author: Crew, J.

text:
    Aungst v. Creque.

      Promissory note — Signed ~by company name — And names of secretary and treasurer and president — Is note of company and not officers signing.

    A promissory note which reads: “Thirty days after date we promise to pay,” etc., and signed, “The Akron White Sand & Stone Co., L. K. Mihills, Secy. & Treas., D. B. Aungst, Pres.,” is, on its face, the note of the company alone, and is not the noté of L. K.. Mihills and D. B. Aungst, and the latter are not personally hound thereon.
    (No. 9141
    Decided June 27, 1905.)
    Error to the Circuit court of Summit county.
    The defendant in error, Ferdinand J. Creque, brought an action before a justice of the peace against The Akron White Sand and Stone Company, L. H. Mihills and D. B. Aungst, upon a certain promissory note of which the following is a copy: “$300.00. Akron, Ohio, August 1, 1894.

      ‘ ‘ Thirty days after date we promise to pay to the order of J. H. Sample, Three-Hundred, and no one-hundredths dollars, at the Akron Savings Bank, value received. . ,
    “The Akron White Sand & Stone Co.
    “L. K. Mihills, Secy. & Treas.

    “D. B. Aungst, Pres.”

    Service of summons was had only upon D. B. Aungst. Neither of the other defendants named was served with process, nor did either enter an appearance in said suit.
    In said action a personal judgment was rendered by the justice against the defendant, D. B. Aungst, as a maker of said note. This judgment was, upon proceedings in error, affirmed by both the common pleas and circuit courts. To obtain a reversal of these several judgments D. B. Aungst prosecutes this proceeding in error.

      Messrs. Tibbals & Frank, attorneys for plaintiff in error,
    cited and commented upon the following authorities:

      Robinson v. Bank, 44 Ohio St., 441; Collins v. Insurance Co., 17 Ohio St., 215; Draper v. Heating Co., 5 All., 338; Reeve v. Bank, 16 L. R. A., 143; Latham v. Houston Mills Co., 3 S. W. Rep., 462; Atkins v. Brown, 59 Me., 90; Castle v. Belfast Foundry Co., 72 Me., 167; Miller v. Roach, 6 L. R. A., 71; Guthrie v. Imbrie, 53 Am. Rep., 331; Liebscher v. Kraus, 43 N. W. Rep., 166; Gleason v. Milk Co., 45 Atl. Rep., 825.

      Messrs. Wilcox, Parsons & Burch, attorneys for defendant in error,
    cited and commented upon the following authorities:

      Robinson v. Bank, 44 Ohio St., 441; Titus v. Kyle, 10 Ohio St., 444; Collins v. Insurance Co., 17 Ohio St., 215; Bank v. Cook, 38 Ohio St., 442; Nash v. Towne, 72 U. S., 689; Eells v. Shea, 20 C. C. R., 527; 11 C. D., 304; Am. & Eng. Ency. Law (new ed.), 1042; Heffner v. Brownell, 70 Ia., 591; 31 N. W. Rep., 947; Wing v. Glick, 56 Ia., 473; 9 N. W. Rep., 384; Chase v. Pattberg, 12 Daly, 171; Lumley v. Glass Co., 85 Ill. App., 412; Bank v. Wilcox, 1 Circ. Dec., 511; 2 C. C. R., 325.
   Crew, J.

The only question argued by counsel, or presented by the record in this case, is: Did the plaintiff in error, D. B. Aungst, by executing the note set out in the foregoing statement of facts, in manner and form as the same was executed by him, thereby make himself personally liable thereon as a maker of said note? On the trial of this cause before the justice the note itself was introduced in evidence, and testimony was offered, and received without objection, from which it fairly appears that at the time of the execution and delivery of said note, The Akron White Sand & Stone Company was a corporate company, that D. B. Aungst was at that time president of said company, and L. K. Mihills was its secretary and treasurer. The above was the only evidence in the case bearing upon the question here involved, and from the facts thus shown the liability, or non-liability, of D. B. Aungst upon the instrument in suit, must be determined. It is undoubtedly, an accepted principle of commercial law, and a general rule of the law of contracts, that where an agent signs a negotiable instrument by affixing thereto his own signature without adding the name of the principal for whom he acts, the agent so signing is himself personally bound on such instrument, although he affixes to his signature the word “agent.” Such suffix, under such circumstances, being generally considered and held to be mere descriptio personae. And the rule is the same where an officer of a corporation without signing the corporate name of the company for whom he acts, subscribes a promissory note in his own name affixing to his signature his official title or designation, such as president, secretary, or treasurer. This rule of interpretation is, in a sense, one of necessity, and rests on the presumption that the party thus signing a negotiable instrument intends, by the execution of such instrument, to bind somebody thereon as promisor or principal, and no promisor appearing thereon except the agent or person so signing, the law, in order that the instrument may have effect, construes it to be the note or obligation of the person subscribing it, for otherwise, nothing appearing in the body of the note to indicate the maker, the instrument would be a mere nullity. But where a promissory note is signed by the proper officer of a corporation in the corporate name, and underneath the corporate name he signs his own name, affixing thereto his appropriate official title as an officer of said corporation, in the absence of anything in the body of the instrument requiring a different construction, such note will be construed and held to be the note of the corporation only, and not the note of the officer so signing, or the joint note of such officer and the corporation. This rule of interpretation rests, we think, upon sound reason, and is abundantly supported by the weight of authorities. The corporate act of signing a promissory note, necessarily requires the hand of an agent, — it must be done by a natural person, — and where the proper officer of a corporation, acting as its agent, executes a promissory note by signing the name of the corporation, and underneath that his own name, to which he appends his official title, the instrument thus executed, on its face, raises the implication of corporate liability, and sufficiently shows the relation of the parties whose signatures appeár thereto, to be that of principal and agent. In other words, such instrument so executed, “wears no mask, but reveals its character upon its face.” While perhaps the best and most accurate mode for an agent to adopt in signing a bill or note for his principal, where he means to make the latter, and not himself, personally responsible thereon, is to sign the same A. B., by his agent, C. D., or A. B. by C. D. However it is not absolutely essential to the validity of the instrument as the obligation of the principal, nor indispensably necessary to the agent’s exemption from personal liability, that the signature should assume this exact form. Whether or not a bill or note has been executed by a party in his individual or representative capacity, is in each particular case, a question to be determined from a consideration of the whole instrument. And if, giving full effect to all the terms in which the contract is expressed, it plainly appears from the instrument itself that the true object and intent" of its execution is to bind the principal and not the agent, courts will adopt that construction of it, however informally that intention may be expressed. Judge Story, in his valuable work on Agency (eighth edition) at section 155, states the rule thus: “If from the nature and terms of the instrument it clearly appears, not only that the party is an agent, but that he means to bind his principal and to act for him, and not to draw, accept, or indorse the bill on his own account, that construction will be adopted however inartificial may be the language, in furtherance of the actual intention of the instrument.” But it is contended by counsel for defendant in error in the present case, that the note here in question, because of the language employed in the body of the instrument itself, — imports, on its face, an undertaking on the part of all whose names are signed thereto, that they will be bound thereon, and that in terms it imposes upon each a personal liability as a maker of said note. Counsel assume that the use of the words “we promise to pay” in the body of the instrument, is conclusive of the fact that this note is, and was intended to be, the joint note of The Akron White Sand & Stone Company, L. K. Mihills and D. B. Aungst. We do not think so; and in our judgment no such controlling effect can properly be given these words. The word “we” when used in a promissory note, does not always, or necessarily, imply a plurality of makers, and it is often used, as will appear from many of the cases cited in this opinion, to designate or describe a corporation aggregate. It is said in Randolph on Commercial Paper, sec. 143, that, “ ‘We promise’ seems the natural form of words for a corporation’s promise, if the name itself is not used in the body of the note.” In discussing this form of promise, in the case of Bean v. Pioneer Mining Co. et al., 66 Cal., 453, the court says: “The promissory note on which it is sought to charge the defendant, Mason, personally, is signed, ‘Pioneer Mining Company, — John E. Mason, Sup’t.’ The note reads, ‘We promise to pay,’ and not ‘The Pioneer Mining Company promises to pay.’ The seal of the corporation is not attached. It is insisted by appellant that the instrument’ is the note of the company and Mason; that the words, ‘we promise to pay’ clearly establish this. But the question is not to be determined merely by reference to rules of grammar. If the note was signed unmistakably by the company, and the company alone, we could see that the mistake which would make the collective ‘company’ the nominative instead of the corporate name, might easily have occurred. It must be conceded that-if the note had been signed ‘Pioneer Mining Company by John E. Mason, Superintendent,’ and the superintendent had power to execute notes of the corporation, it would be the note of the corporation, notwithstanding the words ‘We promise.’ If we reject the words subscribed to the note in suit, ‘John ■ E. Mason, Sup’t,’ whose note is it? Would the words ‘Pioneer Mining Company,’ not accompanied by any words indicating by whom they were written, establish a liability on the part of the company? Immediately below the words is written ‘John E. Mason, Sup’t.’ Shall we say the omission of the word ‘by’ or ‘per’ renders the instrument unmistakably the note of Mason?” The court answered in the negative, and held that the note in suit was not the note of Mason, and that he was not bound thereon. In Draper v. Massachusetts Steam Heating Co. and another, 5 Allen, 338, the note in suit read “We promise to pay,” and the signing was similar to that in the case at bar, viz.: “Mass. Steam Heating Co. — L. L. Fuller, Treasurer.” Hoar, J., in the opinion in that case, says: ‘ ‘ The name of the company is signed to the note. This signature could not be made by the corporation itself and must have been written by some officer or agent. It was manifestly proper that some indication should be given by whom the signature was made, as evidence of its genuineness; and Fuller added his own name with the designation of Ms official character. It would have been better if the name of the principal had been inserted in the body of the contract as the contracting party; or if the word ‘by’ had preceded Fuller’s name in the signature. But we think the omission to do this does not change the apparent character of the instrument, and that the whole taken together shows it to be the signature of the Massachusetts Steam Heating Company, and not of Fuller.” In Atkins v. Brown, 59 Me., 90, the note was, “we promise to pay,” etc., and signed “Augusta Shovel Co. — A. D. Brown, Pres.” In Castle v. Belfast Foundry Company, 72 Me., 167, it was, “We promise,” etc., and signed: “Belfast Foundry Company, — W. W. Castle, President.” In Latham, Admr. v. Houston Flour Mills, 68 Tex., 127, the note was, “We promise to pay,” etc., and signed “Houston Flour Mills Co., D. P. Shepherd, President. ’ ’ In Reeve v. First National Bank of Glassboro, 54 N. J. Law, 208, the note in suit read, “We promise to pay,” etc., and was signed: “Warrick Class Works, J. Pierce Warrick, Pres’t.” In Liebscher v. Kraus, 74 Wis., 387, the note was: “We promise to pay,” etc., signed “San Pedro Mining and Milling Company, F. Kraus, President.” In Miller v. Roach, 150 Mass., 140, the syllabus is as follows: “A promissory note reciting in the body thereof, ‘we promise to pay,’ but with nothing there to indicate to whom ‘we’ referred, bore upon its face in the usual place of signing, the name ‘John Roach,’ beneath which was written ‘Treasurer,’ and had in addition the impression stamped upon it of a large circular corporate seal, around the outer edge of which appeared in print, ‘New York Skating Rink Construction Company,’ and in the center of it ‘Incorporated 1884,’ so placed that the circumference passed through the final letter of' ‘Roach’ and through the word ‘Treasurer.’ Held, that the note was the note of the company.” In all of the above cases the notes were held to he unambiguous, and to he the notes of the corporations alone. In Liebscher v. Kraus, supra, Orton, J., in his opinion says: “Here the corporation could not sign its own name, and it is not otherwise shown on the face of the note than that Kraus signed the corporate name, and by adding the word ‘President’ to his own name he shows conclusively that as president of the corporation he signed the note, and not otherwise. Such is the natural and reasonable construction of these signatures, and so it would he generally understood. The affix, cashier, secretary, president, or agent, to the name of the person sufficiently indicates and shows that such person signed the bank or corporate name, and in that character and capacity alone. The use of the word ‘by’ or ‘per’ or ‘pro’ would not add to the certainty of what is thus expressed. It is not common to use these words in commercial business. It is sufficiently understood that the paper is signed by the officer or agent named, and for the corporation.” We might multiply the citation of authorities almost indefinitely, but the foregoing, we think, are sufficient to show the general rule adopted and followed by the courts of last resort, in the construction and interpretation of instruments signed, as is the one here in suit. The decisions of this court, cited by counsel for defendants in error, are not, we think, in conflict with the current of authority above noted. But restricted to the particular facts upon which these decisions rest, in the cases cited, the Ohio cases are clearly distinguishable from the case at bar. In neither of them was the controlling question, presented in the present case, involved or determined, for in neither was the name of the principal signed to the instrument which was the subject of suit in the particular action.

