author: Spear, C. J.

text:
    Yocum, Admr., v. Allen.

      Demurrer — Wrongfully overruled by common pleas — Overruling was not prejudicial to adverse party — Judgment will not be reversed — Rights of married women — Act of March SO, 1871 — Action of wife against husband for money had and received-statute of limitations.

    1. Where, in a cause pending in the court of common pleas a demurrer to a petition has been overruled, and upon issues made by answer and reply, the case has been tried to a jury and a verdict and judgment for plaintiff rendered, this court ' will not reverse the judgment, even though satisfied that the demurrer ought to have been sustained, provided it also appears, upon a consideration of the whole record, that the overruling of the demurrer was an error which was not prejudicial to the adverse party.
    2. By the act of March 30,1871, (68 O. L., 48,) concerning the rights and liabilities of married women, the wife is given sole control of her separate property. And where, in a case coming within tbe scope of this statute, a husband has received of the wife money which is her separate property, and claims it as his own, the burden is upon him to show her express assent that he may use the same for his own benefit. This statute applies to a cause accruing in the year 1879 to a wife against her husband for money had and received.
    3. A right of action for money had and received, which accrued to a married woman in the year 1879, being controlled by the statute of limitations in force at that time, is not affected by the act of March26, 1883, (section 4986, amended), removing the disability of coverture as to rights of action concerning a married woman’s separate property. That act applies only to causes of action accruing after its passage. Ham v. Kunzi, 56 Ohio St., 531, approved and followed.

      Hence, a suit commenced May 4, 1894, by the administrator of a married woman who deceased February 12, 1889, against the surviving husband, for money had and received by him in the year 1879, is not barred by the statute of limitations.
    (Decided March 29, 1898.)
    Error to the Circuit Court of Mercer county.
    The plaintiff’s action was commenced May 11, 1894, by the filing of a petition in the court of common pleas of which the following is a copy, to-wit:

      “The plaintiff says:
    “(1.) That Cynthia Allen and the defendant Jeremiah Allen were united in marriage on or about the 30th day of December, 1877, and lived together as husband and wife continuously within the said state of Ohio, up to on or about the 12th day of February, 1889, at which time the said Cynthia Allen died intestate.
    (2.) That on or about the 19th day of February, 1894, he was duly appointed and qualified administrator of the estate of said Cynthia Allen, and is now acting as such administrator.
    “The said defendant is indebted to the estate of said Cynthia Allen, for money had and received from said Cynthia Allen on or about the 11th day of January, 1879, in the sum of eleven hundred and nineteen dollars ($1,119.00), with interest thereon from the said 11th day of January, 1879, for which sum the plaintiff as such administrator asks judgment and for costs of suit.”
    A general demurrer was interposed by defendant, which being overruled, defendant excepted. Then an answer was filed admitting certain allegations of the petition, and averring: “That the said sum of money so by him received and here claimed and sued on by the administrator as assets of the estate of the said Cynthia Allen, deceased, was a free and voluntary gift to this plaintiff from his said wife; and by him so received and used with the express assent and acquiescence of the said Cynthia Allen; and without any promise on his part to repay her, or any intention on her part to charge him with the said sum of money or any part thereof; that such gift of said money was not only then voluntarily and expressly made, but was thereafter at divers times in her lifetime, acknowledged and reaffirmed by the said Cynthia Allen; and no claim was ever made by her against him at any time for such money so by him received from her.”
    A reply denying the new matter, was filed and the cause tried to a jury. A verdict for plaintiff having been rendered, and motion for new trial overruled, a judgment was entered on the verdict. This judgment the circuit court reversed on the sole ground that the petition does not state facts sufficient to constitute a cause of action.

      Raudabaugh <& Bryson and Marsh da Toree, for plaintiff in error.
    The theory of the unity of the husband and wife known to the common law has not been abrogated in Ohio. While the rights of the wife are very much greater under our present statutes than formerly, yet there is no statute that divorces the dependence of the wife upon her husband while the relation of husband and wife continues. Second National Bank v. Merrill, 81 Wis., 151; 29 American State Report, pages 77-880; Barnett v. Harshbarger, 105 Ind., 410; Dice v. Irwin, 110 Ind., 561.
    In the absence of clear and positive statutory declaration extending the statutory limitation to actions between husband and wife, we maintain that the common law rules as to legal remedies between husband and wife are still in force. Angel on Limitations, section 60; Towers v. Ilagner, 3 Wharton, 48; Yoemans v. Petley, N. J. E., 495; 4 Atlantic Reports, 631-634; Alspaugh v. Wilson N. J. Ch., 28 Atl., 722; Yeoman v. Petty N. J. Ch., 4 Atl., 613; Burnheim v. Me Michael (Tex.), 26 S. W., 887.

      So our conclusion is that the statute of limitations did not run against plaintiff in error’s dece dent during the time of her marriage to and cohabitation with her husband, and that such period is to be excluded from calculation in determining’ whether the claim is barred. Fourth-man v. Fourthman, 43 N. E., 965.
    The statutes of limitation does not run between husband and wife during coverture. Lahrs Appeals, 90 Penn. St., 507.

      Mattingly & Kenney, for defendant in error.
    Counsel for plaintiff in error insists that notwithstanding the repeal of the saving clause as to married women, the court must save her rights.
    This would be substituting the will of the judiciary for that of the legislature, and a violation of the well established rule that courts shall refrain from putting on statutes of limitations any other construction than that which their words import. Buswell on Limitations and Adverse Possession, sections 16 and 127; Pearson et al. v. Stephens, 56 Ohio St., 126.
    Whittaker, in his annotations on sections 4978 and 4986, and Yaple in his note to the same sections say, that “a married woman is not now within the saving clause of the statutes.” Neither of them refers to any exception in her favor even by implication.
    Since the act of 1883 until 1886 then, as to separate estates, and since the act of 1886 as to all estates, married women are not protected by any saving clause in the statutes, and the statute will run against them the same as if sole.
    A person claiming the .benefit of the saving clause of a statute must show that he is entitled to it by express enactment, because his claim to exemption is against the current of the law, and founded on exceptions by no means coextensive with its effective provisions. Ola/rke v. Bank of Miss., 52 Am. Dec., 249; 8 Wait’s Actions and Defenses, page 577, section 5; Bus well, Limitations and Adverse Possession, sections 16, 104 and 106; Bartol v. Eckert, 50 Ohio St., 43.
    The exemptions from the operation of the statutes of limitations usually accorded to infants and married women, depend upon the express language of the statute. Vance v. Vance, 108 U. S., 521; Bemarest v. Wynkoop, 3 Johnson’s Chancery, 146.
    A number of courts have held that the enabling acts did repeal by implication the saving clause. Ashley v. Rockwell, 43 Ohio St., 386.
    The language of these statutes is clear and unambiguous. It has been held in Ohio that if the language by the legislature in a statute is precise and unambiguous, it is the duty of the court to interpret the words in their natural and ordinary sense, although the result may conflict with its idea of public policy. Smith Bridqe Oo. v. Bowman, 41 Ohio St., 52.
    The court will refuse to supply words it is convinced were omitted by mistake, its function being “to interpret legislation, not to supply omissions. ” Bruner v. Briggs, 39 Ohio St., 484.
    It is urged that to permit the statute of limitations to run against the wife in an action by her against her husband would be “to overthrow the settled policy of the common law.” To this it is sufficient to reply that the common law must give way to the statute. The statutes invade and abrogate the common law to the extent of their provisions.

