text:
    State ex. rel. v. Campbell.

      Decennial Apportionment of the State for members of the General Assert bly — Action of Board — When may be directed by mandamus — When not — Appoi-tionment of April 13, 1891, a valid one.

    1. Where the governor, auditor and secretary of state, or a majority of them, as the board created by section 11, of article 11, of the constitution, for the decennial apportionment of the state for members of the general assembly, have made an apportionment, they cannot be required by mandamus, or otherwise, to make another apportionment, unless the apportionment as made so far disregards the principles prescribed by the constitution, as to warrant the court in saying that it is no apportionment, and should be treated as a nullity.
    2. The apportionment made by the board, concurred in by the auditor and secretary of state, at the session of the board held April 13, 1891, does not violate any of the principles prescribed by the constitution, and is a valid apportionment.
    (Decided June 16, 1891.)

      Virgil O. Lowery, John S. Friesner and T. F. Poivell, for the relator.

      I). K. Watson, Attorney General, and A. G. Thompson, for the defendants.
   In Mandamus. On April 13,1891, the governor, auditor and secretary of state, acting under the power conferred on them as a board by the 11th section of the 11th article of the constitution, proceeded to and did make an apportionment, for members of the general assembly of the state, for the decennial period commencing 1891. It is claimed that in making the senatorial apportionment the provisions of the constitution have been disregarded, and that the board should, by order of this court, be compelled to make a new one.

It is evident that in exercising the jurisdiction here invoked, this court cannot, as a court of appeal, review what has been done by the board in making a senatorial apportionment of the state. No such power is conferred upon this, or any other court of the state by the constitution, over the officers designated by it to make the apportionment in question ; and if it were, it could not be exercised in a proceeding in mandamus, the purpose of which jurisdiction is to compel a board or tribunal to exercise its powers or jurisdiction, not to control its discretion or supervise its proceedings. Such jurisdiction is appellate, and can only be exercised, when conferred, in a proper proceeding for that purpose. In treating the subject of jurisdiction in mandamus, Mr. High, in his work on Extraordinary Legal Remedies, § 24, says, “Stated in general terms, the principle is that mandamus will lie to compel the performance of duties purely ministerial in their nature, and so clear and specific that no element of discretion is left in their performance, but that as to all acts or duties necessarily calling for the exercise of judgment and discretion, on the part of the officer or body at whose hands their performance is required, mandamus will not lie. The application of the rule is universal, and its illustrations are as multiform as are applications for the aid of this extraordinary remedy. It applies with special force to cases where the aid of mandamus is sought against inferior courts or judges, public officers, municipal authorities and corporate officers generally, and in all these cases it is the determining principle in guiding the courts to a correct conclusion. And,” he continues, “whenever such officers or bodies are vested with discretionary power as to the performance of any duty required at their hands, or where in reaching a given result of official action they are necessarily obliged to use some degree of judgment and discretion, while mandamus will lie to set them in motion and to compel action upon the matters in controversy, it will in no- manner interfere with the exercise of such discretion, nor control or dictate the judgment or decision which shall be reached.” See also, Moses on Mandamus, 15, and Bx parte Blade, 1 Ohio St. 30, 37.

Hence it is not sufficient in this proceeding that we might be of the opinion that we could make a better apportionment than has been made by the board: To authorize this court to interfere and command the board to make another apportionment, the apportionment made must so far violate the rules prescribed by the constitution, as to enable us to say, that what has been done is no apportionment at all, and should be wholly disregarded. If by any fair construction of the principles prescribed by the constitution for making an apportionment, the one made may be sustained, then it cannot be disregarded and a new one ordered.

The subject is provided for by the eleventh article of the constitution entitled, “Apportionment.” The first section provides that the apportionment of the state for members of the general assembly shall be made every ten years after the year 1851, as provided in that article. The first five sections make provision, in terms, for the apportionment of representatives among the counties of the state in the house of representatives. The sixth to the ninth, inclusive, relate exclusiveiy to the method of senatorial apportionment. The tenth contains this provision, “ and no change shall ever be made in the principles of representation, as herein established, or, in the senatorial districts, except as above established.” By the sixth section the method of ascertaining the ratio for a senator at any subsequent apportionment is prescribed; that is to say, it is to be “ ascertained by dividing the whole population of the state by the number thirty-five.” By the seventh, the counties of the state are divided into thirty-three senatorial districts, the county of Hamilton being one. The other two sections are as follows:

“ Section 8. The same rule shall be applied, in apportioning the fractions of senatorial districts, and in annexing districts, which may hereafter have less than three fourths of a senatorial ratio, as are applied to representative districts.”
“ Section 9. Any county forming part of a senatorial district, having acquired a population equal to a full senatorial ratio, shall be made a separate senatorial district, at any regular decennial apportionment, if a full senatorial ratio shall be left in the district from which it shall be taken.”

Now it is not disputed but that the third and fifth sections, which, by their terms, apply only to representative apportionment, apply also, by the reference contained in the eighth section, to senatorial apportionment; so that, in apportioning fractions and in annexing districts which may have less than three fourths of a ratio, the same rules are to be ajiplied as are applied by these sections respectively to representative districts. That is to say, by the third section, when any senatorial district shall have a fraction above the ratio so large, that being multiplied by five, the result would be equal to one or more senatorial ratios, additional senators shall be apportioned for such ratios, among the several sessions of the decennial period, as is done in the case of representative districts; And by section five, if, in fixing any subsequent senatorial ratio, a district, previously entitled to separate senatorial representation, shall have less than the number required by the new ratio for a senator, such district shall be attached to the district adjoining it, having the least number of inhabitants ; and the senatorial representation of the district so formed, must then be determined as therein provided. But it is also claimed by the defendants, that, by the reference contained in section 8, the provisions of section four are also made applicable to senatorial apportionment as well as sections three and five. This is controverted by the relator. This section would, on the claim of the defendants, mutatis mutandis, read as follows: Any district, forming with another distinct or districts, a senatorial district, during one decennial period, if it have acquired sufficient population at the next decennial period, shall be entitled to separate representation, if there be left in the district from which it shall have been separated, a population sufficient for a senator; but no such change shall be made, except at the regular decennial period for the apportionment of senators. Under the provisions of this .section so applied, it is argued that when a district is once annexed to another under the provisions of section 5, the district so formed continues to be a senatorial district through each succeeding decennial period, until a period is reached, when, by the growth of population it again attains a full senatorial ratio, and becomes, by the application of section four, again entitled to separate senatorial representation, provided there is left in the district from which it is to be separated, population sufficient for a senator. In support of this view is cited the practice that has obtained with reference to the district formed in 1861, by the union of the seventeenth and twenty-eighth districts, and continued to this time, and the reason given by the several boards for continuing the annexation, which seems based on the idea that section four applies to senatorial, as well as to representative districts ; and argue that in the absence of any absolute requirement of the constitution, associations formed by such long-continued annexation, should not be broken up by separation, when neither of the constituent districts is entitled to separate representation, and either, on being separated, must be re-annexed to some other district. On the other hand it is argued that, at the end of each decennial period, the original districts, however they may have been united' by annexation, again segregate; in other words fall apart by limitation, and that it then becomes the duty of the board to make a new apportionment without any reference to the manner in which the districts were annexed prior thereto.