Our conclusion in the present case is, that the note in controversy is on its face, the note of The Akron White Sand & Stone Company, and not the note of D. B. Aungst, and that D. B. Aungst is not bound thereon. The judgment of the circuit court is accordingly reversed, and final judgment will be entered herein for the plaintiff in error, D. B. Aungst.

Judgment reversed.

Price, Summers and Spear, JJ., concur.


source: Caselaw Access Project

author: Price, J.

license: Public Domain

text:
    Taylor, as Auditor of Madison County, and Asher, as Surveyor of Madison County, v. Crawford et al.

      Cleaning out, repairing, etc., of ditches — Section 8 of act of April 15, 1902 — Is not invalid — Not in conflict with section 16, article 1 of constitution — Constitutional law — Due process of law.

    Section 3 of an act entitled “an act to provide for the cleaning out and keeping in repair of public ditches, drains and water courses, et cet.” (95 O. L., 155), passed April 15, 1902, is not invalid, as being in conflict with section 19 of article 1, or, section 16 of article 1, or with any other provision of the constitution of the state of Ohio.
    (No. 9469
    Decided June 27, 1905.)
    Error to the»Circuit Court of Madison county.
    The plaintiffs below filed their petition, praying for an injunction against the plaintiffs in error, who were proceeding to make an assessment on the lands of the plaintiffs and others to pay for the cleaning out of a certain ditch which had been established in 1886. The surveyor and auditor were acting under the provisions of section 3 of an act of the general assembly entitled “an act to provide for the cleaning out and keeping in repair of public ditches, drains and water courses, et cet.” (95 O. L., 155), passed April 15, 1902.
    Among other claims which are noticed in the opinion, it is alleged that said section conflicts with section 19 of article 1 of our state constitution. The averments of the petition were met by an answer, and the case was heard in the court of common pleas on the evidence, and that court found for the defendants, the auditor and surveyor. On appeal the case was again heard in the circuit court, where a perpetual injunction was granted on the ground that said section 3 is unconstitutional.
    Error is prosecuted in this court to obtain a reversal of the judgment of the circuit court.

      Mr. C. R. Hornbeck and Mr. T. J. Duncan, attorneys for plaintiffs in error,
    cited and commented upon the following authorities:
    Griauque’s Ohio Drainage Laws of 1896, 64; sec. 19, art. 1, Const, of Ohio; Hill v. Higdon, 5 Ohio St., 243; Scoville v. Cleveland, 1 Ohio St., 126; sec. 4, art. 8, Const. of 1802; see. 19, art. 1, Const. of Ohio; Reeves v. Treasurer of Wood County et al., 8 Ohio St., 333; Thompson v. Treasurer of Wood County, 11 Ohio St., 678; Chamberlain v. City of Cleveland, 34 Ohio St., 551; Lima v. Cemetery Assn., 42 Ohio St., 128; Railway Co. v. Commissioners, 1 Ohio St., 78; Black on Interpretation of Laws, 93; Curryer v. Merrill, 25 Minn., 1; Black on Interpretation of Laws, 62, 84; Utick v. Board of County Commissioners, 60 L. R. A., 161; act of April 22, 1904 (97 O. L., 262); sec. 1, art. 10, Const, of Ohio; Bonsall et al. v. Mayor et al., 19 Ohio, 418; 14 Cyc. of Law, 1025, 1054; Burgett v. Norris, Treas., 25 Ohio St., 308; Hays et al. v. Jones et al., 27 Ohio St., 218; Makemson v. Kauffman, 35 Ohio St., 444; Corry v. Caynor, 22 Ohio St., 584; Traction Co. v. Felix, 25 O. C. .C., 393; Snell v. Cincinnati Street Ry. Co., 60 Ohio St., 256; sec. 7, art. 10, Const. of Ohio; Hibbs v. Commissioners, 35 Ohio St., 458; secs. 4496, 4497, 4497a, 4774, 4799, 4831, 4836, 4999, 5340, 5342, 5426, 5430, 5431, 5435, 5441, Rev. Stat.

      Messrs. Murray & Emery, attorneys for defendants in error,
    cited and commented upon the following authorities:
    Section 2, art. 1, Bill of Rights; sec. 2, art. 4, Const, of U. S.; State v. Gardner, 58 Ohio St., 599; Palmer & Crawford v. Tingle, 55 Ohio St., 423; Harmon v. State, 66 Ohio St., 249; State v. Gravett, 65 Ohio St., 289; State v. Ferris, 53 Ohio St., 314; Coal Co. v. Rosser, 53 Ohio St., 12; Williams v. Donough, 65 Ohio St., 499; State v. Robins, 71 Ohio St., 273; 2 Dillon on Municipal Corporations, sec. 587; Blue v. Wentz, 54 Ohio St., 247; Reeves v. Treasurer, 8 Ohio St., 333; State v. Commissioners, 54 Ohio St., 333; sec. 7, art. 10, Const. of Ohio; Page v. Allen, 58 Pa. St., 338; 98 D., 272; Hulse v. State, 35 Ohio St., 421.
   Price, J.

The evidence heard in the circuit court has not been brought, into the record by bill of exceptions, and that court made no finding of facts; consequently we have nothing to review in reference to the evidence admitted on the issues joined by the pleadings. According to the judgment entry, the lower court granted a perpetual injunction against the county auditor and county surveyor on the sole ground that section 3 of an act of the general assembly, passed on the fifteenth day of April, 1902, found in 95 O. L., 155, under which the officers were proceeding, is unconstitutional, and that is the only question for determination here.

In this state of the record, we have nothing to do with many averments of the petition and their denial by the answer, for they present .issues of fact which are not before us. Among these are questions as to the fairness of the apportionment of the costs and expenses of cleaning out the ditch, and whether it was for a public purpose, or merely for the private benefit of certain named persons who asked for the improvement.

In taking up the question of constitutional law, a preliminary observation will assist in understanding our subject. The general provisions of our statutes for the location and construction of ditches, drains, and water courses, with some changes and variations, have been in operation for many years.

It is declared by the pleadings that the ditch about to be cleaned out by virtue of the proceedings; enjoined, was established in the year 1886, and that, it was constructed during that year. It now deserves-the name of an old ditch, and by reason of its location and construction under the laws then and now in operation, it is a public water course. It is; expressly so declared by section 4500, Revised. Statutes.

In order to procure its original location and construction, it was incumbent upon the petitioners, therefor, among other things, to state in their petition and show at the hearing before the commissioners, that the proposed ditch would be conducive to the public health, convenience or welfare, and it was. necessary for the commissioners to find and record' that important fact in order to give them jurisdiction to establish the ditch. Such a finding was essential because the improvement petitioned for contemplated the appropriation of private property, which could only be done for a public use. We assume, the proceedings which resulted in the location and construction of the original ditch were conducted as the law required, and that it was found and recorded by the county commissioners that the ditch, when constructed, would promote the public health, convenience and welfare. For that public purpose, lands could he, and no doubt were appropriated, for which, under our constitution, the owners were entitled to compensation and damages, and if the award of the commissioners was not satisfactory, there was a right of appeal to the probate court, where the land owner could be heard before a constitutional jury as to such compensation and damages, and other questions.

The statute furnished the owner of lands taken for the ditch, a ready and convenient remedy for the enforcement of the constitutional guarantees for the protection of his rights. No doubt the land owners, who desired to do so, availed themselves of all these provisions m-ade in their behalf.

Another observation is likewise pertinent. Our ditch laws are the exercise of police power committed to the .general assembly. This was held in Sessions v. Crunkilton, 20 Ohio St., 349. The proposition there stated is, that the construction of drains by townships in cases where the public health, convenience and welfare demand it, is within the meaning of “police powers” mentioned in section 7 of article 10 of our state constitution. The means of promoting and conserving the public health and welfare provided by legislation, are so provided in the exercise of the police powers existing in the general assembly. And section 3 now involved, prescribes one of the methods of promoting the public health, convenience and welfare. It reads: “Provided, however, that when a ditch needs to be cleaned out, any resident owner of any tract of land which was assessed for the construction may make a sworn statement to the county auditor, in writing, setting forth such necessity. And when said written sworn statement is made within three years from the' original construction, or for material improvement by deepening and widening said ditch, and as often thereafter as may be necessary to keep said ditch in good repair, said county auditor shall forthwith notify the county surveyor to examine the said ditch, who shall go without unnecessary delay, upon the line thereof, and make an estimate of the amount of money required therefor and fix the portion thereof that the owner of said tract of land and each corporation, county, or township assessed for the construction of the ditch, shall be assessed for such cleaning out; and such assessment shall be made according to the benefits; unless the necessity for the cleaning out arose from the act or neglect of some land owner or corporation, in which case such act or neglect shall be considered. Said county surveyor shall return his estimate and assessment to said auditor in writing, who shall appoint a day for' hearing the same, and direct said county surveyor to give notice thereof to each owner of land and corporation affected thereby when said auditor may make such changes therein as he may deem right and proper; he shall enter upon a journal to be kept for that purpose the assessment as approved by him, and he shall place such assessment upon the duplicate against the land, upon which they are assessed, to be collected as other taxes; the work of cleaning out the ditch shall be advertised, sold and let, and the contracts therefor performed, as provided in this chapter; the contractor shall be paid, by warrant of the county auditor upon the county treasurer, out of the assessments so made, and paid upon the certificates of said county-surveyor, that he has performed his contract; but if at the presentation of any certificate all the assessment have not been paid, payments shall be made thereon pro rata. ’ ’

This section was amended April 22, 1904, by changing the latter part to read as follows: “The contractor shall be paid by warrant of the county auditor upon the county treasurer, out of any funds in the treasury applicable to such purpose. When the whole contract is completed the entire price may be paid in the manner aforesaid. ’ ’

Section 3 is one of many comprising an act entitled “An act to provide for the cleaning out, and keeping in repair of public ditches, drains and water courses, and to repeal an act passed April 13, 1900,” and certain other sections; The purpose of the entire act, as its title indicates, is to regulate cleaning out and keeping in repair the ditches which have been established by county commissioners or township trustees, embracing the removal of obstructions and restoration and repair of flood gates. Surely it is within the police power of the general assembly to designate certain officers of a county, or township, who may, in a prescribed mode, upon application and due notice to parties interested, restore our public drains and water courses to their original condition. Judicial authority is not essential, for all parties in interest were duly heard before the tribunal appointed by law when the original construction was ordered.

