author: By the Court.

text:
    The Columbus Gas & Fuel Co. v. The Knox County Oil & Gas Co.

      Lessor and lessee — Rights and liabilities of lessee and his assignee for rents — Section 12206, General Code — Sureties—Oil lease— Liability of assignee for royalties.

    (No. 13949 —
    Decided October 13, 1914.)
    Error to the Circuit Court of Knox county.

      Mr. Frederick N. Sinks and Messrs. H. H. & R. M. Greer, for plaintiff in error.

      Mr. F. O. Levering, for defendant in error.
   By the Court.

The lessee of real estate is liable by the terms of his contract for the rents accruing during the entire term of the lease. In the absence of a contract assuming further liability the assignee of a lease is liable only for the rent accruing while he enjoys the estate. In such case the lessee stands in relation of surety to the assignee of the lease, and may maintain an action against the assignee of the lease under the provisions of Section 12206, General Code. Sutliff v. Atwood, 15 Ohio St., 186; McHenry v. Carson, 41 Ohio St., 212.

Where a lease of premises for oil and gas provides that a sum certain shall be paid each year as royalty on the gas produced from each well and marketed off the premises, and the lessee operates the lease, markets the gas from wells thereon for a portion of the year and thereafter assigns the lease, the assignee, in the absence of a special contract, is not liable for the royalties accruing on wells, the product of which was marketed off the premises prior to the assignment of the lease, regardless of when these royalties become due and payable, but the assignee of the lease is liable for the royalties accruing during the time he markets the product and enjoys the estate.

Judgment affirmed.

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


source: Caselaw Access Project

author: Wanamaker, J.

license: Public Domain

text:
    The State, ex rel. Murphy, v. Graves, Secretary of State, etc.

      Elections — Primaries—Nominee must be affiliated -with party nominating.

    Under the existing law providing for primary elections a voter who is affiliated with one party cannot be nominated at such primary as a candidate for office upon a ticket of any other party.
    (No. 14750 —
    Decided October 15, 1914.)
    In Mandamus.
    Facts are stated in opinion.

      Mr. F. S. Monnett, for relator.

      Mr. Timothy S. Hogan, attorney general; Mr. Charles Follett and Mr. James I. Boulger, for respondent.
   Wanamaker, J.

The relator, James V. Murphy, as an elector and resident of the county of Mahoning and state of Ohio, brings an action in mandamus against the secretary of state, praying for an order of this court directing said secretary of state to certify his name as one of the candidates for judge of the supreme court of Ohio.

The facts upon which he relies, as shown by the pleadings, are in brief as follows: That at the state-wide primary held on the 11th day of August, 1914, the secretary of state, as state supervisor of elections, had printed and distributed primary ballots for use at said primary election; that one of said primary ballots was designated “Republican,” another designated “Democratic,” another designated “Progressive;” that on the Republican ballot there were two or more printed names of candidates, on the Democratic ballot two or more printed names of candidates and that on the Progressive ballot there were no printed names of candidates; that the relator’s name was written on four of the Progressive ballots for judge of the supreme court, which fact was certified to the secretary of state by the deputy state supervisors and inspectors of elections for said Mahoning county, and that the secretary of state refused to certify the relator’s name as being legally nominated for judge of the supreme court of Ohio as a result of the vote had at such August primary election. This is in substance the relator’s claims as set forth in his petition.

The answer, so far as it is relevant to this case, avers the fact to be that the “relator never has been, is not now, and was not at the time of said primary election, a member of said Progressive party, but, on the contrary, was a member of the Republican party” and voted as such Republican on said August 11, 1914.

The relator filed a reply, but in nowise denies the truth of the foregoing facts appearing in the answer. Should the writ issue?

Mandamus is generally defined as “an action or judicial proceeding of a civil nature, extraordinary in the sense that it can be maintained only when there is no other adequate remedy, prerogative in its character to the extent that the issue of both the alternative and peremptory or final command is discretionary, to enforce only clear legal rights,” etc. 26 Cyc., 139, and cases cited.

A writ of mandamus is at common law regarded as “a high prerogative writ.” It is employed to prevent a failure of justice and is only allowed to a party showing a clear legal right to the relief sought. State, ex rel., v. Berry, 14 Ohio St., 315; State, ex rel., v. Smith, 71 Ohio St., 13.

The right to a peremptory writ of mandamus by a relator must be predicated on the clear legal right of the relator and the inherent natural justice of his claims.

Applying these legal and equitable principles to the case at bar, how stands the relator? At this primary there were cast in excess of 440,000 votes, over 8,000 of which were cast for the Progressive ticket. The total vote cast for the relator for judge of the supreme court was four, one-twentieth of one per cent, of the total vote cast for the Progressive ticket. The relator himself was not at the time and never had been a member of the Progressive party. On the contrary, he appeared at the primary on that day and voted a Republican ticket, thereby declaring himself a Republican. Under existing law the primary is necessarily a party primary. Wisely or unwisely, there is no provision made for the independent voter. The members of a party are presumed to act as the members of a lodge, or the members of a church, or of any other voluntary organization, to select representatives of their lodge, church or such association, to fill certain offices and discharge certain trusts.

By an examination of the primary statutes, Sections 4952 (as amended 103 O. L., 476), 4977, 4980, 4981, 4982, 4969, 4970 and 4973, General Code, all combine to demonstrate the soundness of this position. The voters signing the original petition must certify that they are members of the party whose nomination is sought, and some one signer must make oath to that effect. The candidate also makes a declaration that he will abide by the principles enumerated by his political party. But, more than that, the statutes, especially Section 4980, General Code, provide as to who are legally qualified electors at such primary. The language of the statute is as follows:

“At such election only legally qualified electors or such as will be legally qualified electors at the next ensuing general election may vote and all such electors may vote only in the election precinct where they reside, and it shall be the duty of the challengers and of the judges, and the right of any elector, whenever there is reason to doubt the legality of any vote that may be offered, to interpose a challenge. The cause of a challenge shall be: That the person challenged has received or been promised some valuable reward or consideration for his vote; that he has not previously affiliated with the party whose ticket he now desires to vote. Affiliation shall be determined by the vote of the elector making application to vote, at the last-general election held in even-numbered years.”

Sections 4981 and 4982 provide as to how the challenge shall be tried and that the judges of the party with whom the voter claims affiliation are the judges to finally determine his qualifications as a legal voter.

Suppose the relator in this case had presented himself to the judges of the primary, represented himself as a Republican and asked for a Progressive ticket to vote the same. Would there be any doubt about the judges’ right and duty to refuse him a ticket ? Under the statutes he would not be a qualified legal voter at such Progressive party primary. If he is not a qualified voter, it is difficult to understand how he could be a qualified candidate. The same spirit runs throughout as to the voter and candidate in connection with the party primary. Indeed, it may well be doubted whether or not at the party primaries the voter may write in any name. He may do so at a general election where the purpose is to get at the wishes of the majority of the voters as to the candidates for office or public policies, but the purpose of the primary is to enable the rank and file of each party to nominate the party’s representatives for public office. It is unnecessary, however, to determine that question here.

The relator cannot as a Republican consistently claim a Progressive nomination. The natural justice of the situation, as well as the clear legal right, is against him, and the secretary of state rightly denied him a place on the ticket.

The writ of mandamus is, therefore, refused.

Writ refused.

Shauck, Johnson, Donahue and Newman, JJ., concur.

Nichols, C. J., and Wilkin, J., not participating.


text:
    Hoover v. The State of Ohio.

      Criminal law — Murder — Evidence — Impeachment — Testimony of physicians — Rebuttal—Admission and competency of evidence— Expert witnesses — Hypothetical question — Charge to jury — Preponderance of evidence.

    (No. 14505 —
    Decided October 15, 1914.)
    Error to the Court of Appeals of Van Wert county.
    The facts are stated in the opinion;

      Messrs. Blackly & Kerns and Messrs. Dailey & Hoke, for plaintiff in error.

      Mr. Clark Good, prosecuting attorney, and Mr. H. L. Conn, for defendant in error.
   By the Court.

The plaintiff in error was indicted by the grand jury of Van Wert county for the murder of his wife, Helen Hoover. On the trial in the court of common pleas of Van Wert in April, 1913, by the verdict of a jury the. plaintiff in error was found guilty of murder in the second degree. From the judgment entered on this verdict error was prosecuted to the court of appeals of Van Wert and the judgment was by that court affirmed. Error is prosecuted here to reverse the judgment below.

The deceased died from the effects of wounds inflicted by bullets fired from a revolver into her head a number of days before she died. The tragedy occurred at her home in the country, where she lived with her husband.

There was no direct testimony in the case as to who fired the shots.

The defendant below and his wife were a young couple, who had been schoolmates and close associates for a long time prior to their marriage.

In April, 1912, the father of decedent called on the defendant, and in the presence of his father accused him. of having disgraced his daughter. The result of the conference then held was that the parties were married on the following day and went to live with defendant’s father.

