author: Shatjck, J.

text:
    The Bowman Lumber Co. v. Anderson et al., doing business as The Buckeye Churn Co.

      Sale and delivery of chattels — Of described grade or quality— Seiler bound by grade described — Absence of express war ranty does not obligate seller — Where goods are accepted by buyer,' when.

    By an executory contract for the sale and delivery of chattels of a described grade or quality, the seller becomes bound to deliver goods of the character described, but in the absence of express terms of warranty no obligatioh is imposed upon him which survives the acceptance by the purchaser of an article delivered by the seller in good faith as in the performance of the contract if the acceptance is with full knowledge of all the conditions affecting the character and quality of the article.
    (No. 8025
    Decided March 8, 1904.)

      Error, to the Circuit Court of Shelby county.
    The lumber company brought suit in the court of ■common pleas against the churn company to recover the amount due on two car loads of poplar lumber sold and delivered by the plaintiff to the defendant, "the petition being in the short form authorized by the code. The churn company answered, denying the allegations of the petition and alleging, by way of ■counterclaim, that the defendants had purchased from the plaintiff ten car loads of number one, select and common, poplar lumber, under a memorandum of .sale made in writing; four cars had been delivered under said contract and paid for at the contract price of $20.25 per thousand feet; that the two items included in plaintiff's account sued upon, represented two additional cars upon said contract, which were not of the quality and kind bought and stipulated for by said contract, but inferior thereto, and only of the value of $18.50 per thousand feet ;fhat the defendants refused to receive the said two cars upon said contract and at once notified the plaintiff that the same were not of the grade or quality purchased and were worth only said sum of $18.50, which they then agreed to pay for the same; that at the time said two cars were shipped, poplar lumber of the grade and ■quality contracted for had materially advanced in price in the market; that the defendants had requested the plaintiff to deliver lumber of the kind and quality contracted for, which it had refused to do, and at all. times refused to deliver the remaining four cars. It asked judgment by way of counterclaim for $260.69 on account of the defects in the two cars, and for the further sum of $420.50 for failure to deliver the remaining four cars. By reply plaintiff admits that four cars were delivered and paid for by tbe’ defendants; that they agreed to pay for each installment of lumber when delivered; that the two items of the account upon which it sued represented two additional cars delivered upon said original contract, but denied the other allegations of the answer. Plaintiff further replied that upon the delivery of said two cars of lumber under said contract the defendants objected to the gradé thereof and refused to .pay the contract price therefor; that thereupon the plaintiff tendered the said defendants the freight advanced by them; that the plaintiff demanded the return of said lumber and permission to remove it in order that it might substitute other lumber therefor; that the defendant refused to permit such removal, and actually used the lumber in its business.
    Upon the trial it appeared, without contradiction, that the contract was for ten cars of number one, select and common, -poplar lumber at the price of $20.25 per thousand, delivered; that four cars were delivered and paid for, the controversy arising over the fifth and sixth cars shipped; that when these cars were received by the purchasers they unloaded them; placed the lumber in the yard of their factory, and inspected it; that they notified the seller that the lumber was not of the grade contracted for, but proposed to retain the same and pay for it at $18.50 per thousand feet. This proposition the sellers rejected and insisted that the lumber should be paid for at the contract price or returned at his expense, he to furnish other lumber in its place. The parties retained this position during a considerable correspondence, and when a representative of the seller came to adjust the matter the purchasers refused to pay the contract price and refused to permit him to remove the lumber. About three months after the receipt of the lumber the purchasers used it in their business, the seller not having consented thereto except as it might be received under the contract. Evidence was also introduced tending to show that the lumber was inferior to that described in the contract. The seller, regarding the refusal of the- purchasers to pay for lumber received as terminating the contract, refused to deliver the remaining four cars. The defendant also introduced evidence to show that the market price of such lumber had advanced while the controversy was in progress. The court in substance instructed the jury that if they should find from the evidence that the purchasers had accepted the two cars as being a part of the contract, and after inspection and ascertainment of its real grade and quality, without any agreement between themselves and the spller, appropriated the lumber to their own use, as a matter of law they had accepted it and the question whether it was or was not of the kind provided for in the contract was not a question for the consideration of the jury; that it was the duty of the plaintiff to furnish lumber of the kind described in the contract, but when lumber was delivered by the seller, as in -performance of the contract, and with knowledge of its character accepted by the purchasers, they could no longer make objection upon the account of the grade, quality or price; that this would be the rule of law in the absence of any fraud or deceit practiced by the seller.
    The jury returned a verdict for the plaintiff for the full amount claimed in its petition, and this, a motion for a new trial having been overruled, was followed by judgment. On petition in error the circuit court reversed the judgment for error in the instruction.

      Messrs. Gilbert & Shipman, for plaintiff in error,
    cited and commented upon the following authorities :
    2 Schouler on Personal Property, sec. 321; Fairbank Canning Co. v. Metzger, 118 N. Y., 260; 16 Am. St. Rep., 753; Chanter v. Hopkins, 4 M. & W., 399; Carleton v. Lombard, 149 N. Y., 137; Waeber v. Talbot, 167 N. Y., 48; 82 Am. St. Rep., 712; Reed v. Randall, 29 N. Y., 358; 86 Am. Dec., 305; Coplay Iron Co. v. Pope, 108 N. Y., 232; Hoadley v. House, 32 Vt., 197; 76 Am. Dec., 167; Van Wyck v. Allen, 69 N. Y., 61; 25 Am. Rep., 136; White v. Miller, 71 N. Y., 118; 27 Am. Rep., 13; McCormick v. Sarson, 45 N. Y., 265; Beck v. Sheldon, 48 N. Y., 373; Dutchess Co. v. Harding, 49 N. Y., 321; Galord Mfg. Co. v. Allen, 53 N. Y., 515; Mason v. Smith, 130 N. Y., 474; Pierson v. Crooks, 115 N. Y., 539; 12 Am. St. Rep., 831; Bierman v. City Mills Co., 151 N. Y., 482; Rodgers & Co. v. Niles & Co., 11 Ohio St., 48; Benjamin on Sales (7 ed.), secs. 600, 701, 706.

      Mr. Andrew J. Hess and Mr. John F. Wilson, for defendants in error,
    cited and commented upon the following authorities:

      Rugg v. Moore, 110 Pa. St., 236; Underwood v. Wolf, 131 Ill., 425; 19 Am. St. Rep., 40; Benjamin on Sales, “Conditions”, and “Successive Payments,” 567, 604; West v. Bechtel, 125 Mich., 144; 84 N. W. Rep., 69; 10 Am. & Eng. Ency. Law, 88; Benjamin on Sales (Am. Notes), 961, 962; Pierson v. Crooks, 115 N. Y., 539; 12 Am. St. Rep., 831; Winchester v. Newton, 2 All., 493; Benjamin on Sales (7 ed.), 681 et seq.; Morse v. Moore, 83 Me., 473; 23 Am. St. Rep., 783; Tillyer v. Van Cleve, 7 Circ. Dec., 209; 13 C. C. R., 99; Miller v. Moore, 83 Ga., 684; 20 Am. St. Rep., 329; Gould v. Stein, 149 Mass., 570; 14 Am. St. Rep., 457; Fairbank v. Metzger, 118 N. Y., 260; 16 Am. St. Rep., 753; Dayton v. Hooglund, 39 Ohio St., 671; 2 Mechem on Sales, sec. 1336; Blackburn v. Reilley, 47 N. J. Law, 290; 54 Am. Rep., 159; Cahen v. Platt, 69 N. Y., 348; 25 Am. Rep., 203; Monarch Cycle Mfg. Co. v. Royer Wheel Co., 12 O. F. D., 277; Merser & Co. v. Naylor, 9 App. Cas., L. R., 434; Railway Co. v. Ontario Mills, 10 Ont. App., 677; Winchester v. Newton, 2 All., 492; Smith v. Lime Co., 57 Ohio St., 518; Benjamin on Sales, 906; Nixon v. Nixon, 21 Ohio St., 114; Mechem on Sales, sec. 1393 et seq.; Beresford v. McCune, 13 Re., 409; 1 C. S. C., 50; Muller v. Eno, 14 N. Y., 597; Day v. Pool, 52 N. Y., 416; Benjamin on Sales (7 ed.), 960 et seq.

   Shatjck, J.

