author: Donahue, J.

text:
    Heffner, a Taxpayer, v. Krinn et al.

      Municipal corporations — Bond issues — Referendum required, when — Necessity of legislation by council — Initiated ordinances— Bond issue ratified by electors — Limitation of indebtedness.

    1. Subject to other provisions of the statutes of this state, limiting the total issue of bonds for any and all purposes, Section 3939, General Code, as amended May 15, 1911 (102 O. L., 262), authorizes the council of a municipal corporation to issue bonds for the purposes named in that section, and within the limitations named in Sections 3940 and 3941, General Code; but ■where it is proposed to issue bonds in excess of the limitations named in these sections the question of issuing such bonds must be submitted to the electors of the municipality.
    2. Where bonds are proposed to be issued under the authority of
    Section 3939, -General Code, and within the limitations named in Sections 3940 and 3941, General Code, the council of a municipal corporation is required to pass but one ordinance authorizing the issue of such bonds in order to complete the legislation necessary to make and pay for such public improvement.
    3. Under the provisions of Section 4227-1, General Code, as
    amended April 17, 1913 (103 O. L., 211), such ordinance may be proposed by initiative petition, and, if approved by a majority of the electors voting upon the question of its adoption, no other or further ordinance, resolution or measure is required to authorize the issue of such bonds.
    4. Where it is proposed to issue bonds of a municipal corporation
    for any purpose named in Section 3939, General Code, in excess of the limitations named in Sections 3940 and 3941, General Code, and within the limitations of the total amount of bonds that may be issued for any and all purposes, the municipal council is required to pass a preliminary resolution by an affirmative vote of not less than two-thirds of all the members elected or appointed thereto, declaring it necessary to issue and sell -bonds, stating the purpose and amount of such issue, and fixing a date upon which the question of issuing and selling such bonds shall be submitted to the electors of the corporation.
    5. Such preliminary resolution is the first measure required to be
    passed by council within the meaning of that term as used in Section 4227-3, General Code, as amended April 17, 1913 (108 O. L., 211).
    (No. 15571
    Decided March 19, 1918.)
    Error to the Court of Appeals of Pickaway county.
    The plaintiff in error brought an action in the common pleas court of Pickaway county against the city auditor and members of the city council of Circleville, Ohio, to perpetually enjoin the issue of thirty-five thousand dollars in bonds of that city, for the purchase of real estate and the erection thereon of a municipal hospital.
    The amended petition averred, among other things, that on or about the third day of September, 1914, certain persons assuming and intending to act under the provisions of Sections 4227-1 to 4227-3, inclusive, General Code, as amended February 16, 1914 (104 O. L., 238), attempted to initiate an ordinance authorizing the issue of bonds in the sum of thirty-five thousand dollars for the purposes named; that the proposed ordinance was submitted to the electors of that city at the regular election held November 3, 1914, and received a majority vote of more than two-thirds in its favor; that without any other or further action, and without the passing of any other or further ordinance or resolution by either the city council or by vote of the -electors of the city, the defendants proposed to issue and sell bonds in the sum of thirty-five thousand dollars, to be paid out of the tax funds of the city, the principal and interest of which bonds if issued would be a lien and incumbrance upon all the real estate of the taxpayers of Circleville; and that no ordinance or resolution declaring it to be necessary to issue and sell these bonds for the purpose designated was ever passed by the city council or by vote of the electors, and for that reason the proceedings are wholly insufficient and void and the issue and sale of bonds under the pretended authority is an illegal and unwarranted abuse of power and an unlawful appropriation and diversion of money raised by taxation from the taxpayers of that city, for which plaintiff and other taxpayers have no adequate remedy at law.
    The amended petition further avers that the facts with relation to the project were not understood by the electors when they voted upon the initiative petition; that there is no public emergency or necessity that justifies or warrants the proposed expenditure; that such a hospital cannot be maintained and operated without an annual loss to the taxpayers of the city of Circleville; and that there is already in that city a good hospital, built and supported by charity and earnest efforts of good charitable ladies of the city, and deserving of the support the city can lawfully give, in which the poor of the city can be cared for and receive surgical attendance. ,
    The defendants for answer admit the allegations of the petition with reference to the filing of the initiative petition, the vote thereon, that no other ordinance or resolution was passed by the city council or by vote of the electors, and that they intend to sell the bonds of the city in the sum of thirty-five thousand dollars under authority of the ordinance so initiated, but they specifically deny that no other or further action was had in the premises and that the persons signing the initiative petition only attempted to initiate the proposal. They deny generally each and every other allegation in the petition contained not specifically admitted.
    Upon the trial in the common pleas court, judgment was entered for the defendants, and the plaintiff’s petition dismissed at his cost. Upon appeal

      to the court of appeals, the same judgment was entered. This proceeding in error is prosecuted in this court to reverse that judgment.

      Mr. Charles Dreshach, for plaintiff in error.

      Mr. C. A. Weldon and Mr. C. A. Leist, for defendants in error.
   Donahue, J.

The record in this case presents a single question of law. The court of appeals found as a fact that no ordinance or resolution declaring it necessary to issue and sell bonds of the municipality in an amount specified in such resolution and fixing a day upon which the question of issuing and selling such bonds should be submitted to the electors of the municipality was ever passed by the council or by a vote of the electors of the city, except as the same may be included in the initiated ordinance.

It is contended on the part of the plaintiff in error that such a resolution is essential to the validity of all subsequent proceedings to issue and sell bonds of a municipality for any purpose mentioned in Section 3939, General Code.

Counsel for plaintiff in error cites in support of this contention the case of The Elyria, Gas & Water Co. v. The City of Elyria, 57 Ohio St., 374, decided January 26, 1898.

That case can have no application whatever to the question here involved, for the reason that the statutes there considered and construed are no longer the law of Ohio.

Section 2837, Revised Statutes, as it then read, required that before any bonds could be issued under the provisions of Section 2835, Revised Statutes, the question of issuing such bonds should be submitted to the voters of the township, hamlet, or municipality, at a general or special election; and that whenever the trustees of any township or hamlet, or the council of any municipal corporation, shall by resolution declare it necessary to issue and sell bonds of such township, hamlet, or municipal corporation, for any or either of the purposes mentioned in Section 2835, Revised Statutes, in an amount specified in such resolution, and shall in such resolution fix a date upon which the question of issuing and selling such bonds should be submitted to the electors of the township, hamlet, or municipality, and shall cause a copy of such resolution to be certified to the proper election officers, that the question should then be submitted to the electors.

This court very properly held in the case of The Elyria Gas & Water Co. v. The City of Elyria, supra, that under the provisions of this section of the Revised Statutes, as it then read, this preliminary resolution was essential to the validity of all subsequent proceedings. On the 29th day of April, 1902, Sections 2835, 2836 and 2837, Revised Statutes, were amended. (95 Ohio Laws, 318.) Section 2835, Revised Statutes, as amended, authorized the trustees of a township or hamlet, or council of a municipal corporation, to issue bonds for the purposes named therein, provided that the total bonded indebtedness created in any one fiscal year under the authority of that act should not exceed one per cent, of the total value of all property listed and assessed for taxation; and provided, further, that the aggregate amount of all outstanding and unpaid bonds issued under authority of that act should never exceed four per cent, of the total valuation, unless such indebtedness in excess of one per cent, for the fiscal year, or in excess of a total of four per cent., should be authorized by vote of the electors.

Section 2837, Revised Statutes, as amended April 28, 1902 ( 95 O. L., 318, 321), provided that before any bonds in excess of the said one per cent, in any one fiscal year, or in excess of, the said four per cent, in the aggregate, are issued, or tax levied, as provided in Sections 2835 and 2836, Revised Statutes, the question of issuing the same should be submitted to the voters of the township, hamlet, or municipal corporation, at a general or special election.

Under these sections, as amended, the council of a municipal corporation or the trustees of a township or hamlet might authorize the issuing of bonds for the purposes named in the statute, within the limitations named, by ordinance or resolution passed or adopted by an affirmative vote of not less than two-thirds of the members of such board of trustees or council, elected or appointed thereto, without submitting such question to a vote of the electors of the township, hamlet, or municipality. Where no election is required, no preliminary resolution is necessary.

Sections 2835 and 2836, Revised Statutes, were amended several times (97 O. L., 291; 98 O. L., 63; 100 O. L., 53) before the adoption of the General Code; but these amendments contained the same provision with reference to the authority of the city council to issue bonds within the limitations of one per cent, and four per cent., and requiring that where it was proposed to issue bonds in excess of one per cent, in any one fiscal year, or in excess of four per cent, in the aggregate, the question of issuing the same should be submitted to the voters.

