author: Nichols, C. J. Jones, J.,

text:
    Clark et al. v. McFarland et al.

      Will contest — Scintilla rule applies, when — Motion to direct verdict.

    1. In proceedings in, contest of a last will and testament, a motion to direct a verdict in behalf of the proponents of the will, at the close of the evidence of the contestants, must he overruled by the court, if some evidence has been offered in support of the issues involved.
    2. The scintilla rule of evidence is to he applied in such proceedings, as in the ordinary jury trial of a civil action.
    (No. 15942
    Decided December 17, 1918.)
    Certified by the Court of Appeals of Union county.
    The facts are stated in the opinion.

      Messrs. Brucker & Henkel and Messrs. Robinson & Hoopes, for plaintiffs in error.

      Mr. Charles H. Adkins and Messrs. Cameron & Cameron, for defendants in error.
   Nichols, C. J.

Jurisdiction of the case at bails conferred on this court by certification thereof by the court of. appeals of Union county, as being-one in which the judgment is in conflict with the judgment pronounced by the court of appeals of Hamilton county in two cases.

The first of these cases is that of Gomien, Exrx., et al. v. Weidemer et al., 27 O. C. A., 177, and the second is Kammann et al. v. Kammann et al., 6 Ohio App., 455.

The question is: Has the trial court, in an action to contest a will, authority to direct a verdict of the jury sustaining the will on the ground that the evidence adduced by the contestants is insufficient to rebut the presumption of validity arising from proceedings in probate ? Or, stated otherwise, Does the scintilla rule of evidence obtain in proceedings to contest a will, as in civil actions generally ?

It is to be observed that while an action to contest a will is often spoken of as a special statutory proceeding, it is after all a civil action, expressly made so by Section 12079, General Code.

By the terms of Section 12082, a trial procedure for such action is provided, differing essentially from the ordinary. “An issue must be made up,” it is said, “either by pleadings or an order on the journal, whether or not the writing produced is the last will or codicil of the testator, which shall be tried by a jury.”

No judgment in such case can be entered either by default or consent of parties. The instrument can neither be sustained nor destroyed except through the verdict of the jury.

In the ordinary civil action parties may submit their contention, by consent, to the judge of the court, a jury being waived.

A jury cannot be waived in an action to contest a will.

It is to be presumed that the general assembly, in thus prescribing this different method for’ the trial of such actions, was moved by considerations of moment; and if the trial judge by directing a verdict in such a case can indirectly thwart the statute, some very conclusive reasons should be advanced in support of such procedure.

The reason assigned by the contestees in the case under consideration, justifying the directed verdict, is that in the trial not only had the contestants failed to show by the greater weight of the evidence that the testator was incompetent to make a will, but that the evidence adduced was not sufficient to overcome the prima facie case made by the order of probate.

The claim is made that under such state of facts the trial judge is not .bound to scan the record to discover if a scintilla of evidence was offered, but may in effect weigh the evidence, and by such process, if he find the presumption of validity still prevailing, may direct a verdict accordingly.

It is conceded in the case at bar that some evidence was offered by the contestants in support of the issue tendered in their petition. It consisted, in part, of the testimony of two physicians, testifying as experts, who, in answer to certain hypothetical questions, stated that the testator, at the time of the execution of the will, was not of sound mind..

Other witnesses were called by the contestants, and testimony was offered to the effect that the testator was quite feeble in body, advanced in years (about 83 years), suffering great bodily pain, collapsed almost immediately after signing the document, and died within five days of its execution, that opiates were administered to relieve pain, that the will was somewhat — indeed, quite — complicated. And it is further claimed that the will itself, being unfair to a portion of the next of kin, was some evidence of incompetency.

There are two Ohio cases on this subject that may be briefly reviewed with profit, Walker et al. v. Walker et al., 14 Ohio St., 157, and Wagner v. Zeigler, 44 Ohio St., 59.

In the first of these cases, the court holds, in the third proposition of the syllabus, that “In a proceeding under the statute to contest the validity of a will, it is error to render final judgment on demurrer to an answer. An issue must be made up, and tried by a jury, under proper instructions by the court.”

The court had held, in the first proposition of the syllabus, that the will in question was absolutely void in law and that the court of probate was without power or jurisdiction to admit it to probate.

This conclusion was reached after consideration of the facts set forth in the petition and answer, none of which were in dispute. Such was the binding force and effect of the statute of procedure established to govern the contest of wills, as it then appeared to the court, that the court was imperatively driven to the necessity of reversing and remanding the cause to the court of common pleas, with directions to submit the same to the jury under proper instructions.

It may be fairly said that this case would establish the doctrine that a will cannot be set aside through contest proceedings except and only by the verdict of a jury. Indeed, the principle of the case would seem to be that even if no evidence were offered by contestants after the proceedings in probate had been put in proof, still the trial judge could not direct a verdict, but must submit it under proper instructions.

In the second of these cases, the court established a more liberal doctrine, holding in the second proposition of the syllabus that “In the trial of a contest of a will, where the testimony introduced does not tend to prove the issue on the part of plaintiffs showing incapacity of the decedent to make a will at the time the will was made, it is not error for the court, at the conclusion of plaintiff’s testimony, to direct the jury to find a verdict sustaining the will."

This proposition, we think, is nothing more nor less than a restatement of the scintilla rule of evidence, in its application to the trial of an action to contest the validity of a will.

Judge Spear, in his opinion in this case, at page 67, says: “In other words the claim is, that whatever the state of the proof: — however completely the plaintiff fails to make the slightest prima facie case — yet the court must, perforce, send the .case to the jury, omitting the usual and ordinary instructions which, in other cases, under like circumstances, would be given.”

The position of counsel, as thus stated by Judge Spear, was much more extreme than that taken by Judge Brinkerhoff in the case of Walker v. Walker, supra, for the opinion of this learned judge was that whatever the state of the proof might be, and even if the contestant utterly failed to make the slightest prima facie case, the case must be submitted to a .jury; yet that it was the duty of the trial judge to accompany the submission with proper instructions as to the law of the case.

It is quite true that this court did not, in Wagner v. Zeigler, supra, adhere in all its strictness to the rule laid down by Judge Brinkerhoff.

What the court did in Wagner v. Zeigler was to hold that the trial judge might do in a will-contest case precisely what he could in the ordinary civil action.

It is perfectly clear that it was not intended by the court to hold that the prima facie validity which attaches to a will by reason of the proceedings in probate should have the effect of removing the will case from the class subject to the scintilla rule.

We thus find three possible rules of procedure:

1. The strict construction of the statute adopted by the court in Walker v. Walker, which denies authority to the trial judge to direct a verdict, no matter what may be the state of the proof.

2. The more liberal rule established in Wagner v. Zeigler, applying to will cases the scintilla rule of evidence.

3. The ultra liberal rule established in Gomien, Exrx., v. Weidemer et al. and Kammann v. Kammann, and by the common pleas court in the case under consideration.

We have determined to follow the second of these rules of procedure, and since it appears that some evidence, although slight, was offered by contestants, tending to prove the material facts necessary to be proven in such class of cases, the cause should for that reason have been submitted to the jury.

We are of opinion that the court of appeals of Union county was correct in holding that the trial court erred in thus directing a verdict.

We hold that the doctrine of the scintilla rule is just as much to be applied to actions in contest of will as to any other civil action.

We hold that, giving full effect to the prima facie case made in behalf of the will by the order of probate, still, if a scintilla of evidence be offered by the contestants, tending to oppose this prima facie case, and tending to prove the mental incapacity of the testator, the jury must, under proper instruction, determine by its verdict the issues thus made.

The judgment of the court of appeals is affirmed and the cause is remanded to the court of common pleas of Union county to proceed in accordance therewith.

Judgment affirmed, and cause remanded.

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

Jones, J.,

dissenting. In certifying this case it is very apparent that the court of appeals, as has this court, applied the scintilla rule that obtains in ordinary civil actions to a proceeding to contest a will under the statute. Exercising its constitutional authority, this case was certified here by the court of appeals of Union county because it was “in conflict with the decisions of other courts of appeals of the state of Ohio.” Among such conflicting decisions is the case of Gomien, Exrx., et al. v. Weidemer et al., decided by the court of appeals of the fourth appellate district, sitting in Hamilton county, and reported in 27 O. C. A., 177; also the case of Kammann et al. v. Kammann et al., decided by the court of appeals of the first appellate district and reported in 6 Ohio App., 455. It is now decided, by affirmance of the present case, that in a proceeding to contest a will under our statutes, if the plaintiff at the close of his case has offered a scintilla of evidence, the same rule utilized in other civil actions applies, and the issue must be submitted to the jury. I cannot concur in this view.

Section 12083, General Code, provides: “On the trial of such issue, the order of probate shall be prima facie evidence of the due attestation, execution, and validity of the will or codicil.”