Unless the purchasers were justifiable in refusing to pay the contract price for the two cars of lumber which they received and did not. pay for, the seller might lawfully regard the contract as terminated thereby and refuse, as it did refuse, to deliver the remaining four cars which the contract contemplated. We therefore concur in the view taken by the circuit court upon this point, that the only question to be determined is whether the trial judge correctly instructed the jury with respect to the obligation of the purchasers to pay for the two car loads the price stipulated in the contract. In the court of common pleas the words “select and common,” indicating the grade of the lumber, were regarded as merely words of description which imposed upon the seller no obligation which would survive the receipt, inspection and use by the purchasers of the cars which the seller had shipped in good faith as in performance of the contract. In the circuit court the words were regarded as being both a description and a warranty, the warranty imposing upon the seller an obligation which survived the acceptance and use of the lumber by the purchasers with full knowledge of all the defects therein, which, upon the trial, they sought to make available as a defense to an action for the contract price.

Undoubtedly, in sales of this character, the particular subject of the contract not being designated or identified, the seller becomes charged with an obliga-' tion to furnish an article of the description contained in the contract, and the purchaser does not become bound to accept any other. In some of the cases cited this obligation of the purchaser is called a “warranty.” That in some cases he is liable to the same extent as he would be upon a warranty is clear. That he incurs such liability in all cases of this character cannot be sustained by either the reasons involved or by the discriminating cases. It is not doubted that if the particular subject of this contract had been identified, the rights and liabilities of the parties would be determined under the rule caveat emptor. What modification, or apparent modification, of that rule does justice require in view of the fact that the subject of the contract was not present or designated? Obviously it is that the purchaser should have the same opportunity for effective inspection of the subject which would have been afforded by its actual identification at the time of the sale. The instruction was given in the present.case in view of evidence tending to show, or, more accurately, conclusively showing, that upon the arrival of the two cars at the factory of the purchasers they removed the lumber from the cars, made the inspection, which, according to their testimony 'upon the trial, showed that it was not in accordance with the description in the contract, and refused, for that reason assigned, to make payment of the contract price, proposed to take it at the lower price as lumber of an inferior grade, and the seller not assenting thereto, refused to permit him to remove it at his own expense and to substitute other lumber which should be acceptable to them and in compliance with the contract; and that after three months they used it in their business, the seller always insisting that it should be accepted under the contract or that he should be permitted to substitute other lumber. The obligation of the seller was to furnish lumber of the amount and grade described. No terms were employed appropriate to an obligation that these particular cars should be of that grade, nor does any consideration of justice to the purchasers require that such obligation should be imposed upon the seller regardless of intention. His offer was to perform his contract, and the purchasers should not be permitted to coerce him into the acceptance of a price arbitrarily fixed by themselves, or to the submission to a jury of a price which had been fixed by the agreement of the parties.

It is admitted that the instruction given is- in accordance with the doctrine declared and the point decided in Pierson et al. v. Crooks et al., 115 N. Y., 539. The case involved the rights of the parties to an ex-ecutory contract for the sale of chattels not identified and the effect of acceptance by the purchasers. The court said: 1‘ The quality is a part of the description of the thing agreed to be sold, and the vendor is bound to furnish articles corresponding'with the description. If he tenders articles of an inferior quality, the purchaser is not bound to accept them. But if he does accept them, he is, in the absence of fraud,, deemed to have assented that they correspond with the description, and is concluded from subsequently questioning it. This imposes upon the vendee the-duty of inspection before acceptance, if he desires to-save his rights in case the goods are of inferior-quality. There is in such case no warranty of quality which survives acceptance, and the vendee cannot reject the goods after acceptance or recover damages; for inferior quality. He can do nothing inconsistent with the right of rejection, or do what is only consistent with acceptance and ownership, without precluding himself.” Of the numerous cases in which the same view has been taken, Chanter v. Hopkins, 4 M. & W., 399, attracts attention because of Lord Abinger’s discriminating criticism of the unfortunate use of the word “warranty” in cases of this character. His criticism is commended by Mr. Benjamin in his work on Sales, section 600. While it is true that some of the decided cases cannot be reconciled, with the view of the subject here taken, discrimination will show that they do not constitute the “weight-of authority” even if that be taken to refer to mere numbers. Such discrimination will attend to what-is decided rather than to what is said; it will recognize thát mere reception may not be acceptance; that-the purchaser is not precluded from subsequently asserting that the article does not conform to the description by the fact that in the due course of trade he has disposed of it without opportunity to inspect, and that neither opportunity to inspect, nor actual inspection, will preclude him from subsequently complaining of defects which are of such a nature. that they would not he disclosed by any practicable-inspection.

Judgment of the circuit court reversed, and that, of the common pleas affirmed.

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

Summers, J., not participating.


source: Caselaw Access Project

author: Davis, J.

license: Public Domain

text:
    In re Kline.

      Criminal statute repealed before judgment in a prosecution— Forecloses further proceedings, when — Judgment not validated by subsequent repeal of statute — Repeal of section 1388-11, Revised Statutes — Habitual criminal act.

    1. Where a statute defining a crime and prescribing the punishment therefor is repealed at any time before final judgment in a prosecution thereunder, such repeal forecloses all further proceedings in such prosecution unless a contrary intent appears in the repealing statute; hut when such repeal occurs after final judgment it does not in any respect vacate- or modify such judgment, or render it invalid.
    2. A conviction and sentence under, section 7388-11, Revised Statutes, commonly known as the “ habitual criminal act,” does not confer upon the prisoner a right to he paroled at the discretion of the hoard of managers which remains to-him after the repeal of said act.
    (No. 8725
    Decided March 8, 1904.)
    Application por Habeas Corpus.

      Mr. M. B. Earnhart and Mr. Thomas H. Hennessey, for relator,
    cited and commented upon the following authorities:
    82 O. L., 236; 95 O. L., 410; Rairden v. Holden, 15 Ohio St., 207; State ex rel. v. Peters, 43 Ohio St., 629; People v. Bowen, 43 Cal., 443; Ex parte Scott, 19 Ohio St., 581; Cooley’s Const. Lim., secs. 115, 126n, 376; Calkins v. State, 14 Ohio St., 231; State v. Brewer, 22 La. An., 273; In re Kline, 3 Circ. Dec., 422; 6 C. C. R., 215; Blackburn v. State, 50 Ohio St., 436; Wood Machine Co. v. Gaertner, 55 Mich., 455; Chicago & N. W. Ry. Co. v. Langlade, 56 Wis., 614; art. 3, sec. 11, Const. of Ohio; Baker v. Cincinnati, 11 Ohio St., 534; State v. Dunning, 9 Ind., 20; Adjudged Words and Phrases, 446; secs. 409e, 1028, 6797, 7388-9, 7388-10, 7388-11, Rev. Stat.

      Mr. J. M. Sheets; Mr. Wade H. Ellis and Mr. Smith W. Bennett, for respondent,
    cited and commented upon the following authorities:
    95 O. L., 410; 82 O. L., 236; Blackburn v. State, 50 Ohio St., 428; In re Kline, 3 Circ. Dec., 422; 6 C. C. R., 215; 1 Black on Judgments, sec. 298; Aaron v. State, 40 Ala., 309; Calkins v. State, 14 Ohio St., 231; Bishop on Statutory Crimes, sec. 177; State v. Addington, 2 Bail., 516; Foster v. Medfield, 3 Metc., 1;-People v. Hobson, 48 Mich., 27; State ex rel. v. Peters, 43 Ohio St., 629; secs. 79, 7388-11, Rev. Stat.
   Davis, J.

The relator is imprisoned in the penitentiary of this state under a sentence imposed on the first day of July, 1889, by the court of common pleas of Montgomery county. He was tried, convicted and sentenced under an indictment for burglary and larceny, and for being an habitual criminal. The return and answer of the respondent shows that the relator was found guilty as charged of burglary and larceny, and that he was adjudged to be imprisoned and confined in the penitentiary of this state and kept at hard labor for three years; and that having also been found guilty of being an habitual criminal, it was “adjudged by the court that on the expiration of the term for which he has heretofore been sentenced, he shall not be discharged from imprisonment in the penitentiary, but-shall be detained there during his natural life as provided in section two of an act passed May 4, 1885, and found in Vol. 82 O. L., 237.” The act here referred to was known as section 7388-11, Eevised Statutes, and it was repealed May 6, 1902, 95 O. L., 410. The relator demurs to the answer and insists that, the “habitual criminal act” having been repealed, there is no longer any warrant for detaining him under his sentence as an habitual criminal, his sentence for burglary and larceny having expired.

