lands to be assessed, may determine before the improvement is made, and in the manner and subject to the restrictions herein contained.” The statute thus provides three forms of special assessment: (1) in proportion to benefits resulting from the improvement; (2) according to the value of the property assessed; and (3) by the foot front of the property bounding and abutting upon the improvement, three statutory modes of apportioning by special assessment, the costs and expenses of the improvement upon the lots and lands deemed to be especially benefited thereby.

The earliest law in this state authorizing municipal corporations to levy special assessments, to pay for land appropriated for opening or widening streets, on the property benefited thereby, independently of frontage or the value of the abutting property assessed, is found in section 539 of the Municipal Code of 1869,. as amended April 12, 1873 (70 Ohio Laws, 126). By that section, the council had power to assess the costs and expense of such appropriation upon the lots or lands benefited thereby — including not only the lots and lands abutting upon the street, but also those contiguous and adjacent. By subsequent section 579, it was provided, that if in the opinion of the council or board of improvements, the same would be equitable, a proportion of the cost of making the improvement might be assessed upon such other lots or lands within the corporation, not bounding- or abutting upon the improvement, as would, in the opinion of the council or board, be specially accommodated and benefited thereby. And by section 584, in all cases in which it might be determined to assess the. whole or any part of the cost of any improvement upon the lots or lands bounding or abutting upon the same, or upon other lots or lands benefited thereby, the council might require the board of improvements, or might appoint three disinterested freeholders of the corporation, or vicinity, to report to the council an estimated assessment of such cost on the lots or lands to be charged therewith, in proportion, as nearly as might be to the benefits which mig’ht result from the improvement to the several lots or parcels of lands so assessed. The aforegoing provisions of sections 539 and 579 are substantially embodied in section' 2264 of the Revised. Statutes; and section 584, without diminution, has been carried into section 2277 of the Revised Statutes.

A plan of assessment in proportion to resulting benefits, distinct from that according- to valuation, and that by the foot front, is therefore provided by statute, which is not limited to lots and lands bounding and abutting upon the improvement, but may be extended to lots and lands contiguous and adjacent, though situated on streets other than that of the improvement.

Special assessments according to valuation are characterized by distinctive features, and are regulated by a separate statutory plan under section 2269 of the Revised Statutes.

It must be evident, that the assessment under consideration in the case at bar, can be referred neither to the class according to valuation, nor to that in proportion to benefits, and must be regarded as an assessment by the foot front solely.

It is true that in the condemnation ordinance the lots and lands to be assessed, ‘ ‘bounding and abutting upon said Culvert street” between the given points, are declared “to be the lots and lands which, in the opinion of the common council, will be specially benefited by said appropriation.

But as properly said in argument of counsel, such declaration of benefits to accrue was only the finding and recital usual in ordinances providing for assessments, whether by benefits, by valuation, or by foot front, that the property to b¿ assessed is the property benefited. Such declaration by the council, that the property specially assessed will derive a special benefit, is only the statement of a legal presumption that accompanies every special assessment to pay for a street improvement. Whatever may be the plan adopted, whether by the foot front, according to valuation, or in proportion to benefits, the underlying principle is, that those who are to make a special contribution to bear the cost of a public improvement, are at the same time to suffer no pecuniary loss thereby — their property being increased in value to an amount at least equal to the sum they are required to pay. Cooley on Taxation, 606 (2d ed.).

The assessment in controversy being by the foot front, the assessing district established by the council, instead of including- only lots and lands bounding- and abutting- upon the improvement, embraced non-abutting property as 'well, lying between the north line of Fifth street and the south line of Sixth street. Recognizing the authority of the council to create an assessing district, it must be exercised in accordance with the requirement of the statute. The statute — section 2264, Revised Statutes — requires the council to set forth by ordinance “specifically the lots and lands to be assessed but when the assessment is by the foot front, it must be “of the property bounding and abutting upon the improvement.” In such case, the legislature has prescribed the assessing district, which excludes property not bounding and abutting upon the improvement.

The improvement upon which the property must abut has reference to the specific thing which is done or added to the street whereby it is improved. The improvement is the beneficial or valuable change or addition, and of definite location on the line of the street. In the present case, the improvement was embraced in that part of Culvert street, which was evidenced by appropriating the land of Clifford Perin. But it cannot be properly said, that all the lots and lands abutting on Culvert street, between Fifth and Sixth streets, abutted on the improvement, within the meaning’ of the} statute, because the street between those points might be improved, in the sense of being benefited, by the widening of the part at Fifth street.

The record discloses that the assessment was held by the circuit court to be valid and binding as to the property of Perin, because it abutted on the strip of ground condemned. But the property of Henry Batsche, bounding’ upon the part of Culvert street where it was widened under the condemnation proceedings, and lying opposite the condemned strip, was relieved from the assessment as land not abutting upon the improvement. It is true a portion of the street intervened, and the land of Batsche did not come in actual contact with the ground appropriated; but we do not think that the words of the statutes, “bounding and abutting upon the improvement,” are to be so restricted in their application as to exclude property in the same situation as that of Batsche in reference to the improvement. As soon as the appropriation was made, the ground became incorporated as part and parcel of the widened portion of the street, and the propertjr on both sides of the street abutted then on the improvement. Thereafter, the proprietors of lots. fronting on both sides of the street might enjoy the free and lawful use of the condemned land; and the easement in the street, appendant to the abutting lots, extended as well to the newly appropriated ground as to the remaining portion of the street in front of the lots.

