author: Nichols, C. J. Donahue and Newmán, JJ.,

text:
    The City of Youngstown v. Fishel.

      Assessments — Street improvements — Corner lots — May be assessed entire lengthwise frontage — Section 3812, General Code.

    The mode of assessing the costs and expenses of street improvements in municipalities, “by the foot front of the property bounding and abutting on the improvement,” as provided by the third method prescribed in Section 3812, General Code, requires the municipality to assess upon an entire lengthwise frontage of a lot abutting upon the improvement as well as its breadthwise frontage. (Haviland v. Columbus, SO Ohio St., 471, and Toledo v. Sheill, S3 Ohio St., 447, overruled.)
    (No. 13921
    — Decided January 13, 1914.)
    Error to the Circuit Court of Mahoning county.
    Facts stated in the opinion.

      Mr. David G. Jenkins, for plaintiff in error.

      Messrs. Hine, Kennedy & Manchester and Mr. E. N. Brown, for defendant in error.
   Nichols, C. J.

The question involved in this’case is whether, under Section 3812, General Code, as it now reads, a municipality availing itself of the right tó levy and collect special assessments for street improvements by the third method prescribed in said section, may assess a corner lot for the full number of feet it abuts on the improvement, or whether the so-called “real” front, as defined in the doctrine announced by this court in Haviland v. Columbus, 50 Ohio St., 471, is to limit the liability of the corner-lot owner.

This question has had a very interesting history in Ohio, both judicial and legislative. The so-called third method as it existed in 1893, when the Haviland case was decided, read “by the foot front of the property bounding and abutting upon the improvement.” The only change in this method through legislative channels was had in 1902, at the time of the adoption of the municipal code, and the change on this occasion was the substitution of the word “frontage” for “front.” For eight years thereafter the language remained unaltered. In 1910, however, the legislature restored the word “front” and eliminated “frontage” from the act.

By a divided court the rule established in the Haviland case was that “if a lot abuts lengthwise on the improvement, but fronts breadthwise on another street and not on the improvement, the lot should be deemed as fronting breadthwise on the improvement, and be assessed for the number of feet on the improvement that it would have in such case, and no more,” as, for example, if X owns a lot at the corner of A and B streets, 50 feet on A and 150 feet on B, the 50 feet being its breadth and 150 feet its length, and B street is being improved, X can be assessed for only 50 of his 150 feet abutting on B street and the interior-lot owners on B street must of necessity participate in the additional assessment, and X’s additional 100 feet is improved substantially at his neighbors’ expense. This doctrine was not long allowed to remain unassailed, but within a period of two years it was again before the supreme court in the case of City of Toledo v. Sheill, 53 Ohio St., 447, and most vigorously challenged.

The court at that time was composed of six judges, of whom three adhered to the decision of the Haviland case without qualification, two dis-' sented, and the sixth, Spear, J., who was a member of the court at the time of the decision of the Haviland case, says of the Haviland case (see 53 Ohio St., 459): “It received, at the time of its rendition, neither the assent of my judgment nor my vote,” he concurring, however, in the reaffirmation of the doctrine for the reason, as he says, that he felt that the maxim of stare decisis should control.

The doctrine of the Haviland case was by force of necessity acquiesced in by the people of Ohio until the change by the legislature in 1902 of the word “front” to “frontage.” The corner-lot agitation was at once revived, some saying at that time that it was the mere grasping at a' straw; nevertheless the result was the setting aside of the doctrine established in the Haviland and Sheill cases, and in the case of Village of Oakwood v. Stoecklein, 81 Ohio St., 332, the rule was laid down that municipalities were authorized to assess upon an entire lengthwise frontage of a lot abutting upon the improvement as well as its breadth-wise frontage.

The Stoecklein case was decided in January, 1910. Within ninety days thereafter the legislature of Ohio, then in its regular biennial session, reamended Section 3812, General Code, in several particulars, among others by substituting the word “front” for “frontage,” thus restoring the act to its original form and phraseology as it existed at the time the supreme court construed it in the Haviland case.

This circumstance or coincidence, whatever it may be termed, has been seized on by the advocates of the Haviland-case doctrine as striking and unanswerable evidence of legislative intendment, and it is urged with great earnestness and much force in the case now under consideration that the legislature thereby not only manifested its disapproval of the doctrine of the Stoecklein case, but with deliberation and yet with despatch removed the ground from under the supreme court upon which the court rested in the Stoecklein case. It is now urged upon the court that the reamending of Section 3812, in 1910, amounted in effect to a setting aside of the rule of the Stoecklein case, and the lower courts in the case at bar have so regarded it; at least both the court of common pleas and circuit court disregarded the rule of corner-lot assessments established in the Stoecklein case and readopted the rule of the Haviland case.

This court now feels, in view of the peculiar state and history of the legislation and of the judicial construction touching the subject in controversy, that it is confronted with the plain duty of considering the question de novo.

While the doctrine of stare decisis might be invoked as a strict sequence from the Haviland and Sheill cases, supra, and the reasoning of the court in the Stoecklein case, together with the legislation immediately following the decision of the latter case, yet it cannot be denied that there never has been such approval of or acquiescence in the doctrine of the Haviland case as stare decisis is supposed to produce. The court is also influenced to indulge in freedom to deal with the question anew, for the reason that, while the rule affects property rights to the degree that the assessment is directly against the property, still it is not a rule of property relating to the title itself.

There is still another consideration of potency. Among all our sister states Ohio stands alone in its adoption of the rule as laid down in the Haviland case. Construction of similar statutes in every other state where the question has been presented has evolved the doctrine of the Stoecklein case, regardless of any refined distinction in the meaning of the two terms “front” and “frontage.” And finally, it is generally felt by the citizens of our state that the rule of the Haviland case has worked injustice to a greater or less degree in most every municipality of the state, and it is certain that it has been the source of much irritation in every community where street and sidewalk improvements have been made. Moved by these considerations, the court is prompted to consider • the corner-lot question on its merits, unhampered by the stare decisis doctrine.

In doing this the court would not wish to be understood as in the slightest manner discrediting this salutary and long-established doctrine.

The doctrine of precedents owes its origin and observance to a recognition of the necessity for stability and uniformity in the construction and interpretation of the law, and no argument is necessary to support the view that the administration of justice calls for well-settled rules in such matters, but, as observed by Bartley, C. J., in the case of Leavitt & Lee, Exrs., v. Morrow, 6 Ohio St., 78: “Precedents are to be regarded as the great storehouse of experience; not always to be followed, but to be looked to as beacon lights in the progress of judicial investigation, which, although, at times, they be liable to conduct us to the paths of error, yet, may be important aids in lighting our footsteps in the road to truth.”

And where the original decision has been rendered by a divided court and the question involved is not strictly one relating to property title, and there exist grave question as to the logic or equity of such established rule, the court can not stand bound and fettered, helpless to remedy an injustice if one exists. For, as observed by the same learned judge in the Leavitt case, supra, “Mere precedent alone is not sufficient to settle and establish forever, a legal principle. Infallibility is to be conceded to no human tribunal. A legal principle, to be well settled, must be founded on sound reason, and tend to the purposes of justice.” The court in the Leavitt case set aside a rule of law which had been recognized and followed for over two centuries. In this connection, the case of Willis v. Owen, 43 Tex., 41, referred to by Davis, J., in his opinion in State v. Lewis, 69 Ohio St., 209, may appropriately be quoted from again, where it says: “The questions to be considered in these cases have no application whatever to the title or transfer of property, or to matters of contract. They involve the construction and interpretation of the organic law, and present for consideration the structure of the government, the limitations upon legislative and executive power, as safeguards against tyranny and oppression. Certainly, it cannot be seriously insisted, that questions of this character can be disposed of by the doctrine of stare decisis. The former decisions of the court in such cases are unquestionably entitled to most respectful consideration, and should not be lightly disregarded or overruled. And in case of doubtful interpretation, * * * or even legislative or executive construction within the sphere of their respective functions, might be sufficient to turn the balanced scale. But in such case the former decision or previous construction is received and weighed merely as an authority tending to convince the judgment of the correctness of the particular conclusion, and not as a rule to be followed without inquiry into its correctness.”