There is much force in the argument of the relator; but we do hot find it necessary to decide the question: For, admitting what is claimed in regard to the segregation of the original districts at the end of each decennial period, it does not follow that the apportionment made by the board should be treated as a nullity. No claim is made that, to the districts as formed, representation for fractions has not been apportioned as required by the third section. The claim is that, in the annexation of districts not having the requisite population for separate representation, according to the ascertained senatorial ratio, the requirement of the' constitution that each district' falling below the requisite fraction of this ratio, shall be annexed to the adjoining district having the least number of inhabitants, has been disregarded.

A senatorial ratio ascertained as required by the constitution, is, for the present decennial period, 104,924, so that a population of 78,693, three fourths of a full ratio, is the least population a district can have and be entitled to separate representation. In consequence of the change in the relative population of the original districts, fourteen of them have lost their right to separate representation in the senate, and are each required to be attached to some other district, adjoining it, having the least population. The districts to be attached are the second, fourth, fifth, sixth, fourteenth, sixteenth, seventeenth, eighteenth, nineteenth, twentieth, twenty-fourth, twenty-seventh, twenty-eighth and twenty-ninth. The relator concedes that the board has properly apportioned ten of these districts by uniting them as follows : the second with the fourth, the fifth with the sixth, the twentieth with the twenty-second, the twenty-fourth with the twenty-sixth and the twenty-seventh with the twenty-ninth.

The other districts have been formed into joint districts as follows: The twenty-eighth with a population of 61,148 is attached to the seventeenth, having a population of 45,720; the eighteenth with a population of 73,321 is attached to the nineteenth, having a population of 63,461; the sixteenth with a population of 70,468 is attached to the fifteenth, having a population of 82,361; and the fourteenth with a population of 63,461 is attached to the ninth, having a population of 91,791. Now regarding the districts when once united, as forming a district, as they certainly do for the ensuing decennial period under the provisions of section five, and it will be observed by reference to a map of the state, that each of the above attached districts, has been attached by the board to the district adjoining it having the least population, as shown by the last federal census. That is to say, commencing with the twenty-eighth as the district to be attached, and it is properly attached to the seventeenth; and so, in the order named, treating the eighteenth, the sixteenth and the fourteenth as the districts to be attached, and each is found to have been attached to the proper district : For example, after the eighteenth had been attached to the nineteenth they formed a district with a population of 186,782, and after the sixteenth had been attached to the fifteenth they formed a district with a population of 152,829. So that the only district adjoining the fourteenth to which it could be attached, after the formation of the above districts, was the ninth, having a population of 91,791.

But, it is claimed, that by uniting these districts as follows : The fourteenth with the nineteenth, the sixteenth with the seventeenth, and the eighteenth with the twenty-eighth, an apportionment would be attained in which the fractions over a ratio would be less, and a less number of districts, with the requisite fractional ratio for a senator, would be deprived of separate representation. Conceding this to be so, it is not such a vice in an apportionment as to make it a nullity. The constitution nowhere prescribes the order in which the districts shall be apportioned, the limit as to fractionsj nor as to separate representation based on fractional ratios. It would be a matter of some surprise had the framers of the constitution attempted to do so, as such rules could only have been based upon such foreknowledge of the future growth and distribution of the population of the state, as could not then have been possessed by any set of men. Moreover, these supposed vices are not unmixed evils: Sep-, arate representation based upon less than a full ratio, is unequal representation. It gives to a district with a population of 74,693 the same representation in the senate as a district with 104,924. Hence an apportionment, which, by annexation where annexation becomes necessary, reduces, instead of increasing, this kind of unequal representation, is subject to no objection based upon the constitution itself. On the other hand, where a district has over a full ratio, the fractions are not unrepresented; representation for the fractions is provided for in the third section. Where, however, a district has three fourths of, but less than, a ratio, full representation is allowed it, as a separate district, for the full decennial period. Here are cogent reasons why the constitution does not undertake to limit the districts to which annexations may be made by any other limitation, than that, in each case, the district shall be the adjoining one, having the least number of inhabitants. The right of a district to separate representation cannot be opposed to the power of the board, in making an apportionment, to annex to it another district, when, by the terms of the constitution, its population and location permit the annexation to be made. The matter rests in the sound discretion of the board, and cannot be controlled by the courts in any form of proceeding, unless, as before stated, it so far disregards the rules prescribed by the constitution, as to enable a court to say that what it has done, is a mere nullity. If, as claimed, the duties to be performed by the board, are ministerial — a mere matter of calculation, then there is but one way in which the apportionment for a given decennial period can be made; • and one could make it as well as a dozen, if not better; and no reason is perceived why the duty should have been confided to the three principal executive officers of the state. The very fact that the governor, auditor and secretary of state are consociated as a board to apportion the state for members of the general assemby, shows of itself, that, in the judgment of the framers of the constitution, in applying the rules prescribed, a discretion would have to be exercised, and these officers were selected to exercise it. Whether the discretion conferred on the board, has been wisely or unwisely exercised in this instance, is immaterial in this proceeding. It is sufficient that they had the power under the constitution to make the apportionment as they have made it. For the wisdom, or unwisdom, of what they have done, within the limits of the powers conferred, they are answerable to the electors of the state, and no one else.

Another objection is made, though not insisted on in argument, that the board has violated the constitution in assuming to create new districts, by changing the territorial limits of the fourteenth and nineteenth districts, so as to include in each portions of the counties of Monroe and Noble. The explanation is this: The day after the constitution was adopted by the framers, containing the senatorial districts as formed by the convention, the legislature then in session under the constitution of 1802, by an act passed March 11, 1851, created the county of Noble, partly from the territory' of each of the following counties as they then existed, to wit: Morgan,. Guernsey, Monroe and Washington; nd also, by the second section of the same act, attached three townships of the county of Washington, situate on its north eastern border, to the county of Monroe. 49 Laws, 137. The validity of this act was sustained in State ex rel. Evans v. Dudley, 1 Ohio St. 437. The constitution as framed by the convention was afterwards adopted by the people, without any change being made in the senatorial districts established by it. So that by reason of the provision of the constitution above referred to, that no change shall be made in the senatorial districts therein formed, except as therein provided, parts of the county of Washington are in the nineteenth district, and parts of the counties of Monroe and Noble are in the fourteenth district; and this apparent anomaly in senatorial apportionment has necessarily been perpetuated to this time, and will have to be continued until the constitution can be amended.

We are therefore of the opinion that the senatorial apportionment for the general assembly of the state, made by the board at its session on the 13th day of April, 1891, is a valid apportionment, and that the writ prayed for should be refused.

Writ refused.

[The above case, together with the briefs of counsel, complete, will be published in full in the Report of the Secretary of State, for 1891. — Rep.]


source: Caselaw Access Project

author: DlCKMAN, J.

license: Public Domain

text:
    Henry v. Jeans et al.