The Codifying Commission divided Section 2835, Revised Statutes, into Sections 3939 to 3946, inclusive, General Code. Section 3939, General Code, as written by the Codifying Commission, relates exclusively to municipal corporations, and authorizes the council of a municipality to issue bonds for the purposes named therein without any limitation or restriction whatever as to amount. Section 3940, General Code, limits the authority of the council to issue bonds under authority of Section 3939, General Code, to an indebtedness not exceeding one per cent, of the total tax valuation of all the property, in any one fiscal year. Section 3941, General Code, provides that when it is proposed to issue bonds in excess of one per cent, the question of so doing should be submitted to a vote of the electors. Section 3942, General Code, provides that the total net indebtedness incurred by a municipal corporation under the authority of Section 3939, General Code, shall not exceed four per cent, of the total tax valuation, unless the excess be authorized by vote of the qualified electors of the municipality.

Section 2837, Revised Statutes, was also subdivided by the Codifying Commission into Sections 3948 to 3954, inclusive, General Code. Section 3948, General Code, as written by the Codifying Commission, provided, that, before any bonds' in excess of the limitations of one per cent, in any one fiscal year and four per cent, aggregate net indebtedness are issued, or taxes levied to pay the same, the question of issuing such bonds should be submitted to the voters of the corporation at a general or special election.

Section 3939, General Code, was amended at the regular session of the Seventy-ninth General Assembly by Senate Bill No. 281 (102 O. L., 153) and Senate Bill No. 131 (102 0. L., 262). Boththese bills were passed on May 15, 1911. It is perhaps immaterial for the purposes of this case which of these acts is now in force, for in so far as it affects the question under consideration the language of Section 3939, General Code, as found in each act, is substantially identical.

Senate Bill No. 131 also amends Sections 3948 to 3954, inclusive, General Code. Section 3948, General Code, as amended by this act, reads: “The net indebtedness created or incurred by a municipal corporation under authority of sections one [Section 3939, General Code] and four [Section 3942, General Code] of this act and under the authority of an act passed April 29th, 1902, to amend sections 2835, 2836 and 2837 and to repeal section 2837a of the Revised Statutes * * * together with its subsequent amendments, shall never exceed in total eight (8) per cent, of the total value of all property in such municipal corporation as listed and assessed for taxation.”

These provisions were substantially the provisions of Section 3954, General Code, and that section is repealed by this act. Section 3942, General Code, which originally provided that the net indebtedness should not exceed four per cent, of the total value of the property listed for taxation, unless the excess of such amount was authorized by'vote of the qualified electors, was amended by Section 4 of this act to read as follows: “In addition to the authority granted in section one (1) of this act [3939, General Code] and supplementary thereto, the council of a municipal corporation, whenever it deems it necessary, may issue and sell bonds in such amounts, or denomination, and for such period of time and rate of interest not exceeding six per cent, per annum, as it may determine upon for any of the purposes set forth in said section one [3939, General Code], upon obtaining the approval. of the electors of the corporation at a general or special election.”

Section 3943, General Code, which originally provided the method of ascertaining the net indebtedness, as amended by Section 5 of this act, now provides the procedure when bonds are proposed to be issued under authority of Section 3942, General Code, in addition to the authority granted in Section ,3939, General Code, but has no application whatever to bonds issued under authority of that section within the limitations contained in Sections 3940 and 3941, General Code.

These sections are rewritten into this amendment in the identical language contained in original code Sections 3940 and 3941, and were in force at the time the ordinance in question was initiated and submitted to a vote of the electors of the city of Circleville. These statutes have since been amended, but these amendments do not apply to this case.

It is clear from the history of this legislation, and the. several amendments of Sections 2835 and 2837, Revised Statutes, that Sections 3942 and 3943, General Code, as amended by Sections 4 and 5 of the act of May 15, 1911 (102 O. L., 262), have no application to the issuing of bonds under the provision of Section 3939, General Code, where the amount of the bonds proposed to be issued is within the limitations contained in Sections 3940 and 3941, General Code; otherwise these sections would have no purpose and no meaning and might just as well never have been written into the statute laws of this state.

If it were proposed to issue bonds in excess of these limitations, then Sections 3942 and 3943, General Code, would apply, and the preliminary resolution required by Section 3943, General Code, would be essential to the validity of all subsequent proceedings. This preliminary resolution would be the first “measure required to be passed,” within the meaning of that term as used in Section 4227-3, General Code, as amended 103 Ohio Laws, 211, and would be the only legislation or other measure to which the act of April 17, 1913 (103 O. L., 211), would apply.

If that resolution were initiated by petition and adopted by the electors of the municipality, it would then become the duty of the city council to adopt such further ordinances or other measures as the law requires to complete the legislation necessary to make and pay for the proposed public improvement.

This provision of Section 4227-3, General Code, is evidently intended to prevent the necessity and absurdity of submitting the same question a second time to the electors of a municipality.

It is true that a serious question arises as to the vote required to adopt a resolution, initiated by petition, declaring it necessary to issue bonds in excess of the limitations named in Sections 3940 and 3941, General Code.

Section 4227-1, General Code, provides that where an ordinance or other measure is initiated by petition it may be approved by a majority of the electors voting upon the same.

Section 3947, General Code, provides that a resolution of this character requires for its adoption an affirmative vote of two-thirds of the electors voting upon the question of issuing the proposed bonds. 'The authorities are uniform that, where there is a special statutory provision relating to a particular matter, such special provision must be read as an exception to the general statutes that would otherwise control, and that in all such cases the special provision applies. That question, however, is not presented in this record.

There is no averment in the amended petition in this case that the proposed issue of bonds for the purposes named in the initiated ordinance will exceed the limitations named in Sections 3940 and 3941, General Code. Therefore but one ordinance is all that is required to complete the legislation necessary to authorize the issue of bonds within these limitations. That ordinance may be adopted by the city council by an affirmative vote of not less than two-thirds of the members elected or appointed thereto, or it may be initiated by petition and adopted by -a majority of the electors voting upon the question.

Nor is there any averment in this amended petition that the bonds proposed to be issued are in excess of the limitations named in Section 3948, General Code, as amended May 15, 1911 (102 O. L., 262); or that under the provisions of Section 5649-2 et seq., General Code, limiting the maximum.of tax rates which may be levied in any one taxing district, a tax cannot be levied as required by Section 11 of Article XII of the Constitution of Ohio, as amended September 3, 1912, to provide an amount sufficient to pay the interest on the bonds proposed to be issued and a sinking fund for their final redemption at maturity. Robe v. Board of Education, 88 Ohio St., 403.

These two limitations apply, however, to all issues of bonds, regardless of the statutes under which they are proposed to be issued, and there is no method of procedure by which bonds in excess of these limitations may be lawfully issued.

For the reasons stated, the judgment of the court of appeals is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: Newman, J.

license: Public Domain

text:
    The Cleveland & Western Coal Co. v. O’Brien, Treasurer.

      Taxation — Money of Ohio corporation — - Deposited in foreign bank.

    Money óf a corporation organized under the laws of Ohio on deposit in a 'bank located outside of the state of Ohio is, under the provisions of Section 5328. General Code, subject to taxation in this state.
    (No. 15703
    —Decided March 19, 1918.)
    Error to the Court of Appeals of Cuyahoga county
    Plaintiff in error brought an action in the common pleas court of Cuyahoga county to restrain defendant in error from enforcing the collection of certain taxes. It appears from the petition that plaintiff in error is an Ohio corporation with its principal place of business in the city of Cleveland, Ohio; that in its business of buying and selling coal it has acquired and operates a dock in the city of Milwaukee, Wisconsin, which dock is operated as a distinct department of its business and all dealings connected therewith kept separate and distinct from its other business; that all coal put upon said dock by plaintiff in error is shipped up to said dock as though it weré a separate entity from plaintiff in error; that operating costs of the dock and all expenses connected with its operation are kept separate, regular books being kept to cover all purchases and sales in connection therewith, said books being kept in the Milwaukee office; that all remittances to plaintiff in error arising from the sale of dock coal are made to the Milwaukee office and are indorsed by the manager of that office and deposited to the credit of plaintiff in error in an account carried in the First National Bank in the city of Milwaukee; that said dock business has its own profit and loss account and in every way is operated as a distinct and separate business transacted by the plaintiff m the city of Milwaukee.
    It is averred in the petition that plaintiff in error made and filed its tax return with the proper authorities of Cuyahoga county, covering the property owned and held by it on the day preceding the second Monday in April, 1916, which, according to statute, it should list in Cuyahoga county, the amount due thereon being $723.39, which it has tendered to defendant in error, but which has been refused by him; that the statement accompanying the tax return so filed by plaintiff in error showed that it had on deposit in the First National Bank of Milwaukee, on said tax-listing day, the sum of $43,850.98; that the county auditor, without the consent and over the protest of plaintiff in error, and without any right or authority, has placed said

      sum on the duplicate as being taxable property of plaintiff in error in Cuyahoga county; and that defendant in error herein, as treasurer of said county, has entered upon his books as due from plaintiff in error by way of tax on said sum of money the- sum of $861.86, without right or authority, which sum he threatens to and will collect unless he is enjoined from so doing. The prayer of the petition is that the defendant, as treasurer of. Cuyahoga county, be enjoined from enforcing the. collection from plaintiff in error of the tax on the Milwaukee bank deposit.
    A demurrer to the petition was sustained, and plaintiff in error not desiring to plead further its petition was dismissed and judgment rendered against it for costs. On appeal to the court of appeals a demurrer was again sustained and the petition dismissed and a like judgment rendered. Plaintiff in error filed a petition in error in this court asking for a reversal of the judgment of the court of appeals.