At the time of the marriage he was about 18 years old and she was a year younger. They remained at his father’s about three months when, at the request of his parents, she went to live at her parents’ home, he remaining with his parents. In the following October they went to live in their own home on his father’s farm. They lived together there until the tragedy, which occurred about nine months after their marriage.

The defendant in his testimony gave an account of his movements and whereabouts on the day of the shooting. He stated that he was engaged in work on the farm; that he took dinner at his father’s house; that he was in and out of his own house during the day; that he was there about two o’clock in the afternoon and had a short talk with his wife, who was complaining of a headache; that he then went to his father’s barn; about one-half mile away, with a team to haul fodder; that about half-past four he went back home; that when he arrived he found his wife lying on the floor in the sitting room with the bullet wounds in her head; that he telephoned to his mother, told her “there has been a man in here some time this afternoon and shot Helen” and asked her to come quick; that the reason he said there had been a man there and shot his wife was because she had told him so. He denied that there had been any trouble between him and his wife between their marriage and her death, and stated that they had never had a fuss. He testified that the mother of his wife arrived at the house in the afternoon of the following day and that her treatment of him was not friendly.

The plaintiff in error urges that the evidence against him was all circumstantial and more consistent with the theory of suicide than of murder, and that there was prejudicial error in the admission of testimony. As to the latter, it is insisted in the first place that the court erred in admitting the testimony of certain physicians in rebuttal. The state, in order to maintain its case in chief, had offered the testimony of experts, several physicians, to show that either one of the two principal wounds, which they discovered had been inflicted upon the deceased, would have caused immediate unconsciousness. The defendant called his mother as a witness, who testified that she had found the decedent soon after she had been called to the home, lying on the floor; had gotten down on the floor and put her hand over her head; had washed her face and bathed her head and asked her if a man had come into the house and shot her. She testified that the deceased shook her head “yes,” and in answer to the question whether she knew the man she shook her head “no.” The mother testified to other acts of consciousness of the deceased at that interview of a similar character. Two physicians were called on behalf of the defendant who testified that they saw the deceased about five o’clock in the afternoon. They gave it as their opinion that the deceased might have spoken within an hour preceding that time, and these physicians testified that neither of the wounds would necessarily have caused immediate unconsciousness.

The state in rebuttal was permitted, over the objection of the defendant, to offer evidence that these wounds would have caused immediate unconsciousness, and one of the witnesses so testifying was a physician who had already testified to the same effect in chief. We think that the admission of this evidence in rebuttal was proper. The evidence offered in chief was competent as showing the nature arid extent of the wounds that the deceased had received, the effect that they necessarily had upon her and that they naturally resulted in her death. This testimony contributed to the treking out of the case which the state was compelled to establish in chief. The testimony of the physicians, which was received in rebuttal, although substantially to the same effect, was competent in support of the effort to contradict the testimony of the mother of the defendant. Even if it be said that it was merely cumulative, its admission in rebuttal cannot be said to be an abuse of the discretion of the court in view of the testimony of the mother with reference to the consciousness of the deceased at the time stated.

It is also insisted that the trial court erred in admitting evidence of an impeaching nature with reference to the testimony of the attending physician. This witness described his visit to and examination of the deceased. He had fully detailed the entire situation as he found it, the location, nature and extent of the wounds, the treatment of them and the progress of the case till the death of Mrs. Hoover. He was asked as to the probability of the wounds having been self-inflicted and answered “it is very possible they could be.” He was asked on cross-examination, among other questions seeking to impeach his testimony, if he had not on another occasion, to a third person, made statements that were inconsistent with the answer referred to. The physician having denied that he remembered making any such statement, the state was permitted in rebuttal, over the objection of defendant, to offer testimony showing that the physician had made the statements referred to.

The testimony of an expert witness, in which he gives an opinion, concerning a state of facts given in a hypothetical question, cannot be impeached by testimony that he had at another time expressed an opinion as to the actual transaction which was different from his expert opinion on the state of facts as contained in the question. A witness might have an opinion definite and conclusive with reference to a state of facts given in a question, and yet at the same time he might have received impressions which were caused by wholly extraneous circumstances or by hearsay and unreliable report which would lead him to hold and express a different belief as to the real state of facts. It would be unsafe and wholly improper to admit testimony concerning statements of that belief made at other times. On the other hand, it would be perfectly proper, where an expert had given on the witness stand an opinion concerning a state of facts contained in a hypothetical question, to show by way of impeachment that at other times he had given another opinion concerning the same state of facts. In this case the witness was the attending physician, constantly seeing the patient from time to time, and the question put to him by the defendant’s counsel called for his opinion based upon his personal knowledge gathered from his frequent examinations of the deceased. It was, therefore, proper for the state to show that the witness had made contradictory statements at other times as to what his opinion was concerning the same state of facts, knowledge of which he had acquired in the manner stated. It was for the jury to determine what weight was to be given to the testimony concerning the contradictory statement, and whether it was sufficient to shake their belief in the testimony given by the physician in chief. It is urged also that the court erred in the admission of the testimony of certain witnesses, one of whom was the nurse of the deceased, to the effect that in answer to certain questions by her mother while the defendant was standing by the bedside she had as- . sented to an accusation by the mother that he had done the shooting. It is urged that the defendant did not understand that he was being charged with having shot his wife, but that his mother-in-law was trying to get his wife to so charge him; that immediately after the talk the defendant, in another room, denied the charge, and by what he said and did showed that he did not think that his wife had charged him, but did think that his mother-in-law was trying to get her to so charge him; and that under the circumstances he was not called upon, and it would have been unseemly for him, to have taken issue with anything his wife said or did or to have become involved in a controversy with his mother-in-law. These suggestions were very proper to be urged upon the jury with reference to the weight that was to be given to the testimony concerning the transaction by the bedside, but they do not affect its competency.

The court in its charge to the jury carefully preserved the rights of the defendant and cautioned them not to give undue weight to the situation disclosed. At the request of counsel for the defendant the court instructed the jury, before argument, as follows: “Testimony has been admitted in the trial of this case tending to show that on Saturday evening, January 11, 1913, a conversation between Mrs. Drake and her daughter, Helen Hoover, the deceased, was had in the presence and hearing of the defendant, Ralph Hoover, and that defendant was silent and left the room without speaking. You are instructed that such silence is not a confession by the defendant of the commission of the crime charged in the indictment in this case, or of any crime, and that in themselves that conversation and defendant’s silence are not sufficient to authorize a conviction of the defendant in this case. That evidence was admitted only for the purpose of allowing you to consider his conduct at that time and place, as tending, in connection with evidence of other facts, to prove the defendant guilty of the charge made against him by the indictment or included within its terms, and it is your duty to consider it for no other purpose whatever.”

In the general charge the court said to the jury: “Such evidence should be received and considered with care and caution, and with proper consideration of all circumstances and conditions that would be likely to influence the action of the defendant with a view to determining the motive that induced his silence, if you find he was silent. If it be doubtful whether the statements were perfectly heard or understood, by the defendant, or circumstances existed which might prevent a reply, or render it improper or inexpedient to reply, or if his silence may be attributable to any motive other than acquiescence in the truth of the statement to which his silent assent is claimed, the evidence would then be entitled to no weight or consideration for any purpose. It is your duty to follow the instruction of the court as to the purpose for which such evidence may be-considered, and it is your province to determine the weight to be given such evidence for the purpose stated.” The views we have expressed on the questions stated are fully sustained by the authorities cited in the briefs of counsel. There are other assignments, all of which we have carefully considered, but we have found no prejudicial error in the record.

As already stated, it is urged by the plaintiff in error that the evidence was all circumstantial and more consistent with the theory of suicide than murder. This view of the case was urged upon us with great earnestness and with reasoning that was persuasive. There was a great amount of testimony in the case, covering every phase of the unfortunate matter, to sustain the views of the different parties. Like most cases which rest upon circumstantial evidence, much is said in argument on both sides. This court does not consider the evidence in cases for the purpose of determining where the preponderance is, and there could be no better example of the propriety of the rule than is furnished by this case. The jury and the trial court saw the witnesses and heard their testimony. They had an opportunity to form an opinion and arrive at a conclusion as to the truth of the matter, which was far superior to the opportunity we have.

The court of appeals, in the performance of its duty to weigh the evidence, has affirmed the action of the triers below in that respect as in all others.

The judgment will be affirmed.

Judgment affirmed.

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


text:
    The State of Ohio v. Cameron et al.

      Criminal law — Embezzlement—Public moneys loaned to bank— . Aider and abettor — Knowledge—Sections 12873, 12874 and 13674, General Code.