      New party and answer after judgment — Final Order.

    1. Where a stockholder in a railway company, after the entry of a judgment against the company, but at the same term is, upon his motion and good cause shown, made a party defendant with leave to file answer, and thereupon answers to the merits, gives notice of appeal, and perfects his appeal to the circuit court, it is error in the appellate court to strike from the files and suppress such answer because of its having been filed after judgment.
    2. The order of the appellate court striking out and suppressing such answer, is a final order reviewable on error, although the appellant, subsequently to the order of the court, makes application for leave to file his proposed answer, and the application is continued to the next term.
    Error to the Circuit Court of Jefferson county.
    Hoadly, Laut&rbach Johnson, Harmon, Qolston, Goldsmith $ Hoadly, for plaintiff in error.
    I. Whether Henry is entitled to prosecute this petition in error, of course, depends upon the assumption that his answer was properly filed, and that, at the time the order was made by the circuit court, he occupied the position of litigant in the cause, entitled to offer proof and maintain his cause, according to the averments of the pleadings, including his own. It does not seem to us that there can be any doubt that one who holds this position is finally and fatally affected by an order depriving him of the right thus acquired, and remitting him to an appeal to the discretion of the circuit court for leave to present his rights de novo by the same or a new pleading. The circuit court struck Henry’s answer from the files, but gave him leave to move at the next term to file it as a pleading in the case. The theory, of course, is that his pleading was improperly filed in the common pleas, but that hereafter upon a sufficient showing, the circuit court may find it to be its duty to permit such filing. But if it were properly filed in the common pleas, the basis for the assumption is gone, and the action of the circuit court has certainly deprived him of a substantial right, which entitles him to file his petition in error, and to prosecute it successfully under sec. 6707 of the Revised Statutes. So far as Henry is concerned, the order striking his answer from the files affects his right to try the issues it made, and, for the time being at least, as to him determines the action, and prevents the judgment which he seeks. It is no answer to this to say that he may return, in the capacity of a suppliant, to the circuit court, and there show that he ought to be hereafter allowed to file this answer. The question is: Is he not now rightfully in court ? Did he not rightfully come into court when permitted to file his answer in 1886 ? If these questions should be answered affirmatively, his right to remain in court and try his case would also be established. Striking his answer from the files destroys this right.
    II. The order of the circuit court was erroneous, for several reasons:

      First, the motion came too late, November, 1890. Revised Statutes, sec. 6723.

      Secondly. They elected their remedy, viz.: motion to dismiss the appeal. They might have moved the circuit court in 1885 to strike the answer from the files, or in the alternative, to dismiss the appeal. .They chose the latter and postponed the former until now. We submit that by so doing they exhausted their right to strike the answer from the files. They elected to try to dismiss the appeal; finding they had no right to this, they cannot retrace their steps. The appeal was dismissed wrongfully, not rightfully; therefore, they reserved no right to move to strike the answer from the files by procuring the dismissal of the appeal.

      Thirdly. This court have held that an appeal may be taken to the circuit court by a stockholder as being within the designation, “ Other persons directly affected,” where there is reason to believe that the corporation is failing to perform its duty to him. This was required by the practice in equity. This is well established by the following cases: Sage v. Central R. R. Co., 93 U. S. 412; Ex parte Cutting, 94 U. S. 14; Ex Parte Jordan, 94 U. S. 248; Hinckley v. Gilman, Clinton and Springfield R. R. Co., 94 U. S. 467; Ex parte Cockcroft, 104 U. S. 578; Guion v. Liverpool, London & Globe Ins. Co., 109 U. S. 173; Foster v. Foster, 7 Paige, 48, 51.

      Fourthly. This court held in Goodwin v. Cincinnati & Whitewater Canal Co., 18 Ohio St. 182, that: “It is equally well settled that the property of a corporation is a trust fund in the hands of its directors, for the benefit of its creditors and stockholders.” The rules which control other cases of trust have equal application here. Nothing is more familiar in chancery than the practice of suing and defending in a representative capacity by a stockholder for his corporation. This is the very relation the plaintiffs, Jeans and others, assume here. In analogy, the legislature has extended the right to taxpayers of municipal corporations. Revised Statutes, secs. 1278, 1778.
    The code (Revised Statutes, sec. 4995) permits a trustee of an express trust to sue without joihing with him the person for whose benefit the action is prosecuted, but it does not forbid such union, and by force of the decision made in this case when last before this court, the cestui■ que trust, although not so joined, is a party so directly affected by the result as to be entitled to appeal. So again Revised Statutes, sec. 5008, permit one or more to sue or defend for the benefit of all, where the question is one of a common or general interest of many persons. The fact that the trust relations of the parties in this case are corporate does not alter the principle. Naylor v. Smith, 15 Weekly Rep. 528; Re Hutchinson's Trust, 1 Drewry & S. 27, 30; Belcher v. Belcher, 13 Weekly Rep. 913; Longbourne v. Fisher, 27 Id. 405; Re Hopkins, L. R. 19 Ch. D. 61; Brown v. Sawer, 3 Beav. 598; Greenaway v. Rotherham, 9 Sim. 88; s. c. 7 L. J. (N. S.) Ch. 98; 2 Jur. 45; Rowlinson v. Hallifax, 2 Sim. & S. 27; Watson v. Cave, Eng. Ct. App. 1881; 44 Law Times Rep. R. N. 40; s. c. L. R. 17 Ch. D. 19; Sims v. Ridge, 3 Merivale’s Rep. 458; Fleming v. Prior, 5 Madd. 423.

      Fifthly. Your Honors have already to a very large extent disposed of the subject, by your per curiam in this case, but the precise question now under consideration was not before the court upon the former hearing, unless it be treated as necessarily involved, in the discussion then had. It seems to us so involved and that the reversal of the order of the circuit court dismissing the appeal in effect affirmed the propriety of the court’s action in permitting the filing of . Henry’s answer, for manifest reason: How else is a stockholder, or cestui que trust, or other person “ directly affected ” to perfect his appeal? Revised Statutes, secs. 5226 and 5227; People’s Bank v. Hamilton Manufacturing Co., 10 Paige 418.