This legislative rule of evidence was manifestly adopted for the purpose of requiring substantial proof to overthrow the purpose of the testator and set aside the judgment of a court of competent jurisdiction which had found in favor of the attestation, execution and validity of a will. Scintilla evidence is of lesser degree than prima facie evidence. The former is merely a “tendency to prove.” The latter is actual proof. If the scintilla offered by the plaintiff in the trial of his case is overwhelmed by the balance of his own evidence, it is apparent not only that the scintilla has been demolished but that the prima facie effect of the order of probate has been left intact.

The legal principle has been announced by this court, in a proceeding to contest a will, that when the contestant has rested his case the evidence adduced by him must outweigh both the evidence adduced adverse to him and the presumption of validity arising from the order of the probate court admitting the will to probate. Hall, etc., v. Hall, 78 Ohio St., 415.

The majority opinion holds that when the plaintiffs rested they had offered a scintilla of evidence in support of the issue, and that it was for the jury to determine its weight. With the concession that but a mere scintilla was offered, it became the duty of the court, as a matter of law, to decide that, under the statute named, a scintilla did not counterbalance the prima facie case made by the order of probate. It therefore became the legal duty of the court in that situation to direct a verdict for the defendants.

The question here presented involves the legal question and.not the weight of the evidence, for we are now assuming that plaintiffs have a scintilla only. Should the trial court determine that the scintilla was sufficient to overcome a prima facie case, the court would commit, a legal error. The principle is analogous to that applied in attempts to cancel or reform written instruments, which may be done only by clear and convincing proof. Surely a will executed by a testator, with the added force of an order of probate, under the section quoted, is subject to no less evidential protection than is an ordinary written instrument. Should it, therefore, appear that the trial court in a will-contest case submitted to the jury an issue “upon the supposition that it regarded the law as requiring nothing more” than a scintilla to warrant a finding to set aside the will, a reviewing court, on error, may reverse the judgment based on such finding. (Potter v. Potter, Exrx., 27 Ohio St., 84, and Ford v. Osborne, 45 Ohio St., 1.) These cases are authority for the legal principle that, though this court will not undertake to weigh the evidence, it will examine the record to determine, first, whether there is any evidence tending to support the issue, and, second, whether the rule of proof has been properly applied. “Where the affirmative of the issue in a civil action requires clear and convincing proof to sustain it, and it is claimed that the rule has been disregarded, this court may, where it is all set forth in the bill of exceptions, review the evidence for the purpose of determining if the rule has been disregarded.” Syllabus Ford v. Osborne, supra.


source: Caselaw Access Project

author: Jones, J.

license: Public Domain

text:
    The State, ex rel. The Village of Leipsic, v. Moenter, Auditor, et al.

      Taxation — Township road improvements< — Sections 6926 and 6928, General Code — Jurisdiction of budget commissioners — Limitation of levies — Section 5649-Sb, General Code — Taxes and assessments distinguished.

    1. The proportion of the cost and expenses levied upon the grand duplicate against the taxable property of a township, for the construction of road improvement, under . Sections ' 6926 and 6928, General Code, is a tax and not an assessment.
    2. Levies made for the payment of such improvements are within the control of the budget commissioners, and the same are subject to the fifteen-mill aggregate limitation provided for in Section 5649-5&, General Code.
    (No. 16134
    Decided December 17, 1918.)
    In Mandamus.
    The relator, invoking the original jurisdiction of this court, prays for a writ of mandamus commanding the auditor of Putnam county, Ohio, to place a sufficient levy on the tax duplicate of the village of Leipsic to provide the necessary funds for that village for the year 1918, and that he levy the sum asked for in his budget in excess of the 2.30 mills levied for stone road purposes hereinafter referred to.
    To this petition defendants enter a! general demurrer.
    From the conceded facts it appears that during the times beginning April, 1910, and ending April, 1915, the commissioners of Putnam county awarded contracts for the construction of ten separate roads in Van Burén township in that county. Van Burén township includes the village of Leipsic. Six of these roads were constructed under the then existing law known as the Garrett act, the other four were constructed during the years 1914 and 1915. In each case the county commissioners ordered two-thirds of the cost to be paid from the proceeds of levies upon the grand duplicate of the county against the taxable property of the township and one-third from assessments against the owners of the real estate within one mile of the improvement, and bonds were issued for various sums in anticipation of the collection of these assessments against the land-owners and the annual levies against the township. Various, amounts are now outstanding and unpaid for the construction of the several road improvements, including amounts due and payable in the year 1918.
    In the preparation of its budget for that year the village submitted its budget to the budget commission of Putnam county, asking for various amounts for the several funds of the village. The commission allowed said budget as submitted and transmitted it to the Tax Commission of Ohio for its approval. The state commission refused to approve said budget as submitted, and remanded the same to the budget commission of the county with instruction to reduce the rates in the village. The several sums asked for in the village budget for municipal purposes did not exceed the rate of 5 mills; the total of said budget for general purposes, for state, county, township, school district and village, did not exceed 10 mills; and the total levy for all purposes did not exceed 15 mills, excludiñg the smallpox epidemic levy of 1.10 mills for the village and the 2.30 mills levy for the special stone road improvement fund for the township. This latter item is the levy contained in the budget against the taxable property of the township and village, for the purpose of paying the bonds coming due in 1918, with the interest thereon. As submitted and approved by the county budget commission the total rate for all combined purposes aggregates 18.60 mills. While the item of 2.30 mills for stone road improvement was retained by the action of the state tax commission, it ordered the county budget commission to reduce certain levies for other funds of the village and village school district until the same, including also those of state, county, township and the stone road improvement levy, aggregated a total rate of only 16.40 mills for all purposes.

      Mr. A. A. Slaybaugh, for relator.

      Mr. Joseph McGhee, attorney general; Mr. William J. Ford, special counsel, and Mr. Harry S, Core, prosecuting attorney of Putnam county, for respondents..
   Jones, J.

The tax levies sought to be made were for the purpose of paying bonds for road improvements constructed under Section 6926 et seq. General Code. It is conceded that the total aggregate levies for all purposes, including the 2.30 mills for the special stone road improvement fund, amounted to the sum of 18.60 mills.

For the purpose of this case it is not necessary to decide whether these levies are subject to any other limitation than the 15-mill limitation of the Smith one per cent. law. Prior .to the enactment and amendment of recent tax laws, especially that one commonly known as the Smith one per cent, law, levies of this character were permitted to be made “in addition to all other levies authorized by law, notwithstanding any limitation upon the aggregate amount of such levies now [then] in force.” (94 Ohio Laws, 98-99, Sections 5 and 6). This provision of the law became Section 6945, General Code.

Undoubtedly the legislative policy with reference to road improvement, and the payment therefor by the issuance of bonds and the levy of taxes, assumed an important change in later efforts to provide limitation upon the amount of such levies. By its act of April 8, 1913 (103 O. L., 198), amending Section 6945, General Code, the legislature provided that such levies should “be in addition to all other levies authorized by law for township purposes, but subject to the maximum limitation upon the aggregate amount of all levies now in force” Section 6950 as amended by the same act provides that the levy for the payment of principal and interest of bonds issued for road improvement might be “in addition to any levy now authorised by law, but subject to the aggregate limitations provided by law ” In the year 1913 the same general assembly reenacted the road-law sections above referred to and also amended the Smith one per cent, law in important particulars, by providing explicitly that the combined maximum rate for all taxes in certain taxing districts, including taxes for sinking fund and interest purposes, should not exceed 15 mills. This law, enacted in 103 Ohio Laws, 57, now comprises Section 5649-5b, General Code, and is as follows:

“If a majority of the electors voting thereon at such election vote in favor thereof, it shall be lawful to levy taxes within such taxing district at a rate not to exceed such increased rate for and during the period provided for in such resolution, but in no case shall the combined maximum rate for all taxes levied in any year in any county, city, village, school district, or other taxing district, under the provisions of this and the two preceding sections and sections 5649-1, 5649-2 and 5649-3 of the General Code as herein enacted, exceed fifteen mills.”

Section 5649-1, referred to in the act, then provided that “In any taxing district the taxing authorities shall levy a tax sufficient for sinking fund and interest purposes.” The only amendment in the act (103 O. L., 57) that changes its former reading is the inclusion of Section 5649-1, and evinced the purpose of the legislature of providing that, while certain taxes for sinking fund and interest might be imposed under Section 5649-2 in addition to the taxes there provided for, the combined maximum rate for such purposes should not exceed the 15-mill aggregate.

•' Indisputably it is within the function of the legislative power of-the state to curb and control its local governmental agencies in the matter of taxation,

and it has been held that the foregoing provisions of the Smith law “limit the rate of taxes that can be levied in any taxing district for any and all purposes.” (Rabe v. Board of Education, 88 Ohio St., 403.) The provision of the section quoted is so plain and unambiguous that it is impossible to escape its effect. Since the passage of the legislation just referred to, still further evincing its purpose to circumscribe the power of taxation for sinking fund and interest purposes, the legislature amended Section 5649-1 (104 O. L., 12) by providing that “In any taxing district, the taxing authority shall, within the limitations now prescribed by law, levy a tax sufficient to provide for sinking fund and interest purposes for bonds issued,” etc.

