text:
    Lentz, Exr., et al. v. Fritter.

      Insurance — Reorganisation of company — Limiting class of beneficiaries — Policy theretofore issued unaffected, when — Rights of holder to change beneficiary — No vested interest by beneficiary —Fraternal beneficiary societies.

    1. The reorganization of an insurance association, under the laws of the state, limiting the class of persons from which a member may select or designate the beneficiary of his policy, does not affect a policy theretofore issued nor change the designation of a beneficiary which was valid when made.
    2. The holder of a policy in such reorganized insurance association may change the beneficiary thereof to conform to the restrictive provisions of an amended statute or constitution and by-laws of the society, and such change may be effected by the concurrent election of the policyholder and the association • to treat the policy as subject to and controlled by such statutes and the new constitution and by-laws of the reorganized association, including a limitation of the benefits of such policy to a specified class of persons.
    3. The beneficiary named in the policy of a fraternal insurance association has no vested interest therein during the life of the policyholder, and the latter may, within the limits prescribed by law and the constitution and by-laws of the association, change his beneficiary at will.
    (No. 14591
    Decided May 18, 1915.)
    Error to the Court of Appeals of Franklin county.
    The-defendant in error, Pocahontas Fritter, filed her petition in the court of common pleas of Franklin county against The American Insurance Union, John J. Lentz, executor of the last will and testament of Lincoln Fritter, deceased, and the brothers and sisters of said decedent. Plaintiff sought to recover upon an insurance certificate issued to said decedent by the said The American Insurance Union in 1894, claiming, as the mother of the decedent, to be the proper beneficiary under such certificate and entitled to receive the sum payable under the terms thereof. She averred that the defendant, The American Insurance Union, paid the amount due on such certificate to the defendant, John J. Lentz, as such executor; that she had made demand upon said John J. Lentz, executor, for the payment to her of said sum of $2,250 received by him upon such certificate, which had been refused, and she sought judgment against the defendants, John J. Lentz, executor, and The American Insurance Union.
    By answer Lentz, executor, admits the receipt of said $2,250 and alleges that it became his duty as such executor to receive said sum for the use and benefit of the estate of said decedent.

      The American Insurance Union by its answer, after admitting that the decedent was a beneficial member and certificate-holder therein and that the terms of said certificate had been fully complied with and proofs of death filed in every way satisfactory, alleges that it was incorporated under the laws of Ohio providing for the incorporation and organization of mutual assessment associations, and was authorized to issue certificates of membership, payable to the estate or administrators or executors of a certificate-holder; that said certificate was payable to the estate, administrators, executors or assigns of said Lincoln Fritter; that plaintiff never made any claim for benefits under said certificate in the manner provided by the constitution and by-laws of the A. I. U.; that the national executive board, on January 16, 1909, decided that the estate of Lincoln Fritter was duly entitled to the benefits under such certificate, and ordered the same paid to John J. Lentz, executor; that plaintiff failed and neglected to appeal from the decision of the board and by reason thereof she has no right to maintain this action.
    Said association alleges further that at the time of the death of Fritter the constitution and by-laws of the A. I. U. provided that in case the officers and tribunals of the A. I. U. failed or refused to allow any claim duly presented, the right accruing to the beneficiary to bring action on such certificate was limited to and must be exercised within the year next following the death of the insured.
    By reply the plaintiff denies that at the time of the issuance of such certificate the A, I. U. was incorporated under the laws of the state governing mutual assessment associations, or that the proceeds of such certificate could be applied to the claims of creditors of decedent’s estate. Plaintiff asserted that said A. I. U. had accepted the provisions known as the fraternal beneficiary act and that money paid upon any such certificate could be paid only to the particular class of persons men: tioned therein; that said A. I. U. had by payment waived the defense of limitation fixed by its constitution and by-laws and asserted in its answer as a defense to plaintiff’s claim.
    In the court of common pleas the trial resulted in a judgment in favor of the plaintiff and against the defendants, John J. Lentz, executor, and The American Insurance Union, and upon a proceeding in error to the court of appeals such judgment was affirmed.

      Mr. James N. Linton and Mr. James M. Hengst, for Lentz, executor.

      Mr. John V. Sees and Mr. J. D. Karns, for The American Insurance Union.

      Mr. Smith W. Bennett, for defendant in error.
   Matthias, J.

The foregoing brief statement of the pleadings sufficiently shows the issues to be determined in this case. The American Insurance Union was organized in 1894 under the provisions of Section 3630, Revised Statutes, now Section 9427, General Code. That and subsequent sections authorized the organization of mutual protective associations,

In 1904 this association, pursuant to an act passed by the legislature of the state, being Section 9462 et seq., General Code, conformed its organization and plan of operation to such act of the legislature regulating fraternal beneficiary societies, orders and associations.

The decedent, Lincoln Fritter, had taken out the certificate of insurance here in question in 1894, such certificate being made payable to his estate. At the time of the reorganization of this association into a fraternal benefit society and for some time theretofore the decedent, Lincoln Fritter, was general counsel of the association, and as such was not only active in its management but particularly in bringing about and perfecting such changes. In his report as general counsel, which was approved and followed by the association, Fritter stated: “At the last session of the Ohio legislature a new act regulating fraternal beneficiary associations and repealing former acts of the general assembly of the state of Ohio, was passed and as a consequence various matters have had to be taken up by the officers of the American Insurance Union with the Ohio insurance department, with a view to bringing our business and our certificates of membership and other affairs into harmony with the rulings of the insurance department and the new laws affecting us as a fraternal beneficiary association.”

Under Section 9467, General Code, being a portion of the fraternal benefit society act referred to by Fritter in his report, the payment of death benefits was limited to the “family, heirs, relatives by blood, marriage or legal adoption, affianced husband or affianced wife, or to a person or persons dependent on the member.”

Such association, apparently in response to the report and recommendation of Fritter as its general' counsel, which it had approved, adopted a new constitution and by-laws, and thereafter the business of such association was conducted in the manner prescribed by the new legislation and the constitution and by-laws adopted in conformance thereto, a portion thereof being as follows:

“This corporation is formed for the purpose of establishing and maintaining a secret society and benevolent order, to be a fraternal beneficiary association, organized and carried on solely for the mutual benefit of its members and their beneficiaries, and not for profit,” and to have the lodge system and ritualistic form of work and representative form of government; and therein and thereby—
“To assist the widows, orphans and dependents of its deceased members.
“To establish and maintain a benefit fund for the payment of stipulated sums of money and benefits to the family, heirs, relatives by blood, marriage or legal adoption, affianced husband or affianced wife of, or to a person or persons dependent on, the member, as the member may direct, in such manner as may be provided hereinafter.
“The money or other benefit, charity, relief or aid to be paid, provided or rendered by this association shall not be liable to attachment by trustee, garnishee, or other process, and shall not be taken, appropriated or applied by any legal or equitable process, or by operation of law, to pay any debt or liability of a certificate-holder or of any beneficiary named in the certificate, or any person who may have rights thereunder.”

Under the mutual protective association act, being Section 9427 et seq., General Code, the estate, executors or administrators of the certificate-holder could be named as beneficiary, as was done in the certificate of Lincoln Fritter here in question. Subsequent to the reorganization the limitation as to the beneficiary made by Section 9467 was observed and followed by the association.