In Richards v. Cincinnati, 31 Ohio St., 506, it was held that, where a strip of land ninety-one feet in width was dedicated for a street, and the municipal authorities improved a street thereon, of the width of ninety feet, leaving one foot on one side thereof unused, except in sloping the embankments and excavations, the owners of property abutting on such foot of land became liable to be assessed as owners of property abutting on the improvement. It was said by McIlvaine, J.: “It seems to us that, in order to exempt these proprietors from assessment as abutters on the improvement, it must appear that this intervening foot of land deprives them of full, free, and lawful access to the street improved. * * * If the public right to its use still continues, * * * their liability to assessment is certain. That this foot of land, before the improvement of the avenue, was subject to the use of the public, as part of a highway, is not disputed ; and we are unable to find any ground upon which it can be held that such right in the public has terminated. ’ ’

The principle thus announced by this court was applied in Chicago, Burlington and Quincy Railroad Company v. The City of Quincy, 136 Ill., 563, where the sidewalks, instead of the street, as in the case at bar, intervened between the street improvement and the lots bounding on the sidewalks. It was there held that, where a street is required to be improved between the sidewalks on either side, land or,lots extending up to the sidewalk will be subject to special taxation to defray the expenses of the improvement, as property contiguous to such street, the sidewalks for this purpose, being a part of the street, though not ordered to be improved.

In accordance with the foregoing views, the assessment by the foot front should be held valid and binding as to the property of Henry Batsehe —as bounding and abutting upon the improvement —and with a modification of the judgment of the circuit court in that respect, the judgment of that court should be affirmed.

Judgment accordingly.

Minshall, J., dissenting from the modification.

Spear, J., did not sit in this ease.


text:
    State v. Kendle.

      Jury commissioners — Appointment of by common pleas judges— Constitutional law — Validity of act of April S3, 1894 (91 Ohio Laws, 176).

    The act of the general assembly requiring the common pleas judges of the several subdivisions of the common pleas districts of the state, to appoint jury commissioners for the counties in their respective subdivisions, passed April 23, 1894 (91 Ohio Laws, 176), is not in conflict with any of the provisions of the constitution of the state, and is a valid law.
    (Decided February 5, 1895.)
    On exceptions of the prosecuting attorney to the ruling’s of the court of common pleas of Brown county.

      David Tarbell, prosecuting attorney, for the state.
    Is the act of the general assembly entitled “An act to provide for the appointment of jury commissioners and the selection of jurors in certain counties and to repeal certain sections therein named,” passed April 23, 1894 (91 Ohio L., 176), in conflict with the constitution of this state, and therefore void?
    Is a grand jury drawn in accordance with this act a legally constituted grand jury?
    It is claimed that the jury commissioners provided for by said act are county officers and that as said act provides for their appointment instead of their election, it is in conflict with sections 1 and 2 of Article X of the constitution, and the case of State ex rel. v. Brennan, 49 Ohio St., 33, is cited to support this claim.

      I make no contention upon the proposition that the constitutionality of a law should*be tested by proceedings in quo warranto. Neither do I urge that the jury commissioners that selected the names drawn from the wheel were officers cle facto and that until they are ousted or the office is declared vacant by competent authority they would be deemed officers de ju/re and their acts valid. That the acts of officers de facto as to public and interested third persons are held as valid, upon principles of public policy and justice as if thejr had been done by officers de jure is beyond controversy, yet I do not insist upon the applicability of this principle in this ease, for I believe that it is equally well settled that the acts of an officer de facto are invalid unless he is exercising the functions of a de facto or dejw'e office, and to my mind, to admit that the commissioners of jurors provided for by said act were de facto officers would be to admit the claim that the functions they were exercising were those imposed by a public or de facto county officer. This I do not believe to be sound law,
    My contention is that such jury commissioners are not county officers within the meaning of said section of the constitution, that they are not public officers at all, but are simply officers of the court created and appointed to aid in the administration of justice. They are under the supervision of the court that appoints them. The oath of office prescribed for them in said act. contains the obligation: “I will report to the court the names of any and all persons who in any manner seek by request, hint or suggestion to influence me in the selection of jurors.” Section 5 of said act makes it the duty of each of said commissioners “to report to the said court of common pleas the names of any and all'persons who shall attempt to influence said commissioners, or any of them, in their selection of jurors.” The punishment prescribed for attempting’ to influence said commissioners in the selection of jurors, I take it, is to be imposed by proceedings for contempt as the court would punish any person who would attempt in any manner to corrupt or improperly influence jurors themselves, or officers of the court in the discharge of their duties as such jurors or officers, the difference being’ only that the act fixes a limitation on the punishment.
    Every court of record has- an inherent power to make rules, not in conflict with the constitution or laws, for the transaction of its business, and to appoint subordinate officers as bailiffs, master commissioners or referees. The judge may make out a special venire for a jury and may ordinarily request any person to furnish him with the names of suitable persons for jurors. May not authority be given to the judge, by law, to himself select all the jurors of his court, and may not the law prescribe the manner of their selection by him? Because of such duty imposed upon him could it be said he was holding an additional office? Could not such'authority be given to any other officer of the court whether elected or appointed? Is one who is simply a ministerial officer of a court, as a bailiff, constable or crier, a public officer ? An attorney at law, is so far an officer of the court that it has such a necessary and inherent control over his conduct that it may summarily punish him for offending its dignity, or for wj misconduct that is violative of his professional duty, or in vindicating its honor. But can it be said that he is a county officer, or public officer ? •
    The Supreme Court of Appeals of West Virginia, holds upon the constitutionality of a law similar to this, that jury commissioners are not public officers but officers of the court. State v. Mounts, 14 S. E. Rep., 407; Mechem Pub. Off., section 57.
    In this view the act for the appointment of commissioners of jurors may be clearly distinguished from the act held to be unconstitutional in case of State ex rel. v. Brennan, and the decision stands.