      Brief of Robert L Mattingly, for defendant in error.
    I. In a suit for money had and received, the mere allegation that one person, “is indebted to another for money had and received,” and without stating to whose use it was received, does not disclose a legal liability and is bad on demurrer. Rolden et al. v. Power et al., 35 N. Y. Supp., 697; 14 Mise. Rep. (N. Y.), 480.
    II. “Indebted,” will not answer for “due” and is bad on demurrer. “Due,” implies a breach of contract. “Indebted” does not imply a breach of contract; or, that claim has matured, or, that right of action has accrued. Arch&r v. Moore Combination Desk Co., 11 Bulletin, 224. And such allegation of indebtedness, without the further statement of the same “being due,” or, “not paid” is neither within the short form at common law, or, under the Code of Ohio, Rev. Stat., 5086. An answer “that defendant is indebted” is bad in a suit on a money contract. It must be alleged that the amount is due, or, that defendant has not paid. Roberts v. Treadwell, 50 Cal., 520; Francis v. Williams, 15 Minn., 288; McKyning v. Bull, 16 N. Y., 297; Holgate v. Brown, 8 Minn., 243.
    III. Where personal property or money is delivered to the defendant voluntarily, by the plaintiff, and the rightful possession not denied,- the general rule is, that a demand is necessary before suit. And in a case of mutuum, a demand should be alleged in the petition. The possession of money in this case is as reasonably regarded, as that of the husband for the wife, as regarded for his use with an obligation to repay with interest. The petition avers neither demand for return or demand for payment; or, .“for whose use the money was received,” and for omission of the last, if not the first, is had on demurrer.
    IV. At common law, there was no implied promise to restore or repay money of the wife, by the husband reduced to his possession. No implied obligation of the kind as between husband and wife. And very much doubted that a complaint expressly averring a promise to restore or repay by the husband would save such a complaint by the wife or her representative against her husband, from a demurrer. The relationship of husband and wife is not favorable to any implied obligations as' to their dealing with personal property passed from one to the other.
    A plaintiff cannot recover on the common count, where there is an outstanding or unperformed condition, or, where the claim is not due. Holloway v. Davis, Wright’s Ohio Rep., 129.
    And assumpsit would not lie by one partner against another, unless, their partnership account had been adjusted and a balance struck. And no promise to pay would be implied. Emric v. Gilbert, Wright’s Ohio Rep., 764. Hence, a petition by one partner against another would require an averment by the plaintiff that a balance had been struck, and further facts alleging that the balance was due the plaintiff and unpaid. Analogous principles present in the relationship of husband and wife, in case of suits between them.
    The circumstances attending a contract need not be set out, but the facts constituting its breach must be alleged. Brown v. Chaplin et al., 62 Ind., 259; and in an action for money due upon a contract, express or implied, the petition must in some way aver a breach of contract, or show that the sum of money is due and unpaid. 87 Ind., 126; Ohio Code, 5086.
    A line of authorities have given to the word “due” a legal intendment and justified liberal interpretation,. which never has been allowed to “indebted” which uniformly has been regarded as a conclusion of law, and whose broadest meaning does not include “due” or indicate any breach of contract. McNutt v. Boss <& Kaufman, 26 Ohio St., 127; 32 Cal., 172; Mr. Bates on Pleading, 121. Hence, it is held that “an allegation of non-payment, even if not traversable, had better be made, otherwise, no breach is averred.” Downey v. Whittenberger, 60 Ind., 188.
    A failure to state a cause of action, is not cured by any subsequent proof. The objection that a petition does not state facts constituting a cause of action, may be made at any time, before hearing on error in a reviewing court. And such a defect is as fatal as want of jurisdiction. Weil v. Green Go., 69 Mo., 281.
   Spear, C. J.

Two grounds in support of the demurrer are urged: (1) That the attempted statement of indebtedness is so defective as not to amount to a statement of a cause of action. (2) That, upon the face of the petition, the cause of action is barred by the statute of limitations.

1. Ought this court now to affirm the action of the circuit court in sustaining the demurrer to the petition because of the defect complained of? The propositions urged in support of the judgment of the circuit court in this behalf are, put specifically, that an allegation that one person is indebted to another does not disclose a legal liability, inasmuch as the word “indebted” will not answer for “due.” The latter word implies a debt matured, and therefore a breach in its non-payment, while an indebtedness may exist without present liability to pay. And that an allegation that one is indebted to another for money had and received without stating to whose use it was received, or that the receiver promised to pay, does not state a cause of action for money had and received. Also that an averment of demand before suit, was necessary. Further, that there was not at common law, and is not by our statutes, any implied obligation to restore or repay to the wife money reduced by the husband to his possession. The court is favored with a very ingenious and able brief by counsel for defendant in support of this contention.

As to the latter proposition. We think it is settled adversely to'the claim above stated by the act of March 30,1871 (68 O. L., 48), the law in force at the time of the alleged transaction. It is there provided that the wife’s separate property shall remain under her sole control, and where delivered to the husband, shall not be deemed reduced to his possession except by the express assent of the wife. The answer itself seems to recognize the application of this statute to the case.

Respecting the defects in the petition as to allegations of indebtedness, the writer is free to say that he has no sufficient answer to the criticism of counsel, and if we were passing upon the question in a court of first instance, there would seem to be evident propriety in holding the pleading insufficient. But the question before this court is not whether this petition, tested by technical rules, states a case, but whether the error in overruling the demurrer has worked prejudice to the adverse party which requires a reversal of the judgment. The second section of the code (now 4948), enjoined this rule upon the courts: “The

provisions of this part, and all proceedings under it, shall be liberally construed, in order to promote its object, and assist the parties in obtaining justice.” And section 138 (now 5115), enjoins a still further duty in the direction of liberality: “The court, in every stage of an action, must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed, or affected, by reason of such error or defect.”

These provisions are manifestly of high importance, and in their application here it must be kept in mind that we are dealing not alone with the action of the trial court on the demurrer, but with the proceedings as a whole, and we are required to construe the same with liberality to assist the parties in obtaining justice; and to disregard defects in either pleadings or proceedings which do not affect substantial rights. Now the answer admits the receipt by the defendant of the money from the wife, but avers that it was a free, voluntary gift, expressly made by her to the husband. So that, this averment being denied by the reply, the issue before the jury was whether or not the money was a gift. If it were, the plaintiff had no ease; if not, the defendant had, on this branch of the contention, no defense. The jury, upon trial of the facts, finding it was not a gift, gave their verdict for the plaintiff. How could the issue have been made one whit different from what it was made had the petition alleged, in express terms, that the indebtedness was due, and had been demanded (if, indeed, that averment was necessary), and that the money was received to the use of the defendant? Manifestly it could not. If the money was a loan it was received to the use of the defendant, and a liability for its payment would be implied. In any event, the defendant, if inclined to state facts in his answer, would have been compelled to admit the receipt of the money, and the issue would have ensued as to the character of the transaction by which he obtained it. At least he was no more compelled to make that admission in answer to the allegation as made in the petition than he would have been had the omitted words and allegations been incorporated in that pleading. It appears clear to us that the defects of the petition, in the particulars referred to, were supplied, or at least rendered innocuous, by the answer and reply; so that, upon the whole record, these defects did not affect any substantial right of the defendant.