The first question we have for determination is whether the reorganization of this association, in the manner heretofore described, affects certificates of insurance theretofore issued to members in respect to the beneficiary. In other words, whether the act of the association in conforming its plan of operation to the fraternal beneficiary statute effects a change of beneficiary in certificates theretofore issued by the association.

The authorities cited by counsel are somewhat in conflict upon this proposition. "Numerous decisions are cited as the result of the industry and research of counsel, an analysis or classification of which would extend this opinion beyond reasonable bounds. It is deemed sufficient to say that we regard the weight of authority to be to the effect that such change, as we have heretofore indicated, made in the organization and plan of operation by the enactment of statute and the amendment of constitution and by-laws to comply therewith, would not of itself operate to change the beneficiary of a policy or certificate theretofore issued. In this case, as in others, however, may be seen the futility of attempting to fit decisions in other cases to the facts disclosed by' the record in the case before us.

It is quite apparent that Fritter himself had regarded the existing policies' or certificates of insurance affected by the act of the association in reorganizing under the fraternal beneficiary law, and that he not only desired to leave a heritage that would go directly to the beneficiary without the intervention of an executor, but considered that his own certificate was so affected by the change of statute and constitution and by-laws as to have the result so much desired and so earnestly sought. So also, the association, or those then in control or management thereof, regarded the existing policies. Fritter, as shown by the record, was active in directing the management of the company and also in promoting and bringing about its reorganization and transforming its character from that of a mutual protective association, under the old statute, to a fraternal benefit association, under the new plan of operation. No definite or precise form is required to be followed by the holder of such certificate of insurance to effect a change of beneficiary. It is sufficient if he clearly manifest an intention to make such change, and the executive officers then in charge of the association regard such change of beneficiary so consummated. That being done, no matter what its manner or form, the proceeds of such certificate, upon the death of the assured, should be paid to the newly designated beneficiary. Here we find that Fritter chose to treat his certificate as controlled by the new statute and the new constitution and by-laws enacted to conform thereto, and that the association, or those in active charge and management thereof at that time, adopted the same view, and both parties considered that such change was made by a merger of all existing policies into the reorganized fraternal association. It is apparent, therefore, that the parties to this transaction tacitly agreed that the policies or certificates should be controlled by the fraternal beneficiary act and the new constitution and by-laws.

This conclusion is not in anywise out of harmony with the rule we have heretofore stated, that amendments of laws regulating such associations, and changes of constitution and by-laws, are to be construed as operating prospectively and not retroactively. It cannot be claimed, however, that a beneficiary (here the estate) named in such a policy or certificate of such association, has any vested interest therein until the death of the insured, and, hence, in the absence of prohibitory legislation, the beneficiary may be changed at will by the insured, upon a manifestation of his intention and designation of a new beneficiary. A clear manifestation by a holder of such certificate of a desire of such change of beneficiary, and a belief that it has been effected, no matter in what manner or form, coupled with the concurrence therein by the management of the association, accomplished the purpose of making the change as clearly and certainly as it could otherwise be done. It being true that no one else had a vested interest in this certificate, why should any one else be permitted to complain of the manner in which it was made? The courts may properly give a contract such construction as did the parties themselves. 9 Cyc., 588.

. Lincoln Fritter was active and influential in the management of the affairs of The American Insurance Union until 1907. At that time he disappeared and the dues upon his certificate of insurance were paid the association by his brothers and sisters. There is an entire absence of conflict between the next of kin, the brothers and sisters having waived all right to any claim whatever in favor of the mother of Lincoln Fritter, whom the evidence shows had been somewhat dependent upon him' for support. These facts entitle her to recover in this action. It must follow that Lentz, executor, not having been entitled to receive the proceeds of this certificate on behalf of the estate, is to be regarded as a trustee of this fund for and on behalf of the rightful beneficiary.

It is contended by The American Insurance Union that the plaintiff cannot maintain this action against that association because she did not pursue the remedy prescribed by the constitution and bylaws of the order. In view of the admission made by the pleading of the association, that proofs of death were properly made and satisfactorily presented and filed, and the fact that it did make payment of the proceeds of such certificate to Lentz, executor, almost immediately, its defense of failure to appeal is unavailable. Lentz, who is executor, was also president of the A. I. U. On January 16, 1909, the decision was made by the national executive board of the A. I. U., allowing the amount of the policy and awarding it to Lentz, executor, and a week later it was paid. Until after that time the next of kin had no notice of the decision of January 16, and consequently no opportunity to appeal. Such appeal would then have been in vain. There was evidence that Mr. Lentz, as president of the company, had waived formal filing of the claim by Mrs. Fritter and the limitation of one year for bringing the action, and upon these issues of fact the court below found in favor of the plaintiff, and we make no further inquiry into them. The only question as to Lentz, executor, is whether his holding should be treated as for the estate of Lincoln Fritter or this plaintiff. Having concluded that the plaintiff is the rightful beneficiary and entitled to the proceeds, the judgment in that regard should be affirmed. Under the circumstances presented by the record in this case the suggestion seems pertinent that the A. I. U. might very properly have filed an interpleader and thus been discharged from further liability. Both defendants are liable for the proceeds of the policy and interest thereon. Western & Atl. Pipe Lines v. Home Ins. Co., 145 Pa. St., 346, 22 Atl. Rep., 665; Davis et al. v. National Life Ins. Co., 188 Mass., 299, 74 N. E. Rep., 330.

The judgment of the court of appeals, we con-elude, is in all respects right and is, therefore, affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Frankel v. Steman.

      Lessor and lessee — Quiet enjoyment — Breach and measure of damages, jury question — Charge tef jury — Remodeling and obstructing entrance — Alterations damage lessee's business — And lessee vacates at lessor's request — Lessor cannot recover rent, when.

    (No. 14649
    Decided May 18, 1915.)
    Error to the Court of Appeals of Hamilton county.
    The amended petition avers that plaintiff was the lessee from the defendant, for the term of two years and five months, beginning on the 1st day of May, 1907, of two back rooms on the third floor of the building known as Nos. 130 and 132 West Fifth street, in the city of Cincinnati, Ohio. The plaintiff agreed to pay to defendant, as rent for said premises, the sum of $50 per month in advance.
    •The lease contains the following covenant: “It is also agreed that if said lessee shall perform his obligations under this lease, he shall quietly have and enjoy said premises during said term, free from molestation from said lessor.”
    The amended petition further avers that prior to January 8, 1909, the defendant executed and deliver ed to The National Theater Company a lease for the first floor and main part of said premises, in violation of his covenants for quiet enjoyment of the premises leased to him, the plaintiff; that defendant authorized and permitted The National Theater Company, the lessee of the first floor of said building, to change substantially the front and the entrance of said building, leading up to the portion thereof leased to the plaintiff, thereby obstructing the entrance for several months, and permitted the said The National Theater Company to alter the vestibule, where said lessee had the right to place a case of . photographs, and also the place where said lessee had a right to place a case extending over the sidewalk, and he says that, by reason of these alterations and obstructions, his business as a photographer in said premises leased to him was interfered with, obstructed and substantially destroyed, so that he was compelled to vacate the said premises. A copy of the lease is attached to the petition, marked “Exhibit A.”
    The defendant for answer and cross-petition admitted that he executed and delivered to plaintiff the lease described in the petition; that plaintiff was to pay therefor $50 per month in advance, and that said lease further provided that if lessee should perform his obligations under said lease he should quietly have and enjoy said premises during said term, free from molestation from lessor, and, further answering, denied each and every allegation of the petition not expressly admitted.
    The defendant by way of cross-petition averred the execution and delivery of the lease described in the petition, that plaintiff took possession thereunder, that he did not pay the rent for the months of March, April, May, June, July, August and September, 1909, amounting to the sum of $350, for which the defendant asks judgment with interest from October 1 of that year.
    The reply admits that the rent for the months named in cross-petition was not paid, and avers that by reason of the breach by the defendant of the covenant of quiet enjoyment contained in the lease, no rent is due to the defendant for the months named in the cross-petition or for any other time.
    The jury in the trial court found on the issues joined by the pleadings for the plaintiff, and judgment was rendered upon that verdict. This judgment was affirmed by the court of appeals, and error is prosecuted in this court to reverse the judgment of the common pleas court and the judgment of the court of appeals affirming the same.