Section 5649-2, General Code, in addition to the 10-mill exterior limitation there imposed, provides for certain levies additional for sinking fund and interest purposes, but this provision is of course* further limited by the express provision of Section 5649-5b, to the effect that the maximum rate for all combined purposes shall not exceed 15 mills.

Apparently conceding the legal phase of the question heretofore considered, counsel for the relator insists, however, that the 2.30 mills levied by the county commissioners is not a tax but an assessment, and that this road levy is especially exempted from the 15-mill limitation, under the provisions of Section 5649-3a, General Code.

Section 6928, General Code, provides that a portion of the cost and expense of the road improvement shall be paid out of the proceeds of levies upon the grand duplicate of the county against taxable property of the township, the balance of the cost and expense to be assessed upon and collected from the owners of the real estate, and from the real estate benefited by the improvement, in proportion to the benefit.

By the language of the statute it will be seen that the latter' is not only an assessment in expressed terms, but is so in fact, and based upon proportional benefits to the real estate, while the former, the levy upon the grand duplicate of the county upon the taxable property of the township, is made irrespective of whether benefit accrues or not, and is upon the entire property of the township, both real and personal. The distinction between the two is well stated in the first proposition of the syllabus in Lima v. Cemetery Association, 42 Ohio St., 128, which is as follows:

“In a general sense, a tax is an assessment, and an assessment is a tax; but there is a well-recognized distinction between them, an assessment being confined to local impositions upon property for the payment of the cost of public improvements in its immediate vicinity, and levied with reference to special benefits to the property assessed.”

It is further contended, however, that this levy for the stone road improvements is exclusive of limitations under the provisions of the latter portion of Section 5649-3a, General Code, which proAddes that the interior limitations there imposed shall be exclusive of “levies and assessments in Special districts created for road” improvements. It is sufficient to say that a township is a political subdivision and is not a special district within the meaning of that section. At the time of the enactment of this section there were code provisions relating to the creation of special road districts., such as the one-mile turnpike or the two-mile turnpike law, and it is very evident that the section can refer only to assessments in special districts which are excluded from the operation of the tax-limitation laws and from . control of the budget commissioners, and where the entire district in which the assessment is made receives some proportional benefit.

The demurrer to the petition is sustained and the writ denied.

Writ denied.

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


author: By the Court.

text:
    The Board of Commissioners of Licking County v. Bolin. The Board of Commissioners of Licking County v. Bolin.

      Roads — Petition for improvement, construed — Property abutting 011 improvement — Electric railway right of way and canal— Betzveen road and lands assessed — Liability of abutting owner.

    (Nos. 15961 and 15962
    Decided December 17, 1918.)
    Error to the Court of Appeals, of Licking county.

      Mr. Charles L. Flory,-prosecuting attorney, and Mr. Phil B. Smyt-he, for plaintiff in error.

      Messrs. Kibler & Kibler; Mr. Carl Norpell and Mr. A. A. Stasel, for defendants in error.
   By the Court.

We find that the petition for the improvement of the Newark and Zanesville road, extending eastwardly from the city of Newark to the east county line of Licking county, and passing through the incorporated village of Hanover, was in due form, and the proceedings were in all essential respects regular.

The words “by the way of Hanover” that appear in the petition may fairly be considered as a description of the route rather than as a requirement that the commissioners improve the road through the village of Hanover, as to which they were without authority.

The questions of consequence are, first, as to the assessments on real estate on the north side of said Newark and Zanesville road, and, second, as to the assessments upon the south side of said Newark and Zanesville road. Exemption is claimed for certain property on the north side of said road by reason of the fact that immediately abutting said road on the north, for a considerable distance, is a certain electric railway. The evidence, however, discloses that said railway has only a right of way, while the fee thereof is in Bolin.

We hold that as to such lands Bolin is an abutting owner within the contemplation of the statute and subject to the assessment heretofore found; and in so far the judgment of the court of appeals is reversed.

As to the lands upon the south side of said improved road, there is intervening between said Bolin lands and the improved roadway the Ohio canal, occupying a strip of land some fifty or sixty feet in width, paralleling the improved road.

It is urged that the canal lands as to use and occupation are substantially abandoned by the state of Ohio, and that said Bolin is using, occupying and tilling the same, to all intents and purposes, as if his own lands.

It is admitted, however, that the fee in .these lands is in the state; and whatever use may be. made of them by said Bolin is only by sufferance of the state, the latter having the right to retake full possession at any time and dispose of the same as it may see fit.

In this view of the case, the Bolin lands, so far as they are cut off from the highway by the Ohio canal, are not abutting lands within the contemplation of the statute, and as to this finding of the court of appeals the same is affirmed.

Judgment modified, and affirmed as modified.

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


author: Donahue, J.

text:
    Thornton v. Duffy et al.

      Workmen’s compensation — Power of legislature wider Section 35, Article II, Constitution, igia — Direct compensation and employers’ liability insurance — Section 1465-69 (107 O. L., 159) — Authority of industrial commission to change or modify former findings — Constitutional law.

    1. The enactment of the Workmen’s Compensation Law (103 O. L., 72-92), did not exhaust the authority conferred upon the general assembly of Ohio by Section 35 of Article II of the Constitution. On the contrary, it has the power to amend or repeal all or any portion thereof at any time it deems proper.
    2. Contracts of indemnity entered into between an employer of labor and an insurance company since the adoption of Section 35 of Article II of the Constitution are subject to the exercise by the general assembly of the power so conferred upon it to compel all employers of labor to contribute to the state insurance fund, or to impose further conditions or restrictions upon the privilege of electing to pay compensation direct.
    3. The act of March 20, 1917 (107 O. L„ 157, 159), amending Section 1465-69, General Code, is a valid and constitutional exercise of the authority conferred upon the general assembly of Ohio by Section 35 of Article II of the Constitution of Ohio, and applies to all employers of labor mentioned in Section 1465-60, General Code.
    (No. 15999
    Decided December 31, 1918.)
    Error to the Court of Appeals of Franklin county.
    The petition of Frank C. Thornton avers that he has in his employ more than forty workmen and operatives regularly employed in the same business in and about his manufacturing establishment under contracts of hire.
    That the defendants, Thomas J. Duffy and Herbert L. Eliot, are the duly appointed and qualified members of the industrial commission of Ohio; that there is a vacancy in the commission, and that the two persons named are the only members of the commission at the time of the filing of the petition.
    That in January, 1914, upon evidence duly submitted,-the industrial commission of Ohio made its finding of facts, certifying that plaintiff was of sufficient financial ability and credit to render certain payments in compensation to injured employes and dependents of killed employes, and the furnishing of medical, surgical, nursing and hospital attention, services and medicine and funeral expenses, equal to or greater than is provided in the act of the general assembly passed February 26, 1913.
    That thereupon he gave bond with security approved by the commission, and paid the amount required iñto the state insurance fund, to be credited to the surplus provided for in paragraph 2 of Section 1465-69 of the General Code of Ohio, and thereupon elected to pay individually such compensation and furnish such medical, surgical, nursing and hospital services and attention and funeral expenses directly to the injured and dependents of the killed employes of plaintiff, as provided in Section 1465-69, General Code, and has since that time continually abided by the rules of the industrial commission of Ohio, maintained the required bond, and paid the required amount at its maturity credited to such surplus.
    That since January, 1914, he has been and is now of sufficient financial ability and credit to render certain the payment of such compensation, and that the commission has not at any time changed, modified or revoked its. finding of fact, and the same is in full force and effect.
    That in January, 1914, he made and entered into a written contract with the Aetna Life Insurance Company of Hartford, Conn., wherein the said company agreed to pay to the injured employes of plaintiff such amounts for medical, nursing and hospital services and medicine and such compensation as were and should be provided by Section 1465-41a to Section 1465-106, General Code, and amendments thereof, to indemnify this plaintiff against liability for the payment of any of such amounts to injured employes or dependents of killed employes.
    That the plaintiff agreed to pay the Aetna Life Insurance Company an estimated premium computed at an agreed date upon the pay rolls of wages to be paid by plaintiff to his employes from April 29, 1914, to April 29, 1915, and a like amount annually thereafter until the contract of insurance should be canceled in accordance with the terms written therein.
    That by the terms of this contract either party thereto might cancel the same on and after thirty daysT written notice to the other party of its intention to do so, but that otherwise the contract of insurance should continue in force indefinitely.
    The petition also avers further facts in reference to additional premiums or rebates thereon, based upon the actual pay roll during the time the contract of insurance should be in force.
    It avers that on the 1st day of December, 1917, the defendants, Thomas J. Duffy and Herbert L. Eliot, then composing the industrial commission of Ohio, adopted a resolution reciting the act of the general assembly passed February 16, 1917, amending Section 1465-101, General Code, and the act of the general assembly passed March 20, 1917, among other things amending Section 1465-69, General Code, and the act of the general assembly of the state of Ohio passed March 21, 1917, amending Section 9607-2, paragraph 2, General Code, and declaring that no employers shall be permitted to pay or furnish directly to injured employes, or the dependents of killed employes, the compensation and benefits provided in Sections 1465-41 a to 1465-106, General Code, if such employers shall by contract or otherwise provide for the insurance of the payment by them of such compensation and benefits, or shall indemnify themselves against loss sustained by the direct payment thereof, and that all authorization on findings of fact theretofore issued by the commission authorizing and permitting such employers to pay or furnish such compensation and benefits direct shall be and stand revoked as of January 10, 1918, as to all employers receiving such authorization who on the date January 10, 1918, carry any such insurance.
    That the industrial commission threatened to and will, unless restrained by the order of this court, send such notices and revoke and hold for naught the findings of fact so made and certified to this plaintiff and upon which plaintiff made his election to pay and furnish such compensation direct.
    The petition further avers that the contract of plaintiff with the Aetna Life Insurance Company is a valid and subsisting contract; that plaintiff has the right to maintain the same until it shall be canceled, as provided by its terms; and that the revocation of the finding of facts so certified by the commission to plaintiff, and the refusal of the commission to make and certify to plaintiff its findings of fact, as provided in Section 1465-69, will cause plaintiff irreparable injury and damage, for which he has no adequate remedy at law.
    The petition further avers that there are more than six hundred and seventy-five employers of labor similarly situated, and many other employers who claim the right to make such contracts of indemnity; that it is impracticable to bring them all before the court, and that plaintiff sues for the benefit of all such employers.
    That the several acts mentioned in the resolution adopted by the industrial commission of Ohio on December 1, 1917, have no application to contracts of insurance or indemnity existing when these acts took effect, and were not intended, and do not authorize the commission to refuse, revoke or cancel the authorization of employers to pay direct the compensation and benefits provided by law for employes and their dependents, and that if said acts do apply to such contracts they are in contravention of Section 1, Article XIV, and Section 10, Article I, of the Constitution of the United States, and Section 28, Article II of the Constitution of Ohio.