      John M. Markley, for the court of common pleas.
    As the question was recentty passed upon by the court of common pleas of Lorain county, and the opinion thereon published and circulated extensively, it may be well to first consider it, for if sound, it will dispose of this case. The court, in that case, said it is not necessary to pass upon the constitutionality of the act, because the commissioners appointed thereunder are officers de facto, if not de jure. Ex parte Strang, 21 Ohio St., 610; State ex rel. v. Smith, 44 Ohio St., 348; Kirker v. Cincinnati, 48 Ohio St., 507.
    In each of the eases above referred to, there existed legally created officers, and the only question raised and decided was that the acts of the defcocto incumbents could not be attacked collaterally, but were valid as against third persons and the public. The law on this question is so well settled that it seems strange that the point should so often have been raised in this state. In this case it is not a question of the acts of de fcocto officers, but the existence of the office itself is challenged. It seems difficult to imagine the existence of an officer either de facto or de jure, without the existence of the office. The State v. City of Camden, 28 Atl. Rep., 82; Norton v. Shelby County, 118 U. S., 435; Mechera on Pub. Officers, sections 326, 327.
    The great weight of authorities, it seems, may be summarized thus: An unconstitutional act, where the defect is apparent on its face, confers no rights and imposes no duties, and it is to be regarded as though it had never been passed; but. an unconstitutional act, where the defect is not apparent on its face, may create a de facto office which will exist until the unconstitutionality of the act is shown by extrinsic facts. It is urged that although that part of the act providing for the appointment of the jury commissioners may be in conflict with the constitution, and, therefore, void, yet that part of the act creating the offices of the jury commissioners, is valid; and the officers, therefore, having been legally created, the authorities cited apply.
    To this argument this answer is made; if it be conceded, or determined, that the jury commissioners are county officers, and therefore elective, then that part of said act creating the offices of jury commissioners is in conflict with section 1, article V of the constitution, in this — that it abridges the right of every elector to vote, or be voted for. State ex rel. v. Constantine, 42 Ohio St., 437.
    The prosecuting attorney in his brief suggests that the constitutionality of the act cannot be tested by plea in abatement, but only by proceedings in the nature of quo wa/rranto. This position certainly is untenable. Thompson v. Watson, Attorney-General, 48 Ohio St., 552.

      It is well understood, of course, that the Supreme Court of this state has frequently held that mere irregularities in drawing and selecting grand jurors, afford no ground for sustaining a plea in abatement. But if this act be unconstitutional, and applying the rules laid down in the above cited cases of the State v. City of Camelen and Norton v. Shelby County, it follows that all of the acts of the so-called jury commissioners, were absolutely void; and as said act was the only law in existence providing for the selecting and drawing of a grand jury for the term at which Kendle was indicted, and it being held void it would follow that the defendant, Kendle, was indicted by a body of men assuming to act as a grand jury without any authority of law therefor.
    While the constitution names a grand jury, yet that instrument is, but in a few instances, self-executing. The demurrer to the plea admits all of the facts therein set forth, among others that the defendant did not, and possibly could not have had an opportunity to challenge the array or to interpose any objection to the grand jury being impanneled and sworn. He objected at the first opportunity. State v. Russell, 58 N. W. Rep., 915; section 6760, Revised Statutes; Lawson’s Rights Rem. and Prac., volume 7, section 4040.
    If the act in question is unconstitutional it created no office; therefore, there could be'no usurpation or intrusion. Where the office legally exists but is filled by proceedings under an unconstitutional act there can be no question but that quo xoarranto is the proper remedy.
    The court sustained the plea in abatement on the ground that the act in question is in conflict with sections 1 and 2 of Article X of the constitution. This holding was upon the authority of the State ex rel. v. Brennan, above cited.
    The prosecutor claims that this authority is not in point, for the reason that the jury commissioners, provided for in said act, are not county officers, but are simply officers of the court, like special commissioners, referees, appraisers, receivers and other similar officers; and in support of his proposition he cites the case of State v. Mounts, 14 S. E. Rep., 407. This involves a consideration and comparison of these last two decisions, and, also, of the constitutional provisions of the states, Ohio and West Virginia, relative to this subject.
    Now, the main question is, are the jury commissioners created by the Ohio statutes, officers like receivers, referees, etc., or are they county officers. The jury commissioners do not have to report to the court,’ but the court is bound to accept as jurors, unless disqualified, the persons selected by the jury commissioners.
    As it will be seen, this statute comes within every rule and requirement laid down in the Brennan case; yet, it is a stronger case in this, that the stationer storekeeper’s tenure to his office was at the mere pleasure of the clerk of the court — a tenant at will, so to speak — -while the commissioners of jurors hold their offices for a definite term, without the power of removal therefrom being lodged in any other officer.
    But the prosecuting attorney thinks that' the jury commissioners are under the supervision of the court, because of the form of oath prescribed. Could -not the same oath have been prescribed for township trustees and other officers in their selection of jurors under the old law? However, an oath is not necessary as decided in the Brennan case.
    But, if required, it is only a condition precedent to,the taking of an office. The oath under this statute, it may be said, imposes an obligation independent of the duties for which the office was created. But this obligation is prescribed by law, because the statute prescribes this form of oath, and the only connection with it which a judge may have, is to administer it.
    And right in this connection it is important to consider the fact that almost since the organization of the state the power of selecting the names of jurors has been conferred upon elective officers, such as township trustees and the like, the courts have no inherent power to select jurors. 40 Fed. Rep., 66. The only power to select jurors is given courts by statute, such as special venires to fill up the panels in petit juries. Is not the statute, then, under consideration, an attempt to create new offices and impose upon the incumbents duties which were formerly imposed upon other elective officers ?
    While I believe the above considerations are decisive of the case, yet I further wish to say that I believe the act in question is in conflict with section 26, article II, of the constitution, notwithstanding the decision in the case of McGill v. The State, 34 Ohio St., 228. The opinion of the court, so remarkably divided as it was in that case, is entitled to but little weight.
   Minshall, J.