      Mr. W. A. Hicks and Mr. James R. Jordan, for plaintiff in error.

      Messrs. Horstman & Horstman, for defendant in error.
   By the Court.

In an action for damages for breach of a covenant for quiet possession, the questions of whether there has been such a breach and the amount of damages suffered thereby, are questions for the jury, under proper instructions from the court.

In such action it is not error for the court to charge the jury that the landlord “had a right to remodel, alter and change the building as he saw fit so long as he did not disturb the plaintiff in the quiet and peaceable possession and use of the premises and privileges leased to him, but he had no right to obstruct, interfere with, or take away from the plaintiff in a substantial degree the beneficial. use of the stairway or entrance to the building, or to authorize or to empower any person or corporation to make changes in the stairway and vestibule that necessarily would result in obstruction and interference with and substantial injury to the plaintiff’s business.” And to further charge the jury that if it found “that at the time of the execution of the lease referred to, the entrance and vestibule as then constructed was of value to the plaintiff’s business for purposes of entrance and exit for himself and persons doing business with him. And if you further find that the defendant, or some one authorized by him, radically and permanently altered such entrance and vestibule during the term of such lease, and by" such alterations damaged the plaintiff’s business, as conducted under the lease, then the plaintiff is entitled to recover the amount of damages caused by such alterations to his business during the period of time from the commencement of such alterations to the termination of the lease.”

Nor is it error to charge that “if you find by a preponderance of the evidence as already defined to you that the defendant, or those authorized by him, did in fact interfere with, obstruct the plaintiff in his business and practically take away from him a part of the privileges leased to him, then I charge you that the defendant cannot recover any rent from the time that this condition lasted.” And in such action, where it appears by the undisputed evidence in the case that the defendant asked the plaintiff to move out of the premises before the termination of his lease, and that the plaintiff complied with this request, it is not error for the court to charge the jury that “the defendant is not entitled to rent for that portion of the term remaining after the plaintiff left the premises, for the reason that the plaintiff moved out with his consent.”

The special charges requested in this case were properly refused.

Judgment affirmed.

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


text:
    The Boviard & Seyfang Manufacturing Co. v. Maitland.

      Sales — Breach of warranty — Admission of evidence and charge to jury — Special damages — Defective condition — Remedies of buyer — Section 8449, General Code — Pleading and proof —Warranties—Prior transactions — Limitation of jury charge — Issues supported by evidence.

    (No. 14453
    Decided May 18, 1915.)
    Error to the Court of Appeals of Wayne county.
    The plaintiff in error brought an action against the defendant in error, B. K. Maitland, to recover a balance due on an account for goods and merchandise sold and delivered. The defendant filed an answer and cross-petition, denying that he was indebted on this account and averring that he had through mistake largely overpaid the same, and asked judgment for the amount of this excess payment.
    He further averred that the plaintiff had warranted the quality of certain articles included in the account, to-wit, a boiler, steam engine and two wire cables, purchased at certain specified dates.
    The plaintiff for reply denied the averments of' the answer and cross-petition.
    Upon the trial of the case, it appearing from the evidence of both plaintiff and defendant that they had adjusted the dispute with reference to the steam engine by the return of the first one furnished by plaintiff to defendant and the installation of another one in its place, the court took this cause of action from the jury.
    .The defendant averred that plaintiff had warranted the wire cables to be “new, free from defects, sound and serviceable, and would do the work necessary, and in every way answer the purpose for which they were intended to be used by the defendant, to-wit, the drilling of deep oil and gas wells.”
    In support of this allegation of express warranty, the defendant testified that the seller said to him at the time of the purchase, “If they do not do the work we will make them good with the money or another cable.”
    The defendant also averred in his cross-petition that one of these cables was purchased on the 4th day of August, 1911, and the other one on the 29th day of November, 1911. These dates correspond with these items in the plaintiff’s account. The account further showed that other wire cables were purchased earlier in that year. The evidence of the defendant was directed to the defective condition of a wire cable used in the Roclcey well. This well was drilled in July, 1911, and on the 16th day of July of that year the defendant wrote the plaintiff, advising him that the second wire line that plaintiff had shipped to him at Wooster, Ohio, had broken about eight hundred feet from the bottom.
    There is no conflict in the evidence as to when wire cables were shipped by plaintiff to defendant. The first one was shipped on the 3d day of May, 1911, and the second one on the 1st day of July of that year. There is no averment in the cross-petition as to any express warranty of either of these two cables, or that they were defective in any respect. The allegations of the cross-petition are directed to the cables furnished in August and November. No amendment to this cross-petition was filed and no evidence tendered by the defendant, with reference to these two cables, tending to prove special circumstances showing proximate damages of a greater amount than the difference between the value of these two cables at the time of delivery to the buyer and the value they would have had if they had answered to the warranty. On the contrary, the evidence of this character was all directed to the second line, bought July 1 of that year, which broke in the Rockey well; all of which is conclusively shown by the letter of the defendant, dated July 16, 1911, advising the plaintiff of the breaking of this line, long before the cables complained of in the cross-petition were purchased by the defendant. The trial court excluded this evidence and refused to charge the jury in reference to the special damages claimed by the defendant.
    The jury by special verdict found that there was due to the plaintiff the amount claimed by it upon the account attached to the petition. The jury also found that the boiler was not defective and was worth, at the time of delivery to the plaintiff, the amount he agreed to pay therefor. The jury further found that the wire cables which'had been sold to the defendant for $468.80, were worth, at the time of delivery, $325.
    Judgment was entered for plaintiff upon this verdict for the balance in its favor. The court of appeals reversed this judgment for error in the exclusion of evidence as to special damages and for refusal of the trial court to charge in reference thereto.

      Mr. Frank Taggart, for plaintiff in error.

      Messrs. McClaran & Jones, for defendant in error.
   By the Court.

The jury having specifically found that the boiler described in the defendant’s first cause of action was not defective, any error of the court in refusing to admit evidence as to special damages or in its failure to charge upon that subject, is not material, for the boiler not being defective, the defendant would not be entitled to any damages, special or otherwise.

The plaintiff and defendant having adjusted the dispute touching the defective condition of the steam engine, under the provisions, of paragraph 2 of Section 8449, General Code, the defendant could have no other remedy, and the court properly took this issue from the jury.

An averment in a petition or cross-petition for damages for breach of warranty that the seller warranted wire cables to be “new, free from defects, sound and serviceable, and would do the work necessary, and in every way answer the purpose for which they were intended to be used by the defendant, to-wit, the drilling of deep oil and gas wells,” is not sustained by evidence that the seller said, at the time of the purchase, “If they do not do the work we will make them good with the money or another cable.”