      Mr. Q. F. Taplin, for plaintiff in error.

      .Mr. Samuel Doerfler, prosecuting attorney; Mr. T. S. Dunlap, assistant prosecuting attorney, and Mr. R. H. Mitchell, for defendant in error.
   Newman, J.

The only question raised by the demurrer to the petition is whether or not the money of The Cleveland & Western Coal Company, on deposit in the First National Bank of Milwaukee, Wisconsin, is subject to taxation in Ohio. If it is, it is taxable in Cuyahoga county, where the principal place of business of the company is located, and the court of appeals did not err in denying the relief asked for by plaintiff in error.

Section 5328, General Code, is as follows: “All real or personal property in this state, belonging to individuals or corporations, and all moneys, credits, investments in bonds, stocks, or otherwise, of persons residing in this state, shall be subject to taxation, except only such property as may be expressly exempted therefrom. Such property, moneys, credits, and investments shall be entered on the list of taxable property as prescribed in this title.”

Under the provisions of this section all real and personal property in this state belonging to individuals and corporations is subject to taxation, as are all moneys, credits, investments in bonds, stocks, or otherwise, of persons residing in this state. Section 4, Article XIII of the Constitution, requires that the property of corporations, now existing or hereafter created, shall forever be subject to taxation, the same as the property of individuals, and Section 5320, General Code, provides that the word “Person” shall include firms, companies, associations and corporations.

It is urged by counsel for plaintiff in error that bank deposits are to be regarded for taxation purposes as tangible property. If this be true, a deposit in a bank outside the state acquires a situs in the state where the bank is located, and is subject to be taxed there irrespective of the domicile of the owner, and an attempt on the part of this state to tax such property would amount to a deprivation of property without due process of law within the purview of the 14th Amendment to the Constitution of the United States. (Union Refrigerator Transit Co. v. Kentucky, 199 U. S., 194.) Counsel in support of the claim that a bank deposit is tangible property cite Section 5326, General Code, where it is enacted that the term “money or moneys” as used in that chapter of the General Code includes among other things a deposit in a bank which the person owning is entitled to withdraw in money on demand.

It is true that the general assembly has designated what shall be money for taxation and listing purposes, but it has nowhere declared that money on deposit in bank to the general credit of a depositor is tangible property. Money received by a bank on deposit becomes the property of the bank, and its relation to the depositor is that of debtor, and not of bailee or trustee of the money. (Bank v. Brewing Co., 50 Ohio St., 152.) It is a debt which the bank owes to the depositor and is intangible in its nature, and for the-purposes of taxation its situs is the residence of the creditor, and not that of the debtor.

But counsel insist that even though it be held that a bank deposit is intangible property, and under the provisions of Section 5328 subject to taxation in Ohio in the case of an individual residing in this state, yet these provisions have no application to the case of a corporation. They say that Section 5404, General Code, controls, and that money and credits outside the state, belonging to a corporation, are not subject to taxation in Ohio. Section 5404 is as follows:

“The president, secretary, and principal accounting officer of every incorporated company, except banking or other corporations whose taxation is specifically provided for, for whatever purpose they may have been created, whether incorporated by a law of this state or not, shall list for taxation, verified by the oath of the person so listing, all the personal property thereof, and all real estate necessary to the daily operations of the company, moneys and credits of such company or corporation within the state, at the true value in money.”

It is said that inasmuch as the words “within the state” as used in this section qualify and refer to “personal property,” “real estate,” “moneys” and “credits,” the only moneys and credits of a corporation, domestic or foreign, that are subject to taxation in Ohio, are those actually in this state. As we have held, money on deposit in bank is intangible property; and if Section 5404, supra, should be construed so as to exempt from taxation debts due to a corporation residing in this state, it would be in conflict with the provisions of Section 2, Article XII of the Constitution. This section provides among other things that laws shall be passed taxing by a uniform rule, all moneys, credits, investments in bonds, stocks, joint stock companies, or otherwise. This mandate of the constitution requiring uniformity in taxation implies equality in the burden of taxation, and to tax an individual residing in Ohio on account of his bank deposits in another state, and exempt therefrom a resident corporation, would be plainly a lack of uniformity. We think that Section 5404 was enacted primarily for the purpose of providing a method for the return for taxation of the property of corporations. It is true that this section does provide for the taxing of certain property of corporations within this state, yet it does not follow that it was the intention of the general assembly to exempt from taxation intangible property without the state belonging to a corporation organized under the laws of Ohio. If the construction contended for by counsel were to be given to Section 5404, it would repeal by implication the provisions of Section 5328 which provide for the taxing of all moneys and credits of persons residing in this state, individuals and corporations alike. It is well understood that repeals by implication are not favored, and, where two-affirmative statutes exist, one is not to be construed to repeal the other by implication unless they can be reconciled by no mode of interpretation. (Dodge v. Gridley, 10 Ohio, 173.) We cannot adopt the construction urged by counsel and exempt from taxation the bank deposits and credits outside of this state belonging to an Ohio corporation.

In a recent case decided by the supreme court of the United States, questions similar to the ones presented by counsel here were considered by the court, and the holding was that the deposits in a bank in Missouri, owned by a resident of Kentucky, are taxable at the owner’s domicile even though also taxable in- Missouri, whether the tax imposed at the owner’s domicile was one on the property or one on the owner measured by the property. Fidelity & Columbia Trust Co. v. City of Louisville, Kentucky, 245 U. S., 54.

Our conclusion is that the money of plaintiff in error deposited in the bank at Milwaukee, Wisconsin, is subject to taxation in Cuyahoga county, and that the court of appeals was correct in sustaining the demurrer to the petition.

Judgment affirmed.

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


author: Wanamaker, J.

text:
    The State of Ohio v. Ellis.

      Jurors — Voir dire examination — Discretion of trial court— Opinion of venireman — Recommendation of mercy — In first degree murder case.

    1. In a rvoir dire examination of veniremen to qualify them as fair and impartial jurors under the constitution and the law, such examination, where not specifically controlled by statute, is largely in the discretion of the trial judge, and no prejudicial error can be assigned in connection with such examination unless there be a clear abuse of such discretion.
    2. A venireman’s opinion as to the wisdom or unwisdom of a recommendation of mercy upon a conviction of murder in the first degree is not subject to inquiry upon a voir dire examination of the venireman.
    3. Whether or not .a recommendation of mercy shall be made upon finding an accused guilty of murder in the first degree is a matter vested fully and exclusively in the discretion of the jury.
    (No. 15457
    Decided March 10, 1918.)

      Exceptions by the Prosecuting Attorney to the Decision of the Court of Common Pleas of Hamilton county.
    Facts are stated in opinion.

      Mr. John V. Campbell, prosecuting attorney, and Mr. Simon Ross, Jr., assistant prosecuting attorney, for plaintiff in error.'

      Mr. Raymond Ratliff, for defendant in error.
   Wanamaker, J.

One Carl Fischer was being examined as to his qualifications as a juror. The following questions and answers appear from the record:

By Mr. Ratliff, attorney for defendant.

“Q. Mr. Fischer, in a case of murder in the first degree, would you be opposed to the consideration of the extension of mercy to a man who you felt was guilty of so great a crime? A. Yes sir.

“Q. You would be opposed to it? A. Yes sir.

“Q. So that if you were of the firm conviction and were convinced beyond all reasonable doubt that a man was guilty of murder in the first degree, you would not be willing to consider the extension of mercy? A. No sir.”

By the Court.

“If the law provided that you should consider mercy, would you feel so set in your opinion that you would bring in a verdict without recommendation of mercy, without even considering mercy? A. I don’t think I could consider it fairly, Your Honor, no, because of my theory, an eye for an eye.”

By Mr. Ross, attorney for the state.

“Q. I am not asking you whether you would vote for the death penalty. He merely asked you, whether under the instructions of the Court, along with the other instructions he will give you, whether you could take this matter up under consideration, or whether you would bottle yourself up and say, ‘No I won’t consider it at all’? A. First degree murder is a chair with me. If I am sure he is guilty, first degree, that is a chair.

“Q. You don’t think you could consider the question of mercy at all? A. No sir, not if I felt sure it was first degree murder.”