On April 23, 1894, an act was passed by the general assembly of the state (91 Ohio Laws, L76), providing for the appointment of a jury commission and the selection of juries in all except the following counties of the state, to wit: Cuyahoga, Franklin, Hamilton, Lucas, Montgomery and Mahoning-, each of which, as the act states, has a special act governing the selection of juries. The act requires that on or before the fourth Monday of May of each year, the judges of the court of common pleas in each subdivision of the common pleas districts of the state, shall appoint four judicious freehold electors to be commissioners of jurors in each county for one year. The act excludes all attorneys at law from the commission, and not more than two persons of the same political party are to be selected. After taking an oath to faithfully discharge their duties, and return no one who has directly or indirectly solicited to be returned, or that they believe unfit for the position, or will return a partial verdict; and having been instructed as to their duties under the act by the court, they are required to meet on the fourth Monday of May at the office of the auditor of the county, and select such number of judicious and discreet persons, having the qualifications of electors, as the court may direct. The name of each person so selected is to be written on a separate piece of paper, and placed in a wheel to be previously provided by the county commissioners ; and, having been securely locked, the wheel and the key are to be placed in the custody of the county clerk. From this wheel, in the manner provided in the act, grand and petit juries are to be drawn when directed by the court.

By a grand jury drawn under the provisions of this act, Edward Kendle was indicted for a misdemeanor in Brown county. He filed a plea in abatement setting up the drawing of the jury under the act, and, claiming the act to be unconstitutional, asked to be discharged. The state demurred to the plea, the demurrer was overruled, and the defendant discharged. The prosecuting attorney excepted to the ruling of the court, and brings the question here on a bill of exceptions, for the judgment of this court on the accuracy of the ruling.

1. The first objection to the validity of the act is, that it is a law of a general nature, not uniform in its operation throughout the state, as required by section 26, article II, of the constitution. The act applies to all the counties in the state, except those before named, which are excepted because each has a jury system of its own, provided by law. The validity of the act relating to Cuyahog-a county was questioned on this ground in the case of McGill v. The State, 34 Ohio St., 228; but the objection was overruled and the law held valid. The question was fully and exhaustively discussed by Boynton, J., in delivering the opinion of the court, and we are not now disposed to question the soundness of that decision; and are, therefore, of the opinion that the present act is not invalid on this ground.

2. It is also claimed that the statute is invalid, because it provides for the appointment of the members composing the commission, instead of their election by the electors of the county, as is required in the ease of all county officers by section 2, article 10, of the constitution. This presents a question of more difficulty; for if within the meaning of this section, the commissioners are to be regarded as county officers, they cannot be appointed and the statute is invalid. But in considering the question we are not to forget the rule, that forbids a court from declaring an act of the legislature invalid on the ground that it violates the constitution; to do this the court must he clearly of the opinion that such is the case. As long as it has a reasonable doubt about it, the doubt should be resolved in favor of the law and the judgment of the legislature. The case of State v. Brennan, 49 Ohio St., 33, is relied on. In that case the act, held invalid, created the office of “stationary storekeeper” for Hamilton county, to be filled by the appointment of the clerk of the court of the county. It was a separate and distinct office provided for that county. The power of the legislature to provide for the appointment of persons to act as assistants in an office filled by election has not, and cannot well be questioned. It is on this principle that the appointment of deputy clerks, deputy sheriffs, and so forth, are made and recognized, each of. whom perform many, and in some cases all, the duties of the office in which he acts as deputy. So as to these jury commissioners: They are appointed by the common pleas judges to assist in the administration of justice, as are master commissioners and. court constables. They are but handmaids of the court in the selection of judicious and discreet persons to serve on such juries as are required in the trial of causes, and the presentment of indictments. A similar view was adopted by the Supreme Court of West Virginia, in the case of the State v. Mounts, 36 W. Va., 179, 184. In that case the question arose on the power of the courts to appoint jury -commissioners, conferred by a statute of the state — it not being competent to the legislature, by the constitution of the state, to confer on “any court or judge thereof,” the power of appointing “officers.” “The question here presented, ” say the court, “is, whether the jury commissioners created by the act now under consideration are officers of the state, or whether they are in fact, like jurors themselves, mere officers of the court, such as commissioners in chancery, and in the general sense, attorneys. We think there can be no doubt that such commissioners belong to the latter class, and go to make up a part of the judicial machinery, such as commissioners in chancery, general and special receivers, and other similar officers. Jurors are themselves, in a certain sense, officers of the court; and this special commission is only a legislative device intended to aid the court in selecting them. ’ ’

