author: By the Court. Jones, J.,

text:
    The State, ex rel. ClenDening, v. Rose et al.

      Remedies — Mandamus—Restoration to office — -Removal for misconduct in office — Participation in referendum.

    (No. 15045
    Decided December 11, 1915.)
    In Mandamus.

      Mr. T. S. Hogan and Messrs. McGhee, Davis & Boulger, for relator.

      Mr. Edward C. Turner, attorney general; Mr. A. O. Dickey; Mr. Charles A. Reid and Mr. J. Howard Secrest, for respondents.
   By the Court.

Mandamus is the proper remedy to restore a party to the possession of an office from which he has been illegally removed. The State, ex rel. Moyer, v. Baldwin, 77 Ohio St., 532; Karb, Mayor, v. The State, ex rel. Carter, 87 Ohio St., 197, and The State, ex rel. Stafford, v. The State Board of Appraisers and Assessors, 84 Ohio St., 505.

A peremptory writ is awarded for the reasons stated in the opinion in the case of The State, ex rel. Nolan, v. ClenDening et al., ante, 264.

Peremptory writ awarded.

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

Newman, Jones and Matthias, JJ., concur as to the insufficiency of the charges, but do not' concur as to form of remedy.

Jones, J.,

dissenting. The relator invoked the wrong remedy when he brought his action in mandamus. The correct legal principle involved may be determined from the following brief, though salient, facts presented in the case:

The governor of the state, upon charges filed, removed the relator and appointed one Edward J. Hurst as his successor. Hurst then qualified and took possession of the office under the color of his appointment as a de facto official. The relator brought an action in mandamus against Rose and Hay, as liquor license commissioners, to compel them to sign and deliver to him a voucher for his monthly salary. In this action neither the governor nor the rival claimant was made a party thereto. Under this state of facts it is clear, upon both principle and authority, that the form of the action brought was not available for the purpose of trying the title to the office in question. Concededly the right of the relator, ClenDening, to his salary depended upon his reinstatement as an official de jure. It might be conceded that though the form of the action was in mandamus, yet had Hurst, the rival claimant, been made a party to the proceeding, the entire controversy may have been tried in such an action as if brought in quo warranto, and proper judgment made between the contesting parties. But Hurst was not a party, nor was the governor, who was the only other person interested in the removal of the relator.

That an action of this character . cannot be brought to test the title to office by a de jure claimant, where the de facto incumbent in possession has not been made a party thereto, has been decided by the overwhelming weight of authority in this country. This principle has also been adhered to in England, where, in 1855, in the case of Frost v. The Mayor of Chester, 5 El. & Bl., 531, Lord Campbell, C. J., said: “It is a clear point in municipal law that, where a man is bona fide in office, his title is not to be tried by mandamus, but by quo warranto.”

In the same case, Lord Coleridge in concurring used the following language: “I am of the same opinion. A mandamus goes only on the supposition that, there is no one in office.” In this judgment Wightman and Erie, JJ., concurred.

This principle has been established generally by the courts of this country. High on Extraordinary Legal Remedies, Section 49, upon that subject, contains the following text:

“And the rule may now be regarded as established by an overwhelming current of authority that when an office is already filled by an actual incumbent, exercising the functions of the office de facto and under color of right, mandámus will not lie to compel the admission of another claimant, or to determine the disputed question of title. In all such cases the party aggrieved, who seeks an adjudication upon his alleged title and right of possession to the office, will be left to assert his rights by the aid of an information in the nature of a quo warranto, which is the only efficacious and specific remedy to determine the questions in dispute. And whenever it is apparent on the face of the pleadings that the issue presented involves a determination as to the person properly elected to an office or entitled to exercise its functions, the writ of mandamus will be withheld.”

In 2 Spelling on Injunctions and Extraordinary Remedies (2 ed.), Section 1383, the rule stated is confirmed as follows:

“Generally, when the opposite party in possession sets up a bona fide claim to the office under color of title, the application for mandamus will be dismissed, and the relator left to resort to proceedings in quo warranto as the more appropriate action to try the conflicting claims of the contestants.”

The reason for the adoption of this rule is obvious. The quo warranto statutes of Ohio have provided an adequate and appropriate remedy to try the question of title between rival claimants. Where the title is attempted to be determined, as in the present case where the de facto incumbent who is in possession under color of right has not been made a party, the proceeding may become merely ex parte by reason of the fact that the rival claimant, the party who is actually interested and in possession of the office, has not been made a party to the action.

Let us take, for instance, the present case. Hurst was not made a party; had he been, he could have tendered to the court his defense and had the issue squarely presented and tried between the rival claimants for the office. The only parties to the proceeding here were Rose and Hay, mere ministerial officers whose duties were simply to sign the vouchers for the payment of salary. It can easily be conceived that these defendants, who were merely nominal parties, might not have the least interest in the case which they cared to defend; or, one may easily imagine a case in which nominal parties defendant might be in collusion with the relator or suffer a judgment by default to be taken against- them. These considerations, together with other sufficient reasons, would lead to the conclusion that upon vital issues affecting the title to public office, the persons interested should be made parties to the action, and that action should be in quo warranto as provided by the statute.

Since the incumbent, Hurst, is in possession and discharging his public duties, there is no special public interest demanding the immediate use of the extraordinary writ of mandamus. Public interest can well afford to await' the final determination of the issues between the rival claimants.

Counsel for the relator have cited a large number of cases and dicta, many of which. are not germane to this case. Many of these cases are based upon the early case of Dew v. Judges, 13 Va. (3 Hen. & Mun.), 1, which is entirely out of harmony with the current of modern authority. Some of the cases cited are not apposite, for the reason that the de facto officer was made a party to the action in mandamus and the court conceived that it had a right, having both the rival claimants before them, to adjudicate the issue of the title to office between them.

The case of Lawrence v. Hanley, 84 Mich., 399, is cited, but an inspection of that case shows that the relator was the incumbent of the office and held as such both de jure and de facto. The later case of Hartwig v. The Mayor of Manistee, 134 Mich., 616, correctly defines the position of the Michigan courts, that in cases of this character mandamus is not the proper remedy. A lower court decision, People, ex rel. Howard, v. Board of Supervisors, 59 N. Y. Supp., 476, is also cited in support of the position of the relator, but a later New York case, decided by its court of last resort, correctly states the rule in People, ex rel. Sulzer, v. Sohmer, Comptroller, 211 N. Y., 565, where Governor Sulzer, who had been removed from Office, sought by action in mandamus to compel the comptroller to pay his salary as governor. That court held in its syllabus that “A proceeding by mandamus to which the incumbent of the office is not a party is not a proper or available remedy to try the title to an office held by another person.”

In support of this obviously correct principle, applying to cases of this character, are the following cases: Daugherty v. Flippinger, 177 Ill. App., 522; Leonard v. Terre Haute, 48 Ind. App., 104; and French v. Cowan, 79 Me., 426, the pertinent proposition in the syllabus of the latter case being that “Mandamus is not an appropriate remedy to try the title 'to an office as against one actually in possession under color of law.”

The judgment in the case at bar is based on authority of The State, ex rel. Moyer, v. Baldwin, 77 Ohio St., 532; The State, ex rel. Stafford, v. State Board of Appraisers and Assessors, 84 Ohio St., 505, and Karb, Mayor, v. The State, ex rel. Carter, 87 Ohio St., 197. These cases are clearly distinguishable from the one at bar.

In The State, ex rel. Moyer, v. Baldwin, supra, the first proposition of the syllabus is as follows: “Mandamus is the proper remedy to restore a party to the possession of an office from which he has been illegally removed.”

In that case the court held that the removal was wrongful because it was accomplished without authority of statute, and that the mayor had no original power or jurisdiction to enter upon any hearing. It was this lack of statutory authority that gives vitality to the word “illegally” in the syllabus.

If in the present case the governor had not the power of removal or of appointing relator’s successor under the laws of our state, if the attempted action were taken by some officer of the state other than the governor in disregard of the statute, clearly Hurst would be a mere usurper, holding the office without colorable authority. But here the governor had not only the power of removal, but also the power of appointment, under the statutes of the state. His removal of the relator, followed by the appointment of his successor, constituted the latter a de facto official, whose commission gave him a color of legal authority for the occupancy of the office.

In this connection the two New Jersey cases cited and relied on by the learned judge who delivered the opinion in The State, ex rel. Moyer, v. Baldwin, supra, clearly establish the legal principles that apply. In The State, ex rel. Mason, v. The Mayor of Paterson, 35 N. J. Law, 190, the court affirmed the use of the extraordinary writ of mandamus, rather than quo warranto, because “there was no appointing board, and those who attempted to act had no authority.” The respondent therefore could have no color of right. The same distinction was also made in the case of Leeds v. Atlantic City, 52 N. J. Law, 332, in a syllabus applicable to the present case:

“1. When an office full de facto of a person claiming it under color of right, the proper remedy to test the claimant’s title is quo warranto, and not mandamus. . ■

“2. An office is deemed to be full de facto whenever a person elected has been admitted to it, notwithstanding the election may, upon legal grounds, turn out to be invalid; provided, such election is consistent with an honest misapprehension of the law, and not evidence of a palpable disregard of its provisions.”