The counsel for the defendant, Reuben Ellis, submitted a challenge for cause and the court sustained the challenge and excused Mr. Fischer.

The counsel for the state took proper exceptions to the ruling of the court.

It is urged that the foregoing voir dire examination, the challenge of counsel, and the allowance of that challenge, to which the prosecutor excepted, are justified by virtue of Section 12400, General Code, which reads:

“Whoever, purposely, and either of deliberate and premeditated malice, or by means of poison, or in perpetrating or attempting to perpetrate rape, arson, robbery or burglary, kills another is guilty of murder in the first degree and shall be punished by death unless the jury trying the accused recommend mercy, in which case the punishment shall be imprisonment in the penitentiary during life.”

This provision authorizing the jury to recommend mercy, whereupon the court shall impose only life imprisonment, is the result of an amendment made by the general assembly of Ohio in 1898, as found in 93 Ohio Laws, 223.

No case in Ohio seems to have considered fundamentally the legal- practice and judicial limit on a voir dire of veniremen preliminary to challenge in criminal cases. In other states the practice is not uniform. In some, counsel for the prisoner and the state are given wide latitude, and are almost free from control by the court in the preliminary questions. In others, the trial judge takes charge of the preliminary examination, takes it to the point of qualifying the jury, challenging for cause, and after he has completed this examination turns the veniremen over, first, to counsel for the state, and then to counsel for the defense, for further inquiry, if any; but such inquiry is limited to new matter and not merely to repetition of the inquiry of .the trial judge.

The latter practice has much to commend it in the saving of time and in the avoiding of any unpleasantness and irritation between counsel and the veniremen,, the latter often objecting to the vigorous cross-examination by persistent counsel, ofttimes impugning their sense of fairness and impartiality.

When we remember how in some jurisdictions days and weeks are consumed in qualifying the twelve men in the jury box for the trial of some murder case, the importance of keeping the voir dire examination within proper limits is most manifest. Our statute providing for challenge in criminal cases, Section 13653, General Code, is as follows:

“The following shall be good cause for challenging a person called as a juror on an indictment:

“First. That he was a member of the grand jury which found such indictment;

“Second. That he has formed or expressed an opinion as to the guilt or innocence of the accused; but if a juror has formed or expressed such opinion, the court shall thereupon examine such juror on oath as to the grounds thereof, and if such juror says that he believes he can render an impartial verdict notwithstanding such opinion, and the court is satisfied that such juror will render an impartial verdict on the evidence, the court may admit him as competent to serve as a juror in such case;

“Third. In indictments for a capital offense, that his opinions preclude him from finding the accused guilty of an offense punishable with death;

“Fourth. That he is related within the fifth degree to the person alleged to be injured, or attempted to be injured by the offense charged, or to the person on whose complaint the prosecution was instituted, or to the defendant;

“Fifth. That he served on a petit jury drawn in the same cause against the same defendant, and such jury was discharged after hearing the evidence, or rendered a verdict thereon which was set aside;

“Sixth. That he served as a juror in a civil case brought against the defendant for the same act;

“Seventh. That he has been subpoenaed in good faith as a witness in the case;

“Eighth. That he is an habitual drunkard;

“Ninth. Like challenges shall be allowed in criminal prosecutions as are allowed in civil cases.”

The last provision reads into the criminal statute the civil statutes pertaining to challenges, which in turn become important. They are as follows:

“Sec. 11437. The following shall be good causes for challenge to any person called as a juror for the trial of any cause:

“1. That he has been convicted of a crime which by law renders him disqualified to serve on a jury;

“2. That he has an interest in the cause;

“3. That he has an action pending between him and either party;

“4. That he formerly was juror in the same cause ;

“5. That he is the employer, employe, counsellor, agent, steward, or attorney of either party;

“6. That he is subpoenaed in good faith as a witness in the cause;

“7. That he is akin by consanguinity or affinity within the fourth degree, to either party, or to his attorney;

“8. That he is a party to another action then pending in any court, in which an attorney in the cause then on trial is an attorney, either for or against him;

“9. That he, not being a regular juror of the term, has served once already as a talesman in the trial of any cause, in any court of record in the county within the preceding twelve months; and in any of such cases each shall be considered as a principal challenge, and its validity tried by the court.”

“Sec. 11438. Any petit juror may be challenged also on suspicion of prejudice against, or partiality for either party, or for want of a competent knowledge of the English language, or other cause that may render him at the time an unsuitable juror. The validity of such challenge shall be determined by the court, and be sustained if the court has any doubt as to the juror’s being entirely unbiased.”

It is significant that upon amendment of the homicide statute in 1898 there was no change made in the provisions as to the grounds for challenge of jurors.

The right of trial by jury, particularly in criminal cases, is generally conceded to be a part of the English system of jurisprudence. Its earliest origin is unknown, but its substantial recognition, even by royalty, is recorded in Magna Charta, where the right was guaranteed in the famous document from King John of England in 1215. This charter has been generally recognized as the bulwark of English liberties.

The special provision of the charter applying to the right of trial by jury follows:

“No freeman shall be hurt in either his person or property, unless by lawful judgment of his peers or equals, or by the laws of the land.”

Originally the jurors were selected from the vicinage or neighborhood, because of the superior knowledge of such a jury concerning the defendant personally and the facts touching his guilt or innocence; in short, the knowledge of the neighbor was presumed to qualify him to try the question of the guilt or innocence of the accused. Intelligence was at a premium. Years of practice have thrown the pendulum to the other end of the arc and in too many jurisdictions the test of jurymen to-day is not intelligence but ignorance. The primary question too often is, how can we find twelve men who are wholly ignorant of the alleged transaction and of the defendant?

The oath of the juror is to “well and truly try and true deliverance make between the state of Ohio and the prisoner at the bar.” All of above grounds, severally and collectively, are primarily designed to secure for the state, no less than the prisoner at the bar, a fair and impartial jury.

What is the jury to try? Manifestly the issues raised by the indictment; that is, the guilt of the prisoner as therein charged. The entire voir dire examination should be directed exclusively to the question whether from any cause "the juror has a bias of mind in favor of or against either party that would interfere with his impartial and full consideration between them as to the guilt of the accused as charged.

Now, when that guilt is determined, and in this case it was found by the jury to be murder in the first degree, it then becomes the duty of the jury to determine the penalty. If they recommend mercy, the court is obliged by the statute to impose life imprisonment. If they fail to recommend mercy, the court must impose the death penalty. Manifestly this is all subsequent to the determination of the guilt or innocence of the accused. It has nothing whatsoever to do with the qualifications of the jurors to impartially try the accused.

Clearly the foregoing examination of the venireman in the instant case discloses simply this, thát his views touching murder in the first degree clearly established beyond a reasonable doubt that in such case he would not recommend-mercy. It will not do to say that he would not consider the recommendation, because the very fact that he rejected such recommendation presupposes consideration.

Upon what theory of qualification of jurors should such answers disqualify the venireman ?

It is a well-settled rule, under the statutes where the jury have nothing whatsoever to do with the penalty attendant upon their rendition of a verdict of guilty, that prejudice against crime does not disqualify the jury. Indeed, it is high time for courts to say that prejudice against crime should be a qualification for jury service. Would it be urged that a man who had no prejudice against crime was even a good citizen; to say nothing of a good juror? The criminal or qwaN-criminal is the only individual known to the law who has no prejudice against crime. Hence he is the criminal. If prejudice against crime disqualifies one from being a competent and impartial juror, then the only persons qualified for such jury service are of the criminal or quasi-criminal class.

The authorities, however, are uniformly settled that no matter what the degree or extent of the prejudice against crime, the prejudice will not disqualify the juror so long as it is not against the prisoner personally; for he, indeed, in fact and in law, is presumed to be innocent.

One of the most ably and fully considered cases upon this question has become known as “The Anarchists’ Case of Chicago,” Spies et al. v. People, 12 N. E. Rep., 865, 867 (122 Ill., 1, 263), where it is held:

“A prejudice against * * * anarchists is nothing more than a prejudice against crime, which would not force a jury to prejudge an innocent and honest man, and would not, therefore, disqualify a juror.”

To the same effect is Leach v. State, 99 Tenn., 584, where it is held:

“That a juror had expressed the opinion that any man who waylays and kills another ought to be hung, does not disqualify him to try a case of murder committed by waylaying, as to the particular facts of which he has no opinion, or means of forming an opinion.”

Also to the same effect is Cooper v. State, 162 S. W. Rep., 364 (72 Tex. Cr., 266), where it is held:

“Where jurors stated on their voir dire that they had not formed any conclusion as to defendant’s guilt or innocence, but that they had a prejudice against the crime with which accused was charged, they were not disqualified.”

