author: Bijrket, J.

text:
    Massillon Bridge Co. et al. v. The Cambria Iron Co.
    “ Railroad. ” — Definition ojf term as used in statute — Does not include street railroads — Sections SÜ08 and SSS1-1 Revised Statutes.

    The statutes of this state relating to railroads are separate and distinct from those relating to street railroads, and the word “railroad” in section 3208, and in section 1 of the act of March 20, 1889, 86 O. L., 120, section 3231-1, Bates’ Statutes, does not include street railroads.
    (Decided November 29, 1898.)
    Error to the Circuit Court of Seneca county.
    On the first day of May, 1889, the Tiffin Street Railway Company executed and delivered to Joseph A. Beauvais, as trustee in trust, its mortgage’on its street railway property for the sum of $40,000, which mortgage was duly recorded.
    On the twentieth day of August, 1892, the Tiffin Electric Street Railway Company executed and delivered to Samuel B. Sneath its mortgage on its street railroad property for the sum of $25,000? and on the fifth day of May, 1893, the same company executed to said Sneath, as trustee, its mortgage on its street railroad property for the sum of $25,000, both of which mortgages were duly recorded.
    On the twenty-fourth day of June, 1893, the Tiffin and Fostoria Electric Street Railroad Company executed and delivered to Thomas A. Miller, as trustee in trust, its mortgage on its street railroad property, for the sum of $25,000, which mortgage was duly recorded. Said street railroad extended from the city of Tiffin to the city of Fostoria, both in Seneca county.

      On the first day of March, 1894, and while all of the above named mortgages remained unpaid, each of the said street railroad companies conveyed by their respective deeds, duly executed and delivered, their said street railroad properties to an incorporated company known as the Tiffin and Interurban Consolidated Street Railroad Company, which deeds were duly recorded, but none of the purchase money was paid. At the time of said purchase the Tiffin and Fostoria Electric Street Railroad was in an unfinished condition, about one mile of the track having been completed and several miles more graded.
    After the Tiffin and Interurban Consolidated Street Railway Company purchased said three street railroad properties, it proceeded to construct the street railroad from Tiffin to Fostoria, and in doing so incurred an indebtedness to laborers and furnishers of material to something over the sum of $11,000, due to seventy-four different persons and companies, who all filed properly sworn accounts in the office of the recorder of Seneca county for the purpose of perfecting liens against said street railroad property under section 3208 of the Revised Statutes of Ohio, for work and labor and materials furnished in the construction of said street railroad line.
    An action was commenced by the Cambria Iron Company in behalf of itself and other creditors against the Tiffin Electric Street Railway Company, and by consolidation all of the street railroad companies and all of the creditors were brought in and made parties in one action for the foreclosure of said mortgages' and mechanics’ liens and sale of the property, which action was carried forward and the street railroad properties were sold separately by order of the court, and on distribution of the proceeds of the sales, after payment of taxes, costs and receiver’s fees, the court of common pleas ordered the proceeds of the sale of the Tiffin Street Railway Company to be applied to the payment of the mortgage to Joseph A. Beauvais, and the proceeds of the sale of the Tiffin Electric Street Railway Company to the payment of the mortgages held by Samuel B. Sneath, and of the proceeds of the sale of the Tiffin and Fostoria Electric Street Railroad Company to the payment, first, of the mechanics’ liens, and second, to the payment of the mortgage to Thomas A. Miller, trustee.
    A petition in error was filed in the circuit court by the holders of the mechanics’ liens to reverse the judgment of the court of common pleas in the distribution of the proceeds of the sales of the Tiffin Street Railway, and of the Tiffin Electric Street Railway, and a cross-petition in error was filed by Thomas A. Miller, trustee, to reverse the judgment of the court of common pleas in distributing the proceeds of the sale of said Tiffin and Fostoria Electric Street Railroad. The circuit court affirmed the judgment of the court of common pleas as to the distribution of the proceeds of the sale of the Tiffin Street Railway, and of the Tiffin Electric Street Railway, and reversed the judgment of the court of common pleas in the distribution of the proceeds of the sale of the Tiffin and Fostoria Electric Street Railroad, and ordered that the proceeds of the sale of that road be paid to Thomas A. Miller, trustee, to be by him applied in payment of the bonds secured by the mortgage of which he was trustee, and held that his lien was first and superior to the mechanics’ liens,to which the holders of such mechanics’ liens excepted, and filed their petition in error in this court to reverse the judgment of the circuit court.

      Dore da Dore; Platt da Black and W. S. Wagner, for plaintiffs in error.
    It was contended by counsel for defendants in error in the courts below that sections 3207 to 3211-1 inclusive, had no application to street railroads, but were only applicable to steam railroads. Qn this point we call the attention to the following authorities: Vol. 15, Am. and Eng. Ency. Law, pag’es 23 and 24, subdivision 9 ; 41 Ohio St., 52.

      Seney da Sayler, for Joseph A. Beauvais, defendant in error.
    We contend that these graders andbridgers have no lien upon the railway of the Tiffin Street Railway Company for the grading or bridging they did in constructing the railway of the Tiffin and Interurban Consolidated Railway Company between the cities of Tiffin and Fostoria. These liens are claimed, under sections 3208 and 3231-1 of the Revised Statutes.
    Neither of these sections, apply to a street railroad, for the reason, that section 3309a so enacts. This enactment is that “nothing in this section, (3300a) or in the sections of the Revised Statutes relating to railroad companies prior to section 3437, other than sections 3287, 3288 and 3289, shall be construed as affecting street railroads. ’ ’
    It is evident, therefore, that we have no statute providing a lien upon a street railway for labor-done, or materials furnished, either in its construction, maintenance, or repairs.
    , ¡ Bohn da Baker, for Samuel B. Sneath, defendant i;n- error also submitted a brief.

      Lutes da Lutes, for Thomas Miller, defendant in error.
    At the time the act now constituting sections 3207, 3208, 3209, 3210, and 3211 of the Revised Statutes was passed, as amended, April 6, 1883 (80 Ohio Laws, 99), there was a distinct and well known class of property in this state, legally recognized and generally spoken of and known as “railroads.”
    Section 3309 provides that nothing in the sections of the Revised Statutes relating to railroad companies, prior to section 3437, other than in sections 3287, 3288, and 3289 shall he construed as affecting street railroads.
    There was another distinct class of property, also having statutory recognition, known as street railroads. The most that can be claimed for that argument, we think, is, that the term “railroad,” being a general term, may include all species of which it is the genus, or it may apply to only one of them, depending upon the manner in which it is used, as showing the legislative intent. Rutherford & Co. v. Railroad Company, 35 Ohio St., 559.
   Bijrket, J.

Section 3207, Revised Statutes, makes any person or corporation contracting-for the construction of a railroad, depot building, or water-tank, liable to pay for the labor and materials in the construction of the same, and provides that the railroad company shall provide in its contract for such payments. '

Section 3208, Revised Statutes, provides as follows: “A person who performs labor or furnishes materials for or in construction of any railroad, depot buildings, water-tanks, or any part thereof, and a person who furnishes boarding on the order of any contractor or sub-contractor, to persons employed by them or either of them, in. furnishing materials, or performing labor for or in construction of such railroad, depot buildings, water-tanks, or any part thereof, in addition to his rights under the preceding section shall have a lien for the payment of the same upon such railroad, and such lien shall have and maintain precedence over any lien taken, or to be taken, and shall subsist for one year from the date of filing the attested account hereafter provided for.”

On part of the plaintiffs in error it is claimed that the word “railroad” in the above quoted part of section 3208 includes a street railroad, and that the liens of the laborers and furnishers of materials and boarding are the first and best lien upon all three of the street railroad properties in this case, and that they have priority over the mortgages which were on said street railroads before the labor was performed or materials and boarding furnished; while the holders of the mortgage liens claim the mortgages to be the first and best lien, and this is the only question in this case.

The first legislation on this subject was by the act of March 31, 1874, 71 O. L., 51, entitled “An act to secure pay to persons performing labor or furnishing materials in constructing railroads.” The provisions of that act were carried into the Revised Statutes, 'and with some immaterial amendments as to the question now in hand, constitute sections 3207 to 3211 both inclusive of the Revised Statutes ; but there is nothing- in the present statute to change or enlarge the meaning-of the word “railroad” or “railroad company,” from what those words meant in the original statute when it was first enacted in the year 1874.