The petition charges that the section quoted, violates section 19 of article 1 of the state constitution, which, in part, reads:

“Private property shall ever be held inviolate, but subservient to the public welfare, * * * and '.in all other cases where private property shall be taken for public use, a compensation therefor shall first be made in money, or secured by a deposit of money; and such compensation shall be assessed by a jury without deduction for benefits to any property of the owner.”

We are unable to see how the statute assailed, conflicts with . this fundamental law. The property occupied by the ditch was taken by its original construction when the parties along its line whose lands were taken, had ample opportunity to obtain compensation, and if they applied for the same, we must assume their applications were considered and proper awards made.

But the proceeding to clean out the original channel under section 3, does not seek or attempt to appropriate any lands of the defendants in error. Its sole purpose is to restore the water course to its former condition of usefulness. There is nothing for which the land owners are entitled to any compensation, for they part with nothing. The petition also alleges that the section is unconstitutional, “for the reason that no discretion is given to any officer, board, or tribunal to determine or decide whether the improvement * * * is for the public health, convenience and welfare, but makes the duties to be performed under said act mandatory upon said auditor and surveyor.” Again we think the section is misconstrued. When the ditch was established originally, it was alleged by the petition and determined by the 'commissioners, that the ditch was necessary and its construction would be conducive to the public health, convenience and welfare. We say this, because the law required the petition to so allege and the commissioners to so find before the ditch could be legally established. -

The. questions settled by the original proceedings imply that to subserve the public good the ditch should remain open and free from obstruction. Hence, the questions concerning the public health, convenience and welfare have been once settled and need not be re-asserted in the new proceeding.

The petition also complains that if the assessments made by the auditor become liens on the lands and are enforced, the land owners will be deprived of their property without due process of law. While it is not cited by counsel or by the circuit court, we presume that section 16 of article 1 of our bill of rights was in contemplation when the proposition was made. It provides that “all courts shall be open, and every person, for injury doné him in his land, goods, person or reputation shall have remedy by due course of law; and justice administered without denial or delay.”

Section 3 of the act involved provides that when the sworn statement of the resident land owner is filed with the auditor he shall notify the county surveyor to examine the ditch, and for that purpose to go upon its line, and make an estimate of the amount of money required for the cleaning out, and fix the portion that each land owner, who was assessed for the original construction of the ditch should be assessed for the improvement, which new assessment must be made according to the benefits. The surveyor must return the result of his examination and his estimate to the auditor, who shall appoint a day for the hearing of the report, of which due notice shall be given. The auditor is authorized on the hearing to make such changes in the assessment as he deems just, and when corrected and confirmed, the assessment is placed on the duplicate. The work shall be advertised and publicly let.

Notwithstanding the assertion of the defendants in error, we think the surveyor, if he finds upon his examination that the ditch does not need cleaning out, he is authorized, and would be expected to so report to the auditor, and that his judgment is not so fettered as counsel imagine, that he must report in favor of an assessment. If on the hearing before the auditor, the latter should find that cleaning out is not necessary, he may so declare and act accordingly by refusing to place any assessment upon the property along the ditch. The statute is not so one-sided as counsel contend, when it is fairly construed with relation to the subject-matter. The petition for the injunction alleges that on the day of hearing “said auditor heard all proof offered by the parties affected by the proposed ¿leaning out of said ditch, and found that the same (the assessments) was in all respects fair and just according to.the benefits.”

We are of opinion that the legislature can constitutionally confer upon the surveyor and auditor the powers prescribed in section 3, and according to many authorities, the exercise of such powers, in accordance with the act, is due process of law.

However, the hearing and findings by the auditor are not conclusive upon the interested parties. It is true there is no provision in the section for appeal or prosecuting error, and if the rights of the parties are concluded by the findings of the auditor, the property of defendants in error might be taken without due course, or due process of law. But they are not so concluded. For cases arising under the general ditch laws we have section 4491, Revised Statutes, but it may not cover the special proceedings before us. But section 5848, Revised Statutes, which is a part of our code of civil procedure, does apply, and furnishes an ample remedy to vindicate any right the land owner may have to urge against the assessment. This section provides: “Courts of common pleas and superior courts shall have jurisdiction to enjoin the illegal levy of taxes and assessments, or the collection of either, and of actions to recover hack such taxes or assessments as have been collected without regard to the amount thereof * * *.”

This section furnishes due course or due process of law. Under its provisions the courts of the state are open for the redress of any wrongs that may be done by taxation or assessments. The defendants in error have availed themselves of this remedy in the very case before us.

In Adler v. Whitbeck, 44 Ohio St., 571, Minshall, J., after discussing authorities and the section of the constitution we -are considering and also the fourteenth amendment of the federal constitution, says: “By these decisions, such laws may be in harmony with that amendment (the fourteenth), although they do not provide for giving a party an opportunity to be present when the tax is assessed against him and to be there heard, if they give him the right to be heard afterward in a suit to enjoin the collection in which both the validity of the tax and the amount of it may be contested; and it is immaterial to this question that the party to the suit is required, as in other injunction cases, to give • security when instituting the suit.” The learned judge cites McMillen v. Anderson, 95 U. S., 37; Hagar v. Reclamation District, 111 U. S., 701; Davidson v. New Orleans, 96 U. S., 97. To these we add 103 U. S., 182; 104 U. S., 78.

We cite State ex rel. v. Jones, Auditor, 51 Ohio St., 492-513. The latter case decides that section 5848 provides dne course of law in cases of taxation and assessment.

In Hagar v. Reclamation District, supra, it appears that the legislature of California passed an act establishing a general system for reclaiming swamps and overflowed, salt marsh and tide lands in the state. The facts are fully stated in the opinion of the above case, and we do not repeat them here. Hagar, whose lands were about to be sold to pay his assessment for the drainage, contended that his property was being taken without due process of law, inasmuch as the assessment was made without opportunity to him to be heard respecting it; that it was made' without notice to him, and that the reclaiming statute contained no provision for such notice or hearing, and it was therefore invalid. He claimed that notice arid opportunity to be heard were essential to render any proceeding “due process of law,” which may lead to the deprivation of life, liberty or property. The opinion by Justice Field contains an able discussion of what constitutes “due process of law.”

On page 710, referring to the provision of the California statute, for fixing the value of the lands by assessors appointed, in order to ascertain a just basis for assessment, the learned justice says, “The officers in estimating the value, act judicially; and in most states provision is made for the correction of errors committed by them, through boards of revision or equalization, sitting at designated periods provided by law to hear complaints respecting the justice of the assessments. The law in prescribing the time when such complaints.will be heard, gives all the notice required, and the proceeding by which the valuation is determined, though it may he followed, if the tax be not paid, by a sale of the delinquent property, is due process of law.

In some states, instead of a board of review or equalization, the assessment may be revised by proceedings in the courts and be there corrected if erroneous, or set aside if invalid; or, objections to the validity or amount of the assessment may be tahen when the attempt is made to enforce it. In such cases all the opportunity is given to the taxpayer to be heard respecting the assessment which can be deemed essential to render the proceedings due process of law. In Davidson v. New Orleans, supra, this court decided this precise point.” The entire opinion of Justice Field is valuable and decisive of the question before us.

Therefore we safely conclude, that section 3 does not jeopardise the property rights of the land owners and deprive them of due process of law. The section is intended as a summary method of restoring water courses, and the agents to accomplish it are certain county officers whose functions are administrative in character, as is the case in very many other provisions for the assessment of property.

The judgment entry of the circuit court shows that section 3 was held to be unconstitutional, but it fails to point out the part of that instrument with which it is in conflict. Counsel for defendants in error attach to their brief a copy of the opinion rendered in the case which is reported in 27 O. C. C., 245. That court holds that section 3 “is unconstitutional because it unjustly discriminates between different applicants for such improvement with respect to costs.” And near the close, of the opinion it is said, in comparing section 3 with section 2 of the act, “This would appear to he unequal legislation and unjust discrimination against the fair minded citizen and violative of the bill of rights. ’ ’

This attack on the law is very general, and therefore very indefinite. But a word about the comparison of the two sections is proper in this connection. Section 2 allows any one who was assessed for the original construction of the ditch to apply to the commissioners for its cleaning out, and he is required to give bond for the payment of costs, if the application is not granted. Section 3 authorizes any resident owner of land which was assessed for the construction of the ditch to make the sworn statement to the auditor of the necessity of the cleaning out, and he is not required to give bond. In the comparison, why not say section 2 is invalid because it requires a bond, while section 3 requires none? We presume that it is competent for the legislature to require such bonds in all cases, or not to require them in any case; it may provide for bonds in certain proceedings and not require them in others. We know of no constitutional regulation or prohibition on the subject. It is altogether a matter of legislative discretion, and not a matter of constitutional law. To proceed under section 3 is a simple and less expensive method. Sections 1 and 19 of the same act provide for like summary action. Section 1 provides for the removal of obstructions and section 19 for the repair and restoration of flood-gates. In a proceeding to remove obstructions under section 1, no bond is required, while a proceeding under section 19 requires the giving of a bond. Both proceedings are of a summary nature, and the law is not invalid, because a bond is required in one and not in the other.

It is also urged' against the law that it discriminates as between resident and non-resident land owners. Under section 3, the resident land owner only is authorized to make the sworn statement, while under section 2 and other sections of the general ditch law, land owners, without regard to residence, may petition for the improvement. This distinction is considered by the circuit court as another unconstitutional discrimination.

If this view is sound, it unsettles many old statutes of this state, many of which have been in operation for more than half a century, and which have, at one time or another, been before the courts for construction and judgment.' For more than half a century county roads have been established on petition of free-holders resident of the vicinity of the proposed road. County line roads have been established on the petition of the inhabitants along the line. Roads have been vacated on the petition of twelve freeholders residing in that part of the county. The law requires the petitions to be so signed. Petitions for free turnpikes and roads under the one-mile assessment act, must be signed by resident free-holders, and remonstrances against the latter must be signed by the same class. It is useless to cite other statutes for public improvements that contain like discrimination in favor of residents of the state. It is not obnoxious to the constitution to classify owners of property into residents and non-residents. The policy of the legislature that first cares for our own citizens, is not vicious, and if it accords to residents of Ohio rights and privileges not conferred upon residents of another state, the general assembly is simply performing a duty peculiarly within its authority.