      Plaintiff prays that the industrial commission of Ohio be perpetually enjoined from sending such notices, and from revoking, changing, or modifying such findings of fact made and certified by the commission to plaintiff, and from carrying out and perpetuating the resolution of December 1, 1917, and from revoking, changing or modifying its finding of fact for and on behalf of any employer who is of sufficient financial ability and credit to render certain the payment of compensation and the furnishing of services to employes and their dependents as provided in Section 1465-69, General Code, and who maintains the bond required by the commission and abides by its rulings and pays the. required amount into the surplus of the state insurance fund. Plaintiff prays for such other and further relief to which he may be entitled.
    The answer and cross-petition of The Cleveland Stamping & Tool Company avers similar facts, and prays for the same relief.
    To the petition of plaintiff and to the answer and cross-petition of The Cleveland Stamping & Tool Company the defendants filed general demurrers, which were sustained by the common pleas court. The cause was appealed to the court of appeals of Franklin county, Ohio, which court held that the plaintiff was entitled to a temporary restraining order enjoining the defendants as prayed for in his petition until the 29th day of April, 1918, and upon the facts stated in the petition not entitled to-a perpetual injunction, and sustained the demurrer to the answer and cross-petition of The Cleveland Stamping & Tool Company,

      This proceeding in error is. brought In this, court to reverse the judgment of the court of appeals.

      Mr. Judson Harmon and Messrs. Vorys, Safer, Seymour & Pease, for plaintiff in error.

      Mr. Joseph McGhee, attorney general; Mr. William J. Ford; Mr. Frank Davis, Jr.; Mr. Timothy S. Hogan and Mr. George B. Okey, for defendants in error.
   Donahue, J.

Section 35, Article II of the Constitution of Ohio, as adopted September 3, 1912, authorizes the general assembly of Ohio to pass laws establishing a state fund to be created by compulsory contribution thereto by employers, and administered by the state, for the purpose of providing compensation to workmen and their dependents, for death, injury, or occupational diseases occasioned in the course of such workmen’s employment.

In pursuance of this authority the general assembly enacted a Workmen’s Compensation Law (103 O. L., 72-92). Section 22 of this act (Section 1465-69, General Code) provided among other things that certain employers under certain conditions might elect to pay individually, or from a benefit fund, department or association, compensation to workmen and their dependents for death or injuries received in the course of employment.

Under the provisions of Section 35, Article II of the Constitution, the general assembly was not required to make any such exception in favor of any employer, but could have required every employer) mentioned in subdivision 2 of Section 13 of that act to pay into the state insurance fund the amount of premium determined and fixed by the state liability board of awards; and, if it could have done this, then undoubtedly it can at any time amend Section 22 of that act by striking out such exceptions in favor of employers of sufficient financial ability to render certain the payment of compensation to injured employes, dr to the dependents of killed employes, and the furnishing of medical, surgical, nursing and hospital attention and services, medicines and funeral expenses equal to or greater than provided in the original act.

It necessarily follows that if the general assembly has the power at any time to withdraw from these employers this privilege to elect to pay such compensation and furnish such services and attention and funeral expenses directly, it can from time to time impose such conditions as in its. judgment seem wise and necessary to safeguard the main purpose and intent, not only of the act itself, but of the constitutional provision under authority of which this law was passed.

It also follows that whoever seeks to avail himself of the benefits of this exception in his favor must comply with the conditions imposed. Verducci v. Casualty Company of America, 96 Ohio St., 260.

While the contract of insurance described in the petition does not provide for any definite term, nevertheless, at the time it was made, it must have been within the contemplation of the parties thereto that they could not by contract limit the power of the general assembly conferred upon it by Section 35, Article II of the Constitution, to withdraw this privilege or to limit it by other and further conditions that would render such contract of indemnity wholly useless to the employer.

The question is in every way analogous to the one arising in the case of Louisville & Nashville Rd. Co. v. Mottley, 219 U. S., 467, in which it was held by the supreme court of the United States that “The power of Congress to act in regard to matters delegated to it is not hampered by contracts made, in regard to such matters by individuals; but contracts of that nature are made subject to the possibility that even if valid when made Congress may by exercising its power render them invalid.” To the same effect is the decision of the supreme court of Vermont in the case of Fitzgerald & Co. v. Grand Trunk Rd. Co., 63 Vt., 169. See also Boyd v. Alabama, 94 U. S., 645; Beer Co. v. Massachusetts, 97 U. S., 25; Stone v. Mississippi, 101 U. S., 814; Butchers’ Union Co. v. Crescent City Co., 111 U. S., 746, and C., B. & Q. Rd. Co. v. Nebraska, 170 U. S., 58.

But the question in this case does not depend merely upon the general authority of the legislature to exercise police powers, but rather directly upon the constitutional grant of power and the further consideration that the privilege granted to certain employers by Section 22 of The Workmen’s Compensation Act, to pay compensation direct, is an exception to the general provisions of that act, in their favor,

There is therefore no reasonable hypothesis upon which to base the theory that a private contract, to continue for an indefinite number of years, could in any way prevent the legislature from withdrawing this privilege or adding other and further conditions.

There is, however, a further provision in Section 22 of the original act that seems to have been overlooked in the argument of this case. That provision (as amended, 107 O. L., 160) reads as follows.: “The industrial commission of Ohio may at any time change or modify its findings of fact herein provided for, if in its. judgment such action is necessary or desirable to secure or assure a strict compliance with all of the provisions of the law in reference to the payment of compensation and the furnishing of medical, nurse, and hospital services and medicines and funeral expenses to injured and the dependents of killed employes.”

The experience of four or more years under this Workmen’s Compensation Law may have demonstrated to the entire satisfaction of this commission that it is necessary or desirable to change or modify its former findings of fact in order to secure or assure a strict compliance with the law, where employers have elected to pay this compensation direct and have later entered into a contract with an indemnity company, by the terms of which, as averred in this petition, “The insurance company * * * agreed to pay to the injured employes of plaintiff such amounts for medical, nurse and hospital services and medicines, and such compensation as were and should be provided by said Act of the General Assembly comprised in Section 1465-41 a to Section 1465-106 General Code of Ohio and amendments thereof, and in the event of death of any of plaintiff’s employes, such amounts as were and should be provided in said Act and amendments thereof for funeral expenses and for compensation to the dependents or those partially dependent upon such employes.”

While Section 54 of the Workmen’s Compensation Law (Section 1465-101, General Code), as it read prior to the amendment of February 16, 1917, undoubtedly permitted the writing of such a contract, nevertheless that section must be construed in connection with Section 22 of the same act, which authorizes the industrial commission to change or modify its findings of fact provided for in that section, whenever in its judgment such action is necessary or desirable to secure or assure a strict compliance with all the provisions of that act.