When the statute was enacted in 1874 street railroading- was in its infancy in this state, and such roads were then operated by horses and mules, and the statute was then understood as applying to steam railroads only. The statute speaks of railroads, depot buildings, water-tanks and railroad companies, all of which are peculiarly applicable to steam railroads, and it is silent as to street railroads, barns, power houses, poles, wires, dynamos, machinery, and car barns, and in fact silent as to everything, that is peculiarly applicable to street railroads. If street railroads were intended to be included, the statute in some of its enactments, revisions and amendments would have used some word peculiarly applicable to street railroads.

When the act was first passed there was not much money secured by mortgage upon street railroads, and laborers and furnishers of materials had suffered but little, if any, from being postponed by such mortgages, and there was no necessity for providing at that time that the laborers’ and furnishers’ liens should have precedence over mortgages on street railroads, and for these reasons no provision was made for their protection as against such mortgages; and while there may be some reason now for such protection, since electric street railroads and interurban street railroads have come into general use, the general assembly has failed to provide that laborers and furnishers should have a lien on street railroads prior in right to the liens of prior mortgages thereon.

Sections 3207 to 3211 inclusive clearly relate to railroad, companies as well as to railroads, and yet the general assembly has provided in section 3309a “that nothing in this section (3309a), or in the sections of the Revised Statutes relating to railroad companies prior to section 3437, other than in section 3287, 3288 and 3289, shall be construed as affecting street railroads. ’ ’

This section, 3309a, was passed after sections 3207 to 3211 formed apart of the Revised Statutes, and with full knowledge of them by the general assembly, and thus a clear intention is shown that sections 3207 to 3211 shall not be construed as affecting street railroads.

Prom a careful examination of the course of legislation on the subject of railroads and street railroads, it appears that the legislation as to each has been carefully kept separate, and the statutes as to railroads do not apply to street railroads unless made to do so by clear reference.

The statute as to taxation of railroads has never been appliéd to the taxation of street railroads, and yet the language used in that statute as clearly includes street railroads as the language of sections 3207 to 3211.

While the act of March 19, 1896, 92 O. L., 79, was passed after the rights in this case had accrued, and therefore not controlling, yet it is sig’nificant as showing that the general assembly still regards railroads and street railroads as entirely different,- and to be controlled by different legislation.

Sections 2501 to 2505d inclusive, are all prior to section 3437, and all affect street railroads, but they do not relate to railroads, thus showing that the g’eneral assembly do not regard even inter. urban, street railroads as being included within the word “railroad.”

It was held in the state of Missouri that where an act is passed “in relation to railroads” it will be held to apply to railroads used for carriages drawn by horses as well as those on which the motive power is steam, unless a contrary meaning can be plainly gathered from the act itself. St. Louis Bolt and Iron Co. v. Donahoe, 3 Mo. App., 559; 15 Am. & Eng. Enc. Law, 23 and 24. While this may be so under the Missouri statutes, the same cannot be held under our statutes, and the rule here is not that the “contrary meaning” must be plainly gathered from the act itself, but from all the statutes on the same subject. When all the statutes on the subject of railroads and street railroads in this state are considered together, the “contrary meaning” plainly appears.

In the case of Front Street Cable Railway Co. v. Johnson, 25 Pacific Reporter, 1084; 2 Washington, 112, it was held that under a statute giving laborers a lien upon a railroad or any other structure, a lien could not be taken upon a street cable railway ; and in Rutherfoord & Co. v. Railroad Co., 35 Ohio St., 559, it was held that our statute which gives a lien upon a sti'ucture, does not thereby authorize a lien upon a railroad, for the reason that a railroad is not a structure within the .meaning of the statute.

In the case of The Louisville Railroad Co. v. The Louisville Railway Co., 2 Duvall (Ky.), 175, it was held that a street railway in both its technical and popular sense is not a railroad. This is approved by Elliott on Roads and Streets 557, and by Rorer on Railroads, 1422.

It seems clear, therefore, that sections 3207 to 3211 are not applicable to street railroads.

It is further urged by plaintiffs in error, that if sections 3207 to 3211 are not broad enough to include street railroads, they are entitled to a “first, immediate and absolute lien” on all three of the street railroads under section! of the act of March 20, 1889, 86 O. L., 120, section 3231-1, Bates’ Statutes, which reads as follows:

“Any person who shall have performed common or mechanical labor upon, or furnished supplies to any railroad, turnpike, plank road, canal or on any public structure being erected, or on any abutment, pier, culvert or foundation for same, or for any side track, embankment, excavation or any public work, protection, ballasting, delivering or placing ties, or track-laying, whether the labor is performed for, or the supplies or material is furnished to any company, corporation, contractor or sub-contractor, construction company or an individual, shall have a first, immediate, and absolute lien on the whole of the property on which said work is done, and to which said supplies have been contributed, and shall hold the railroad, canal, turnpike, plank road or structure to the creation or construction of which the said labor or supplies has been contributed, or so much thereof as may havebeen in whole or in part created by said labor or supplies, to the exclusion of any railroad, canal, turnpike, plank road, public work or structure, as to operation, occupation or use, until the claim for such labor or supplies is properly adjusted and paid in full.”

This section is not broader in its terms than sections 3207 to 3211 inclusive, and it does not purport to give a lien upon street railroads. As the word “railroad” does not include street railroads in sections 3207 to 3211, the same word on the same subject in this section does not include street railroads.

In this view of the case it is not necessary to pass upon the constitutionality of this section, and that question is left undecided. Neither is it necessary to consider the question, so ably argued by counsel for plaintiffs in error, as to whether the mechanics liens should have priority over the three mortgages in case the word “railroad” included street railroads.

There is no error in the judgment of the circuit court.

Judgment affirmed.


source: Caselaw Access Project

author: Shaitck, J.

license: Public Domain

text:
    Rumsey v. Lentz, Harrison, et al.

      Promissory note — Shares of stock as security — Contemporaneous agreement for conditional sale of security to holder — Authority of payee as agent — Contract law — Age?icy.
    One who executes a negotiable promissory note and contemporaneously therewith an instrument by which he transfers to the payee of the note and his assigns shai’es of the stock in an incorporated company as security for the payment of the note, and designating a price in excess of the amount to become due on the note at its maturity, upon the payment of which the holder may become the absolute owner of the stock, and delivers such note and instrument to the payee with knowledge that he does not furnish the consideration for the note, and with the intent that he shall obtain the same from another, thereby vests such payee with authority to receive such original consideration, but not with authority to receive from the holder at the maturity of the note a tender of the difference between the price of the stock and the amount due upon the note.
    (Decided November 29, 1898.)