2. As to the statute of limitations. The contention of defendant is that the action is barred by the effect of recent legislation, and that is the real question upon this branch of the case. The averments of the petition are that the money was received by the defendant January 11, 1879, and that the plaintiff’s intestate remained the wife of the defendant until February 12, 1889, at which time she died. The action. was commenced May 11, 1894. The limitation of six years governs the action, and the question is, at what time did the statute begin to run? Applying to the situation the well-settled statutory rule, based upon section 79, Revised Statutes, that the repeal or amendment of a statute shall in no manner affect causes of action existing at the time of such repeal or amendment, unless otherwise expressly provided, the vital inquiry is, has it been otherwise expressly provided? The statute of limitations relating to actions by and against married women in force Jannuarv 11, 1879, is found in chapter 3, of title 2, of the code of 1853. Section 14 (now 4981, Revised Statutes), covers actions upon contracts not in writing, express or implied. Section 19 of the same chapter (codified as 4986, Revised Statutes), provides that: “If a person entitled to bring any action mentioned in this chapter * * * be, at the time the cause of action accrued, * * * a married woman * * * every such person shall be entitled to bring such action within the respective times limited by this chapter, after such disability is removed.” This section was amended March 26, 1883 (80 O. L., 77), to the effect that the disability of being a married woman shall not extend to rights of action concerning her separate property, and this is the amendment which is cited as affecting the case. If this change is to be treated as causing the statute of limitations to commence to run upon the passage of the act (March 26, 1883), and it is claimed by counsel for defendant that it does have that effect, then, manifestly, a suit commenced May 11, 1894, is barred. But it is held in Ham v. Kunzi, 56 Ohio St., 531, that the act of March 26, 1883, does not cause the statute to begin to run as to causes of action already accrued because of another section of the same chapter, 4974, which expressly provides that the chapter “shall not apply to * * * cases wherein the right of action has already accrued, but that the statutes in force when the action accrued shall be applicable to such cases.” The facts of the two cases are so nearly identical that, without question, the same rule should be applied here. Following the ease cited it results that the statute of limitations did not begin to run until the decease of Mrs. Allen, February 12, 1889, and hence the six years had not expired at the commencement of the action.

An argument of much force is presented by counsel for plaintiff upon the proposition that the common law unity of husband and wife has not been abrogated even in Ohio, and hence, on grounds of public policy, the statute of limitations ought not to be applied to a claim of the wife against the husband, and abundant decisions of the courts of other states are adduced in its support. But we do not deem it necessary to enter upon the inquiry.

The judgment of the circuit court will be reversed and that of the common pleas affirmed.

Reversed.


source: Caselaw Access Project

license: Public Domain

text:
    Durfee v. MacNeil, Executor.

      Reversal of original judgment of circuit court — Petition for new trial dismissed at cost of plaintiff, when.

    An original judgment of the circuit court having been reversed by this court, a petition in error filed here for the reversal of an order of the circuit court dismissing a petition for a new trial of the cause in which such original judgment was rendered, will be dismissed at the costs of the plaintiff in error.
    (Decided March 29, 1898.)
    Error to the Circuit Court of Marion county.
    At the January term, 1896, of the circuit court of Marion county in a cause pending on appeal in said court, the defendant in error recovered a judgment against the plaintiff in error. On the 5th of September, 1896, the plaintiff in error filed a petition in said court alleging that said court was induced to render said judgment by fraudulent representations and concealments of the prevailing party, and praying for a new trial.
    MacNeil answered denying the allegations of fraud.
    The cause was heard in the «circuit court on the pleadings and the evidence, and the petition for a new trial dismissed. The plaintiff in error filed a petition in error in this court in cause No. 5092, praying for a reversal of the judgment so rendered against him at the January term, 1896, of the circuit court; also a petition in this cause praying for a reversal of the subsequent judgment of the circuit court dismissing his petition to set aside its former judgment and grant him a new trial of the cause in which it was rendered. Upon the petition in error firstly mentioned (in cause No. 5092), this court reversed the original judgment and upon the record rendered a final judgment in favor of the plaintiff in error.
   By the Court:

This court having reversed the principal judgment of the circuit court which it refused to vacate by an order whose reversal is sought by this petition in error, there remains nothing of substance in the controversy and the

Petition in error will be dismissed at the costs of the plaintiff in error.


author: Burket, J.

text:
    Herrick v. Wardwell et al.

      Action by corporation creditor — Enforcement of statutory liability —Other creditors not necessary parties — Liability of those named in stock book — Corporation law.

    1. In an action by a creditor Of a corporation in his own behalf, and in behalf of all other creditors, against the stockholders to collect the statutory liability, it is not necessary to make the other creditors parties to the action, either in the court of common pleas, or in a higher court on appeal, or on error. In such cases the action is prosecuted by the plaintiff for the common benefit of all creditors, for the creation of a fund for pro rata distribution among them, and whatever the plaintiff does in good faith in that behalf, inures to the common benefit of all, and binds all.
    2. N. entered into a written contract with a corporation to the effect following : N. agreed to sell to the corporation all the milk produced by him and amounting to twenty gallons or more per day, for a period of one year, to be delivered in cans each day at the nearest milk station 'for shipment; and the corporation agreed to pay 1ST. nine cents per gallon for all milk shipped, payments to be made once each month. N. shipped to the corporation, under the contract, all the milk produced by him, for eight and one-half months, when the corporation became insolvent, and made an assignment for the benefit of its creditors, still owing for the milk received during the last one and a half months: Held: — that at the date the contract was entered into, the corporation incurred a liability to pay for all the milk that N. should thereafter deliver to it under the contract; that after delivery of the milk by N. the corporation could not defend against its liability^on the ground that the contract created no obligation, or was void for uncertainty, or want of mutuality; and that the debt arising from the delivery of the milk under such contract, is a liability against stockholders who assigned and transferred their stock to insolvent parties before such delivery.
    3. The stockholders of a corporation whose names appear on the stock book, or in the absence of such book, on stubs of stock certificates, as holders of stock, are subject to a stockholder’s liability for debts incurred by the corporation while such names are allowed to so remain. To avoid such liability, it must appear on the stock book in the one case, or on the stub of the stock certificate in the other that the stock has been transferred to some one else.
    (Decided April 19, 1898.)
    Error to the Circuit Court of Cuyahoga county.
    The Cleveland Dairy and Transportation Company was organized and incorporated under the statutes of this state, as a corporation for profit in December, 1891, with a capital stock of twenty thousand dollars, the shares of stock being fifty dollars each. The defendants in error, J. W. Wardwell, L. G. Kies andW. W. Whitacre, became stockholders when the company was organized. J. W. Wardwell subscribed and paid for seventy shares of stock, and received a stock certificate therefor, and the stub of the certificate showed that he held the seventy shares of stock. In like manner Mr. Kies and Mr. Whitacre subscribed and paid for five shares of the stock each, and received like certificates, the stubs showing the number of shares held by each. The remainder of the stock subscribed by others was evidenced by like certificates and stubs, but no stock book, other than the stubs and stock subscriptions, was kept by the corporation.
    During the months of February and March, 1892, the company made a large number of contracts with the milk producers located within convenient distances of Cleveland where the company had its place of business. The contracts were upon printed forms prepared by the company, and differed only in dates, amounts, names, etc. The following is a copy of the contract entered into with P. B. Nichols, and the others are in. legal effect the same.