The relator was legally tried, convicted, sentenced and committed, under a valid statute. Blackburn v. State, 50 Ohio St., 428. Not only is the case res ad judicata and beyond the'reach of the courts, but it is in process of- execution as a final judgment. If the courts could resume jurisdiction and interfere with the execution of sentence, after regular procedure, judgment and commitment under sentence, there could be no final judgment and no end to a legal controversy. The legislature cannot intervene and vacate the judgment of the courts either directly, or indirectly by repeal of a statute under which the judgment was rendered, because that would be an exercise of judicial and not of legislative power. 1 Black on Judgments, section 298. “Legislative action cannot be made to retroact upon past controversies, and to reverse decisions which the courts, in the exercise'of their undoubted authority, have made; for this would not only be the exercise of judicial power, but it would be its exercise in the most objectionable and offensive form, since the legislature would in effect sit as a court of review to which parties might appeal when dissatisfied with the rulings of the courts.” Cooley on Constitutional Limitations (7 ed.), 136. The only remedy left to the adjudged criminal, if the-case calls for any remedy, is a resort to the pardoning power which is vested in the executive. The' repeal of a statute which authorizes a prosecution, and conviction, if before final judgment, ends all proceedings under it unless a contrary intent appears in the repealing statute; but a repeal after-final judgment will neither vacate the judgment nor arrest the execution of the sentence. This view of' the law is fully sustained by the authorities cited by the counsel for the respondent, and after diligent, search we have not been able to find any to the contrary.

It is further argued in behalf of the relator that, by virtue of the statute which is now repealed,, he acquired, along with the sentence, a substantial and irrepealable right, the right to a parole, at the discretion of the board of managers which still adheres to the prisoner, notwithstanding that the statute has been repealed. The weakness of this argument is exposed when we consider the nature and. purpose of this statutory provision.

In State v. Peters, 43 Ohio St., 629, this court, held that this statute (section 7388-11, Revised Statutes) was constitutional and that it did not interfere with the executive or judicial departments of' the state government, and the court so held for the-reason that, the statute did not undertake to confer upon a prisoner the right to a pardon, absolute or conditional, nor to commute the sentence, nor to' modify the sentence by shortening the term or by discharging the prisoner. The court construed, this statute as being merely a “disciplinary regulation,” which was clearly within the power and discretion of the legislature to make or not to make. As a disciplinary regulation it would no more confer a vested right upon the prisoner than would any other rule or regulation which may be promulgated from time to time for the regulation of prisons and prisoners. It is not an essential part of the prisoner’s sentence, and in its very nature and object it is subject to modification or repeal. And for the reason that it is not a part of the sentence, but extraneous to it, because it is only a tentative rule for prison government, a repeal of such legislation neither takes away, any right of the prisoner nor in any manner affects his sentence theretofore made and put into execution. The prisoner still has the right to appeal to executive clemency for a pardon, .and until a pardon shall be granted a sentence lawfully made and carried into effect under a valid statute must be enforced, although the statute has been repealed.

Demurrer overruled and tvrit refused.

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

Summers, J., not participating.


author: Spear, C. J.

text:
    Goyert & Vogel v. Eicher, Admr., et al.

      Agreed statement of facts — Although in writing, signed by counsel, and filed — Not part of the record, when — Bill of exceptions — Journal entry.

    An agreed statement of facts, although, in writing signed by counsel of all parties and filed, does not become a part of the record unless brought upon the record by a bill of exceptions, or the facts as agreed upon are stated in the journal entry as the court’s finding of facts.
    (No. 8083
    Decided March 8, 1904.)
    Error to the Circuit Court of Hamilton county.
    The case is sufficiently stated in the opinion.

      Messrs. Gloss S Luebbert, for plaintiff in error.

      Mr. Jacob Krummel and Mr. John J. Gasser, for defendant in error.
   Spear, C. J.

The controversy which forms the ground for contention here originated in the probate court of Hamilton by the filing of exceptions by Goyert & Vogel, creditors of the estate of ' Bridget Glenn, deceased, to the inventory of the personal property of said estate filed in that court by Frank Eicher, administrator. A preliminary point in the case turns upon the proper solution of the question whether or not a certain agreed statement of facts, signed by counsel and filed in that court, should be treated as a part of the record. If this be held in the affirmative, then, as to that question, the judgment of the circuit court reversing the judgment of the common pleas and. of the probate court should, as to that branch of the case, be affirmed; if in the negative, then the circuit court’s judgment should be reversed, and the judgments of the common pleas and probate court affirmed.

The journal entry in the probate court with respect to the agreed statement was this and this only: “This cause came on to be heard on the exceptions of Goyert & Vogel, creditors of, the estate of Bridget Glenn, deceased, to the inventory of the personal property of said estate heretofore filed herein by Frank Eieher, administrator, and on submission of the agreed statement of facts, with the exhibits thereto attached, and the court doth find,” etc., etc.

Three cases are cited by the circuit court in this opinion, which, it is insisted by counsel for defendant in error, establish the proposition that the agreed statement is to be regarded as a part of the record under review, and, the facts being thus established, the rule of law applied by the circuit court is correct. It is proper to here briefly consider these cases. In Ish v. Crane, 13 Ohio St., 574, it is said by Sutliff, J., in the opinion, that: “It is insisted by counsél of defendants that, by virtue of this paper, dated August 27, 1860, now in this court, placed among the papers, the agreed statement of facts upon which the case was submitted in the district court, and reserved to this court, is annulled; and that the case is to be regarded by this court' as if the agreed statement of facts were withdrawn from the files, and that the case is to be decided barely upon the- pleadings. The counsel of plaintiff, on the other hand, has argued the case, and seems to rely fully upon the agreed statement of facts. How then is this agreed statement of facts to be regarded; as revoked, or still in operation upon the parties ? It has long been the practice in this state, as well as in the courts of other states, for counsel to mutually agree upon a state of facts, and to reduce the agreement to writing, and file it in the case, instead of being to the trouble and expense of taking proof by depositions, or otherwise, to show the facts. And when such agreement is reduced to writing and signed by the parties, or their counsel, and filed in the case, I think the general understanding, both of the bar and court, has been that the same was to be regarded, until set aside by the court, as a special verdict of a jury, expressing the result of the proof made by both parties, and so belonging to both parties, that neither party could withdraw the same.” This is the opinion of a learned judge ■and is entitled to great weight; but it is after all a .general statement and is to be restrained to the facts of the case. And it is to be specially noted “that the question on which this branch of the case turned, was whether or not a paper signed by counsel for defendant and served by copy on counsel for plaintiff, found with the papers filed in and belonging to the case, though neither filed in the case nor proven, which purports to be a revocation of the agreed statement, could be treated as annulling that .statement. The court held that it could not, the syllabus being: “Where a case has been submitted upon an agreed statement of facts, reduced to writing and signed by the counsel of the respective parties, such agreement cannot be withdrawn or the agreement retracted by either party, except by leave of court on cause shown.” Thus it will be seen that the question which we have was not, so far as appears, matter of contention in the case cited. Nor is it distinctly shown by the opinion whether the statement, originally filed in the common pleas, had been incorporated into the record or not. It does appear, however, that the cause, being pending in the district court on error to the common pleas, was reserved for hearing in this conrt, and that it was heard in the district conrt on the agreed statement of facts. It is, we think, reasonable to assume that objection to the statement was not made in either court, and that the only point with respect thereto made in this court related to the effect of the attempted retraction by a paper dated after the cause reached this court. Another case cited is that of Brown v. Mott, 22 Ohio St., 149. That was a case brought under section 495 of the code (now section 5207, Revised Statutes), providing for the- bringing of an action by the filing of an agreed statement and submission, without process or pleading. The third case cited is McGonnigle v. Arthur, 27 Ohio St., 251. The record in this case shows that all the testimony offered before the trial court was in an agreed statement of facts, in writing carried into the record and found by the trial court to be all the testimony offered by the parties. It seems entirely clear that neither of these cases rule the case at bar.

Some confusion has arisen in practice with respect to the office of an agreed statement of facts, and how such statement is.to be evidenced in order to authorize a review of the judgment. The rule in this state ought by this time not to be the subject of doubt. We understand it to be that in order to enable a party, in a case tried upon testimony, or upon an agreed statement of facts, to avail himself of a review on error, the facts, all of them, should be found by the court and incorporated in the record, or brought into the record by a bill of exceptions. Section 5300, Revised Statutes, provides that when the decision objected to is entered on the record, and the grounds of objection appear in the entry, the exceptions may be taken by the party causing it to be noted at the end of the entry that he excepts. But (section 5301) when the decision is not entered on the record, or the grounds of the objection do not sufficiently appear in the entry * * * the party excepting must reduce his exceptions to writing, etc'. In other words, in the latter case he must present a bill of exceptions.. There is no provision of statute constituting a paper called an agreed statement of facts a part of the record, nor can such paper be regarded as part of' the record for review on error simply because the same is filed in the case. The filing does not bring it into the record any more than the filing of a deposition or of the court’s charge to the jury makes, either a part of the record. It is only for errors, appearing on the record that a judgment may be reversed. In the present case the grounds of ■ objection do not appear in the entry, for there is no incorporation in the entry of any facts on which the decision is based. The decision is not, therefore, entered on the record within the meaning of the-sections cited, nor do the grounds of the objection sufficiently appear in the entry.