      Sixthly. We suppose that the order of the circuit court in this case was founded upon Revised Statutes, see. 5225. This is not to be construed strictly. Otherwise new parties could not be made even in the circuit court, unless the permission to amend involve this power. But as the right to allow amendments is also exercisable by the court of common pleas even after judgment, the very suggestion defeats our learned adversaries.
    This is not an isolated section to be read by itself alone. It is to be construed as in pari materia with section 5227, which gives the whole judgment term to the appellant within which to “ enter on the records of ” his intention to appeal, and thirty days thereafter to furnish the necessary undertaking. In other words it is not until after the judgment term has passed, and all the modifications which the court, having control of the cause during the term, may have made or permitted, that the party is compelled to take his appeal.
    What is meant by the requirement of sec. 5225 that the trial in the circuit court shall “be upon the same pleadings,” is that the case shall be tried upon the pleadings which the transcript of the clerk of the court of common pleas shows had been filed in that court, (the original of which have been transmitted by its clerk to the clerk of the circuit court), together with such amendments as the latter may allow.
    It certainly was not intended to prevent the court of common pleas from acting during the judgment term, even after notice of appeal, under section 5114, Revised Statutes. Grant v. Ludlow, 8 Ohio St. 28; Babcock v. Camp, 12 Ohio St. 11; Morgan v. Spangler, 20 Ohio St. 38, 56.
    It may be claimed that the language of section 5114 relates only to the addition or eliminatiori of a “ name ” without increasing or diminishing the number of parties. Such was not the view taken, however, by the Court of Appeals of New York, where the provision of the code in question originated. Davis v. The Mayor, etc., of the City of New York, 14 N. Y. 527; Daniell Chancery Pr., 5 Am. ed., 406; Story on Equity Pleadings, sections 429-432; Hamilton v. Houghton, 2 Bligh 169.

      Seventhly. The circuit court must have acted on the theory that in point of fact Henry became a party and filed his answer after the judgment of the common pleas had been rendered, and that in point of law, the control of the court of common pleas over the judgment ended with its rendition, with perhaps the single exception that one who had been a party to the cause at the time of such rendition might within three days, or in some instances afterwards, move for a new trial. The plenary power of courts over their own records during the term has been established from time immemorial, as a necessary and essential principle of the common law. It is theoretically and logically founded upon the fiction that the term of a court is but a single' moment of a single day; that the action of the court during the term is but the emission of a single judicial breath, and, therefore, that that which is done on the last calendar day is, in legal philosophy, done on the first day of the term. Coke Litt., 268; Freeman on Judgments, sec. 69; Blackamore's Case, 4 Coke Rep. 454; Blackstone’s Comm. 406; Botkin v. Commissioners, 1 Ohio 375; Hunt v. Yeatman, 3 Ohio 16; Critchfield v. Porter, 3 Ohio 519; Greene v. Dodge, 3 Ohio 486; Heirs of Ludlow, v. Johnston, Id. 553; Riddle v. Bryan, 5 Ohio 50; Torbet v. Coffin, 6 Ohio 34; Shelton v. Gill, 11 Ohio 417; Reynolds v. Stansbury, 20 Ohio 344.
    Thus stood the law at the date of the adoption of the code in 1853, which codified the rules substantially as they now exist. The only change made by the Code of Civil Procedure was the .rule now stated in Revised Statutes, sec. 5307. That a provision like this, in affirmative language, limited the time, during the term, within which justice may be thus done by the court, is directory and not mandatory, follows, we think, from the general principles of legal philosophy, as well as the authorities upon the subject. State v. Harris, 17 Ohio St. 608; Fry v. Booth, 19 Ohio St. 25; Up

      ington v. Oviatt, 24 Ohio St. 232, 241; Bainbridge v. State, 30 Ohio St. 264, 275; Sedgwick on Constitutional and Statutory Law, and Pomeroy’s Notes, 316; Bishop’s Written Law, 255; Pearse v. Morrice, 2 Ad. & Ell. 96; Lewis v. Labauve, 13 La. Ann. 382.
    Before the adoption of the code the principle of the simultaneousness of everything done at the term was applied and its exception stated in cases of other kinds. Follett v. Hall, 16 Ohio 111; May v. State, 14 Ohio 462; Memphis v. Brown, 94 U. S. 715; Brockett v. Brockett, 2 How. 241; Stahl v. Webster, 11 Ill. 511; Burch v. Scott, 1 Bland Ch. Rep. 112; Robinson v. County Commrs., 12 Md. 132; Green v. P. W. & Ky. R. R. Co., 11 W. Va. 685; Moore v. Taylor, 1 Idaho, N. S. 630; Ross v. Ross, 83 Mo. 100; Ætna Life Ins. Co. v. McCormick, 20 Wis. 265; Williams v. Hayes, 68 Wis. 248; United States v. Harmison, 3 Sawyer 556; Obenchain v. Comegys, 15 Ind. 496; Burnside v. Ennis, 43 Ind. 413; Richardson v. Howk, 45 Ind. 415; Bank of the United States v. Moss, 6 How. 31; Bronson v. Schulten, 104 U. S. 410; Phillips v. Negley, 117 U. S. 665.