It therefore follows that the industrial commission would have the power under this provision o£ Section 22 to change or modify its former findings of fact in reference to employers who had elected to pay individually from a benefit fund, department or association, such compensation direct, if it should find that such contracts furnish an opportunity for unfair or fraudulent settlement — and had resulted or might result not only in avoiding a strict compliance with the provisions of the act, but also in some instances defeat its intent and purpose, especially where the injured employe or the dependents of an employe killed in the cours.e of his employment are not fully advised of their rights under Section 27 of this act and Rule 18 adopted by the industrial commission under authority of the act creating that commission.

But the right of the industrial commission of Ohio to change or modify its former findings of fact does not now depend upon this construction of this paragraph of Section 22. The amendment of March 20, 1917, of Section 1465-69, General Code (107 O. L., 159), specifically limits the privilege of electing to pay compensation individually or from a benefit fund, department or association, to those employers “who do not desire to insure the payment thereof or indemnify themselves against loss sustained by the direct payment thereof,” and therefore it becomes the duty of the industrial commission to change or modify its former findings of fact in reference to such employers, and make the same conform to the provisions of the amended section.

This added condition precedent to the exemption of certain employers from the general provisions of the act is not only clearly within the power of the general assembly, but it is in furtherance of the purpose and intent of the constitution and the law, to create and maintain one insurance fund, to be administered by the state, out of which fund compensation shall be paid to workmen and their dependents for death, injuries, or occupational diseases occasioned in the course of employment.

If insurance is desired, the state will furnish it out of the fund created and maintained for that purpose; for it would not only be arbitrary, unfair, and without purpose, to permit some employers, of labor to enter into contracts of insurance with private companies and compel all other employers to contribute to the state insurance fund, but it would also hinder and perhaps utterly demoralize the method and defeat the object and purpose of the creation of such a fund.

This is an action to enjoin the industrial commission of Ohio from revoking, changing or modifying its findings of fact heretofore made by it in reference to the right of this plaintiff and the cross-petitioner to elect to pay compensation direct. Therefore, the question of the constitutionality of Section 1465-101, General Code, as amended February 16, 1917 (107 O. L., 6) or the constitutionality of paragraph 2 of Section 9607-2, General Code, as amended March 21, 1917 (107 O. L., 647), is in no wise important in the disposition of this case. If Section 1465-69, General Code, as amended March 20, 1917, is a valid and constitutional act of the general assembly of Ohio, and applies to all employers of labor mentioned in subdivision 2 of Section 13 of the Workmen’s Compensation Act, then the industrial commission not only has authority, but it becomes its duty to require all employers of labor to bring themselves within the terms and conditions before permitting them to exercise the privilege of election, regardless of the constitutionality of the acts above mentioned.

Judgment affirmed.

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


author: Johnson, J.

text:
    Zarbaugh, Treas., v. Ellinger.

      Partition fences — -Expense of erecting and maintaining — Sections 5908 and 5919, General Code, apply, when — Constitutional law — Inviolability of private property.

    1. Where the owner of a private right of way which passes through farm lands owned by others, uses it as a farm outlet to a public highway, he is required by the provisions, of Sections 5908 and 5919, General Code, to build and keep up one-half of the fence on each side of his private-right of way.
    2. The enforcement of that obligation in the manner provided by the statute is not a taking of the property of the owner of such private right of way, in violation of the constitution.
    (No. 15602
    Decided December 31, 1918.)
    Error to the Court of Appeals of Fairfield county.
    The facts are stated in the opinion.

      Mr. J. H. Fultz, prosecuting attorney, and Mr. M. A. Daugherty, for plaintiff in error.

      Mr. William Davidson and Messrs. Dowd, Cratvfis, Bradford & Dones, for defendant in error.
   Johnson, J.

The treasurer of Fairfield county brought suit against Ellinger to recover taxes charged against him on the tax duplicate, and prayed for the sale of a tract of land on which the taxes were claimed to be a lien. Ellinger is the owner of a private right of way leading from his premises to a public highway. The adjacent lands are farms, on which the owners conduct ordinary farming operations, and the private right of way passes through them. Ellinger uses his right of way for the usual purposes of a farm outlet to and from his lands. The trustees of the township, in which the lands are situated, proceeding under Section 5908, General Code, and sections following, ordered Ellinger to build one-half of the fence on each side of his right of way. This he refused to do. The trustees then caused the fence to be built pursuant to the statute, and the cost of it was certified to the county auditor. The cause was tried to a jury and a verdict rendered for the defendant. The judgment entered on this verdict was affirmed by the court of appeals, and error is prosecuted here.

It is conceded that the verdict of the jury necessarily followed the charge of the trial court, which entertained the view that the statutory provisions under which the assessment was made are unconstitutional.

Section 5908, General Code, provides that “The owners of adjoining lands shall build, keep up and maintain in good repair in equal shares all partition fences between them,” etc., and Section 5919 enacts, “In this chapter, the term ‘owner’ shall apply to the owner of such lands in fee simple, of estates for life or of rights of way while used by the owners thereof as outlets, but these proceedings shall not bind the owner unless notified as provided herein:”

It is conceded that there was no gate at the point where the right of way enters upon the public road, and it is contended that if Sections 5908 and 5919 are to be so construed as to permit the laying of the cost for half of the fence on either side of the right of way upon the “owner” thereof it would be a taking of his property in violation of the constitution.

The legislation in Ohio with reference to fencing lands has advanced from time to time in the light of experience and to meet what the general assembly regarded as the requirements of changing conditions.

In the early days farmers were permitted to allow their stock to run at large. A farmer was obliged to fence out live stock in order to protect his crops. The situation at that time is well set forth in Kerwhacker v. C., C. & C. R. R. Co., 3 Ohio St., 172, 182.

As the state developed and the quantity of cleared land increased, new conditions arose. It was found necessary to require farmers to fence in, instead of fencing out. But for many years before that, the legislature had made provisions for the payment of one-half the cost of partition or line fences by which adjoining farmers secured enclosures. In the early times there were fence viewers provided for by statute, and later these were abolished and jurisdiction of the subject was conferred on the township trustees.

But in order to impose the liability on a farmer to pay for one-half of the line fence under the law as it stood during that long period, it was necessary that his land should thereby be enclosed.

In Kingman v. Williams, 50 Ohio St., 722, it was held that one adjoining proprietor can compel another to contribute to the expense of building or maintaining a partition fence between their lands, only when th'e partition fence completes an enclosure which contains no other lands than those of the latter.

Section 4239, Revised Statutes of 1880, provided that the “owner * * * of land adjoining a fence * * * on the line of his land, who makes or causes to be made an inclosure adjoining such fence, so that such fence answers the purpose of inclosing his land, shall pay,” etc.

This continued to be the state of the law until April 18, 1904 (97 O. L., 138), when the general assembly amended Section 4239, Revised Statutes, so as to read: “That the owners of adjoining lands shall build, keep up and maintain in good repair all partition fences between them in equal shares, unless otherwise agreed,” etc.

This amendment was under examination in Alma Coal Co. v. Cozad, Treas., 79 Ohio St., 348. The allegations of the petition, which were admitted by demurrer, showed that the lands of the coal company were wild, uncultivated and unfenced, that the company had no intention to improve, fence or cultivate any portion of them, and that the fence could be of no value to it whatever. The court say, at page 355: “The powers of the imagination will be exhausted in vain to find a member of society who will be benefited by the imposition which is sought to be made upon plaintiff, except Allen, the adjoining proprietor.”

It was held in the syllabus:

“1. The provisions of the constitution forbid not only the taking of the private property of one, but as well the laying of an imposition upon it, for the sole benefit of another.

“2. The act of April 18, 1904 (97 O. L., 138), may not be so construed and administered as to charge an owner of lands which are, and are to remain, unenclosed, with any part of the expense of constructing and maintaining a line fence for the sole benefit of the adjoining proprietor

It will be observed that the court did not in that case hold the amended Section 4239, Revised Statutes, to be unconstitutional. But the right to invoke its application to a situation such as found in that case was denied. In the facts as they there existed there was no possible basis for the assessment on account of benefit, for there was none.

It is equally evident that there could be no compulsion under the police power to build the fence or contribute to the cost of it, because there was no such use of the coal company’s property as to indicate probable injury to its neighbors or to the community in the absence of a fence.

It must be noted that the whole s,cheme of legislation on the subject only applies to the rural districts. The urban districts are expressly excluded.

From the fact that for so long a time the statutes required an owner to contribute to the cost only where the “fence answered the purpose of enclosing his land,” it would seem to be apparent that at that time the general assembly felt that the only benefit conferred on a farmer’s land by a fence was by its making a complete enclosure. The amendment to the statute in 1904, now1 Section 5908 et seq., General Code, evidences a different view by the legislature and a determination to impose a larger duty, namely, the view that there are conditions and circumstances in which a partition fence is of advantage and value to a landowner, even when it does not make a complete enclosure. When such a situation is presented the enforcement of the requirements of the statute is not a violation of rights guaranteed by the constitution.