It has long been settled law in Ohio (and remained the law until the act of October, 1902), that a paper purporting to be a bill of exceptions cannot be regarded by a reviewing court as part of the record unless it is made so by an entry on the journal showing its allowance and identifying it with reasonable certainty. Hill v. Bassett, 27 Ohio St., 597. Nor will a reviewing court, on error, regard any matter which is not proper matter of record. Goldsmith v. State, 30 Ohio St., 208. Nor can an exception to a charge of a court be considered where the charge and exception appear only as part of the journal entry. Lockhart v. Brown, 31 Ohio St., 431. The reason of these rules applies as well, we think, to an agreed statement of facts as to the other papers referred to.

Since, therefore, the agreed statement, although signed by the counsel and filed in the probate court, was not a part of the record presented to the common pleas, that court had only before it for consideration in the error case the petition in error, the original papers (that is the inventory and exceptions thereto), and the transcript of the docket and journal entries of the probate court, and since the common pleas had power to reverse only for errors apparent on the record, it could do no other than affirm the judgment of the probate court.

Other questions are argued, but it is unnecessary to consider them.

We are of opinion that there is no error in the judgment of the common pleas affirming that of the probate court, and that both judgments should he affirmed. This results in a reversal of the judgment of the circuit court.

Reversed.

Shauck, Price, Crew and Summers, JJ., concur.


author: Summers, J.

text:
    Jones v. The State of Ohio.

      Burning property with intent to prejudice insurer — Section 6882, Revised Statutes — Property of value of fifty dollars — Elements of crime — Sufficient that insurer who burns have interest in property — Criminal law.

    It is not essential to the crime defined by section 6832, Revised Statutes, which makes it a crime to maliciously burn any building, of the value of fifty dollars, the same being his own property, and insured against loss or damage by fire, with the intent to prejudice the insurer, that the building be the sole property of the person who burns it or that the value of his property in it be fifty dollars; it is sufficient that he has an estate in it and that the building be of the value of fifty dollars, and an indictment charging the building as of the value of more than fifty dollars and as the property of the accused is, in respect to those elements of the crime, sufficient.
    (No. 4908
    Decided April 12, 1904.)
    On Motion for leave to file petition in error to the Circuit Court of Stark county.

      Mr. Charles C. Bow and Mr. O. C. Volhmore, for plaintiff in error.

      Mr. Robert H. Day, for defendant in error.
   Summers, J.

The plaintiff in error was indicted by tbe grand jury of Stark county for burning a building, Ms own property, with intent to prejudice tbe insurer. Tbe crime was described in tbe indictment in tbe following language: “Did unlawfully, wilfully, and maliciously burn a certain building, to-wit: A building used as a storehouse by Robert Legg, of tbe value of more than fifty dollars, tbe property of tbe said Edwin Jones and Mary Jones, with intent in so doing to prejudice, damage, and defraud Tbe Cernían Pire Insurance Co., of tbe city of Pittsburg, Pennsylvania, tbe insurer of said property, which said building used as a storehouse by said Eobert Legg, tbe property of said Edwin Jones and Mary Jones, was then and there insured against loss or damage by fire unto tbe said Edwin Jones and Mary Jones in tbe sum of $1,000 by tbe said Tbe German Fire Insurance Co. of tbe city of Pittsburg, Pennsylvania, by a contract and policy of insurance duly executed by and between tbe said Tbe German Fire Insurance Co. of tbe city of Pitts-burg, Pennsylvania, and tbe said Edwin Jones and Mary Jones therefor.” Tbe statute, section 6832, Eevised Statutes, is as follows: “Whoever maliciously burns or sets fire to any dwelling bouse, kitchen, smokehouse, shop, office, barn, stable, storehouse, warehouse, stillhouse, mill, pottery, or any other building, of tbe value of fifty dollars, or any goods, wares, merchandise, or other chattels, of tbe value of fifty dollars, tbe same being bis own property, and insured against loss or damage by fire, with intent to prejudice tbe insurer, shall be imprisoned in tbe penitentiary not more than twenty years.” A motion to quash and a general demurrer were filed and overruled. The- defendant entered a plea of guilty and then filed a motion in arrest of judgment, which was overruled and be was sentenced to three years in tbe penitentiary. Tbe circuit court affirmed tbe judgment of tbe court of common pleas and a motion is made for leave to file a petition in error in this court.

By tbe motions and tbe demurrer it was sought to question tbe sufficiency of tbe indictment on two grounds: First, that it appears upon tbe face of the indictment that tbe plaintiff is not tbe owner of tbe property; and, Second, that it does not appear that tbe plaintiff’s interest in tbe property is of tbe value of fifty dollars.

At common law arson is the malicious burning of another’s house; “it is an offense against the security of the habitation rather than the property. So that by another’s house is meant another’s to occupy, consequently, at common law, one cannot commit arson of his own house, even when it is insured.” 2 Bishop’s New Criminal Law, secs. 8 and 12; Snyder v. People, 26 Mich., 106.

Our arson statute reads as follows, section. 6831, Revised Statutes: “Whoever maliciously burns, or attempts to burn, any dwelling house, kitchen, smokehouse, shop, office, barn, stable, storehouse, warehouse, railroad coach or car, malthouse, stillhouse, mill, pottery or any other building, the property of another person, or any church, meeting house, courthouse, workhouse, schoolhouse, jail or the Ohio penitentiary, or any shop, storehouse or building within the inclosed walls thereof, or any other public building, or any ship or other watercraft, or any toll bridge or any part thereof, erected across any river, wholly or partly within this state, or any other bridge erected across any of the waters within this state, or sets fire to or attempts to set fire to anything in or near to any such building, coach or .car, water craft or bridge, with intent to burn the same, shall, if the value of any such building, coach or car, water craft or bridge, burned, attempted or intended to be burned, is fifty dollars or more, be imprisoned in the penitentiary not more than twenty years, or if the value is less than that sum, be fined not more than $200, or imprisoned not more than thirty days, or both.” This section, while extending the offense of arson at common law, also comprised it, and, as we shall see, was interpreted in the light of the principles of the common law and did not make it an offense to burn one’s own building, hence the reason for section 6832, Revised Statutes, making it an offense for one to burn a building bis own property, of the value of fifty dollars, with intent to prejudice the insurer.

Tbe crime under the latter section is a different crime than that under the former. The former is a crime against property while the essence of the latter is the burning of property with the intent specified.

Under the former a person is guilty if he maliciously burn the property of another whether or not it was also with the intent to prejudice, and he is not guilty thereunder for burning his own property even if it be with the intent to defraud the insurer, while under the latter he is guilty if he burn his own property with the intent to prejudice the insurer, but not for the burning of the property of another.

The reason for inserting the words “the same be-, ing his own property” in the latter section is not apparent unless it be that it was assumed that if it ;was not his own property he would be guilty under the first section. Whether or not this is so we are not called upon to determine. In Commonwealth v. Makely, 131 Mass., 421, it is ruled: “An indictment on the Gen. Sts., c. 161, sec. 1, for burning the dwelling house of another, is not sustained by proof that the defendant burned the house by the owner’s procurement, to enable him to obtain money from an insurer. ’ ’

The punishment for the two crimes is substantially the . same, and it might have been better, as is done in some states, to omit the words, “the same being his own property, ’ ’ since the gravamen of the crime is the burning of a building of the value of fifty dollars with the intent to defraud.

But whatever the reason it is evident that the latter being the later enactment, is to be interpreted in the light of the former. In Allen v. State, 10 Ohio St., 287, William C. Herron was indicted for arson in burning a warehouse described as “of the value of $500, there situate, the property of the Four Mile Valley Railroad Co., a body corporate, duly incorporated by the laws of the state of Ohio; said warehouse then and there being in the possession and occupancy of one Simeon Allen, under a temporary lease of said warehouse, from said Four Mile Valley Railroad Co., to said Simeon Allen.” Judge Thurman, long a distinguished judge of this court, was counsel for the accused, and contended that the indictment did not charge Allen with arson, for the reason that Allen being the lessee in possession of the building, it was his property and not the property of another person within the meaning of- the statute, and he said (p. 295): “Again, if the tenant in possession is not the owner of the property, within the meaning of the act, who is? There may be various estates in the same property, all existing at the same time, to-wit, estates at will, for years, for life, in fee, estates in possession, remainder, reversion. Very frequently out of an estate for years, ex gra.,. for ninety-nine years, divers estates for smaller terms are created by subletting. Now, if the tenant in possession is not to be deemed the owner, which of the various tenants for years, for life, in fee, remaindermen or reversioners, is to be deeihed the owner? The indictment must aver that the building-was the property of some other person than the incendiary,. and must name such other person; which of the various persons, interested as above, shall it name?” The court ruled that the warehouse was. the property of another person within the meaning of the statute. In the opinion (302), Sutliff, J., says:

“Our statute against the burning of buildings is not confined to the common law offense of arson, or felonious burning. It seems to comprehend that kind of burning, which, at common law, constituted merely a high misdemeanor, as well as those which were arson, or felonies at common law. The description of the offenses as well as the grade of-punishment, extending, as it does, from one to twenty years, seems to indicate this to have been the object of the statute; and that our statute was meant to embrace the case of a tenant wilfully and maliciously burning buildings the property of another, of which he was the tenant, or in possession. * * *
“But we think, upon sound reason and undoubted principles of law, derived from analogies, as well as from the language of the statute, it is sufficient to aver the property to be that of the general owner, as well as to aver it to be the property of the special owner or tenant. And there being no legal or reasonable objection to so comprehensive a rule, we think that consideration of public convenience and a furtherance of the ends of justice, recommend its adoption; and especially so, inasmuch as no contrary rule has ever, to our knowledge, been adopted in the courts of this state.”