      Harrison, Olds $ Henderson, for plaintiff in error.
    The petition in error is premature. Revised Statutes, secs. 5310, 6707, 6710.
    No judgment, finally determining the rights of the parties in the action, has been rendered by the circuit court, since the cause was remanded. The action is still pending in that court. The order, that the paper be surpressed and stricken from the files, did not in effect determine the action and prevent a judgment. Holbrook, Adm'r, v. Connelly, 6 Ohio St. 199.
    Every order, which deprives a party of a substantial right in an action, is not a final order. The statute does not say, or mean, that an order is final, when it prevents such judgment as a party seeks, or by his pleadings seeks. It says, “ when such order.....prevents a judgment.”
    Neither the action of the plaintiff to obtain a judgment, nor the defenses thereto, nor the proceedings of Henry to interpose a further answer, have been finally disposed of by the circuit court. All are in fieri, and, as to each of them, something further remains to be done between the parties in that suit, and awaits the final determination of that court. As to each of them, the further action of that court is required. The interlocutory order complained of does not prevent a judgment, or finally determine the right of Henry to answer.
    The order of the circuit court was not erroneous. The motion to suppress answer was not too late. We admit that an order of the common pleas granting leave to set up by answer defenses in bar of the action of the plaintiffs, after that court has finally determined the rights of the parties by its judgment and when it is not ashed to vacate or modify such judgment or to grant a new trial, is in our practice novel and difficult to denominate. But whatever else it may be, surely it is not a final order in any sense of the term. To be a final order its direct and immediate effect must be to determine the action and prevent a judgment. The vacation of a judgment does not determine the action or prevent a judgment. Every order granting leave to file a pleading is, in the fullest sense, interlocutory. It does not end the litigation, but it does bring into the action issues requiring further action of the court before the equity of the case be determined and the rights of the parties in the action can be settled. Every interlocutory order may be altered, corrected or annuled at any time before the action shall be finally disposed of by judgment. 13 Ohio 408; 1 Ohio St. 512.
    The motion to dismiss appeal did not cut off the rights to move to surpress Henry’s answer. Counsel for Henry contend that the plaintiffs were put to an election between moving to dismiss the appeal and moving to suppress this answer. Surely, there was no inconsistency between the two motions. The plaintiffs, by' moving to dismiss the 'appeal, did not affirm or recognize the validity or propriety of the order granting Henry leave, to answer. The two motions were independent of each other, and were for entirely different objects. If the appeal should be dismissed, then any further question, in regard to the pleading or to the issues to be tried in the circuit court, would be of no consequence and idle. Therefore, it was eminently proper that the plaintiffs should first move to dismiss the appeal, and have that matter determined, before taking any further step in the progress of the action before the circuit court. A motion for one purpose does not “exhaust” the right to move for a wholly different purpose. By their motion to suppress and strike from the files Henry’s answer, the plaintiffs did not “retrace their steps.” After the order of the circuit court, dismissing the appeal, was set aside, the plaintiffs at their first opportunity took their next forward step by their motion to suppress this paper in order to ascertain the issues to be tried by the cureuit court.
    The leave to Henry to file answer, granted by the common pleas, was irregular, improper and without authority. The entry of the common pleas, made on Dec. 10, 1885, and after its final judgment, comprised three different things. It purported: (1) To make Henry a party defendant to the action which it had finally disposed of. (2) To give him leave to answer and set up defenses to a cause of action then merged in judgment; and (8) To enter his notice of appeal, and to fix the penalty of an appeal bond.
    Our Code of Civil Procedure defines pleadings, and prescribes their effect and the rules of pleading. From these provisions, it is manifest that it was not intended to authorize the common pleas, after its final determination by judgment of the rights of the parties in the action and while the judgment remains in force and no application is made to the same court to vacate or modify it, to allow new pleadings to be filed, setting forth defenses to the cause of action which have passed into judgment, and to raise issues of law or of fact which are not to be tried and determined by the same court. Revised Statutes, secs. 5058, 5081; Swan’s Pleadings and Precedents, 120; Revised Statutes, secs. 5128, 5130, 5131; Revised Statutes, sec. 5310.
    The pleadings and issues must precede the trial, and the trial must precede the judgment. To render judgment first, then to have the trial, and afterwards to frame the issues by pleadings, would reverse the proper order of judicial procedure. After the rights of the parties have been finally determined by a judgment, which is unimpeached, there can be no occasion for further pleadings in regard.to such rights, or for raising further issues which are not to be tried.
    Ample power is conferred by the code upon the circuit court to permit or order such amendments or additional pleadings as, in its opinion, will be in furtherance of justice. Sec. 5225, Revised Statutes; 18 Ohio St. 456, 462; 39 Ohio St. 484.
    Opposing counsel contend that the general provisions of sec. 5114, in regard to amendments before or after judgment, sustain the action of the common pleas in granting to Henry leave to answer after judgment, and that the special provision of sec. 5225, that the trial in the circuit court shall be conducted upon the same pleadings as in the common pleas, unless amendments are permitted in the circuit court, does not restrict or abridge the operation of the general provisions of sec. 5114.
    It is a general and well settled rule of construction, that general language found in one part of a statute is to be modified and restricted in its application, when it would otherwise conflict with specific provisions found in another; and this from the reasonable, and most irresistible conclusion, that when the mind is directed to any particular subject, the language used is more likely to express the intention, than general words, which might otherwise cover it, but' from which it does not appear that the particular case was intended to be provided for. Ohio v. Blake, 2 Ohio St. 151; United States v. Collier, 6 Ohio St. 62; Doty v. Rigour, 9 Ohio St. 524; Bode, Adm'x, v. Welch, 29 Ohio St. 21; Kilgore v. Emmet, 33 Ohio St. 410; Riddle v. Howenstein, Supreme Court Com., May 29, 1883, not reported; 4 Ohio Digest 11; Horton v. Horner, 14 Ohio 437.
    Opposing counsel claim that, upon this hearing in error to reverse the order of the circuit court, suppressing the answer of Henry, all presumptions are in favor of the validity and regularity of the action of the common pleas in granting him leave to file his answer, and such action should not be treated as invalid or irregular, if there be any theory of law on which it may be sustained. The contrary of this is the very well settled rule. Error will not be presumed. All presumptions are in favor of the validity and the correctness of the order of the circuit court, and its action in suppressing the answer should not be treated by this court as invalid or erroneous, if there be any theory of law on which it may be sustained. When the circuit court reviews the action of the common pleas, the presumption is in favor of the validity of the action of the later court. But, when the supreme court reviews the action of the circuit court in reversing or annulling an order or judgment of the common pleas, the presumption is in favor of the correctness of the order or judgment of the circuit court. Tod v. Wick, 36 Ohio St. 371; McHugh v. State, 42 Ohio St. 154; Woolen Mills Co. v. Titus, 35 Ohio St. 253; R. R. Co. v. Collett, 6 Ohio St. 182.
    After a final judgment is rendered and entered, the only res, or subject matter, over which the court has jurisdiction, during the judgment term, is the judgment, into which the cause of action upon which it was rendered became, upon its rendition, merged. It follows, that an order made by the court as if the judgment had not been rendered and entered, and as if the action were still pending and undetermined, permitting a new pleading 'to be filed and new defenses to the original cause of action to be presented, is not merely an erroneous or irregular exercise of power, but is unauthorized and void. It may not, for the purpose of usurping jurisdiction, be falsely assumed that the action is still pending and undetermined, when in fact it has been determined and is no longer pending. Ludlow v. Johnson, 3 Ohio 576; Dennison v. Talmadge, 29 Ohio St. 433; Anthony v. Kasey, 88 Va. Rep. 338; Reynolds v. Stockton, 43 N. J. Eq. 211; Munday v. Vale, 34 N. J. Law 418.
    The common pleas had no power, after its final judgment and without any application to open it up or to vacate or modify it, to admit Henry as a party defendant in the cause. If the court had such power, still its order, granting him leave to file his answer, was, as we have argued, unauthorized and void, as well as irregular and improper. But, if Henry was not a party, then for that reason, as well as others, his answer was not properly filed, and the order granting-leave to file it was void as well as erroneous.
    It has been repeatedly held by this court that the right of appeal is conferred by the statute, that no action of the common pleas can affect the right, or deprive a person entitled thereto of his appeal, that the right to appeal accrues the moment the judgment is entered; and the giving of notice, and execution of an appeal bond, are acts by which the right of appeal is saved, not acquired. Hubble v. Renick, 1 Ohio St. 171.
   DlCKMAN, J.

In the year 1872, The Cincinnati & Muskingum Valley Railway Company leased its railway and property appertaining thereto, to The Pittsburgh, Cincinnati & St. Louis Railway Company. Samuel Jeans and others, the defendants in error, as stockholders of the latter company, brought suit, in 1885, in the Court of Common Pleas of Jefferson county, against that company and The Cincinnati & Muskingum Valley Railway Company to cancel the lease, and to restrain The Pittsburgh, Cincinnati & St. Louis Railway Company from using its funds to pay the interest on the bonds of the lessor company. The Pittsburgh, Cincinnati' & St. Louis Railway Company filed an answer to the petition. •The Cincinnati & Muskingum Valley Railway Company filed a demurrer to the petition, and on the 24th day of November, 1885, the demurrer was heard, and overruled by the court. On the same day, the case was further heard, and submitted to the court, upon the pleadings and evidence; and thereupon the 'court found, upon the issues joined, for the plaintiffs, and, in accordance with the prayer of the petition, rendered judgment, that the lease be vacated, that the demised railway property be surrendered and delivered up, and that The Pittsburgh, Cincinnati & St. Louis Railway Company be perpetually.enjoined.