We therefore have divorce laws requiring the applicant for divorce to be a bona fide resident of Ohio one year next before filing his or her petition. If a suitor is a non-resident he may be required to give security for costs, and if one who has been a resident removes from the county or state while his action is pending, he may be required to give security for costs. So with regard to our exemption laws. They are for the benefit of a certain class of our own citizens, and for the purpose of exemptions, our own citizens are classified. The list of illustrations might be extended if necessary. One more will be sufficient. It is found in our attachment laws. Non-residence of the state is made a ground for attachment, and that, too, without bond, while bond is ■required if the writ is asked on other grounds. The discrimination against non-residents by such legislation was the subject of judicial determination in Central Loan & Trust Co. v. Campbell, 173 U. S., 84. The fifth section of the syllabus reads: “That the territorial statute (Oklahoma) authorizing the issue of a writ of attachment against the property of a non-resident defendant, is not repugnant to the fourteenth amendment to the constitution.”

The language of Justice White, rendering the opinion, so well meets every contention made in this ■branch of our case, that we freely quote from it as follows:

“The only remaining contention to be considered is the claim that the territorial statute authorizing the issue of an attachment against the property of a non-resident defendant in the case of an alleged fraudulent disposition of property is repugnant to the fourteenth amendment to the Constitution of the United States and in conflict with the Civil Rights Act. The law of the territory, it is said, in case of an attachment, for the cause stated, against a resident of the territory requires the giving of a bond by the plaintiff in attachment as a condition for the issue of the writ, whilst it has been construed to make no such requirement in the case of an attachment against a non-resident. This, it is argued, is a discrimination against a non-resident, does not afford due process of law, and denies the equal protection of the laws. The elementary doctrine is not denied that for the purposes of the remedy by attachment, the legislative authority of a state or territory may classify residents in one class and non-residents in another, but it is insisted that where non-residents ‘ are not capable of separate identification from residents by any facts or circumstances other than that they are non-residents — that is, when the fact of non-residence is their only distinguishing feature— the laws of a state or territory cannot treat them to their prejudice upon that fact as a basis of. classification. ’
“When the exception, thus stated, is put in juxtaposition with the concession that there is such a difference between the residents of a state or territory and non-residents, as to justify their being placed into distinct classes for the purpose of the process of attachment, it becomes at once clear that the-exception to the rule, which the argument attempts to make, is but a denial, by indirection, of the legislative power to classify which it is avowed the exception does not question. The argument in substance is that where a bond is required as a prerequisite to the issue of an attachment against a resident, an unlawful discrimination is produced by permitting process of attachment against a non-resident without giving a like bond. But tbe difference between exacting a bond in the one case and not in the other is nothing like as great as that which arises from allowing processes of attachment against • a nonresident and not permitting such process against a resident in any case. That the distinction between a resident and a non-resident is so broad as to authorize a classification in accordance with the suggestion just made is conceded, and, if it were not, is obvious. The reasoning, then is, that, although the difference between the two classes is adequate to support the allowance of the remedy in one case and its absolute denial in the other, yet that the distinction. between the two is not wide enough to justify allowing the remedy in both cases, but accompanying it in one instance by a more onerous prerequisite than is exacted in the other. The power, however, to grant in the one and deny in the other of necessity embraces the right, if it be allowed in both, to impose upon the one a condition not required in the other, for the lesser is necessarily contained in the greater power. The misconception consists in conceding, on the one hand, the power to classify residents' and non-residents, for the purpose of the writ of attachment, and then from this concession, to argue that the power does not exist, unless there be something in the cause of action, for which the attachment is allowed to be issued, which justifies the classification. As, however, the classification depends upon residence and non-residence, and not upon the cause of action, the attempted distinction is without merit. ’ ’

It seems that the court was unanimous in the above opinion, and it deserves both ourrespect and confidence. The statute in question may be unwise, and ill-designéd, but its amendment or repeal is for the law-making power and not for the courts.

The judgment of the circuit court is reversed, injunction dissolved, and the petition with its amendments is dismissed.

Judgment reversed.

Davis, C. J., Crew and Summers, JJ., concur.*


author: Shauck, J.

text:
    Wolfe v. Marmet et al.

      Object of section 550, Revised Statutes — To secure attendance of judge — Of another subdivision — When judges of subdivision where case is pending — Are disqualified — Affidavit for the purpose of no effect, when.

    The object of section 550, Revised Statutes, is to secure the attendance of a judge of the court of common pleas of* another subdivision when the judges of the subdivision in which the case is pending are disqualified, and an affidavit filed for that purpose is of no effect unless it alleges the disqualification of all the judges of the latter subdivision.
    (No. 9130
    Decided June 27, 1905.)
    Error to the Circuit Court of Hamilton county.
    Mrs. Wolfe brought suit in the court of common pleas against Mrs. Marmet and her daughter to recover $100,000 damages for an alleged tort. Upon issues joined the cause was submitted to a jury in the court of common pleas and a verdict was rendered in favor of the defendants. A judgment following the verdict was affirmed by the circuit court. The only question for determination here arises on the second assignment of error which is “Because the Hon. Fred. S. Spiegel, the trial judge of said court of common pleas, had no jurisdiction to hear and determine the issues involved in said cause, after the filing of the affidavit under section 550, Revised Statutes of Ohio, alleging bias and prejudice on the part of the trial judge against the plaintiff in error.”
    It appears from the record that upon the day when the cause was regularly set' for trial before the Hon. Frederick S. Spiegel, one of the judges of the court of common pleas, counsel for the plaintiff had urged that the trial of the cause be postponed on account of his other engagements, to which the court answered that they would proceed to empanel the jury and administer the oath to them and then postpone the cause to the day following. A jury was called, examined and passed, and when the oath was about to be administered counsel for the plaintiff requested the court to delay a moment as he desired to go to another court room temporarily. This request being granted he left the court room. Returning in a few minutes he informed the judge that he had filed an affidavit of bias and prejudice which the clerk would shortly present. This was done. The affidavit is as follows:

      “State of Ohio, Hamilton County, ss:

    “M. F. G-alvin, being first duly sworn, says that he is one of counsel for the plaintiff in the above entitled cause, that said cause is now set for trial in room No. 3 of the court of common pleas, Honorable Frederick S. Spiegel presiding. Affiant says' that there is bias and prejudice on the part of said Frederick S. Spiegel, judge, before whom said cause is set for trial, against this plaintiff in the prosecution of this action. That there is bias and prejudice on the part of said trial judge against this affiant, attorney for said plaintiff.. Affiant says there is bias. and prejudice on the part of said judge against the plaintiff and in favor of the defendants herein, and said trial judge is therefore disqualified to hear and determine this cause.
    “M. E. Galvin.’-
    In answer to the question from the judge for a specification of facts on which the affidavit was founded the affiant denied his obligation to make such statement, but proceeded to make a statement in justification of his course, which was in substance a re-statement of the reasons previously urged for the longer postponement of the trial of the cause. The judge being of the opinion that the affidavit was untrue and that it came too late, proceeded with the trial in accordance with the previous announcement.

      Messrs. Galvin & Bauer and Dempsey & Fridman, for plaintiff.

      Mr. Charles W. Baker, for the defendants.
   Shauck, J.

The affidavit was filed under favor of section 550, Revised Statutes, and counsel for the plaintiff urge that it was effective to disable the trial judge to take further steps in the case in which it was filed and to render void all the subsequent proceedings which were actually taken. The section is given in its entirety because analysis will show that it describes the conditions under which the affidavit may be filed, what it should allege and what shall be its effect.

“(Change of verme in common pleas court when judge is disqualified to sit.) When a judge of the common pleas court is interested in any cause or matter pending before the court in any county of his district, or is related to, or has a bias or prejudice either for or against, either or any party to such cause, or is otherwise disqualified to sit in such cause or matter, and there is no other judge in the same subdivision who is not so disqualified, on the filing of an affidavit of either or any party to such cause or matter, or of his or her counsel, setting forth the fact of such interest, bias, prejudice or disqualification, the clerk of the court shall enter the fact of the filing of such affidavit on the trial docket in such case, and forthwith notify the supervising judge, or if he be disqualified as aforesaid, a judge of some other subdivision who is qualified, of the district, who shall proceed in the same manner as provided in section four hundred and sixty-nine of the Revised Statutes of Ohio, to designate and assign some other judge of the district not so as aforesaid disqualified, to hold the court and try the cause where the same is pending; and it shall thereupon be the duty of the judge so assigned to proceed and try such cause. ’ ’

There is no ambiguity in the terms by which the section describes the conditions which authorize the filing of the affidavit: “When the judge of the common pleas court is interested in any cause or matter pending before the court in any county of his district,» * * * and there is no other judge in the same subdivision who is not so disqualified.” 'A school of elementary English would be the appropriate place for inculcating that the condition which follows the copulative conjunction, and, must concur with that which precedes it. The theory of the plaintiff is that the affidavit is conclusive of all which it alleges and exclusive of all information which might be derived from other sources. According to this theory the knowledge of the trial judge that all other judges of the subdivision are disqualified would be of no more avail than his knowledge that he himself is not disqualified. Their disqualification which the statute makes an indispensable condition to the filing of the affidavit for any purpose must appear from the source of information which this theory makes exclusive. If the affidavit is made for a purpose which the statute contemplates the terms employed require it to set forth “the fact of such interest” as will authorize it to be filed. That is, the fact of the disqualification of not only the particular judge but of all the judges of the subdivision. The purpose of the section is indicated by its history as well as by its terms. It is evolved from the act of January 25, 1860 (57 O. L., 5), whose material provisions were that on the filing of an affidavit showing that the .judge of the court of common pleas was interested in the case pending therein, the clerk should enter the fact upon the docket and transmit the papers pertaining to the cause to the clerk of the court of common pleas of a county in another subdivision. By the act of February 7, 1885 (82 O. L., 24), in view perhaps of the increasing number of the judges, there was added the requirement that all judges in the •subdivision should be disqualified. The section was amended March 19, 1887 (84 O. L., 129), and April 14,1888 (85 0. L., 267), but there was the continued requirement that all the judges of the subdivision should be disqualified, and the effect was to change the place of trial of the cause to another county. The section was again amended April 15, 1889 (86 0. L., 363), so as to contain the substance of its present provisions, the changes being such only as were deemed necessary to give effect to the conception that in case of the disqualification of all the judges of the subdivision, convenience would be better served by transferring a judge from another subdivision than by changing the place of trial. The amendments preserve with entire clearness the requirement that all the judges of the subdivision must be disqualified and that this fact must appear in the affidavit. It is obvious, therefore, that by reason of its omission to state the disqualification of other judges this affidavit was ineffectual for any purpose, and this without regard to the time or' the obvious purpose for which it was filed.

It appears from the record that the trial judge was aware of no consideration which disqualified him to sit in the case and that counsel for the plaintiff knew no sufficient reason for a different conclusion. A question of much interest and importance is suggested. Do the terms of the statute warrant the conclusion that the general assembly has assumed to possess, and attempted to exercise, power to take from the judge the jurisdiction to decide and vest it in the litigant, enabling him to accomplish the indefinite postponement of the trial of his cause by interposing an insurmountable obstacle to the exercise by a qualified judge of the jurisdiction vested in him by the constitution? Since the case presented does not require a decision of this question, its consideration should be deferred until necessity prompts to a full argument and investigation.