The question for the court’s present consideration is not so much what the legislature had in its mind by the changing of the language from “front” to “frontage” and then back again, but calls for a fair construction of the statute as the language now exists, plain, explicit and unequiv- ■ ocal.

The rule established in the Haviland case, considered in the light of reason and from the experience of the several communities of the state since its promulgation, must now be held illogical, inequitable and mischievous, and must no longer prevail, regardless of the doctrine of stare decisis and the due force and respect that must be accorded the legislative intent.

It is the plain duty of the court to see that reasonable uniformity is observed in the imposition of the burden of assessments among all property owners. It must be conceded on all sides that the Haviland-case rule is a hard rule — one strongly calculated to raise murmurings and discontent, and it must likewise be conceded that the exercise of the power of assessment under this rule has been grossly oppressive to interior-lot owners; and so, without pursuing the subject at greater length, the majority of the court is quite content to adopt as the best line of reasoning on the subject the able dissenting opinion of Shauck, J., as announced in the Sheill case, supra, and to hold that the plain meaning of the term “front” as employed in Section 3812, General Code, is the real and actual frontage, both lengthwise and breadthwise.

If the legislature would write into the statute the construction of Section 3812, General Code, which counsel for defendant in error asks, it would require the court to hold the statute itself unconstitutional.

If Section 3812 specifically provided that in the matter of street improvement the municipality could, in assessing corner lots, only require their owners to answer to an assessment on the lengthwise front equal to. the number of feet fronting on the breadthwise front, and provided further that such deficiency in assessment should be substantially contributed by the interior-lot owners on the street being improved, we would be constrained to hold such statute as being in contravention of Section 2, Article XII, requiring the taxation of property by a uniform rule, and of Section 6, of Article XIII of the Constitution of Ohio, restricting the power of assessment by municipalities so as to prevent the abuse of the power; since such a manifestly discriminating assessment would be an illegitimate and unauthorized exercise of the taxing power.

Where two constructions of a statute are available it is the time-honored and logical rule' to give such construction as will maintain the constitutionality of the act.

We therefore hold that the language in Section 3812, which reads “by the foot front of the property bounding and abutting upon the improvement,” means and is to be construed as meaning that corner-lot owners are to be assessed for the full frontage of their lots abutting or bounding on the improvement, whether lengthwise or breadth-wise, and this holding is made disregarding any distinction as to the technical meaning of the terms “front” or “frontage.”

Judgment reversed and judgment for plaintiff in error.

Shaucic, Johnson, Wanamaker and Wilkin, JJ-, concur.

Donahue and Newmán, JJ.,

dissenting. We dissent from the judgment announced by the majority of this court for the reasons:

1. That after this court had announced its judgment in the case of Village of Oakwood v. Stoecklein, 81 Ohio St., 332, the general assembly of Ohio promptly amended Section 3812, General Code, and changed “foot frontage” to “foot front,” so that in this particular the section reads the same as it read at the time the cases of Haviland v. City of Columbus et al., 50 Ohio St., 471, and City of Toledo v. Sheill, 53 Ohio St., 447, were decided. Personally, we do not think that the language of the amendment of 1902, “foot frontage,” differs from the language of the original section. But .that inquiry is no longer of any importance. The court held that the amendment of 1902 to this section required a change in its construction, and within ninety days thereafter the lawmaking power of the state again amended the section by rewriting into it the exact language it contained when the Haviland and Sheill cases were decided, eliminating therefrom the language which was held by this court to justify the construction given to the law in the case of Village of Oakwood v. Stoecklein, supra. In amending this law the legislature of the state could have had no purpose other than to restore the doctrine announced in the Haviland and Sheill cases. This is so clear that argument in support of it is needless. It follows, therefore, that if the intention of the legislature is to be any guide to the interpretation of a statute this intention so clearly appears that there is no chance to be mistaken upon the question, and therefore the judgment, of the circuit court should be affirmed.

2. Aside from the clear intent and purpose of this amendment, the language used in Section 3812 is not subject to any other construction than the construction given it by the court in the Haviland and Sheill cases, supra. That section provides three ways by which assessments may be levied: First, by a percentage of the tax value of the property assessed; second, in proportion to the benefits which may result from the improvement, and, third, by the foot front of the property bounding and abutting upon the improvement.

“Foot front” is a very common term applied to city lots. There is nothing ambiguous in the language, nothing calling for construction when used in the statute. It means just what mankind in general understands it to mean, just what this court declared it to mean in the Haviland and Sheill cases. The value of city lots is largely determined by the front foot. It is true, the depth of a lot has something to do with its value, but the depth is by no means as important to its value as the frontage, and therefore that kind of property is usually bought and sold at a price fixed and determined by the front foot. If a contract for the purchase of a city lot were before this court, the terms of which provided that the price to be paid therefor would be so many dollars per front foot, it is hardly possible that lawyers would dispute or that the court would have any difficulty in determining the meaning of this language or the intent and understanding of the parties to the contract. The fact that this language is found in the statute does not make its meaning doubtful, nor authorize the construction that it means the depth or side of a lot instead of its frontage. If the. lawmaking power of this state intended to authorize assessment upon the depth of a lot it would have used language other than the phrase “foot front.”

In the majority opinion of this court there is some discussion as to the equity of permitting a portion of the depth of a lot to escape assessment for a side street. But this is a matter of statute, and with the equities of the case this court has nothing to do. That is a question for the legislature to determine. But, even if that question were involved, upon what theory should the owner of a corner lot pay the total cost of improving the side street as well as the street in front of his property? It must be remembered that the public streets of a city are primarily for the uses and purposes of the public. The fact that they also furnish ingress and egress to private property is the theory upon which private property is made to pay for street improvements. But it must be conceded that the side street is not as'valuable to property as the front street. And yet the rule here adopted compels the owner of a corner lot to pay two or three times as large an assessment for the improvement of a side street as he would be required to pay for the improvement of the street fronting his property. Clearly such a rule overlooks the question of benefits and may in some instances amount practically to a confiscation of private property. It is undoubtedly just and right that property benefited by street improvements should pay its share of the cost in proportion to benefits. But it by no means follows that it would be just or right to compel the owner of a corner lot to pay all the cost of the improvement of both front and side streets, and clearly it would not be right to compel him to pay twice or three times as much for the improvement of the side street as he is required to pay for the improvement of the front street. The lots fronting on this side street are benefited by the improvement thereof largely in excess of a corner lot facing on another street, and yet these lots fronting on the side street would be assessed but a small sum in proportion to the assessment upon the depth of the corner lot for the improvement of this street which is their front street but the side street of the corner lot. The public generally would pay nothing beyond the cost of the street intersection, although the improvement of streets is primarily for the benefit of the public. Not only this, but the inside lots in the same block with the corner lot and fronting upon the same street as the corner lot also are materially benefited by the improvement of the side street, for by that street the owner can reach the alley to the rear of his property. Yet by this construction he is not compelled to pay anything whatever for the side street, either by special assessments or by general taxation for such purposes, but the whole burden is placed upon the corner lot, notwithstanding it is apparent that it receives no benefit therefrom commensurate with the burden imposed.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Crawford v. Sideman.