Where, in an action for damages for breach of warranty, the cross-petition avers that certain specific articles, purchased on certain definite dates, were warranted by the seller, evidence offered by the purchaser, tending to prove damages sustained by him by reason of defects in similar articles purchased by him from the same person, partnership or corporation, prior to the time the articles averred in the cross-petition to have been warranted by the seller were purchased, is inadmissible to prove damages sustained by the purchaser by reason of breach of contract of warranty of the specific articles described in the petition.

The trial court is not required to charge the jury upon an issue joined in the pleadings, where no evidence directed to such issue has been offered on the trial of the case. The charge should be directed to the facts in issue, which the evidence tends to establish1 or disprove. (Lewistown Foundry & Machine Co. v. The Hartford Stone Co., ante, 76, approved and followed.)

Judgment of the court of appeals reversed, and that of the common pleas affirmed.

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


author: Newman, J.

text:
    The J. B. Doppes Sons Lumber Co. v. The Cincinnati, New Orleans & Texas Pacific Railway Co.

      Railroads — Switching service determined, how — Sections 8998 and 9000, General Code — Transportation service rendered within terminal limits of city — Reasonable rate may be charged, when.

    1. A switching service, within the meaning of Sections 8998 and 9000, General Code, is one which precedes or follows a transportation service and applies only to a shipment upon which legal freight charges have already been earned or are to be earned.
    2. A transportation service may be rendered within the terminal limits of a city, and where a contract of carriage calls for the movement of a car from a point on one railroad to a point on a connecting road, both of which are within such limits, the railroad companies in their charge for service are not subject to the provisions of Section 9000, General Code, but may charge for such service a rate that is just and reasonable.
    (No. 14721
    Decided May 25, 1915.)

      Error to the Court of Appeals of Hamilton county.
    Plaintiff in error brought an action under Section 9002, General Code, in the court of common pleas of Hamilton county against the defendant in error and The Cleveland, Cincinnati, Chicago & St. Louis Railway'Co. to recover the sum of $150.
    The allegations of the petition in substance are as follows:
    The lumber yards of plaintiff are contiguous to the railroad tracks" of defendant in error and are connected (therewith by sidetrack leading therefrom and to the lumber yards, all of which tracks are within the proper terminal limits of the city of Cincinnati. The tracks of The Cleveland,. Cincinnati, Chicago & St. Louis Railway Co. are connected with the tracks of defendant in error and the distance from plaintiff’s tracks to the general freight house of defendant in error in said city does not exceed five miles.
    On October 2, 1911, plaintiff caused to be transported upon and over the road of The Cleveland, Cincinnati, Chicago & St. Louis Railway Co., from Fernbank, Hamilton county, Ohio, to its siding in the city of Cincinnati, one car of lumber, and requested that the shipment be made to its switch, known as the “Doppes switch, Cincinnati, New Orleans & Texas Pacific Railway,” and both the defendant railroad companies so transported it. Fernbank is within the switching limits of the city of Cincinnati. The Cleveland, Cincinnati, Chicago & St. Louis Railway Co. demanded and received from plaintiff for transporting said car the following amount, viz.: Trackage charge at Fernbank $2, switching from Fernbank to Cincinnati $5, and The Cleveland, Cincinnati, Chicago & St. Louis Railway Co. and defendant in error demanded and received from plaintiff for switching from the tracks of The Cleveland, Cincinnati, Chicago & St. Louis Railway Co. onto and over the tracks of the defendant to plaintiff’s siding the sum of $6.
    The railroad companies are entitled to demand and receive for said switching from the tracks of one onto and over the tracks of the other to the sidetrack of plaintiff the sum of $2 and no more, this sum being the rate fixed by Section 9000, General Code, for such service for that distance, to-wit, not exceeding five miles, and the railroad companies, their officers and agents, violated or permitted to be violated said Section 9000 and demanded, exacted and received of plaintiff the sum of $6 for said service, which sum is $4 in excess of the amount authorized by law therefor.
    Plaintiff in its petition says that it has been aggrieved by said overcharges and by reason thereof it is entitled to recover from the railroad companies the sum of $150, for which amount judgment is asked.
    The railroad companies each filed an answer in which practically all the allegations of the petition are admitted to be true, but there is the averment in each of the answers that the transportation described in the petition was transportation of freight between a local station on the line of The Cleveland, Cincinnati, Chicago & St. Louis Railway Co. and a local station on the line of the defendant in error, that the same was not a switching service, and that the statute mentioned in the petition does not apply.
    Plaintiff and each of the railroad companies filed a motion for judgment on the pleadings in their favor, respectively. The court of common pleas sustained the motion of The Cleveland, Cincinnati, Chicago & St. Louis Railway Co., and that company was dismissed from the case. The motion of defendant in error here was overruled and that of plaintiff in error was sustained, and judgment was rendered in favor of plaintiff in error against the defendant in error in the sum of $150.
    Defendant in error, The Cincinnati, New Orleans & Texas Pacific Railway Co., filed a petition in error in the court of appeals and the judgment of the court pf common pleas was reversed and final judgment was rendered in its favor. Plaintiff in error is here asking for a reversal of the judgment of the court of appeals and an affirmance of that of the court of common pleas.

      Messrs. Dolle, Taylor & O’Donnell, for plaintiff in error.

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

      Mr. Morison R. Waite and Mr. John R. Schindel filed brief for The Cincinnati, Hamilton & Dayton Railway Co., defendant in similar cases pending in lower courts.
   Newman, J.

Section 8998, General Code, requires a railroad company, whose tracks lie contiguous to sidetracks suitable for loading or unloading, to switch the cars of other railroad companies, at the request of such companies or shippers, over and upon the tracks so lying by such sidetracks, for the purpose of unloading freight into or from such sidetracks, without demurrage, for forty-eight hours. Section 9000 fixes the amounts which a railroad company owning such tracks lying contiguous to sidetracks and within the proper terminals of a city shall receive from the company whose cars are so switched, loaded or unloaded, at such sidetracks. For a distance over two and one-half miles and not exceeding five miles the maximum charge that may be made is $2 per car.

Plaintiff in error, claiming to be an aggrieved party within the meaning of Section 9002, predicates its right to recover the amount named in that section upon an alleged violation by defendant in error of the provisions of Section 9000 in charging $6 for what is alleged by it, plaintiff in error, to be a switching service, instead of $2, the maximum amount fixed by law for the switching of a car a distance not exceeding five miles. If the service rendered by defendant in error, as shown by the pleadings, was not a switching service, within the meaning of Section 9000, defendant in error is not liable under the provisions of Section 9002.

The court of common pleas in reaching its conclusion proceeded upon the theory that the transportation of the car of lumber was completed when it reached the terminal limits of The Cleveland, Cincinnati, Chicago & St. Louis Railway Co. But was the court correct in this in view of the express allegations of the petition ? It is alleged that plaintiff caused the car of lumber to be transported over the road of The Cleveland, Cincinnati, Chicago & St. Louis Railway Co. from Fernbank to its siding in the city of Cincinnati, that it requested the shipment to be made to its switch, known as the “Doppes switch, Cincinnati, New Orleans & Texas Pacific Railway,” and that both of the railroad companies so transported it. , It is true plaintiff calls the service rendered by defendant in error a switching service. It is equally true that it is termed transportation service by defendant in error. But the nature and character of the service is to be determined from the facts regardless of the designation given it by the parties.