In Indiana (Garrett v. The State, 109 Ind., 527), under a statute that (529): “Whoever wilfully and maliciously burns or attempts to burn any dwelling house or other building, finished or unfinished, occupied or unoccupied, whether the building be used or intended for a dwelling house or for any other purpose; * * * the property so burned being of the value of twenty dollars or upwards, and being the property of another, * * * is guilty of arson, and, upon conviction thereof, shall he imprisoned in the state prison not more than twenty-one years nor less than one year, and fined not exceeding double the value of the property destroyed,” it was held that, “if a man unlawfully, feloniously, wilfully and maliciously sets fire to and burns the' dwelling house of his wife, wherein she permits him to live with her as her husband, he is guilty of arson, though he may have furnished the money to build the house.” And Howk, J., says (531): “It will be readily seen from an examination of section 1927, supra, that arson as defined in our statute is a different offense, in many respects, from arson at the common law. Arson as defined in our statute is an offense against the property, as well as the possession; and the question of occupancy or non-occupancy, habitation or non-habitation, of or in the property, as we have seen, becomes and is an immaterial question in view of the statutory definition of the offense.”

“At common law a mere tenant at sufferance could not commit arson of the house whereof he was such tenant, nor a tenant from year to year, or from month to month, or for any time however short, or as mortgagor in possession though the mortgage divested him of the legal title.” 2 Bishop’s New Criminal Law, sec. 13. But it seems there must have been an estate in the house, for a servant dwelling in .a building in the possession of the master was guilty of the offense if he maliciously burned it. And so any one maliciously burning a house in which another had an estate was guilty of burning the house ■of another person.

In B. & O. Railroad Co. v. Walker, 45 Ohio St., 577, it was necessary to determine the meaning of the words, “companies owning the tracks,” and Williams, J. (585), says: “An owner is not necessarily one owning the fee simple, or one having in “the property the highest estate it will admit of. One having a lesser estate may he an owner, and indeed, there may be different estates in the same property vested in different persons and each be an owner thereof. In the construction of statutes, to ascertain the proper meaning of such terms, regard must be had to their various provisions, and such effect given them as these provisions clearly indicate they were intended to have, and as will render the statute operative.” .And then he cites several instances, to which may be added The Sun Fire Office of London v. Clark, 53 Ohio St., 414, 424.

In Jackson v. Parker, 9 Cow., 73, 81, Savage, C. J., says: ‘ * The term estate is very comprehensive, and signifies the quantity of interest which a person has, from absolute ownership down to naked possession. It is the possession of lands which renders them valuable, and the quantity of interest is determined by the duration and extent of the right of possession. Real estate, therefore, includes every possible interest in lands, except a mere chattel interest.”

And in The State v. Lyon, 12 Conn., 487, under a statute which enacts that “every person who shall wilfully burn, being the property of another, any ship, etc., shall be guilty of arson,” Huntington, J., says (489): “To constitute an offense under this statute, the building must be the property of another. It is not indeed required, that the absolute title or entire interest should be in the person named in the information as the party injured; for such a possession, as gives a special property, while it exists, is sufficient. It is essential to the crime of arson at common law, that the burning should be of the house or outhouse of another; and in indictments or in-formations for that offense, as well as for the one of which this prisoner was convicted, it is necessary to aver ownership in another, and to prove the averment as laid. It is important to enable the defendant to prepare his defense, and to plead autrefois acquit, or autrefois convict, to another prosecution for the same offense.”-

If the contention of counsel for plaintiff in error is sound, then the assured could not have been held for arson, for the building was not exclusively the property of another person, but partly his own. Nor is the soundness of' the conclusion reached less certain by the fact, if it be conceded, that the accused might have been prosecuted under either or both sections. Bishop’s New Criminal Law, sec. 778.

The contention that section 7224, Revised Statutes, settles the question here presented is not sound. That section provides: “When an offense is committed upon, or in relation to, any property belonging to partners or joint owners, the indictment for such offense shall be deemed sufficient if it allege the ownership of such property to be in such partnership by its firm name, or in any one or more of such partners or owners, without naming all of them; and in all indictments under section sixty-eight hundred and fifty-nine it shall not be necessary to allege that the will, codicil, or other instrument is the property of any person, or is of any value.”

But this is a rule of pleading and not of substantive law. When the purpose of averring ownership is merely to identify the crime and to enable the accused in any subsequent prosecution to plead former acquittal or conviction, that section applies, hut the question here is not whose is the property, hut is it averred that the building is the property of the accused, for if not no crime is charged.

The objection that it is not charged that his property in the building is of the value of fifty dollars is not well taken. Within the letter of the statute the crime consists in burning a building of the value of fifty dollars with intent to prejudice the insurer.

It is immaterial how little is the value of his property in the building. The insurance money he could obtain would not be more than the value of his property, and the smaller his interest, the less should be the temptation and the greater the. offense.

In Elliott v. The State, 36 Ohio St., 318, 323, Johnson, J., says: “Is the indictment defective in not stating that the barn was insured for at least fifty dollars'? We think not. By the statute above cited (74 O. L., 248, sec. 2), section 6832, Revised Statutes, the value of the property insured, and not the amount of insurance thereon must be fifty dollars. The amount that the insurer would be defrauded is not a material element of the crime, but the value of the property burned should be of the value of fifty dollars. ’ ’

Motion overruled.

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


text:
    Electric Street Railroad Co. v. The Hamlet of North Bend. and Same v. Same.

      Hamlets were municipal corporations until code of 1902 — Thereafter they became villages — If with population of less than 5,000.

    Hamlets in existence at the time the municipal code of 1902 went into effect were municipal corporations, and thereafter, if' they had a population of less than 5,000 at the last federal census, they are villages; and a street railway company is without authority to construct its road on or above their-streets or roads without their consent.
    (Nos. 8682 and 8683
    Decided April 12, 1904.)
    Error to the Circuit Court of Hamilton county.

      Messrs. Shepherd & Shaffer and Messrs. Peck,. Shaffer & Peck, for plaintiff in error.

      Mr. Stanley Struble and Messrs. Dempsey <& Fridman, for defendant in error.
   Summers, J.

These cases, The Cincinnati, Lawrenceburg & Aurora Electric Street Railroad Co. v. The Hamlet of North Bend and Patrick Farrell, and. The Cincinnati, Lawrenceburg & Aurora Electric Street Railroad Co. v. The Hamlet of North Bend, present the same question. One was a suit to enjoin, the defendant below, a street railroad corporation engaged in constructing a road between Cincinnati, Ohio, and Aurora, Indiana, and through the hamlet, of North Bend, from constructing its road over, along and upon certain streets therein; and the other to enjoin the company from constructing an elevated road, from its power house to the Ohio river, over and above one of the streets of said hamlet without, its consent.

In each case a temporary injunction was allowed and subsequently dissolved, and appeals were taken: to the circuit court from the order of dissolution. On appeal the circuit court stated the following conclusions of fact, as summarized by counsel for defendant in error.

“1. The plaintiff, the hamlet of North Bend, some-years prior to October 22, 1902, was organized as a hamlet under the statutes then in force relating-to the subject.

“2. Its officers were three trustees, each of whom, had been elected and qualified for a term of three years; a clerk and treasurer, elected and qualified. for a term of two years; and a marshal and supervisor, elected and qualified for a term of one year.

“3. The population of the hamlet, according to the-federal census of 1900, was 532.

“4. The secretary of state, in his proclamation made November 17, 1902, under section 2 of the new municipal code, included North Bend as a municipal corporation having a population of less than 5,000.

“5. North Bend has no other officers except such, hamlet trustees, clerk, treasurer, marshal and supervisor.