It may be that the statute does not have, and was never intended to have, any operation whatever in a county which, like Hamilton, constitutes a judicial district. If it should prove to be so, the judges in that county will doubtless be able to continue in the decorous and orderly administration of justice with full recognition of the impressive admonitions which are suggested by tbe character of the judicial office and of the responsibilities which attach to it.

Judgment affirmed.

Davis, C. J., Price, Crew, Summers and Spear, JJ., concur.


author: By the Court.

text:
    The State ex rel. Gunn v. Witt.

      Tenure of municipal and other officers — Act of March 17, 190Jf — • Extends term of office to January, 1906 — Interpretation of law.

    The act of March 17, 1904, to amend certain sections of the Revised Statutes relating to the tenure of municipal and other officers (97 O. L., 37), extends the official terms of clerks of municipal councils who were in office at the time of the passage of the act until the election of their successor in January, 1906.
    (No. 9493
    Decided June 27, 1905.)
    Quo Warranto.
    It is alleged in the petition that on the fourth of May, 1903, the defendant, Peter Witt, was duly elected by the council of the city of Cleveland to the office of clerk of said council for the term of two years; that he thereupon entered upon the duties of said office and that his- term expired at midnight on May 3, 1905. It is further alleged that on the third day of January, 1905, the council of said city elected the relator, William E. Gunn, to said office of clerk for the term of two years to begin on May 4, 1905, upon the expiration of the term to which said Witt had been previously elected; that the relator thereupon did all the acts required by law to qualify for said office and demanded the office and all hooks and papers belonging thereto, but that the defendant refused to deliver the same and unlawfully continues to intrude into said office after the expiration of his term as aforesaid. The prayer of the petition is for the ousting of the defendant and the induction of the relator. The defendant, answering, pleads title to the office until January, 1906, under the act of March 17,1904 (97 O. L., 37), entitled, An act to amend certain sections of the Revised Statutes relating to the time and manner of holding elections and the terms of certain municipal and other officers.

      Messrs. Blandin, Rice & Ginn, for relator.

      Mr. Newton D. Baker, city solicitor, for the defendant.

      Messrs. Andrews, Earlan S Andrews, also filed a brief in behalf of another party interested in the same question. — [Reporter.]
   By the Court.

Notwithstanding the diverse meanings of which the word, elective, is susceptible in its application to public officers, the scope and purpose of the legislation involved in the present inquiry show that in contemplation of the general assembly it embraces clerks of municipal councils. The effect of the act of March 17, 1904, is to extend the official terms of such clerks as were in office at the time of its passage until the election of their successors in January, 1906.

Petition dismissed.

Davis, C. J., Shauck, Price, Crew, Summers and Spear, JJ., concur.


author: Davis, C. J.

text:
    The Baltimore & Ohio Railroad Company v. Lockwood.

      Duty of court in submitting case to jury — To separate issues of fact admitted• and those denied — Error to read pleadings to jury, when — Error to refuse to charge the jury that negligence not alleged in petition should not be considered,

    1. In submitting a case to the jury, it is the duty of the court to separate and definitely state to the jury, the issues of fact made in the pleadings, accompanied by such instructions as to each issue as the nature of the case may require; and it is also the duty of the court to distinguish between, and call the attention of the jury to, the material allegations of fact which are admitted and those which are denied. It is error to read the pleadings to the jury and then say to the jury, and not otherwise to define the specific issues, that these constitute the pleadings in the case, which make up the issue and from which they will try and determine the controversy between the parties.
    2. It is error to refuse to charge the jury that it should not consider any other negligence than that charged in the petition.
    (No. 9231
    Decided June 27, 1905.)
    Error to the Circuit Court of Knox county.
    This action was brought by the defendant in error to recover damages for personal injuries alleged to have been received by reason of the negligence of the plaintiff in error at the Vine street crossing in Mt. Vernon, Ohio. There are four tracks crossing Vine street which run practically north and south. The most easterly track is the side track, the next two tracks may be called, for the purposes of this case, main tracks, and the most westerly track is another side track. The defendant in error was traveling west on Vine street, and as she approached the crossing she observed what is called the pick-up train making up on the crossing, and she thereupon stopped at some distance from the easterly side track, under a tree on the north side of Vine street. When, as she supposed, the train was about made up, she drove closer to the tracks, stopping about twenty feet away from the most easterly track, and as the pick-up train was moving northward over the crossing, she drove on along the northern side of Yine street, and when her horse was about on the first, or easterly, main track, she looked to the south and saw a local freight train coming toward her on the first, or easterly main track. The pick-up train was on the other, or second, main track, third from the east, and next to the one on which she saw the local freight coming. When she saw the freight coming upon the easterly main track, her attention being directed to the south and not looking to the north, she whipped up her horse and endeavored to go over the crossing before the local freight train could reach her. In point of fact the local freight train was stopped before reaching her position. When she got onto the next track, her buggy collided with the caboose of the pick-up train. It does not clearly appear whether the pick-up train was backed, or whether it was slacked back, but it is certain that it moved back some two to four feet, possibly more. Her buggy was not upset, but was damaged somewhat, and plaintiff was not thrown out. The north wheels of the buggy were raised from four to six inches and were broken. A view of the tracks to the southward was obstructed until a traveler was close upon the side track coming from the east, but when up to the side track a clear view to the south could be had. These are the principal facts in the case as they appear in the .testimony.

      At the conclusion of plaintiff’s evidence, the defendant moved the court to direct a verdict for the defendant, which motion was overruled; and such motion was repeated at the close of all the evidence and was overruled by the court. The trial resulted in a verdict for the plaintiff, defendant in error here. After a motion for a new trial had been overruled, judgment was entered for the plaintiff, which judgment was affirmed by the circuit court, and the plaintiff in error, defendant below, now seeks to obtain a reversal of the judgment of the circuit court and of the court of common pleas. Other facts appear in the opinion.

      Messrs. Waight & Moore and Mr. F. A. Durban, for plaintiff in error.

      Mr. F. V. Owen, for defendant in error.
   Davis, C. J.

When the court charged the jury in this case, the petition, the answer and the reply were read to the jury and then the court said: ‘ ‘ This petition, and this answer and reply, constitute the pleadings in this case, gentlemen of the jury, which make up the issue, and from which you must try and determine the controversy between these parties. As the court has said to you, an issue is .an allegation of fact contained in one pleading of a party which is denied in the other.” This is all that was said to the jury in explication of the issues which it was the duty of the jury to decide, except the following, which was not spoken in connection with the language already quoted, and which appears in a paragraph by itself: * ‘ There can hardly be any question in your minds, gentlemen of the jury, at this stage of this trial, after hearing the several requests the court gave you, and the argument of counsel, and the reading of these pleadings, that the issue in this case is negligence or want of ordinary care, complained of on part of the railroad and denied by the railroad company, and alleging contributory negligence on the part of the plaintiff, which resulted in this accident. ’ ’

The court thus left it to the jury to find out for itself what were the specific issues of fact as made up in the pleadings, and which it was the duty of the jury to decide from the evidence, under the instructions of the court. The court intimates to the jury tnat “the issue” is negligence “on the part of the railroad company” and contributory negligence “on the part of the plaintiff. ’ ’ There are, at least, three distinct issues as' to negligence by the railroad company charged in the petition. 1. That at the time of the plaintiff’s injury the defendant carelessly and negligently failed to erect gates or other barriers or keep a watchman at the crossing. 2. That the rear brakeman of the train signaled the engineer to go ahead, “Whereby the plaintiff was by the defendant carelessly and negligently deceived into believing that she might cross said crossing in safety.” 3. That the defendant knew that she was waiting to cross and would cross over said track as soon as the train pulled up, and while her attention was attracted to another approaching train, the defendant suddenly and negligently backed, the train which had pulled up, at a rapid rate of speed and without warning. The mere statement of these-issues shows that they were vital to the case, and could not fairly or lawfully be ignored under a statement that the issue was whether the railroad company was, in a general sense, negligent.

The code of civil procedure carefully distinguishes issues of fact which may be tried by a jury and issues of law or fact which must be tried by the court. It is the imperative duty of the court to separate these and to definitely state to the jury those issues which are to be determined by it, accompanied by such instructions in regard to each as the nature of the case may require. A failure to do this necessarily leaves the jury to grope around through the technical and often verbose allegations of the pleadings to find the real points of controversy in the ease. "When there is but a single issue, which is tersely stated, this might not be prejudicial to the parties; but in almost every case there are intricacies which the jury, from lack of legal knowledge and experience, cannot unravel without the assistance of the court. The jury should be distinctly instructed by the court as to the facts material to the case, which are denied, and as to those which are admitted; and without this it cannot be expected that a jury trial will result in an intelligent verdict. ■

“The difficulty which even learned judges often encounter in defining the issues as joined in the pleadings is argument sufficient in support of the rule. It would not conduce to a full and fair trial, that jurors, inexperienced in such matters, were left to determine the issues from the pleadings.” 11 Ency. Pl. and Pr., 154

The court not only failed to perform its duty of stating the issues to the jury; but it also refused, on request of defendant for that purpose, to charge the jury that the jury should not consider any other negligence than that charged in the petition. This was another error. “Upon the trial the evidence should be confined to the acts of negligence so specifically and definitely averred in the petition.” Railroad Co. v. Kistler, 66 Ohio St., 326, per Burket, J.

Several other errors' appear in this charge, hut, owing to the view of the case which is entertained by the majority of the court, they need not be mentioned here.

The majority are of the opinion that upon the admitted facts of the case and upon the plaintiff’s evidence the defendant is not shown to have been guilty of negligence proximately causing the plaintiff’s injury, and that, therefore, the court should have granted the motion of the defendant to direct a verdict for the defendant. The majority of the court are also of the opinion that the plaintiff’s own testimony raised a presumption of contributory negligence by her, which was not satisfactorily repelled, and that for that reason also the court should have directed a verdict for the defendant.

For all of these reasons the judgment of the circuit court and also the judgment of the court of common pleas are

Reversed and final judgment is rendered for the plaintiff in error.

Shauck, Crew and Summers, JJ., concur.

Price and Spear, JJ., concur in the syllabus, but not in the judgment.


text:
    No. 8483.
    The Norwich Union Fire Insurance Society v. Stacy.
    (Decided February 14, 1905.)
    Error to Circuit'Court of Wood county.

      Messrs. Troup & Truesdale, for plaintiff in error.

      Messrs. Baldivin £ Harrington, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

Davis, C. J., Shauck, Crew and Summers, JJ., concur.


text:
    No. 8490.
    The Municipal Corporation of the City of Norwood v. Berning.
    (Decided February 14, 1905.)
    Error to Circuit Court of Hamilton county.

      Mr. O. G. Bailey and Mr. W. B. GolUns, for plaintiff in error.

      Mr. F. M. Gorman, for defendant in error.
   Judgment affirmed.

Davis, C. J., Shauck, Price. Crew, Summers and Spear, JJ., concur.


text:
    No. 8575.
    Keys et al. v. The Pittsburg & Wheeling Coal Co.
    (Decided February 14, 1905.)
    Error to Circuit Court of Belmont county.

      Mr. C. L. Weems; Mr. A. H. Mitchell and Mr. J. B. Briggs, for plaintiff in error.

      Mr. J. M. Lessick and Mr. N. K. Kennon, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

Shauck, Price, Summers and Spear, JJ., concur.