Likewise, in the case of Karb, Mayor, v. The State, ex rel. Carter, supra, the count held that the mayor had no authority to remove the chief of police under the existing law. However, the character of the remedy was not involved or referred to in that case. The same question — lack of statutory power — was also made in the unreported case of The State, ex rel. Stafford, v. State Board of Appraisers and Assessors, supra. All three cases, however, preserve the merit at least of invoking the writ directly against the officials causing the removal. In this respect these cases are quite dissimilar from the instant case, where the remedy is sought against the paymasters only, as was attempted but denied in the cases of Hartwig v. The Mayor, supra, and People, ex rel. Sulzer, v. Sohmer, supra.

An examination of the record discloses that in removing the relator and appointing his successor, the governor was acting under the provisions of law and not in its palpable disregard. Charges were made and filed, a full hearing had and, under the statutory power given him, the governor removed the relator and appointed a successor in his stead. His warrant for his action was the statutes of the state-, and there was no violation of statute, as developed in the case of The State, ex rel. Moyer, v. Baldwin, supra. Whether the charges filed were insufficient or otherwise, or whether the facts supported the charges made, cannot be inquired into in a proceeding of this character, since quo warranto has been uniformly held to be the proper action in cases of that character. In at least three cases in this state quo warranto was the remedy employed where the removing officials attempted to remove upon insufficient charges. The State, ex rel. Attorney General, v. Hawkins, 44 Ohio St., 98; The State, ex rel. Meader et al., v. Sullivan, 58 Ohio St., 504; The State, ex rel. Attorney General, v. Hogland et al., 64 Ohio St., 532.

In all these cases the attempted removal was made upon alleged insufficient causes, but in each of them the remedy employed was quo warranto and the defendants in each case were de facto incumbents of the office.

Section 12287, General Code, provides that a writ of mandamus must not be issued in a case where there is a plain and adequate remedy in the ordinary course of the law. “The existence of a specific statutory remedy will exclude mandamus.” 26 Cyc., 175.

An adequate remedy, therefore, having been provided by statute, whereby the rival claimants could try out the question of who had the title to the office of liquor commissioner, that remedy should have been pursued. Mandamus should not have been invoked against mere paymasters, who at best were mere nominal parties in the case.

Newman and Matthias, JJ., concur in the dissenting opinion.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Griffith v. The State of Ohio.

      Criminal law — Indictment for obtaining money by false pretenses —Plea in bar — Prior conviction of embezzlement — Error to sustain demurrer — One acquitted of forgery and issuing false check — Cannot be convicted of obtaining money by false pretenses, when — Evidence—Charge to jury.

    (No. 14887
    Decided December 11, 1915.)
    Error to the Court of Appeals of Hamilton county.
    On the 17th day of February, 1914, the grand jury of Hamilton county, Ohio, returned into common pleas court an indictment containing three counts.
    The first count charged the plaintiff in error, John C. Griffith, with forgery; the second count charged him with uttering and publishing a false and forged instrument; and the third count charged him with obtaining by false pretenses the sum of $2,000, the property of The Second National Bank of Cincinnati, Ohio.
    To this third count of the indictment John C. Griffith filed a plea in bar, averring, among other things, that at a former term of the common pleas court of Hamilton county, Ohio,- a certain indictment was presented by the grand jury against him, charging him with embezzling the sum of $5,-434.06 of the personal property of The Westlake Construction Company, to which indictment he had entered a plea of guilty and had been sentenced by the court to the Ohio penitentiary for an indeterminate period, but that this sentence of the court had been suspended during his good behavior; that the $2,000 charged, in the third count of the indictment to have been secured by him by false pretenses, was part of the $5,434.06 of which he had theretofore been indicted and convicted of embezzling from The Westlake Construction Company.
    The court sustained a demurrer to this plea in bar. Upon the trial of the accused upon this indictment the court rejected evidence tending to show that the defendant had been indicted and had pleaded guilty and was sentenced for the embezzlement of $5,434.06, the property of The Westlake Construction Company, and that this included the $2,000 that he is charged in this indictment with having obtained from The Second National Bank of Cincinnati, Ohio, by false pretenses.
    The trial court permitted a witness called by the state to testify from memory as to the items shown by the books of The Westlake Construction Company to. have been included in the embezzlement charge, and he testified that this $2,000 was not a part of the sum named in that indictment.
    The court, upon request of the counsel for the defendant, charged the jury that if this $2,000 was included in the sum named in the indictment charging the defendant with embezzlement, then there could be no conviction on the third count of this indictment. Later, in the general charge, the court took from the consideration of the jury all questions of the previous indictment for embezzlement and all questions as to the amount being the same or not,, giving as a reason therefore that “there is no charge in this indictment covering the ground of embezzlement or covering the ground of obtaining money by false pretenses under an act of embezzlement, that is to say, on the question of this third count.”
    The jury found the defendant not guilty of forgery as charged in the first count of the indictment, not guilty of uttering a false and forged instrument as charged in the second count of the indictment, but guilty of obtaining property by false pretenses as charged in the third count of the indictment.
    The petition in error contains other assignments of error not necessary to be considered in the disposition of this case.

      Messrs. Cogan, Williams & Ragland, for plaintiff in error.

      Mr. John V. Campbell, prosecuting attorney, and Mr. Walter M. Locke, assistant prosecuting attorney, for defendant in error.
   By the Court.

A demurrer to a plea in bar to an indictment should be sustained where it appears from the plea that the offense charged in the indictment and 'the offense of which the defendant claims to have theretofore been acquitted, convicted or pardoned is not the same offense.

In the trial of an accused upon an indictment charging the obtaining of money under false pretenses it is error in the court to exclude evidence tending to prove that the defendant had theretofore been convicted of embezzlement of the same money or property that is alleged in the indictment to have been proeúred by false pretenses. The record of the former indictment and proceedings had thereunder is competent evidence tending to show a former conviction of embezzlement of the same funds; in addition thereto the defendant must show by further evidence that he is the same person named in the former indictment, that the transaction is the same and the funds identical.

To constitute embezzlement it must appear from the evidence that the accused obtained possession of the money or property claimed to have been embezzled by him by virtue of his election, appointment or employment as an officer, attorney at law, agent, clerk, guardian, executor, administrator, trustee, assignee in insolvency, officer of a lodge or subordinate body of a fraternal or mutual benefit society, servant or employe of a person.

To constitute the crime of obtaining property by false pretenses it must appear from the evidence that the accused wrongfully and unlawfully obtained possession of the property by means of false pretenses. .

A separate count charging each crime may be contained in one indictment, but upon the trial of such indictment the court should instruct the jury that the accused cannot be found guilty of both crimes in reference to the same money or property.

The rule is not different where these crimes are charged in separate indictments, and if it appear from the evidence that the state has theretofore procured conviction for the embezzlement of money, the accused cannot be found guilty upon a second indictment of obtaining the same money by false pretenses.

It is further provided by Section 13578 that if there be pending against the same defendant two or more indictments for the same criminal act, the prosecuting attorney must elect upon which he will proceed, and upon trial being had upon one of them the remaining indictment or indictments shall be quashed.

It therefore follows that if these separate indictments had been returned by the same grand jury, and it were made to appear to the court that they were different indictments for the same criminal act, the state would have been required to elect upon which indictment it would proceed to trial.

It is error for a court, upon the trial of the second indictment for obtaining money under false pretenses, to charge the jury that it cannot consider any question relating to a previous conviction for embezzlement of the same property.

. Where an indictment contains three counts, one count charging forgery, another charging the issuing of a false and forged instrument, the third charging the obtaining of money under false pretenses, and the state relies for conviction on the third count in the indictment, charging the obtaining of money under false pretenses, solely upon the fact that the check presented to the bank for payment was a forged instrument, and .that the defendant, either having forged the same or knowing it to have been forged, presented it for payment, and the jury finds that the defendant is not guilty of forgery and not guilty of issuing a false and forged instrument, it should return a verdict of not guilty of obtaining money under false pretenses.

In the trial of this case the court properly charged the jury that “The defendant cannot be convicted of obtaining money under false pretenses on the third count as charged in this indictment, unless this check was forged or altered at the time he presented it to the bank. False pretenses consist in making a representation to another of an existing fact, which the party making it knows to be false at the time, with the intent that the party to whom they are made should act upon them and the party must act upon them to its detriment.”

No withstanding this charge of the court the jury found the accused not guilty of forgery and not guilty of uttering a false and forged instrument in writing, but, nevertheless, found the accused guilty of obtaining money under false pretenses as charged in the third count of this indictment.