      Error to the Circuit Court of Franklin county.
    The case was tried on appeal in the circuit court, the plaintiff in error being plaintiff there. In his petition plaintiff alleges that on the twenty-seventh of June, 1893, he executed and delivered to the defendant, Lentz, his promissory note for $5,000, payable September 1, 1893, with eight per cent, interest thereon; and to secure the payment thereof at maturity, deposited with him, duly endorsed, fully paid up stock of said fuel company, of the par value of $15,000. That said stock, at the beginning of the suit, was of the actual value of $9,000 ; that at the time of the execution of the note and delivery of the stock to Lentz, plaintiff executed to him the following memorandum.
    “27th June, 1893.
    This memorandum witnesseth: That I have this day delivered my promissory note for five thousand dollars ($5,000) due on first of September, 1893, with interest at the rate of eight per cent. (8 °J0) per annum, payable annually to John J, Lentz, and that I have deposited with said Lentz as collateral security for the payment of said note fifteen thousand dollars ($15,000.00) face value of the stock of The Central Ohio Natural .Gas and Fuel Company, being certificates No. 347 for one hundred shares, 585 for thirty shares, and 586 for twenty shares, one hundred-fifty shares in all, the market value of which is now estimated at seven thpusand dollars ($7,000) with full power and authority to said Lentz, his heirs and assigns to sell and assign and deliver the whole of the above mentioned security or any part thereof at public or private sale at the option of said John J. Lentz, his heirs and assigns, on the non-performance of any of the promises contained in the promissory note aforesaid or the non-payment of any of the liabilities assumed in said note at any time or times thereafter without demand, advertisement or notice. And after deducting all legal and other costs and expenses for collection, sale and delivery, to apply the residue of the proceeds of such sale or sales so to be made to pay any or all of said liabilities as said John J. Lentz, his heirs and assigns shall deem proper, returning the overplus to the undersigned. In case of deficiency of proceeds fully to discharge said note I promise to pay John J. Lentz or order the amount thereof forthwith after such sale with interest at the rate aforesaid. And further in consideration of the aforesaid loan to me made by said John J. Lentz and the additional consideration of one dollar to me paid by said Lentz, the receipt whereof is hereby acknowledged, I do hereby promise and agree and covenant to and with said John J. Lentz, his heirs and assigns, that he has and shall have until the first of .September, 1893, the right, privilege and option to purchase said fifteen thousand dollars ($15,000) face value of the stock of said The Central Ohio Natural Gas and Fuel Company for six -thousand seven hundered and fifty dollars ($6,750), and that at the time of his election to purchase said stock, he, his heirs and assigns may use in part payment therefor said note of five thousand dollars ($5,000) hereinbefore mentioned.
    Witness my signature this twenty-seventh of June, 1893.
    Signed: J. B. Rumsey.”
    Thereby giving him, or his transferee of said note, the option to purchase said stock at $6,750, on or before the first day of September, 1893, but not thereafter. The note so executed by the plaintiff was to be used as a part payment on the purchase of said stock, if said option to purchase should be exercised. Plaintiff further alleges that said option never was exercised, but on the contrary it was waived. That at the time of the maturity of said note plaintiff tendered full payment thereof, in lawful money of the United States, the sum of $5,081.11, and, tenders the same in court, demanding the surrender of said certificates, but that the defendants refused and continue to refuse to surrender them, Harrison claiming' to be the owner thereof. He further alleges that the principal defendant, Harrison, acting in collusion with said Lentz in refusing to permit the plaintiff to pay said promissory note and in refusing to surrender to him said stock certificates, threatens to, and will, unless restrained by order of the court, transfer and dispose of said stock, and that the company, unless restrained, will permit the transfer thereof upon its books, whereby the plaintiff will sustain irreparable damage.
    Plaintiff, therefore, prays that the defendants be enjoined from transferring, or in any manner disposing of the stock and that the defendant be compelled to surrender the said certificates to him.
    •Harrison, the principal defendant, answers, admitting the execution of the note, as alleged by the plaintiff, and deposit of stock as collateral security, but denying each and every other allegation of the petition. He further alleges that on the twenty-seventh of June, 1893, the defendant, Lentz, assigned the note and the option contract, so executed by the plaintiff, to him and delivered to him the shares of stock, and that on the thirty-first of August, 1893, before the expiration of the option, he elected to exercise his said right to purchase the stock and become the owner of it, and did so elect to buy the stock, according to the terms of said contract; and thereupon, on the thirty-first of August, he notified Lentz as agent and attorney of the plaintiff, of said election, and paid to Lentz the balance due as purchase money for said stock as provided in said option and contract over and above the amount due upon the note, to-wit: The sum of $1,677.78, and thereby became the owner of the stock.
    Lentz, in his answer, alleges that at the time of the execution of .The note and the making of the contract, he was acting as the agent and attorney for the plaintiff, and that the plaintiff requested him to procure a purchaser for said gas stock, and the plaintiff knew that the defendant was procuring the money advanced to said plaintiff from a third party, that said option and contract were made with the understanding, agreement and intention, and for the express purpose of having them assigned to the party who should furnish the money so advanced. That on the twenty-seventh day of June, 1893, Lentz endorsed the option and contract to Harrison who furnished the money advanced to Rumsey; that on August 31, 1893, Harrison availed himself of the option to purchase said stock according to the terms of said contract, and delivered to Lentz, as the agent and attorney of Rumsey, said $5,000 note of Rumsey and paid to him the difference between the amount due upon the note and the agreed price at which the stock was to be sold. That he thereupon notified Rumsey of the election by Harrison and the payment of said difference to him, Lentz, and that he was ready to deliver the note and said money to Rumsey, less his commission for services in the premises.
    In his reply Rumsey denied that Lentz was acting as his agent and attorney, and denied that Harrison on the thirty-first day of August delivered to Lentz the promissory note or paid to him the difference between the amount of the note and purchase price of the stock; denies that Lentz had so notified him; denies that Lentz ever offered, tendered or has been ready to pay to him the difference between the note and the value of the stock.
    On the hearing of the evidence, the circuit court made a separate finding of facts as follows: That prior to the twenty-seventh of June, 1893, plaintiff employed Lentz as his attorney to negotiate and procure a sale of his stock in the fuel company, or to procure a loan for him of $5,000, using the stock as collateral, and that on that day, pursuant to said employment, Lentz procured the loan for Rumsey from Harrison. That at the time the loan was procured, and in order to obtain the same, the plaintiff executed to the ■ defendant, Lentz and his assigns, the option and contract already referred to. with the intent and for the purpose of having the same assigned, by Lentz as the attorney for Rumsey, to the third party who might furnish the money to be loaned to Rumsey. 'That Harrison paid the money to Rumsey and said option was assigned to Harrison pursuant to the agreement and understanding, and that in procuring said loan for Rumsey and in conducting the transactions described in the pleadings, Lentz acted solely as the agent and attorney of the plaintiff, Rumsey, and that as attorney for Rum'sey, on the twenty-seventh of June, 1893, and with the knowledge and consent and in the presence of Rumsey, he made an assignment of said contract and option. , That pursuant to said option and contract on the thirty-first of August, 1893, and within the time provided by the contract, Harrison elected to buy, and did take, the shares of stock described in the contract, and that he paid to the defendant, Lentz, as the agent and attorney of the plaintiff, the balance due the plaintiff und.er the said option and contract, and turned over to Lentz, as such agent, the promissory note therein described, and fully performed all things required of him under and by virtue of said contract. The court further finds that after the execution of the note there was no communication whatever between the plaintiff and Harrison, nor until the eighth day of September, 1893, was there any communication between Lentz and Rumsey, except the correspondence set out in the record. That on the eighth day of September, 1893, Lentz and Rumsey met, but could not agree as to the rights of Harrison and Rumsey in the premises, and that Lentz then offered to turn over to said Rumsey the promissory note of June 27th, and the balance of the proceeds due him on said sale of stock, but that Rumsey declined and refused to accept anything from Lentz, except his note and the stock, and that Rumsey then tendered to Lentz, (Harrison being as yet unknown to Rumsey ;in the transaction) in gold the full amount due upon said note. That on the said eighth day of September Lentz went to Harrison’s office and received from him a check of that date for the sum of $2,675.44, drawn on the Merchants’ & Manufacturers’ Bank, which Lentz deposited in his bank, and the same was paid on the ninth of September, 1893, by the bank on which it was drawn.
    As conclusions of law upon the foregoing facts the circuit court found that Lentz acted throughout the transactions as the agent and attorney for the plaintiff and not for himself or Harrison; that he performed all things required of him, in good faith; that Harrison, by virtue of the facts found, became the owner of the stock on the thirty-first ‘ day of August, 1893, and that the plaintiff had no cause of action, and adjudged that his petition Should be dismissed.
    ' This is a petition in error to reverse the judgment so rendered.

      T. E. Poioell and Dan Danehy, for plaintiff in error.

      George K. EashwxA J. J. Stoddart, for defendants in error.
   Shaitck, J.

It is admitted that by the terms of the instrument by which Rumsey transferred his stock to Lentz and his assigns the option to pur'chase the stock for $6,750 was required to be exercised by Harrison as transferee by the first day of September, 1893, and that the exercise of the 'right required the payment or tender to Rumsey of the difference between that sum and the amount then due upon the note. It is also admitted that Harrison did not comply with this requirement otherwise than by notifying- Lentz of his election to take the stock at the price named, and agreeing with him that money belonging to Harrison and held by the firm of which Lentz was a member should be devoted to the payment of the difference. This occurred on the thirty-first day of August, 1893. It is, therefore, indispensable to Harrison’s, claim to be the owner of the stock that Lentz was the agent of Rumsey having authority to receive pay-~ ment of the difference. The opinion of the circuit court shows that this view was taken there and it agrees with the briefs of counsel for the defendant in error.