Manifestly entertaining the same view, and with the same purpose and intent, the legislature enacted the subsequent amendment (98 O. L., 149), now Section 5919, General Code, which includes the provision that the term “owners” shall apply to the owners of rights, of way while used by the owners thereof as farm outlets. It is easy to understand that the general assembly contemplated that the fencing of such a right of way would confer a benefit on the owner thereof, and be of assistance and convenience in driving stock in and out of his own farm, to and from the public road beyond. The annoyance and the inevitable trespassing on adjoining fields and crops which would result from the absence of a fence along a private road through cultivated lands on either side are apparent. But it was for the general assembly to deal with that matter; and when its action is founded in reason, and has a real relation to a subject properly within the scope of the legist lative power, its will must be judicially enforced.

Moreover, a statute prescribing the duty of adjoining owners to fence is in the nature of the exercise of the police power. The assessment differs from a special assessment to pay for a public improvement made by a governmental body. In the latter case the special assessment is made and sustained because the public improvement confers a special benefit on the property assessed, different from the general benefit conferred on the public; and the special assessment must be limited to the extent of the special benefit. But, in the case of the fence, there is no assessment in the sense just described. The owner is required by the statute to himself build his part of the fence. That is a duty that is imposed upon him, because of the situation and the use made of his property; and because of its relation to the property of his neighbors. If he does not perform it, the designated authorities proceed to build the fence and collect the cost thereof from him in the manner laid down in the statute.

The state is invested with the power in the presence of the necessities of economic conditions to prescribe such regulations with reference to persons and property as are reasonable and have a real relation to the subject. And if in the judgment of the legislature the natural result of the ordinary use by the owner of a private right of way, which is bounded upon either side by farming lands owned by others; would be to subject the crops and property of the latter to the risk of probable damage from the passage of stock and the encroachments of traffic, it may in the exercise of the police power, for the ulterior public advantage, require the owner of such right of way to join with his adjacent neighbors in building a fence on jheir respective lines.

The validity of such a requirement is to be determined wholly without reference to whether gates are fixed at the end of the right of way, making a complete enclosure. The making of the complete enclosure of the right of way is not the necessary thing. It is not the thing which gives the economic value to the fence, or makes the economic condition which justifies legislation passed to assist the orderly development of agriculture in the interest of the general welfare. It is upon these general grounds that legislation has proceeded which requires railroad companies to build fences along their rights of way through private lands, sufficient to turn stock; and to erect private crossings over railway tracks where the right of way separates a private owner’s land. Legislation of that character has uniformly been upheld.

In Noble State Bank v. Haskell, 219 U. S., 104, which involved the constitutionality of a law, passed in the exercise of the police power, to establish a deposit guaranty fund, objection was made that the tax was an appropriation of the private property of one bank to pay the debts of another, without due process of law. The court say, at page 110: “Nevertheless, notwithstanding the logical form of the objection, there are more powerful considerations on the other side. In the first place it is established by a series of cases that an ulterior public advantage may justify a comparatively insignificant taking of private property for what, in its immediate purpose, is a private use.”

We think there is not presented here a case in which the enforcement of the legislation under examination will be a violation of rights guaranteed by the Bill of Rights.

In this case the defendant set up another defense in which he contended that the right of way here involved was not private, but public.

In the view taken by the courts below this issue was not reached on the trial. Of course if the defendant does not own it, if it is not private but public, he could not be compelled to pay the tax. So that as to that issue the cause will be remanded for further proceedings according to law.

Judgment reversed.

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


text:
    The Western Ohio Ry. Co. et al. v. Fairburn, Admr.

      Supreme court — Questions considered — Weight or absence of evidence — Charge to jury — Considered as whole, when.

    (No. 15929
    Decided November 26, 1918.)
    Certified by the Court of Appeals of Allen county.

      Messrs. Wheeler & Bentley and Messrs. Goeke, Anderson & Boesel, for plaintiffs in error.

      Mr. Joel G. Hersh and Messrs. Leete & Light, for defendant in error.
   By the Court.

Where it is claimed on behalf of the plaintiff in error that there is no evidence in support of the judgment of the trial court, such claim presents a question of law that will be heard and determined by this court, but where there is some evidence sustaining the judgment, this court will not consider or determine the weight of the evidence.

In determining the question of error in the charge of the trial court to the jury, it is necessary to consider that part of the charge which is claimed to be erroneous, in connection with the entire charge, to determine if the charge as a whole is erroneous; or, if any part thereof is erroneous, whether the same is prejudicial.

In this cause the charge as a whole fairly states the law of this state relating to the facts in issue. The part of the charge complained of, if standing alone, might be misleading or confusing, but taken in connection with the entire charge it could “not possibly have been misunderstood by the jury or prejudicial to plaintiffs in error.

Judgment affirmed.

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


author: Nichols, C. J.

text:
    Lape v. Lape.

      Alimony — Award in installments — Future personal earnings or wages — Sections 11990 and H99Z> General Code.

    1. Where a decree for divorce is granted to a wife on account of the aggression of her husband, an allowance of alimony may be based on future personal earnings or wages of the husband. In such a case the court is not necessarily limited to a consideration of property in possession of the husband at time of. decree.
    2. Such decree for alimony may provide that it be made in weekly payments of specified sums.
    (No. 15971
    Decided December 31, 1918.)
    Error to the Court of Appeals of Hamilton county.
    Facts are stated in the opinion.

      Mr. Owen N. Kinney, for plaintiff in error.

      Messrs. Bolsinger, Kuhn & Bolsinger, for defendant in error.

      Mr. Alfred G. Allen; Messrs. Lorbach & Carver and Mr. David Davis, amici curiae.

   Nichols, C. J.

The court of appeals of Hamilton county held in the first proposition of the syllabus of the case at bar as follows: “An allowance of alimony to a wife cannot be based on future personal earnings or wages of the husband, and where the allowance is made in connection with a decree for divorce to the wife on account of the aggression of the husband, it must be based on property owned by him at the time the decree is granted.”

This conception of the law of alimony is somewhat startling\ — and if such construction of the alimony statute is the necessary one, it would follow that erroneous judgments to the number of tens of thousands have been rendered and enforced in this state.

Let us give a concrete illustration of the effect of this proposition of law — the divorced wife of a man of property is to be awarded support; but the divorced wife of a man without property in possession, but earning say one hundred dollars a week, is to go hence without relief..

It would follow that the fortunate wife so divorced (fortunate in a financial sense only) could fasten upon her former husband, if he had accumulated but a pittance of property, an obligation to support her during his lifetime, in the form of weekly payments in specified sums, unless changed circumstances of either of the parties might intervene, although the sum total of these payments might in the passing years exceed many times the whole- value of the husband’s estate at the time of the decree.

On the other hand, the doubly unfortunate wife of the husband in fault, without property at time of the decree, could not receive alimony either iii gross or in divisional payments, although the husband was capable of earning, and in fact receiving, a handsome salary or wages.

Thus this state of the law would operate to favor the derelict propertyless husband by making a virtue of his very shortcomings, perchance in respect to the very causes that gave ground for divorce; for all too frequently the fact that the party in fault is without property is clearly associated with conduct that directly led up to the necessity of separation.

The seriousness and obvious injustice of such a situation is at once apparent, especially when we contemplate the very great number of worthy women who would thereby be deprived of a remedy which the law supposedly holds out to them.

Permanent alimony, it is true, is purely a creature of statutory creation, but it has been defined as late as the eighty-third Ohio State Report, at page 101, in the case of Fickel et al. v. Granger, as being “an award by the court upon considerations of equity and public policy and * * * founded upon the obligation, which grows out of the marriage relation, that the husband must support his wife, which obligation continues after legal separation without her fault.”

It is a known fact that the divorce courts, while all too frequently resorted to by folks of property, are mostly occupied in solving the domestic difficulties of those not blessed with the possession of this world’s goods, and it certainly is to be granted that a good woman, who has faithfully kept the marriage vows, but who has been denied the support of her husband, should in a sense be the ward of the court.

It would be difficult, it seems to us, to defend the equity of the situation or to commend as really enlightened a public policy which would decree that the erring husband with property should be made to fulfill this obligation, at once moral as well as legal, while another, .just as much sinning against the law of both God and man, who made good wages or salary, as the case might be, but who squandered instead of saved, should be released.

There is no question of the effect of the decision of the court of appeals. It holds squarely that the court is absolutely without power to render any judgment for alimony whatever, unless the aggrieved wife can show that her husband is the owner of property.

Reasonable men must agree that such a distinction is manifestly opposed to a public policy of enlightenment and' does violence to every principle of equity and fairness.