No evidence whatever was offered by the state of any other false pretenses except that the check was forged and that the defendant, either having forged the same or knowing it to be forged, presented it to the bank and obtained the money upon it. It follows, therefore, that if this defendant was not guilty of forging this check and not guilty of issuing a forged check, knowing it to be forged, he could not be guilty of obtaining money by false pretenses when no other false pretenses were relied upon or sougjit to be proven by the state.

The judgment of the common pleas court and the judgment of the court of appeals affirming the same are reversed, and cause remanded.

Judgments reversed, and cause remanded.

Nichols, C. J., Johnson, Donahue, Wanamaker, Jones and Matthias, JJ., concur.


text:
    The Brier Hill Steel Co. v. Ianakis.

      Negligence — Special findings by jury — Confined to particular questions of fact — Section 11463, General Code.

    (No. 14921
    Decided December 11, 1915.)
    Error to the Court of Appeals of Mahoning county.

      Messrs. Hine, Kennedy & Manchester, for plaintiff in error.

      Mr. John Ruff alo and Mr. Edmond H. Moore, for defendant in error.
   By the Court.

The defendant in error, Stavros Ianakis, was seriously injured while in the employ of The McKeesport Steel Construction Company, which company was then engaged in certain construction work upon the plant of The Brier Hill Steel Company while the latter company continued to operate its plant. He commenced his action in the court of common pleas of Mahoning county against both companies, alleging in substance that while going to the platform on which he and others stood while painting the roof, in which work he was engaged as an employe of The McKeesport Steel Construction Company, it was necessary to go on the crane track in the building where said work was being done; that while on said crane track the crane started toward him, and in order to prevent being run down he stepped over onto another crane track in another building, where a second crane ran, and that he was there run down by that crane and injured so that his left leg was necessarily amputated. He charged that The McKeesport Steel Construction Company was negligent in failing to furnish him a reasonably safe'way to go to and from his work and also in failing to instruct him as to dangers ; that The Brier Hill Steel Company was negligent in permitting the operation of the crane without giving warning; failure of the operator to observe the position of Ianakis and to keep a proper lookout, and also failure to adopt reasonable rules for the operation of said cranes.

Upon .issue of negligence of defendants and contributory negligence of plaintiff being made by appropriate pleadings, the case went to trial, which resulted in a verdict for Ianakis against both defendants. A motion by The McKeesport Steel Construction Company for a new trial was sustained and later the case against it was dismissed. The Brier Hill Steel Company did not file a motion for a new trial, but filed a motion for judgment non obstante veredicto, contending that the special findings of fact rendered by the jury are inconsistent with the general verdict and that the former controlled and required judgment in its favor. This motion- was overruled and judgment rendered against The Brier Hill Steel Company, which was affirmed by the court of appeals, and to this judgment of affirmance error is now prosecuted.

The jury, in addition to its general verdict, returned its answers to interrogatories submitted, only three of which need now be stated. The first two were submitted upon the request of The McKeesport Steel Construction Company and the last on the request of the plaintiff in error. These interrogatories, with answers returned by the jury, are as follows:

“Was the negligence either of one or both of the' cranemen the sole proximate cause of the plaintiff’s accident and injuries ?” “No.”

“Did the plaintiff after climbing the column and coming up between the rails of the two crane tracks, probably throw his left leg across the old crane tracks, and remain sitting or resting there in that position before the accident and until he was injured by the old crane?” “No.”

“Was the plaintiff negligent in any degree directly and proximately contributing to his accident and injuries?” “Yes.”

The first interrogatory need not be considered, because the answer thereto is clearly consistent with the general verdict, the jury having found that the injury to Ianakis resulted proximately from the negligence of both defendants.

In requesting a submission of the interrogatory last above stated to the jury, counsel for plaintiff in error asked the court to instruct the jury, if they rendered a general verdict, “specially to find upon the following question of fact.” This interrogatory was submitted in pursuance of Section 11463, General Code, which provides:

“When either party requests it, the court shall instruct the jurors, if they render a general verdict, specially to find upon particular questions of fact, to be stated in writing, and shall direct a written finding thereon.”

This interrogatory does not call for a special finding upon a particular question of fact as contemplated by such statutory provision, but rather for a combined finding of fact and conclusion of law, which conclusion may or may not be drawn from findings of particular facts returned by the jury, and therefore should not have been submitted by the trial court. Such instruction and finding as are contemplated by the statute authorizing the submission of interrogatories, are well illustrated by the second interrogatory above stated and its answer. An affirmative answer thereto would undoubtedly have been controlling and would have required a judgment for plaintiff in error. The answer given, not constituting a special finding upon a particular question of fact, was properly disregarded by the trial court, and consequently the action of the court of appeals, affirming the judgment of the court of common pleas entered upon the general verdict, is affirmed.

Judgment affirmed.

Nichols, C. J., Johnson, Wanamaker, Newman and Matthias, JJ., concur-


author: Matthias, J.

text:
    The Toledo Railways & Light Co. v. Mayers.

      Imputed negligence — Driver and occupant of automobile — Charge to jury — Degree of care by occupant — Control and authority ■ over driver — Collision with street car at crossing.

    Plaintiff was injured as a result of a collision of a street car and an automobile in which he was riding, as the guest of the owner and driver, and in the front seat with him, said collision occurring at an intersection of highways outside the city limits, Held:

    1. That the negligence of such driver is not imputable to the plaintiff, and if the collision was caused by the negligent operation of the street car, plaintiff may recover from the operating company unless his own negligent act or omission directly contributed to cause his injury:
    2. Though plaintiff was required to exercise ordinary care for his own safety and to reasonably use his faculties of sight and hearing to observe and avoid the dangers incident to crossing such track, an instruction that he “was not exonerated from any duty at all by reason of the fact that he himself was not driving the machine” is erroneous.
    3. In such case the giving of an instruction which assumes that the driver acted upon the permission, and suggests that he was under the control and subject to the authority, of the plaintiff, constitutes prejudicial error.
    (No. 14938
    Decided January 11, 1916.)
    Error to the Court of Appeals of Lucas county.
    The defendant in error, George E. Mayers, instituted an action in the court of common pleas of Lucas county against the plaintiff in error, The Toledo Railways & Light Company, in which he sought to recover damages for injuries which he claimed to have sustained by reason of the negligent operation of one of the street cars of said company, the averments of the petition being that “said street car was being propelled at a high and dangerous rate of speed, to-wit, thirty miles an hour, and the persons in charge of said car on behalf of said defendant negligently and carelessly wholly failed to give to any person who might be traveling or being transported along said boulevard any warning by any means whatever of the approach of said car towards said boulevard, and plaintiff says that he received the injuries hereinafter set forth wholly and directly through the carelessness and negligence of the said defendant as aforesaid.”
    The defendant by answer, after admitting the collision of car and automobile and denying generally the other allegations of the petition, avers that “plaintiff was himself negligent, and that plaintiff carelessly and negligently permitted and allowed the person operating said automobile to drive said automobile at a high rate of speed so that said automobile collided with said street car, and that plaintiff carelessly and negligently failed to use his senses for the purpose of ascertaining the approach of said street car, and carelessly and negligently failed to see to it that the person driving said automobile used his senses for the purpose of ascertaining the approach of said street car and to control said automobile, and that all said carelessness and negligence of plaintiff then and there directly contributed to the injuries complained of in his petition.”
    The evidence upon the trial disclosed that an automobile in which Mayers was riding, but which belonged to and was operated by Henry F. Riek, collided with the street car of the defendant company at the intersection of a road known as Dorr street and a boulevard, a short distance outside the cor-, porate limits of the city of Toledo. Plaintiff was seated on the right side; he being a guest of the owner and driver. There were also three persons in the rear seat. The top of the automobile was up, but the curtains were not on.
    At the close of the evidence adduced by the plaintiff the defendant moved the court for an order directing a verdict in favor of the defendant, which motion was renewed at the close of all the evidence. The motion in both instances was overruled. Before argument the court gave to the jury several instructions requested by counsel for the defendant, among which were the following:
    “7. If you find that the plaintiff was himself negligent in riding in the automobile driven by Riek, and permitting same to be operated, as you may 'find same was operated by Riek, and in remaining in same after observing Riek’s manner of operation, and if you find that such negligence on the part of plaintiff proximately contributed to his injuries, your verdict must be for the defendant.”
    “8. You are instructed that plaintiff could not ride in the automobile operated by Riek and sit in the front seat beside Riek and close his eyes and ears to all possible dangers and rely entirely upon Riek for plaintiff’s safety, but that on the contrary, it was plaintiff’s duty as much as it was Riek’s to exercise such care as reasonably prudent men would exercise in such circumstances to observe and ‘avoid such impending dangers as could be observed and avoided by the use of the senses of sight and hearing/ and if you find that plaintiff failed to exercise such degree of care, and that such failure on his part proximately contributed to his injuries, your verdict must be for the defendant.”
    “13. The fact, if you find it to be a fact, that the view of the plaintiff and the other occupants of the automobile up the street car tracks to the west was obscured wholly or partially as the automobile approached the tracks, would not relieve the plaintiff from the duty of exercising his senses of sight and hearing, to ascertain whether or not a car was approaching, but would, on the contrary, require him to exercise greater care in that respect, before proceeding to cross the car tracks.”
    In the course of the general charge the court instructed the jury as follows:
    “If the accident was proximately caused by the negligence of the witness, Riek, who drove the automobile, the plaintiff cannot recover. If the negligence of Riek and the street car company concurred and acted together as you find from the evidence, then the negligence of the witness, Riek, would not be imputed to the plaintiff as contributory negligence of .his own. But as you have already been instructed, the plaintiff was not exonerated from any duty at all by reason of the fact that he himself was not.driving the machine.”
    The trial resulted in a verdict for the defendant, upon which judgment was rendered in the court of common pleas. Upon a proceeding in error in the court of appeals said judgment was reversed, and to such judgment of reversal error is now prosecuted in this court.