It is not doubted but that the judg’es mig’ht be authorized to select the jurors to be returned in all cases, as they are in some. As then the duty mig’ht properly be performed by the court, no good reason is perceived, why the court may not be authorized to appoint suitable persons to assist it in .performing the duty, as is done in many similar eases. Habit and custom have much to do with our view of a law. Under the act just repealed, jurors were selected by the township trustees and the couneilmen of the wards. Jurors selected by them were not selected for their respective townships or wards, but were selected for the whole county; and the duties performed by them in this regard were not performed for their respective townships and wards, but for the whole county. They in a sense constituted boards for the selection of jurors for the courts of the county. Still they were not elected by the electors of the county, but by the electors of their respective townships and wards, as they should have been, if those charged with the selection of jurors, are to be regarded as county officers, within the meaning’ of the section of the constitution above referred to.

The majority of the court see no such objections to the validity of the law as would authorize a court to declare it unconstitutional.

The exceptions of the prosecuting attorney are therefore sustained.

Spear and Bradbury, JJ., dissent. •


author: By the Court.

text:
    Chaffee v. Foster.

      Life estate — •Tax sale — Mortgage foreclosure — Purchaser cannot claim forfeiture of life estate — Section 283%, Revised Statutes.

    The purchaser of an estate in remainder at a sale on foreclosure of a mortgage upon the estate, made subject to the life estate on which the remainder is limited, cannot claim a forfeiture of the life estate from a sale of the lands at delinquent tax sale, and a failure to redeem within the time prescribed by section 2852, Revised Statutes, where the omission occurred prior to the foreclosure, and there is nothing to show but that the forfeiture was waived by the mortgagor.
    (Decided February 5, 1895.)
    Error to the Circuit Court of Summit county.
    Marvin, Sadler & Atterholt, for plaintiff in error.

      Tibbals & Frank, for defendant in error.
   By the Court.

This was a suit to quiet title. The plaintiff below, Elizabeth Poster, was the owner of a life estate in the lands described in her petition, devised to her by the will of her husband. The lands were sold by the auditor at delinquent tax sale, January 19, 1886, and were not redeemed by her within a year from the sale. One Dosenberry had a mortgage on the interest of the remainder-man in the property, and paid to the purchaser at the tax sale the amount of his claim and took an assignment of the auditor’s certificate of the purchase. His mortgagee not being- paid, he caused it to be foreclosed, and the plaintiff in error, Chaffee, became the purchaser. In the distribution of the proceeds, Dosenberry was allowed and paid the amount he had paid to the purchaser at the tax sale; and claiming to be the owner in fee simple and entitled to the possession of the land, on the ground that under section 2852, Revised Statutes, the estate of the plaintiff in the land was forfeited, the suit was brought by her to quiet her title. Among other things she averred in her petition that the sale on foreclosure was made “ without affecting, and subject to her life estate in the premises” — on which an issue was taken by an answer. The case was appealed to the circuit court, which found on the issues joined for the plaintiff, and made a decree quieting her in the possession of her estate.

Held, that the sale on foreclosure having been made, as found by the court, subject to the life estate of the plaintiff, the purchaser at the sale acquired simply an estate subject to the life estate of the plaintiff. The fact that, the omission to redeem the land from the sale for taxes within the time prescribed by section 2852, Revised Statutes, may have worked a forfeiture of her life estate to the mortgagor, as the next in estate, does not enlarge the estate acquired by the purchaser at the sale on foreclosure, the omission having occurred prior to the foreclosure. The mortgagor may have waived, the forfeiture, which he could have done, without in any way impairing the rights of the mortgagee under the mortgage. All the estate subject to the mortgage, was an estate in remainder, to commence as an estate in possession, on the death of the plaintiff, or her remarriage, neither of which events have occurred.

Judgment affi/rmed.

Williams and Bradbury JJ., dissent.


text:
    Cuff, Judge, v. State ex rel.

      Out-let ditches — Payment of cost by uhper to lower county — Act supplementary to chapter 1, title 6, Revised Statutes. (86 Ohio Laws, 123) — Validity of.

    (Decided February 19, 1895.)
    Error to the Circuit Court of Henry county.

      James P. Ragan and. Campbell & Van Campen, for plaintiff in error.

      Parker & Moore, for defendants in error.
   By the Court.

The act entitled An act, supplementary to chapter one, title six of the Revised Statutes of Ohio, 86 Ohio Laws, 123, and the amendments of sections one, two, three and ten, 90 Ohio Laws, 81, providing for the payment by the upper county to the lower county of the cost of out-let ditche's, are in every respect valid enactments; and upon failure on the part of the probate judge of the upper county, on notice from the probate judge of the lower county, to appoint free-holders, as provided in said act, such probate judge of such upper county may be compelled by mandamus to make such appointment.

Judgment affirmed.


text:
    Albright, Adm'r, v. Hawk et al.

      Finding of facts — Must determine the ultimate facts in issue — Finding of evidential facts not sufficient.

    (Decided March 5, 1895.)
    Error to the Circuit Court of Seneca county.

      John L. Cole and McCauley & Weller, for plaintiff in error.

      Chittenden & Derr, for defendants in error.
   By the Court.