■ After rendition of judgment, but at the same term, to wit: On the 10th day of December, 1885, Evan J. Henry, the plaintiff in error, intervened, and was made a party with leave to answer to the merits, the court entering upon its journal an order that, “ upon motion and good cause shown, Evan J. He.nry is made party defendant herein, with leave to file answer.” On the same day Henry, for himself and stockholders of The Cincinnati & Muskingum Valley Railway Company, who might unite with him in the defense of the suit, filed his answer, and thereupon entered on the records notice of his intention to appeal,'and perfected his appeal. The circuit court at the May term, 1886, on motion of counsel for the plaintiffs, dismissed the appeal. Upon proceedings in error prosecuted by Henry, this court reversed the judgment of the circuit court, and remanded the cause for further proceedings, holding that Henry, as one of the stockholders of the lessor company, on behalf of himself and other stockholders, might appeal from the decree ordering the cancellation of the lease, under the provisions of section 5226, of the Revised Statutes, as a “ person directly affected ” thereby, and that it was the duty of the appellate court to hear the case upon its merits, and allow additional pleadings to -be filed, as the justice of the case might require, and not dismiss the case otherwise than upon its merits. Henry v. Jeans, et al., 47 Ohio St. 116. When the case came on to be .again heard, at the November term, 1890, of the circuit court, the plaintiffs moved to strike from the files and suppress the answer of Henry for himself and others to the petition. This motion was granted. Henry excepted, and thereupon made application to the court for leave to file his proposed answer, which application was continued to the .next term. To reverse the action of the circuit court, the ■present petition in error was filed.

It is contended in behalf of the defendants in error:

(1.) That the order of the circuit court, that the answer of Henry be stricken from the files, was not a final order, and that therefore, he is not entitled to prosecute his petition in error herein.

(2.) That the court of common pleas had not jurisdiction or power, after its determination of the rights of the parties litigant by its judgment in the action, to allow the answer of Henry to be filed in the cause ; and

(3.) That the trial in the court of common pleas was not conducted upon any answer of Henry to the petition, and that therefore, the circuit court properly struck from the files what he had placed on file as his answer, by leave of the court of common pleas, after entry of judgment.

It is provided by sec. 5114 of the Revised Statutes, that, “ The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case.”

From this section may be derived the power, in special cases, to make new parties after judgment, that there may not be a failure of justice. It is a power, however, that will be sparingly exercised, and with a cautious discretion. The statute being remedial, it should be liberally construed, but, with a view to rendering it operative in furtherance of justice. What it may accomplish towards obtaining such a result, might be reached, it may be, by resorting to a new and independent proceeding, in analogy to the chancery procedure by bill of review, or bill in the nature of a bill of review, but, when practicable, the rights of those interested in the subject matter in controversy, should be worked out in the pending proceeding, thus avoiding multiplicity of suits which is obnoxious to the law.

Where the facts require it, new parties may be brought in on appeal by amendment. Grant v. Ludlow, 8 Ohio St. 1; Babcock v. Camp, 12 Ohio St. 11; Morgan v. Spangler, 20 Ohio St. 38. And if so, it would seem to be a singular omission if, under the liberal provisions of the code and the practice in equity, no power could be found, in furtherance of justice, to admit new parties in the court below, though after judgment rendered. But that power, we think, may be found in the section under consideration.

When those who have sufficient interest in the result, are once brought in, after judgment, as new parties to the suit," the act of the court is not to be regarded as a matter of form only. They are parties for a purpose. If they have rights, their status as parties entitles them to set up those rights by cross-petition, answer, or other pleadings. They are not brought in as parties, only that a judgment by nil elicit may be entered against them. They thus become litigants in the cause, and are to be treated accordingly, nor can they, in our view, be deprived by an appeal of any remedial rights which have already accrued.

If, after judgment, one interested in the event of the cause becomes a party defendant, and answers, the court may, at the same term, treat the judgment as set aside, and re-examine the issues of fact or law, and re-enter the judgment. But, if before so doing, the answering party shall deem it desirable or expedient to exercise the privilege of appeal, he should not thereby lose, or hold only at the discretion of the appellate court, the remedial rights granted him by the court below in aid of justice. Those rights are of statutory origin, and their loss is not the penalty of appealing to a higher court.

But it is urged, that by the provisions in section 5225 of the Revised Statutes, “The circuit court shall have jurisdiction of certain cases as hereinafter provided by appeal; and the trial therein shall be conducted in the same manner as in the common pleas court, and upon the same pleadings, unless amendments are permitted or ordered by the circuit court.” If we consider this section in connection with section 5114, it will be apparent that amendments of pleadings, and the inserting of new allegations, may be permitted under both sections. But.there is nothing in the section regulating trials on appeal, that invalidates or renders nugatory amendments permitted under section 5114. If new parties and interests arise or are discovered after appeal, they may be brought under the cognizance of the circuit court, and section 5225 would cover cases of that class, as section 5141 would embrace interests and parties omitted and brought to the notice of the court of common pleas after judgment and before appeal. But the orders of the respective courts authorizing new parties to be made and new pleadings to be filed, are alike in the interest of justice, and alike to be sustained.

It is said, that the trial in the court of common pleas was not conducted upon any answer or pleading of the plaintiff in error, and that, therefore, his answer, filed after the entry of judgment, could not be considered on the trial in the circuit court. We are not inclined to construe strictly the words, “ same pleadings,” found in section 5225. Whatever the court of common pleas, in furtherance of justice, found it proper to incorporate during the trial term with the pleadings as a part thereof, and as essential to a just determination •of the rights of the parties while the case remained in that .court without appeal, and subject, at the will of the court, to further adjudication during the term, and which the transcript of the clerk, together with the original papers and pleadings delivered to the clerk of the circuit court showed had been filed in the court of common pleas, should.not, it seems to us, upon the trial in the circuit court, be ignored or treated as having no place among the pleadings in the court below. The judgment being suspended when .the appeal is taken and bond given, the appellate court, in its inquiry d'e novo into the merits of the action, might rightly consider pleadings which the judge in the court below had allowed to be filed, as affecting the rights of all parties in the case while litigating in that court.. The answer of Henry formed the basis of his appeal, and made the, main issue upon which his rights were to be determined. When, .therefore, his answer was suppressed, he was virtually deprived of the benefit of his appeal, to which he had been restored through his former proceeding in error. „

The order striking the answer of Henry from the files we regard a final order, and one reviewable on error. “ A judgment rendered, or final order made, by the circuit court, may be reversed, vacated, or modified by the supreme court.” Revised Statutes § 6710. “ An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, .... is a final order which may be vacated, modified or reversed.” Revised Statutes, §6707. When the plaintiff in error was made party defendant, with leave to answer, he acquired substantial rights— the right of a litigant in the case — of which h¿ was effectually deprived when his answer was suppressed. By the order striking his answer from the files, his right to try the issues it made was directly affected, and as to him, at least for the time being, the order determined the action and prevented the judgment he sought.