As we view it, the contract of carriage involved a transportation from Fernbank to Doppes switch, such a transportation as is provided for in Section 8999, which reads: “When the tracks of two companies are so connected, either, when required, shall transport over its road to its destination thereon, any freight offered, in cars in which it is offered, at its local rates per mile as set forth in its freight tariff for the distance most nearly corresponding, and return the cars, with or without freight or. unnecessary delay.”

In this case the destination of the car was Doppes switch, and the fact that Doppes switch and Fernbank, from which the shipment originated, are both within the terminal limits of Cincinnati is immaterial. Mr. Justice McKenna, in Grand Trunk Ry. Co. v. Michigan Rd. Comm., 231 U. S., 457, in commenting on the decision of the United States court of appeals in the same case, uses the following language, which we think is in point here: “And it was remarked that the fact that freight movement begins and ends within the limits of a city does not take from it its character of ‘an actual transportation between two termini/ the other conditions obtaining. We concur in the conclusion of the court.” The United States court of appeals had held that a service does not cease to be a transportation merely because the movement begins and ends within a city, or is only between an intracity junction or teamtrack or sidetrack. 198 Fed. Rep., 1009.

In the present case the total amount charged for the shipment from Fernbank to Doppes switch was $13. As has been said by the interstate commerce commission, it is immaterial to the shipper how the carriers divide the charge provided it is reasonable. Whether or not it is reasonable in the case at hand is a matter with which we are not concerned, as plaintiff does not base its claim upon an excessive freight rate. It is to be presumed, however, that the railroad companies have followed the requirements of Section 512, General Code, and that the rate charged for the transportation of the freight over the connecting lines was reasonable.

In Dixon v. Central of Ga. Ry. Co., 110 Ga., 173, it is held: “A switching or transfer service is one which precedes or follows a transportation service, and applies only to a shipment on which legal freight charges have already been earned, or are to be earned.” We approve and adopt this definition. .

In the Georgia case, the court, in illustrating what would be a switching or transfer service, say that if the shippers had ordered freight over the Central Railway to be shipped to Savannah from Macon, Ga., they would be liable for regular rates for transportation from that point to the railway terminal at Savannah; and the Central Railway Co., in shipping the freight from its depot over the spur-track to the shipper’s place of business, would simply be entitled to the rates fixed for such transfer service. Or, if the shippers desired the Central Railway Co. to transport freight from their place of business in Savannah to Macon, and the Central Railway Co. transported the goods over its spur-track from the shipper’s place of business to its depot, it could only charge additional, for this part of the transportation, simply the switching-service rate.

The court of common pleas did not seem to question the holding of the Georgia court, but was of the opinion that the rule announced there has no application here because of the fact that the transportation in the present case was completed when the car of the plaintiff reached its destination within the terminal limits of The Cleveland, Cincinnati, Chicago & St. Louis Railway Co. But, as we have said, the court was in error in this, for the car did not reach its destination under the contract of carriage until it was delivered at Doppes switch.

The word “switching” is synonymous with “transferring.” We think that a switching service is rendered, within the meaning of Section 9000, when a car is transferred from a sidetrack, over the tracks of a railroad lying contiguous thereto, to the line of the company which is to have what is termed the “line haul,” or from the line of the company which has had the line haul, over the track of the company which delivers the freight, to the siding of the shipper. In such case the railroad company receiving the car from or delivering it to the company having the line haul would be limited in its charge to the amount fixed by statute for switching service.

We have no such case here. According to our view the movement of the car in question from Fernbank to Doppes switch was a transportation service for which a reasonable freight rate could be charged. The movement of the car by defendant in error was not incidental to the shipment as a whole, but was a part of it. Our holding is that the service rendered by the defendant in error was not a switching service, within the meaning of Section 9000, and therefore there could be no violation of its provisions. In view of this holding it is unnecessary to consider the other questions raised by counsel for defendant in error.

Judgment affirmed.

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


author: Wanamaker, J.

text:
    The County of Miami et al. v. The City of Dayton et al. The State, ex rel. Duncan, Prosecuting Attorney, v. The Franklin County Conservancy District.

      Constitutional law — Remedial acts defined, and construed, how— Conservancy act — Section 6828-1 et seq., General Code (104 O. L., 13), constitutional — Error proceedings — Jurisdiction— Section 12247, General Code (103 O. L., 431) — Exercise of police power — Conservancy amendment — Section 36, Article II, Constitution, igi2 — Due process of law — Taxation—Three-tenths mill levy — “Tax" and "assessment" defined — Equal protection of laws — Limitations of home-rule doctrine — Delegation of legislative or judicial power — Emergency measures— Failure to receive two-thirds vote — Valid at expiration of ninety days, when — Emergency character may he challenged, when — Constitutionality of statutes favored.

    1. A statute that provides a rule of practice, a course of procedure or a method of review, is remedial in its nature and should be broadly and liberally construed to accomplish the purposes of its enactment.
    2. Section 12247, General Code, is remedial in nature and is sufficiently broad and comprehensive under Section 6, Article IV of the Constitution of 1912 to include the case at bar.
    3. The conservancy act, as found in volume 104 O. L, 13 et seq., which is entitled “An act to prevent floods, to protect cities, villages, farms and highways from inundation, and to authorize the organization of drainage and conservation districts,” is a valid exercise of the police power, under the inherent sovereign legislative power of the state, and particularly under the conservancy amendment of the Ohio Constitution, known as Article II, Section 36, as adopted September, 1912.

      i. Said act contains abundant provisions which grant not only to the parties to the cause but to anyone who may desire to become á complainant or objector, his “day in court,” and by reason thereof said act does not violate the “due process” clause of the federal constitution. This includes the three-tenths mill levy of the act.

      5. While the letter of the act uses the word “tax” in a general sense, the whole act, its spirit, its subject-matter and its actual operation, taken together, make it manifest that the word “tax” as therein used is special and local and what is known under the laws of Ohio as an “assessment.”
    6. Taking the act by its four corners and its practical operation, it is self-evident that such assessment is to be made with reference to benefits and burdens and not according to any whimsical, arbitrary or unreasonable standards, and by reason thereof it does not violate the provision of' the federal constitution as to “equal protection of the laws.”
    7. Before a court is warranted in declaring a legislative act unconstitutional, it must clearly appear that the statute is obviously repugnant and irreconcilable with some specific provision or provisions of the constitution. If there be a reasonable doubt as to such conflict the statute must be upheld.
    8. The doctrine of home rule does not now, and never did, have any application to the governmental affairs of a state or the governmental affairs of a district within the state created by the state for the exercise'of certain state sovereign powers.
    9. Where a power is gKa.«-legislative, ^Mail-administrative or quasi-judicial, or so mixed in its nature that it may be regarded as a combination of all of them, the legislature may in the first instance characterize such power and confer it either upon an existing agency of the government or an agency especially created for that purpose. There is no delegation of legislative power in the conservancy act violative of any constitutional provision.
    10. An act of the general assembly, purporting to be an emergency act but which failed to receive 'the two-thirds majority in one branch of the general assembly, as required -by the constitution for an emergency act, becomes at the end of the ninety-day referendum period a valid act of the general assembly if otherwise constitutional.
    11. The judgment of the general assembly as to the emergency character of an act under the constitutional amendment of 1912 is not conclusive, but its judgment in that behalf may be challenged in a proper proceeding at any time within the ninety-day period, either as to the constitutional vote or the emergency character of the act.
    (Nos. 14834 and 14829
    Decided June 4, 1915.)