      “CONTRACT.
    It is hereby agreed by and between The Cleveland Dairy and Transportation Company (a eorpor. ation), and P. B. Nichols, of Twinsburg, Ohio, as follows:
    The said Nichols agrees to sell the above named corporation all the milk produced by him, and amounting to 20 gallons or more per day, for a period of one year from April 1, 1892. Said milk to be the natural, unadulterated product of his dairy, fresh, unskimmed and with the full amount of “strippings,” properly cooled, and delivered in cans furnished for that purpose by said corporation at the nearest milk station or platform of the C. & C. R. R. Co., in due time for transportation to the city of Cleveland by trains known as “milk trains” or trains on which milk is transported. It is further agreed that the “freight charges” on all milk so shipped to the corporation shall be paid by said Nichols.
    The said corporation on its part agrees to pay to the said Nichols the sum of 9 cents per gallon for all milk shipped from April 1, 1892, to and including Sept. 30, 1892, and the sum of 14 cents per gallon for all milk shipped from Oct. 1, 1892, to May 1,1893. Said rates per gallon above mentioned being understood to include the cost of transportation to the city of Cleveland paid by said Nichols as provided above. Soured or spoiled milk will not be accepted by said corporation.
    The said corporation further argees that payment for all milk shipped shall be made once per month, and no later than the 15th of the month for milk shipped the previous month.
    The said corporation further agrees that all cans furnished by it for transportation of said milk shall be properly washed and in fit condition and repair for the safe transportation of said milk.
    Signed in duplicate this 3rd day of February, 1892, by parties hereto.
    The Cleveland Dairy & Transportation Company.
    Per Albert Rokusek, Sec’y and Tr.
    P. B. Nichols, P. O. Address”------
    On the 22nd day of August, 1892, said J. W. Wardwell sold, assigned and transferred his seventy shares of stock to his son, and a certificate was issued to the son for the stock, and the stub of the certificate to the son showed that the stock came from his father, but the stub of the certificate issued to the father did not show that the stock had been transferred to the son. On the 30th day of August, 1892, Mr. Kies and Mr. Whitacre sold, assigned and transferred their stock to one D. W. Holbrook, and certificates of stock were issued to him, and the stubs were the same as in the ease of Mr. Wardwell.
    On the 15th day of December, 1892, the company made an assignment for the benefit of its creditors, and thereafter this action was commenced by Newton Herrick, a creditor, in behalf of himself and all the creditors of the company, against the stockholders of the company, including said J. W. Wardwell, W. W. Whitacre and L. G. Kies, seeking to collect the statutory double liability, for the benefit of all the creditors of the company.
    J. W. Wardwell,' Mr. Whitacre and Mr. Kies answered setting up the sale and transfer of their stock at the dates above mentioned. Some, but not all of the creditors, were on their own motions, made parties defendant, and on leave of the court of common pleas, filed answers and cross-petitions setting up their claims against the company.

      Deliveries of milk under said contracts continued until the date of the assignment on the 15th of December, 1892, and at that time the company owed about thirteen thousand dollars for milk delivered during the months of November and December, 1892. The milk delivered before the transfer of the stock by Mr. Wardwell, Mr. Whitacre and Mr. Kies, was all paid for before the assignment. The assignees of the Wardwell, Whit-acre and Kies stocks, conceded their liability, but as they were insolvent, and as nearly all of the other stockholders proved insolvent, it required the full amount of the statutory liability of all the solvent stockholders, including Wardwell, Whit-acre and Kies, to pay the debts and costs .of suit, and therefore the creditors insisted that they had the right to collect double liability from all who were stockholders at the time the milk contracts were entered into with the company.
    A referee was appointed in the court of common pleas, and he showed in his report the names of all the creditors and the amount due to each, whether such creditors had been made parties and answered or not. Upon appeal, the case was heard in the circuit court, the parties agreeing as to who the creditors were, and the amount due to each. The circuit court in its judgment found the names of all the creditors, and the amount due to each as agreed upon, and found the amount due from each stockholder and rendered judgment therefor against such stockholder, and appointed a receiver, ana ordered that the amounts for which judgment was rendered against the several stockholders, should be paid to the receiver, and that he should pay the costs and fees out of the fund, and distribute the balance pro rata
      among the creditors. The circuit court held that the stockholders who had transferred their stock, were liable only for the milk delivered under the contracts before the assignments of stocks were made, and there being some debts due from the company before the transfer of said stocks, the circuit court rendered judgment against J. W. Wardwell for $347.00, against W. W. Whitacre for $21.85, and against L. G. Kies for $21.85, as the amount to be contributed by each toward the payment of said debts so due before said transfer of their respective stocks; but the circuit court refused to render judgment against said Wardwell, Whitacre and Kies, to increase the fund to be applied to the payment of the debts for milk delivered after the transfer of their said stocks.
    The plaintiff below, plaintiff in error here, in behalf of himself and the creditors of the company, excepted to the finding and judgment of the circuit court, so far as concerned the liability of said Wardwell, Whitacre and Kies; and also in behalf of himself and said creditors, filed a motion for a new trial, which was overruled, to which said plaintiff in behalf of himself and said creditors excepted. The circuit court made a finding of facts separate from its conclusions of law, and therein set out its construction of said milk contracts, without giving a copy thereof; but a bill of exceptions was also allowed and signed and made part of the record, and therein a copy of said milk contracts appears as above shown.
    Thereupon the plaintiff in error, for himself and all the creditors of said company, filed his petition in error in this court, seeking to reverse and modify the judgment of the circuit court so rendered against said J. W. Wardwell, W. W. Whitacre and L. G. Kies, claiming that said judgment is too small.

      Henderson <& Quail, for plaintiff in error.
    The language of the Constitution, Article XIII, section 3, is as follows: “Dues from corporations shall be secured by such individual liability of the stockholders, and other means, as may be prescribed by law; but in all cases each stockholder shall be liable over and above the stock by him or her owned, and any amount unpaid thereon, to a further sum, at least equal in amount to such stock.”
    Section 3258 of the Revised Statutes of Ohio: What are “dues,” “debts and liabilities,” and who are “creditors of the corporation” within the meaning of these provisions? Is the liability of a corporation to perform its executory contracts such a liability as is protected by this law? These questions are not new in this state. They are clearly settled by former decisions of this court. Brown v. Hitchcoch, 36 Ohio St., 667; Corning v. McCullough, 1 Const., 47; Hawthorne v. Calef\ 2 Wall., 10; OchilPree v. Raib'oad Co., 21 Wall., 249; Norris v. Wrenschall, 34 Md., 495; Hager v. Cleveland, 36 Md., 476; Rider v. Fritchey, Admr., 49 Ohio St., 285; Boice v. Hodge, 51 Ohio St., 236; Ca/rver v. Braintree Manufacturing Company, 2 Story, 432; Mill Dam Found/ry v. Hovey, 21 Pick., 455, held, under the statute of 1829, c. 53, section 6; 3 Mete. Law (Mass.), 297; Com. v. Keeper of Philadelphia Jail, 4 Serg. & R., 506; Cray v. Benedict, 3 Met., (Mass.) 522.
    This court has expressly decided in State v. Medberry, 7 Ohio St., 522, that a contract of the character of those before the court creates a debt from, the time the contract is entered into. See Century, Standard and Webster Dictionaries for word “debt.”
    Numerous decisions of courts other than our own sustain the position taken by the plaintiff in error. Byers v. The Franklin Coal Company, 106 Mass., 131; Colemans. White, 14 Wis., 700; Moss v. Oakley, 2 Hill, 265; Harger v. MeCollough, 2 Denio, 119; Coxv. Could, 4 Blackford, 341; White v. Creen, 70 N. W., 182, Iowa, 1897; Railway. Company v. Clark, 29 Pa. St., 146; 91 Pa. St., 398, the Appeal of the City of Erie; Niles Waterworks v. Mayor, 59 Mich., 311; Coidson v. City of Portland, Deady, 481; Prince v. The City of Quincy, 165 111., 138; Sackett v. City of New Albany, 88 Ind., 473; City of Valparaiso v. Gardner, 97 Ind., 1; 2 Bigelow on Fraud, chapter six; 8 Encycl. of Law, page 751, note 2, and Bump on Fraudulent Conveyances, 492 and 496; Wait on Fraudulent Conveyances and Creditors’ Bills, section 90; Rider v. Fritchey, Adm'r, 49 Ohio St., 285; 17 N. Y., 458; Merchants' Bank v. Bliss, 35 N. Y., 412; Easterly v. Barber, 65 N. Y., 252; Feeder v. Baker, 83 N. Y., 156 ; Stokes v. Stickney, 96 N. Y., 323.
    If it be conceded that the liability of the corporation accrues only when the time of performance arrives, then the recent decision of this court in Peter v. Union Manufacturing Company, 56 Ohio St., 181, leaves the stockholder at liberty to relieve himself by transferring his stock to an irresponsible person, without the .receipt of any consideration.
    Another question presented by the record arises out of the failure of the defendants to cause proper entries to be made upon the books of the company showing transfers of their stock.