■ In Carpenter v. Canal Company, 35 Ohio St. 307, after an order of sale was made in a foreclosure suit, the land was appropriated by a railroad company. Another mortgage creditor, by answer and cross-petition, sought to impeach the appropriation proceeding for fraud and to. foreclose his mortgage. The order dismissing such answer and cross-petition, as to the charge of fraud and the claim to foreclose, was declared a final order, which might be reviewed on error.

In Fuller v. Claflin, 93 U. S. 14, it was -held, that an order striking out an answer, as it ends the cause, leave's the action undefended, and confers a right to immediate judgment, is subject to review in the appellate court.

The case of Holbrook v. Connelly, 6. Ohio St. 199, is cited in behalf of the defendants in error. There, the plaintiff in the common pleas moved the court to strike out a part of an amended aúswer ; which motion was sustained. The defendant thereupon asked leave to file a petition in error to review and reverse the decision of the common pleas. Bartley, C. J., in delivering the opinion, remarked, that no final order, within the meaning of the Code of Civil Procedure, was shown to have been made, as it did not appear that the decision ■made “ in effect determined the action and prevented a judgment that for aught appearing the defendant might yet succeed in his defense to the action. As only a part, and it might be an immaterial part of the answer was struck out, the remainder might prove amply sufficient to secure instead of preventing a judgment for the defendant, and hence the language of the opinion.

The application made by Henry, after the order dismissing his answer, for leave to file his proposed answer, and the continuance of such application to the next term of the circuit court, did not take from the order its character of finality.

The application may properly be regarded as a separate and independent proceeding subsequent to the order, of which Henry need not avail himself unless he sees fit so to do. A decree, if final, will not be made interlocutory by a defendant’s motion at the same term to vacate it, and a continuance of such motion to the next term. The final order of the circuit court striking from the files and suppressing the answer of the plaintiff in error, should, in our opinion, be reversed and the cause remanded to the circuit court for further proceedings.

Judgment accordingly.


author: Bradbury, J.

text:
    State ex rel. v. Crites.

      Mandamus — Office of return to writ of— Return of respondent not conclusive — May be attached for contempt — When—Mandamus will not control judicial discretion.

    1. The office of a return to a peremptory writ of mandamus, by tlie respondent therein, is to show a compliance by him with the order of the court.
    2. This return, however, is not conclusive, and the relator may controvert its truthfulness by a motion to require the respondent to show cause why he should not be attached for contempt for disobeying the order of the court in the particulars set forth in the motion.
    3. The remedy by mandamus, while appropriate to compel an officer to proceed in a judicial or quasi judicial matter confided by law to his jurisdiction, cannot be invoked to correct his errors, or control his discretion.
    (Decided June 16, 1891.)
    On motion to attach the defendant for contempt.

      William L. Avery> for relator.

      John A. McMahon, for defendant.
   Bradbury, J.

At an earlier day in this term, and in this action, (ante 142), this court gave judgment awarding a peremptory writ of mandamus commanding the respondent, as auditor of said county of Allen, “ Forthwith to proceed to inquire into the matter of the omission of property and investments from the tax returns of Calvin S. Brice, and to enter for taxation on the tax duplicate of said county any amounts thereof that may be found to have been improperly omitted during any of the years running back for five years from the year 1889, and to add thereto fifty per centum of the amounts so found to have been omitted during any of said years except the years 1884 and 1885, for which two latter years no penalty shall be added.”

On the day named in the writ therefor, the auditor made return to this court of his proceedings thereunder as follows:

“ In obedience to the aforesaid order of the court, I at once proceeded to the performance of the duty enjoined. I have examined the papers, testimony, etc., filed with me, and all the corrections suggested to be made, and upon full consideration whereof I have ascertained, as near as practicable, the true amount of personal property, moneys, credits, investments in bonds, investments in stocks, etc., that said Calvin S. Brice should have returned in each of the years specified in your order to me, .... and to each amount I have added in each of said years except for the years 1884 and 1885, fifty per centum, and I have multiplied the amounts obtained for the years 1884 and 1885, and the amounts for 1886, 1887, 1888 and 1889, thus increased by penalty, by the rate of taxation belonging to said years respectively, and have entered the same on the tax lists and duplicate in my office against him, and have given a certificate thereof to the county treasurer for collection, and I have filed in my office a statement of the facts and evidence upon which I made such corrections.”

This return, while it does not state the amounts that were placed in the tax lists by the respondent in the proceedings had under the writ, nor set forth in specific terms all the steps taken in those proceedings, yet, shows in general terms a compliance with its command. The return, however, to a peremptory writ of mandamus is not conclusive of its own correctness; its office is to show that the acts commanded have'been performed. 14 Am. & Eng. Ency. of Law, 238. It is obvious that, neither the court issuing the writ, nor the ■party for whose benefit it has been issued, should be bound by the return; it being but a statement, not under oath, by the respondent that he has done that which he was commanded to do. If, by a false statement in his return, the respondent could conclude the opposite party, the remedy afforded by proceedings in mandamus would be of little or no value. The appropriate remedy to enforce obedience to the commandments of a peremptory writ of mandamus is to attach, as for a contempt, the person to whom it is directed, if he refuses or evades a compliance with its terms. Sevin v. Hanley et al., Wright, 588; State ex rel. Calkins v. Harvey, 14 Wis. 151; Commonwealth v. Sheehan et al., 81½ Pa. St. 132; People v. Pearson, 3 Scam. (Ill.) 270.

This remedy was invoked by the relator against the re•'spondent by a motion setting forth wherein, as he claimed, the respondent had refused or evaded such compliance. The grounds stated in the motion were six in number :

1. That the respondent did not proceed upon the facts and evidence submitted to him by the relator.

. 2. That the respondent took privately, without the knowledge or the means of knowledge by relator, the testimony of Calvin S. Brice.

3. That he did not inquire of said Brice, while he was a witness, into all matters touching his taxable property for the period of time named in the peremptory writ.

4. That he did not give his certificate to the county treasurer for the collection of the added tax as required by law.

5. That he entered all of the added tax upon the tax list and duplicate of 1890.

6. That he entered the same as of April 7, 1891.

A rule was issued against the respondent requiring him to show cause, by a day named, why he should not be attached for contempt for disobeying the commands of the peremptory writ of mandamus in the particulars specified in the motion.

When the rule came up for final hearing, a large mass of evidence was submitted to the court respecting the course pursued by the respondent in investigating the matter of the omitted taxes of Mr. Brice, as by the peremptory writ he was commanded to do.

If this evidence had disclosed a course of collusive, color-able or evasive action on the part of the respondent in the investigation that he was commanded by the peremptory writ to undertake, the proceeding now before us would present a wholly different aspect; and although the peremptory writ may have commanded the respondent to proceed in a matter requiring the exercise of quasi judicial discretion not subject to control, ordinarily, by proceedings in mandamus, yet there are grounds to contend that such evasive, colorable or collusive conduct would render him amenable to the summary process of contempt. It is not necessary, however, to further pursue this branch of the inquiry, for there is not evidence sufficient to impeach the good faith of the respondent in conducting the investigation in question. On the contrary, it appears that, after being served with the peremptory writ, he promptly began the investigation, and proceeded with it day by day, with some interruptions on account of other official business, until he reached a decision. This decision placed on the tax lists a very much smaller amount of property than the relator contends should have been added in the light afforded by the evidence submitted to the respondent. It is onty in connection with this result, so unsatisfactory to the relator, that the first, second and third clauses of the motion, to compel the respondent to show cause why he should not be attached for contempt, can have any importance now. -In connection with other evidence, had there been enough of it, tending to show collusive, colorable or evasive action by the respondent, these statements of the motion may have had additional importance as proof of bad faith, but the proof being insufficient on that point, they have now no value in that connection.