      Constitutional law — Itinerant vendor license — Municipal authorities may determine local fee, when — Section 6364, General Code, constitutional.

    Under the provisions of Section 6364, General Code, in the absence of an ordinance of the municipality providing therefor, the clerk or mayor -of the municipality may determine a reasonable amount to be paid by an itinerant vendor as a local license fee, and the granting of this right to the clerk or mayor is a legal exercise of legislative power and not repugnant to the constitution.
    (No. 13690
    — Decided January 20, 1914.)
    Error to the Circuit Court of Hancock county.
    Facts are stated in the opinion.

      Mr. R. C. Cole, city solicitor, and Mr. 'John E. Priddy, for plaintiff in error.

      Mr. C. B. Dwiggins and Messrs. Franks & Franks, for defendant in error.
   By the Court.

This was a proceeding in habeas corpus brought in the circuit court of Hancock county by H. A. Sideman' against J. H. Crawford as chief of police of the city of Find-lay. The case was submitted to the court upon the petition, the return or answer of the defendant and an agreed statement of facts. H. Á. Sideman was a resident of the city of Chicago and an itinerant vendor of goods and merchandise. In compliance with the provisions of Sections 6357 to 6359, General Code, he procured from the secretary of state, on the 17th day of May, 1912, a license authorizing him to do business in this state as such itinerant vendor for the period of one year from said date. On May 23, 1912, he presented his license to the mayor of the city of Findlay and requested an issuance to him of a local license under the provisions of Section 6364, General Code. There was no ordinance of the city in force, providing for the payment of a local license fee for such purpose, and the mayor, acting under and by virtue of the provisions of the section last mentioned, proposed and offered to issue a local license authorizing Sideman to do business as such itinerant vendor in the city of Findlay, upon the payment by him of a local license fee of $25 per day, but the mayor refused to issue a local license for any less sum. Sideman refused to pay such local license fee and on the 27th day of May, 1912, he proceeded to. offer for sale and sold certain goods and merchandise, without having procured a local license as an itinerant vendor. On the same day he was arrested upon a warrant issued upon an affidavit charging him with having on the 27th day of May, 1912, sold goods as an itinerant vendor, without a local license therefor. He was found guilty of this charge by the judgment of the mayor and sentenced to pay a fine and costs. He prosecuted error from this judgment to the court of common pleas, which judgment was afterwards reversed, but while the proceeding in error was pending in the common pleas court, Sideman, on the 1st day of June, without having made further or additional application to the mayor, other than' that hereinbefore mentioned, and without having procured an itinerant vendor’s local license, again proceeded to and did sell goods and merchandise as an itinerant vendor in the city of Findlay. On the same day an affidavit was filed by the defendant below, J. H. Crawford, charging Sideman with selling goods as an itinerant vendor in the city of Findlay, without a license, upon which affidavit a warrant was issued by the mayor to said J. H. Crawford as chief of police, who thereupon arrested Sideman and confined him in the city prison. At the time of the allowance and issuance of the writ in the proceeding in the circuit court he was, by the said Crawford, so confined and restrained in the city prison.

In his petition, filed in the circuit court, he claimed that the demand of the mayor for the payment of a license fee of $25 for each and every day he was proposing to do business as an itin-' erant vendor was unreasonable, arbitrary and prohibitive, and claimed further that the section (6364, General Code) so far as it purports to confer authority upon the mayors of cities to determine and fix such local license fees, is unconstitutional, inoperative and void.

The circuit court found that there was no ordinance of the city of Findlay, fixing the right of the mayor of said city to name the amount of the license, and that the plaintiff should be released on the ground that there was no ordinance under which the mayor had the right to impose a local license before plaintiff could do business and that the city council should provide the legislation necessary to make the matter effective. Plaintiff below, H. A. Sideman, by the order of the circuit court, was released and discharged and the costs taxed against the defendant below, J. H. Crawford, who is here asking for a reversal of the judgment of the circuit court.

Section 6364, General Code, is as follows:

“Before selling under a state license, an itinerant vendor shall exhibit it to the clerk or mayor of a municipal corporation where he proposes to make sales. Upon payment to such clerk or mayor of a local license fee, as provided by ordinance, or in the absence of such ordinance, such amount as the clerk or mayor, determines, and proof of payment of all other license fees, legally chargeable upon local sales, the clerk shall record such state license, indorse upon it the words, 'local license fees paid/ and affix his official signature, with the date of such indorsement. He shall then issue a local license authorizing sales within the limits of such city or village.”

Under the provisions of this section, in the absence of an ordinance providing for a local license fee, the clerk or mayor of a municipality is given the right and has authority to fix and determine the amount to be paid by an itinerant vendor as a local license fee, and the granting of this right is a valid exercise of legislative power and is not repugnant to the constitution of the state. We are unable to say, from the facts as disclosed by the record, that the amount fixed by the mayor in the case at bar was unreasonable, arbitrary or prohibitive, and in the absence of such facts, the presumption obtains that the official performed his legal duty and was free from the abuse of discretion in determining the amount to be paid.

The circuit court erred in holding that., in the absence of an ordinance, the mayor had no right to impose a local license fee before plaintiff below could do business as an itinerant vendor, and the judgment of the circuit court is, therefore, reversed and the judgment is here rendered for plaintiff in error.'

Judgment reversed and defendant in error remanded to the custody of the chief of police.

Nichols, C. J., Donahue, Johnson, Newman, Wanamaker and Wilkin, JJ., concur.


text:
    Maple v. Hiser. The City of Newark v. Dold.

      Constitutional law — Intoxicating liquors — Municipal ordinances prohibiting alley saloons constitutional.

    An ordinance of a municipality making it unlawful to sell, furnish or give away intoxicating liquors as a beverage in a room having its principal door or place of entrance on an alley or in a room not fronting upon a street, is a reasonable regulation, within the police power of a municipality delegated to it by the state, and violates no constitutional provision.
    (Nos. 13716 and 14014
    — Decided January 20, 1914.)
    Error to the Circuit Court of Coshocton county.
    Error to the Circuit Court of Licking county.
    Facts are stated, in the opinion.

      Mr. C. B. Hunt and Mr. J. C. Adams, city solicitor, for Maple, plaintiff in error.

      Mr. James Glenn, for Hiser, defendant in error.

      Mr. Roderic Jones, city solicitor, for Newark, plaintiff in error.

      Mr. C. D. Saviers and Messrs. Fulton & Fulton, for Dold, defendant in error.
   By the Court.

In these cases the constitutionality of a provision of a city ordinance is involved. The provisions in question are substantially identical, and the two cases are, therefore, considered together. The prosecutions were had in 1912.

In the case first entitled, George Hiser was arrested by the chief of police of the city of Coshocton under a warrant charging him with violating .section 3 of an ordinance of said city, entitled “An ordinance to regulate the sale, furnishing or giving away of intoxicating liquors as a beverage, and the places wherein the same are sold, furnished or given away in the city of Coshocton, Ohio.”

Section 3 is as follows: “It shall be unlawful for any person to sell, furnish or give away intoxicating liquors as a beverage in any place in said city other than a room fronting upon a street in said city; provided, further, that in all cases of the sale, furnishing or giving away of intoxicating liquors as a beverage in a recognized hotel, it shall be a sufficient compliance with this section if the place where the said liquor is sold, furnished or given away opens into a lobby which is at all times open to the public.”

The penalty for the violation of this section is fixed by section 9 of the ordinance.