      We do not think that the memoranda on these stubs constitute such a record or notice of transfer as is contemplated by sections 3254 and 3259 of the Revised Statutes. llarpold v. Stobart, 46 Ohio St., 397. .
    The attorneys for defendant J. W. Wardwell suggest that there is not a sufficient number of stockholders before this court to enable the court to determine and adjudge the liability of those stockholders who have been made defendants in error. 45 Ohio St., 318.
    The claim is made by the attorneys for the defendants in error that the contracts in question are not valid, for the reason that they did not require the creditors to produce any particular quantity of milk. It will be observed that these contracts were made by using a printed form, in which was inserted in each instance the names, amount to be delivered, the dates and the price. In every instance a particular quantity of milk was fixed upon for daily delivery, but some confusion arose from the inaccurate use of words in attempting to supplement the amount named by the words more or less. It is perfectly evident that in every instance the contract was intended to read so many gallons, more or less, per day. In 48 Cal., 239, it was held that where the intention is apparent, a clerical error in the use of a word is of no consequence. The following are a few of the cases which hold that contracts of this character are perfectly valid and enforceable: Brawley v.. United States, 96 U. S., 168; Smiths. Morse, 20 La. An., 220; Wells v. Alexander, 130 N. Y., 642; Parkers. Pettit, 43 N. J. Law, 512; Miller v. Kendig, 55 Iowa, 174; Guillim v. Daniel, 2 C. M. and R., 61; Clark on Contracts, pages 170, 171 and 64.

      M. W. Beacon, for defendants in error, Kies and Whitaere.
    The creditors seek to hold defendants in error under their statutory liability as stockholders on the following grounds:
    1. That while defendants in error undoubtedly made, in the latter part of August, 1892, bona fide transfers of their stock, notice of such transfers was never given to the creditors by making proper entries of transfer on the books of the company.
    2. That the so-called “milk contracts” became on the day they were signed such a “liability incurred” that all stockholders holding stock at that date did then and there become liable, upon default of the company, for debts arising for milk delivered at any time before the expiration of the time fixed for the termination of the contracts.
    3. Defendants in error claim by way of affirmative defense that the “milk contracts” were invalid for indefiniteness and want of mutuality.
    Defendants in error cite no authority touching upon the first question of law above stated. Morgan v. Lewis, 46 Ohio St., 1. “The slightest inquiry would have revealed the fact that Wardwell, Kies and Whitaere did not sustain the relation of stockholders, at the time these debts were contracted.”
    Plaintiff in error says that even though. said transfers of stock were properly evidenced on the books of the corporation, still, the holders of the so-called “milk contracts” are entitled to look to defendants in error as stockholders, for the reason that at time of signing the contracts, that is, in March, 1892, “the debt was contracted” and the “liability was incurred.” BrovmY. Hitchcock, 36 Ohio St., 667; Article 13, section 3; Revised Statutes, section 3258; Corning v. Me Cxdloiogh, 1 Const. ^ 47; Wheeler v. Faurot, 37 Ohio St., 28; Bonexoitz v. Bank, 41 Ohio St., 8.
    We pass now to those cases directly in point and which defendants claim to be conclusive in their favor; they are: Qa/rrison v. Iloioe, 17 N. Y., 458;

      Leggett v. Bank, 24 N. Y., 283; Arms Co. v. Barloxo, 58 N. Y., 34; Cold v. CVyne, 134 N. Y., 262; Wing v. Slater, 35 At. R. (R. I.), 302; Cook on Stockholders, section 214; 27 la., 228; 15 Cal., 429.
    Defendants claim by way of affirmative defense that the so-called “milk contracts” were not contracts at all; that they did not bind the corporation, for the reason that they did not bind the producer to furnish any certain quantity of milk, and he might sell his cows and his farm and quit within a week after the contract was made, and would not be in the position of one who had broken a contract. Since these contracts did not bind the farmer, they did not bind the corporation, being invalid because of their indefiniteness and want of mutuality.

      Squire, Sanders cfe Dempsey, for defendant in error, J. W. Wardwell.
    Assuming the contracts to be valid, when did the indebtedness under the milk contracts accrue?
    The whole argument of plaintiff in error upon this question seems based upon a confusion in the mind of the writer of the brief as to the distinction which must be drawn between debts, existing or contracted, and obligations, which may ripen into debts.
    The debts for milk furnished under the contracts referred to in the record arise under contracts— if this -court hold them to be valid — which belong to the latter of the two classes above mentioned, namely: Obligations which may ultimately ripen into debts. It has been almost uniformly held throughout the courts of the various states that there is a wide and well-defined distinction between what is meant by the word “debt” and that which may ultimately become a debt. Ovicttt v. Hughes, 41 Barb., 541; City of Valparaiso et al. v. Gcvrdner, 97 Ind., 1; Weston v. City of Syracuse, 17 N. Y., 110; Ca/rrison v. Hotoe, 17 N. Y., 458; Wentworth v. Whittemore, 1 Mass., 471; 37 Cal., 524; East St. Louis v. East St. Loiris, etc. Co., 98 111., 415; Dively v. City of Cedar Falls, 27 la., 227; Grant v. City of Davenport, 36 la., 396; French v. City of Burlington, 42 la., 614; Burlington Water Co. v. Woodward, 49 la., 58. Nor have the courts of Ohio been inclined to hold otherwise upon this question. Sicote ex rel. Frost v. Forran, 24 Ohio St., 536.
   Burket, J.

The Cleveland Dairy and Transportation Company had many creditors, and the action below was brought for and in behalf of all of them, and the exceptions were taken and error prosecuted in the same manner. The defendants in error now claim that as only one creditor, Newton Herrick, has filed a petition in error in this court, all the other creditors are content with the judgments below, and that in case of a reversal, such reversal can correct only the injury which Newton Herrick has sustained, and that no relief can be extended by this court to the other creditors.

This claim is not tenable. Newton Herrick commenced the action in behalf of all the creditors, to collect a fund for the common benefit of all, and the action taken by him in their behalf inures to their benefit, whether taken in the court of common pleas upon his pleadings in that court, or in the circuit court on appeal or error, or in this court. Throughout the whole proceedings in all the courts, the action is for the benefit of all the creditors, and in the absence of fraud or collusion they are all concluded by the final judgment as to the recovery of the fund. Wright v. McCormick, 17 Ohio St., 86; Umsted v. Buskirk, 17 Ohio St., 113; section 3260, Revised Statutes.

The circuit court finds the amount due to each creditor from the company, but renders no judgment in favor of any creditor. The order of distribution of the fund is not a judgment in favor of creditors, but an order upon the receiver to distribute the fund in his hands, whatever the fund may be. The judgment against the stockholders for the amount due from each, is the judgment to be affirmed or reversed in this proceeding in error, and the action as to the amount, is between the plaintiff in his own' behalf, and in behalf of all the creditors, on the one side, and the several stockholders, each for himself, on the other. In this contest the amount of the fund for final distribution may be increased or diminished, but the finding of the court as to who are creditors, and the amount due to each, will not thereby be affected, and therefore the several creditors are neither necessary, or proper parties to such proceedings in error. Whatever the final fund for distribution may be, the order of the court for its distribution among the creditors pro rata, will stand unaffected by the result of the proceedings in error. If the plaintiff in error should succeed, and increase the fund, the rate per cent, to each creditor would be increased, and in case of failure it might be diminished, or remain the same; but the order to distribute the fund, whether increased, diminished or remaining the same, would stand unreversed and unaffected by the result of this proceeding in error. The reversal here sought is only as to the amounts to be paid by the three stockholders, Wardwell, Whitacre and Kies, and to reverse or modify the judgment of the circuit court as to them, does not in the least affect any judgment rendered for or against creditors, and therefore the creditors should not be made parties to this petition in error.