It is said that the fact of such agency is conclusively established by the finding of the circuit court that “in procuring said loan for Rumsey and in conducting the transactions described in the pleadings herein, Lentz acted solely as the agent and attorney of Rumsey. ” Although this conclusion is stated by the circuit court as one of its findings of fact, and substantially repeated in its conclusions of law, it becomes evident upon a consideration of the entire entry that it was an inference drawn by the court from the primary facts in the case. For it is further found that after the execution of the note there was no communication whatever between Rumsey and Harrison and that from that time until the eighth day of September, 1893,, there was no communication between Rumsey and Lentz except the correspondence set out in the, record. Moreover there was no conflict in the evidence concerning any fact affecting the authority of Lentz as the agent of Rumsey. Whether such agency can be inferred from the undisputed facts, including the written communications, is a question which the conclusions of the circuit court do not foreclose. Concerning the written communications, which passed between Lentz and Rumsey after-the execution of the note and the transfer of stock by the latter it is sufficient to say that counsel designate no part of them which is supposed to; renew or continue the authority given to, Lentz at the time of the execution of the note, and that we find in them nothing having that effect. They relate to the application by Lentz of the proceeds of the note received from Harrison in June, to inquiries concerning the intention of the transferee to take the stock under the option and to Rumsey’s refusal, upon inquiry, to extend the time fixed by the contract for the exercise of the option.

The authority in question seems to have been inferred from the transaction in June when Rumsey executed to Lentz or order his promissory note for $5,000 and executed the transfer of stock to secure its payment, conferring upon the transferee the right to purchase it within the time and upon the terms fixed therein, with knowledge that Lentz was not himself furnishing the money which constituted the consideration for the note and that he was procuring it from some one unknown to Rumsey. It is entirely clear that the transactions clothed Lentz with authority to act as the agent of Rumsey. It is quite as clear that his authority was limited to the receipt of the proceeds of the note and their application according to the directions of Rumsey to the discharge of certain obligations which were pressing him. The duty of Lentz in that regard, it is admitted, has been fully performed by him. The present controversy does not concern either his authority or his good faith with respect to that transaction. When the note and stock were transferred to Harrison he and Rumsey became the adversary parties to the contract whose terms fixed their rights and liabilities. Although Rumsey did not know who held his note and stock, Harrison knew whose note and stock he held There was no circumstance to excuse him from the duty required by theeontraet of tendering the difference between the price of the stock and the note either to Rumsey or to some one authorized by him to receive payment of that amount, and within the time limited.

Judgment reversed and judgment for plaintiff in error.


author: By the Court :

text:
    Mott et al. v. Hubbard, Treas., et al.

      County roads — Parties who participated in proceedings are estopped from enjoining, when — Invalidity of act of March IS, 1894 — Constitutional law.

    1. The act entitled “An act to supplement section 4637 of the Revised Statutes of Ohio, ” 91 O. L., 64, is unconstitutional, for the reason that its subject matter is of a general nature, and its operation is local.

      2. Parties who invoked proceedings under that act, and actively-participated in such proceedings, from the signing of the petition to the making of the assessment for the improvement of a road, under the act, are estopped from enjoining the collection of an assessment for the payment of the costs incurred in the proceedings so invoked by them; but no such estoppel arises as to enjoining further proceedings under the act.
    (Decided November 29, 1898).
    Error to the Circuit Court of Cuyahoga county.
    On the twenty-second day of November, 1895, the plaintiffs in error, also plaintiffs below, Roland C. Mott, Orlando A. Houghland, Oscar F. Powers, William A. Kennedy, Martha B. Kennedy, Charles Lock, George F. Leick, William L. Leick, Charles M. Yorce, John Marzell, Henry G. Vorce, and Henry Houck, commenced their action in the court of common pleas against the treasurer, auditor and commissioners of Cuyahoga county to enjoin the collection of an assessment placed upon the duplicate against their lands, and to enjoin the placing of further assessments upon the duplicate, in a proceeding for the widening and improving of a county road, known as Euclid avenue, pursuant to the provisions of the act of March 13, 1894, entitled “An act to supplement section 4637 of the Revised Statutes of Ohio,” 91 Ohio Laws, 64.
    The grounds upon which the injunction was asked were, among others, that the said act was unconstitutional, and that the assessments included $4,800 as expenses for building certain bridges and culverts.
    The defendants by their answers traversed all the grounds upon which the injunction was asked, and in addition pleaded that the plaintiffs were estopped from questioning the constitutionality of the act, because they had procured the passage of the act in question; had petitioned for the improvement; had taken an active part in all the steps connected with the improvements so far as they had gone; had occasioned an expense of $1,644.08 in the proceedings had in the case.
    The court of common pleas held the assessment for bridges and culverts void and enjoined the collection of the $4,800, and dismissed the petition on its merits as to the balance of the assessment.
    The case was appealed to the circuit court by the plaintiffs below, and upon trial in that court there was a separate finding of facts and conclusions of law as follows:

      Fwst — That all the plaintiffs excepting Martha B. Kennedy, George F. Leick, William Leick and C. M. Vorce, assisted in procuring the passage by the legislature of the state of Ohio, of the act of March 13, 1894, 91 O. L., 64, and that of said plaintiffs, George F. and William Leick, H. Houck and John Marzell, signed the petition'presented to the-county commissioners for the widening and improvement of said road, limiting the width thereof to one hundred (100) feet; and all the other plaintiffs signed a petition presented to the county commissioners asking that the width of the improved road be limited to eighty (80) feet. That accompanying’ said petition there was filed with the said county commissioners a bond duly certified and attested, containing as the conditions thereof a recital of the substance of the said petition, and in all respects conforming to their requirements of law in such case made and provided; and that all of said -plaintiffs were present with the viewers when they made the survey, and participated in their action; that all of said plaintiffs presented claims for damages growing out of said improvement, to the said viewers, and damages were awarded by said viewers to all said plaintiffs upon such application; that the action of the viewers was approved by the county commissioners, and the road established as prayed for-under said statute at the width of one hundred (100) feet. That from the award of damages thus made, two of the plaintiffs, O. F. Rowers and H. G. Vorce, and others not plaintiffs, appealed to the probate court and had a trial in that court on the question of the damages which should be awarded to them by reason of said improvement, and in said court, were awarded greater damages than they were given by the viewers, which award in the probate court was afterwards certified to the county commissioners and approved by them, and included by them in the assessment thereafter made to defray the expenses of said improvement. Costs were made in said proceeding in the probate court to the amount of $629'’. 63; that the costs of the proceedings down to the report of the reviewers and the order of the county commissioners approving the report and establishing the road, amounted to $583.60; that thereafter the county commissioners made an assessment to defray the costs of making said improvement in accordance with the said statute, among others upon lands owned by all of said plaintiffs respectively; that all of said plaintiffs appeared before the county commissioners and participated in the proceedings of making said assessment; that thereafter all of■ said plaintiffs except George F. Leick and William Leick excepted to said assessment on their respective lands so made by the county commissioners, and necessitated the appointment by said county commissioners under said act of March 13, A. D. 1894, of a board of equalization ; that thereafter all of said plaintiffs, except George F. Leick and William Leick, appeared before said board of equalization and participated in the equalization of said assessment made by said board of equalization; that thereafter said assessment so equalized by said board of equalization was approved by the board of county commissioners; that the costs of making said assessment before said county commissioners and by said board of equalization, amounted to $430.85; that the total expense of the said proceeding toward the making of said improvement, amounted to $1,644.08, of which sum $1,060.48 was made after the county commissioners had approved the report of the viewers, and ordered the improvement made; and that all of said expenses are included in the assessment for the costs of said improvement in said petition; that all of said costs have been paid by the county except the costs made in the probate court as above stated; that all of the steps and proceedings in reference to the widening and improving of said road, are in accordance with said act, and the other statutes bearing upon the cause; that nothing has been expended in grading or improving the said road. The court in addition to the foregGing facts is of the opinion that it should, and it does, take judicial notice of the fact that there is a necessity for wide and better improved roads in counties containing a city of the first class, second grade, and in the vicinity of such city than in counties containing no populous municipality ; but no evidence was permitted to be given in support of such proposition. “Findings of Law.” First— The appeal in this case to the circuit court vacated the entire decree in the common pleas court; Second — -That plaintiffs are estopped from asserting the uneonstitutionality of said act of March 13, 1894; Third — That the law in question is constitutional, the classification as to roads made by it is just and not illusory, reasonable and not arbitrary, judicious and not unnecessary; that the whole amount of said assessment was legally assessable upon the lands fronting upon said road, it is therefore ordered, adjudged and decreed by the court that the interlocutory injunction heretofore allowed herein be, and is dissolved; that the petition herein be dismissed, and that defendants recover of plaintiffs their costs herein to be taxed, to collect which execution, as of a judgment at law is awarded them, and that plaintiffs pay their own costs herein. Ordered that a special mandate be sent to the court of common pleas to carry this judgment into execution.