The issues joined in the court of common pleas' required the defendants in error,’ who were plaintiffs there, to establish the death of Catharine Hawk as whose representatives they claimed to be entitled to share in the distribution of the personal estate of the intestate. On a trial to the court, and upon a request that its conclusions of fact should be separately stated from. its conclusions of law, the court found that Catharine Hawk had been absent for more than seven years, during which time she had not been seen nor heard from by her relatives or acquaintances; hut did not find that she was dead. It thereupon rendered judgment in favor of the defendants in error.

The most that can he claimed from the facts found is that they raise a rebuttable presumption of death. The record permits the assumption that such rebuttable presumption was overcome. To sustain a judgment it is necessary that the facts found be the ultimate facts in issue. A finding of facts that are only evidential in their character is not sufficient. The facts found must be conclusive upon the questions at issue. Leach v. Church, Adm'r, 10 Ohio St., 148; Jones et al. v. Brown, 11 Ohio St., 601.

There is error in the judgment of the court of common pleas, and that of the circuit court affirming it.

Both judgments a/re reversed.


author: Shauck, J.

text:
    State ex rel. v. McCarty, Judge.

      Trial by jury — Of accused person — Change of venue — Section 7268, Revised Statutes.

    The guaranty contained in section ten of the bill of rights, that an accused person shall have a “trial by an'impartial jury of the county or district in which the offense is alleged to have been committed,” does not require that the trial shall take placewithin the judicial district where the indictment is found; and under section 7263, Revised Statutes, the court in which an indictment is returned may, on motion of the accused, if an impartial jury cannot be had there, order that he be tried in any adjoining county.
    (Decided March 12, 1895.)

      Mandamus. On the 8th day of March, 1894, one Sarah Snell was indicted for a felony in Wayne county.
    She moved in the court of common pleas for a change of venue, and the court, Ending that she could not have a fair and impartial trial in Wayne county, sustained her motion and ordered that she he tried in the county of Stark, which adjoins Wayne, but is not in the same judicial district. The original indictment, and certified transcript of the proceedings were sent to the clerk of the court. of common pleas of Stark county. The defendant, Hon. Thomas T. McCarty, who is a judge of the court of common pleas holding the term of said court in Stark county, being of the opinion that his court is without jurisdiction to try the accused, refuses to proceed.
    The relator prays for a writ of mandamus commanding him as such judge to proceed with the trial of the said cause.

      J. K. Richards, Attorney-General, Ross W. Funck, Prosecuting Attorney, Aquila Wiley and A. D. Metz, for the relator.
    Section 5032 of the Revised Statutes, which provides for a change of venue, is in the following language: “When it appears to the court that a fair and impartial trial cannot be had in the county where the suit is pending, the court may change the place of trial to some adjoining county.” It is contended by the respondent that this statute should be construed as though it read “some adjoining county of the same common pleas district.” This is not permissible by the rules governing the construction of statutes. The language of the statute is clear, intelligible, and free from ambiguity. In such ease the statute is not open to construction. Its meaning must he derived from the language of the statute itself. Blackstone, voL 1, marginal page 60, note 12; Wilcox v. Nolze, 34 Ohio St., 520.
    It is contended that this act, so far as it authorized a change of venue to a county not in the same common pleas judicial district, is unconstitutional, as being in conflict with section 10, article I, of the constitution. As a general rule one part of an act will not be held unconstitutional, and another part constitutional, unless the respective parts are independent of each other. They must stand or fall together. State v. Com. of Perry Co., 5 Ohio St., 497; Monroe v. Collins, 17 Ohio St., 665.
    The rule for construction of constitutions is precisely the same as that for the construction of statutes to which we have heretofore adverted. If the word district, as used in this clause, means common pleas judicial district, then it is optional with the legislature to provide in the first instance for the trial of the accused by a jury of the common pleas judicial district, whether an impartial jury could be obtained in the county in which the offense is alleged to have been committed or not. In other words, the constitution does not secure to a citizen the right to be tried by a jury of the county in which the offense is alleged to have been committed. It only secures to him the right to be tried either by such jury or by a jury of the common pleas judicial district to which such county belongs, at the option of the legislature.
    The language of this clause in section 10 of article I of the constitution of 1851, is identical with that of a clause in section 11 of article VIII of the constitution of 1802. Under the constitution of 1802 there were no common pleas judicial districts, so it could have been susceptible to no such construction under that constitution.
    The language of this clause in the constitution of 1802 was no doubt taken, with some modification from the constitution of the United States. Article VI of the'constitution of the United States provides that “the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district, wherein the crime shall have been committed, which district shall have been previously ascertained by law.”
    In the constitution of 1802, it was contemplated, that in many cases it would be necessary for the accused to be taken, for trial, from the county in which the offense was alleged to have been committed, hence the disjunctive conjunction was used. Take the case of Columbiana county with the counties of Stark and "Wayne attached. If the copulative conjunction had been used, it would have been necessary to have assembled at the county seat of Columbiana three juries, one from Wayne, for the trial "of cases arising in Wayne, one from Stark, for the trial of cases arising from Stark, and one from Columbiana, for the trial of cases arising- in that county; but under the constitution of 1802 as it was framed, it was sufficient if the jury was either from the county or district. Thus, a Columbiana county jury was competent to try eases arising in either Stark or Wayne.
    From the foregoing we conclude,
    1st. That the word district, as used in the constitution of 1802, did not mean common pleas judicial district, for there were none under that constitution, or under any statute passed under said constitution.