      Messrs. Tracy, Chapman & Welles, for plaintiff in error.

      Mr. Charles H. Masters and Messrs. Kohn, Northup, Ritter & McMahon, for defendant in error.
   Matthias, J.

The pleadings in this case present the issues of negligence of the defendant and contributory negligence of the plaintiff. The record discloses the usual conflict of various witnesses upon these issues, there being a serious and wide difference as to the speed of the áutomobile and also as to the speed of the street car, the former varying from six to thirty-five miles per hour as it approached the intersection, and the latter seven to thirty-five miles per hour. This difference is illustrative of the conflict in the evidence upon material and important questions of fact which is characteristic of many cases, particularly those of the nature of the one under consideration. Counsel for the company contended before the court of appeals, and now contend, that even if any errors were committed by the trial court, they are unimportant and should not be given any consideration now for the reason that it appears from the entire record that the plaintiff should not recover, and, hence, that it was the duty of the trial court to direct a verdict for the defendant. Upon this contention we need only to say that we find the record discloses evidence upon the issues joined which required the submission of the case to the jury, under proper instructions by the court,

The action of the trial court chiefly complained of by the plaintiff Mayers in the proceeding in error instituted by him in the court of appeals, and because of which a judgment of reversal was entered by that court, was the giving of several instructions before argument requested by the defendant, and also certain language used in the general charge which has been set out in the statement of facts.

It has long been the settled law of this state that when one is injured by the wrongful act of another, without concurring negligence upon his own part or by some one who is under his direction or control, he is entitled to recover from him who caused the injury. It is likewise settled that the doctrine of imputed negligence does not obtain in Ohio. Cincinnati Street Ry. Co. v. Wright, Admr., 54 Ohio St., 181, and cases cited.

In 1 Shearman & Redfield on Negligence (6 ed.), Section 66, attention is directed to the fact that no court of last resort in this country longer applies or approves the doctrine announced by an English court in the well-known case of Thorogood v. Bryan, 8 C. B., 115, which was, in substance, that a passenger in a public vehicle, though having no control over the driver, must be held to be so identified with the vehicle as to be chargeable with any negligence on the part of the operator, which contributed to an injury inflicted upon such passenger by the negligence of a stranger. It is then said by that authority, on page 166, that “The only remnant of this doctrine which remains in sight anywhere is the theory that one who rides in a private conveyance thereby makes the driver his agent, and is thus responsible for the driver’s negligence,- even though he has absolutely no power or right to control the driver. This extraordinary theory, which did not even occur to the hair-splitting judges in Thorogood v. Bryan, was invented' in Wisconsin, and sustained by a process of elaborate reasoning; and this Wisconsin decision, in evident ignorance of all decisions to the contrary, was recently followed, with some similar reasoning, in Montana, and in Nebraska. * * * The notion that one is the ‘agent’ of another, who has not the smallest right to control or even advise him, is difficult to support by any sensible argument. This theory is universally rejected, except in the three states mentioned, and it must soon be abandoned even there.”

It is urged upon the other hand by this authority, supported by numerous cases, that a plaintiff cannot be excused from using- due care for his own safety by showing that he relied upon a stranger to do it for him. He must still exercise ordinary care to discover dangers and avoid injury, and cannot recover damages for an injury to which he directly contributed by his own negligence. The questions of fact, therefore, to be submitted to and determined by the jury in a case such as the one before us, are whether the company, by the negligent operation of its car, caused the injury to the plaintiff, and whether the plaintiff, by his own negligence, directly contributed thereto. In submitting such questions to the jury the instructions of the court should be based upon the facts disclosed by the record. It cannot be concluded from an examination of this record that the plaintiff, who was a guest of the owner and driver of the automobile, was engaged in a joint enterprise with him within the meaning of that term as used by the court in the case of The N. Y., C. & St. L. Rd. Co. v. Kistler, 66 Ohio St., 326. Other controlling and important facts to be borne in mind are that the plaintiff was not familiar with the operation of an automobile, having never owned or driven one himself; that he had probably not ridden in one all told more than ten times previous to the time of his injury, one, two or maybe three of them having been with Riek, the owner and driver of the machine in which plaintiff was riding at the time of the collision; that from observation the plaintiff deemed him to be a careful driver.

While it cannot be questioned that the plaintiff, seated as he was beside the driver, with apparently equal opportunity to observe impending dangers, and within easy access so as to readily communicate to the driver the result of his observations, was required to so. use his faculties of sight and hearing to discover dangers incident to such crossing and apprise the driver thereof, as would a person of reasonable and ordinary prudence under the same or similar circumstances, yet the language used by the trial court not only places such requirement upon the plaintiff but goes much further and is open to the objection of being misleading and prejudicial. The language used in Request No. 7., given before argument, is particularly unfortunate, in that it assumes that the manner of operation of the automobile was with the plaintiff’s permission, and contains a very strong suggestion, and probably an influential one upon the minds of the jury, that, under the circumstances present, the plaintiff was to be regarded as having authority over Riek and some control of the actual management and operation of the automobile, and that a failure to assert such authority or assume control would necessarily constitute negligence on the part of the plaintiff.

There is some evidence that between the point of starting and the intersection where the collision occurred Riek had driven rapidly, possibly at an excessive rate of speed, and, therefore, the question as to whether plaintiff was negligent in remaining in the automobile after observing the manner of its operation was properly submitted to the jury; but there is no evidence whatever upon which to base a submission of the question of negligence of plaintiff in riding with Riek in the first instance. There is no suggestion in the evidence that Riek was an inexperienced or incompetent driver, or had theretofore operated his automobile in a manner that would indicate carelessness or incompetency to the plaintiff or any one else. Such evidence as was offered on the subject was rather to the contrary. The evidence shows that he had owned and driven the same automobile about a year and a half, and no evidence was offered of any prior manifestation of want of efficiency or lack of care, nor was there any evidence which in the least tended to show any incapacity of Riek, by reason of intoxication or otherwise, at the time Mayers accepted the invitation and entered the automobile for the ride or thereafter. It was, therefore, quite misleading to submit to the jury the question of negligence of Mayers in accepting such invitation and riding in the automobile, carrying with it as it does a suggestion that the mere act of entering the automobile may be regarded as a negligent act.

The trial court-took cognizance of the rule fixed in this and many states which holds against the doctrine of imputed negligence, and stated in the general charge that the negligence of Riek would not be imputed to the plaintiff; but other language used in the general charge serves to place upon the plaintiff the duties and requirements of the driver of the machine, which is tantamount to holding the passenger liable for any negligence of the driver, and in its effect upon the minds of the jury probably amounts to the assertion of the doctrine of imputed negligence. That is the very probable effect upon the minds of the jury of the instruction that the duties of the passenger are the same as those of the driver, and that the passenger is “not exonerated from any duty at all by reason of the fact that he himself was not driving the machine.” Although in other portions of the charge the duty of the plaintiff was defined to be that of ordinary care under the circumstances, yet it is not apparent that such language would serve to relieve the portions to which we have referred from the objection that they place an undue and unwarranted burden upon the plaintiff.

In the main we regard the instructions of the court as a correct exposition of the law applicable to such case, but for the reasons we have stated we think it is apparent that the plaintiff must have been prejudiced by the language unhappily used in defiriing the duty devolving upon the plaintiff. It follows that the judgment of reversal entered by the court of appeals is affirmed.

Judgment affirmed.

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


author: Jones, J.

text:
    Prentiss v. Dittmer.

      Elections — Offer by candidate to accept reduced salary — Against public policy, an offense and invalidates election — Section 5175-26, General Code (102 O. L., 327) — Corrupt practices act —Contest of election — Unnecessary to prove voters influenced, when — Constitutionality of salary act cannot be challenged, how — Prior conviction not condition precedent, when.