Davis, C. J., and Crew, J., not sitting.


text:
    No. 8726.
    Capehart v. Vanvleck.
    (Decided February 14, 1905.)
    Error to Circuit Court of G-allia county.

      Mr. H. C. Johnston and Mr. Julius Anderson- for plaintiff in error.

      Mr. G. W. Bird and Mr. E. B. Bavis, for defendant in error.
   Judgment affirmed.

Shauck, Crew and Spear, JJ., concur.


text:
    No. 8736.
    In the Matter of Mericle et al. for Special School District in Jennings Township, Putnam County.
    (Decided February 14, 1905.)
    Error to Circuit Court of Putnam county.

      Messrs. Watts & Moore and Messrs. Bailey & Bailey, for plaintiff in error.

      Mr. H. A. Reeves and Mr. J. F. Lindemann, for defendants in error.
   Judgment affirmed.

Shauck, Crew and Spear, JJ., concur.


text:
    No. 8739.
    Reed v. Reed et al.
    (Decided February 14, 1905.)
    Error to Circuit Court of Miami county.

      Messrs. Gilbert, Shipman & Campbell, for plaintiff in error.

      Mr. J. A. Davy and Mr. A. F. Broomhall, for defendants in error.
   Judgment affirmed.

Shauck, Crew and Spear, JJ., concur.


text:
    No. 8762.
    Gholson, Admr., et al. v. Martin et al.
    (Decided February 14, 1905.)
    Error to Circuit Court of Lawrence county.

      Mr. John Hamilton; Mr. T. D. Shir hey and Mr. G. W. Keye, for plaintiffs in error.

      Mr. A. H. Martin and Mr. J. L. Anderson, for defendants in error.
   .Judgment affirmed.

Davis, C. J., Price and Summers, JJ., concur.


text:
    No. 8764
    Tilton v. The Farmers’ Mutual Relief Association.
    (Decided February 14, 1905.)
    Error to Circuit Court of Wyandot county.

      Mr. T. Reer and Messrs. Carter & Goodrich, for plaintiff in error.

      Messrs. Carey & Parker and Mr. Benj. Meck, for defendant in error.
   Judgment affirmed.

Davis, C. J., Price and Summers, JJ., concur.


text:
    No. 8770.
    Harris et al. v. Buck.
    (Decided February 14, 1905.)
    Error to Circuit Court of Putnam county.

      Mr. G. Fritz, for plaintiffs in error.

      Messrs. Bailey & Bailey, for defendant in error.
   Judgment affirmed.

Davis, C. J., Price and Summers, JJ., concur.


text:
    No. 8774.
    National Biscuit Co. v. Warne et al.
    (Decided February 14, 1905.)
    Error to Circuit Court of Richland county.

      Messrs. Jenner & Weldon, for plaintiff in error.

      Messrs. Donnell & Marriott and Messrs. Douglass & Mengert, for defendants in error.
   Judgment reversed, motion dismissed, and cause remanded.

Davis, C. J., Shauck, Price and Spear, JJ., concur.


text:
    No. 8778.
    Bloor v. Burns.
    (Decided February 14, 1905.)
    Error to Circuit Court of Richland county.

      Messrs. Donnell & Marriott, for plaintiff in error.

      Messrs. Seward & Bricker and Mr. J. C. Burns, for defendant in error.
   Judgment affirmed.

Shauck, Crew and Spear, JJ., concur.


text:
    No. 8782.
    Murphy et al. v. Burns et al.
    (Decided February 14, 1905.)
    Error to Circuit Court of Hocking county.

      Mr. C. W. McCleery, for plaintiffs in error.

      Mr. V. C. Lowry, for defendants in error.
   Judgment affirmed.

Shauck, Crew and Spear, JJ., concur.


text:
    No. 8515.
    The C. C. C. & St. L. Ry. Co. v. The Cincinnati & Indiana Western Railroad.
    (Decided February 21, 1905.)
    .Error to Superior Court of Cincinnati.

      Messrs. Harmon, Colston, Goldsmith & Hoadly, for plaintiff in error.

      Messrs. Peck, Shaffer & Peck, for defendant in error.
   Judgment affirmed.

Price, Crew and Summers, JJ., concur.


author: Judgment affirmed.

text:
    No. 8521.
    House v. House.
    (Decided February 21, 1905.)
    Error to Circuit Court of Butler county.

      Messrs. Andrews & Morey, for plaintiff in error.

      Mr. C. J. Smith and Mr. A. F. Hume, for defendant in error.
   Judgment affirmed.

Davis, C. J., Shauck, Price, Crew, Summers and Spear, JJ., concur.


text:
    No. 8559.
    Adams v. Boyce et al.
    (Decided February 21, 1905.)
    Error to Superior Court of Cincinnati.

      Messrs. O’Hara & Jordan, for plaintiff in error.

      Mr. D. Wulsin; Mr. C. J. Hunt; Mr: C. W. Scott and Messrs. Hieatt & Brown, for defendants in error.
   Judgment affirmed.

Davis, C. J., Shauck and Price, JJ., concur.

0


text:
    No. 8564.
    Maehlman v. Wellman.
    (Decided February 21, 1905.)
    Error to Circuit Court of Mercer county.

      Mr. P. E. Kenney, for plaintiff in error.

      Mr. R. L. Mattingly and Mr. J. W. Loree, for defendant in error
   Judgment affirmed.

Davis, C. J., Price and Summers, JJ., concur.


text:
    No. 8569.
    The National Coal Co. v. Witten.
    (Decided February 21, 1905.)
    Error to Circuit Court of Guernsey county.

      Mr. R. T. Scott; Mr. C. Baird and Mr. E. F. Voris, for plaintiff in error.

      Mr. Fred L. Rosemond, for defendant in error.
   Judgment affirmed.

Shauck, Crew and Spear, JJ., concur.


text:
    No. 8588.
    Moore v. Claypool.
    (Decided February 21, 1905.)
    Error to Circuit Court of Muskingum county.

      Mr. S. M. Winn and Mr. J. C. Bassett, Jr., for plaintiff in error.

      Mr. F. A. Durban and Mr. T. J. McDermott, for defendant in error.
   Judgment affirmed.

Shauck, Crew and Spear, JJ., concur.


text:
    No. 8792.
    Early & Daniel v. The Gilliland Grain Co.
    (Decided February 21, 1905.)
    Error to Circuit Court of Yan Wert county.

      Mr. C. S. Mauk and Mr. H. G. Ritchie, for plaintiff in error.

      Mr. W. H. Dailey, for defendant in error.
   Judgment reversed and remanded to the circuit court on authority of McDonald et al. v. Ketchum, 53 Ohio St., 519.

Davis, C. J., Shauck, Price, Summers and Spear, JJ., concur.


text:
    No. 8802.
    Maire et al. v. Sullivan et al.
    (Decided February 21, 1905.)
    Error to Circuit Court of Allen county.

      Messrs. Hotter, Mackenzie & Weadock, for plaintiffs in error.

      Messrs. Gable & Parmenter, for defendants in error.
   Judgment affirmed.

Shauck, Crew and Spear, JJ., concur.


text:
    No. 8820.
    The Lake Erie & Western Ry. Co. v. Christen.
    (Decided February 21, 1905.)
    Error to Circuit Court of Allen county.

      Mr. J. B. Cochrum; Mr. W. H. Leete and Messrs. Richie & Richie, for plaintiff in error.

      Messrs. Graham & Adgate, for defendant in error.
   Judgment affirmed.

Shauck, Crew and Spear, JJ., concur.


text:
    No. 8829.
    Ward v. Davidson.
    (Decided February 21, 1905.)
    Error to Circuit Court of Gallia county.

      Mr. R. M. Switzer, for plaintiff in error.

      Mr. E. D. Davis, for defendant in error.
   Judgment affirmed.

Davis, C. J., Price and Summers, JJ., concur.


text:
    No. 8946.
    Moran et al. v. State of Ohio.
    (Decided February 21, 1905.)
    Error to Circuit Court of Cuyahoga county.

      Messrs. Hart, Canfield & Croke, for plaintiffs in error.
    • Mr. H. R. Keeler; Mr. N. D. Baker and Mr. W. A. Geier, for defendant in error.
   Judgment affirmed.

Davis, C. J., Shauck, Price, Crew, Summers and Spear, JJ., concur.


text:
    No. 9085.
    Warnock v. State of Ohio.
    (Decided February 21, 1905.)
    Error to Circuit Court of Belmont county.

      Messrs. W. S. Anderson & Son, for plaintiff in error.

      Mr. H. T. Shepherd, for defendant in error.
   Judgment affirmed.

Davis, C. J., Shauck, Price, Summers and Spear, JJ., concur.


text:
    No. 9154.
    Phillips v. Bromelow.
    (Decided February 21, 1905.)
    Error to Circuit Court of Noble county.

      Mr. C. O. Dye and Mr. L. B. Frazier, for plaintiff in error.

      Mr. W. W. Stewart; Mr. G. D. Dugan, and Mr. H. W. Kuntz, for defendant in error.
   Judgment affirmed.

Davis, C. J., Price and Summers, JJ., concur;


text:
    No. 9251.
    State ex rel. Harris v. Bauer, City Auditor.
    (Decided February 21, 1905.)
    In Mandamus.

      Messrs. Bowman & Bowman, for plaintiff in error.

      Mr. O. T. Martin and Mr. F. M. Hagan, for defendant in error.
   Demurrer to petition overruled and peremptory mandamus allowed.

Davis, C. J., Shauck, Price, Crew and Summers, JJ., concur.


text:
    No. 8758.
    American Steel Hoop Co. v. Stotler et al.
    (Decided February 28, 1905.)
    Error to Circuit Court of Trumbull county.

      Messrs. Hine & Kennedy, for plaintiff in error.

      Mr. A. W. Jones and Messrs. Arrel, McVey & Tayler, for defendants in error.
   Judgment affirmed.

Shauck, Crew and Spear, JJ., concur.


text:
    No. 8799.
    Commissioners of Perry County v. State ex rel. Garrison.
    (Decided February 28, 1905.)
    Error to Circuit Court of Perry county.

      Mr. J. E. Powell and Mr. H. B. Cochran, for plaintiffs in error.

      Mr. W. E. Finch and Messrs. Donahue & Spencer for defendant in error.
   Judgment affirmed.

Davis, C. J., Price, Crew and Spear, JJ., concur.

Shauck, J., dissents.


text:
    No. 8805.
    Crawford v. Madigan, Director of Accounts, et al.
    (Decided February 28, 1905.)
    Error to Circuit Court of Cuyahoga county.

      Mr. J. G. White and Mr. S. C. Blake, for plaintiff in error.

      Messrs. Baker, Estep, Adams, Payer & Carey, for defendants in error.
   Judgment affirmed.

Davis, C. J., Price, Crew, Summers and Spear, JJ., concur.


text:
    No. 8807.
    Dunlap et al., Partners, etc. v. The Sandusky Lumber & Box Company.
    (Decided February 28, 1905.)
    Error to Circuit Court of Pickaway county.

      Mr. Milt Morris and Mr. Clarence Curtain, for plaintiffs in error.

      Messrs. Abernethy S Folsom, for defendant in error.
   Judgment affirmed.

Davis, C. J., Price, Summers and Spear, JJ., concur.


text:
    No. 8810.
    Erie Railroad Co. v. Greer.
    (Decided February 28, 1905.)
    Error to Circuit Court of Portage county.