      Error to the Court of Appeals of Montgomery county.
    Quo Warranto.
    The facts are stated in the opinion.

      Messrs. Bowman & Bowman; Mr. A. Jay Miller; Mr. H. B. Emerson; Mr. Horace W. Stafford; Mr. Frank Goodrich, prosecuting attorney of Miami county; Mr. D. F. Mills, prosecuting attorney of Shelby county; Mr. F. G. Long, prosecuting attorney of Logan county; Mr. Frank J. Dorley, city solicitor of Sidney; Mr. G. T. Thomas, city solicitor of Troy; Mr. P. R. Taylor, solicitor of Ft. Loramie; Mr. E. K. Campbell, solicitor of DeGraff; Mr. F. B. McConnell; Mr. A. N. Summers; Mr. George A. Beard; Mr. Dow Aiken and Mr. J. A. Kerr, for plaintiffs in error, the County of Miami et al.

      Messrs. Brown & Frank; Mr. John A. McMahon and Messrs. McGhee, Davis & Boulger, for defendants in error, the City of Dayton et al.

      Mr. Robert P. Duncan, prosecuting attorney, and Mr. William J. Ford, assistant prosecuting attorney, for relator.

      Messrs. Webber, McCoy & Jones, for respondent.
   Wanamaker, J.

We have in this case almost every variety of legal and. constitutional question. Indeed, the record and briefs are so voluminous in the treatment of the issues raised that it will be impossible, outside of a volume, to note and discuss them all. Those meriting serious attention will be noted below.

I. The question as to the jurisdiction of the court of appeals to entertain the proceedings in error from the court of common pleas.

This court has already held in Snyder et al. v. Deeds et al., 91 Ohio St., 407, decided in December, 1914, that “the portion of the sixth section of said [conservancy] act which provides for appeal from an order refusing to establish such district to the court of appeals of said county, upon giving bond as provided therein, is void because repugnant to Section 6, Article IV, of the Constitution.” It is now claimed that by reason of such holding as to “appeal” there is no authority of law, either by statute or constitution, conferring jurisdiction “in error” upon the court of appeals. This court has repeatedly held that proceedings in error are fairly and reasonably included in the term “appellate-jurisdiction,” and it will be therefore necessary to examine the constitution with reference to the appellate jurisdiction conferred therein upon the court of appeals.

Section 6, Article IV of the Constitution of 1912, contains the following language as to the jurisdiction of the courts of appeals:

“The courts of appeals shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procedendo, and appellate jurisdiction in the trial of chancery cases, and, to review, affirm, modify or reverse the judgments of the courts of common pleas, superior courts and other courts of record within the district as may be provided by law.”

That this proceeding in error was to reverse a judgment of the court of common pleas, there can be no doubt. The mere fact that it was constituted of more than one common pleas judge does not alter the fact that it was to all intents and purposes a court of common pleas. The only question to be determined here is whether or not there was any provision “by law” for this proceeding in error.

It seems to be agreed upon both sides that whatever authority has been provided “by law” is by virtue of Section 12247, General Code (103 O. L., 431), which reads as follows:

“A judgment rendered or final order made by a court of common pleas or by the superior court of Cincinnati, or by a judge of either of such courts, may be reversed, vacated or modified, by the court of appeals having jurisdiction in the county wherein the common pleas or superior court is located, for errors appearing on the record.”

A statute undertaking to provide a rule of practice, a course of procedure or a method of review, is in its very nature and essence a remedial statute. It should not be narrowly and technically construed but upon the contrary should receive a broad and liberal construction to effect the purposes of its enactment. The language of the foregoing statute is as broad and comprehensive as language can well be made and clearly covers all judgments, whether predicated on an ordinary civil action, chancery case, special proceeding under a statute or any other judgment for which no special review provision is made by the statute itself.

But it is claimed that in the conservancy act special provision was made by way of “appeal,” and that the appeal having failed, proceedings in error must now fail. True it is that where special provision is made by the statute for appeal or review, and such special provision is conformable to the constitution, such special provision must be followed as against general provisions, but where those special provisions fail because they fail to conform to the constitution, as they have failed in this case, the general provision, if it be sufficiently comprehensive, will then prevail. The court of appeals rightly and lawfully exercised jurisdiction in this cause under said section of the statute and pursuant to the constitution.

II. This conservancy act, as a whole, is challenged as null and void for sundry and divers reasons which may be grouped under two heads:

First. That it failed to have the constitutional majority required for the valid enactment of an emergency law.

Second. That the act is in conflict with various provisions of the constitution of Ohio and the constitution of the United States.

First. No claim is made that at any stage of the passage of this act it failed to receive a majority vote of each branch of the general assembly, sufficient to make it an ordinary law under the old constitution. But it is urged very strenuously that in order to make said act an emergency act, as provided by the constitution, it must clearly and affirmatively appear that the act as a whole received a two-thirds vote upon final passage in both branches of the general assembly and that the special emergency section must also receive a two-thirds majority in each branch of the assembly; that the records in this case unquestionably show that in the house vote upon the concurrence in the senate amendments the bill received only a mere majority vote, and that, therefore, said bill failed as an emergency measure. Evidently the sole purpose of the constitutional requirement of a two-thirds majority in emergency measures was for the purpose of withdrawing such measures from the referendum provisions of the constitution.

It being conceded that this act had a majority vote in both houses and that no attempt was made to invoke the referendum provisions of the constitution thereon, then at the end of the niriety-day period the same became a valid law as enacted. The time within which a referendum might be invoked, as provided by the constitution, had elapsed. The right to have the same referred to the people for judgment had been lost and it was too late thereafter to attack the emergency character of that act, either as to the vote thereon, or otherwise.

Manifestly the legislature’s judgment in that behalf, as shown by the act itself aiid the records touching the same, is not conclusive. The people’s right to a referendum on any act of the legislature may be asserted, in a proper proceeding and at a proper time, notwithstanding the action of the general assembly of Ohio, but it is too late after the expiration of the referendum period provided by the constitution.

Second. Constitutional objections inherent in the act. It is especially urged that the conservancy act takes private property without due process of law; denies the equal protection of the laws; delegates legislative power to the courts; permits the jurisdiction of courts of common pleas to be fixed by the petitions of citizens; that the power of taxation is delegated to directors, in violation of Section 1, Article II of the Constitution; that political subdivisions are created to be governed by directors appointed by the court and not elected by the people; violates various home-rule provisions of the state constitution, and sundry other objections which, so far as they are deemed important, will be noted in the opinion.

Both state and federal courts are uniform in their holding that before a legislative act can be declared unconstitutional, it must be clearly in conflict with some provision of the constitution. It will not do to hold that the act is unconstitutional because it is contrary to a general spirit pervading the constitution, but the conflict must be between the act and some specific provision, either in express words or by clear implication.

Of late many of the courts, and especially the federal courts, have held that the conflict must be “beyond a reasonable doubt,” and all the courts throughout the states and Union hold that where there is a reasonable doubt as to whether or not there is such conflict that doubt must be resolved in favor of the statute and its validity therefore upheld.

In order then that the conservancy statute, or any part thereof, shall be held unconstitutional it must appear that the statute permits something which the constitution prohibits or prohibits something which the constitution permits, and that this conflict must be so clear that it is beyond reasonable doubt.