    1. An offer by a candidate for common pleas judge, made for the purpose of effecting his election to office, that in the event of his election he will accept for his judicial services only the stipulated salary payable by the state, and that he will accept nothing that may be due and payable to him from the local or county treasury, is against public policy and an offense within the purview of Section 5175-26, General Code, which, if proven, invalidates his election.
    2. By virtue of that section, such'an offense may be set forth as a ground of contest within the terms of Section 5138, General Code, and it is not necessary to prove, in such election contest based on that sole ground, that a sufficient number of voters were so influenced by such offer as to change the election result.
    3. In a case where the law provides for the payment of the judicial salary, in part from the state treasury and in part from the local treasury, the candidate cannot, in an election contest based on the infringement of the above section of the corrupt practices act, raise the question of the constitutionality of the salary act, concerning which such illegal offers were made.

      4. Elections and election contests are controlled by specific sections of the Ohio constitution. The grant of legislative power for their control is absolute, and under such provisions the legislature had full power to and did impose conditions under which elections might be invalidated; and where the proceeding is one involving a contested election, a prior conviction of the offenses named in Section 5175-26, General Code, is not required as a condition precedent to such invalidation.
    (No. 14959
    Decided January 11, 1916.)
    Error to the Court of Appeals of Henry county.
    At the November 3, 1914, election there were four candidates for the office of common pleas judge of Henry county. Prentiss received the highest number of votes thereat, the canvassing board certified his election to the secretary of state and a certificate of his election to such office was transmitted to Prentiss. Before the induction of Prentiss into office an appeal was taken from the finding and declaration of the result of the election to the court of appeals by the filing of a petition by Dittmer, under the provisions of the statute, contesting the validity of the election. The petition declared that Prentiss had received over Dittmer a plurality of 44 votes; that there was submitted to the voters of Henry county, to be voted upon at that election, the question of combining the common pleas and probate courts of that county, resulting in a favorable vote thereon; that Prentiss, as such candidate and prior to the election, printed and widely published and circulated by mail and otherwise various circulars promising to accept smaller salaries than would be legally due; that he would accept, in the event of his election, only the portion-of the salary payable out of the state treasury; that he would perform his official duties for such sum and would decline to accept any portion of the statutory portion of the salary payable out of the county treasury. Other statements in the circulars were in support of the combination of the common pleas court with the probate court at a saving of $2,150 to the county by the abolishment of the latter court; and if the courts should not be combined by the popular vote at such election he agreed not to accept the $625 lawfully payable out of the local treasury, nor the additional amount of $1,000 payable from the same source in the event of combination, but to accept only the $3,000 remuneration per annum payable out of the state treasury, and to perform, in the event of his election, his judicial duties for that sum.
    There is no allegation that any or a sufficient number of voters were induced by these alleged promises to avoid the declared result, but the allegation is that these published statements “were used as an argument by said Prentiss and by his friends, at his request, for the purpose of inducing the electors” to vote for him for such office. These circulars were numerous, widely circulated, and contained vigorous attacks upon the judicial salary system and repeated promises to decline all local salaries if the voters should elect him to this office.
    On November 12, before Prentiss’ induction into office, the petition for contest was filed.
    On the trial the contestee admitted the authorship of the circulars and testified that he supplemented them by similar statements in his campaign speeches.
    No evidence was offered that any voter was actually induced to vote by reason of the promises made.
    The court of appeals adjudged the election invalid, that Prentiss had no right and title to the office, and ousted him therefrom, and refused to order the induction of the contestor. This proceeding is to reverse that judgment.

      Mr. Smith W. Bennett; Messrs. Brown, Hahn & Sanger; Mr. Holland C. Webster and Mr. James Donovan, for plaintiff in error.

      Messrs. Smith, Beckwith & Ohlinger; Mr. Alex. L. Smith, and Messrs. Bailey & Leasure, for defendant in error.
   Jones, J.

Section 26 of the corrupt practices act (102 O. L., 327), now Section 5175-26, General Code, provides that any person is guilty of a corrupt practice if he, in connection with or in respect of any election, contributes or offers to contribute any money or valuable consideration for any other purpose than those detailed therein. It provides further that any offer to contribute or expend any money or thing of value for any purpose whatever, except as therein provided, “is hereby declared to be corrupt practice and invalidates the election of any person guilty thereof.”

The acknowledged action of the plaintiff in error in connection with his campaign for common pleas judge of Henry county, in the distribution and circulation of the circulars in question, fell within the inhibition of that section of the corrupt practices act of this state.

In the event of his election to the office of common pleas judge the law had made express provision for a stipulated salary, part of which was' to be paid him by the state and part by the county. It is but little less reprehensible that, for the purpose of inducing election, he should promise to refund to the community as a whole that portion of the salary he should receive from the county than to offer to contribute to the taxpayers individually their pro tanto proportion of the amount of salary forgiven. In the latter event the taxpayer is required to pay less taxes, irrespective of the personal fitness of the candidate.

In The State, ex rel. Bill, v. Elting, 29 Kans., 397, a keen analysis of promises of this character, made for the purpose of inducing election, was made by Judge Brewer, afterwards a member of the supreme court of the United States. He said:

“The theory of popular government is that the most worthy should hold the offices. Personal fitness — and in that is included moral character, intellectual ability, social standing, habits of life, and political convictions — is the single test which the law will recognize. That which throws other considerations into the scale, and to that extent tends to weaken the power of personal fitness, should not be tolerated. It tends to turn away the thought of the voter from the one question which should be paramount in his mind when he deposits his ballot. It is in spirit at least, bribery, more insidious, and therefore more dangerous, than the grosser form of directly offering money to the voter.”

There is a wide difference between a promise of this character and those multifarious pledges made by candidates in the interest of reform, economy and a rigid and effective administration of office in compliance with their official oaths. The latter are made in the public interest and are consistent with personal fitness; the former savors of vicious tendencies, involving a personal pecuniary consideration offered by the candidate in order to accomplish his election, in which the test of fitness is not an element.

At common law, practices involving the sale or purchase of public office were condemned as subversive of government and against public policy. Our legislation, in the interest of purity of elections, has stamped the common-law policy upon bur election laws. Promises of a character similar to those made by the plaintiff in error have been held in other jurisdictions to be an offense invalidating the election of the promisor. The State, ex rel., v. Elting, supra; Carrothers v. Russell, 53 Iowa, 346; State, ex rel. Newell, v. Purdy, 36 Wis., 213; Bush v. Head, 154 Cal., 277.

Owing to the severe penalties imposed by the act, inflicting punishment by way of fines and imprisonment, the forfeiture of office and invalidating the election of the person offending, the whole scope and intent of the act is to impose such penalties on those who wilfully commit the offenses named. If intention is absent, no offense has been committed. In the present case the plaintiff in error did wilfully offend against the act, and rested his defense on the claim that he had a lawful right to do what he did.

. 2. It is insisted, however, by counsel for plaintiff in error that the “ground” set forth in the petition for contest is not of such character that may be invoked under the election contest statutes of our state.

Section 5137, General Code, provides for an appeal to the court of appeals from the decision of the convassing board “which finds and declares the result of the election.”

Section 5138, General Code, provides that the appeal shall be by petition, which shall set forth “upon what grounds the election is contested.”

Section 5143, General Code, provides that the courts shall determine the contest without the intervention of a jury, and may render such judgments and make such orders as the law and facts warrant, including judgment of ouster and induction.

It will be observed that the statutes of this state do not enumerate any specific grounds upon which a contest may be undertaken. Many of the states provide in detail the nature and character of the grounds upon which the contest may be based, but it is not so in this state. However, under the statutes noted, any grounds may be set forth in the petition which have the effect of determining the actual result-of the election, in order to determine who received the highest number of votes thereat.

While no provisions have been made in our law as to the specific grounds of contest, their character may be gleaned from those employed in the case of Howard v. Shields, 16 Ohio St., 184. The contest act under consideration there (1 S. & C., 540, Sections 39-42), in its requirement to state the “points” of contest, was substantially similar to the one in this case, simply requiring generally the statement of the “grounds” of contest. And in regard to the nature of the “points” or “grounds” on which the contest was based, Judge Welch, page 188, said:

“We think the notice was sufficient. It contains all that the statute requires — notice that the election will be contested, and a specification of the ‘points’ relied upon. * * * The ‘points’ to be specified, are not required for the purpose of setting forth a ‘good case’ — not for the purpose of informing the contestee that the attack will be successful, but to advise him at what points the attack will be made, in order that he may fortify, and not be taken by surprise. * * * We think the points specified in this notice were stated with sufficient particularity and definiteness to subserve the object of the statute, which was, to limit the evidence of the contestor and to apprise the contestee of the general nature of the objections to be made, so as to enable him to meet them without unnecessary expense and labor.”