    (No. 14392 —
    Decided October 15, 1914.)
    Exceptions by the Prosecuting Attorney to a Decision of the Court of Common Pleas of Franklin county.
    Isaac B. Cameron, former treasurer of state, was indicted at the April term, 1913, of the Franklin county court of common pleas upon four counts for embezzlement of state funds which were in his official custody on or about May 5, 1903, for safekeeping and disbursement according to law. The first count charges that he unlawfully converted fp feis own use $125,000; the second count charges that he converted the money to the use of The Columbus Savings & Trust Company; the third count that he lent the money to the said company; and the fourth count that he unlawfully deposited the money with said company. In each count it is jointly charged that Cyrus Ruling, as president of said company, unlawfully and wilfully did aid, abet, encourage and procure-Cameron to commit the crime therein alleged.
    Upon the motion of Cameron and Huling, with the consent of the prosecuting attorney, the court ordered the prosecuting attorney to file a “bill of-particulars,” which was done. In this bill the prosecutor sets forth a more particular statement of the transaction alleged in the indictment, and concludes by saying the court may treat the bill of particulars as part of the record when passing upon any demurrer or special plea that may be entered to the indictment.
    A demurrer was subsequently filed by each defendant, objecting, first, that no separate count charges an offense punishable by the laws of Ohio, and, second, that the intent is not alleged in any of-the counts. The journal recites that the demurrers to the indictment and bill of particulars came on to be heard and were argued and submitted. The court sustained each demurrer and discharged both of the accused.
    The prosecuting attorney brings the record here upon exceptions under the provisions of Section 13682, General Code,

      Mr. Edward C. Turner, prosecuting attorney; Mr. T. S. Hogan, attorney general, and Mr. James I. Boulger, for the exceptions.
    . Mr. James M. Butler; Mr. Smith W. Bennett; Mr. O. E. Harrison; Mr. J. J. Chester and Mr. M. A. Daugherty, against the exceptions.
   By the Court.

We will first consider the case of Mr. Cameron. It is ruled by the principle laid down in The State v. Baxter, 89 Ohio St., 269. That was a prosecution of an officer of the state for converting public money temporarily to his own use in violation of Section 12876, General Code. This court decided that the fact that the accused returned money of equal amount to the trust fund before his secret appropriation of it became known, was no defense to the charge of embezzlement, and that 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.

Counsel for Cameron do not question the validity of that principle, but they endeavor to distinguish this case from the Baxter case. They treat this case as founded upon Section 12873, General Code. As the prosecuting attorney and the court below so treated it, we shall so consider it for the purpose of passing upon the exceptions to the decision below.

By way of raising the distinction, which they would have us adopt, they recite the original enactment of this law in Section 15 of the “Act to establish an independent treasury of the state of Ohio,” passed April 12, 1858 (55 O. L., 49; 2 S. & C. Stats., 1610). That act is somewhat prolix, after the style of ancient statutes, and the codifiers have pruned its language and subdivided its contents without changing its essential structure or substance. It was reenacted in the Revised Statutes as Sections 6841 and 7299. Section 6841 was again subdivided into Sections 12873 and 12874 in the General Code and Section 7299 reappears as Section 13674. Section 12873 sets forth what acts shall constitute this crime of embezzlement, and the imprisonment and the fine which shall be inflicted upon the embezzler. Section 12874 provides that the fine shall operate as a judgment upon the estate of the embezzler and be enforced by execution or other process for the use only of the owner of the money or other funds so embezzled. Section 13674, now placed in the chapter entitled “Trial and Proceedings Incident Thereto,” under the subtitle “Evidence,” describes what facts shall be prima facie proof of the commission of the crime.

Our discussion will neither be simplified nor clarified by quoting here the old statute verbatim; it would occupy four pages of this report. The bone of contention will clearly appear by bringing together the three parts of this old law, in their original consecutive order and essential form, but purged of useless verbiage, as they have stood in the Revised Statutes for 35 years.

“Sec. 12873. Whoever, being charged with the collection, receipt, safekeeping, transfer or disbursement of public money * * * belonging to the state, * * * converts to his own use, or to the use of any other person, body corporate, association or party, or uses by way of investment in any kind of security, stock, loan, * * * or in any other manner or form, or loans with or without interest to a company, corporation, association or individual, or, except as provided by law, deposits with a company, corporation or individual, public money or other funds, controlled or held by him for safekeeping or in trust for a specific purpose, transfer or disbursement, or in any other way or manner, or for any other purpose, shall be guilty of embezzlement of the money * * * thus converted, used, invested, loaned, deposited or paid out, and shall be imprisoned in the penitentiary not less than one year nor more than twenty-one years and fined double the amount of money * * * embezzled. (R. S. Sec. 6841.)

“Sec. 12874. The fine, provided for in the next preceding section, shall operate as a judgment at law on all of the estate of the person sentenced and be enforced to collection by execútion or other process for the use only of the owner of the property or effects so embezzled, and such fine shall only be released or entered as satisfied by the person in interest as aforesaid. (R. S. Sec. 6841.)

“Sec. 13674. Failure pr refusal to pay over, or produce the public money, or part thereof, by an officer or other person charged with the collection, receipt, transfer, disbursement or safe-keeping of such money, or part thereof, whether belonging to the state, or a county, township, municipal corporation or board of education in this state, or other public money, or to account to, or make settlement with a legal authority, of the official accounts of such officer or person, shall be prima facie evidence of the embezzlement thereof. Upon the trial of such officer or person for the embezzlement of public money under any provision of law, it shall be sufficient evidence, for the purpose of showing a balance against him, to produce a transcript from the books of the auditor of state, auditor of the county or the records of the commissioners of the county. The refusal of such officer or person, whether in or out of office, to pay a draft, order or warrant drawn upon him by an authorized officer, for public money in his hands, or a refusal by a person or public officer to promptly pay over to his successor public money or securities on the legal requirement of an authorized officer of the state or county, on the trial of an indictment against him for embezzlement, shall be prima facie evidence thereof. (R. S. Sec. 7299)/'

Now, reading the sections as if they were one, counsel for Mr. Cameron say (to use their own language): “This statute means that the method of fraudulently appropriating public money in the manner set out in the statute shall constitute embezzlement. But there must be fraudulent appropriation. The owner must be deprived of his property. The officer must fail to account. There must be a default. It means that if the money is lost the officer will not be heard to say that he did not intend to embezzle it. That if it is lost he will be held for embezzlement.”

Here we have precisely the same question which was raised in the Baxter case, supra. The statute in that case, Section 12876, reads: “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.”

We held that (1) the temporary appropriation of the public money by an officer to his own use, with the intention of restoring it, is a conversion within the meaning of that statute; (2) that he thereby violates that statute though he be not a defaulter, and (3) the return of the money will not expunge the guilt.

Counsel do not ask us to reverse that ruling, but they would persuade us that the three sections above quoted, taken together as one, define' a different offense than that defined in Section 12876 and require that the money converted, loaned or deposited be lost and not recovered into the state treasury, before the embezzlement is complete.

It would be a tedious task and a futile consumption of time and space, if we would review in detail the able argument of the learned counsel of •the accused in their exhaustive brief of 225 pages. They give us a critical analysis and comparison of all the legislation of Ohio upon the subject of embezzlement from the year 1836 to the present time, together with the judicial utterance of the courts of this and many other states upon every phase of the particular problem at hand. We must content ourselves with a statement of their principal and controlling proposition.

It is in short this: The interweaving of that part, which appears above as Section 12874, into the very web and woof of the original statute of 1858, makes that a part of the very definition of the crime, and manifests that the legislative mind contemplated that the converting, using, loaning, investing or depositing of public money, “which is hereby declared to be a high crime,” must result in its loss to somebody.

They observe that if there be a crime, then a fine of double the amount embezzled must be inflicted, as a part of the penalty, for the use of the owner of the money. They argue that this implies that the owner shall have lost his money, for if the money be returned with interest, and if the officer who appropriated it only temporarily must, in addition to its return, pay to the owner double the amount so returned as a penalty for the temporary misappropriation, then the owner, be he a citizen or the state itself, recovers his money threefold.

Grant this is a possible result of the construction contended for by the state, is it such cruel and unusual punishment, in contravention of the constitution of the state (Article I, Section 9), as demonstrates that the legislature did not intend such a result? The student who has gleaned his knowledge of the history of the common law from Blackstone only, well knows that treble damages have been awarded for many forms of mere civil delict, from the days of the Saxon freemen down to the present times. Nay, more, in most if not all of the states of this Union treble damages are still allowed for trespass, waste, nuisance and other private injuries, even without violence or intentional wrong; and in our own state today there is no limit on the punitive damage a jury may award, in addition to the just recompense for personal wrongs involving the elements of fraud, malice, insult or wanton cruelty.

Our attention is called to the circumstance that the description of the evidence which is sufficient to make prima facie proof of the crime, was originally included in the section of the statute which defined the crime itself. But this does not make that description of the evidence a part of the definition of the crime. The latter belongs to the domain of positive law, while the former is a part of the adjective law. The function which each of the two things performs in the legal system determines its essential character. The former is now in the proper place in the Code, where it belongs according to logical classification. Confusion of ideas arises when we blend the two distinct concepts in thought as one, and this leads to false interpretation. The purpose of legal analysis is to discriminate and distinguish between things which are separable and different. The authors of the law did not blend and confuse the crime with the evidence and the remedy, although they combined the description of all three in a single section; one follows the other and each is complete in itself, thus: First, the crime; second, the penalty and the use to be made of the money penalty; and third, the prima facie evidence of the commission of the crime. Each is as distinct as if they had been enacted as separate sections, as they now appear in the more scientific arrangement of our Code.