The first clause of the motion seems to assume that the peremptory writ commanded the respondent to conduct the investigation upon the evidence submitted to him by the relator. This is not correct. An examination of both the peremptory writ and the opinion delivered in the case, will not disclose any purpose in this court, when it awarded the writ, to prescribe to the respondent the evidence he should consider when making the investigation. It commanded him to proceed in the matter, hut left his discretion untrammeled, not only as to the testimony he should consider, but also as to the conclusion he might reach.

The second and third divisions of the motion charge the respondent with having conducted the examination of Mr. Brice privately, without the knowledge of the relator, and without any means of knowledge thereof on his part, and also that this examination of Mr. Brice did not extend to and include matters that he ought to have been compelled to speak of. The evidence respecting the place where Mr. Brice ' was examined, shows that while it was done in the absence of the relator, and without notice to him, yet that it was conducted in the office of the respondent. The testimony was taken down by a stenographer, and a type-written copy thereof filed as an exhibit in the present proceedings. An inspection of this exhibit discloses that Mr. Brice was permitted to proceed in his own way, and make such statements and explanations as he saw proper, and was subjected to no cross-examination whatever, a method of inquiry well adapted to conceal and cover up, rather than lay bare the circumstances of any given transaction. The respondent endeavors to explain how he came to conduct the examination of Mr. Brice . in this anomalous manner; and, without attempting to detail or analyze his own explanatory statements, or the testimony offered by him corroborative thereof, it is due to him to say that while it may not afford a complete justification of his action in this respect, yet it alleviates the harshness of its features, and renders it consistent with good faith and an honest purpose.

Having acquitted the respondent of any evasive, collusive, colorable or dishonest intention or purpose, respecting his actions in the matter, there only remains for consideration the questions whether we can control his action, or correct his errors, if he. has committed any, in the course o'f the investigation conducted by him in obedience to the peremptory writ of mandamus.

It may be true that the respondent rejected evidence that should have been received and considered by him; that he did not give to evidence- which he did receive and consider its due weight, or that Mr. Brice should have been subjected to a more elaborate and searching examination; and that if all this had been properly done larger amounts of omitted properly would, or ought to have been, added to the tax lists, as relator claims. All of this, however, the respondent denies. Upon these matters we express no opinion. But if it be conceded that the contention of the relator is true in this respect this court can give no relief in the proceedings now before us; for mandamus, while a proper remedy to invoke to compel an inferior tribunal to act, is not adapted to review its action and correct its errors. 14 Am. & Eng. Ency. of Law, 110 and 111, and cases cited in notes 1 and 2.

The respondent was acting in a quasi judicial capacity; he had assumed jurisdiction and entered upon the investigation; the law imposed upon him the duty of hearing and weighing evidence and rendering a decision upon it. This, necessarily, involved the exercise of judicial discretion. And what are the acts of which relator complains in this connection, but errors of judgment, if they are errors at all, in a proceeding confided by law to his determination ? This being true his action in this connection affords no lawful ground for proceedings against him for contempt, for by the well settled law of this state this court has no authority, by proceedings in mandamus to control the discretion confided by law to inferior officers, boards or tribunals, whether it be judicial, or only quasi judicial, in its nature. Section 6742, Revised Statutes; State v. Harris et al., 17 Ohio St. 616; Commissioners of Lake County v. Commissioners of Ashtabula County, 24 Ohio St. 401; State v. Commissioners, 31 Ohio St. 351-7; The State v. The Board of Fire Commissioners, 26 Ohio St. 24; Ex parte Black, 1 Ohio St. 30; Commissioners of R. and P. Turnpike Road v. The Commissioners, 1 Ohio St. 149. Other cases have been decided by this court illustrative of this general doctrine, as well as in the federal courts and the courts of last resort in most of the states of the Union. 14 Am. & Eng. Ency. of Law, 108, 109, 110, 111 and notes.

The fourth, fifth and sixth clauses of the relator’s motion for an attachment, except to the method adopted by the respondent in entering on the tax lists in his office, and on the duplicate thereof in the treasurer’s office, the several additions that he found should be made to the tax returns of Mr. Brice. He had discharged his quasi judicial functions and made a decision. The clerical work of recording it was purely ministerial and is prescribed by law. Section 2781, Revised Statutes.

This section prescribes that county auditors shall enter the additions “ on the tax lists in his office, giving a certificate therefor to the county treasurer, who shall collect the same as other taxes.” The only ambiguity that arises out of the words of the statute in this matter, results from the omission of the legislature to specify “ the tax lists ” on which the additions are to be placed. The practice in this respect in the several counties of the state varies considerably, as is shown by letters, filed as exhibits in the case, from more than seventy of the eighty-eight county auditors of the state. Many of them enter all the additions, though covering several years, on the tax list (called the auditor’s duplicate) in their office for the current year, and also upon the treasurer’s current duplicate, while a smaller number place each addition on the tax list of the year to which the addition belongs, and simply gives to the treasurer a certificate thereof, upon which he collects the tax as directed by the statute. This last is the proper practice. The statute, sec. 2781, directs the additions to be placed on the “tax lists ” in the auditor’s office. The “ tax lists ” thus referred to is what is popularly called the auditor’s duplicate. The proper place to find the taxes for any given year is on the tax lists (auditor’s duplicate) of that year, and when the legislature ifl general terms directed the additions $ras ascertained to be placed on the tax lists in the auditor’s office, it should be held to have intended that each addition should be placed where the tax would have been found if originally and regularly returned by the proper assessing officer. This having been done, the auditor is not required to pass to the treasurer’s office and enter the additions on the duplicate, or duplicates found there. Instead of this his duty is to make out and give to the treasurer a certificate of the additions, stating therein the year, or years, if more than one, for which the additions had been made, and this certificate is sufficient authority to the treasurer to collect whatever tax it may contain.

It by no means follows that a non-compliance with- these directions of the statutes will invalidate the tax, if from all the entries in the offices of the auditor and treasurer it is made to appear that the auditor took action, and, in fact, made the additions sought to be collected. As to this, however, it is not necessary at this time to come to a decision.

That the respondent did not follow the directions of the statute in entering on the records the additions he made is clear; but this court had given no specific instructions in that regard. No such question was made before he had acted, and as he followed the precedents of his predecessors in office, and as those precedents find support in a majority of the counties of the state, it is difficult to see upon what solid ground his action in this respect could be regarded as contemptuous.

Rule discharged at the cost of the relator.