The rule is stated in the syllabus of The State, ex rel. Ingerson, v. Berry, 14 Ohio St., 315, that—

“A contest, on appeal to the court of common pleas, is the specific remedy provided by statute for the correction of all errors, frauds and mistakes which may occur in the process of ascertaining and declaring the public will as expressed through the ballot boxes.”

The only adequate and specific remedy provided for -this purpose are the contest statutes. Neither quo warranto nor mandamus can ordinarily be invoked to determine the issue involved in contested election cases, for the reason that such issues involve the validity of the election and not the title to office. The State, ex rel. Grisell, v. Marlow, 15 Ohio St., 114; The State, ex rel. Wetmore, v. Stewart, 26 Ohio St., 216. It has been held, however, that if no adequate remedy is provided by law, quo warranto might be invoked in order to ascertain the legality or illegality of the election. The State, ex rel. Conrad, v. Patterson, 84 Ohio St., 89.

Section 5175-26, General Code, adds a specific ground upon which an election may be invalidated or contested. By the adoption of that section the legislature, in effect, determined that an offense committed against the corrupt practices act as enumerated therein was a ground for invalidating the election of the person committing the offense, irrespective of the proof usually -required showing that offers actually induced a sufficient number of voters to change their votes so as to affect the result. And since the question was raised in a case involving the election itself and not in a case wherein the title was involved after the induction into- office, the proper remedy available would be by contest proceedings under the statutes.

3. The plaintiff in error seeks to avoid the consequences of his offense by a claim that the salary acts are unconstitutional. He does not attack the constitutionality of the corrupt practices act itself. He cannot thus escape the punishment of an act which is not made dependent on the validity of the salary acts.

“It is a firmly established principle of law that no one can be allowed to attack a statute as unconstitutional who has no interest in it and is not affected by its provisions.” 8 Cyc., 787.

A law is assumed to be valid until set aside. Only those directly interested may question its validity, and such are not here before the court as parties in interest for that determination. The breach of the corrupt practices act is made an offense, irrespective of the question whether the salary acts are valid or otherwise. The wrong sought to be corrected was one affecting the purity of elections, and the constitutional feature, if conceded, could not even remotely affect that question.

4. Finally, it is insisted that before the election can be invalidated or the office forfeited there must be a prior conviction of the offense committed under the corrupt practices act; and in that behalf counsel for plaintiff in error cite the case of The State, ex. rel. Attorney General, v. Ganson, 58 Ohio St., 313, wherein it is held:

“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.”

Section 13323-1, General Code (formerly Section 32 of the corrupt practices act), provides that—

“Any person convicted of a corrupt practice under this act shall be fined * * * and if he shall have been elected to office, he shall in addition thereto forfeit such office.”

Since this section of the statute has provided for punishment by fine and imprisonment and by forfeiture of , office in case of election, it is claimed that a special method is provided by the act itself by which such office should become vacant and that conviction by jury is a condition precedent to the 'forfeiture; and this seems to find support in Section 4 óf Article V of the Constitution, which provides :

“The general assembly shall have power to exclude from the privilege * * * of being eligible to office, any person convicted of bribery, perjury, or other infamous crime.”

An important distinction must' be noted between the case of The State, ex rel. Attorney General, v. Ganson, supra, and the instant case, and that distinction is found in the different functions imposed by the constitution upon the judicial and legislative departments of the state. One who has been inducted into office and convicted of bribery or other infamous crime forfeits his office under the aforesaid section, and as .a predicate to his removal he must first be tried ánd convicted by a jury. By reason of this trial the power is committed wholly to the judicial department; but it is otherwise where the election or election contest is concerned, for by other provisions of the constitution elections and election contests are not committed to the courts eo nomine as courts, but to such tribunal as the legislature may see fit to provide. By those provisions there has 'been granted to the legislature the sole power to determine all matters incidental to the procedure and validity of elections.

Section 21 of Article II of the Constitution provides, “The general assembly shall determine, by law, * * * in what manner, the trial of contested elections shall be conducted,” and Section 27 of Article II of that instrument provides, “The election * * * of all officers * * * not otherwise provided for by this constitution, * * * shall be made in such manner as may be directed by law.”

Under these provisions of the constitution the legislature undoubtedly had the right to impose as a condition precedent to the validity of a candidate’s election, that he should not commit any of the offenses named in Section 5175-26, General Code, and that if the candidate did so offend his election would be invalidated. This in nowise conflicts with Section 32 of the act, because, on the one hand, the election is invalidated by a tribunal exercising quasi-judicial functions, which invalidation may be accomplished without either conviction or trial by jury. The election only is involved. On the other hand, the title to office, and not the election itself, is in question, and in such case, where .either bribery or other infamous crime has been committed, conviction must first be had before a forfeiture of office. In such cases judicial functions of the court are invoked. As emphasizing the distinction between the Ganson case and the present one, attention is called to the case of Mason v. The State, ex rel. McCoy, 58 Ohio St., 30. In that case, which is very analogous to this, Judge Spear, at page 52, used the following language:

“A question much discussed is as to whether the statute should be treated as imposing a test of eligibility, or as providing a method of removal. The matter may be not free from doubt. Possibly the provision involves both characteristics. But the better conclusion, we think, is that the intent of the legislature was, not to provide a method by which a person lawfully elected to an office may be removed therefrom, but rather a method by which the title of one to an office which he has obtained possession of in violation of the terms of the statute upon which his claimed right vests, may be inquired into. It is, therefore, a challenge of the title to the office, resting upon charges of misconduct in procuring it, rather than a process to remove, resting upon charges of misconduct in office.”

This language is very pertinent to the case that we have. While there is little distinction between ■ the invalidation of an office, and the forfeiture of an office under the corrupt practices act, since both have the effect of divesting the candidate of his office, one rests upon the provision of misconduct in its procurement and the other rests upon offenses committed prior to or after the election and which are not involved in a contest proceeding.

However, it is easily assumed that if the legislature had intended to rely upon a prior conviction as a full and complete remedy for political misconduct, it would not have expressly provided for invalidation of office in a separate section of the same act, for forfeiture after conviction was specifically imposed in another section. Evidently the legislative intention was to provide two distinct remedies —one affecting the election and the other the title to the office after induction.

We are, therefore, constrained to the view that the legislature has simply imposed upon the candidate a condition under which his election would be invalidated, and that, since no specific grounds are mentioned which are required to be stated and set forth in the contest petition, the commission of any of the offenses invalidating the election may be set forth in the petition and heard on appeal by the trial court, and judgment rendered and orders made as the law and facts warrant under the provision of our code relating to contests of election.

The refusal to induct the contestor was proper. The proceeding simply resulted in invalidating the election of the contestee. This did not invest the contestor with a majority of the legal votes cast. Renner v. Bennett, 21 Ohio St., 431; The State, ex rel. Clawson, v. Bell, 169 Ind., 61, 13 L. R. A., N. S., 1013.

Judgment affirmed.

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

Matthias, J., not participating.


author: Newman, J.

text:
    The City of Sidney et al. v. Cummins.

      Assessments — Foot front — Street improvement — Section 3812, General Code — Reassessment—Change in judicial construction —Section 3902, General Code — Corner and interior lots — Rule of retroactive operation unavailable, when.

    1. In the assessment of property for a street improvement by the foot front of the property bounding and abutting upon the improvement under Section 3812, General Code, no contractual relation arises between the municipal corporation and the property owner, and by force of the provisions of Section 3902, General Code, no complete or consummate rights are acquired by an owner whose property is assessed.
    2. The rule that retroactive operation is not to be given to a change in the judicial construction of a statute cannot be invoked by a municipal corporation when the legality of an assessment of property for a street improvement is challenged where no contracts have been entered into in reliance upon a former judicial construction in respect to the statute.
    (No. 15018
    Decided January 1, 1916.)
    Error to the Court of Appeals of Shelby county.
    Defendant in error, on February 18, 1914, brought an action in the court of common pleas of Shelby county to enjoin the levy and collection of what was alleged to be an illegal assessment against his property. A temporary restraining order was granted upon the filing of the petition, but upon the hearing of the case on its merits the petition was dismissed and judgment rendered in favor of plaintiffs in error. The case was appealed to the court of appeals and there heard upon the pleadings and an agreed statement of facts in substance as follows:

      On September 10, 1912, the council of the city of Sidney by ordinance declared it necessary to improve a portion of South street in that city by paving, the costs thereof to be levied by the foot front of the property bounding and abutting upon the improvement. Bonds were issued to pay the cost of the improvement, and on March 11, 1913, the city entered into a contract for the improvement and the paving was completed that year. The lots on the north and south sides of South street where the improvement was made, run east and west, the lots as originally laid out being 82J feet north and south and 165 feet long east and west. Several of these lots have been built upon and improved with reference to their frontage upon certain cross streets and have no buildings constructed thereon fronting on South street. On December 2, 1913, the council passed an ordinance assessing the cost of the improvement of South street, excepting the one-fiftieth part thereof and intersections, upon the owners of abutting property. The assessment on corner lots was made under the rule laid down in the case of Haviland v. City of Columbus, 50 Ohio St., 471. The frontage and depth of the premises of defendant were each 82J feet. There was levied against his property an assessment amounting to $434.60, being at the rate of $5.27 per foot front for 82-| feet. If the corner lots on South street had been assessed in accordance with the rule announced in City of Youngstown v. Fishel, 89 Ohio St., 247, the assessment against the property of defendant in error would have been $320.10, being at the rate of $3.88 per foot front instead of $5.27. Acting under a provision in the assessing ordinance that the total assessment might be paid within thirty days after its passage, ten owners of property assessed voluntarily paid their assessments in full prior to December 31, 1913. Defendant in error filed his petition in the court of common pleas before the assessments had been certified, but after the dissolution of the temporary restraining order the same were certified and are now upon the tax duplicate of the county treasurer for collection. After the assessments had been levied, but prior to the bringing of the action, the owner of a corner lot died and his property was sold, the buyer agreeing to pay as part of the consideration a portion of the assessment as made by council. The bonds to cover the cost of the improvement were sold before the assessments were made. If the assessment of defendant in error is reduced and council has power to reapportion the amount thus taken off the total assessment, no change in the aggregate original assessment will be necessary.
    It was found by the court of appeals that the levy of the assessment, amounting to $434.60, upon the property of the defendant in error is, as to the excess of said sum over and above the sum of $320.10, illegal, and that defendant in error is entitled to the relief prayed for in the petition. Plaintiffs in error were enjoined from levying and collecting any assessments against the property of defendant in error except in the aggregate amount of $320.10 or yearly installments of $32.01, with interest at 5 per cent, per annum on said install- ■ ments. Error is prosecuted to this court to reverse the judgment of the court of appeals.

      Mr. Frank J. Doorley, city solicitor, and Mr. P. R. Taylor, for plaintiffs in error.

      Mr. Andrew J. Hess, for defendant in error.
   Newman, J.

In the case of City of Youngstown v. Fishel, 89 Ohio St., 247, decided January 13, 1914, the city, in assessing the cost and expense of a street improvement by the foot front of the property bounding and abutting upon the improvement, disregarded the rule as to the assessment of corner lots announced in Haviland v. City of Columbus, 50 Ohio St., 471, and assessed the entire lengthwise frontage of the corner lots abutting upon the improvement. A corner-lot owner instituted a proceeding to enjoin the collection of the assessment against her property upon the ground that it was excessive and illegal. She was successful in her contention in the lower courts, but this court, considering the question of corner-lot assessments de novo, overruled the Haviland case and denied relief to the corner-lot owner. In the instant case the council of the city of Sidney, in its assessing ordinance, passed in December, 1913, followed the rule announced in the Haviland case. Defendant in error sought to enjoin the assessment against his property on the ground that it had been illegally made, in that the corner lots had not been assessed their lengthwise frontage. If that method had been adopted the front feet assessable would have been increased by the difference between the lengthwise frontage of the corner lots and their breadthwise frontage, and the assessment per foot on the property bounding and abutting upon the improvement would have been $3.88 instead of $5.27.

Counsel for the city do not question the correctness of the decision in the Fishel case and do not ask that the rule there announced be changed, but they insist that the decision should not have a retroactive effect. Their claim is that the proceedings of the city council had before the decision in the Fishel case was announced, created a vested right in the property owners affected, among them being those who had paid their assessments in full prior to December 31, 1913, and also an obligation in the nature of a contract between the city and each property owner.

In the Fishel case the judicial construction of Section 3812, General Code, as to the assessment of corner lots under the third method of assessment provided for in the section, was changed. Counsel invoke as applicable to this case a rule relating to a change of judicial construction of statutes which has been recognized and approved by this court in a number of cases and is stated by Mr. Chief Justice Waite in Douglass v. County of Pike, 101 U. S., 677, 687, as follows: “The true rule is to give a change of judicial construction in respect to a statute the same effect in its operation on contracts and existing contract rights that would be given to a legislative enactment; that is to say, make it prospective, but not retroactive. After a statute has been settled by judicial construction, the construction becomes, so far as contract rights acquired under it are concerned, as much a part of the statute as the text itself, and a change of decision is to all intents and purposes the same in its effect on contracts, as an amendment of the law by means of a legislative enactment.”

In that case, where this rule was applied, it was held that where municipal bonds had been put upon the market as commercial paper, the rights of the parties thereto were to be.determined according to the statutes of the state as they were then construed by the highest court, and in a case involving those rights the court would not be governed by any subsequent decision in conflict with that under which they accrued. It was stated in the opinion:

“As a rule, we treat the construction which the highest court of a State has given a statute of the State as part of the statute, and govern ourselves accordingly; but where different constructions have been given to the same statute at different times, we have never felt ourselves bound to follow the latest decisions, if thereby contract rights which have accrued under earlier rulings will be injuriously affected.”

The holding in that case was based upon the ground that contract rights were involved.

In Lewis, Auditor, v. Symmes et al., 61 Ohio St., 471, Judge Shauck, in referring to the rule we have quoted, uses this language:

“Its purpose is to secure the full operation of the constitutional prohibition of laws impairing the obligation of contracts. It is apparent, alike from the terms in which the rule is stated and from its reason and purpose, that it can be invoked only for the enforcement of rights which rest in contract. It does not appear that it has ever been applied to any other purpose.”

And in Thomas et al. v. The State, ex rel., 76 Ohio St., 341:

“This doctrine may be invoked as a matter of right by all suitors who are in.a position to assert the binding obligation of contracts.”

It is to be observed that the validity of no bond issued by the city in the improvement proceeding is drawn in question in the present case. Nor is there involved any contract between the city and a contractor in which the obligation of the city can be impaired, as was the case in Goodale v. Fennell et al., 27 Ohio St., 426. Nowhere in the pleadings or in the agreed statement of facts does it appear that there is any obligation on the part of the city which would be affected by an order of the court enjoining it from collecting from defendant in error that part of the assessment against his property which is illegal. Such an order would, at the most, require another apportionment or a readjustment of the property within the assessing district. Raymond v. Cleveland, 42 Ohio St., 522. The assessment authorized by statute does not require the assent of the property owner. It is not in the nature of a contract. The city, acting under the authority conferred upon it by the general assembly, imposes upon the property benefited the cost of making the improvement less that portion assumed by the city. Such assessments are enforced proportional contributions of a somewhat special kind, made in invitum by virtue of legislative authority conferred upon the municipality for that purpose, upon such terms and conditions as the general assembly, within constitutional limits, sees fit to impose. Sargent v. Tuttle, 67 Conn., 162. If the assessment proves insufficient to pay for the improvement, the city may, under the provisions of Section 3909, General Code, make an additional pro rata assessment to supply the deficiency, and under Section 3902, to which we shall refer later, a reassessment may be made. As no contractual obligation in the making of an assessment is involved, the application of the rule which is insisted upon is, therefore, denied.

But there is brought to our attention by the answer and agreed statement of facts, whether properly so or not it is not necessary to decide, the fact that a number of property owners had paid their assessments in full before this action was brought, and the further fact that one corner lot had been sold and the purchaser, as part consideration, had assumed a certain portion of the assessment as made by the city. It is insisted, therefore, that certain rights had vested and that the parties had acted in reference'to the assessment made by council. But we think counsel have failed to give effect to the provisions of Section 3902, which reads:

“When it appears to the council that a special assessment is invalid, by reason of informality or irregularity in the proceedings, or when an assess- ' ment is adjudged to be illegal, by a court of competent jurisdiction, the council may order a reassessment, whether the improvement has been made or not.”

In view of these provisions we do not see upon what theory a property owner can be said to acquire a vested right growing out of an assessment. When he pays his assessment in full he does so charged with knowledge of the provisions of this section. When property is conveyed both the grantor .and the grantee are charged with knowledge that there may be a reassessment of the property in case the original assessment is held to be illegal.

Section 22, General Code, is called to our attention. This section validates the acts of the municipality acting in pursuance of a statute, the acts being valid according to judicial construction and adjudication at the time the action was had by the municipality, notwithstanding a subsequent change of . such rule of judicial construction and adjudication with réspect to other similar legislation. This section, as w.e view it, is practically a statutory enactment of the common-law rule which we have been considering, and an examination of it will disclose the fact that it proceeds upon the theory that rights have vested and that loans or other things of value have been effected or acquired, or expenditures have been made by third persons, in reliance upon the construction or adjudication of the statutes. It is to be observed that the subject of assessments is not dealt with in this statute. Moreover, it is. inapplicable in view of the express provisions .of Section 3902, supra,. which specially deals with this subject. An assessment is not irrevocable, but is subject to change. The statutes confer a continuing power upon council which is not exhausted until an assessment is made which can be enforced. Brevoort v. Detroit, 24 Mich., 322.