Hiser was arraigned and pleaded not guilty, was ordered to give a bond in the sum of $200, and his case assigned for trial. Hiser refused to comply with the order of the mayor and was held in the city prison because of his refusal to give bail. He thereupon filed a proceeding in habeas corpus in the circuit court of Coshocton county, and upon the hearing of the case in that court it was found that he was unlawfully imprisoned and detained by the chief of police of the city of Coshocton. The court ordered his discharge, and a petition is filed in this court asking for a reversal of the judgment of the circuit court.

In the other case, the City of Newark v. Robert Dold, it appears from the record that Dold was arrested, tried and convicted under an ordinance of the' city of Newark to regulate ale, beer and porter shops and the sale of intoxicating liquors as a beverage, under which ordinance it was provided, among other things, that it shall be unlawful and the same is declared a misdemeanor “for any person, firm or corporation to keep or own any ale, beer, porter shop or other place of whatever description for the sale of intoxicating liquors as a beverage in any room which has its principal door or place of entrance on an alley.”

Dold was ordered by the mayor to pay a fine and costs of prosecution and to abandon the saloon within thirty days. A petition in error was filed in the circuit court, asking for a reversal of the judgment of the mayor. There were several assignments of error. The court found that the ordinance, for the violation of which Dold had been arrested, was and is invalid and of no legal effect and void, and reversed the judgment of the mayor. The city of Newark has filed a petition in this court, asking a reversal of the judgment of the circuit court and an affirmance of the judgment of the mayor.

Under the constitution, the general assembly is given authority to provide against all evils resulting from trafficking in intoxicating liquors, and, under Section 6137, General Code, every municipal corporation has full power to regulate the selling, furnishing or giving away of intoxicating liquor as a beverage and the places where such intoxicating liquor is sold, furnished or given away as' a beverage. By this provision, the legislature has delegated to the ■'municipalities police power to regulate places where intoxicating liquor is sold.

The ordinances under consideration here provide against the evils' resulting from the establishment of saloons in any place in the city other than a room fronting. upon the street and the establishment of saloons in a room having its principal door or place of entrance on an alley. This is a reasonable regulation, is within the exercise of the police power delegated by the state to the municipality and is not in contravention of any of the provisions of the constitution. The circuit court, therefore, erred in holding these ordinances invalid.

In the Coshocton case, the judgment of the circuit court is reversed and the said George Hiser is committed to the custody of the chief of police of the city of Coshocton.

In the Newark case, the judgment of the circuit court is reversed and that of the mayor affirmed.

Judgments reversed.

Nichols, C. J., Shauck, Johnson, Newman, Wanamaker and Wilkin, JJ., concur.


author: Wilkin, J.

text:
    The State of Ohio v. Baxter.

      Criminal lazo — Embezzlement of funds by state superintendent of banks — Restoration of funds no defense, when — Use of public funds by public officers a crime, zuhen — Section 12876, General Code.

    The accused was state superintendent of banks. He took $37,000 of the funds that came into his custody by virtue of his office, to New York city, and used the money there to redeem his collateral securities which he had pledged for his private debt. Some weeks later, before he was called to account for the money and before he was indicted for its unlawful conversion to his own use, he negotiated the securities which he had thus obtained, for money with which he restored to the funds the $37,000 with which he paid his debt in New York. Held:

    1. This was embezzlement, in violation of Section 12876, General Code.
    2. The fact that he returned money of equal amount to the trust fund, before his secret appropriation of it became known, was no defense.
    3. It is the'design and policy of that section and kindred statutes to prevent public officers and agents from using public funds in their possession or under their control, in any manner or for any purpose not expressly authorized by law.
    (No. 14255
    — Decided February 3, 1914.)
    Exceptions by the Prosecuting Attorney to the Decision of the Court of Common Pleas of Franklin county. ■
    The facts are stated in the opinion.

      Mr. Edward C. Turner, prosecuting attorney, and Mr. Timothy S. Hogan, attorney general, for the exceptions.

      Mr. Kent W. Hughes, against the exceptions.
   Wilkin, J.

May 20, 1912, the accused took $37,000 of funds, which came into his possession as superintendent of banks of Ohio, from state banks, where they were deposited by virtue of Section 742-6, General Code, and used them in the city of New York to pay his private indebtedness. He repaid the amount of the funds into the banks June 8, 1912. Later he was indicted under Section 12876, General Code, for embezzling and converting these trust funds to his own use on the date first named. At the trial, upon a statement of the facts to the jury by the prosecuting attorney, the accused moved the court to direct a verdict of acquittal. The court sustained the motion, and discharged the accused, for the reason- that “he had accounted in time by the repayment of other money of equal value.’ '

The pertinent clause of the statute reads thus: “Whoever, being elected or appointed to an office of public trust or profit, embezzles or converts to his own use * * * anything of value that shall come into his possession by virtue of such office or employment, is guilty of embezzlement,” etc.

He based his. right to acquittal on the proposition that the conversion must be with the intention of depriving the owner of the money, and the crime is complete only after a failure to account and pay it over.

He argues: (1) That the temporary appropriation of the money to his own use, with the intention of restoring it, is not a conversion within the meaning of the statute; and (2) that he does not become an embezzler till he becomes a defaulter.

The logic of both propositions is somewhat confused. The first is that a trustee who appropriates a trust fund, without the owner’s knowledge, to pay his own debt, and afterwards repays the secret loan, does not embezzle the fund. This loses sight of one important test which is not conceded in the statement of the case, viz.-, that at the time he diverted the fund he intended to restore it. The fact that the accused deposited other money of equal amount in the proper place after the misappropriation is only circumstantial evidence bearing on the question of his intention when he purloined the fund. To say the least, such evidence of good motive, without anything else, is hardly convincing; it is not conclusive. The return of the money may have been impelled by the dread of exposure and the fear of punishment, rather than an original intention to restore it, which was in his mind at the time he withdrew it. Of course repentance and restitution do not expunge the guilt.

The second proposition also comes short of the mark. It leaves the decisive question unanswered, whether or not the secret purpose or use for which the custodian of public funds abstracts them, without authority, may determine his guilt or innocence. We think the true test is, Is there a wilful misappropriation of the trust fund, or a breach of faith by the employe to whose custody the fund is entrusted for the benefit or use of the employer or owner? In this case the trustee secretly used the money of the state, for his own benefit and profit, on the hazard of being able to replace it when or before the state would require it. He speculated on the risk of becoming a defaulter; he therefore contemplated the chance that he might not be able to repay. Whether he did this for his own emolument or his mere convenience, he was speculating with public funds, which is certainly a public evil intended to be forbidden and repressed by the statute.

It will be noticed that the predicate words of the statute are “to embezzle or to convert to his own use.” The meaning of these words is to be found in the body of the general law; they are legal terms which are to be understood according to their legal signification. A precise laconic definition of either of them, which will comprehend their full import and cover all cases, can not be found, if indeed one can be made. Conversion has been defined as follows: “An appropriation of the thing to the party’s own use and beneficial enjoyment, or exercising dominion over it, in exclusion or defiance of the owner’s right.” (2 Greenl. Ev., Sec. 642.) “Assuming upon one’s self the property and right of disposing of another’s goods.” (Lord Holt, 6 Mod., 212.) “An act of dominion over personal property, inconsistent with the right of the owner.” (Bigelow on Torts, 1875, 428.) “Any distinct act of dominion wrongfully exerted over one’s property in denial of his right, or inconsistent with it.” (2 Cooley on Torts, 3 ed., 859.) And see b Bouv. Die. (1897), 433; 38 Cyc., 2005.