Nor is there any force in the argument that the legislature never intended to inflict a fine in double the amount embezzled, to be enforced for the use of the owner, if the owner’s money be returned before prosecution or conviction. This is but another form of the defense presented in the Baxter case, namely, that reparation obliterates the crime. We rejected that defense, holding that the unlawful appropriation of public money for any purpose not allowed by law constitutes the crime. So in this case, the crime was complete before the money was restored, and the penalty prescribed by the law must follow conviction, no matter for whose use it is recovered, nor whether it repairs the loss threefold or only twofold. The prosecution is not to recompense the loser but to punish the offender. The circumstance that the statute incidentally seeks to enforce repayment of the money to the loser, is just as immaterial to the question of the guilt of the accused as is the other fact that the accused has already repaid the money. The material fact, admitted by the demurrer to be true, is that this constitutional officer of the state, having in custody public money for safekeeping and disbursement according to law, lent the money to a bank at interest for his own and the bank’s use. This was a breach of trust which the statute plainly prohibits.

As to the case of Huling, the charge in the indictment is that he unlawfully and wilfully aided and abetted the defendant state treasurer in the doing of the acts which are charged against the latter in the indictment.

There is no allegation that any act done by Huling in aiding and abetting the defendant Cameron was done with knowledge of the source of the funds deposited nor of their ownership. There is no allegation from which the law would raise a presumption of such knowledge. Huling sustained no official relationship to the funds. He had no official duty to perform with reference to them. The offense defined by the statute on which the indictment is based being one that arises out of the acts of an official who held the funds as such official, in order that one who held no such official connection with the funds can be held as an aider or abettor of such official, it is essential that he have knowledge of the character of the funds unlawfully dealt with.

Guilty knowledge is an essential ingredient of crime. Birney v. The State, 8 Ohio, 230; Kilbourne v. The State, 84 Ohio St., 247, 253, et seq.

The instances in which it is not necessary to affirmatively aver such knowledge are those in which the declared purpose of the statute discloses the legislative intent to the contrary, as in the case of the sale of adulterated food.

The exceptions as to Cameron, defendant, are sustained, and as to Huling are overruled.

Nichols, C. J., Johnson, Wanamaker and Wilkin, JJ., concur as to Cameron, and Si-iauck, Johnson, Newman and Wilkin, JJ., concur as to Huling. Donahue, J., concurs in the judgment overruling the exceptions as to Huling.


author: Donahue, J.

text:
    The State, ex rel. Scott, v. Swan et al., Deputy State Supervisors of Elections.

      Elections — Objections to nominations — Court will not require board of elections — To hear and determine objections, when.

    A court will not compel a board of deputy state supervisors of elections to. hear and determine objections to nominations of candidates for office, filed fifty-five days after the primary election and after the time in which the state supervisor of elections is directed by statute to certify the names of candidates with form of ballot to the board of deputy state supervisors of elections of the several counties of the state.
    (No. 14759 —
    Decided October 22, 1914.)
    In Mandamus.
    On the 20th of October, 1914, the relator, L. H. Scott, filed a petition in this court, praying that a peremptory writ of mandamus issue, commanding defendants as deputy state supervisors of elections in and for Harrison county, Ohio, to recount and recanvass the ballots cast August 11, 1914, for the nomination of the Republican candidate for representative in the general assembly of the state of Ohio. The petition avers, among other things, that he was duly certified by petition as candidate at the Republican primary held in said county- on August 11, 1914, for that office; that one Rupert R. Beetham was declared by the deputy state supervisors of elections to have been nominated at said primary; that on the 5th day of October, 1914, the relator filed with the deputy state supervisors of elections of Harrison county, Ohio, a protest against and objection to the announcement of the nomination of Rupert R. Beetham, for the reason that the votes for said nomination were not properly counted and that the canvass made by the precinct judges did not correctly state the result of the primary election; and that if the votes had been truly counted and correct returns -made, it would be shown that relator received the largest number of votes for nomination to that office.’ He further avers that seven or more ballots in the Green township precinct were illegally counted for Rupert R. Beetham, the opposing candidate having the highest number of votes next to relator; that one or more ballots were illegally cast in Georgetown precinct and counted for Beetham, who, in the final result of the canvass, had a majority of but three votes. Relator further avers that he requested the deputy state supervisors of elections to open the ballot box wherein the votes of said precinct were deposited and to recount them in the manner provided by law; that the deputy state supervisors of elections considered said objection and protest, and being unable to arrive at a decision the matter in controversy was submitted to Hon. Charles H. Graves, as state supervisor of elections, who con-" sidered the question, summarily decided the same, and ordered the deputy state supervisors of elections to make a recount of all the ballots, determine the correct result of the vote for this office and place upon the ballot at the November election the name of the candidate found to have received the greatest number of votes; that the deputy state supervisors of elections prepared to follow the instructions and order of the state supervisor of elections, but before they could complete the work in this regard a temporary restraining order was granted by the common pleas court of Harrison county, restraining them from making such count as ordered by- the state supervisor of elections, and subsequently this temporary restraining order was made permanent; that the deputy state supervisors of elections refused to recount the votes' because of this permanent injunction by the common pleas court of Harrison county, Ohio, and for no other reason. The defendants entered their voluntary appearance to this action and waived the issuance of an alternative writ of mandamus, and thereupon filed a general demurrer to the petition.

      Mr. T. S. Hogan, attorney general, and Mr. J. 1. Boulger, for relator.

      Mr. C. W. Pettay and Mr. B. W. Rowland, for defendants.
   Donahue, J.

The question here involved is one arising in the course of the nomination of candidates for county offices, which, under the provisions of Section 5006,. General Code, comes within the jurisdiction of the board of deputy state supervisors of elections of Harrison county. Where the jurisdiction of the board of deputy state supervisors of elections or of the state supervisor of elections has been properly invoked by timely objections, courts have no power to interfere by injunction to prevent the carrying into effect the final judgment of the state supervisor or the deputy state supervisors of elections, but the carrying of this decision into effect by the proper officers then becomes an official duty imposed by law, which may be enforced in the courts of this state by mandamus. Chapman v. Miller et al., 52 Ohio St., 166.

There is some confusion in the statutes as to when objections or other questions arising in the course of nomination of candidates shall be made.Section 5005, General Code, provides that objections in writing to certificates of nomination and nomination papers must be made within five days after the filing thereof. That section was enacted by the legislature prior to the adoption of the amendment to the constitution of the state requiring all nominations for elective, state, district, county and municipal offices to be made at direct primary election or by petition as provided by law. Section 4992, General Code, as it then read, authorized the nomination of candidates for public office to be made by a convention, caucus, meeting of qualified electors, primary election by such electors or the central or executive committee representing a political party, which at the next preceding election for state officers polled at least one per cent. of the entire vote cast in the state, and further provided that “The nominations so made to be valid must be filed as hereinafter provided.” The next section (Section 4993) and subsequent sections in that chapter provide what these certificates of nomination shall contain, and further provide for the nomination of candidates for certain public offices by nomination papers signed by a designated number of electors.

Original Section 5004 provided when and with whom these certificates of nomination and nomination papers of candidates should be filed. Section 4992, General Code, was amended April 10, 1913, to conform to the constitutional amendment requiring all nominations to be by direct primary election or by petition as provided by law, so that this section and the subsequent sections of that chapter deal only with nominations by petition. Nominations by direct primaries are controlled by Sections 4949 to 4991-1, inclusive, as amended April 17, 1913 (103 O. L., 476-487).

On the 2d day of February, 1914, the general assembly of Ohio amended Section 5004, General Code, but retained the words “certificates of nomination.” It is clear that this section can have no application whatever to nominations made by direct primary elections, for that is fully provided for in Chapter 6 of Title 14, Part First, General Code, being Sections 4949 to 4991-1, inclusive, as amended April 17, 1913 (103 O. L., 476). Sec. tion 5005, General Code, relates solely to the cer. tificates of nomination and nomination papers filed under the provisions of Section 5004. If the former section has no application to candidates nominated at direct primary elections, it follows that Section 5005 does not limit the time in which objections may be filed in writing to the nomination of candidates nominated at such primary election.