The question remains: Is such an unfortunate construction of the statute imperative ? It must be granted that if any other construction of the alimony statute is possible, it should be adopted.

So much of Section 11990, General Code, as is to be construed is: “The court shall * * * allow such alimony out of her husband’s property as it deems reasonable, having due regard to property which came to him by marriage and the value of his real and personal estate at the time of divorce.”

The contention of those who hold that no alimony can be allowed unless there is property in possession is that paramount importance should be given to the phrase “out of her husband’s property,1” going so far as to hold that this is the exclusive source from which alimony can be awarded.

A second contention, very likely correct, is that future earnings, such as salary and wages, are not property within the strict, technical, legal definition of the term.

We are not of the opinion that the phrase “out of her husband’s property” is entitled to receive such controlling force. Were it entirely withdrawn from the statute, it would in no wise limit or weaken the force of the law or power of the court. It was of far greater importance to provide that alimony should be allowed than to provide the method, manner or source of payment. It is essentially directory in its nature, and its inclusion in the section is to be explained more especially by that which follows, where the expression “having due regard” is employed.

“Having due regard” is clearly a directory clause and not of mandatory or all-controlling influence. “Having due regard” does not mean that other facts, circumstances or conditions can not be entertained. Quite the contrary. It is a direction simply to the effect that the court in fixing the alimony must not overlook or fail to take into account the property which the wife may have brought into the common fund, nor must the court fail to consider the value of the real and personal estate of the husband at the time of the decree. Manifestly these are proper considerations and should have “due weight,” but certainly it is not to be held that exclusive consideration should be given to them.

For instance, a man with five thousand dollars in property, with an earning capacity of twenty dollars a week, would on the face of things be much less able to pay substantial weekly installments of alimony than one of no property, but who at the time of the decree is making one hundred dollars a week.

Kent, in volume one of his Commentaries on American Law (13 ed.), page *461, says: “In the exposition of statutes, * * * the intention of the lawgiver * * * will always prevail over the literal sense of terms * * * and the reason and intention of the lawgiver will control the strict letter of the law. * * * The intention is to be taken or presumed, according to what is consonant to reason and good discretion.”

This rule of construction would certainly commend itself as a model of good sense and inherent justice, and guided by such rule we are quite unwilling to impute to the general assembly an intention, in cases where parties are in equal fault, to hold the one to the sacred obligation of the law and permit the other to escape; for the illogical reason that the one has some property and the other none, although having something of far greater value, the ability to earn a good salary or wages.

Measuring the statute under consideration by the yardstick of what is “consonant to reason and good discretion,” we are of the opinion that it was the intention of the general assembly, when it granted to the courts the power to “allow such alimony,” not necessarily to preclude the court from giving consideration to the ability of the husband to earn money.

Judge Thurman, in the case of Admx. of Tracy v. Admr. of Card, 2 Ohio St., 431, says at page 441: “On the one hand, the judiciary should be careful not to make its office of expounding statutes a cloak for the exercise of legislative power, on the other hand it is equally bound not to stick in the mere letter of the law, but rather to seek for its reason and spirit in the mischief that required a remedy, and the general scope of the legislation designed to effect it.” Judge Thurman, in the same case, quotes Lord Coke, as follows: “The equity of a statute is a construction made by the judges, that cases out of the letter of a statute, yet being within the same mischief, or cause of the making of the same, shall be within the same remedy that the statute provideth.”

It is also said in the Tracy case that “The words of a remedial statute are to be construed largely and beneficially, so as to suppress the mischief and advance the remedy. It is by no means unusual, in construing remedial statutes, to extend the enacting words beyond their natural import and effect, in order to include cases within the same mischiefs.” (Quoting Dwarr. on Stats., 734, 735.)

When the statute providing for the award of alimony was enacted, the mischief that required a remedy was the want of a law compelling a husband from whom a wife was divorced to provide permanent support. The mischief in the case of a wife of a husband without property in possession was just as manifest as in the case of the husband with property, and we cannot lead ourselves to believe that it was the intention of the general assembly to classify women so as to make certain a remedy in one aspect of the case and deny it in the other.

«The award of the alimony is one thing, its recovery on execution by the wife is another, and must be left to take care of itself, with such assistance as the law of execution provides.

We are altogether in agreement with the court of appeals in its holding to be found in the third proposition of the syllabus of the case at bar, that Section 11991, General Code, authorizes a decree of alimony in weekly payments of specified sums.

The, language of this section, that the alimony as allowed may be made “payable either in gross or installments, as the court deems equitable,” clearly. grants the power of providing weekly or monthly payments of specified sums.

The fact that this section, which at the time of the passage of the alimony act was a part of old Section 5699, Revised Statutes of Ohio, and separated from it by the codifying commission, provides for the payment of alimony in installments, furnishes an added reason for the holding we have made, that the ability to earn wages or salary, generally payable in .installments, is an element property to be considered by the court in fixing alimony.

The court of appeals reversed the judgment of the court of insolvency, notwithstanding its view of the law of the case, for. the reason that the record of the case did not affirmatively show that the husband at the time of the original decree was without property.

Our judgment, therefore, while founded on an entirely different conception of the law, will be one of affirmance of the court of appeals, and the case will be remanded to the court of insolvency of Hamilton county with directions to proceed in accordance with this finding.

Judgment affirmed and cause remanded.

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


text:
    The Cyclone Drill Co. v. Zeigler, Admx., et al.

      Corporations — SaleI of entire property — Section 8710 et seq., General Code — Notice to stockholders mandatory — Rights of objecting stockholders — Duty of purchaser before buying property.

    (No. 15946
    Decided November 26, 1918.)
    Error to the Court of Appeals of Wayne county.

      Messrs. Hidy & Sanderson and Mr. John Logan, for plaintiff in error.

      Messrs. Weygandt & Ross, for defendants in error.
   By the Court.

A corporation organized under the laws of this state has no authority to sell its entire property or assets, except as provided by Section 8710 et seq., General Code.

The provision of Section 8711, General Code, requiring notice to stockholders, is mandatory. It is the right of each stockholder objecting to the sale, that every other stockholder should be notified of the meeting called to ratify the agreement of sale made between the directors of the corporation and the purchaser, and that each stockholder be given an opportunity to express his dissent or approval thereof.

It is the duty of a purchaser of the entire property and assets of a corporation to ascertain, before making such purchase, whether the corporation has fully complied with the statutes authorizing it to make such sale, otherwise the purchaser takes the corporate property subject to the rights of the stockholders not consenting thereto.

Judgment affirmed.

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

Wanamaker, J., not participating.


author: Robinson, J.

text:
    The Village of Port Clinton et al. v. Fall.

      Appropriation of property — Elimination of railroad grade crossing — Compensation to landowner• — ’Light, air and unobstructed view — Incorporeal hereditaments are “property," when — Section 8888, General Code — Abutting lands defined — -Vacation of street and appropriation of land and vacated street.

    1. The right to the circulation of air, the passage of light, and an unobstructed view over a street, together with the relative harmony of said street with the abutting lots, is an incorporeal hereditament attaching to such abutting lots, and is property within the meaning of Section 8888, General Code.
    2. Where the vacation of a street, the appropriation of land for a street adjacent thereto (and between the theretofore abutting lands and the vacated street) and the appropriation of such vacated street for the construction of a railroad elevated above the grade of the-street, are contemporaneous and simultaneous transactions, said lands abut upon the vacated street for the purpose of fixing compensation and damages for the appropriation of the incorporeal hereditament of the abutting landholder therein.
    (No. 15998
    Decided February 11, 1919.)
    Error to the Court of Appeals of Ottawa -county.
    The defendant in error, Josie Fall, at the time of the institution of this action in the probate court of Ottawa county, Ohio, was the owner of the east half of lots Nos. 13, 14, 15 and 16, of Block No. 7, in the village of Port Clinton in said county, together with a certain dwelling house and other buildings located thereon — the lots being adjacent to each other and said lot 16 abutting upon Second street, a 60-foot public street of said village; and the plaintiff in error The New York Central Railroad Company was the owner and the operator of a railroad, operated under the name of The Lake Shore & Michigan Southern Railway Company, through said village, at a point some distance from said lots and said Second street.
    For reasons satisfactory to the railroad company and to the village of Port Clinton, said railroad company had theretofore decided to relocate said railroad over that portion of Second street upon which said lot No. 16 abutted, and to eliminate the grade crossing. An ordinance was duly passed to accomplish that purpose and also to vacate said portion of Second street, the ordinance providing for the location of a new 50-foot street adjacent to Second street, across the property of the defendant in error, the vacation, however, not to take effect until the location of the new 50-foot street was accomplished; the ordinance further providing the railway company should bear the entire expense of the changes and improvements re-required to be made, “including changes of streets and the grade thereof, the acquisition of property for new streets and parts thereof, the damages to abutting or other property on account of such changes or of changes in the location or grade of its said railroad,” and also granting a franchise to the railroad company to construct and to operate a four-track railroad, with necessary side tracks, through said village, over a line including that portion of Second street hereinbefore referred to, said track to be constructed at an elevation of some 13 feet above the grade of Second street.
    The terms of this ordinance were duly accepted by the railroad company.
    This action, pursuant to said ordinance, was brought by the railroad company, in the name, however, of the village of Port Clinton, for the purpose of assessing and having determined the amount of compensation due the defendant in error for and on account of land taken for the new street.
    Thereupon, and before a trial of the cause, a contract was entered into between the defendant in error and the plaintiffs in error herein, whereby it was agreed by and between the parties that the probate court might hear and determine in said appropriation case or cases the following questions and matters:
    “1. Compensation and damages due to the Land Owners arising out of said appropriation by said Village.