A definition of embezzlement is still more difficult to find or to frame. It is a form of the evolution of the law of larceny, and therefore a modification of that crime. The act may be said to consist of a fraudulent misappropriation of another’s goods by one to whom their custody has been entrusted. It is purely a statutory offense, and the distinctive features of the crime must be gleaned from the various statutes which define it for each jurisdiction.

The law of the particular phase of the subject which we have in hand, so far as it has been determined and formulated by juristic science is tersely stated by a writer whose treatise has become a classic and an authority. We quote from the late Joel Prentiss Bishop’s New Criminal Law, Yol. 2:

“The gist of common-law larceny is the felonious ‘taking’ of what is another’s, with the simultaneous intent in the taker of misappropriating it. But in the statutory embezzlement there is no felonious taking, for the thing comes to the servant by delivery either from 'the master or a third person. * * * So that the question now is, by what act, after it is received, does the servant commit the embezzlement? * * *
“Our inquiry concerns the act, not the evidence.. The rule of law appears only indistinctly in the books. Still we may infer from the authorities, and from the reasons inherent in the question, that if the servant intentionally does with the property under his control what one must intend to do with property taken to commit larceny of it, he embezzles it, while nothing else is sufficient. Or, assuming the needful criminal intent to exist, he must and need only do what in our civil jurisprudence is termed conversion, defined to be any dealing with the thing which impliedly or by its terms excludes the owner’s dominion. To illustrate,— if the servant, instead of delivering the property to his master or another, as required by his duty,, pledges it for his own debt, or runs away with it, or neglects or refuses to account for it, or otherwise wrongfully diverts its course toward its. destination to make it his own, he embezzles it. Yet much of even this is, when accurately viewed, rather evidence than the offense itself. For, to' constitute the offense it is not necessary there should be a demand for the money alleged to be embezzled, or a denial of its receipt, or any false account, * * * or refusal to account.” Sections 372, 373.

He treats of the intent as an ingredient of the crime, under the title “Larceny.” The following excerpts will serve our purpose: “In strictness of language there are in larceny two intents; namely, to commit the asportation by trespass, and to make the felonious misappropriation of the thing stolen. Yet commonly and practically we mean by this term the latter. It is in this sense that the word is in the present sub-title employed. * * * It means the purpose to deprive the owner of his ownership in the thing taken; and whether or not for some advantage to the trespasser, or as otherwise expressed for lucre, is one of the purposes of this sub-title to consider. * * * ‘What is meant by felonious intent/ said Reade, J., ‘is a question for the court; and after the court defines that, then it is for the jury to say whether the defendant had such intent/ But the law on this question of intent is difficult, and the authorities are in a measure conflicting. Yet relating to it there are some leading doctrines reasonably certain.” Section 840.

“Some have held that if one takes another’s goods to pledge them, intending to redeem and return them afterwards, he does not commit larceny. Plainly a defendant to avail himself of this limitation of the intent must show it; for outwardly and prima facie these facts indicate theft. And Gurney, J., once said to a jury: T confess I think that if this doctrine of an intention to redeem property is to prevail, courts of justice will be of very little use. A more glorious doctrine for thieves it would be difficult to discover, but a more injurious doctrine for honest men cannot well be imagined.’ Now, a man who pledges an article transmits an ownership which, though not perfect, will become so if he fails to perform to the pledgee the condition; this is very different from his merely holding it in his own temporary-custody and using it. Probably, therefore, this taking is in principle larceny. So, at least, such a transaction would now generally appear to be regarded. And, both in principle and authority, the intent in larceny need not be to deprive the owner of the whole thing taken; it is enough that the purpose is to get from him the entire ownership of any part thereof. Thus, it is larceny to carry away any article of property to conceal it until the owner will offer a reward for its return, and for the purpose of obtaining the reward.” Section 841.

“We find it not infrequently said in the books that the taking must be lucri causa * * *. Blackstone mixes, thus: ‘The taking and carrying away must be felonious; that is, done animo furandi; or, as the civil law expresses it, lucri causa * * * . But this is by no means the only criterion of criminality; for in cases that may amount to larceny the variety of circumstances is so great, and the complications thereof so mingled, that it is impossible to recount all those which may evidence a felonious intent, or animum furandi; wherefore they must be left to the due and attentive consideration of the court and jury.’ (4 Bl. Com., 232.) Now, these words of the Commentator * * * really convey about as exact an idea as can be stated.” Section 842.

“Some hold that the thief must intend to convert the thing to his own use. But the true view, where the rule of lucri causa is conceded, is simply that he should mean some advantage to himself, in distinction from mischief to another.” Section 843. “We have intimations that if one taking an article tenders its value in money prima facie he is not guilty of larceny. Not necessarily will the offer of pay exempt him, but East says it is 'pregnant evidence’ that the purpose was not felonious. (2 East P. C, 662, 3 Greenl. Ev., Sec. 157.) On various theories of a defense the court might in some circumstances be asked to submit such a fact to the jury.” Section 845.

This lucid epitome of the law, so far as it has been developed by the decided cases, gives us a clew to the solution of the problem presented by the record in this case. Our author shows us, first, that the return of the property misappropriated by the trustee is only an ex post facto circumstance, which should go to the júry for what it. may be worth as reflecting the motive of the trustee at the time of the appropriation; second, if the criminal intent accompanied that act, the crime was complete, and demand and refusal to account and pay over were not necessary. Therefore, if the court of common pleas sustained the motion and directed a verdict of acquittal on the theory that the prosecutor failed in either or both of these particulars to state an offense, its ruling was wrong. It should at least have submitted the case to the jury with proper instructions as to the evidentiary value and legal import of these two features.

The third proposition suggested by the author’s summary is, that the temporary diversion of the fund to the trustee’s use without the owner’s consent is embezzlement. Therefore his repayment of the money would not purge his breach of trust of its felonious character, though he intended at the time of its misuse to deprive the owner of it only temporarily. Rarely does a defaulter intend to'become a defaulter when he begins his peculations. How often has the sequel shown that the faithless custodian felt absolutely srire that he would be able to replace the fund before it would be called for ? Who knows how many a defaulter relied with absolute certainty upon his ability to show that, when he shifted the funds from his custody or his trust account to a temporary use or his personal account, there was absolutely no danger of the funds being lost? Therefore how easily it may be. shown that the ninety and nine who go astray had no intention of depriving the owner of his money. Nevertheless the theory advanced by the accused in this case, and adopted by the judge who acquitted him, is that mere, chance determines the criminality or innocence of the act; whether he is a felon or a guiltless man depends merely upon his ability to replace the money when he is called to account. By this theory his case is ruled by blind fate, not by blind justice. In other words, it is not the blameworthiness of the act or of the mind, but the result of the hazard, or the skill of the actor, in playing the game, which decides its legal quality. Such a doctrine offers temptation to a thousand-thousand custodians of trust funds, whose temptations are great enough at best; it encourages the reckless and unfortunate to commit crime, whereas the very purpose of the statute is to deter the tempted fiduciary from a breach of his trust and to protect society from the evils of a practice which has become wellnigh epidemic. If the law be given such a loose interpretation and be so feebly enforced, public faith and credit will be impaired and the stability of the financial institutions of the state will be in jeopardy.

In the case of the Board of Education v. Thompson, 33 Ohio St., 321, the board permitted the treasurer to use the fund in his business, pending litigation between the board and a special school district as to the custody of a fund in the township treasury, on his agreeing to pay interest. The object was to earn sufficient by such use to meet the interest which the board would be charged if the litigation should be decided against it. When the treasurer’s term expired the loan was renewed and note with sureties was taken for the amount with interest. This court held that the transaction amounted to embezzlement under the statute as it then existed (2. S. & C, 1610). The court said: “The purpose of this and other statutes, as was said of similar acts then in force, in State v. Buttles, 3 Ohio St., 321, is to operate on the agents, officers, and others having charge of public moneys, and deter by fines and penalties, the commission of such acts. The power is denied them to make such contracts.”