“6. North Bend has taken no steps to organize as-a village (not refused to organize as a village, as-counsel for plaintiff in error have it in their brief).

‘ ‘ 7. The finding in each case as to the grievances,, which need not be stated here at length.

‘ ‘ 8. The said electric street railroad company has-pending before the county commissioners of Hamilton county an application for authority to construct its railroad -within the limits of North Bend.

“9. The said electric street railroad company does not intend to, nor claims the right to, make such construction without the authority from said county commissioners.

“10. This application has not been acted upon by the county commissioners, who are awaiting a decision by the courts on the question of their jurisdiction over the streets in question, and will not be acted upon by them until this question is decided.

“11. The said electric street railroad company has not procured, in the one case, nor procured or attempted to procure, in the other case, from the hamlet of North Bend authority either to'construct its railroad across the streets of said hamlet, or to construct said bridge over the one particular street before mentioned.

“12. The reason for this failure to procure, or to attempt to procure, such authority from said hamlet is that said electric street railroad company is advised and claims that there is no such municipal corporation under the laws of Ohio as the hamlet of North Bend.”

That court should have found also that the defendant, in the event permission was granted to it by the county commissioners, intended to proceed with the construction of its road above and across the streets of the hamlet as averred; but it is perhaps immaterial as the case proceeded in that court, and has been argued in this, on that assumption.

The circuit court concluded as matter of law that the plaintiff was, at the time of the commencement of the suits a village and as such had capacity to bring them, and that its title in the actions should be amended by substituting the word “village” for “hamlet,” and that it was entitled to the relief prayed for and it ordered and decreed that the order setting aside and dissolving the restraining order and temporary injunction should be superseded and set aside and that the restraining order and temporary injunction should be continued, and remanded the suits for further proceedings. These proceedings in error are prosecuted to reverse the order and decree of the circuit court.

The contention of counsel for plaintiff in error, “briefly stated, is, that section 231 of the new municipal code (96 O. L., 96), repealed sections 1550 and 1552, Eevised Statutes, creating hamlets and conferring powers upon them, and that on and after the first Monday of May, 1903, municipalities ceased to exist as hamlets and that they became either villages by electing village officers ■ or unincorporated villages by failure to elect, and that inasmuch as the municipality of North Bend failed to elect, the county commissioners, under section 29 of the new municipal code, have authority to grant permission to the defendant to construct its road above and on the streets of said municipality.

In support of this principal contention it is argued that hamlets had no existence under the constitution, that instrument recognizing only cities and villages and that to hold that corporations organized as hamlets became villages under the new code, but that such of them as failed to elect village officers may continue through their hamlet officers to exercise the powers of hamlets would make the code, to that extent, unconstitutional for want of uniform operation.

By the act of May 3, 1852, “to provide for the organization of cities and incorporated villages” (50 O. L., 223), it is provided: “Section 1. That' all corporations which existed when the present constitution took effect, for the purposes of municipal government, either general or special, and described or denominated in any law then in force, as cities, towns, villages, or special road districts, shall be, and they are hereby organized into cities, and incorporated villages, with the territorial limits to them respectively prescribed, or belonging, in manner following: All such municipal corporations, as in any such law are denominated cities, shall be deemed cities; and those denominated towns, villages, or special road districts, shall be deemed incorporated villages; to be respectively governed as cities, or incorporated villages, and in case of the latter, for general or special purposes, as provided in this act. ’ ’

“Section 19. All municipal corporations organized, or to be organized under this act, except incorporated villages for special purposes, shall have the general powers and privileges, and be subject to the rules and restrictions granted and prescribed in the twenty succeeding sections of this act.”

“Section 40. In respect to the exercise of certain corporate powers, and to the number, character, powers and duties of certain officers, municipal corporations are, and shall be divided into the classes following: Cities of the first, and cities of the second class; incorporated villages, and incorporated villages for special purposes.”

Section 44 provided that the corporate authority of incorporated villages organized, or to be organized under this act, for the special purposes of being a road district, shall be vested in three trustees; that they should appoint a clerk and might appoint a supervisor and such other officers or agents as might be necessary, and by proper by-laws and ordinances prescribe the duties and compensation of the officers so appointed; and by section 45 the trustees were given exclusive supervision and control of all public roads, streets and alleys, sewers and drains within the limits of such special road districts, and they had no other powers except such as were necessary to carry into execution those above enumerated, and they were invested with no general municipal power.

By chapter five of the municipal code of 1869 (66 O. L., 145), municipal powers in addition to those above enumerated were conferred upon incorporated villages for special purposes. By the act of May-14, 1878 (75 O. L., 161), to amend, revise, and consolidate the statutes relating to municipal corporations, for the purpose of incorporating them in the revision of the statutes of 1880, municipal corporations were divided into cities, villages, and hamlets. Cities were divided into two classes, and into seven grades, villages into two grades, and corporations organized as incorporated villages for special purposes, were named hamlets. But what’s in a name? They still had the same offices and the same powers, and no other, as when called incorporated villages for special purposes, so that if it be conceded that the constitution admits of cities and villages only as municipal corporations, it would follow that they were villages still, and the only question presented would be the one of classification. That question it is not necessary to determine. By the first act passed in compliance with the mandate of the constitution to provide for the organization of cities and villages by general laws, cities and villages were classified, and for more than fifty years the power to do so was recognized by repeated decisions of this court, and if it should be affirmed that the power exists, but became impossible of exercise because of its abuses, or should be.conceded that it does not and did not exist, still, on the plainest principles of public policy, the validity of classification such as this- ought to be assumed until transition under the new code is effected.

Assuming, then, that the hamlet of North Bend had a constitutional existence, the question arises, How is it affected by the repealing sections of the new code, and the fact that it failed to elect village officers as provided by the new code! Was its life taken! Or was it permitted to live? but in a state of suspended animation; or may its officers perform their duties and thus enable it still to perform its functions as an agency of the state?

Section 231 of the new code provides: “For the purpose of carrying into effect the powers and duties • conferred and imposed upon present councils, boards of legislation, or other legislative bodies, by the provisions of this act, and for the purpose of conducting the first election to be held in every municipality hereunder, and of preparing for the change in the organization of municipalities herein provided for, this act shall take effect from and after the fifteenth day of November, 1902; and for all other purposes this act, and every portion of the same, including the repeal of existing laws, shall take effect on the first Monday in May,' 1903, and the following sections of the Revised Statutes of Ohio are hereby repealed.” Then follows in the enumeration of laws repealed section 1550, Revised Statutes, defining hamlets, section 1551, Revised Statutes, providing that a hamlet shall not he organized until its territory embraces fifty electors and that it shall not be advanced to a village until it attains a population of two hundred, and section. 1,752, Revised Statutes, providing that, “municipal corporations, now or hereafter organized, are bodies politic and corporate, under the name of the city of-, the village of-, or the hamlet of-, as the case may be; and as such they may sue and be sued, contract and be contracted with,” etc.

If section 231 was the only one to be considered it might be that the municipality of North Bend would be without authority to sue, but it would not follow that it is an unincorporated village within the meaning of section 29 of the new code, and that thereunder the county commissioners have authority to grant the right to construct a street railway within the limits of North Bend. It was an incorporated municipality and whatever might be necessary for it to dp to exercise the powers of a village, it was not necessary that it be incorporated. It was the hamlet and is the village of North Bend. But section 231 is not the only section. The whole code must be considered. Section '213 provides that all officers in any municipal corporation “shall remain in their respective offices and employments and continue to perform the several duties thereof under existing laws, and receive the compensation therefor until their successors are chosen or appointed and qualified or until removed by the proper authority in accordance with the provisions of this act.”

Section 211 provides: “All by-laws, ordinances and resolutions heretofore lawfully passed or adopted by the council, board of legislation or other legislative body in any municipal corporation, and not inconsistent with this act, shall remain in force until duly altered or repealed.”

Looking to these sections, as well as to section 231, it is manifest that the officers in office and whose successors were not elected or appointed when the new code went into effect remained in those offices, and not only remained, but by the new code itself are expressly enjoined to “continue to perform the several duties thereof under existing laws” until their successors are chosen or appointed and qualified.

Under the code the name of this municipality was changed to the village of North Bend and by section seven it was given power to sue, and the fact that it was mistaken in its name does not affect the suit.