      Messrs. Cushing & Clarke and Mr. I. T. Siddall, for plaintiff in error.

      Mr. C. B. Neioton and Mr. A. 8. Cole, for defendant in error.
   Judgment affirmed.

Davis, C. J., Shauck, Price, Crew, Summers and Spear, JJ., concur.


text:
    No. 8811.
    Bettridge v. The City of East Liverpool.
    (Decided February 28, 1905.)
    Error to Circuit Court of Columbiana county.

      Mr. W. K. Gaston and Mr. W. F. Lones, for plaintiff in error.

      Messrs. McGarry & McGarry and Mr. G. E. Davidson, for defendant in error.
   Judgment affirmed.

Davis, C. J., Shauck, Price, Crew and Summers, JJ., concur.


text:
    No. 8582.
    Jones v. Willis, Admr.
    (Decided March 7, 1905.)
    Error to Circuit Court of Fayette county. ■

      Mr. Humphrey Jones, for plaintiff in error.

      Messrs. Harper & Harper, for defendant in error.
   Judgment affirmed.

Shauck, Crew and Spear,,JJ., concur.


text:
    No. 8547.
    Brigel v. The Jackson Brewing Co. et al.
    (Decided March 7, 1905.)
    Error to Circuit Court of Hamilton county.

      Mr. W. B. Stier and Messrs. Bromwell & Bruce, for plaintiff in error.

      Mr. Lawrence Maxwell, Jr., for defendants in error.
   Judgment affirmed.'

Davis, C. J., Shauck, Price, Crew, Summers and Spear, JJ., concur.


text:
    No. 8548.
    Brigel v. Bobe, Assignee.
    (Decided March 7, 1905.)
    Error to Circuit Court of Hamilton county.

      Mr. W. B. Stier and Messrs. Bromwell & Bruce, for plaintiff in error.

      Mr. Lawrence Maxwell, Jr., for defendant in error.
   Judgment affirmed.

Davis, C. J., Shauck, Price, Crew, Summers and Spear, JJ., concur.


text:
    No. 8596.
    Halle et al. v. District Grand Lodge No. 2, I. O. B. B.
    (Decided March 7, 1905.)
    Error to Circuit Court of Cuyahoga county.

      Mr. S. A. Grossner and Mr. H. Preusser, for plaintiffs in error.

      Messrs. Horr & Leiventhal and Mr. Victor Abraham, for defendant in error.
   Judgment affirmed.

Shauck, Summers and Spear, JJ., concur.


text:
    No. 8812.
    Corbley, Admx. v. The C. C. C. & St. L. Ry. Co.
    (Decided March 7, 1905.)
    Error to Circuit Court of Cuyahoga county.

      Mr. I. E. Hershey and Mr. C. E. Pennewell, for plaintiff in error.

      Mr. E. A. Foote, for defendant in error.
   Judgment affirmed.

Davis, C. J., Price, Summers and Spear, JJ., concur.


text:
    No. 8816.
    The Crown Fire Clay Co. v. Rosenberry.
    (Decided March 7, 1905.)
    Error to Circuit Court of Tuscarawas county.

      Messrs. Wilkin & Wilkin, for plaintiff in error.

      Messrs. Bowers & Buchanan, for defendant in error.
   Judgment affirmed.

Davis, C. J., Shauck, Price, Summers and Spear, JJ., concur.


text:
    No. 8824.
    The Cincinnati, Milford & Loveland Traction Co. v. Felix et al.
    (Decided March 7, 1905.)
    Error to Circuit Court of Hamilton county.

      Mr. Chas. W. Baker, for plaintiff in error.

      Mr. Jolvn Nichols; Mr. O. B. Jones and Messrs. Ampt, Ireton, Collins é Schoenle, for defendants in error.
   Judgment affirmed on authority of Detroit Southern Railroad Co. v. Commissioners, 71 Ohio St., 454.

Davis, C. J., Shauck, Price, Summers and Spear, JJ., concur.


text:
    No. 8830.
    Gordon, Admr. v. Maher, Admr., et al..
    (Decided March 7, 1905.)
    Error to Circuit Court of Darke county.

      Messrs. Anderson, Bowman S Anderson; Mr. D. P. Irwin; Mr. E. Devor and Mr. II. 8. Friz ell, for plaintiff in error.

      Messrs. Elliott & Maher and Mr. O. B. KricJcenberger, for defendants in error.
   Judgment affirmed.

Davis, C. J., Price and Summers, JJ., concur.


text:
    No. 8831.
    Dennis v. The Stranahan Bros. Catering Co.
    (Decided March 7, 1905.)
    Error to Circuit Court of Cuyahoga county.

      Mr. C. F. Morgan, for plaintiff in error.

      Mr. J. F. Wilson, for defendant in error.
   Judgment affirmed.

Shauck, Crew and Spear, JJ., concur.


text:
    No. 8832.
    Campbell, Admr. v. The Steubenville, Mingo & Ohio Valley Traction Co.
    (Decided March 7, 1905.)
    Error to Circuit Court of Jefferson county.

      Mr. P. P. Lewis, for plaintiff in error.

      Mr. E. E. Erskine, for defendant in error.
   Judgment affirmed.

Davis, C. J., Shauck, Price, Summers and Spear, JJ., concur.


text:
    No. 8835.
    Enos et al. v. Wolfe et al.
    (Decided March 7, 1905.)
    Error to Circuit Court of Gallia county.

      Mr. A. L. Roadarmour, for plaintiffs in error.

      Mr. E. D. Davis; Mr. G. W. White; Mr. H. C. Johnson; Mr. W. R. White, Jr., and Mr. F. E. Cherrington, for defendants in error.
   Judgment affirmed.

Davis, C. J., Shauck, Price, Summers and Spear, JJ., concur.


text:
    No. 8862.
    Flandermeyer v. Fishel et al.
    (Decided March 7, 1905.)
    Error to Circuit Court of Cuyahoga county.

      Mr. A. EL. Martin and Mr. W. C. Ong, for plaintiff in error.

      Messrs. Hart, Canfield & Groke, for defendants in error.
   Judgment affirmed.

Shauck, Crew and Spear, JJ., concur.


text:
    No. 8873.
    The American Insurance Union v. Speidel.
    (Decided March 7, 1905.)
    Error to Circuit Court of Hancock county.

      Messrs. Nash, Lents, Addison é Fritter, for plaintiff in error.

      Messrs. McGonica & Dwiggins and Messrs. Franks & Franks, for defendant in error.
   Judgment affirmed.

Davis, C. J., Price, Summers and Spear, JJ., concur.


text:
    No. 8877.
    Belledin et al v. Wetterer et al.
    (Decided March 7, 1905.)
    Error to Circuit Court of Hamilton county.

      Mr. Jolm J. Gasser, for plaintiffs in error.

      Mr. J. C. Realy and Mr. F. J. Dorger, for defendants in error.
   Judgment affirmed.

Davis, C. J., Price and Summers, JJ., concur.


text:
    No. 8878.
    The City of Troy v. The C. C. C. & St. L. Ry. Co.
    (Decided March 7, 1905.)
    Error to Circuit Court of Miami county.

      Mr. F. C. Goodrich and Mr. R. J. Smith, for plaintiff in error.

      Mr. J. T. Dye and Messrs. Gilbert, Shipman & Campbell, for defendant in error.
   Judgment affirmed. .

Shauck, Crew and Spear, JJ., concur.


text:
    No. 8887.
    The Cincinnati, Hamilton & Dayton Ry. Co. v. The Troy Wagon Works Co.
    (Decided March 7, 1905.)
    Error to’ Circuit Court of Miami county.

      Mr. R. D. Marshall; Mr. A. F. Broomhall and Mt. A. McL. Marshall, for plaintiff in error.

      Messrs. Gilbert, Shipman & Campbell, for defendant in error.
   Judgment affirmed.

Shauck, Crew and Spear, JJ., concur.


text:
    No. 8893.
    The Village of Newcomerstown v. Duff.
    (Decided March 7, 1905.)
    Error to Circuit Court of Tuscarawas county.

      Messrs. Lindsay & Murphy, for plaintiff in error.

      Messrs. Wilkin & Wilkin, for defendant in error.
   Judgment affirmed.

Davis, C. J., Price, Summers and Spear, JJ., concur.


text:
    No. 8924
    Douglass v. Nagle.
    (Decided March 7, 1905.)
    Error to Circuit Court of Butler county.

      Mr. E. E. Williams and Messrs. Andrews $ Harlan, for plaintiff in error.

      Mr. W. O. Campbell and Mr. A. F. Hume, for defendant in error.
   Judgment modified.

Davis, C. J., Price, Summers and Spear, JJ.y concur.


text:
    No. 8932.
    Lewis, Auditor, v. State ex rel. Smith.
    (Decided March 1, 1905.)
    Error to Circuit Court of Hamilton county.

      Messrs. Ampt, Ireton, Collins & Schoenle, for plaintiff in error.

      Mr. Stephen Coles and Mr. F. T. Cahill, for defendant in error.
   Judgment reversed and petition dismissed because section 2907a, Eevised Statutes, is unconstitutional.

Davis, C. J., Shauck, Price, Crew, Summers and Spear, JJ., concur.


text:
    No. 9019.
    The Cincinnati, Hamilton & Dayton Ry. Co. v. Doolin, Admx.
    (Decided March 7, 1905.)
    Error to Circuit Court of Allen county.

      Mr. R. D. Marshall; Mr. I. R. Longsworth and Mr. A. McL. Marshall, for plaintiff in error.

      Messrs. Cable & Parmenter, for defendant in error.
   Judgment reversed. Grounds stated in journal entry.

Davis, C. J., Shauck, Summers and Spear, JJ., concur.


text:
    No. 9061.
    The Wheeling & Lake Erie R. R. Co. v. Suhrwiar.
    (Decided March 7, 1905.)
    Error to Circuit Court of Lucas county.

      Messrs. Seiders & Monnette, for plaintiff in error.

      Messrs. Seney & Johnson, for defendant in error.
   Judgment affirmed.

Davis, C. J., Shauck, Price, Crew, Summers and Spear, JJ., concur.


text:
    No. 9306.
    The State of Ohio v. Munday.
    (Decided March 7, 1905.)
    Error to Circuit Court of Lucas county.

      Mr. W. G. Ulery and Mr. J. S. Martin, for plaintiff in error.

      Mr. J. R. W. Cooper, for defendant in error.
   Judgment affirmed.

Davis, C. J., Shauck, Price, Crew and Spear JJ. concur.


text:
    No. 8570.
    Nace v. Beggs.
    (Decided March 14, 1905.)
    Error to Circuit Court of Franklin county.

      Mr. J. T. Holmes; Mr. F. A. Davis and Mr. J. H. Collins, for plaintiff in error.

      Mr. T. J. Duncan and Messrs. Nash, Lentz, Addison & Fritter, for defendant in error.
   Judgment affirmed.

Si-iauck, Price and Spear, JJ., concur.


text:
    No. 8581.
    Kirk et al., Exrs. v. White.
    (Decided March 14, 1905.)
    Error to Circuit Court of Knox county.