In the Buttles case, Ranney, J., made the following comments: “It is unnecessary for us to examine them [the statutes] in detail. We have carefully read them all, and are entirely satisfied, that the policy of the state has always been, what we have no hestitation in saying it should have been, to prohibit its officers and agents from loaning or dealing in its funds either on public or private account. * * *

“The first section subjects to the penalties prescribed by law for feloniously stealing property, any officer appointed or elected under the constitution or laws of the state, or any agent or servant of the state, who should convert to' his own use, or use by way of investment in property or merchandise, or make away with or secrete, any money or valuable security received for safe keeping, disbursement, transfer, or other purpose, which might be in his possession, or over which he might have supervision, care, or control by virtue of his office or agency. * * * It seems to us, that the language and purpose of the section are both disregarded, when it is taken for anything less than an absolute prohibition to every officer, agent, or servant of the state, having public moneys in his hands, or under his control, to loan them out, either on private or public account, without express authority of law. * * * We have no difficulty in saying that the whole object, spirit and design, is preserved when they [the statutes] are made operative between the state and its agents, in deterring the latter from the interdicted use of the public moneys. * * * Unwilling to trust the agents of the state, the legislature has seen fit to deny them the power to loan the public funds, and the better to secure obedience has. prescribed penalties for the transgression of its instructions.”

Again: It was said a county treasurer who should deposit the public moneys in a bank, with or without interest, though directed so to do by the county commissioners, would violate Section 6841, Revised Statutes (now Section 12873, General Code), and be guilty of embezzlement; and if the county commissioners' should advise and direct such deposit to be made they would be equally guilty. Williams, J., State, ex rel., v. Ellet, 47 Ohio St., 90, 100. See also Davis v. Gelhaus, 44 Ohio St., 69.

In a later case, speaking of Section 6846, Revised Statutes (now Section 12878, General Code), the court said the object of this statute is to punish as an offense the diversion, appropriation or application of the funds of a municipal corporation or a board of education to a use other than that for which the funds were raised; and a conversion of the money to his own use by an officer or agent of such corporation is a violation of Section 6841, Revised Statutes (now Section 12873, General Code), and makes him guilty of embezzlement of public moneys. State v. Johnson, 53 Ohio St., 307.

The court below said that what constitutes wrongful conversion depends entirely upon the duties required by the trust; if the. obligation is such that the trustee is required to account within a definite time, and he uses the money but later secures other money and pays to his principal according to his duty, he is not guilty of a breach of duty nor of a crime, although he may have committed a moral wrong; we cannot apply to such a situation the rule of law prevailing in larceny, where there is a wrongful taking by trespass and the crime is complete, though the money is after-wards returned.

The exception here intended to be made is of those trusts whose terms, express or implied, permit the trustee to commingle’ the funds of the trust with his own. The idea is that in such cases there is no default and therefore no breach of the trust till the trustee .fails to account and pay over. Cases have been .cited in argument where trust and private funds were permissively or innocently commingled, and the trust fund, by inadvertence, consumed by overdrawing in ignorance of the fact that the private fund was exhausted. This case has no semblance to that class. And the italicized clause, supra, betrays a subconscious recognition of the fact that this case does not fall within the exception, else why does the trustee commit a moral wrong when he uses the trust money, secures other money and pays it to his principal? The reason is that he had no right to use the public’s money and did so wrongfully, and the payment of other money after the conversion does not relieve him of culpability.

The court’s distinction between this case and larceny is useless also. Whether it be trespass by wrongful conversion or by wrongful taking, the unlawful use of the money is an invasion of the owner’s right of property — an infraction of law, just the same, which the statute penalizes. But the learned lower court finds the conversion to be a moral wrong only; the taking, a crime complete. Both wrongdoers have appropriated the owner’s money — which the law forbids — and both return it. Why is not the latter absolved as well as the former? The former having lawfully got the money into his custody for safe keeping, puts it out of his custody for his own use. The latter unlawfully takes possession of the money for his own use. There is, however, a difference; it is this: ■ The former violates not merely the owner’s right of property, but also the owner’s trust and confidence; his crime is doubly heinous and damnable. But shall the repentance and return of the plunder by the embezzler acquit him while it does not acquit the thief?

Both of these distinctions are illegitimate. The first implies that the law ignores the moral obliquity of the act, if no money is lost. If the learned common pleas judge had in mind moral turpitude, the implication may be true, but it is irrelevant. If he had in mind conventional morality, the implication is false. True, the law is not for moral discipline; and we need not flounder in the metaphysics of the ethical basis of Law. This law condemns the act and punishes the offender, because the act is hurtful to society, endangers the state, and therefore must be repressed. Whether the offender’s motive be culpable or innocent, it does not excuse him, even though he did not intend. to violate the law.

The second distinction is unsound, because it implies that one may use or invest what belongs to another, for a short time, if he gets the custody lawfully, though explicitly on trust that he will not use it or put it out of his custody, even though he convert it into something else of. the same kind of equal value and surrender the equivalent upon demand.' This proposition juggles with Truth, Time and Fate. It would sanction every species of gambling with public money by every officer in the commonwealth and by every custodian of trust funds in banks and all other institutions, secular and religious.

We do not assume the authority of enforcing the precepts of mere morality, Christian or Aristolean, nor is it our function to declare the laws of social ethics. But it is our duty to interpret the laws of the state in harmony with those maxims of practical morality, private and public, which are recognized by the enlightened common sense and good conscience of the people of the state. Those maxims are the mainsprings of the civil laws, for upon them the moral order, peace and prosperity of society depend; and unless they be implied as imbedded in the laws, civil authority will lack the sanction and support of public opinion and government will become impossible.

To say that an officer of state, who is entrusted with the custody of public funds, may secretly use them to redeem securities pledged by him for his debt in New York, and then excuse his delinquency by showing that his luck has turned and the securities have been turned into money and the deficit has been made up before he is prosecuted, shocks the moral sense of mankind: Yet that is what the court below decided he may do. We cannot thus interpret the law. The law was made no less to deter those who are tempted to speculate with their trust than to punish those who violate it. To effect the former purpose and stop the too prevalent contagion, as well as to maintain public credit and confidence in our laws and institutions, is a most humane and important object to be kept in view by the courts who are called upon to execute this law.

That the unlawful appropriation of the property, though not with the intention of depriving the owner of it entirely or finally, constitutes the crime, is foreshadowed by the case of Berry v. The State, 31 Ohio St., 219, thus: “The wrongful taking and carrying away of the property of another, without his consent, with intent to conceal it until the owner offers a reward for its return, and for the purpose of obtaining the reward, is larceny.” And that demand and refusal to restore are not requisite to make the offense, nor is restitution or the offer thereof a defense, is the doctrine of Railroad Co. v. O’Donnell, 49 Ohio St., 489, thus: In a petition, in an action for conversion, which avers that the defendant converted the plaintiff’s property to his own use, it is not necessary to allege a demand and a refusal to deliver; such a demand and refusal may afford satisfactory evidence of a conversion, but are not the only evidence. It is no defense to this action for the value of the goods, that they were tendered, after conversion; and the motive by which a party was controlled in the conversion of property is of no avail as a defense, though it may be shown when exemplary damages are claimed.

True, the latter is a civil action, but the delict is, by the very language of the statute (Section 12876), the same in this case as in that; the only difference is that in the cited case the private law is invoked to redress an injury to an individual, whereas in the case at bar the public law is invoked to denounce and punish a wrong to society and the state.