In State v. Village of Perrysburg, 14 Ohio St., 472, 482, Brinkerhoff, C. J., speaking of the effect of the act of May 3, 1852, “to provide for the organization of cities and villages,” (50 O. L.. 223) supra, says: “Does the consequence follow, as claimed by the defendant that all pre-existing municipal corporations were ‘wiped out of existence,’ and all prior acts granting to them special powers or privileges became thereupon inoperative, or were, by force of this general act, repealed? We are unable to arrive at such a conclusion. Neither the corporate existence nor the corporate identity of the municipal corporations of the state were affected by the general act for the organization of cities and villages. Some of them took, under its operation, a different legal designation — as incorporated villages, instead of towns; the particular mode of their organization was somewhat changed, and their powers, privileges, rights and duties, were restricted, enlarged, or modified; but their territorial limits remained the same as before; legal obligations incurred by or to them remained unchanged; and their corporate identity was no more affected by a reorganization, under the general law, than is the personal identity of a feme sole by marriage, in virtue of which her name is changed, and her powers, privileges, rights and duties, are, in law, enlarged, restricted, or modified. The corporate life of the village of Perrysburg was a continuation of the life of the town of Perrysburg. It was a continuation; not an annihilation and a recreation. ’ ’

It was stated in oral argument that the failure of this municipality to elect officers under the new code was not because of any hostility to it, but because of uncertainty as to the intention of the legislature.

Chapter 2, division 2, title 12, sections 1553 to 1571a, Revised Statutes, inclusive, providing for the organization of hamlets, and chapter 1, division 3, title 12, sections 1648 to 1654, Revised Statutes, inclusive; prescribing the officers of hamlets and some of their powers and duties, and conferring broad municipal powers upon hamlets, are not repealed by the code. The reason is not apparent. It may be doubt existed whether hamlets were municipal corporations. Incorporated villages foi-special purposes originally were not, though so classified. See comment of Ranney, J., in Street Railway v. Cumminsville, 14 Ohio St., 523, 541. But, as we have already seen, they were invested with municipal powers by the code of 1869, and by the act of 1878, were named hamlets and were properly classified as municipal corporations and given general municipal powers, and it is evident from the legislation and decisions since the constitution, as well as from the manifest purpose of section 6, of article 13, of the constitution, directing the general assembly to provide for the organization of cities and incorporated villages by general laws, that all municipal corporations are comprised by its terms, and that outside of the system so provided there is not room for a corporation having general municipal powers.

Being a municipal corporation the hamlet of North Bend became the village of North Bend and while its hamlet officers may continue to perform their duties until their successors are elected and qualified, there is no power in the village either of election or appointment to fill these offices. The village cannot go on as a hamlet, but must sooner or’ later elect village officers or be incapable of exercising municipal powers, and want of uniformity in the-operation of the law is not apparent.

The order and decree of the circuit court in each case is,

Affirmed.

Spear, C. J., Davis, Shatjck, Price and Crew, JJ.,, concur.


author: Crew, J.

text:
    Mooney, Guardian, etc. v. Purpus, Executor, etc., et al.

      Residuary' estate bequeathed by testator — To lawful heirs — ■ “Share and share alike’'' — Heirs take per capita and not per stirpes — Construction of wills.

    Where a testator bequeaths his residuary estate to his lawful-heirs, without other or further designation as to who are intended as his beneficiaries; and by his will directs that such residuum “shall be equally divided amongst my lawful heirs, share and share alike.” Held: That all persons who at the. time of the testator’s death answer the description, his “lawful heirs,” are entitled to share in such residuary estate, regardless of the degree of their relationship to the testator; and in the distribution of said estate such heirs take per capita and not per stirpes. ,
    (No. 8343
    Decided April 12, 1904.)
    Error to the Circuit Court of Auglaize county.
    Petition was filed in tfie court of common pleas of Auglaize county by tbe defendant in error, Edward Purpus, as executor of tbe will of Frank Koehl, deceased, praying for a construction of said will and asking tbe advice and direction of said court how— properly, to execute and administer bis trust under tbe provisions of said will. Tbe will contained the ■following provisions;

      “First. My will is tbat all ray just debts and funeral expenses shall be paid out of my estate as. soon after my decease as shall be found convenient..

      “Second. I give, devise and bequeath to my son, Pearl Koehl, tbe corner lot and building, situate on tbe corner of Spring and Main streets with tbe lot extending to Front street whereon tbe stable building, to be bis forever, after my decease, except tbe lot' and brick building whereon at present a drugstore and department store is in with tbe lot belonging' to the same is hereby devised and bequeathed to my daughter, Emma Federspiel, to be hers forever after my decease.

      “Third. I bequeath and devise to my daughter, Emma Federspiel, and my son, Pearl Koehl, all personal property now contained in the corner building, Spring and Main streets, to be theirs forever, share and share alike.

      “Fourth. Whatever there remains after my decease shall be equally divided amongst my lawful heirs, share and share alike. ’ ’
    Upon the hearing of the case in the court of common pleas that court made and entered the following decree: ‘
    “The court further finds that the correct and lawful construction of said will of said Frank Koehl, Sr., deceased, is as follows, to-wit:

      “First. That Philip Pearl Koehl and Emma Federspiel are among the residuary legatees and each share equal, with all the other such legatees in the residuum of said estate, under item four of said last will and testament of said Frank Koehl, Sr., deceased.

      “Second. That the bequests of personal property contained in the building at the corner of Spring and Main streets in St. Marys, Ohio, bequeaths all tangible personal property therein contained, including the money, to Philip Pearl Koehl and Emma Federspiel, but does not bequeath to them the notes, mortgages, certificates of stock, accounts, credits and other evidences of indebtedness or the property they represent, but that these go into the residuum of testator’s estate, and should be disposed of as directed in the fourth item of the will.

      “Third. That Emil Henry Koehl and Louisa Maria Koehl under item four of said last will and testament, take per capita and not per stirpes.

      “Fourth. The court further finds that item one and two of said last will and testament are plain and unambiguous, and need no construction or interpretation.
    “It is therefore ordered, adjudged and decreed that Edward Purpus, as executor of said last will and testament of Prank Koehl, Sr., deceased, be governed in the administration of said estate and in making distribution thereof, by the terms of the pro-. visions of said last will and testament, and the construction placed thereon as hereinbefore set out.”
    An appeal was taken from this decree to the circuit court of Auglaize county, where a like construction was, by that court, given the provisions of said will, except as to item four thereof. As to item four the circuit court found and held, that under and by the provisions thereof Emil Henry Koehl and Louisa Maria Koehl, who were grandchildren of said testator, took per stirpes and not per capita, and ordered and decreed that distribution be made accordingly. To obtain a reversal of this order and decree of the circuit court, plaintiff in error, as guardian of said Emil Henry Koehl and Louisa Maria Koehl, prosecutes this proceeding in error. Other facts are stated in the opinion.

      Mr. D. F. Mooney and Mr. E. B. Kinkead, for plaintiff in error.
    The rule of construction to be applied to clauses in wills like the one under consideration may be summarized thus:
    Where a testator bequeaths or devises property to his heirs of different classes, as children and grandchildren, without using language showing a manifest intent that the different classes are to receive an equal division, then U -will bo presumed that the testator intended ill,-it fclwy wi'i take in the manner or by the mode by which they would take under the-law of descent and distribution, resort to such statutes being necessary in such case.
    ' But wherever a testator in making provision for his heirs of different classes, as in providing for the-disposition of the residuum of his estate, after making specific devises, says that such residuum shall pass to all his heirs, or lawful heirs, and uses language reasonably indicating that he intended an equal division, even without naming all his heirs either in the will itself or in the dispositive clause, it will be presumed that he had in mind all his heirs, both children and grandchildren, and that he intended to make equal division for them all.
    The will must be the sole guide in such cases, it being improper to resort to the statutes of descent or-to extrinsic evidence. The words “shall be equally divided amongst my lawful heirs, share and share alike,” is language clearly indicating such intention.
    The rules which we have just stated in our own language are fairly deducible from all the authorities, as we would apply them to this case, and is the law in Ohio, Missouri, North Carolina, Oregon, New York and Virginia, but not in Pennsylvania and Illinois. The law in the two latter states is opposed to our contention, in Pennsylvania flatly so because the language construed is quite similar to that in the will in this case, although it lacks the significant words which are in the clause of the will in our case, “share and share alike.”
    Upon reflection it is perhaps not true that the doctrine of the Pennsylvania and Illinois cases is. different from what we have above stated, and as shown by the cases, but the courts in these two states have differently applied the rule of construction to language of similar import. Bisson v. Railroad Co., 143 N. Y., 125; Tuttle v. Puitt, 68 N. C., 543; Walker v. Webster, 95 Va., 377; Johnston v. Knight, 117 N. C., 122; Marsh v. Dellinger, 127 N. C., 360; Maguire v. Moore, 108 Mo., 267; Hoch’s Estate, 154 Pa. St., 417; Kirkpatrick v. Kirkpatrick, 197 Ill., 144; Huston v. Crook, 38 Ohio St., 328; McKelvey v. McKelvey, 43 Ohio St., 213.