More directly in point is State v. Thorne, 39 Utah, 208. The judge rendering the opinion, at page 219, makes this observation:

“It needs no argument to show that the court undertook to guide and direct the jury in the determination and exercise of a discretion which the law conferred on them in terms unlimited and unprescribed. May the court do that ? We think not. Says Mr. Wharton in his w'ork on Homicide (3d Ed.), section 66: ‘The functions of the court are best performed under such provisions’ — permitting the jury to make a recommendation in respect of the punishment —‘by simply giving the terms of the statute to the jury, and informing them that the making or withholding of the recommendation is a matter entirely within’ their discretion. Mr. Justice Temple, in the case of People v. Kamaunu, 110 Cal. 609, 42 Pac. 1090, said: ‘This discretion is given to the jury, and the court cannot direct or advise them upon the subject further than to inform them of their function.’ ” (Citing Cyrus v. State, 102 Ga., 616, 29 S. E. Rep., 917, as sustaining this doctrine.)

But in the Thorne case the conclusion of the whole matter is stated, as follows:

“It undoubtedly is the law, that the jury, in the event they found the prisoner guilty of murder in the first degree, had the absolute right to recommend a punishment of life imprisonment, and that the making or withholding the recommendation was a matter entirely within their discretion to be exercised in any manner and for any reason they saw fit, and that they ‘should be left free to dispose of the question without any intimation of the court as to what should control or influence them in reaching a conclusion upon it.’ ”

It might be urged that because the state may inquire as to prejudice against capital punishment, that, therefore, the defendant should likewise inquire as to any prejudice against recommending mercy. But the statute determines this question by providing that the prejudice against capital punishment is a specific ground of challenge; and the statute does not make any such provision with reference to a recommendation of mercy.

Again there is other sound ground for such distinction. A juror, if he have a prejudice against capital punishment, may refuse to find the prisoner guilty of murder in the first degree because such finding might subject him to such penalty unless the jurors recommend mercy. A juror might, if that prejudice were strong enough, refuse to concur in a first degree verdict, notwithstanding the evidence clearly showed to a moral certainty the guilt of the accused.

Independent of the statute, however, prejudice against capital punishment has been generally recognized as a ground for challenge, and with almost equal uniformity the question of recommendation of merey has in no wise been recognized as a ground for challenge.

The decisions of course are quite uniform that the trial judge may not advise or direct the jury touching a recommendation of mercy; and, if the judge may not do so, why should counsel be permitted to commit the jurymen in advance, either one way or the other, touching such recommendation ? The jury should be left entirely free to consider that question áfter they have agreed upon a verdict of murder in the first degree.

There is already too large a latitude allowed in this voir dire examination. To open the door still wider to this preliminary question touching recommendation of mercy would permit an almost interminable line of hypothetical questions as to what would constitute such a case in the judgment of the juror, for instance, whether if there were mitigating circumstances of one kind or another kind he would be favorably inclined thereto, all with a view of committing the juror one way or the other before he has even heard the evidence in the court.

The question touching the venireman’s view as to murder in the first degree was improperly asked, and the objection to its asking should have been sustained. The challenge to the venireman was improperly sustained and the exceptions of the prosecuting attorney thereto are now sustained.

Exceptions sustained.

Nichols, C. J., Newman and Matthias, JJ., concur.


text:
    The Industrial Commission of Ohio v. Roth et al.

      Workmen’s compensation — Occupational disease — 'Lead poisoning — Accidental inhaling of fumes.

    1. A disease contracted in the natural and ordinary course of employment, by a person engaged in a particular calling or occupation, which disease from common experience is known to be a usual and customary incident to such oalling or occupation, is an “occupational disease,” and not within the contemplation, of the Workmen’s Compensation Law.
    2. The accidental and unforeseen inhaling by an employe, in the course of his employment, of a specific, volatilfe poison or gas, resulting in injury or death, is not an “occupational disease.”
    (No. 15526
    Decided April 2, 1918.)
    Error to the Court of Appeals of Jefferson county.
    In the fall of 1915, Edwin S. Roth, a boy about eighteen years of age, was employed by McFeeley Brothers as a common laborer. McFeeley Brothers had complied with the provisions of the Workmen’s Compensation Law, and had paid premiums into the insurance fund of the state of Ohio, as required by that law.
    On the 8th day of November, 1915, Roth, in the course of his employment, was ordered and directed to do some painting on a building in the process of construction. Roth, though not a painter, undertook to obey the orders given him, but the weather was so cold that the paint would not flow from the brush. He was then directed by his employers, through their foreman, to take the paint to a small building and heat it; which he did. • This small building had no ventilation except the doors and windows, which were closed. The paint, when heated, gave off poisonous fumes and vapors, which were inhaled by Roth while heating it, and also' while at work with a bucket of hot paint directly under him. This process of heating was required to be done from time to time throughout that day and the next. On the evening of the second day Roth became ill from the poisonous fumes and gases which he had inhaled, and his illness continued to increase from day to day until it resulted in his death on the 26th day of the same month.
    An application was made to The Industrial Commission of Ohio by the defendants in error, who were all partially dependent upon the deceased for support, for compensation on account of the death of Edwin S. Roth. The commission refused to make any award of compensation, and denied defendants in error any right of compensation whatever, for the reason that in the opinion of the commission death resulted from an occupational disease and not from injuries received in the course of his employment.
    An appeal was taken from this order of The Industrial Commission of Ohio to the court of common pleas of Jefferson county. A petition was filed by the defendants in error averring the above facts.
    To this petition The Industrial Commission of Ohio filed a general demurrer, which was sustained by the common pleas court, and, defendants in error not desiring to plead further, their petition was dismissed and judgment rendered against them for costs.
    Upon a proceeding in error, the court of appeals of Jefferson county reversed the judgment of the common pleas court, and this proceeding in error is now prosecuted in this court to reverse the judgment of the court of appeals.

      Mr. Joseph McGhee, attorney general; Mr. William J. Ford; Mr. H. Stanley McCall and Mr. Roy R. Carpenter, prosecuting attorney, for' plaintiff in error.

      Mr. C. L. Williams, for defendant in error.
   Donahue, J.

It is contended on the part of the plaintiff in error that it conclusively appears from the facts stated in the petition that Edwin S. Roth died from an occupational disease, and that injury or death resulting from such diseases contracted in the course of employment is not within the provisions of the Workmen's Compensation Act and cannot be made the basis of a claim for compensation from the insurance fund provided by that act.

If this is true, it is the end of the case, and the judgment of the court of appeals must be reversed and that of the common pleas affirmed. The Industrial Commission of Ohio et al. v. Brown, 92 Ohio St., 309.

In the brief of counsel for plaintiff it is said that “the question as to whether or not this is an occupational disease is a medical question rather than a question of law."

If that statement is correct, then it was error for the trial court to sustain the demurrer, and it should have submitted the question to a jury under proper instructions, upon such expert medical evidence as might have been offered by the parties to the suit.

There is, however, no dispute as to the facts in this case. Nevertheless, it does not always follow that where the facts are not in dispute the jury has no function to perform. Sometimes the ultimate question at issue is a proper one to be submitted to the jury, even where there is no dispute as to the primary facts and combination of circumstances from which the conclusion is to be deduced; as, for instance, in a negligence case, where the admitted facts do not constitute negligence per se, it is the province of a jury to determine whether they do oído not constitute negligence under the peculiar circumstances of each particular case.

On the other hand, where the facts are admitted or conclusively established, and the proper judgment to be entered involves only the construction of the law applicable to such facts, the question is for the court, and not for the jury. Cornell v. Morrison, 87 Ohio St., 215.

We are of the opinion that this case comes within the latter class, although it is very close to the dividing line, and we can readily see how a very slight variance in the facts, in a similar case, might present a jury question.

In this case it is admitted that the deceased was a common laborer, and that the disease of lead poisoning is not incident to his regular occupation, but, on the contrary, is incident to the work in which he was employed for the two days preceding his illness.

“Occupation” has been defined by the courts of this and other states to be “that particular business, profession, trade, or calling, which engages the time and efforts of an individual.” In other words —the employment in which one regularly engages, or the vocation of one’s life. A disease contracted in the usual and ordinary course of events, which from the common experience of humanity is known to be incident to a particular employment, is an occupational disease, and not within the contemplation of the Workmen’s Compensation Law. '

It is within the common knowledge of men that lead poisoning is a disease incident to the occupation of a painter, and if this young man, although employed as a common laborer, undertook in the course of his employment to do the work of a painter, and by reason thereof, in the natural and due course of events, contracted this disease as an incident thereto, it is the end of the controversy.