It is insisted-by the relator that Section 5090, General Code, applies to both primary and general elections/ This section requires that all ballots counted by the judges and clerks of elections at a general election shall be carefully preserved for thirty days, and at the expiration of that time destroyed, unless a contest of election is then pending. In such case they shall not be destroyed until the contest is finally determined. In this particular case the ballots cast at this primary election were preserved in the manner and for the length of time required by Section 5090, General Code. It was also conceded in the argument of this case that these ballots have not’ yet been destroyed. Whether Section 5090, General Code, has any application to primary elections is in nowise important in this case. It appears from the petition that no written objections were filed by the relator with the board of deputy state supervisors until fifty-five days after the primary election was held, and this was less than forty days before the next general election. We are not disposed to hold, at this time, that the board of deputy state supervisors of elections has no jurisdiction whatever to hear and determine objections filed or questions raised in the course of the nomination of candidates for public . office filed less than forty days before the next general election. It is sufficient to say that a court will not compel it by peremptory writ of mandamus to consider and determine objections filed or questions raised after the time the statutes of the state direct the state supervisor of elections to certify the names of candidates and form of ballots to the board of deputy state supervisors of elections of the several counties of the state.

It is averred in the petition that the board of deputy state supervisors of elections considered the objections filed with it, and being unable to arrive at a decision, submitted the question in controversy to the state supervisor of elections, who summarily decided the question. It is insisted, however, on the part of the defendant, that these objections were never submitted to the state supervisor of elections, and by agreement of counsel the letter written on behalf of the board of deputy state supervisors of elections directed to the secretary of state and his reply to this letter, are submitted to this court with the request that that question be determined now, although it is not raised by the demurrer to the petition but would be raised immediately by an answer if the demurrer to the petition should be overruled. In view of the urgent necessity for an early disposition of this case the court has considered this question so presented by agreement of counsel.

It is apparent from the letters submitted to this court that the jurisdiction of the state supervisor of elections was never properly invoked, and that he did not decide or attempt to decide the controversy. Objections filed by relator challenge the correctness of the count of the ballots cast in certain precincts in that county at the primary election for Republican candidate for representative to the general assembly of Ohio. The determination of this question determines who is legally nominated for this office by the Republicans of that county. The question of the duty of the board in reference to these objections is merely preliminary to the determination of the real question presented by the objections.

The board of deputy state supervisors caused a letter to be written to the secretary of state requesting advice in reference to its duties in the premises. This letter in this respect is as follows: “Kindly advise us what to do in the case, as we are not sufficiently versed in the law to act on our own judgment.” The state supervisor of elections, on receipt of this letter, did not determine the controversy in any particular whatever, but immediately wrote to the deputy state supervisors of elections of Harrison county directing their attention to that portion of Section 5006, General Code, which requires it to decide the objections, and further advised that in order to decide these objections it would be necessary to recount the ballots cast at the primary election. If the state supervisor of elections had understood and believed that the objections had been referred to him for decision for the reason that the board of deputy state supervisors could not agree or could not arrive at any decision in reference thereto, he probably would have proceeded to decide the controversy, and that would have been the end of it. If he had decided the question it would have been folly to instruct the board of deputy state supervisors to decide the same controversy, for the jurisdiction of the state supervisor of elections could not attach until the jurisdiction of the board of deputy state supervisors ended. However that may be, the state supervisor of elections is not here seeking to enforce any order or judgment made by him in reference to this controversy. Nor is the board of deputy state supervisors of elections here asking that it be relieved from obeying the injunction granted by the common pleas court and be permitted to carry into effect the judgment it arrived at in reference thereto.

This action is brought by the relator against the board of deputy state supervisors of elections in his own behalf and in his own private interest. Had the relator been vigilant in the assertion of his own rights, this court would be equally vigilant in compelling by mandamus the election officers to do and perform any official duty clearly imposed upon them by law.

Writ refused.

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


text:
    The State, ex rel. The London Waterworks Co., v. Burris, Treasurer.

      Municipal corporations — Ordinance granting franchise for furnishing water supply — Section 30/82, General Code — Public utility rates — Section 614-44, General Code — Referendunp^-Section 4227-2, General Code — Municipality liable, -when.

    (No. 14756 —
    Decided October 22, 1914.)
    In Mandamus.
    Messrs. Murray & Emery, for relator.

      Messrs. Crabbe & Johnson, for respondent.
   By the Court.

This is a proceeding in mandamus instituted in this court.

The relator, a corporation organized under the laws of Ohio, is a company for' supplying water for public and private consumption and is and has been for a number of years established in the village of London.

On or before February 7, 1913, the council of said village by ordinance duly passed fixed and regulated the price for the period of seven and one-half years which relator might charge, collect and receive from said village for maintaining its fire hydrants and furnishing water for fire protection, as well as fixing and regulating the price it might charge to private consumers in said village for water furnished to them. This ordinance provided among other things that the relator might charge and receive from said village for the maintenance and use of one hundred and twenty-two hydrants, and for furnishing water for fire protection, $4,270 per annum, payable in quarterly installments of one-fourth thereof, and for each additional hydrant over one hundred and twenty-two hydrants, which might thereafter be installed, $35 per annum, one-fourth thereof payable at the end of each quarter.

On or about April 12, 1913, the relator accepted the terms of said ordinance and assumed the obligations thereunder. After the acceptance of the terms and provisions of the ordinance, the relator filed with the then public service commission of Ohio a copy of the schedule of its rates and prices as fixed by said ordinance, and no complaint was filed with said commission by said village or any officer or citizen thereof.

On the.....day of September, 1914, the relator presented to the council of said village, at its regular meeting, a bill for its services in maintaining said fire hydrants and furnishing water for fire protection for the quarter of a year, amounting to $1,067.50, which was allowed by the council and the same ordered to be paid, and the clerk of the village thereupon issued his warrant upon the treasurer for said sum of $1,067.50, which warrant, properly endorsed by relator, was presented to defendant, Orville C. Burris, treasurer of said village, for payment, which defendant refused and still refuses to make, although there were at that time and still are sufficient funds in his hands to the credit of the fund upon which said warrant is drawn and not appropriated to any other use or purpose to pay the same.

The relator asks that a peremptory writ be issued by order of this court commanding the defendant to pay said warrant and for such other relief as in justice and equity he may be found entitled.

The respondent filed an answer in which he averred that none of the provisions of the ordL nance of February 7, 1913, was submitted to a vote of the electors of the village of London, it being his contention that the provisions of the ordinance are not binding upon the municipal corporation because the same have not been ratified by a vote of the electors thereof.

Under the provisions of Section 3982, General Code, the council of a municipality in which there is established a company for supplying water for public and private consumption, may regulate from time to time the price such company may charge for water for public or private consumption or for fire protection.

Section 614-44, General Code, authorizes a municipal corporation in which a public utility is established, at any time prescribed by law, to fix by ordinance the price, rate, charge, toll or rental that such public utility may charge, demand, exact or collect therefor for an ensuing period, as provided in Section 3982, General Code.

The council of the village of London was therefore authorized to pass the ordinance of February 7, 1913, subject to the approval or rejection thereof by the qualified electors of the village, in the manner prescribed by Section 4227-2, General Code. The referendum was not invoked by the electors of the village in this case nor was any complaint filed with the public service commission of Ohio under Section 614-44. The relator accepted the rates and prices fixed by the ordinance of the council of the .village, and the referendum not having been invoked and no complaint having been filed with the public service commission, the same became operative and binding.

It appears from the petition that the relator maintained the fire hydrants and furnished water for fire protection to the village of London for the quarter of year under the requirements of said ordinance, and a bill for such services was presented and allowed by council and ordered to be paid. The clerk of the village issued his warrant, and there was and is in the hands of the treasurer of the village sufficient funds to the credit of the fund upon which said warrant is drawn and not appropriated to any other use or purpose to pay the same. The warrant having been properly endorsed and presented by the relator, it was the duty of the defendant to pay the same.

Peremptory writ allowed.

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


author: Johnson, J.

text:
    Porter et al., Trustees, v. Hopkins, Treas., et al. Board of Education v. Hopkins, Treas., et al. The State, ex rel. Pogue, Pros. Atty., v. Hopkins, Treas., et al. The City of Cincinnati v. Hopkins, Treas., et al.

      Constitutional law — Workmen’s compensation act — Sections 1465-62 to 1465-67, General Code (loy O. L., 72) — State, county, city and township employes.

    The provisions of Sections 15 to 20 of the act passed February 26, 1913, known as the workmen’s compensation law (103 O. L., 72), constitute a valid exercise of the legislative power not repugnant to the constitution or to any limitation contained therein.
    (Nos. 14761, 14762, 14763 and 14764 —
    Decided November 11, 1914.)
    Error to the Court of Appeals of Hamilton county.
    These proceedings were all brought in the court of common pleas of Hamilton county. Their object was to test the constitutionality of certain sections of the law known as the workmen’s compensation act (103 O. L., 72).