      Whereupon plaintiffs in error filed their petition in error in this court seeking to reverse the judgment of the circuit court.

      Prentiss dkVorce, for plaintiffs in error.
    The subject-matter of the act of March 13th is of a general nature, and its operation is restricted to “any county containing a city of the second grade of the first class;” and, as Cleveland is the only city of that grade and class, the operation of the act is restricted to Cuyahoga county, and the act is, therefore, unconstitutional and void.
    Section 5 provides that “The commissioners may order such part of the compensation, damages and costs, as they may deem equitable, to be paid out of the county treasury. ”
    This action is brought under the statute, section 5848, Tone v. Columbus, 39 Ohio St., 301; Stephen v. Daniels, 27 Ohio St., 536; Steese v. Oviatt, 24 Ohio St., 253; Costello v. Wyoming, 49 Ohio St., 202; Kelley v. The State, 6 Ohio St., 269; State et al. v. Davis, 55 Ohio St., 15; Cincinnati v. Steinkamp, 54 Ohio St., 295.
    There is no estoppel as to any of the preliminary expenses incurred. In the first place they are all preliminary to the widening, grading and draining of the road, and are provided for only by said section 4638, and there is no provision for assessing any part of them upon the abutting property..
    There can be no estoppel against the plaintiffs from taking advantage of the invalidity of the act of March 13th, in case it should be so held; for in that event no liability^ can be incurred, or money expended, or improvements made, as there is neither averment or finding* by the court that there are any existing liabilities as to such improvement.
    The decree against the defendants, enjoining them from including the cost of bridges and culverts in the assessment, amounting to $4,800, was a separate and independent question from the rest of the case, and was based upon the provisions of other statutes. 860, 2634, 4800, 4848 and 4938; 1 Ohio St., 520; 50 Ohio St., 494.

      P. II. Kaiser, City Solicitor, James W. Steivart, II. G. Bunts and White, Johnson, Mo Oaslin c& Gannon, for defendant in error.
    The Supreme Court of Pennsylvania, held that petitioning for the passage of an ordinance to make the improvement estopped the petitioner from questioning the constitutionality of the act conferring the authority to pass the ordinance. Bidwell v. Pittsburg, 85 Pa. St., 412; Dewhurst v. Allegheny, 95 Pa. St., 437; Collier v. Morrow, 90 Ga., 148.
    Persons petitioning for an improvement and not objecting afterwards during its progress, are estopped from questioning the constitutionality of the act under which the improvement is made. Motz v. Detroit, 18 Mich., 495; Ricketts v. Spraker, 77 Ind., 371; Ferguson v. Landram, 1 Bush., 548.
    Persons who petition for public improvement cannot afterwards maintain a bill to restrain a collection of a tax to pay for it. Byram v. Detroit, 50 Mich., 56.
    We now come to the decisions of this court. Kellogg v. Ely, 15 Ohio St., 64; Wright, Treasurer, v. Thomas, 26 Ohio St., 346 ; Teegarden v. Davis, 36 Ohio St., 601; Quinlan v. Meyers, 29 Ohio St., 500; State ex rel. v. Mitchell, 31 Ohio St., 592; Counterman v. Dublin Township, 38 Ohio St., 515; Tone v. Columbus, 39 Ohio St., 281.
    The North High Street assessment came again before the Supreme Court in three cases reported in the 44 Ohio St., two of which interest us here. In the first, it was held that signing a petition for the improvement estopped the petitioners from qhestioning the constitutionality of the act. Columbus v. Sohl, 44 Ohio St., 479.
    In the second case, it was held that voting at the election of the commissioners, estopped from questioning’ the constitutionality of the act, even though afterwards the voter remonstrated against the improvement. Columbus v. Slyh, 44 Ohio St., 484; Treasurer v. Martin, 50 Ohio St., 197.
    The decisions of this court indicate that it does not necessarily follow that a statute relating to a matter of a general nature may not yet concern matters peculiar to a locality, and therefore be constitutional, although applying only to that locality. Welker v. Potter, 18 Ohio St., 85; State ex rel. v. Judges, 21 Ohio St., 1; State ex rel. v. Capeler, 39 Ohio St., 207; Hart v. Murray, 48 Ohio St., 605; McGill v. State, 34 Ohio St., 228; State v. Kendle, 52 Ohio St., 346; State ex rel. v. Shearer, 46 Ohio St., 275; Marrmet v. State, 45 Ohio St., 63.
    Apparently, but yet not quite certainly, this court seems to hold that this rule does not apply to legislation on the subject matter of roads. Hixon v. Burson, 54 Ohio St., 470 ; State ex rel. v. Davis, 55 Ohio St., 15.
    That this statute is of uniform operation throughout the state cannot be questioned under the decisions of this court,' for it applies to every county ■ in the state which, either now or at any time hereafter, may contain a city of the first class, second grade. Bronson v. Oberlin, 41 Ohio St., 476; Heck v. State, 44 Ohio St., 536; Senior v. Ratterman, 44 Ohio St., 661; Railroad Company v. Iowa,94 U. S., 155; Haskell v. Burlington, 30 Iowa, 230; State v. Nelson, 52 Ohio St., 88; State ex rel v. Cincinnati, 52 Ohio St., 419; Nichols v. TFbfócr, 37 Minn., 264.
    First of all, the classification in the statute in question is based upon the classification of municipalities within its borders. After considerable question and many doubts, it seems to be now set-tied that proper classification of municipalities by population is valid. Ohio ex rel. v. Covington, 29 Ohio St., 102; State v. Powers, 38 Ohio St., 54; State v. Brewster, 39 Ohio St., 653; State v. Pugh, 43 Ohio St., 98; aff. 15 Bull., 66; State ex rel. v. Hawkins, 44 Ohio St., 98; State ex rel. v. Hudson, 44 Ohio St., 137; State v. Smith, 48 Ohio St., 211; State ex rel. v. Baker, 55 Ohio St., 1; Cincinnati v. Conner, 55 Ohio St., 82; Hayes v. Cleveland, 55 Ohio St., 117; Dietz v. Cleveland, 55 Ohio St., 645; Seifert v. Weidner, 12 O. C. C., 1; -5 C. D., 506; aff. 55 Ohio St., 646.
    This right to classify municipalities does not-rest, as has been sometimes stated, merely upon the clause in the constitution relating to the classification of municipalities, but rather rests upon the general right and duty of the legislature to properly classify the subjects of legislation. Haskell v. Burlington, 30 Ia., 232; Iowa R. R. Land Co. v. Soper, 39 Ia., 112; Wheeler v. Philadelphia, 77 Pa. St., 338; Kilgore v. Magee, 85 Pa. St., 401; Darrow v. People, 8 Col., 417; State ex rel. v. Hammer, 42 N. J. L., 435; Freeholder, etc. v. Buck, 51 N. J. L., 155; Gibbs v. Morgan, 39 N. J. Eq., 126; State v. Parsons et al., 40 N. J. L., 123; Nichols v. Walter, 37 Minn., 264.