      Messrs. Koenig & Koenig, for defendants in error.
    All parts of the will must be construed together, and effect, if possible given to every word contained in it. Townsend’s Executors v. Townsend et al., 25 Ohio St., 477.
    Words in a will are to be understood according to their ordinary, natural and legal signification, unless it is manifest from the context or from other provisions in the will, that the testator has used them in a different sense, and unless the sense in which they were used is clearly apparent. Carter v. Reddish et al., 32 Ohio St., 1.
    To ascertain who are included in the class designated as “heirs at law” reference must be had to the statutes of this state regulating descent and distribution of estates. The rule is established by the decision of the -court in Richards v. Miller, 62 Ill., 417, that if the statute must be invoked to ascertain the persons who take a devise or bequest by general description, its provision as to the quantity each shall take must also be observed. Kelley v. Vigas, 112 Ill., 242; Baggett v. Slack, 8 Metc., 450; Tillinghast v. Cook, 9 Metc., 143; Clark v. Lynch, 46 Barb., 81; Cummings v. Cummings, 146 Mass., 501; In re

      Hoch’s Estate, 154 Pa. St., 417; 26 Am. Rep., 610; Hall et al. v. Hall et al., 140 Mass., 267; In re Rood’s Estate, 21 Pa. Co. Ct. Rep., 291; Jones v. Lloyd, 33 Ohio St., 573; Taylor v. Fauver, Va. Sup. Ct. of App., 28 S. E. Rep., 317; secs. 4158, 4159, 4162, 4166, Rev. Stat.
   Crew, J.

The only item in the will of Frank Koehl about which there is any controversy in this case is item four. The language of this item is as follows: “Whatever there remains after my decease shall be equally divided amongst my lawful heirs, share and share alike.” At the time of his death the testator, Frank Koehl, left surviving him as his sole and only heirs at law, his five children, who are defendants in error here, viz.: Frank Koehl, Jr., Emma Federspiel, Catharine Walters, Maggie Boesche and Pearl Koehl, and his two grandchildren, Emil Henry Koehl and Louisa Maria Koehl, plaintiffs in error, who were children of Louis Koehl, a son of said testator, who died more than eight years prior to the execution of said will. The question presented, here for determination, is whether under the provisions of said item four of the will of Frank Koehl the residuum of his estate thereby disposed of, is to be distributed among his “lawful heirs,” the children and grandchildren above named, in equal portions, and one-seventh part thereof given to each; or whether such residuum is to be divided into six equal parts, and one-sixth given to each of the five children of testator, and the remaining sixth to his two grandchildren. In short is the' distribution of said residuum, under item four, to be made per stirpes or per capita. It was contended in the courts below and is the contention of defendants in error here that where a testator bequeaths his estate, or the residuum thereof, to his heirs, or as in this case, to his “lawful heirs,” without other or further designation, and without naming them, thereby making necessary a resort to the statutes of descent and distribution in order to ascertain and determine who shall take under the will, that such devisees or legatees, when so ascertained, will take only in the proportion designated and prescribed by the statutes of descent and distribution, and, .if not of equal degree, they will take by right of representation;-or per stirpes and not per capita. That such is the general rule, in the absence of any specific direction by testator as to how, or in what proportion each shall take, would seem from the authorities, to be well settled. Richards v. Miller, 62 Ill., 417; Daggett v. Slack et al., 8 Metc., 450; West v. Rassman, 135 Ind., 278; Woodward v. James, 115 N. Y., 346; Eyer v. Beck, 70 Mich., 179; Conklin v. Davis, 63 Conn., 377; Kirkpatrick v. Kirkpatrick, 197 Ill., 144; Mattison v. Tanfield, 3 Beav., 131. But this rule, resting as it does upon the presumption, that because the testator has made necessary a resort to the statute, in order to determine who his donees are, that therefore he also intended, that the statute should govern and control as to the proportion each should take, can have no application to a case like the one at bar, where the testator has in clear and specific language prescribed and directed how such division shall be made as between those whom he has designated as his beneficiaries; viz. “equally, share and share alike.” Having so declared and directed, nothing is left for inference or presumption, as to the mode of distribution, and division must be made as directed by the testator. By item four of Ms will the testator, Frank Koehl, ¿ives the residue of his estate to a “class,” which in terms he therein designates by the general description, his “lawful heirs.” This being the only designation or description of those who were intended as beneficiaries under this clause of the will, of necessity, resort must be had to the statute, in ■order to determine who are the legal heirs of the testator within the meaning of tMs clause. In a -technical, or strict legal sense, neither the children or grandchildren of testator were at the time of the making of this will his heirs. Nemo est haeres ■viventis. But by reference to the statute we find •that all of them, both children and grandcMldren, are, within the purview and meaning of the statute, his “lawful heirs, ’’ inasmuch as without the will, all would be entitled, by. inheritance to share in the distribution of his estate. All then, being beneficiaries under item,four of this will, it only remains to ascertain their respective interests, and to determine the share to which each is entitled, upon a distribution of the residuum of testator’s estate, disposed of by this item of the will, and this must be ascertained and determined, if it may be, according to the intention of the testator as disclosed by the language of the will itself. In thus ascertaining the intention of testator, effect must be given to every word of the testamentary clause under consideration, without rejecting any of them, if this can be done by a reasonable construction, not inconsistent with the manifest intent and purpose of said testator, apparent from the whole will taken together. Quid-' ed then by this rule of construction, and there being nothing found elsewhere in said will to limit, control or vary the direction given by testator in item four, ■as to the method of distribution and division of the residuum of his estate, the .intention of the testator as to the manner in which such division should be made and as to the share each should take, would from the language employed by him in directing such división, seem entirely clear. By the phrase £<my lawful heirs” testator describes the objects of his bounty and designates who are to be his beneficiaries ; and by the words, ‘ ‘ equally, share and share alike, ’ ’ he defines and points out the manner in which they are to take the estate comprehended by the gift. If, as contended by counsel for defendants in error, the testator had meant that both the persons who were to take, and the manner of division, should be governed by, and should be in accordance with, the statutes of descent and distribution, and as if he had -died intestate, then item four of his will was entirely nseless, for in that case the same persons would take, and in the same manner, as if he had died leaving no will. Testator does not say that the persons designated as beneficiaries are to take in the same manner, and in like proportions, as though he should die intestate, but on the contrary, after describing those who are to be the objects of his bounty, by the general designation, ££my lawful heirs,” which includes both children and grandchildren, he, in clear and specific language, directs that division shall be made amongst them, ££equally, share and share alike.” Primarily, the object of making a will is tó direct another and different mode of distribution of the testator’s estate from that marked out by the law of descent. That Frank Koehl made a will, is a circumstance tending to show that he intended thereby to make provision for his heirs different from that which the law would make. And the fact that he made a will is a fact that weighs against snch construction of the provisions of item four of this will,, as is here contended for by counsel for defendants in error, because, if the construction for which they contend is to prevail, it would, at most, only accomplish that which the law itself would effect, in the absence of any such clause or provision, and it makes the insertion in this will, of item four, an idle and useless act on the part of the testator. There, being nothing in this will to suggest or require a different conclusion, we must presume and conclude that the testator, Frank Koehl, had a purpose and object in employing the particular language he did. employ, in item four, and from the language therein used by him, we think this intention is clear and unmistakable. By the use of the phrase “my lawful heirs” he manifestly intended that all those persons, who would be his heirs under the statute of descent,, in case of his intestacy, should be his beneficiaries, and should take the residuum of his estate. And by the use of the words"equally,share and share alike, ’’ he just as clearly evidenced the intention that they should not take such residuum in the manner prescribed by the statute, but should take it equally, share and share alike, as directed by his will. By reference to the statute we ascertain who are to take-under item four, and by the plain provisions of the will itself, we are told how they are to take, that is: “equally, share and share alike,” per capita and not per stirpes. Huston v. Crook, 38 Ohio St., 328; McKelvey v. McKelvey, 43 Ohio St., 213; Bisson et al. v. W. S. R. R. Co. et al., 143 N. Y., 125; Ramsey v. Stephenson, 34 Ore., 408; Walker et al. v. Webster et al., 95 Va., 377; Dowding v. Smith, 3 Beav., 541; Butler v. Stratton, 3 Brown’s Chancery Rep., 367; Page on Wills, sec. 554; Richards v. Miller, 62 Ill., 417.

We are of opinion that the circuit court erred in holding that the residuum of the estate of the testator Frank Koehl should, under item four of his will, he distributed per stirpes and not per capita, and for such error the decree of the circuit court in so far as it orders and directs distribution and division of the property disposed of by said item four, to be made per stirpes and not per capita is reversed, and judgment will be entered for the plaintiff in error, in accordance with this opinion.

Reversed and judgment for plaintiff in error,

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