But it is also common knowledge that in the occupation of a painter the exposure is so slight that this disease is slow and insidious in its development, and chronic in its character. In fact, the history of the development of this disease in this occupation shows that it is a matter of years instead of days, and that many escape altogether. There are many other occupations, perhaps as many as eighty-five in the aggregate, to which this disease is also incident, and in some of them the exposure is so great that the disease is of far more rapid development. Lead smelting and the making and handling of lead carbonates are by far the most hazardous of these employments, yet a case of lead poisoning developed in five weeks by a man employed in a white lead factory, who was furnished no respirator and was not advised that the white dust on his hands and mustache was poison, is reported by medical authorities as an extreme case of the rapid development of this disease.

Lead poisoning of course may be acute if the exposure is so extraordinary and overwhelming as to produce immediate results. Time, after all, is but a relative circumstance, and the amount of time requisite for the development of this disease is always in the inverse ratio to the extent and character of the exposure.

In the construction of the law it is the duty of a court to give to words their usual and ordinary meaning, such meaning as they import to mankind in general, and not a forced or unusual definition, which may in its last analysis be technically correct, but wholly at variance with the common understanding of men.

Applying this fair and reasonable rule of interpretation to the term “occupational disease,” it follows that an occupational disease is not only a disease incident to a particular occupation, but that it is a disease developed in the usual and ordinary manner by reason of and because of the occupation in which the person suffering therefrom is or was engaged.

While the fact is well known and recognized generally that certain occupations are the prolific sources of lead poisoning, yet it by no means follows that a case of lead poisoning cannot be developed in other ways than by engaging in such occupation. There are cases recorded by reputable medical authorities where acute lead poisoning has developed immediately by sudden exposure to large quantities of dust, vapor, and gases from broken packages of lead, and from fumes of molten lead, but such cases are the result of accident or misadventure, that may happen to any person, regardless of his occupation.

If, therefore, it were conceded that in the occupation of a painter the disease of lead poisoning might in the ordinary and usual course of events develop in two days, yet the facts pleaded in this petition, if true, conclusively show that this disease did not occur in that way, although the deceased was temporarily engaged in painting, but on the contrary that his injury was caused wholly and entirely by accident and misadventure, while heating the paint in a small, unventilated room, where the deadly fumes pervaded the atmosphere he was compelled to breathe.

An accident is some happening that occurs by chance, unexpectedly, and not in the usual course of events. It is something that might possibly be prevented by the exercise of due care and caution.

In this particular 'case, if the young man had understood the deadly nature of the fumes he was breathing, he could easily have escaped all danger by opening the doors and windows of the room in which the paint was being heated, and the fact that the accident might easily have been avoided readily distinguishes it from an occupational disease; for, notwithstanding the fact that more than two centuries ago occupational diseases had become so well known as to justify their treatment in a separate volume in the medical literature of that day, nevertheless, science has been unable to discover any positive means and methods of prevention.

These diseases are incident to certain employments, yet with full knowledge of that fact human foresight cannot defend against them. The fact that this injury resulted in a disease that is incident to divers occupations does not bring it within the doctrine announced by this court in the case of Industrial Commission v. Brown, supra, for this accident might have happened to any person, regardless of occupation, who had occasion to enter this building at the time this folly was being perpetrated.

We are therefore of the opinion that the term “occupational disease” must be restricted to a disease that is not only incident to an occupation, but the natural, usual and ordinary result thereof; and held not to include one occasioned by accident or misadventure.

Judgment affirmed.

Wanamaker, Jones and Matthias, JJ., concur.


author: Johnson, J.

text:
    The City of Piqua v. Morris et al.

      Negligence — Act of God■ — Proximate cause — Superior force and concurrent negligence — Floods — Embankment breaks — Charge to jury.

    1. The proximate cause of a result is that which in a natural and continued sequence contributes to produce the result, without which it would not have happened. The fact that some other cause concurred with the negligence of a defendant in producing an injury, does not relieve him from liability unless it is shown such other cause would have produced the injury independently of defendant’s negligence.
    2. In the construction and maintenance of a hydraulic, or similar work, a municipality, or other owner, is required to use ■ordinary skill and foresight to prevent injury to others in times of floods to be reasonably anticipated; and if injury is caused by the negligence of such owner, he is liable in damages, provided his negligence is one of the proximate causes of the injury, although it concurred with other causes, including the act of -God.
    3. In order to -fix liability on an owner in such case, it must be shown that his negligence concurred with the act of God in causing the injury; but if the act of God, such as an extraordinary flood, was so overwhelming and destructive as to produce the injury, whether the defendant had been negligent or not, his negligence cannot be held to be the proximate cause of the injury.
    4. Where from a consideration of t’he whole charge of the court, it is seen that the jury has been given a comprehensive and intelligent instruction concerning the issues and the application of technical terms used, the fact that a particular term is also used in a special charge, or in other parts of the general charge, without such explanation, should not be held to be erroneous.
    (No. 15563
    —Decided April 2, 1918.)
    Certified by the Court of Appeals of Miami county.

      The defendants in error brought a suit in the common pleas of Miami county against the city of Piqua to recover damages for its negligence in flooding and injuring their farm by washing away soil and gravel and destroying a roadway, gates and fences, by the breaking of a bank of a hydraulic opposite the farm and from the rush of a large volume of water down and over it.
    The petition alleges that the city owns what is known as “Piqua Hydraulic,” which affords water for its waterworks system within the boundary of the city; that in order to maintain at all times a sufficient supply of water the hydraulic has a series of ponds of many acres in area in which to collect surplus waters, and that one of them, known as “Swift Run” pond, lies adjacent to the plaintiffs’ lands and buildings thereon, with an embankment about 30 feet high on the west thereof; that, in order to take off the surplus water that accumulates or might accumulate in said “Swift Run” pond, in times of heavy rains and high waters, there was constructed on the east bank of said pond a spillway containing 16 openings, 30 inches square, each provided with a gate or wicket; that said openings were of sufficient width and size to carry off through the same at all times all the surplus water that might accumulate in said pond and to keep and confine the water therein and prevent any overflow; that about 5 years ago the defendant rebuilt the timber part of the spillway and neglected to provide wickets for 4 of said openings; that prior to and on the 25th of March, 1913, defendant had negligently and carelessly permitted all of the remaining 12 openings, and the gates or wickets, to become and remain out of repair; that by reason thereof they would not permit more than one-half of the amount of water to pass through as if in proper condition, and that on said day all of said 12 gates were permitted to remain closed and the water was negligently caused and permitted to rise above the normal stage; that on that day a heavy rain fell which flooded the pond so that it overflowed its banks; that the water flowed to and passed over and on the plaintiffs’ premises, which were east of and adjoining the embankment, and lower, and injured them by washing away about 6 acres of dirt and gravel to a depth of 5 to 10 feet and doing the damages above stated; and that the embankment had become weakened because of negligence of the defendant.
    The plaintiffs further alleged that if the defendant had cut a trench in said embankment at the county line, instead of where it was cut, the damage would not have been caused to the plaintiffs.
    In its answer the city denied all the allegations of negligence contained in the petition, denied that the spillway contained 16 openings, but averred that it contained 12 gates or wickets.
    For a second defense, the city stated that on March 25, 1913, and prior thereto, there occurred all over the state of Ohio, including Miami county, a heavy and extraordinary rainfall in excess of and beyond anything occurring in said city and state within the memory of the oldest inhabitant of said city; that the water in the hydraulic, and in all the streams and ponds contributing to its water, rose rapidly to a height theretofore unknown and flooded all adjacent lands and streams contributing to said hydraulic and pond and assumed the proportions of an immense and violent flood, breaking away dams and bridges over streams, including defendant’s hydraulic and pond and all streams and rivers contributing to its water supply, causing a great and unprecedented destruction to life and property; that the defendant exercised every caution at its command to protect the property of the plaintiffs and the other inhabitants of Piqua; that in the exercise of due diligence and extraordinary care it was unable to . prevent the embankment of the hydraulic canal and run from breaking away; and that it was not possible to cut a trench in the embankment at the county line, nor could it have protected plaintiffs’ property by cutting the bank 500 feet north of the point at which it broke through. And it alleged that the damages, if any, were occasioned by an act of God.
    The reply denies that the damages were oc-casioned by the act of God and reiterates the allegations of the petition that the negligence of the city directly and substantially contributed thereto.
    A jury in the common pleas court returned a verdict for the defendant, and the judgment entered on this verdict was, on proceedings in error, reversed by the court of appeals for errors in the charge of the court.
    In its entry the court of appeals certified that it found that the judgment upon which it had agreed in the case was in conflict with the judgment pronounced upon the same question by the court- of appeals of Hamilton county in the case of The Standard Extract Co. v. The H. Belmer Co. It therefore certified the record of the case to this court for review and determination.

      Messrs. Lindsey & Berry, for plaintiffs in error.

      Mr. D. B. Van Pelt and Mr. A. W. DeWeese, for defendant in error.
   Johnson, J.