The question then remains: Had the accused, by the terms or the nature of the trust, the privilege of using the trust fund? If he had not, clearly neither his intention to replace it nor his replacing it, nor both together, will save him from the stigma of the crime, though by the innocent error of the learned lower court he has escaped punishment, because the Bill of Rights saves him from the jeopardy of another trial.

Now, neither the statement of facts made to the jury by the prosecutor nor the statute (Sections 742-6 to -12, General Code) which defines the terms and purpose of the trust, shows that the accused had a right to use the money which came into his custody as superintendent of banks of the state. The suggestion is preposterous.

And the suggestion that the return of the money reflects back to the time of its conversion and raises an inference that the accused did not intend an unlawful appropriation of it, is, under the circumstances of this case, no less preposterous. A man holding the responsible trust and high station of state superintendent of banks must be presumed to know the first simple, cardinal duty of his office as liquidator of financial institutions of the state. To permit the suggestion that Baxter did not know it was a breach of trust to purloin the funds in his custody and exchange them for securities in New York, on the hazard of being able to hypothecate the securities for money to replace the funds, would be to make a mockery of justice. The court below said it was a moral wrong. That is enough. If it was wrong it was a breach of trust, hence an unlawful conversion. Baxter knew, and the law will not permit him to say he did not know, that it was felony He stands guilty on this record though the cannot be branded with his crime.

We hold that the fact that the accused returned the money, even if he intended to return it when he secretly appropriated it to his own use, did not bar the prosecution nor exonerate him from punishment. There are decided cases which support this judgment. We cite some of them: Robinson v. Commonwealth, 104 Va., 888; U. S. v. Gilbert, 4 O. F. D., 251; Mangham v. State, 11 Ga. App., 427; State v. Summers, 141 N. Car., 841; State v. Shuman, 101 Me., 158; Dean v. State, 147 Ind., 215; Fleener v. State, 58 Ark., 98; Commonwealth v. Tenney, 97 Mass., 50; Commonwealth v. Butterick, 100 Mass., 1; State v. Leicham, 41 Wis., 565; People v. Butts, 128 Mich., 209; Commonwealth v. Mason, 105 Mass., 163.

The learned judge below advert's to a nisi prius case, to which exceptions were denied by this court, also to some remarks (more or less obiter) made by members of this court in passing oh cases under similar statutes, which seem to declare that there can be a conversion only where there has been a default by failure or refusal to pay over. He says this court “should be responsible for allowing that impression to go out which may deceive any lower court.” However that may be, we do not find that this court has decided the law, for a case such as this, to be different from the decision we now make.

He further states that he followed “the rule of strict construction which applies to criminal statutes” — a humane rule justly designed to protect innocence, but too often resorted to as a subterfuge by criminal defenders to befog the judicial conscience. He reached this conclusion: “If there is not a remedy for what may be regarded as a moral wrong in such a case as this, it is for the legislature to create one and not for the court.” The doubt thus engendered by that overworked rule was, by the court’s taking what seemed the safer and humane side and following misleading expressions of some judges of this and other courts, resolved in favor of the accused and the jury was ordered to acquit him. This was error.

Exceptions sustained.

Nichols, C. J., Johnson, Donahue, Newman and Wanamaker, JJ., concur.


author: Newman, J.

text:
    The First National Bank of Cortland v. Logue, Trustee, et al.

      Judgment — Execution—Interest of vendee under contract of purchase is vested interest, when — Section 11655, General Code ■ — •Vendee’s interest bound for satisfaction of judgment, when —Section 11656, General Code.

    The interest of a vendee in the possession of real estate under a contract of purchase, the legal title being in the vendor, is a vested interest within the meaning of that phrase as used in Section 11655, General Code, and such interest is bound, under the provision of Section 11656, General Code, for the satisfaction of a judgment against- such vendee.
    (No. 13728
    — Decided February 3, 1914.)
    Error to the Circuit Court of Cuyahoga county.
    The judgment the reversal of which is here sought was rendered in the circuit court o.f Cuyahoga county on appeal. The case was submitted to that court upon the cross-petition of plaintiff in error, in which it sought to subject the real estate hereinafter mentioned to the satisfaction of certain judgments, the answer of J. C. Logue, trustee, the cross-petitions of H. C. Christy and Mary E. Christy, and an agreed statement of facts.
    Flenry C. Christy was adjudicated a bankrupt on an involuntary petition in bankruptcy filed in the United States district court at Cleveland on the 9th day of June, 1911.
    In 1910 plaintiff in error recovered two judgments in the common pleas court of Cuyahoga county against Christy, one for $2,880 and the other for $3,420.63. On March 6, 1911, execution was issued on these judgments and on March 7, 1911, a levy was made on the interest of Christy in the real estate described in the cross-petition of plaintiff in error.
    Prior to the year 1910, Christy acquired a land contract for the purchase from one Lizzie H. Neff of the real estate described in said cross-petition, by the terms of which contract said real estate was to be purchased by Christy for the sum of $14,500. At the time of the rendition of the judgments in favor of plaintiff in error, there had been paid on said contract the sum of $6,500, leaving due a balance of $8,000 and interest. At all the times hereinbefore mentioned Christy had full possession of the property under said contract, and he and his wife occupied the dwelling house situate on the premises. The legal title to said property at all of said times was held by Lizzie H. Neff.
    During the pendency of this action in the common pleas court, by agreement of all the parties interested, the real estate was sold for the sum of $12,000. Out of this there was paid to Lizzie H. Neff her claim amounting with' interest to $9,333.57; to said Christy, to apply on his claim for exemptions, the sum of $500, and taxes, costs and expenses, amounting to $299.77. The balance, $1,866.73, is now held by J. C. Logue, trustee of the estate of Henry C. Christy, bankrupt, subject to the final determination of the issues in this case, and this fund is substituted for and instead of the property, and the rights of the parties are transferred to said fund.
    The plaintiff in the common pleas court, The Western Reserve National Bank, and certain other defendants who claimed an interest in the property in that court, not desiring to further prosecute their claims and not desiring to appeal from the judgment of the common pleas court, released and discharged the property in question and the fund derived from the sale of the same from any and all claims which they had, and consented to the dismissal of the petition and their cross-petitions without in any way prejudicing the rights of said J. C. Logue, as trustee, The First National Bank of Cortland, Henry C. Christy and Mary E. Christy, the four parties last named agreeing to save them free and harmless from all costs in the action.'
    The circuit court found that The First National Bank of Cortland acquired no lien prior to the four months before the filing of the involuntary petition in bankruptcy against Henry C. Christy; that by reason of the act of congress relating to bankruptcy its said lien, acquired within four months of the filing of said petition in bankruptcy, is void and of no effect and it now has no lien upon said premises or the funds derived from the sale thereof; that the said Henry C. Christy is not entitled to $1,000, in lieu of a homestead, from said fund, but is entitled to the sum of $500 as exemptions, which amount he has received; that Mary E. Christy is not entitled to dower in said property and that said fund derived from the sale of said premises is the property of J. C. Logue, as trustee of said Henry C. Christy, bankrupt.
    Judgment was rendered in favor of J. C. Logue, as trustee, for the amount in his hands, growing out of the sale of the property, and against The First National Bank of Cortland, Henry C. Christy and Mary E. Christy for costs.
    The First National Bank of Cortland filed a motion for a new trial, which was overruled, and it is here asking for a reversal of the judgment of the circuit court.

      Messrs. Myers, Green & Keough, for plaintiff in error.