      “2. Damages that could properly be awarded said Land Owners in a proceeding under Section 8885 of the General Code; and it shall be deemed that such a proceeding has been commenced with proper pleadings, and has been consolidated with said proceeding to assess compensation and damages.

      “3. The right of said Land Owners to recover from said Railroad compensation for property or property rights necessary to be acquired by it to make said improvement, it being understood that the Railroad Company does not admit but denies the existence of such right in said Land Owners; and if it be determined that such rights do exist, then it shall be deemed that the Railroad Company has begun a proceeding to appropriate the same as provided in Section 8888 of the General Code and that the same has been consolidated with said proceeding to assess compensation and damages, and all questions of compensation or damages arising in a proceeding under Section 8888 of the General Code will then be presented and determined in such proceeding to assess compensation and damages.

      “4. Any of said parties shall have the right to submit to the jury, interrogatories requiring the jury specifically to find particular questions of fact to be stated in writing and said jury shall return a written finding thereof. Said interrogatories shall be pertinent to the issues.
    “This agreement shall not be construed as a waiver of the right of said parties to contest the validity of said appropriation proceedings or of any of the said claims for damages, nor shall it affect the right of either party hereto, to object to evidence deemed incompetent, nor shall it affect the right to prosecute or require the prosecution of error as in other cases.
    “Said jury shall be impaneled in the usual manner in appropriation proceedings.

      “All preliminary questions arising through the passage of the resolutions, service of notice and passage of ordinances for the appropriation aforesaid, are, by each and all of the Land Owners, hereby waived upon the filing of this agreement. The court may enter a proper order finding therefor, and that notice has been properly served upon all the parties herein, and setting a time for the assessment of the compensation and damages aforesaid by a jury and ordering said jury to be drawn as provided by law.”
    A jury was impaneled, evidence adduced upon the three propositions contemplated in paragraphs 1, 2 and 3 of the contract,’and the following verdict was returned:
    “We, the jury empaneled and sworn in this proceeding, do find and assess compensation and damages to be paid by the Village of Port Clinton, Ohio, or the New York Central Railroad Company, or both, by reason of the appropriation of said property to the use of said village or said railroad company, or both, in the several cases submitted to us as follows:
    “1. To Josie Fall, the owner of the property described in the petition as her property, we assess as compensation for the land taken — One Thous- and Dollars ($1000.00) Dollars.
    “2. As damages to the residue of property by reason of land taken for street purposes — One Thousand Dollars ($1000.00) Dollars.
    . “3. As damages to the residue of property by reason of railroad improvement in Second Street — Two Thousand Dollars ($2000.00) Dollars.”.

      Messrs. Graves, Stahl & Duff and Mr. C. L. , Handy, for plaintiffs in error.

      Messrs. True & Crawford, for defendant in error.
   Robinson, J.

No complaint is made here as to items 1 and 2 of the verdict and it is conceded that if the defendant in error is entitled to recover anything under item 3 the amount fixed by the jury is not so grossly excessive as to require reversal upon that ground; but it is claimed by the plaintiffs in error that by reason of the appropriation of the 50-foot strip of land off of the land of the defendant in error, adjacent to Second street, her land thereby ceased to abut upon said Second street, and that therefore she is not entitled to compensation under Section 8888, General Code; and that if she is entitled to any additional compensation it is under the “near to” provision of Section 8765, General Code, which right to compensation, if any, has not yet accrued, said railroad being not yet in operation.

Section 8888, General Code, reads as follows:

“Sec. 8888. The land or property required to make alterations in the street, road, alley or other way or any right, title or interest in a public street, alley or other way, required for the erection of piers or supports in any municipality, necessitated by the proposed improvement, shall be purchased or appropriated by the municipality or company after the manner provided by law for the appropriation of private property for public use. The land or property required to make any alteration in a railroad or railroads or any right, title or interest in a public street, road, alley or way required to permit the erection of piers or supports in any municipality, and structure necessitated by the proposed improvements, shall be purchased or appropriated by the railroad company or companies after the manner provided for the appropriation of private property by such corporation. But the municipality shall not appropriate land held or owned by a railroad company and necessary for the use of the company in maintaining and operating its road.”

The confusion as to the respective rights of the parties hereto grows out of the provision for the vacation of said Second street and the provision for the opening of the new 50-foot street adjacent thereto in the same ordinance, and from the provision that said vacation shall not take effect until the opening of the new street is accomplished, and by the combination of the appropriation proceedings of the village of Port Clinton against Josie Fall and the appropriation proceedings of The New York Central Railroad Company against Josie Fall into one and the same action, thereby making' the vacation of Second street, the establishment of the new 50-foot street, and the appropriation of Second street, contemporaneous, it being apparent that had the vacation of Second street, the appropriation of Second street by the railroad company for railroad purposes and the appropriation of the land of Josie Fall for the purpose of the new 50-foot street followed each other in that sequence, Josie Fall would have been entitled to compensation from the railroad company for land appropriated; for clearly a portion of said street, upon its vacation, would have passed to her as the abutting lot owner. And, again, had the appropriation of Second street by said company for the purpose of constructing a railroad thereon above the grade of said street antedated the appropriation by the village of Port Clinton of the land of the defendant in error for street purposes, defendant in error would have been entitled to recover under Section 8888, General Code, for her property rights in said street other than land. Quinby v. City of Cleveland, 16 O. F. D., 583, 9 O. L. R., 313; Scioto Valley Ry. Co. v. Lawrence, 38 Ohio St., 41; Street Railway Co. v. Village of Cumminsville et al., 14 Ohio St., 523; Crawford v. The Village of Delaware, 7 Ohio St., 460, and Field et al. v. Barling et al., 149 Ill., 556.

But since by the terms of the ordinance the vacation of Second street was not to take effect until the appropriation of the 50-foot new street, and by the terms of the agreement the two appropriation' proceedings were tried in the same cause at one and the same time, to one and the same jury, and the awards made in one and the same verdict, the three transactions became contemporaneous.

It is urged, in effect, that, since the three events can be arranged in a sequence that would defeat the right of the defendant in error to recover, and that, since her lands no longer abut upon original Second street, she ought not to recover; for, had the new 50-foot street been established first, Second street vacated next, and the vacated Second street appropriatd for railroad purposes last, the result would have been, since the 50-foot street is adjacent to Second street, that the lands of the defendant in error would no longer abut upon the vacated street appropriated by the railroad company, and the only recourse of the defendant in error would be under Section 8765, General Code, in an action for damages, which right of action had not yet accrued and was not within the jurisdiction of the probate court.

But what right has a court to arrange in sequence events that are contemporaneous, and therefore have no sequence ? The plaintiffs in error initiated these proceedings, and by agreement and ordinance provided for the simultaneous' operation of the three events, and, up to the moment of the acceptance by the plaintiffs in error of the assessment of compensation and damages by the jury, Second street was not vacated, the new 50-foot street was not established, and the property rights of the defendant in error in Second street were not appropriated, and the lands of the defendant in error up to the moment of said acceptance therefore did abut upon Second street and she therefore did have property rights therein other than the land; such as the right to the free circulation of air, the undiminished radiation of light, an unobstructed view, and a surrounding relatively harmonious.

The appropriation by said railroad company of Second street for the purpose” of building thereon an embankment many feet high did interfere with the property rights of the defendant in error in said street, in the interference with the circulation of air, in the partial exclusion of light, the obstruction of her view, and in rendering said street, by reason of its elevation, relatively out of harmony with her lands adjacent thereto. And since her damage in that respect is in no way diminished by the appropriation of the 50-foot new street off of the premises, and since the legislature in recognition of the common law had given her, so long as she was an abutting property owner, the right under Section 8888, General Code, to recover therefor, and since that right up to the time of the acceptance of said award had not been extinguished by the location of the new 50-foot street, causing her lands to no longer abut upon original Second street, we see no reason why a court should step in and -take from her that which by statute and by the common law was hers, simply because she might have been deprived of her rights therein without compensation, by an arranged sequence of events.

The judgment of the court of appeals is therefore affirmed.

Judgment affirmed.

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