    The allegations in the petitions of the several cases are substantially the same. After alleging the corporate capacity of the plaintiffs and that the several defendants are the duly qualified and acting officials as stated, it is alleged that the said municipal corporation and the different political subdivisions named in the different petitions had suffered a deduction of the various amounts named in the petitions from their taxes by the auditor of Hamilton county, for contribution to the state insurance fund, under the provisions of the'act referred to, passed by the general assembly on the 26th of February, 1913, approved March 14, 1913, and filed in. the office of the secretary of state on March 17, 1913; that said deduction resulted from the fact that on or about the 13th of March, 1914, the auditor of Hamilton county drew a warrant upon the treasurer of said county, payable to the state treasurer, for the respective premiums due the state from the county of Hamilton and the various political subdivisions named in the petition for payment into the state insurance fund; that these warrants were sent to the auditor of state and delivered by him to the treasurer of state, and that the auditor of Hamilton county has charged these amounts to the various political subdivisions named and deducted them from the taxes collected by the treasurer.
    It is averred that neither the city nor the other subdivisions levied any taxes for payment into the state insurance fund, and that the plaintiffs were without authority of law to levy any taxes for such expenditure during the year 1914.
    It is averred that the act referred to, as to Sections 16, 17, 18, 19 and 20 thereof, is unconstitutional and void, in violation of Section 5 of Article XII of the Constitution of Ohio, and in violation of Section 35 of Article II of the Constitution of Ohio, and that the warrant drawn by said county auditor on said county treasurer, payable to said state treasurer, under said Section 19, is void and of no effect whatsoever and is a diversion and misapplication of public funds; that the plaintiffs have demanded of the said county auditor that he issue his warrant to the treasurers for these respective amounts, which he has refused to do.
    It is further averred that by reason of these unlawful acts irreparable injury will result to the several political subdivisions; that the plaintiffs are without other remedy at law; that unless enjoined by an order of the court the county treasurer will cash, pay and honor the said warrants, and said state treasurer will present and demand collection thereof, and said state auditor will credit the same, to the amount thereof alleged to be due from said several plaintiffs, to the state insurance fund and deliver the said warrants to said state treasurer for collection.
    The prayer contained in the several petitions is that the treasurer of Hamilton county be enjoined from paying the warrants; that the state treasurer be enjoined from collecting them; that the state auditor be enjoined from delivering the warrants to the state treasurer and from crediting the state insurance fund with the respective amounts; that the state auditor and the state treasurer be required to deliver the warrants to the auditor of Hamilton county, and that the latter be required to cancel such warrants; that the court adjudge the same to be null and void, and for all other proper relief.
    To these petitions the defendants below filed demurrers. These demurrers were sustained by the court of common pleas and the actions were dismissed. On appeal the court of appeals of Hamilton county also sustained the demurrers and dismissed the petitions. Error is prosecuted here to reverse the judgments below.

      Mr. Washington T. Porter; Mr. Walter M. Schoenle, city solicitor; Mr. Charles A. Groom, assistant city solicitor; Mr. Thomas L. Pogue, prosecuting attorney, and Mr. John V. Campbell and Mr. Carl M. Jacobs, Jr., assistant prosecuting attorneys, for plaintiffs in error.

      Mr. Timothy S. Hogan, attorney general, and Mr. James I. Boulger, for defendants in error.
   Johnson, J.

Counsel for plaintiffs in error entertain the view that Sections 15 and 16 of the statute referred to are unconstitutional because they violate Section 35 of Article II and Section 5 of Article XII of the Constitution. Section 35 was adopted in September, 1912, and provides: “For the purpose of providing compensation to workmen and their dependents, for death, injuries or occupational diseases, occasioned in the course of such workmen’s employment, laws may be passed establishing a state fund to be created by compulsory contribution thereto by employers, and administered by the state, determining the terms and conditions upon which payments shall be made therefrom, and taking away any or all rights of action or defenses from employes and employers; but no right of action shall be taken away from any employe when the injury, disease or death arises from failure of the employer to comply with any lawful requirement for the protection of the lives, health and safety of employes. Laws may be passed establishing a board which may be empowered to classify all occupations, according to their degree of hazard, to fix rates of contribution to such fund according to such classification, and to collect, administer and distribute such fund, and to determine all rights of claimants thereto.”

The statute referred to was passed under the above provision of the constitution. By Section 13 it is provided that the following shall constitute employers subject to the provisions of the act: “1. The state and each county, city, township, incorporated village and school district therein. .2. Every person, firm, and private corporation including any public service corporation that has in service five or more workmen or operatives regularly in the same business, or in or about the same establishment under any contract of hire, express, or implied, oral or written.” Section 14, subdivision 1, defines the terms “employe,” “workman” and “operative” in the service of the state and its said subdivisions. Section 15 requires the state and its said subdivisions to contribute to the state insurance fund in proportion to the annual expenditure of money by each for the service of persons described in Section 14, and Section 16 provides that the amount to be so contributed by the state itself and its subdivisions shall be, unless otherwise provided by law, a sum equal to one per cent, of the amount expended by the state, and for each county, city, incorporated village, school district, or other taxing district respectively, during the next preceding fiscal year for the services of persons described in subdivision 1 of Section 14. The law requires all other persons and corporations subject to its operation to pay into the state insurance fund semi-annually the amount of premium determined and fixed by the state liability board of awards for the employment or occupation of such employer, and provides for the administration and distribution of the fund to persons killed or injured in occupations or to their dependents. Plaintiffs call our attention to the fact that the state and its political subdivisions are required by Section 16 to pay a fixed part (one per cent, of their payrolls), while all other persons or corporations subject to the provision of the law pay in accordance with the rate fixed by the board after classification of the employment involved and ascertainment of the degree of hazard.

It is contended, substantially, that the difference • in the method, by which the amount to be paid by the state and its subdivisions is ascertained from that by which the amount to be paid by all other employers is ascertained, renders Sections 15 and 16 of the act unconstitutional. Plaintiffs argue that those sections provide for a discrimination which is unauthorized by Section 35, Article II of the Constitution.

It is to be observed that the act referred to is amendatory of the act of May 31, 1911 (102 O. L., 524). The latter statute provided for the creation of a state liability board of awards which should establish a state insurance fund from premiums paid by employers and employes in the manner provided in the act. It was a humanitarian measure, passed in response to a widespread public belief that the action for personal injuries, by the employe against employer, no longer furnished a real remedy, and that it did not meet the economic and social requirements which had resulted from modern industrialism.

This court in State, ex rel, v. Creamer, 85 Ohio St., 349, in upholding the constitutionality of that statute, pointed out that it was not compulsory or coercive, but that, while it did not compel the employer and employe to operate under its provisions, inducements were held out in the enactment to facilitate and make desirable its acceptance by both. The general scheme of the law and the provisions for the collection, control and disbursement by the state, of the insurance fund provided for by its terms, were sustained as a valid exercise of the police power by the legislature, as the depositary of the legislative power of the state. After the enactment and the decision just referred to, Section 35, Article II, was adopted by the people as an amendment to the Constitution. The obvious purpose of the amendment was to empower the legislature to enlarge the scope of, and to fortify the purpose intended to be accomplished in, the original act. The section enables the legislature to pass laws “establishing a state fund to be created by compulsory contribution thereto by employers, and administered by the state, determining the terms gnd conditions upon which payments shall be made therefrom.” It is manifest that the purpose was to leave no doubt as to the power of the legislature to pass a compulsory act providing for an insurance fund which should be contributed to by employers only. The section further provides that the laws so passed may provide for the taking away of any or all rights of action or defenses from employes and employers subject to certain conditions named. It is then provided that laws may be passed establishing a board which may be empowered to classify all occupations according to the degree of hazard, to fix rates of contribution to such fund according to such classification and to collect, administer and distribute such fund and determine all rights of claimants thereto.

It is argued that the employes of the state and its subdivisions are included in the occupations referred to in Section 35, and must be included within the provisions of any law with reference to their classification.

There are two complete sentences in Section 35 and each confers authority to prescribe a complete plan. The first authorizes the establishment of the state insurance fund and the determination of the terms and conditions on which payments shall be made therefrom. The second permits the classification of occupations and the distribution of the fund. The state and its subdivisions and public employes are entirely distinct from employers and employes engaged in private business occupations. It may well be doubted whether the term “occupation” can be properly applied to the duties of one in the service of the state. The state and its subdivisions are not engaged in an occupation in the usual acceptation of that term. The political subdivisions of the state are merely instrumentalities to carry out the purposes of government, and their liabilities are entirely different in their nature and scope from those of employers in private business. Those liabilities are, very largely, purely statutory. It is to be noted that the statute in question in this case was not enacted to enlarge liability, but to provide compensation for injuries to employes without reference to any legal liability, “provided the same was not purposely self-inflicted.” It is apparent that the general assembly regarded the state, its subdivisions and employes in the separate and distinct respects above indicated. Section 20 of the law provides that the board shall keep a separate account of the money paid into the state insurance fund by the state and its subdivisions and the disbursements therefrom on account of injuries to public employes. The board is further required by Section 17 to communicate to the general assembly on the first day of each regular session an estimate of the amount necessary to be contributed to the fund by the state during the next two years. These provisions are obviously for the purpose of enabling the legislature to provide such an insurance fund for the employes of the state and its subdivisions as would be sufficient to maintain the separate account above indicated. We think it clear that there has been no conflict raised between the sections of the statute named and the constitutional provision quoted. The maintenance and conduct of an insurance fund by the state for the purposes above described would also be sustained as a valid exercise of the police power. State, ex rel., v. Creamer, supra. Nor do we find that this statute offends Section 26 of Article II of the Constitution. It is uniform in its operation throughout the state. It brings within its terms all employers and employes within its reason and operates equally upon all.