      Messrs. White, Johnson & Cannon and Messrs. Ford, Snyder & Tilden, for defendants in error
   Newman, J.

The circuit court found that plaintiff in error had acquired no lien prior to the four months before the filing of the involuntary petition in bankruptcy against Henry C. Christy. Counsel challenge the correctness of this finding.

The section of the bankruptcy act which invalidates and nullifies certain judgments and liens is as follows:

“Section 67-f. That all levies, judgments, attachments, or other liens, obtained through legal proceedings against a person who is insolvent, at any time within four months prior to the filing of a petition in bankruptcy against him, shall be deemed null and void in case he is adjudged a bankrupt, and the property affected by the levy, judgment, attachment, or other lien shall be deemed wholly discharged and released from the same, and shall pass to the trustee as a part of the estate of the bankrupt, unless the court shall, on due notice, order that the right under such levy, judgment, attachment, or other lien shall be preserved for the benefit of the estate.”

In determining whether a judgment is a lien, when the above section is to be applied, the law of the state where the judgment was rendered controls. This requires then an examination of two sections of the General Code relating to executions and judgment liens against property:

“Sec. 11655. Lands and tenements, including vested interests therein, permanent leasehold estates renewable forever, and goods and chattels, not exempt by law, shall be subject to the payment of debts, and liable to be taken on execution and sold as hereinafter provided.
“Sec. 11656. Such lands and tenements within the county where the judgment is entered shall be bound for its satisfaction from the first day of the term at which it is rendered, except that, judgment by confession and judgments rendered at the same term at which the action is begun, shall bind such lands only from the day on which such judgments are rendered. All other lands, as well as goods and chattels of the debtor shall be bound from the time they are seized in execution.”

The judgments /obtained by plaintiff in error against Christy were rendered in the year 1910/ more than four months before the filing of the petition in bankruptcy. If these judgments became liens on the real estate in question at that time the liens would, not be invalidated by the provisions of Section 67-f of the bankruptcy act, supra.

In the year 1910, at the time plaintiff m error obtained the judgments, Christy had full possession of the real estate in question, under and by virtue of a land contract with one Lizzie H. Neff for the purchase of the real estate. Under the provisions of this land contract the real estate was to be purchased by Christy for the sum of $14,500. At the time the judgments were rendered in favor of plaintiff in error there had been paid on account thereof the sum of $6,500.

It appears from the agreed statement of facts that during the pendency of this proceeding in the common pleas court,’by agreement of all the parties to the case, the real estate was sold for the sum of $12,000. Out of the proceeds of this sale, Lizzie H. Neff was paid her claim, amounting with interest to more than $9,000, and the sum of $500 was paid to Henry C. Christy to apply upon his claim for exemptions. Taxes, costs and other expenses also were paid, and the balance, amounting to $1,886.73, is in the hands of the trustee of the estate of Henry C. Christy, bankrupt, subject to the final determination of this .case. By agreement, the fund arising from the sale of the property was substituted for and instead of the property, and the rights of the parties thereto were transferred to said fund without prejudicing in any way their respective claims.

Section 11655, General Code, was formerly Section 5374, Revised Statutes, but the words “including vested interests therein” were not in the section as originally enacted.' They were added by the amendment of 1880. This section, as it stood before the amendment, was before this court in a number of cases, and it was the holding of the court that an equity could not be levied upon and sold to pay debts, and that a judgment did not create a lien upon an equity. These cases are cited by counsel in their briefs as throwing light upon the question arising here under the statute as amended: Manley v. Hunt, 1 Ohio, 257; Haynes v. Baker, 5 Ohio St., 254; Baird v. Kirtland, 8 Ohio, 21; Gorrell v. Kelsey, 40 Ohio St., 117; Schuler v. Miller, 45 Ohio St., 325.

Were it not for the fact that there has been a considerable and substantial change, as^we regard it, in the statute, those cases, of course, would be helpful to us here. It is to be presumed that the legislature in adopting the present form of the statute did so with full knowledge of the decisions of this court bearing upon the statute as originally enacted. It knew that the provisions of Sections 5374 and 5375, Revised Statutes, which bound “lands and tenements” for the satisfaction of judgments, were applicable to legal interests only. It cannot be claimed, then, that the words “including vested interests therein” were inserted without purpose or design. The same construction cannot prevail when there has been a substantial change in the law. To give to the amended statute here the same construction as was given it in its original form would not, we think, conform to the manifest intent of the legislature. Obviously the additional words were inserted to extend the operation of the statute and make a judgment binding upon certain interests in land to which formerly the provisions of the statute did not apply under the ruling of this court. If the provisions of Section 11655, General Code, apply to legal interests only, the insertion of the words “including vested interests therein” would serve no purpose.'

A vendee in the possession of land under a contract for its future conveyance to him has an equitable interest in the land. Jaeger v. Hardy, 48 Ohio St., 335: Coqqshall v. The Marine Bank Co., 63 Ohio St., 88.

An equitable interest, as well as a legal interest, in real estate may be a vested one. “An estate is vested in interest when there is a present fixed right of future enjoyment, and an estate is contingent when a right of enjoyment is to accrue on an event which is dubious and uncertain.” Strode v. McCormick, 158 Ill., 142.

Christy was in the possession of the real estate ■under a contract of purchase. His interest was not a contingent one but a vested interest. There was a recognition of this fact when the property was sold by agreement of all the parties in interest, including the holder of the legal estate, and the proceeds, after the payment of the balance due under the contract, were turned over to Christy’s trustee.

The case of National Bank of Columbus v. Tennessee Coal, Iron & Rd. Co., 62 Ohio St., 564, bears upon the question involved here. The court uses this language:

“The statute was amended in 1880, Sec. 5374 [Section 11655, General Code], so as to make ‘lands and tenements, including vested interests therein,’ subject to levy and sale for the payment of debts.
“Manifestly the interest which Mr. Patton retained in the surplus of the value of the real estate over and above the amount required to pay his note, and which was to be returned to him by the terms of the instrument, was a vested interest, and therefore subject to lev}'- and sale to pay his debts.
“By the next section, 5375 [Section 11656, General Code], it is provided that ‘Such lands and tenements, within the county where the judgment is entered, shall be bound for the satisfaction thereof from the first day of the term at which judgment is rendered.’ ‘Such lands and tenements,’ in this section, embraces the same as ‘lands and tenements, including vested interests therein,’ in the preceding section. It is therefore clear that the judgment in question became a lien upon the vested interest of Mr. Patton in the lands covered by this instrument, from the first day of the April term, 1894, of the court of common pleas, that is, April 7, 1894, and that the lien of the judgment attached, by relation, under the statute, to such vested interest as he then had in said lands.”

This vested interest of Christy became bound for the satisfaction of the judgments of plaintiff in error in 1910. The judgment lien attached then. These liens not having been obtained within four months prior to the filing of the petition in bankruptcy, the provisions of Section 67-f of the bankruptcy act do not apply.

Plaintiff in error is entitled to the funds in the hands of the trustee, the same to be applied to the payment of its judgments against Christy.

Inasmuch as the vested interest of Christy in the real estate became bound for the satisfaction of the judgments of plaintiff in error in 1910 and as a levy was unnecessary to perfect these judgment liens, the question whether the lien acquired by the levy made within four months from the time of the' filing of the petition in bankruptcy is void under the provisions of the federal statute, is of no importance in the disposition of this case.

The judgment of the circuit court is reversed and judgment is here rendered for plaintiff in error.

Judgment reversed and judgment for plaintiff in error.

Nichols, C. J., Shauck, Johnson, Donahue, Wanamaker and Wilkin, JJ., concur.