In construing a constitution we apply the same general rules that we do in statutes, save and except that the terms of a constitution must of necessity be of a more general and omnibus character, and, therefore, in order that the grants of power under the constitution shall be workable, such grants should be favorably and liberally construed so as to effect the public welfare sought by the constitutional grant.

What is permitted by this statute that is prohibited by the constitution, or what is prohibited by the statute that is permitted by the constitution ?

Police power has always been recognized as one of the sovereign attributes of government. It is generally defined as “that inherent sovereignty which it is the right and duty of the government or its agents to exercise whenever public policy in a broad sense demands, for the benefit of society at large, regulations to guard its morals, safety, health, order, or to insure in any respect such economic conditions as an advancing civilization of a highly complex character requires.” 8 Cyc., 863.

The subject of drainage, in order to serve the public health, convenience and welfare, has always been regarded as a legitimate exercise of the police power of government. This power has always been peculiarly recognized as a legislative power, inherent in the lawmaking body, even though there be no express constitutional authority therefor.

An early case, refreshing and illuminating upon • this doctrine generally, is that of Reeves v. Treasurer of Wood County et al., 8 Ohio St., 333, in which a most able opinion is rendered by Judge Brinkerhoff.

But the people of Ohio especially delegated the police powers involved in this case to the legislature, in the following language of the Constitution of Ohio, as found in Article II, Section 36, the part applying reading as follows:

“Laws may also be passed * * * to provide for the conservation of the natural resources of the state, including streams, lakes, submerged and swamp lands and the development and regulation of water power and the formation of drainage and conservation districts.”

This amendment was adopted September 3, 1912, and reads almost like a prophecy of Jeremiah as to the terrible floods that visited different portions of the state in March of the following year.

Whether the legislature proceeded under the general police power vested in government or under the special provision of the constitution, or both, is unimportant. Suffice it to say that it did proceed, to enact a conservancy statute, as found in volume 104 O. L., 13 et seq., which is entitled:

“An act to prevent floods, to protect cities, villages, farms and highways from inundation, and to authorize the organization of drainage and conservation districts.”

It is contended with much vigor and plausibility that the statute is in clear conflict with- the 5th and 14th Amendments of the Federal Constitution, especially that part that denies to any state the right to deprive any person of “life, liberty, or property, without due process of law,” or to deny to any person the “equal protection of the laws.”

The “due process” clause has been much abused and stretched to limits never designed by the constitution-makers. But it must be observed that it -is not the deprivation of property that is prohibited by this amendment, but the deprivation of property •¿without due process of law. Full provision is made at every stage of the conservancy act, from the time of the filing of the petition to create a conservancy district until the last step is taken, for the assertion of any and all rights by any and all parties affected by this act. Every person substantially affected is given a “day in court” from the time of the organization of the district until the proposed improvement is completed. To illustrate:

The petition must set forth —

“First: The proposed name of said district.
“Second: The necessity for the proposed work and that it will be conducive to the public health, safety, convenience or welfare.
“Third: A general description of the purpose of the contemplated improvement, and of the territory to be included in the proposed district. * * * Said territory need not be contiguous, provided it be so situated that the public health, safety, convenience or welfare will be promoted by the organization as a single district of the territory described.
“Fourth: Said petition shall pray for the organization of the district by the name proposed.”

In addition to provision as to the petitioners and all parties of record, special provision is made by Section 6 of the act that “Any owner of real'property in said proposed district who individually may not have signed such a petition and who wishes to object to the organization and incorporation of said district shall, on or before the date set for the cause to be heard, file his objections why such district should not be organized and incorporated,” etc.

The conservancy act providing what the petition must contain, it follows that upon the hearing the court must find the allegations of the petition to be true; that is, “The necessity for the proposed work and that it will be conducive to the public health, safety, convenience or welfare.”

Throughout the entire act ample provision is made for any objector to appear, whether he is a party to the record or not, either before the court at the time of organization, or before the board of directors after the organization, or the board of appraisers, and present his objections, either as to his being within the district, as provided by Section 29, which he may do after the district is created, or as to the amount of assessment upon his lands, or as to any other right that he may believe to have been violated, and have the same heard and determined.

In this view of the case it is difficult to seriously point out where and how there has not been accorded to the private citizen, as well as to the public, every substantial consideration of his rights as recognized by the phrase “due process of law.”.

But it is claimed that he is denied the “equal protection of the laws.” Written constitutions were adopted not as a sword against the public interests, but as a shield to protect the public interests, safeguarding the rights of the humblest citizen as well as the highest, but all the while recognizing that even private property is subservient to the general welfare.

If the “equal protection of the laws” must be determined with mathematical nicety and precision, no public improvement, local, state or national, would be possible. Especially would this be true in drainage improvements and projects. One cannot read this law, however, without being impressed with the fact that the legislature had in mind all the while that the improvement should be constructed and the cost thereof paid with reference to the burdens and benefits of the improvement.

The mischief and burden legislated against was the surplus waterfall. The creation of a conservancy district by the court of common pleas would certainly raise the presumption that all lands included within the district would be benefited, and that the burden and benefit should receive due consideration in the apportionment of the cost of the improvement, whether relating to the preliminary plans, cost of construction or the expense of maintenance.

The court in the establishment of the district might well conclude that in the ordinary and natural course of events an acre of land within the watershed but twenty miles from the improvement would probably cast as big a burden of rainfall as an acre of land immediately adjoining the improvement, and that taking care of this surplus water, acre for acre throughout the district, would be'of substantially equal benefit to the real property of that district.

As evidence that the act contemplates assessments according to benefits, Section 12 requires the directors to prepare a plan for the improvement for which the district was created, and that such plans, data, etc., shall set forth properly “the location and character of the work, and of the property benefited or taken or damaged,” etc.

Again, in Section 27, it is provided that the board of appraisers shall “proceed to appraise the benefits of every kind to all real property within or without the district, which will result from the organization of said district and the execution of the official plan.”

And, again in the same section, “The board of appraisers shall also appraise the benefits and damages, if any, accruing to cities, villages, counties, townships and other public corporations,” etc.

Again, in Section 28, as to lands affected outside of the district, reference is again made to appraising the benefits and damages to such land.

Section 29 and other sections of the act are to the same general effect.

Indeed it is quite evident that an unusual opportunity was taken to express the plan of assessments based on benefits and burdens.

Now the language of the act uses the word “tax,” but the word “tax” is a general term and is used frequently as a general tax, or as a local and special tax, in which latter instance it is more frequently spoken of as an “assessment.” Indeed, it has been repeatedly held that the word “tax” is sufficiently general and comprehensive to include the word “assessment.” The very fact that personal property is excluded from bearing the cost of the improvement and that the word “property” is held to mean by the terms of the act to be real property, forces us to the conclusion that it was the intention of the legislature to provide for the cost of the improvement by way of assessment, as in other drainage cases.

Courts will not limit themselves to the form and name of things. It is their duty to probe deep enough to get at the substance and the essence of the thing by whatever name or brand it may be known. The whole spirit of the law and its provisions in connection with its practical operation unmistakably indicate that the legislature used this word “tax” in its local and special sense. In short, as an assessment.