      2d. That it meant a county with such territory, organized or unorganized, .as the legislature might attach thereto for judicial purposes.
    3d. That it has no application whatever tocases ■ in which it might he found impossible to obtain a fair and impartial jury, in the county or district in which the offense was alleged to have been committed.
    4th. ■ That the legislature was entirely untrammeled by any constitutional provision, as to where the trial should be held or where the jury should come from, in case a fair and. impartial jury could not be obtained, either in the county or the district, in which the offense was alleged to have been committed. If this was the force, effect and meaning of this provision as it stood in the constitution of 1802, we know of no rule of construction that would give it any different force and effect, when incorporated into the constitution of 1851.
    The constitution of 1851 contemplated as indicated in section 13, of article XI, that new counties might thereafter be organized. This constitution does not, as did that of 1802, confer upon the court criminal jurisdiction. That .is left wholly to the legislature. It has also the power to create courts other than those provided for expressly in the constitution of 1851. It is therefore within the power of the legislature to entirely separate the criminal from the civil practice, and to create criminal districts, if it sees fit, comprising more than one county, and to establish courts therein, having exclusive criminal jurisdiction. People ex rel. v. Dayton, Auditor, 55 N. Y., 367.

      A. A. Thayer, for respondent.
    It is contended by counsel for the state that the court of common pleas of one county has the power to remove a case therefrom to an adjoining-county, although in another judicial district, and section 7263 of the Revised Statutes is cited in support thereof. In order to give this contention any force, this section must he so construed as to permit the - removal of cases to any adjoining-county, whereas, the plain language of the statute is that such removals shall be to some adjoining-county. This section should be construed in a restricted sense, so as to permit removals .from one county in a district to adjoining counties therein, and so as to give full force to the phrase county or district, in the bill of rights. Const. 1851, article I, section 10.
    The provision in the bill of rights, doubtless, arose out of a somewhat similar provision in the sixth amendment to the constitution of the United States. The phrase county or district is used in the constitution of Ohio, instead of state and district in the federal amendment. The clause, ‘ ‘which district shall have been previously ascertained by law” is omitted in our bi.ll of rights.
    Both counties and judicial districts in the territory of Ohio had been established prior to, and at the time of, the adoption of the constitution of 1802, and were recognized thereby, and that, for this reason, it was not proper to omit the federal provision “which district shall have been previously ascertained by law.” The rule is well established that political organizations, existing at the adoption of a constitution and recognized by name in such instrument, are not organized thereby, but have force by reason of such recognition. Gass v. Dillon, 2 Ohio St., 607. It is true, by the constitution of 1802, it was provided that the state should be divided into common pleas circuits, instead of districts. Article III, section 3. But this was the name which had been given to the general court for the five districts, under the territorial laws. Chase, Statutes, p. 306. And doubtless, the circuits named in the constitution of 1802, were interchangeable with the districts theretofore existing, and thereafter created in pursuance of the constitution of 1851. •
    By the constitution of 1851 the state was divided into nine common pleas judicial districts. Article I, section 10. And these are the only judicial districts named in the constitution. This court has already decided that the same word used more than once in the same act shall be presumed to have been used each time in the same sense, unless a different intention appears therein. Rhodes v. Weldy, 46 Ohio St., 234; Sutherland on Stat. Const., sections 219, 239, 253, 255.
    It was held by this court at its last term, that common pleas judicial districts, as provided by the constitution, must be bounded by county lines, and hence cannot be smaller than a county. State v. Jacobi, 52 Ohio St., 66. It must follow that the term district, as used in the bill of rights, contemplated a greater district than a county. If the two were synonymous, then the phrase or district would be entirely superfluous. The meaning would have been much clearer by the use of the word county standing alone. The terms county or district, as used in the clause, must both be held to have a meaning ánd a use. In re Elder v. Ford, 46 Wis., 548; Wheeler v. State, 24 Wis., 53; State v. Krupp, 40 Kans., 149; Oliver et al. v. State, 11 Neb., 1. The question has been once raised, but perhaps not decided in this court. State v. McGehan, 27 Ohio St., 280. How can it be said that the statute is appropriate legislation to enforce the hill of rights, if it is in conflict therewith? State v. Myers, 21 Law Bull., 61.
    But, it is said, these are rights conferred on the accused, which may be waived, and are not jurisdictional. We contend that, either taken with, or independent of the rights of the accused, this provision is jurisdictional, and that, not only is it the duty of the court to allow to the accused a trial in the county or district, but that the court, in its own right, and in the per for manee of its statutory duties, has the power and right to refuse an unlawful jurisdiction, which, without its consent, is thrust upon it. The language used in the bill of rights is,that the accused shall be allowed an impartial jury of the county or district. Article I, section 10.
    The settled meaning of the term “to allow”is, “to grant, give, admit, afford, or yield.” Here is a duty placed on the court. The first step must be taken by the court, and this certainly concerns the jurisdiction. Common pleas judg’es are only officers of their several judicial districts, and have no extra territorial powers. Article IV, sections 3, 10, 12. District Court Case, 34 Ohio St., 431.
    The judges of the court of common pleas are judges of their respective districts. Railroad Co. v. Sloan, 31 Ohio St., 2, 13.
    Further, the constitution provides that the jurisdiction of the courts of common pleas, and of the judges thereof, shall be fixed by law. Article IV, section 4. ' Revised Statutes, sections 457, 467, 469.
    It would be strange, indeed, if, after such labor has been apportioned, a judge of one district, having no power or jurisdiction in this, could, instead of changing’ the venue of his causes to counties in his own. district, remove, them to this, and the court of this district have no power to refuse to try them. If this should be held to be the law there would be nothing’ to prevent a removal from one remote county to another in the state.
   Shauck, J.