Cincinnati v. Seasongood, 46 Ohio St., 296, is cited by counsel and is claimed to be decisive of the question involved here. It was held in that case that a municipal corporation having, through its proper agents and officers, passed a resolution and ordinance to improve a street, in its assessment of the cost and expenses of the improvement upon the abutting property, it should be governed by the law in force at the time of the passage of its improvement ordinance with respect to the manner of assessment and the rights and liabilities of the owners of abutting property. It is true that Judge Dick-man, in the course of his opinion, states that the property owners acquired a vested right under the act in force at the time of the passage of the improvement ordinance. It is also said that the conclusion reached by the court was without regard to the question whether a contract obligation arose between the property owners and the city. In the instant case this question is controlling. Counsel for the city base their contention upon the ground that the relations existing between the city and the lot owners affected were contractual and that the assessment levied was in the nature of a vested right. This position is not tenable in view of the fact that an assessment is not in the nature of a contract, and no vested rights were acquired in view of the provisions of Section 3902.

In Shoemaker et al. v. City of Cincinnati, 68 Ohio St., 603, a property owner sought to invalidate an assessment made against his property under a statute which had been adjudged valid by this court and afterwards similar legislation had been held by it to be in violation of the constitution. The court denied relief. It appears from the record in that case that city bonds had been issued to pay for the improvement, and such as had not béen paid were held by innocent investors, and property rights and liabilities had grown up and become fixed beyond change on the faith of the decision of the court. These conditions do not present themselves here and the holding in that case is, therefore, not in point.

Being of the opinion that the relation existing between the city and the lot owner is not contractual in its nature and that Section 28 of Article II of the Constitution, prohibiting the enactment of laws impairing the obligation of contracts, is, therefore, inapplicable, and further, that by force of Section 3902 no rights were acquired by the property owners which were complete and consummate, the defendant in error was entitled to the relief given him by the court of appeals.

Judgment affirmed.

Nichols, C. J., Johnson, Wanamaker, Jones and Matthias, JJ., concur.


author: Donahue, J.

text:
    Hutton et al. v. Curry.

      Gaming — Action to recover losses — Money won in-prior transactions — Not to be included, when — Charge to jury.

    Where in an action to recover money lost at gaming it is claimed, and evidence is offered tending to prove, that part of the money alleged to have been paid by the plaintiff to the defendant was in fact money won by the plaintiff and owing to him from the defendant in a former gambling transaction, it is error for the court to refuse to charge the jury that if it find this claim to be true, then the plaintiff cannot recover that part of his losses in the subsequent transaction represented by the credit given him by the defendant for money won by plaintiff in a former gambling transaction and in defendant’s possession at the time the credit was given.
    (No. 14888
    Decided January 25, 1916.)
    Error to the Court of Appeals of Hamilton county.
    On the 26th day of April, 1906, William S. Curry filed a petition in the superior court of Cincinnati against the plaintiffs in error, averring, among other things, that William E. Hutton, James M. Hutton and William D. Hutton are partners in trade, doing business in the city of Cincinnati under' the firm name and style of W. E. Hutton & Company; that from the 28th day of November, 1900, to the 23d day of March, 1901, the defendants conducted a place on East Third street, Cincinnati, at which bets and wagers were made and taken upon the rise and fall of stocks, grains and commodities; that between these dates the plaintiff wagered with the defendants large sums of money and paid and delivered to the defendants for and on account of such gambling transactions the sum of $1,280, whereby the defendants became and are indebted to the plaintiff in that sum of money, which was won from the plaintiff by the defendants between the dates named by means of wagers made by plaintiff with defendants on the rise and fall of certain stocks, the price of which were quoted by defendants at their place of business.
    The plaintiff further averred that on the 8th day of March, 1902, he filed in the same court a petition against these defendants to recover said sum of money with interest and costs; that the petition in that action stated the same cause of action stated in this; that the same was dismissed by the court, other than upon the merits of the cause, on the 8th day of March, 1902, and on the 30th day of April, 1904, this cause was reinstated by the court, and that on the 21st day of April, 1906, the court found and adjudged that this order of reinstatement was irregular and void, and the same was set aside and held for naught and thereupon the action was finally dismissed other than upon its merits.
    To this petition the defendants demurred because the action was not brought within the time limited for the commencement of such actions.
    This demurrer was sustained by the superior court in special term, but that judgment was reversed by the general term of that court and the judgment of reversal was affirmed by the supreme court of Ohio and the cause remanded to the superior court for further proceedings according to law.
    The defendants then filed an answer to plaintiff’s petition, and for a second defense pleaded certain facts upon which the superior court acted, when, on the 21st day of April, 1906, it found and adjudged that the entry of April 29, 1904, setting aside a former entry of dismissal, after term, was irregular and void.
    A motion was filed by the plaintiff to strike these averments from the answer for the reason that the facts pleaded in the second defense had been finally adjudicated in favor of the plaintiff.
    . This motion was sustained and the cause proceeded to trial, resulting in a verdict and judgment for the plaintiff against defendants for the sum. of $1,280 and costs.
    This judgment was.affirmed by the court of appeals of Hamilton county, and error is prosecuted in this court to reverse the judgment of the superior court and the judgment of the court of appeals affirming the same.

      Messrs. Ernst, Cassatt & Cottle, for plaintiffs in error.

      Mr. Thomas L. Michie, for defendant in error.
   Donahue, J.

The first question presented by the record in this case arises upon the judgment of the superior court of Cincinnati, sustaining the motion of the plaintiff to strike the second, defense from the answer.

The petition in this case sets forth in detail all the proceedings had in the first action, and particularly the entry in the superior court made on the 21st-day of April, 1906, in which that court found that the entry of April 29, 1904, setting aside said former entry of dismissal, was made without notice to or knowledge of the defendants, after term, and that such order was irregular and void, and for that reason the same was set aside and held for naught.

The presumption obtains that that judgment is fully sustained by the law and the facts, and therefore the averments of these facts in the second defense could not make it stronger or weaker. The demurrer to this petition, averring that such judgment had been entered, presented to the court the legal effect thereof. Necessarily the judgment on the issue joined by the demurrer adjudicates that this action is not barred by the statute of limitations. The motion was properly sustained.

The question whether this was or was not a gaming transaction is a question to be determined by the jury under proper instructions by the court.

The defendants requested ten special charges to be given to the jury before argument, some of which the court gave, but refused to give the sixth request, to which refusal the defendant excepted. That request is based upon the following evidence, given by the plaintiff upon cross-examination:

“Q. You had some prior transactions with Hutton & Co. before that date, November 28, 1900, had you not? A. Yes, sir.

“Q. The day before that you had received one thousand dollars, had you not? (Objected to by counsel for plaintiff; objection overruled.)

“Q. On November 27 you had received from them $1,064.51, had you not? A. Now, I haven’t my statement with reference to that, neither do I remember the exact date, but I do remember that shortly previous, and possibly it was the day before, that they did give me a check of which this $700.00 is a part simply to close up, to make the statement — the money was already, the $700.00 was already in the $1,035.00, if that is what you say it is; the bookkeeper simply gave me a check in order to make the transaction; the $700.00 was immediately handed back to them.”

From this evidence it appears that this $700 was money won by plaintiff from defendants in previous transactions, that it was immediately handed back to the defendants, that the exchange of checks was merely a paper transaction for the purpose of closing the books to that date and that this $700 is included in the judgment in this case.

While the defendants have not pleaded any offset or counterclaim, yet it is incumbent upon the plaintiff to show that he actually paid to them $1,280 of his own money for and on account of these gaming transactions. If this $700 was the money of the defendants, and was in fact part of the money paid to the defendants in this new gaming transaction, the plaintiff could not recover that money in this suit.

It is true that the plaintiff further testified that the former transactions were made in the interest of himself and others associated with him, but the jury would be authorized to find from this evidence that this $700 represents his share of the winnings to that date, particularly in view of the fact that he “immediately handed it back to them,” upon his own private transaction, but it is immaterial who was the owner, so long as it represented winnings in a gaming transaction, still in the possession and control of the loser.

Request number six should have been given to the jury and the jury permitted to determine whether this $700 was the money of Hutton & Company or the money of the plaintiff.

For error of the court in refusing to give request number six, this judgment must be reversed, unless the defendant in error shall, within thirty days from this date, enter a remittitur of that amount, with interest, and in that event the judgment, less $700 and interest, will be affirmed; otherwise the entire judgment of the superior court and that of the court of appeals affirming the same will be reversed and cause remanded for a new trial.

Judgment accordingly.

Nichols, C. J., Johnson, Newman and Jones, JJ-, concur.