      The act of the twenty-fifth of April 1882 (82 O. L., 156, section 2293a), empowering cities of the first grade, first class to pave their streets in a certain way, was held constitutional by this court. Scheer v. Cincinnati, 14 Bull., 87; aff. 15, Bull., 66; Parsons v. Columbus, 50 Ohio St., 460.
    An act punishing the sale of intoxicating liquor within two miles of a place where an agricultural •fair is held is constitutional. State v. Long, 48 Ohio St., 509; Theis v. State, 54 Ohio St., 245.
    The act of sixth of April, 1893 (90 O. L., 143), imposes a penalty for the selling or giving away intoxicating liquors within one and a half miles of the boundary of a United States Soldiers’ Home, and the same penalty for doing the same thing within one mile of the boundary of an Ohio State Soldiers’ Home. Driggs v. The State, 52 Ohio St., 37.
    On the other hand, an act punishing- the sale of intoxicating liquors within two miles of Chippewa Lake was held to be unconstitutional because here there was no classification. State v. Winch, 45 Ohio St., 663.
    An act relating to cities which, at any census had, or may have, a population not less than twenty-seven thousand, and not more than thirty-four thousand, makes a real classification and is therefore constitutional. Costello v. Wyoming, 49 Ohio St., 202; State v. Baker, 55 Ohio St., 1.
    And so, one authorizing cities of the second class,' second grade, to do the same. Siefert v. Weidner, 12 C. C., 1; 5 C. D., 506.
    An act applying only to a county having, at the last census, a population not less than 29,130 and not more than 29,135, is special, because the limits of population are too small to make it a real classification. Fields v. Com. of Highland Co., 36 Ohio St., 476; The P. Ft. W. & C. Ry. Co. v. Martin, 53 Ohio St., 386.
    An act of a general nature applying to a county having, at the census of 1880, a population of 43,788, and containing a city of the second grade, third class, is unconstitutional, because it could never apply to any county but Summit. State ex rel. v. Ellet, 47 Ohio St., 90; State ex rel. v. Mitchell, 31 Ohio St., 592.
    An act is special, and does not create a class, which applies only to cities of the second grade, third class, having at the last federal census a population of 16,512 and no more. State ex rel. v. Anderson, 44 Ohio St., 247.
    An act providing for the election of one councilman at large in cities of .the second class, third grade, having at the eleventh federal census a population of 17,565, is a special act. State ex rel v. Schwab, 49 Ohio St., 229.
    An act authorizing cities of the first class, first grade, to issue bonds to pay deficiencies in the various funds of the municipal departments of such cities, that may exist at the close of the fiscal year ending December 13, 1894, is a special act, for it cannot apply to any city but Cincinnati. Hermann v. Cinti., 9 O. C. C., 357; 6 C. D., 151; 52 O. S., 676.
    An act re-districting cities of the fourth grade, second class, which at any census, may have a population not less than 5,550, and not more than 5,560, is unconstitutional. Kenton v. State ex rel., 55 Ohio St., 59.
    An act applying only to counties which, by a given census had, or by any other census may have, a population of not less than 31,940 nor more than 31,960, or not less than 35,400 nor more than 35,500 is unconstitutional. State ex rel. v. Bargus, 53 Ohio St., 94.
    •So statutes relating to matters malum in se, or to conditions existing equally throughout the state, are he]d not to permit of classification. Ex parte Falla, 42 Ohio St., 638; Commissioners v. Rosche Bros., 50 Ohio St., 103; Cincinnati v. Steinkamp, 54 Ohio St., 284.
    But our friends say that it is improper classification to classify anything but municipalities by population. This is fairly well answered by the cases above cited from Minnesota, New Jersey and Pennsylvania, which lay down the right to classify by population as applicable to all political subdivisions of the state. State ex rel. v. Archibald, 52 Ohio St., 1; Tuttle v. Polk, 92 Ia., 433.
    Such classification as to roads has also been specifically upheld by this court. State ex rel. v. Turnpike Co., 37 Ohio St., 481.
    So an act was held constitutional authorizing cities of the first class, third grade, to borrow money and issue bonds to buy territory and rig’ht of way, sink and buy natural gas wells and gas works and lay pipes and supply the city with natural gas. State ex rel. v. Toledo, 48 Ohio St., 112; Owen v. Sioux City, 91 Ia., 190; Fitzgerald v. New Brunswick, 47 N. J. L., 479.
   By the Court :

The act in question, by its provisions, is restricted to “any county containing a city of the second grade of the first class.” As Cuyahoga county is the only county in this state that contains such a city, it follows that the act is restricted to that county, and might as well have designated that county by name. Fields v. Com missioners of Highland County, 36 Ohio St., 481. The act is, therefore, local and does not have general operation throughout the state.

The subject-matter of the act is public roads, and that subject-matter is of a general nature, and statutes upon subjects of a general nature must have uniform operation throughout the state. Section 26, article 2 of the constitution. Hixson v. Burson, 54 Ohio St., 470; State ex rel. v. Davisi 55 Ohio St., 15. The act is, therefore, unconstitutional and void.

All of the plaintiffs in error signed the petition to the commissioners asking for the widening and improving of said road ; all of them were present with the viewers when they made the survey, and participated in their action; all presented claims for damages growing out of said improvement, and damages were awarded to all but never paid; and all appeared before the county commissioners and participated in the proceedings for making an assessment on the lands abutting on the road or benefited thereby. Some of the plaintiffs in error assisted in procuring the passage of the special act, some of them appealed to the probate court, and some caused a board of equalization to be appointed, and by reason of all the proceedings thus had, costs accrued to the amount of $1,644.08, and the plaintiffs in error were not only seeking to have the entire act declared unconstitutional, but to prevent an assessment upon the abutting and benefited lands to pay these costs so incurred by' reason of the affirmative action taken by them.

The costs having been incurred upon proceedings invoked by them, and actively participated in by them, they are now estopped from defeating an assessment upon the lands for their payment. Tone v. Columbus, 39 Ohio St., 281.

The court finds that nothing has been expended in grading or improving the road, and as parties áre not estopped from questioning the constitutionality of a special act by them procured to be passed, as to such matters as yet remain to be done in the future under the act, it follows that a perpetual injunction should be granted as prayed for, except as to the $1,648.08 costs already incurred, for the payment of which an assessment on the abutting and benefited lands should be awarded.

] Judgment of the circuit court r&oersed and judgment modified.

Minshall, J., dissents as to the first proposition of the syllabus.


author: By The Court

text:
    State of Ohio v. Martin alias Anderson.

      'Habitual criminal act — Section 7888-11, Revised Statutes — Effect of j ' unconditional pardon.

    If imprisonment for a felony is terminated by an unconditional pardon it is not to be regarded as one of the two former imprisonments for felony required by section 7388-11, Revised . Statutes, to place the accused in the category of habitual criminals.
    (Decided November 29, 1898.)
    ^ Exception to the Court of Common Pleas of Franklin county.'
    At the April term, 1897, of the court of .common pleas, Martin was indicted for grand larceny committed on the twenty-second day of December, 1896, The indictment also charged that at the December term, 1877, of the court of common pleas of Wayne county, the defendant as Elbert J. Anderson had been convicted of the crime of grand larceny and sentenced to imprisonment in the penitentiary, and that he was actually imprisoned in the peni-' tentiary under that sentence; and that at the April term, 1893, of the common pleas court of Franklin; county he was convicted and sentenced to the¡ penitentiary for burglary and grand larceny, and: underwent the imprisonment imposed by the. sentence. The defendant specially pleaded in bar • of the allegations of the indictment charging him* as an habitual criminal that on the twenty-fifth, day of June, 1879, the said Elbert J. Anderson' “was given an unconditional pardon for said conviction, sentence and imprisonment by the gov-: ernor of Ohio.” A demurrer to this plea was interposed by the prosecuting attorney and overruled by the court to which ruling the prosecuting attorney excepted.

      F. /S. Monnett, Attorney General and George OS Blankner,- for plaintiff in error.
    ■ What is the definition of the word ‘ ‘imprisoned ?’’ It is the confinement of a person in or as if in* prison ; a forcible restraint within bounds.
    • The defendant’s claim is that a pardon restores him to the position he occupied prior to the commission of the crime; that it makes him as inno-. cent as a babe. We admit that it has the effect of restoring him, the same as .the expiration of a sentence, to the rights and privileges he enjoyed and exercised as a citizen before he was committed to prison, but deny that executive clemency, in the form of a pardon, was ever intended to place an individual, who has been guilty of committing á felony, in the position of never having violated-the laws of his country.
    In the case of Mount v. Commonwealth, 2 Duvall (Ky.), 93, the plaintiff had been convicted of a felony and sentenced to three years in the penitentiary. After serving a part of his time he was pardoned by the governor of Kentucky. Shortly after his release from prison, he committed a second crime. It was held by the Supreme Court of Kentucky that the pardon relieved him of the entire penalty incurred by his offense, but nothing more, and a sentence double that of the first was imposed.
    If the contention of the defendant is correct, then the pardoning power of the governor virtually sets a premium upon crimes, and serves as a loophole through which depraved, degraded and hardened criminals may escape the punishment they so richly deserve.
    The Century Dictionary defines a pardon as one expressing the act of an official or a superior, remitting all or the remainder of the punishment that belongs to an offense.
    In the case at bar the defendant was punished one year and a half and then released from serving the balance of his term. We maintain that all the pardon did was to relieve him from the remaining portion of the sentence, and having been imprisoned, section 7388-11 certainly applies.