The verdict of the jury was general -— all of the issues made by the pleadings were resolved in favor of the defendant. This finding of course embraced the issue tendered in the second defense — that in the exercise of due diligence and extraordinary care the defendant was unable to prevent the embankment of the hydraulic and “Swift Run”' pond from breaking away; that it was not possible to cut a trench in the embankment at the county line, nor could defendant have protected plaintiffs’ property by cutting the bank 500 feet north of the point at which it broke; and that the damages to plaintiffs, if any, were occasioned by an act of God, without any fault or neglect of defendant, its officers or servants.

The downfall of water in March, 1913, has passed into the history of the state as its most extraordinary and disastrous flood. The damage and suffering it caused throughout this and adjoining states is a matter of general knowledge. It was so widespread and so devastating that the legislature less than a month after the flood passed what is generally known as the “Flood Emergency Act,” 103 Ohio Laws, 760, to authorize the duly constituted authorities of the different subdivisions of the state to borrow and expend money for the purpose of the repair, reconstruction and replacement of public property and ways injured; and this was done as a necessity for the public health, safety and convenience.

The validity of this legislation was upheld in the following June, Assur v. Cincinnati et al., 88 Ohio St., 181, in which case the wholly unusual and unprecedented character of the flood was recognized and stated to be a matter of general knowledge.

The court of appeals in reversing the judgment of the common pleas in the case at bar held that there was error in the giving of defendant’s charges Nos. 1, 2 and 6, hereinafter set forth, which were given before argument to the jury,, and in employing in charges Nos. 2 and 6 “the terms ‘intervenes,’ ‘proximate’ and ‘proximately,’ being terms of technical significance, without explanation as to their application as to the evidence and the facts;” and in ignoring in charge 6 the possibility of contributing causes. It also found error in' the general charge.

Before the giving of the charges requested by defendant the court had given a number of special charges requested by the plaintiffs, the first of which is as follows:

“The term ‘Act of God’ in its legal significance, means any irresistible disaster, the result of natural causes, such as earthquakes, violent storms, lightning and unprecedented floods. It is such a disaster arising from such causes, and which could not have been reasonably anticipated, guarded against or resisted. It must be due directly and exclusively to such a natural cause without human intervention. It must proceed from the violence of nature or the force of the elements alone, and with which the agency of man had nothing to do. If the injury is caused by the agency of man cooperating' with the violence of nature or the force of the elements, it is not the ‘Act of God.’ If there be the action of such a natural cause or force yet if the resulting injury is directly contributed to by the hand of man, it is not in law the ‘Act of God.’ If the injury is in part occasioned by the wrongful act or the negligent act of any person concurring therein and contributing thereto,. such person will be liable therefor and this applies to a municipal corporation as well as to a natural person.”

In addition to the above, the court had also given, at the request of the plaintiffs, five other special charges, in which the nature of the reservoirs involved in the case and their character as dangerous agencies in case of overflow or bursting of embankments are described. The duty of the city in such circumstances and its liability for damages occurring by reason of failure to perform the duty or for its negligent performance are also specifically and fully stated and explained.

A Plaintiffs’ charge No. 1, as above set out, is a correct and comprehensive statement of the law on the subject.

The propositions it contains have substantially been approved by the authorities. 1 Corpus Juris, 1172.

It is equally well settled that if the vis major is so unusual and overwhelming as to do the damage by its own power, without reference to and independently of any negligence by defendant, there is no liability.

In 1 Shearman & Redfield on Negligence (6 ed.), Section 39, it is said: “It is also agreed that, if the negligence of the defendant concurs with the other cause of the injury, in point of time and place, or otherwise so directly contributes to the plaintiff’s damage that it is reasonably certain that the other cause alone would not have sufficed to produce it, the defendant is liable, notwithstanding he may not have anticipated or been bound to anticipate the interference of the superior force which, concurring with his own negligence, produced the damage. But if the superior force would have produced the same damage, whether the defendant had been negligent or not, his negligence is not deemed the cause of the injury.”

In Central Trust Co. v. Wabash, St. L. & P. Ry. Co., 57 Fed. Rep., 441, 448, the general rule as to the duty of the owners of dams and embankments to use care and skill in their construction and maintenance so as to not injure others in times of usual, ordinary and expected floods is stated, and it is there said: “But his liability extends no further, and he is not held responsible for inevitable accidents, nor for injuries occasioned by extraordinary floods, which could not be anticipated or guarded against by the exercise of ordinary and reasonable foresight, care, and skill.”

These general principles are also declared in B. & O. Rd. Co. v. Sulphur Spring School Dist., 96 Pa. St., 65, 70, and Crawford v. Rambo, 44 Ohio St., 279. They are in keeping with the clear and plain dictates of justice. They hold a property owner to the performance of every proper duty to his neighbor, but they do not offend conscience by requiring the impossible.

It will be observed that the issues presented by the pleadings in the case we have here were evidently made in view of this state of the law.

In substance the charges of negligence against the city are that it failed to provide adequate outlets for the outflow of water in times of heavy rains; that it failed to keep existing outlets open' as it should have done under the circumstances which involved probable danger; and that it unnecessarily cut the bank at or near plaintiffs’ premises and thereby permitted the water to rush over plaintiffs’ land.

The answer of the city denies all allegations of negligence and fault on its part, and in evident recognition of its duty in connection with the reservoir and banks contains the allegations above referred to, which, if true, relieved the city of any liability in the case, under the principles of law above stated.

Considerable testimony was adduced by the parties touching the issues thus made, and the contest from the first has been waged chiefly concerning the facts.

The court of appeals in the performance of its duty to consider the weight of the evidence did not find that the verdict in favor of defendant was not sustained by sufficient evidence.

The special charges given by the trial court and held to be erroneous by the court of appeals are as follows:

“1. Defendant before argument requests the court to charge the jury that if they believe from the testimony that an unprecedented rainfall and flood which could not have been reasonably anticipated by an ordinarily cautious person, was the efficient cause, the one cause that necessarily set in operation said causes contributing to plaintiffs’ injury, that plaintiff cannot recover.

“2. Where an act of God intervenes between the wrongful conduct of the defendant and the injury complained of, this will relieve the defendant from liability, if the act of God appears to be the proximate cause of the loss or injury.

“6. Where the injury was proximately caused by the act of God, the law does not concern itself with duties, the observance or breach of which had nothing to do with the damage.”

With reference to the use of the words “proximate” and “proximately,” the court in its general charge, after fully and clearly stating the issues made by the pleadings, and defining the term “Act of God” substantially as it had been defined in the charge given at the request of plaintiffs before argument, explained to the jury the nature of instances in which acts of negligence 'of the nature of those alleged to have occurred in this case would or would not be the proximate cause of injury, and charged that the burden of sustaining its defense that the “Act of God” was the direct and proximate cause of the injury rested on the defendant.

Where from a view of the whole charge it is seen that the jury has been given a comprehensive and intelligent instruction concerning the issues and the meaning of technical terms used, the .fact that a particular legal or technical word is also used in a portion of a special charge, or in the general charge, without such explanation or definition, should not be held to be erroneous.

Now, in this case we think it clear that the only possible meaning which the jury could have given to charge No. 1 was that if they found that an unprecedented rainfall and flood, which could not have been reasonably anticipated, was the sole cause of plaintiffs’ injury, plaintiffs could not recover. As to Nos. 2 and 6, when considered by the jury in the light of the general charge, we can not conceive that they could fail to understand fully the meaning of the terms “proximate” and “proximately,” which were used in those charges, or that any prejudice could have resulted to the plaintiffs therefrom. Each case must be determined by its peculiar facts. And the question as to what was the proximate cause of injury in a case such as this is one of fact for the determination of the jury. Adams v. Young, 44 Ohio St., 80.

The court of appeals also held that the court erred in the following portion of its general charge, namely, “It is not material for you to determine whether defendant could have prevented the break in the bank at the place where it occurred after its dangerous situation was discovered. There is no charge in the petition that the city could have prevented the same from breaking after its dangerous situation was discovered, and you may omit, therefore, that as a factor in determining the question of negligence.”

Immediately following this portion of the general charge is the following: “On the other hand, if the city officials did cut the bank and as a result thereof the water flowed upon plaintiffs’ lands which otherwise would not have gone there, it would be no defense that the cut was made to save lives or property, or for any other reason, because the answer does not attempt to justify the cutting of the bank, or give an excuse for doing so, simply denies that the city cut the bank.”

The court proceeded to state, that, if the jury found that the city cut the bank, the city was bound to use ordinary care to preserve the property of others in releasing the waters; and, if it was possible by the use of ordinary care to have cut the bank at either of the other places, and thus to have saved the plaintiffs’ property, it was its duty to have done so. And, further, that if the jury should find that the bank was cut by the defendant’s agents “and by the authority of the city as I have heretofore defined it to you, then you must determine whether the bank if left' alone and not cut would have gone out, and if it had gone out, whether the result would have been the same.”