In such cases against stockholders the names of the creditors and the amount due to each from the corporation, are usually ascertained by a reference to a master or referee, notice being published by order of the court for creditors to present their claims. In case of a contested claim, an issue should be ordered to be made up and tried to ascertain and fix the amount due to the creditor from the corporation. While the issue and trial as to such contested claim is a proceeding in the case, it is distinct from the proceedings against the stockholders, the one being to establish the validity of a creditor’s claim against the company, and the other to collect a fund from the stockholders for the common benefit of all the creditors.

In the next place it is claimed by defendants in error, that the milk contracts were not binding obligations, were so indefinite as to be void, and lack the element of mutuality.

The producer of milk agreed to sell to the corporation all the milk which he should produce, and the corporation agreed to pay him for all the milk shipped from April 1, 1892, to May 1, 1893, at the prices named in the contract.

While the producer is not bound to produce any certain quantity of milk, unless it may be twenty gallons per day, the corporation is bound to pay for all the milk shipped, the prices named in the contract. After performance by the producer, the corporation cannot avoid its obligation by pleading that the producer was not bound to perform the contract. The option to produce milk and thereby perform his contract was for the benefit of the producer, and when milk was produced and shipped, the obligation of the corporation to pay for it was binding, and the contract between the parties was then both definite and mutual.

The production and shipment of milk continued until the corporation made an assignment, December 15, 1892, and thereafter for the first time an attempt was made to take advantage of the weakness of these milk contracts. It was then too late. Performance by the producers without objection by the corporation, or its officers or stockholders, had then cured whatever weakness there may have been in the contracts. Fishmonger's Company v. Robertson, 5 Man. & G., 131; Phelps v. Townsend, 8 Pick., 392; Commercial Bank v. Nolan, 7 How. (Miss.), 518; 1 Parsons on Contracts, 451; Stahl v. Van Vleck, 53 Ohio St., 136; Himrod Furnace Co. v. Cleveland & Mahoning R. R. Co., 22 Ohio St., 451.

Next it is urged by defendants in error that the debts for milk delivered under the contracts, accrued, not at the date of the execution of contracts but at the time of the delivery of the milk.

The language of the Constitution, Article XIII, section 3, is as follows: “Dues from the corporation shall be secured by such individual liability of the stockholders, and other means, as may be prescribed by law; but in all cases each stockholder shall be liable over and above the stock by him or her owned, and any amount unpaid thereon, to a further sum, at least equal in amount to such stock.”

Section 3258 of the Revised Statutes of Ohio reads as follows: “The stockholders of a corporation which may be hereafter formed, and such stockholders as are now liable under former statutes, shall be deemed and held liable, in addition to their stock, in an amount equal to the stock by them subscribed, or otherwise acquired, to the creditors of the corporation, to secure the payment of the debts and liabilities of the corporation.”

Stockholders are liable to secure the payment of the “dues” from corporations, as well as the “debts and liabilities” thereof. The liabilities mentioned in the statute are to the “creditors” of the corporation, but in the constitution “creditors” are not named. The word ‘ ‘creditor” cannot have the effect to limit, or narrow the words “dues, debts and liabilities.” Whoever has a claim against a corporation which falls within the terms, “dues, debts or liabilities,” is a creditor of such corporation within the .meaning of the constitution and statute under consideration.

When the corporation executed these milk contracts, it thereby incurred a liability to pay for all the milk which should be shipped under said contracts. Whether an end could have been put to this liability by the corporation before the expiration of the time limited in such contracts, we need not now inquire. It is enough to say that no attempt was made to avoid the contracts, and that the shipment of milk continued under the contracts until the corporation made an assignment. The liability on the contracts for the debts arising from the delivery of milk thereunder, therefore accrued at the time of the signing of the contracts, and under the authority of Brown v. Hitchcock, 36 Ohio St., 667, the defendants in error remained liable on their stock for the milk shipped after they assigned their stock to insolvent persons. But the defendants in error are liable also upon another ground, even though, it be conceded that the debts or liabilities for milk did not accrue until the delivery of the milk. It is conceded that they were stockholders when the milk contracts were made, that they continued to hold their stock until late in August, 1892, that no stock book showing transfers was kept, that the only record kept of the issuing of stock was the entry on the stubs left after removing’ the stock certificates, and that while the stubs of the new certificates issued to the purchasers of this stock showed from whom the stock was received, the stubs of the certificates issued to the defendants in error did not show that said stock had been sold or transferred.

As there was no regular stock book showing transfers kept by the company, the stock certificate book and stubs were made to take its place, and upon these stubs and upon the stock subscription book, the names of these defendants in error stood as stockholders; and it is well settled that all whose names so stand upon the stock book, are liable as stockholders to those dealing with the corporation, until the stock book shows that such stock has been transferred, or disposed of in some other way.

It, is urged in behalf of defendants in error that as the stubs of the stock issued to the purchasers thereof showed that the stock was received from the defendants in error, such stubs were notice to the world that, such defendants were no longer stockholders, even though the stubs of the original issue of the stock to them still showed defendants in error to be stockholders, and nothing appeared on those stubs to show a transfer of their stock. This claim is not sound.

By section 3254, Revised Statutes, it is provided that a book shall be kept by the corporation for the purpose of registering therein all subscriptions and transfers of stock, and it is made the duty of the directors to keep such record, and of the secretary to register in such book all subscriptions and transfers of stock; and it is further provided that whenever any certificates of stock are assigned and delivered by a stockholder, the assignee thereof shall be entitled to have the stock transferred to him upon the books and to have his name enrolled as a stockholder.

It is not the assignment and delivery of the certificates of stock, that relieves the stockholder trom liability for the debts of the corporation, under this section, but the transfer of the stock on the books; because after such transfer the old stockholder no longer stands as a stockholder on the books of the company. The stock book is notice to the world as to who are the stockholders of the corporation, and the statute has provided how the book and transfers shall be kept, and this provision is for the protection of the public, and to inform stockholders as to their liability, and how and when an end may be put to such liability.

If this corporation had kept a stock book showing transfers, and these defendants in error had caused their stock to be transferred on such book, they could not be held liable for debts thereafter incurred. Instead of obeying the statute in this regard, they resorted to the practice of keeping the stock account and tranfers on the stubs, supposing that to be as good as a regular stock book. In this they were mistaken. A stock book would have shown the subscription and transfer in the same account, but the stubs of the old certificates showed only that the stock had been issued, and failed to show that it had been transferred. True, the stub of the new certificate showed from whom the stock came, but the stub of the old certificate failed to show where the stock had gone, or that it had been transferred at all. The whole stub book taken together might have shown the transfer of this stock, but the public cannot be put off with less than the statute gives them. An ordinary man, like a producer of milk, would not likely look further than to find the names of these defendants in error upon the stock subscription list and old stubs, and would not carefully go through the book, and check up the stock to see whether any of the stock appearing on the stubs had been transferred, and he should not be required to do so. If the old stubs had shown that the stock had been transferred, there would be something to support the claims of the defendants in error, but as it is, they clearly stand on the old stubs and subscription list as stockholders, and therefore liable for the debts arising from the delivery of milk, up to the date of the assignment made by the corporation.

The statute having prescribed the manner of keeping the record of the subscription and transfer of stock, a different'method will not be upheld, unless it is shown to be equally as good and convenient as the one provided by statute. Stockholders cannot escape liability by pursuing a course different from that provided by statute, and which imposes additional burdens upon the public, or makes it more difficult to ascertain who the stockholders are. The public has a right to rely upon the statute, and are entitled to its provisions, or its full equivalent.