      J. E. Sater, for defendant in error.
    Section 11, article 3, Constitution of Ohio, confers on the governor the power of granting an unconditional pardon for all offenses except treason and cases of impeachment. The legislature may prescribe the manner of applying for pardons, but it can not, and, by the enactment of section 7388-11 did not, restrict the pardoning power of the, governor. Cooley, Constitutional Limitations, 5ed., page 138, star page, 116; Cooley was quoted with approval in Knapp v. Thomas, 39 Ohio St., 392; State ex rel. v. Governor, 5 Ohio St., 528; Diehl v. Rodgers, 169 Pa. St., 316; Singleton v. State, 38 Fla., 297; State v. Sloss, 69 Am. Dec., 467 (25 Mo., 291); State v. McIntire, 59 Am. Dec., 572 (note).
    The defendant’s pardon being unconditional he is entitled to all the fruits of such a pardon, whatever they may be, and regardless of the provisions of section 7388-11.
    What are the effects of an unconditional pardon?
    On the answer to the above question hinges the decision of this case. Courts and text writer» have not always agreed in their definition of the term pardon. Bishop in his New Criminal Law, vol. 1 (1892), section 898, defines pardon ás “a remission of guilt.” His definition is sustained by the Supreme Court of Ohio, of the United States, of Virginia, and by many other courts of last resort. Another class of authorities define pardon as a “remission of the punishment of guilt.” Mount v. Commonwealth, 2 Duvall, 93.
    We attach importance to Bishop, supra for two reasons : First, Bishop relies on Fxpa/rte Garland, 4 Wall., 71 U. S., 333; so did Judge Okey, in his decision of Knapp v. Thomas, 39 Ohio St., 377. Second, Bishop approves the doctrine of Edwards v. Commonwealth, 78 Va., 39, hereinafter referred to at length. The doctrine of the Edwards case is directly contrary to that of the Mount case relied on by the Attorney-General.

      The doctrine of the Garland case was but a reiteration of that previously announced by the Supreme Court of the United States, in Armstrong's Foundry v. The United States, 73 U. S., 766 (6th Wall.); Knote v. U. S., 95 U. S. (5 Otto), 149; Lilly’s Abridgment, 270, quoted in Ex parte Hunt, 5 Eng. (Ark.), 288; Bac. Abridg., vol. 5, Tit. “Pardon » Sub. H.
    Other authorities defining the effects of a pardon to be the same as those announced by the Supreme Court of Ohio, are as follows : 17 Am. & Eng. Ency. of Law, 325; Singleton v. State, 38 Fla., 297; Diehl v. Rodgers, et al., 160 Pa. St., 316 ; 47 Am. St., 908; State v. Foley, 15 Nev., 64 ; Carlisle v. United States, 16 Wall., 147; 4 Blk. Com., 402; United States v. McKee, 4 Blk., 128; Cooley's Const. Lim., 5 ed., 137. It follows asa corollary of the preceding authorities as to the effects of a pardon, that pardoned crimes should not be taken into consideration in applying the habitual criminal act.
    The decision in the Edwards case was rendered on November 15, 1883; that in the Mount case was rendered on June 24, 1865. Several of the leading treatises on criminal law have either been revised Or written since the date of the decisions above mentioned. In so far as we are able to discover Bishop, is the only authority that has either cited or commented on the cases, and it is interesting .to note that the great weight of his authority is thrown against the doctrine of the Mount case and in favor of• that of the Edwards case. Bishop, section 919, New Criminal Law.
    The question now before this court was considered in Commonwealth v. Morrow, 9 Phila., 583.
    Section 182 of the Pa. Code referred to in the latter case is the same as section 66, pag’e 560, Brightly’s Purdon’s Dig. (1894); the provision of the Va. Code under -which the Edwards case was decided will be found in Code of Va., 1873, Ch. 195, sections 25 and 26. The Virginia and Pennsylvania courts reach a conclusion different from that of the Kentucky court, the statute under which the Kentucky decision was reached being found in Stanton’s Revised Statutes of Kentucky, vol. I, page 372. The principle running through the several statutes is substantially the same.
   By The Court

It is provided in section 7388-11 of the Revised Statutes that “ Every person who after having been twice convicted, sentenced and imprisoned in some penal institution for felony, whether committed heretofore or hereafter, and whether committed in this state or elsewhere within the limits of the United States of America, shall be convicted, sentenced and imprisoned in the Ohio penitentiary for felony hereafter committed, shall be deemed and taken to bean habitual criminal, and on the expiration of the term for which he shall be so sentenced, he shall not be discharged from imprisonment in the penitentiary, but shall be detained therein for and during his natural life,” etc.

The question presented by the exception is whether a former conviction and imprisonment for a felony on account of which the governor has granted an unconditional pardon may be regarded as one of the former convictions necessary to place the accused in the category of habitual criminals as defined by the act. It may be that the criminal habit is as- certainly indicated ' by the commission of felonies for which unconditional pardons have been granted as by those whose penalties have been suffered to the end. But we must presume that the legislature enacted this section intending that the language should be construed according to the commonly received view as to the effect of a pardon. That view with reference to legislation of this character is that “If a second offense is made by statute more heavily punishable than the first, then if the first is pardoned, it is obliterated. The consequence of which is that a like offense afterward committed is not a second, and is punishable only as a first.” Bishop New Cr. L., section 919. Edwards v. Commonwealth, 78 Va., 39. The case of Mount v. Commonwealth, 2 Duvall, 93, has not been accepted as a .correct statement of the law.

Exception overruled.


text:
    State of Ohio v. Hervey

      Proceedings to reverse order of reversal of conviction in circuit court — Section 7306a Revised Statutes — Supreme Court practice.

    By the provisions of section T306ís, Revised Statutes, unconditional.authority is conferred upon the attorney representing, the state to 1 ‘ take proceedings in error in the Supreme Court’ ’ for the reversal of a judgment of the circuit court reversing a conviction for a felony or misdemeanor in any court inferior to it, and leave to file a petition in error in such case need not be obtained from this court.
    (Decided November 29, 1898.)
    On Motion for leave to file petition in error to the circuit court of Ashtabula county.
    At the January term, 1898, of the court of common pleas Hervey was jointly indicted with others for burglary. He demanded a separate trial. At the March term he was convicted and sentenced to imprisonment in the pentitentiary for four years. At the October term of the circuit court the judgment was reversed for error in the charge. The State files this motion for leave to file a petition in error for the reversal of the judgment of the circuit court.

      II. E. Starkey and Charles Laioyer, Jr., for the motion.
   By the Court :

Section 7306a, of the Revised Statutes confers upon this court jurisdiction to reverse a judgment of the circuit court by which, on the petition of one convicted of a crime or misdemeanor, it reverses the sentence imposed upon him in the court of common pleas. It provides that in such cases “the attorney representing the state may take proceedings in error in the Supreme Court’’and that “like proceedings shall be had in the Supreme Court at the hearing of the petition in error as in other cases.” The section does not require an application to the Supreme Court for permission to file the petition in error. Section 7361, Revised Statutes, relating to proceedings in error instituted by the accused in case of conviction and final judgment adverse to him requires a motion for leave to file his petition in error in this court. So by the provisions of section 7306, Revised Statutes, the prosecuting attorney is expressly required to obtain permission of this court to filé a bill of exceptions for its decision upon' points decided adversly to the state by the court below.

That proceeding, however, does not contemplate a reversal of the judgment of the court below, the purpose of the proceeding being defined by the statute to be to obtain a decision of this court which shall ‘ ‘ determine the law to govern in any similar case. ’ ’

So by the provisions of section 6710, Revised Statutes, which relates to the review of judgments and final orders in civil actions and proceedings, there is an express provision that leave shall be obtained to file a petition in error unless the judgment or order whose reversal or modification is sought was rendered or made by the circuit court or the superior court of Cincinnati at general term. It thus appears to have been the purpose of the legislature to indicate by express provision the cases in which it is necessary to obtain permission to resort to this court. The section whose provisions are here invoked (section 7306«), prescribes no condition to the exercise of the authority which it confers upon the attorney representing the state “to take proceedings in error in-the Supreme Court.” • •

The motion for leave not being necessary will be si/ricken from the files.


author: Bradbury, J.

text:
    Second National Bank of Bucyrus v. Moderwell, et al.