From a careful consideration of this record in connection with the general knowledge concerning this extraordinary flood we think that the jury were convinced that the flood itself was the sole cause of the injury complained of and that it could not have been prevented by the doing of any of the things suggested.

An apt illustration which has been suggested is that if a river levee had been maintained at the height of 10.feet, and the custodians of the levee had been warned that flood waters might require a levee 16 feet in height, and they neglected to so increase the height of the levee, and an unprecedented flood should ensue, during which it should appear that a levee 26 feet in height would not have held the flood waters, the parties responsible for the levee would not be liable for negligence in failing to maintain a 16-foot levee when a 26-foot levee would have been unavailing.

The answer in this case in effect tendered the clear issue that the damages to the plaintiffs’ property were caused solely by the “Act of God.” We think the finding of the jury amply justified by the record.

We have not been able to see that the supposed infirmities in the charge of the trial court, which have been pointed out by the learned court of appeals and by counsel, could have been prejudicial to the rights of the defendant in error, and the judgment of the court of appeals will be reversed and that of the common pleas will be affirmed.

Judgment reversed.

Newman, Jones, Matthias and Donahue, JJ., concur.


author: Jones, J.

text:
    Bulkley v. Greene.

      Judgments — Petition to vacate — Pleading and procedure — Section 11636, General Code — Trial by jury — Grounds to vacate — Section 11635, General Code — Counterclaim.

    1. When a petition to vacate a judgment is filed by a defendant, he
    must present therewith his defense to the action sought to be vacated. The grounds for vacation are heard and determined by the court upon the preponderance of the evidence, and if the defense is adjudged legally valid, and the grounds be sustained, the order of modification or vacation of the former judgment is held in abeyance until the final determination of the issues joined in the original action.
    2. If the court, under the provisions of Section 11636, General
    Code, decides the preliminary issue in favor of the defendant and sustains his ground for vacation, the issues of fact joined in the original action are triable to a jury, or to the court if not a jury issue or a jury be waived.
    8. A counterclaim cannot be made available under Section 11635, General Code, as a basis to vacate a judgment by confession. Such is not a defense to the action within the purview of that section.
    (No. 15579
    Decided April 2, 1918.)
    Error to the Court of Appeals of Franklin county.
    On April S, 1916, F. F. Greene obtained a judgment against Lorenzo H. Bulkley on the latter’s warrant of attorney, in the sum of $719. At the following term, May 23, 1916, Bulkley filed his petition in the common pleas court alleging the fact that judgment by confession had been taken against him, he not having been summoned or legally notified to appear at the time and place of taking such judgment. In his petition he sought a suspension and vacation of that judgment on the ground that the amount of the judgment “was more than was due the plaintiff.”
    In connection with his petition for vacation the plaintiff alleged that he had three valid defenses, which he presented:
    1. That the note was taken without consideration and was signed for Greene’s accommodation solely.
    2. That the judgment note was given to secure an installment of purchase money due April 1, 1916, for land sold to Bulkley by Greene, and that by the terms of a written contract between them Bulkley had the election either to pay the note, or not, as he chose, and to forfeit any payments made prior thereto.
    3. That in order to induce Bulkley to sign the judgment note and to pay previous installments for the price of the land purchased Greene had made false and fraudulent representations to the purchaser relative to the fertility and productiveness of a part of the land for grain-raising purposes, and that the purchaser was to obtain the property at a price which it cost the seller; that by reason of the representations on the part of Greene the plaintiff Builder was damaged in the sum of $1,000.
    Execution having issued on the cognovit judgment plaintiff asked m his petition that the judgment be vacated, and the sheriff restrained from levying execution on the property pending the determination of the defenses set forth. Issues were joined by the parties, not only on the ground set forth for vacation, but also on the defenses set forth in the petition for vacation. The trial court heard the case without the intervention of a jury, and found, as it appears from the journal entry, as follows:
    “This day this cause came on to be heard upon the petition of plaintiff, the answer of the defendant, the reply of the plaintiff thereto, the exhibits and the evidence, and being submitted to the court, and the court being fully advised in the premises do find on the issues joined in favor of the defendant. The court further find that plaintiff is not entitled to the relief sought in his petition, and the same is therefore denied and said petition dismissed,” etc.
    The court of appeals having affirmed the judgment of the trial court, error is now prosecuted to this court for reversal.

      Mr. Thomas M. Sherman and Mr. Herbert C. Sherman, for plaintiff in error.

      Mr. Barton Griffith, for defendant in error.
   Jones, J.

The judgment sought to be vacated was confessed by warrant of attorney, and the record discloses no complaint of irregularity in the taking of that judgment. After the term the judgment debtor availed himself of Section 11635 et seq., General Code, by filing his petition to vacate, alleging as his “ground to vacate” that the amount of the judgment “was more than was due the plaintiff.” At the same time he presented as valid defenses to the original action the three several defenses referred to. The method of procedure to be followed is not only defined by the code, but is clarified by the repeated decisions of this court. Lee v. Benedict, 82 Ohio St., 302.

Where a petition to vacate a judgment has been filed by a defendant to the action he must present therewith his defenses thereto. The power of the court extends to an adjudication of the validity of these defenses. If in law valid, should the grounds of vacation be sustained, the issues of fact presented by the defenses are triable to a jury, if a jury issue; or to the court, if triable to the court or a jury be waived. By the provisions of the code the grounds to vacate must be first tried and determined by the court. However, by express provisions of the code, and to preserve liens or securities, the order of modification or vacation of the former judgment is held in abeyance until after the issues joined and presented by the defenses have been finally determined. Section 11637, General Code, and Frazier v. Williams et al., 24 Ohio St., 625.

Plaintiff in error now insists that the issues involved in the defenses should have been tried to a jury. The journal entry discloses that the court found on all the issues joined in favor of the defendant Greene. At that stage of the case the issue involved in the vacation was that the confessed judgment was taken for an amount more than was due. Under Section 11636, General Code, this was triable to the court, which, under the provisions of that section, “must try and decide upon the grounds to vacate,” and determine that issue by the preponderance of the evidence. A jury is not demand-able for that purpose. The preliminary issue is triable to the court. It may occur that one of the defenses presented is of such a character that its adjudication may determine the ground for vacation of the cognovit judgment. A defense alleging partial or full payment of the note, or the taking of judgment for illegal interest, would necessarily involve the preliminary ground for its vacation, since such defense affects the amount due on the note. In such case, establishing the defense would of necessity also establish the ground for the vacation; or, if the second defense here offered were proven, the same result might obtain. The claim of the plaintiff in error in the instant case is that at the time júdgment was taken the defendant had a valid counterclaim, presented by his third defense; which would either reduce or satisfy the amount due on the note, and, since that was a jury issue, it was claimed that the court should have submitted this issue to a jury. But conceding that a counterclaim could have been presented to reduce the amount of the cognovit, the record discloses that the court heard that issue only in so far as it determined the amount due on the note, and found that issue, as well as the issues presented by the first and second defenses, in favor of the defendant Greene, which finding was sustained by the court of appeals. The judgment should, therefore, be affirmed in that aspect of the case.

However, after the testimony was heard, the trial court later definitely held that a counterclaim was not available as a defense to vacate a judgment by confession. In this the court was right.

The facts presented by the third defense constitute a counterclaim which the defendant in the former action could have reserved for an independent suit. Under the code of civil procedure governing the vacation of judgments, the defendant stands in no stronger position than if he had personally confessed judgment. A judgment upon warrant of attorney, when authorized and strictly pursued under Section 11597, General Code, is as potent in its operation as a judgment upon personal confession under the prior section. It could hardly be claimed that if the debtor had appeared personally and confessed judgment upon the note he could thereafter avail himself of a reserved counterclaim for the purpose of vacating that judgment. That is substantially what is proposed here; for the authorization of his attorney effectually entered his personal appearance in lieu of service. If this could be done it would follow as a corollary that a defendant could likewise avail himself of a set-off existing at the time of the confessed judgment, as a basis for its vacation. Whether the judgment has been entered on default or upon confession, it has been held that a counterclaim is not available as a defense to a defendant seeking its vacation. Boas v. Heffron, 40 Ill. App., 652; Wills v. Browning, 96 Ind., 149, and Cresswell v. White, 3 Ind. App., 306.

In the original action, the defendant under favor of Section 11314, General Code, could set forth his defense, counterclaim or set-off. But the favor of the vacation statute, Section 11635, General Code, is granted only to the defendant who has a defense to the action. The distinction is clear. A counterclaim is not a defense. It assumes the existence of the plaintiff's claim, and seeks relief by way of a cross-demand. Notwithstanding the confessed judgment, the judgment debtor retained the right to prosecute his counterclaim in a separate suit.

The judgments of the lower courts are affirmed.

Judgments affirmed.

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