The authorities agree that a statute is general and uniform if it operates equally upon every person and locality within the circumstances covered by the act, and when a classification has a reasonable basis it is not invalid merely because not made with exactness or because in practice it may result in some inequality. Lindsley v. Natural Carbonic Gas Co., 220 U. S., 61; City of Cincinnati v. Steinkamp, Trustee, 54 Ohio St., 284, 295; State, ex rel., v. Creamer, 85 Ohio St., 349, 405.

It is further contended that by this statute the public funds are diverted from the purpose for which they were levied and collected, in contravention of Section 5 of Article XII of the Constitution, which provides that no tax shall be levied, except in pursuance of law; and every law imposing a tax, shall state, distinctly, the object of the same, to which only, it shall be applied. The case of State, ex rel., v. Edmondson, 89 Ohio St., 351, is cited in support of this view. In that case the law of April 2, 1908, provided for the creation of a fund by each county for the relief of its own blind. The blind fund of each of the several counties was created by levy expressly provided for by the statute, which distinctly stated “the object of the same.” Section 8 of the law of 1913 on the same subject required the treasurers of the different counties to transfer to the state treasurer all moneys in their possession, or that might come into their possession, under the law of 1908, and the law of 1913 provided for the use and distribution of these moneys as part of a fund to be expended for the purposes of the entire state. It was held that this diversion of the taxes levied by the different counties pursuant to law was a violation of the provisions of the constitution quoted above.

No such invalidity exists in the act we have under examination. It fixes a certain charge or debt which is to be paid by the several subdivisions named, the amount of which is to be deducted from the taxes collected before they are distributed by the proper ministerial officers. The maintenance of contingent and general funds for general purposes is provided for by statutes which are familiar. The municipal and other subdivisions are fully empowered to raise such funds. It would be wholly impracticable to specifically name in the different budgets the amount to be raised for each specific item. There are many incidental charges which are necessarily taken care of out of the funds of the character referred to as the needs arise. The fact that the amount raised does not meet the exact requirements from time to time and that some inconvenience may arise does not affect the validity of the statutory requirements. These provisions and the procedure required to be followed pursuant thereto are fully detailed in the briefs of counsei. It was the duty of the taxing officers of the different subdivisions to provide for such general and contingent funds in accordance with the provisions of the law. Commrs. of Champaign County v. Church, etc., Admr., 62 Ohio St., 318; Board of Health v. Greenville, 86 Ohio St., 1; Brissell et al. v. State, ex rel., 87 Ohio St., 154, 168.

Finding no error in the record the judgments below are affirmed.

Judgments affirmed.

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


text:
    The State, ex rel. Jewett, v. Sayre, Auditor.

      County commissioners — May compound or release — Claim for breach of road contract — Section 24I6, General Code — Pro tanto pay upon abandonment of road improvement — May be allowed or rejected, when — Contract of settlement irrevocable, when — Cannot be rescinded by resolution, when.

    1. The claim of a county for damages against a contractor for breach of contract for a road improvement is a debt due the county within the meaning of Section 2416, General Code, which the board of county commissioners may compound or release in whole or in part.
    2. Where a contractor wholly abandons a contract for a road improvement upon the claim that the contract is impossible of performance by reason of the nonexistence of the material required by the contract and demands pay pro tanto for the value of the material furnished and labor performed in part performance of the contract before discovering that the contract is impossible of performance, such a demand may be the subj ect of a legal claim against the county which the board of county commissioners has the authority to pass upon and allow or reject in whole or in part.
    3. Where there is a debt due the county that the board of county commissioners under authority conferred by Section 2416, General Code, may compound or release in whole or in part, and the debtor in good faith is making a claim against the county that the board of county commissioners has the right and authority to allow or reject in whole or in.part, a contract made and entered into by the board of commissioners with the debtor by which the debtor is released from the payment of all or part of the debt due the county in consideration of his releasing the county from liability for all or part of his claim against the county, is binding upon the county and the debtor alike, and neither can be released from the terms of such contract of settlement without the consent of the other contracting party.
    4. A resolution adopted by the board of county commissioners subsequently to the making of such a contract of settlement, and without the consent of the other contracting party, purporting to set aside and rescind the contract of settlement theretofore made and entered into does not effect a rescission of the contract.
    (No. 14651 —
    Decided November 17, 1914.)
    In Mandamus.
    On the 14th day of May, 1913, W. O. Jewett entered into a contract with the county commissioners of Franklin county, Ohio, to furnish material and perform all work and labor necessary to build and complete the Boehm road in a good and workmanlike manner, from the Sunbury pike easterly to Harlem road, thence southward to C. Harbarger road, thence east to Central Village road, in Blendon and Plain townships, all materials to be furnished and work done according to plans and specifications, which were made a part of the contract, and to be completed by the 31st day of December, A. D. 1913, for which material and labor the county commissioners of Franklin county agreed to pay to W. O. Jewett certain specified prices for excavation and materials ággregating the sum of $40,-566.05. This compensation was to be paid from time to time upon estimates, the county commissioners to retain 10 per cent, of the contract price until the final completion of the work.
    On the 17th day of May, 1913, a bond in the sum of $20,285, conditioned for the faithful performance of this contract, was executed by W. O. Jewett, with two sureties, and delivered to the county commissioners. The .plans and specifications made a part of this contract provided among other things that “The first layer shall consist of crushed sandstone obtained from quarries to be secured and de-' veloped by the contractor herein. The quality of the local sandstone shall be approved by the engineer before being placed on the road.”
    The contractor entered upon the performance of this contract and constructed part of the road improvement in accordance with the ’ plans and specifications attached to the contract and made a part thereof, and then abandoned the contract, notified the commissioners that he had abandoned all efforts to complete the same, assigning as' a reason for such abandonment that the contract was impossible of performance because the material required by the terms of the contract, to be used in making this improvement, did not exist in sufficient quantity to complete the same, and demanded from thé county commissioners pay pro

      tanto, for the material furnished and labor performed in part performance of the contract before discovering that the same was impossible of complete performance.
    On the 20th day of May, 1914, this claim of the contractor was presented to the board of county commissioners, who, upon examination and consideration thereof, found as a fact and declared by resolution that the materials specified in the plans and specifications for said road improvement could not be obtained in such quantity and quality as required in the plans and specifications, and, thereupon, by resolution, entered into a contract of settlement with said contractor, by the terms of which the board of county commissioners ordered paid to W. O. Jewett out of the treasury of the county the •sum of $1,516.96, if he would accept the same in full satisfaction of his claim against the county for compensation pro tanto for that part of the material furnished and work already performed and release the' county from all other claims for and on account of this material furnished and labor performed; and thereupon the- said W. O. Jewett consented in writing to the terms and conditions imposed by this resolution, and did then and there release the county from all further payment or liability to him by reason of the material furnished and labor performed in part performance of the contract before the discovery that complete performance was impossible; and thereupon, upon the consent in writing of the contractor to the terms of the proposition contained in the resolution and the release in writing by the contractor of the county from all further claims and liability under this contract, the county commissioners directed the payment to the contractor the said sum of $1,516.96, ordered and directed the county engineer to revise all the plans and specifications for the improvement of this road and directed the clerk of the board of county commissioners to advertise according to law for bids for the completion of this improvement. The county auditor refused to issue a warrant to W. O. Jewett in compliance with the order of the commissioners for the sum of $1,516.96, or any other sum, and thereupon Jewett as relator filed in this court a petition in mandamus to compel the auditor of Franklin county to issue his warrant to him for the payment of $1,516.96.
    To the petition of the relator the defendant, auditor of Franklin county, filed an answer, admitting the adoption of the resolution by the board of county commissioners purporting to authorize payment to the relator of $1,516.96 in full satisfaction and liquidation of all claims against the county for material furnished and labor performed by Jewett on this road improvement, and averring among other things that after the relator entered into the performance of the work he discovered he had bid too low for sandstone and endeavored'to get limestone substituted for sandstone and a higher price allowed therefor. Failing to secure the allowance of the higher price, relator discontinued work, after completing two miles of the first course of said road, and abandoned said work, and has done nothing since in connection therewith except his efforts to induce the board of county commissioners to release him from this contract. The defendant also avers that the resolution adopted by the board of county commissioners is false in this, to-wit: “That there is, and always has been a sufficient quantity of local sandstone of such quality as will meet the approval of the engineer and the said county commissioners, as required in said plans, and that it is now and always has been possible for the relator to develop quarries that will produce a sufficient quantity of sandstone of such quality as is required by said plans and specifications to build the first course of said road.” The answer further avers that the county surveyor maintains .that there is a sufficient quantity of local sandstone of acceptable quality to complete this work, and that on the 13th day of June, 1914, the board of county commissioners, at the instance of the prosecuting attorney, made further investigation and passed another and second resolution in which it declared that it erred in its judgment expressed in the resolution of May 20, 1914, and that it is now, at the date of the passing of this second resolution, of the opinion that sufficient stone of the proper quality can be procured in this county, and thereupon proceeded to rescind and declare null and void the former resolution.
    To this answer the relator filed a general demurrer, and the cause is submitted to this court upon this demurrer to the answer of the defendant, Sayre, auditor of Franklin county.