      Proceedings in error — •Filing petition in error — Mistakes and amendments — Sections 6716, 67SS and 6114 Revised Statutes— Supreme Court practice.

    1. Section 6736, and section 6723, Revised Statutes, when construed together, require that a plaintiff in error file in this court, within six months (four months since April 25, 1898, when section 6723, Revised Statutes, was amended, 93 O. L-394), from the rendition of the judgment complained of, “ either a transcript of the final record, or a transcript of the docket and journal entries, with such original papers or transcripts thereof as are necessary to exhibit the error complained of.” If a paper writing filed in this court as such transcript, etc., is not sufficient to exhibit the error complained of, no amendment thereof or addition thereto can be made after the expiration of such period of six months.
    2. Where, however, such transcript, etc., is sufficient to exhibit the error complained of, but the certificate of the clerk of the circuit court or court of common pleas authenticating such transcript is materially defective, such certificate is amendable by virtue of section 5134, Revised Statutes, and the amendment may be made after the expiration of such period of six months.
    (Decided November 29, 1898.)
    On Motion by defendant in error to dismiss petition in error on tbe ground that the plaintiff: in error has not filed an authenticated transcript of the original papers and journal entries in the cause.
    On Motion by plaintiff in error for leave to correct the clerk’s certificate of authentication.
    The facts will be stated in the opinion.

      Harris & Sears, and Beer, Bennett & Monnette, for, plaintiff in error.

      Ban. Babst; Isaac Cahill; Anson Wickham and Scofield, Burfee & Scoheld, for defendants in error.
   Bradbury, J.

The plaintiff in error seeks in this court a reversal of the judgment of the circuit court of Crawford comity. It filed herein with its petition in error, a paper which purports to comprehend a copy of the journal entries in the common pleas and circuit courts, a copy of the original papers, or of certain substituted copies of original papers that had been lost. An inspection of this paper discloses that it contains a copy of the petition and such subsequent pleadings in the action as made up the issue on which the cause was tried; first, in the court of common pleas and afterwards on appeal in the circuit court. It also sets forth in detail every step taken in the action from the filing of the petition until the final decision of the cause in the circuit court. There appears on the face of this paper nothing to suggest a suspicion that it does not contain a com-, píete transcript of every pleading or paper filed in the cause and of the journal entries relating thereto to be found in the common pleas and circuit courts. In fact, defendants in error do not contend that this paper is not a complete transcript of the pleadings, journal entries, etc., but base their objection to its remaining on the files of this court on what they claim to be a defective certificate of authentication made by the clerk of the circuit court. The statute, section 6723, Revised Statutes (before the amendment of April 25, 1898), requires proceedings in error to be commenced within six months from the rendition of the judgment complained of. Proceedings in error are commenced by filing a petition in error and section 6716, Revised Statutes, requires the transcript, etc., to be filed with the petition in error.

The rights to institute and carry on proceedings in error is strictly statutory. If therefore the plaintiff in error has not complied with the conditions prescribed by the statute as necessary to entitle it to a review of the judgment of which it complains, it has no right to have that judgment reviewed. One of these requirements, as we have seen, is that the petition in error and a transcript of the proceedings must be filed within six months from the rendition of the judgment sought to be reversed. It follows, therefore, as a matter of course, that if an authenticated transcript is necessary, and is not filed within the six months, the petition and transcript should be stricken from the files. If such a transcript is necessary, and must be filed within the time prescribed, then as it is now too late to begin proceedings anew the plaintiff in error has lost its right to a review of the judgment of the circuit court.

It is at least a debatable question whether an authentication of the transcript by the clerk of the court where the judgment is found is necessary in a proceeding in error. In the case of appeals, section 5235, Revised Statutes, requires the clerk, in direct terms, to !‘make an authenticated transcript,” etc. But section 6716, which prescribes the kind of transcript to file with the petition in error, is silent as to an authentication by the clerk. The statute simply requires “a transcript” tobe fil,ed.

If an authentication by the clerk is necessary, it is not because of any express statutory declaration to that effect. Of course, a true transcript must be filed. Doubtless an authentication by the clerk is the most satisfactory as well as the easiest method of establishing the correctness of a transcript, and as section 6717, Revised Statutes, makes it the duty of the clerk to furnish an authenticated transcript, to anyone interested in a cause upon request and-the payment of the proper fees, this method of authentication has become quite universal.

Without pursuing further this question as to the necessity of an authentication, by the clerk but assuming that it is necessary, we will briefly consider the sufficiency and amendability of tile certificate attached to the paper in question. It is in the following terms:

The State of Ohio, )

Crawford County, j ss’

I, A. H. Laughbaum, clerk of the court of common pleas, within and for said county, and in whose custody the files, journals and records of said court are required by the laws of the state of Ohio to be kept, hereby certify that the foregoing is taken and copied from the original and substituted pleadings, and that said foregoing copy-has been compared by me with the original and substituted pleadings, and that the same is a correct transcript thereof.

In testimony whereof, I do hereby sub- ■ scribe my name officially, and affix the seal of said court, at the court house in Bucyrus, in said county, this twenty-fifth day of March, A. D.. 1897.

A. H. Laughbaum, Clerk.

Section 6716, Revised Statutes, prescribing what the plaintiff in error shall file with his petition reads as follows:

“Section 6716. The plaintiff in error shall file with his petition in error either a transcript of the final record, or a transcript of the docket or journal entries, with such original papers or transcripts thereof as are necessary to exhibit the error complained of; and, if original papers and pleadings are filed, and the final record has not been made, the reviewing court may permit the temporary withdrawal of the originals for a reasonable time, to allow the recording thereof, or direct copies' thereof to be made and filed, and the originals to be returned to the inferior tribunal.”

• Now, it is quite clear that one of two things must be done by the plaintiff in error when he files his petition in error. First, he may file a transcript of the final record. That, of course, includes all the pleadings, papers and proceedings taken in the cause, from its commencement to its conclusion or, Second, he may file a transcript of the docket or journal entries and either the original papers themselves or copies thereof. In the case before us the plaintiff in error adopted the latter method. The paper in question shows on its face that it purports to give a copy of the pleadings and a copy of the journal entries. The certificate, above recited, which was attached to thjs paper, states simply that the paper contains copies of original and substituted pleadings. This phraseology in regard to the pleadings was necessary because a number of the pleadings had been lost and copies had been substituted, and the paper contained copies of the substituted as well as of the original pleadings which had not been lost. This certificate, therefore, authenticates the correctness of the copies of the pleading’s, but entirely fails to state anything concerning the journal entries. The latter, therefore, were wholly unauthenticated. It is just as important that the journal entries, which recite the action of the court below, should be correctly transcribed and brought before the reviewing court as that the pleadings should be correctly transcribed. The certificate of the clerk failing to do this, it must be held to be defective in a material matter.

This brings us to the question of its amendability. Section 5114, Revised Statutes reads as follows:

“Section 5114. 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, or, when the amendment does not change substantially the claim or defense, by conforming the pleading- or proceeding to the facts proved; and when an action or proceeding fails to conform to the provisions of this title, the court may permit the same to be made conformable thereto, by amendment. ’ ’

The power of amendment thus authorized is very broad. Where there is nothing on which an amendment may rest, of course none can be made. Here, however,' the certificate made by the clerk falls to state that the journal entries of the court of common pleas and circuit court have been correctly transcribed into the paper in question. If, as a matter of fact, that paper contains a correct transcript of such entries the certificate of the clerk does not state all that it should state. Surely here we have something on which an amendment may rest. We have before us the very instrument — the certificate of authentication — sought to. be amended.

To permit the amendment to be made is clearly “in the furtherance of justice.” The objection to the paper is purely technical. It rests not upon any ground that goes to its completeness or correctness, but upon the ground that the official certificate of the clerk of the circuit court does not formally declare it to be complete and correct. As before shown, however, the plaintiff in error is required by section 6716, Revised Statutes, to file a transcript, etc., within six months from the rendition of the judgment complained of. This, of course, means, that a complete transcript shall be filed within that time. After the lapse of that period no material matter can be added to a transcript previously filed. If, however, the paper before us 'is a correct transcript of the pleadings and journal entries, it is the clear duty of the clerk of the circuit court to so certify, and the plaintiff in error should be permitted to take the paper temporarily from the files of this court for the purpose of having such certificate made.

Judgment accordingly.