      Messrs. Kelley & Follett; Messrs. McIntire & McIntire; Messrs. Waight & Moore and Mr. J. W. Warrington, for plaintiffs in error.

      Mr. L. B. Houck; Mr. F. V. Owen and Mr. Robert Ramsey, for defendant in error.
   Judgment affirmed.

Davis, C. J., Shatjck and Summers, JJ., concur.


text:
    No. 8598.
    Shamp v. City of Newark.
    (Decided March 14, 1905.)
    Error to Circuit Court of Licking county.

      Mr. Carl Norpell and Messrs. Kibler & Kibter, for plaintiff in error.

      Mr. P. B. Smythe, for defendant in error.
   Judgment affirmed.

Shauck, Summers and Spear, JJ., concur.


text:
    No. 8625.
    Delaplain et al. v. Jones et al.
    (Decided March 14, 1905.)
    Error to Circuit Court of Darke county.

      Mr. A. A. North; Mr. H. Y. Stubbs; Mr. C. L. Brumbaugh and Mr. J. D. Conner, Jr., for plaintiffs in error.

      Messrs. Anderson, Bowman & Anderson; Messrs. Robeson & Yount and Messrs. Devor & Devor, for defendants in error.
   Judgment affirmed.

Shauck, Crew and Spear JJ., concur.


text:
    No. 8827.
    Lee et al. v. The Northern Ohio Traction & Light Co.
    (Decided March 14, 1905.)
    Error to Circuit Court of Portage county.

      Mr. C. H. Curtiss, for plaintiffs in error.

      Messrs. Rogers, Rowley, Bradley & Rockwell, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

Shauck, Price, Crew and Spear, JJ., concur.


text:
    No. 8836.
    Sharp et al. v. Wilson et al.
    (Decided March 14, 1905.)
    Error to Circuit Court of Slielby county.

      Messrs. Pugh & Pugh and Mr. David Oldham, for plaintiffs in error.

      Messrs. Wicoff, Emmons & Wilson, for defendants in error.
   Judgment affirmed.

Davis, C. J., Price, Crew and Spear, JJ., concur.


text:
    No. 8847.
    Locke v. Locke, Guardian.
    (Decided March 14, 1905.)
    Error to Circuit Court of Lucas county.

      Messrs. Seney & Johnson and Mr. C. Milroy, for plaintiff in error.

      Messrs. Smith & Beckwith, for defendant in error.
   Judgment affirmed.

Davis, C. J., Price, Summers and Spear, JJ., concur.


text:
    No. 8854.
    Smith v. Dysart.
    (Decided March 14, 1905.)
    Error to Circuit Court of Harrison county.

      Mr. W. T. Perry and Mr. R. H. Minteer, for plaintiff in error.

      Mr. D. Cunningham and Mr. D. A. Hollingsworth, for defendant in error.
   Judgment affirmed.

Davis, C. J., Price, Summers and Spear, JJ., concur.


text:
    No. 8856.
    The Trustees of Ruggles Tp., Ashland County, v. Wertman.
    (Decided March 14, 1905.)
    Error to Circuit Court of Ashland county.

      Mr. C. P. Winbigler, for plaintiffs in error.

      Mr. H. A. Mykrantz and Mr. H. L. McGray, for defendant in error.
   Judgment affirmed.

Davis, C. J., Price, Crew, Summers and Spear, JJ., concur.


text:
    No. 8861.
    Hart et al., Partners, v. Strayer et al.
    (Decided March 14, 1905.)
    Error to Circuit Court of Jefferson county.

      Mr. D. A. Hollingsworth, for plaintiffs in error.

      Mr. R. H. Minteer, for defendants in error.
   Judgment affirmed.

Davis, C. J., Price and Spear, JJ., concur.


text:
    No. 8875.
    The Cincinnati, Hamilton & Dayton Railway Co. v. Detrick et al.
    (Decided March 14, 1905.)
    Error to Circuit Court of Miami county.

      Messrs. Marshall, Broomhall & Marshall, for plaintiff in error.

      Mr. E. H. Kerr, for defendants in error.
   Judgment affirmed.

Davis, C. J., Shauck, Price, Crew and Spear, JJ., concur.


text:
    No. 8897.
    Lamprecht Bros. & Co. v. Euclid Avenue National Bank.
    (Decided March 14, 1905.)
    Error to Circuit Court of Cuyahoga county.

      Messrs. Ford, Snyder & Henry, for plaintiffs in error.

      Messrs. Brewer, Cook & McGowan and Messrs. M. B. & H. H. Johnson, for defendant in error.
   Judgment affirmed.

Shauck, Crew and Spear, JJ., concur.


text:
    No. 9042.
    The State of Ohio v. Hammond.
    (Decided March 14, 1905.)
    Exceptions to Common Pleas Court of Ashland county.

      Mr. Eugene Carlin; Mr. W. H. Ellis; Mr. W. E. Weygandt and Mr. J. B. Taylor, for plaintiff in error.

      Mr. H. L. McCray, for defendant in error.
   Exceptions overruled.

Davis, C. J., Shauck, Price, Crew, Summers and Spear, JJ., concur.


text:
    No. 9217.
    Spencer v. State ex rel. Hagelbarger.
    (Decided March 14, 1905.)
    Error to Circuit Court of Summit county.

      Messrs. Young & Wanamaker and Mr. A. J. Rowley, for plaintiff in error.

      Mr. Clyde Berry and Mr. H. M. Hagelbarger, for defendant in error.
   Judgment affirmed.

Davis, C. J., Shauck, Price, Crew and Spear, JJ., concur.


text:
    No. 8639.
    Kefauver v. Batdorf.
    (Decided March 21, 1905.)
    Error to Circuit Court of Clark county.

      Mr. L. F. Young and Mr. D. F. Reinoehl, for plaintiff in error.

      Messrs. Martin & Martin, for defendant in error.
   Judgment affirmed.

Shauck, Crew and Spear, JJ., concur.


text:
    No. 8640.
    Snyder et al. v. The State of Ohio.
    (Decided March 21, 1905.)
    Error to Circuit Court of Mercer county.

      Mr. J. D. Johnson and Mr. W. E. Touvelle, for plaintiffs in error.

      Mr. P. E. Kenney and Mr. J. W. Loree, for defendant in error.
   Judgment affirmed.

Shauck, Crew and Spear, JJ., concur.


text:
    No. 8890.
    Mallow et al. v. Persinger.
    (Decided March 21, 1905.)
    Error to Circuit Court of Payette county.

      Mr. John P. Phillips, for plaintiffs in érror.

      Mr. F. G. Carpenter and Messrs. Post & Reid, for defendant in error.
   Judgment affirmed.

Davis, C. J., Price, Crew and Spear, JJ., concur.


text:
    No. 8894.
    Devore, Admr. v. Howard et al.
    (Decided March 21, 1905.)
    Error to Circuit Court of Brown county.

      Mr. J. R. Moore and Mr. W. D. Young, for plaintiff in error.

      Mr. G. Bambach & Son, for defendants in error.
   Judgment affirmed.

Davis, C. J., Shauck, Price, Crew, Summers and Spear, JJ., concur.


text:
    No. 8908.
    Groot v. Mulholland et al.
    (Decided March 21, 1905.)
    Error to Circuit Court of Cuyahoga county.

      Mr. G. A. Groot and Mr. A. Zehring, for plaintiff in error.

      Mr. Walter C. Ong, for defendants in error.
   Judgment of the circuit court reversed and judgment of the common pleas affirmed.

Davis, C. J., Price, Crew, Summers and Spear, JJ., concur.


text:
    No. 8593.
    The Citizens’ Gas, Light & Coke Co. v. Kirkbride et al.
    (Decided March 28, 1905.)
    Error to Circuit Court of Hancock county.

      Messrs. McConica & Dwiggins; Messrs. Ross & Kinder and Messrs. Ford, Snyder, Henry & McGraw, for plaintiff in error.

      Mr. J. E. Priddy and Messrs. Phelps & David, for defendants in error.
   Judgment reversed. Grounds stated in the journal entry.

Davis, C. J., Shauck, Price, Crew, Summers and Spear, JJ., concur.


text:
    No. 8601.
    Akers v. McCausland Bros.
    (Decided March 28, 1905.)
    Error to Circuit Court of Summit county.

      Messrs. Rogers, Rowley, Bradley & Rockwell, for plaintiff in error.

      Messrs. Wilcox & Grant and Messrs. Parsons & Burch, for defendants in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

Davis, C. J., Shauck, Price, Crew, Summers and Spear, JJ., concur.


text:
    No. 8604.
    The Jackson Knife & Shear Co. v. Hathaway, Admr.
    (Decided March 28, 1905.)
    Error to Circuit Court of Sandusky county.

      Messrs. Bartlett & Wilson, for plaintiff in error.

      Messrs. Love & Culbert, for defendant in error.
   Judgment affirmed.

Davis, C. J., Shauck, Crew, Summers and Spear, JJ., concur.


text:
    No. 8613.
    Kinney et al. v. Campbell et al.
    (Decided March 28, 1905.)
    Error to Circuit Court of Guernsey county.

      Mr. C. L. Weems; Mr. R. T. Scott and Mr. Fred Spriggs, for plaintiffs in error.

      Mr. Fred L. Rosemond, for defendants in error.
   Judgment affirmed.

Davis, C. J., Shauck, Price,‘Crew, Summers and Spear, JJ., concur. t


text:
    No. 8623.
    Groves v. Selsor.
    (Decided March 28, 1905.)
    Error to Circuit Court of Payette county.

      Messrs. Van Deman & Chaffin, for plaintiff in error.

      Mr. Humphrey Jones, for defendant in error.
   Judgment affirmed.

Davis, C. J., Shauck, Price and Crew, JJ., concur.


text:
    No. 8668.
    The Ricard Boiler & Engine Co. v. The City of Toledo et al.
    (Decided March 28, 1905.)
    Error to Circuit Court of Lucas county.

      Messrs. Southard & Southard and Mr. C. F. Watts, for plaintiff in error.

      Mr. U. G. Denman and Mr. C. K. Friedman, for defendants in error.
   Judgment affirmed.

Shauck, Crew and Spear, JJ., concur.


text:
    No. 8676.
    Brundige v. Barrett, Exr.
    (Decided March 28, 1905.)
    Error to Circuit Court of Delaware county.

      Mr. M. G. Bell and Mr. J. E. West, for plaintiff in error.

      Messrs. F. A. & E. S. Owen, for defendant in error.
   Judgment affirmed.

Shauck, Crew and Spear, JJ., concur.


text:
    No. 8884.
    Commissioners of Mercer County v. Southard.
    (Decided March 28, 1905.)
    Error to Circuit Court of Mercer county.

      Mr. J. W. Loree, for plaintiffs in error.

      Mr. J. D. Johnson, for defendant in error.
   Judgment affirmed.

Davis, C. J., Price and Crew, JJ., concur.


text:
    No. 8913.
    The Pittsburg, Cincinnati, Chicago & St. Louis Railway Co. v. Taylor.
    (Decided March 28, 1905.)
    Error to Circuit Court of Tuscarawas county.

      Messrs. Dunbar & Sweeney and Mr. T. D. Healea, for plaintiff in error.

      Mr. T. H. Loller and Messrs. Neely & Patrick, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

Davis, C. J., Shauck, Price, Crew, Summers and Spear, JJ., concur.