The order of the court of common pleas of Wayne county, as counsel agree, is within the terms of section 7263, Revised Statutes: “All criminal cases shall be tried in the county where the offense was committed, unless it appear to the court, by affidavits, that a fair and impartial trial cannot be had therein; in which case the court shall direct that the person accused be tried in some adjoining county.”

But the contention of counsel for the defendant is that the natural import of the terms of the statute must be restricted, to the end that it may not conflict with section 10, article I, of the constitution which guarantees to “the party accused * * a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.” The rule of interpretation suggested is familiar; and its application here is said to require that the statute be so read that the place of trial shall be changed to an adjoining county of the judicial district. The arg-ument is that as the word ‘ ‘district’ ’ is used in this section of the bill of rights with reference to the place where a judicial inquiry shall be conducted, it should be understood as meaning one of the judicial districts for whose creation the constitution makes provision. The force and aptness of this reasoning are apparent; and it seems to have controlled the decisions in some of the cases cited from other states. Although the question is, so far as we know, not settled by any adjudication in this state, we are aware that in, at least, some of the districts, the practice has been • in such cases to order that the accused be tried in an adjoining county of the same district; though this course may have been prompted by a desire to avoid the question which we are now required to determine.

Whether the considerations stated are entitled to controlling effect must be determined by opposing considerations suggested by other provisions of the constitution, the purpose for which this guaranty was inserted in the bill of rights and the generally understood meaning of its terms at the time of its adoption.

Section 3 of article IV ordains that “the state shall be divided into nine common pleas districts, of which the county of Hamilton shall constitute one; and section 12 of article XI, makingthe apportionment for judicial purposes, that: “The county of Hamilton shall constitute the first district, which shall not be subdivided.” We cannot adopt the view of counsel for the defendant, unless we are prepared’ also to adopt the view which these provisions would make inevitable, that the trial of one accused in Hamilton county cannot be changed to any other county. In this connection, and in the view that the law providing for a change of venue is of a general nature, the provision of section 26, article II, is significant: “All lavys of a general nature shall have a uniform operation throughout the stale.” A law of this nature can have no operation anywhere, unless there be such interpretation of this clause in the bill of rights as will permit it to operate everywhere.

The source of jurisdiction to try an accused person is found in other provisions of the constitution. This clause guarantees to him the personal right indicated. The substance of that right is a trial before an impartial jury of the county in which the offense is alleged to have been committed, or so near thereto that he may have the legitimate benefit of his own reputation and that of his witnesses, and that he may, with as much certainty and as little expense and inconvenience as are practicable, secure the attendance of his witnesses. For the preservation of that right the accessibility of the place of trial is highly important. Whether the boundary of a judicial district intervenes, is of no importance whatever. Weyrich v. The People, 89 Ill., 90.

That the term “district” is not used in the sense of judicial district is indicated by other provisions of the instrument. Although section 12, article XI, apportions the state for judicial purposes, the general assembly is authorized to erect new counties and attach them to a convenient district, and by section 15, article IV, it is vested with continuing power to change the districts, or to increase or diminish the number of the districts. It is not, therefore, by irrevocable provision of the constitution, but by the acquiescence of the legislature, that the counties of Wayne and Stark are in different judicial districts. If the general assembly should so exercise the powers thus expressly granted as to place these counties in the same judicial district, the ground of the defendant’s contention would disappear. The insubstantial character of the objection to the jurisdiction of the court of common pleas of Stark county appears when we remember that there can be no denial of the authority of the general assembly to provide for the trial there, and there is really nothing more than a doubt as to the form in which the undoubted power has been exercised.

There is no constitutional right to a trial in an adjoining county, unless it is implied in the use of the word “district.” If that should be construed to mean the judicial district, it would result that the place of trial might be changed to a remote county of the district, whereby the right guaranteed would be seriously impaired. The provision of the statute, that in the case contemplated the place of trial shall be changed to an adjoining county, is a legislative interpretation of the constitutional guaranty. That interpretation regards the district as the vicinity; and it is to be commended unless inflexible rules forbid the preservation of the guaranteed right with its highest value.

It would perhaps be unprofitable, if it were practicable, to seek the meaning of this term beyond the bill of rights in the constitution of 1802, whence it was immediately derived, when incorporated into the present constitution. In the former constitution the term could not have had the meaning now claimed for it by counsel for the defendant, since the judicial district, eo nomine, was unknown in that instrument. When the language was so derived from the former constitution, it had for thirty-five years received the same practicable interpretation which is now questioned. By the seventeenth section of the act entitled “An act pointing out the mode of trying criminals,” passed February 26, 1816, the general assembly provided for the enforcement of the constitutional guaranty, by a change of the place of trial to an “adjoining* county,” if a proper jury could not be had in that in which the offense was committed. "We adopt a familiar and salutary rule of interpretation when we hold that these words were adopted into the present constitution, with the same meaning' they were known to have in that from which they were derived.

To myself this conclusion, reached after a careful consideration of the reasons involved, is not less satisfactory because at variance with tentative views previously entertained.

Peremptory writ allowed.