It follows that the circuit court erred in not rendering judgment against the defendants in error for an amount equal to the amount of their stock. The judgment of the circuit court will be modified by rendering judgment against the defendants in error for the remainder of their liability.

Judgment acoordingl/y.


author: Williams, J.

text:
    State ex rel. Attorney-General v. McLain. State ex rel. Attorney-General v. Ganson.

      Quo Warranto action against civil officer — Section 6760, Revised Statutes — Removal of sheriff or mayor for failure of duty.

    1. In order to maintain an action in quo warranto against a civil officer under the second clause of section 6760, of the Revised Statutes, the act complained of must be one which is made by statute a ground of forfeiture of his office.
    2. Where the causes of removal from office are prescribed by statute which also provides a special mode of procedure for such removal, the statutory remedy is the exclusive one, and quo warranto will not lie.
    3. Quo warranto is not the proper remedy for the removal of.a sheriff or mayor from office for failure to perform official duties required in the suppression of mobs and riots and the arrest of the offenders.
    (Decided April 19, 1898.)

      Quo Warranto.
    These cases involve questions that are somewhat similar in their nature, and were argued and submitted together on general demurrers to the petitions.
    The cases are sufficiently stated in the opinion.

      F. 8. Monnett attorney-general, and Wilbur King, for the state.
    Article 4, section 1 of the constitution provides:
    “The judicial power of the state is vested in a Supreme Court, circuit courts * * * and such other courts inferior to the Supreme Court as the General Assembly may from time to time establish. ’ ’
    Section 2 of said article provides :
    “It shall have original jurisdiction in quo warranto, mandamus, habeas corpus and procedendo, and such appellate jurisdiction as may be provided by law.”
    Can a legislature enlarge or diminish this original jurisdiction? The answer to this question is not a new one to this court. Kent v. Mahaffey, 2 Ohio St., 49'8; Knapp v. Thomas, 39 Ohio St., 384; Eggleston avenue case, 53 Ohio St., 238.
    So far as the legislature has attempted to speak upon the subject of quo warranto, in reference to the forfeiture of a public office by the acts of the incumbent, appears in section 6760.
    We claim the constitution gives full jurisdiction in quo warranto, and that if the foregoing statute should attempt to limit it or restrict it, the same would be inoperative as to such restriction.
    What were the duties of the sheriff, and what would work a forfeiture ? The office of sheriff is one of the oldest recognized executive offices in the history of the government. He is a county officer representing the executive or administrative power ; and all the powers of the state within his county. The office is said to have been created by King Alfred when he divided England into counties ; but Lord Coke is of the opinion that it is of still greater antiquity, and ranks the position as one of the greatest power and dignity below the king. Coke, 2 Institute, 454; 2 Blackstone, 832.
    Our statutes pertaining to the duties of sheriff, vest in him and require of him substantially all the duties required at common law. But as appears in section 4970 the common law itself is included in his duties, for it provides the sheriff shall * * * perform the duties enjoined upon him by statute, and by the common law. (51 O. L., 57.) (S. & C., 1130. S. & S. 572.) Sections 6905, 6907, 6908, 6917, 6894, Revised Statutes.
    It is conceded by the demurrer that he violated section 6894.
    The constitution of the state, article 15, section 7; section 3, Revised Statutes.
    Section 6, article 10, of the constitution relied upon by counsel for the defense, does not in any way militate against this view. People v. Hartwell, 67 Cala., 11; Chisholm v. Coleton, 43 Ala., 204; McKim v. Somers, 1 Pa.R., 297; Hunter v. Rutledge, 6 Jones, L. N. C., 216; 58 N. Y., 295; 23 Wend., N. Y.,193.
    Inasmuch as the Ohio statute requires a sheriff to perform all the duties imposed upon him by common law, he should be equally amenable in quo warranto under the common law, for the breach thereof. Throop on Pub. Officers, 418 ; Buller, N. P., 206; Rex v. Richardson, 1 Burr, 517;
      People v. StocMng, 59 Barb., 574; Prentiss on Police Powers, 344.
    Under our system of laws, the state must extend its protection to the lives, limbs, health, comfort and quiet of its citizens, and the protection of the property of the state. To do this it is necessary and incumbent upon the public servant to honestly and faithfully perform every duty imposed upon him by law. And execute every trust imposed on him for the benefit of the public. Cooley on Torts, 2 Ed., 442; 3Kent, 297; lBurr, 517; 1 Burr, 538; 2 Binn, 441; 4 Binn, 448; 5 Binn, 486 ; 123 U. S., 664; 54 N. Y., 532; 100 111., 103; CJlarh v. Miller, 54 N. Y., 528; Prentiss on Police Powers, 267; Mugler v. Kansas, 123 U. 8., 664; Keith v. Howard, 24 Pick., 292; Throop on Public Officers, section 419; Ex parte Whitwell, People v. Brooks, 1 Den., 457; In re Jacobs, 98 N. Y., 198; Bloom v. Richards, 2 Ohio St., 387; People v. Den-ton, 2 Johns cases, note c. p., 377; 1 Hawk, C. C., 661; State v. Lazarus, 39 La. Ann., 161; 2 Johns cases, 277, note (a); Andrews v. King, 77 Me., 332.

      Louis D. Johnson-, E. P. Middleton and H. M. Grow, for defendants.
    The whole question as to the defendant, Louis H. McLain, sheriff, is determined by reference to sec • tion 6 of article 10 of the constitution of Ohio, and legislation, or rather the lack of it, thereunder. State ex rel. v. Hawkins, 44 Ohio St., 110; State ex rel. v. Man-low, 15 Ohio St., 134.
    Unless some statute is found providing a cause of removal of such officer, md prescribing the manner in which it shall be d me, such officer cannot be removed Cc istitution, article 13, section 6.

      The provision relied on being equally applicable to removals of all kinds of officers, and the constitution itself declaring that it does not give the power contended for, as to some classes, it follows that it does not exist as to the others.
    There are a large number of statutes creating various grounds of removal from different offices, and in every case, so far as we have noticed, specifying- the manner of such removal. Now, we contend that an enumeration of these specific causes of removal, and manner of effecting the same, by necessary implication negatives any general and omnibus authority to remove by quo warranto for any cause, or alleged cause. Constitution of Ohio, article 2, section 1.
    And see, if necessary, reference to well-known authorities cited under said section found in any edition of Revised Statutes.
    There is no provision of the constitution preventing the general assembly from committing the trial of the right to an office to any tribunal in the state, whether the contention is that such office is either originally usurped or forfeited by overt act; and it has been done in a variety of instances, in one case, that of circuit judges, the Supreme Court itself being named by the legislature as the tribunal, which this court held valid in the case of State ex rel. Wear v. Shearer, 46 Ohio St., 275.
    It is further settled law, that when the legislature has made provision for removal of an official,by statute, such statutory proceeding is exclusive, and this court has no jurisdiction in quo warranto. State ex rel. Grisell v. Marlow, 15 Ohio St., 114.
    In every case in which the legislature has provided for the forfeiture of an office it has prescribed the manner of removal.
    Such is done for certain causes in respect to a sheriff. Revised Statutes, section 1329.
    Revised Statutes, sections 1732 to 1736 and 17206 provide ground of removal of a mayor, among other municipal officers, and minutely detail the proceedings necessary thereto, giving jurisdiction to the probate court.
    The above is for specific causes, but there is a general provision for the removal of municipal officers, including mayors. Revised Statutes, section 1685.
    The following are some provisions presenting causes and manner of removal of officers: County
    auditor, Revised Statutes, sections 1031 and 1032; county treasurer, Revised Statutes, section 1134 ; county surveyor, 1185; clerk of court, 1246; any officer, for bribery, etc., 6900; same for extortion; 6909; sheriff, 6917.
    Now we ask, if there is plenary power lodged anywhere for the removal of any officer, for any cause, why has the legislature specified the above causes and prescribed means as above for such removals ?
   Williams, J.