      Messrs. Wilson & Rector, for relator.

      Mr. Edward C. Turner, prosecuting attorney, and Mr. Herbert C. Sherman, assistant prosecuting attorney, for respondent.
   Donahue, J.

It is clear that the answer of the defendant to the petition of the relator states no defense. The averments in the answer that other officers of the county had reached a different conclusion as to the existence or nonexistence of the material specified in the contract is certainly of no importance, as these officers are not charged with any discretion in relation to this contract, and their opinion, one way or the other, cannot affect it. It is also equally clear that the second resolution, adopted ex parte by the board of county commissioners almost a month later than the resolution to pay the contractor a sum certain in consideration of the material furnished and work already performed, and in further consideration of the release by the contractor of all further claim against the county arising under this contract, can not avoid the original contract of settlement nor prejudice the right of the contractor to receive the amount agreed to be paid him in settlement of all his claims against the county. Nor is the averment in this answer that material existed in Franklin county sufficient for the purpose of the contract of any importance at this time. That was a matter to be determined before or at the time the agreement to settle the controversy between the contractor and the commissioners was made and entered into by the parties to that contract; and, in the absence of an averment that the commissioners acted fraudulently or in collusion with the contractor, or that the contractor made false and fraudulent representations to the commissioners, knowing them to be false and fraudulent, and that the commissioners relied, and had a right to rely, upon such representations, the judgment of the commissioners upon that question is final and the contract of settlement then entered into binding Upon all parties thereto.

This demurrer, however, searches the record, and presents for our consideration the sufficiency of relator’s petition. The question of the sufficiency of the petition depends upon the question of the authority of the commissioners to settle and adjust the conflicting claims of the county and the contractor and to order payment to the contractor ■ of a sum of money and release him from all claim for damages for breach of contract in consideration of the release by him of all other and further claims against the county for material furnished and labor performed.

At the time this first resolution was adopted by the commissioners the contractor had completed about two miles of the improvement. The value of the material furnished or labor performed in making this improvement is not averred either in the petition or answer, nor does it appear whether any payments had been made to him on account of this material and labor, although the contract provides that the commissioners should pay him from time to time upon estimates, reserving 10 per cent, of the original contract price. The pleadings do show, however, that about two miles of the improvement had been completed and that the contractor was making claim for payment for .that work pro tanto, and insisting that substantial performance of the entire contract was impossible by reason of the nonexistence in Franklin county of the material specified in the contract. In other words, he was asserting a claim against the county and contending that by reason of the impossibility of performance he was not only released from fully performing and therefore not liable in damages to the county for failure to perform, but that he was entitled to receive the full contract price pro tanto for the material furnished and labor performed prior 'to the discovery that complete performance of the contract was impossible. There had also arisen in favor of the county a claim for damages for breach of the contract, for it appears from these pleadings that the contractor had wholly abandoned his contract and refused and was still refusing to make any further attempt to perform, basing his refusal upon the claim that it was impossible of performance.

It can hardly be doubted that the board of county commissioners had the authority to determine the amount due the contractor for material furnished and labor performed, and to order payment to him of that amount or any less sum that the board might order paid in settlement of the claim. The board of county commissioners also had authority, under the provisions of Section 2416, General Code, to compound or to release in whole or in part the claim of the county against the contractor for damages for breach of the contract. Undoubtedly this claim was a debt within the meaning of that section. Ill the case of Peter v. Parkinson, Treas., 83 Ohio St., 36, this court held that a personal tax which stands charged upon the duplicate is not a debt within the meaning of this section, for the reason that “a tax is an impost levied by authority of government, upon its citizens or subjects, for the support of the state. It is not founded on. contract or agreement.” The reason given by this court in that case why a tax is not a debt within the contemplation of this statute clearly shows that this claim for damages for breach of contract is a debt due the county which the commissioners may compound or release in whole or in part. In the case of Jones, Auditor, v. Commissioners, 57 Ohio St., 189, it was held by this court that the board of county commissionérs “may pass upon and adjudicate claims against the county for services in a matter, which, under the statutes, may be the subject of a legal claim against the county. But it is without jurisdiction to entertain or adjudicate claims which in themselves are wholly illegal and of such a nature as not to form the subject of a valid claim for any amount.” To the same effect is the case of Shepard v. Commissioners, 8 Ohio St., 354; Carder v. Commissioners, 16 Ohio St., 353. This claim of the contractor for compensation for material and labor in part performance of this contract was the subject of a legal claim against the county, and that being true the commissioners were acting within the scope of their authority when they allowed and ordered paid to him all or part of the amount claimed; and, in the absence of fraud or collusion, courts have no authority to substitute their opinion and discretion for the opinion and discretion of a board clothed with authority by law to determine the question in controversy.

It is true that the contractor is not excused from substantial performance of his contract merely because performance may be difficult, dangerous or burdensome. Nor does the mere impossibility of performance necessarily relieve the promisor from the payment of damages for failure to perform, unless the contract itself contains a provision, express or implied, releasing him from damages in case the contract becomes impossible of performance. There is, however, a conflict of authority upon this subject, but the great weight of authority seems to support the rule stated in 3 Elliott on Contracts, Section 1891: “Where no express or implied provision as to the event of impossibility can be found -in the terms or circumstances of the agreement, it is a general rule of construction * * * that the promisor remains responsible for damages, notwithstanding the supervening impossibility or hardship. It must be borne in mind, however, that it is equally well settled that when performance depends upon the existence of a given person, purpose or thing and such existence or continued existence was the assumed basis of the agreement, the death of the person or the destruction or non-existence of the thing without fault puts an end to the obligation,”

In this particular case the contractor claimed that the material specified in the contract for this road improvement did not exist in sufficient quantities to complete the improvement. The specifications attached to and made a part of the contract provided for the use of crushed local sandstone of quality to be approved by the engineer before being placed on the road. The commissioners, upon investigation of the claim made by the contractor, that this stone did not exist in sufficient quantities of a quality that would meet the approval of the engineer, found and declared by resolution that the claim of the contractor in that behalf was true, and, so far as these pleadings are concerned, this finding is not attacked for any reason, except for error of judgment on the part of the commissioners in arriving at this conclusion. We are not now concerned with this question of fact. The commissioners, in the honest belief that this resolution stated the truth, undertook to adjust the respective rights of county and contractor. They could have refused payment for any part of the work performed and brought an action for damages. On the other hand, if this claim of the contractor was true, as they then believed and declared in this resolution, they might not only fail to recover any damages whatever but might also be compelled to pay the full contract value pro tanto of the work completed. Heine v. Meyer, 61 N. Y., 171; Jones v. Judd, 4 N. Y., 411; 3 Elliott on Contracts, Section 1902.

Acting upon the facts as they then appeared to them, the board of county commissioners proceeded to and did allow to the contractor an amount in money which was evidently only part of the contractor’s claim, and required him to release all other and further claims against the county under and by virtue of this contract. It is also fair to presume, from the facts pleaded, that the claim of the county for damages was taken into consideration and that the amount that would otherwise have been allowed to the contractor was materially reduced by this consideration. The contractor thereupon accepted in writing the offer of compromise tendered him by this resolution of the commissioners and the commissioners ordered paid to him the sum of $1,516.96. This was a contract of settlement of the conflicting claims of the contractor against the county and of the county against the contractor, the adjudication of which claims clearly comes within the scope of the statutory authority of the commissioners, and, having exercised that authority and entered into this contract of settlement, it is just as binding upon the county as any other lawful contract the board of county commissioners could make, and that board, without the consent of the other contracting party, could not rescind its action and annul this contract of settlement. It is said, however, that the county commissioners have no statutory authority to rescind the original contract, made and entered into with this contractor on behalf of the county for this improvement. The discussion of that question here would be idle, for the reason that the contractor had then abandoned his contract and notified the commissioners that he would make no further efforts to complete the same. Right or wrong, the contractor refused to comply further with the terms of this contract. It was not then a question of rescinding the contract, although in fact the resolution did purport to rescind it. The only thing for the commissioners to do was to proceed as in all other cases of breach of contract, readvertise and let the contract for the completion of this work to the lowest bidder, and then bring an action • against the contractor and his bondsmen for damages for breach of contract, or if, in the opinion of the commissioners, as expressed in this resolution, they would probably fail in a suit to recover damages for breach of contract and possibly be . compelled to pay the value pro tanto for material and labor furnished and performed, they have the right and authority under Section 2416, General Code, to compound this debt or release it in whole or in part.

For these reasons the relator is entitled to a peremptory writ as prayed for in his petition.

Peremptory writ allowed.

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