The first of these actions is brought to oust Louis H. McLain from the office of sheriff of Champaign county, which he now holds ; and the object of the other is to oust .Charles H. Cansón from the office of mayor of the city of Urbana.

It is charged against the sheriff that, in June, 1897, he forfeited his right to the office by suffering a mob to rescue from him and lynch a prisoner by the name of Mitchell then in his custody in the county jail, and by his failure to make proper proclamation to disperse the mob, cause the arrest of the persons composing it, and employ the military force at his command for the protection of the prisoner. And the charge against the mayor is, in substance, that when, on the occasion above mentioned, the mob assembled in the city of Urbana for the avowed purpose of taking Mitchell from the county jail and lynching him, the mayor not only failed to make proclamation commanding the mob to disperse, or take any measures for its suppression, but actively encouraged and incited it in its contemplated purpose, and resorted to subterfuges and misrepresentations to prevent the military force then present from interfering with the designs of the mob and affording protection to the prisoner. The charges in each case are set out in detail in the petitions filed against the respective parties, and constitute most flagrant violations of official duty which cannot be too severely condemned. Their truth is admitted by the demurrers, and the only question raised is whether quo warranto is the appropriate action in such cases. It is first contended in behalf of the state, that the action is authorized by the second clause of section 6760, of the Revised Statutes, which provides that such action may be maintained, “against a public officer, civil or military, who does or suffers an act, which, by the provisions of law, works a forfeiture of his office.” The question arising here is, what is meant by the phrase “ the provisions of law” contained in the section.

By the rule of the common law, the faithful performance of the duties of an office was the tacit condition upon which the continued right to hold the office depended, and any breach of that condition constituted cause for the the forfeiture of the office. It was said by Lord Mansfield in Rex vs. Richardson, 1 Burr, 517, 538, that there were three classes of offenses for which an officer might be removed: “(a), Such as have no immediate relation to his office, but are in themselves of so infamous a nature as to render the offender unfit to execute any public office, (b), Such as are against his official oath and his official duties, and amount to breaches of the tacit conditions annexed to his office, (c), Those that are of a mixed nature; not only being a violation of his official oath and a breach of the tacit conditions annexed to his office, but also indictable.” It is therefore obvious that if, under the clause above quoted from Section 6760, an action in quo warranto can be maintained against an officer who does or suffers an act which by the rules of the common law worked a forfeiture of the office, the demurrer to the petition against the sheriff is not well taken. It is the duty of the sheriff, says Lord Coke: “To preserve the peace in his bailiwick or county. To this end he is the first man within the county, and it is incident to his office that he apprehend and commit to prison all persons who break or attempt to break the peace. He is bound, ex-officio, to pursue and take all traitors, murderers, felons and rioters. He has the safe-keeping of the county jail, and must defend it against all rioters; and for this, as well as for any other purpose, in the execution of his duties, he may command the inhabitants of the county to assist him, which is called the posse comitatus,” Sheriffs in this state are expressly charged by statute with these duties, and clothed with these powers. Revised Statutes, sections 1311, 4790.

But our constitution has vested in the legislative body the power to determine for what causes and in what manner removals from public office may be made. Section 6, of article 10, provides : “ Justices of the peace and county and township officers may be removed in such manner and for such cause as shall be prescribed by law. ’ ’ The evident design of this provision of the constitution was to commit the subject of removals from office to the general assembly, and leave it to the legislative discretion to prescribe the causes for which removals may be made, and the mode of procedure in such cases. The legislature has accordingly exercised its discretionary power in this respect, and in numerous instances enacted laws prescribing the causes for which public officers may be removed, and the manner of their removal. Revised Statutes, sections 1031, 1032, 1134,' 1185, 1246, 1329, 1685, 1732, 1736, 6900, 6909, 6917. In view of these provisions of the constitution and statutes, it is to be presumed that by the clause of section 6760, authorizing an action in quo warranto against an officer who has done or suffered an act which by the provisions of law forfeits his office, the legislature meant and intended such act as has been made a cause of forfeiture or removal by statute; and this, we believe to be. the proper interpretation of the clause. It becomes necessary, therefore, to inquire whether the offenses charged against the defendants come within that category. The only statutory provisions to which we have been referred, or of which we are aware, that prescribe causes for the removal of sheriffs, are those contained in sections 1329, 6900, 6909 and 6917 ; and the last of these sections is the only one that has any relevancy to this case. It provides that a sheriff, who willfully refuses or neglects to perform any duty he is required by law to perform in any criminal case or proceeding, or who delays to serve any warrant, legally issued in any criminal case, which is delivered to him to execute, when in his power to serve the same, either alone, or by calling assistance, shall be punished by fine and imprisonment, and, on conviction, may be removed from office by order of the court. Conceding, without deciding, that an offence within this section is charged in the petition against the sheriff, his removal from office under its provisions can only follow after conviction; and, as this is the specific mode prescribed for his removal in such cases, that method must be pursued. The remedy being prescribed by the statute which creates the cause, is exclusive.

It is argued, however, in behalf of the state, ' that quo vjarranto is the appropriate action for the trial of title to an office; and that by section 2, of article 4, of the constitution, original jurisdiction in such actions is conferred on this court, of which it cannot be deprived, in any degree, by legislation. But that provision of the constitution should be construed with others in pari materia, and each so restrained as to give harmonious effect to them all. And hence, the jurisdiction conferred by that section is subject to such legislative control as is authorized by other provisions of the same instrument; and legislation enacted in obedience to such provisions has the same effect as if contained in the constitution itself. In instance of this, by section 21, of article 2, power is conferred on the general assembly to provide by law “before what authority, and in what manner the trial of contested elections shall be conducted;” anda statute enacted in the exercise of that power was held, in the State v. Marlow, 15 Ohio St., 114, to afford the exclusive remedy in such eases, and withdraw them from the jurisdiction of this court in quo xoarranto, notwithstanding the latter mode of inquiry, in the absence of such a statute, was the appropriate one in such cases. Upon the same principle, legislation enacted in pursuance of section 6, of article 10, of the constitution, prescribing the causes and manner, for the removal of public officers otherwise than by proceedings in quo warranto, must have the effect of affording the exclusive remedy in cases of that kind.

So, by sections 1732 — to and including 1736 of the Revised Statutes, a complete and speedy remedy is provided for the removal of mayors and other officers of municipal corporations, for any misfeasance or malfeasance in office. Complaint may be filed in the probate court by any elector of the corporation, and a trial thereon be had in that court, by jury, if demanded, followed, if the complaint be sustained, by judgment of removal; in which case, the vacancy is required to be filled as is generally provided by law for the filling of vacancies in those offices. Error may be prosecuted by the accused, but he is not permitted to exercise the functions of the office until the judgment is reversed or vacated.

It can hardly be supposed that the legislature intended the remedy thus specifically provided, to be concurrent merely, with that of quo warranto. True, the one is instituted on complaint of the individual elector, and the other prosecuted in the name of the state; but the state, as well as the individual, is bound by the statute, which was enacted, we apprehend, with the twofold purpose of affording the accused in all such cases the right of a speedy trial by jury, and of relieving courts, invested with original jurisdiction in quo warranto, of the trial of that class of cases. And as the statute prescribes the causes for the removal from office and also provides the mode of procedure to accomplish the removal, under the well established rule the remedy thus provided must be regarded as the exclusive one in those cases. We are therefore constrained to hold that the charges against these defendants cannot be inquired into in this proceeding.

Demurrer sustained, and the petitions dismissed.