Section 43 of the act provides that “As soon as any district shall have been organized under this act, and a board of directors shall have been appointed and qualified, such board of directors shall have the power and authority to levy upon the property of the district not to exceed three-tenths of a mill on the assessed valuation thereof as a level rate to be used for the purpose of paying expenses of organization, for surveys and plans, and for other incidental expenses which may be necessary up to the time money is received from the sale of bonds or otherwise.”

We have carefully read and examined the contention in the voluminous briefs that this is a general tax levy, and that, therefore, it violates numerous provisions of the constitution .as to the laying and levying of general taxes. The court of appeals in a very able opinion adopted this view of the case.

Having, however, already found that this is a special and local tax in the nature of an assessment, we approve the reasoning found in the federal case of County of Mobile v. Kimball, 102 U. S., 691. In that case the state of Alabama had provided for the improvement of Mobile harbor and had provided for the payment by a levy upon the property of the county of Mobile. Objection was taken that this was either a local improvement for the city of Mobile alone or else it was a state improvement. In either event the county of Mobile should not be taxed for the cost of the improvement.

Mr. Justice Field, on page 703, uses this language:

“Here the objection urged is that it fastens upon one county the expense of an improvement for the benefit of the whole state. Assuming this to be so, it is not an objection which destroys its validity. When.any public work is authorized, it rests with the legislature, unless restrained by constitutional provisions, to determine in what manner the means to defray its cost shall be raised. It may apportion .the burden ratably among all the counties, or other particular subdivisions of the state, or lay the greater share of the whole upon that county or portion of the state specially and immediately benefited by the expenditure.”

But a case more in point, indeed on practically all fours with the case at bar, is the recent case of Houck v. Little River Drainage District, 248 Mo., 373 (affirmed, 239 U. S., 254). In the Missouri case, as in the case at bar, a corporation was created for the purpose of reclaiming or improving swamp or overflowed lands. The corporation was vested with power and authority to construct and maintain whatever works were necessary to accomplish the object and to raise the funds to pay for the same by assessment on the lands to be benefited thereby.

The Missouri statute contained this provision:

“As soon as any drainage district shall have been organized under order of the circuit court, and a board of supervisors are elected and qualified, such board of supervisors shall have the power and authority to levy upon each acre of land in the district, not to exceed twenty-five cents per acre, as a level rate, to be used for purpose of paying expenses of organization, for topographical and other surveys, for plans of drainage, for expenses of assessing benefits,” etc., “before entering upon the main work of drainage.”

The supreme court of Missouri held that that section was constitutional as against the contention of “due process of law” and “equal protection of the laws” provided by the federal constitution. They also found that it was no violation of the Missouri- constitution, which, so far as the matters are involved, is not unlike the constitution of Ohio. This Missouri case is rich in its reason, and apparently covers the whole doctrine of police power exercisable by the state in its relation to the creation of districts for drainage or conservation purposes.

Special attention is here noted to the language of the supreme court of Missouri touching this statute. The court say, touching the flat rate of twenty-five cents per acre upon all lands within the district for preliminary survey, plans of drainage, etc., before entering upon the main work of drainage:

“The section is constitutional. If it be objected that no judicial finding of benefits is required, it will be answered that the Legislature has seen fit to entrust to the judicial department the establishment and territorial limitation of the benefit district in a proceeding in which the question whether or not each tract included will be benefited is directly involved. Having expressed its will as to the principles which should govern the distribution of these taxes upon the land so found to be benefited the Legislature has left the necessary amount of the assessments to be ascertained by the authorities of the district, as it leaves like questions of municipal taxation to its municipal agencies.”

Again, the court further says-in its syllabus:

“Again, if it be objected that it might be developed by the work, and therefore it must be assumed to have been contemplated by the law, that there will be no resulting increment, which, under the name of benefits, constitutes the only constitutional support for this class of taxation, it will be answered that, when the organization of a drainage district has reached the stage where the tax in question may be levied, the situation is: The Legislature has designed an important public work and has found that its accomplishment will result in such benefit to the lands included in its scope as to justify the assessment of the entire cost as a special tax against them. The power to tax necessarily includes the power to raise the money in such time and manner as is necessary to accomplish the purpose for which the tax is levied.”

The common pleas court having found in this cause that the allegations of the petition are true and having therefore organized the drainage district, it must be presumed that the lands included within such district are benefited so as to justify the assessment as to preliminary plans, surveys, etc., by a flat rate of three-tenths of a mill upon all lands included within such district. No question is seriously made as to the actual cost of any plan hereafter adopted or the expense of its maintenance. The validity of the three-tenths mill levy for preliminary expense is the only question seriously made.' We do not believe that such levy, made under the exercise of the sovereign police power of the state, violates any provision of state or federal constitution.

Again, it is claimed with much force that the conservancy statute undertakes to delegate legislative power. It is not specifically pointed out just what powers are strictly and wholly legislative, but it certainly cannot be seriously contended that the powers vested in the court of common pleas pertaining to the creation of the district are in any strict sense legislative powers.

A hearing is involved, a trial upon certain issues made by the petition and the objections thereto, and certain findings must be made by the court of common pleas in that behalf, all of which are essentially judicial in their nature. But it is claimed that the appointment of the directors and appraisers and their functions are legislative in character and amount to a delegation of legislative power.

It is difficult to see how this is any more a delegation of legislative power than the appointment of receivers and the various orders of court authorizing them to continue a going concern or to sell the same and distribute the proceeds, or to appoint appraisers in any given case, or any of the numerous boards that have heretofore been appointed by courts for the purpose of carrying out the substantial provisions of various statutory proceedings. But suppose that the powers so conferred are g«£m-legislative, it must be conceded they are also gwowi-administrative and quasi-judicial, and in such cases where the twilight zone of distinction prevails it has always been regarded as the right and duty of the legislature to determine the nature of the function exercised and the body that should exercise it.

In this case they have conferred that power upon the court of common pleas. Whether that was wise or not is not important in this case. That should have been addressed to the legislative body that enacted the law.

We are satisfied that there is no constitutional prohibition against it.

Innumerable instances are available in our jurisprudence with reference to public improvements, such as turnpike roads, ditches and the like, where the. legislature has delegated to township trustees, county commissioners or other bodies, authority to lay out and organize districts for the construction of such improvement and for taxing or assessing the lands benefited thereby, and such enactments have been almost uniformly held valid; that is, that they were not a delegation of legislative power as prohibited by the constitution.

Manifestly the legislature itself could not do the work contemplated by this statute. It would be impracticable. The only other alternative would be that the improvement must fail, that the general welfare must suffer because nobody but the legislature could exercise the power.

We find in this act no violation of the constitution in this respect.

Again, it is urged that the conservancy act violates the home-rule provisions of-the constitution.

Suffice it to say that the home-rule provisions of the constitution apply to municipalities, townships, counties and the like and like political subdivisions that existed before we had states and constitutions. The doctrine in nowise applies to the creation of drainage or conservation districts, where the power to be exercised is peculiarly a state power, the sovereign police power. It has always been recognized as peculiarly the function of the states.

The statute provides for the organization of a district that may include any number of municipalities, townships and counties. How then could it be said that any one of these should be vested with the power to administer the law beyond its own jurisdiction and that would be necessary under its home-rule right? It is inconceivable. The home-rule doctrine, so far as it is applicable, is itself conserved by permitting the officers of the district to administer the affairs of the district in the organization thereof, the construction of the improvement and the maintenance thereof.

Many other objections are noted in the numerous briefs, but in the main they are not germane to a judicial inquiry. They should have been addressed to the legislature at the time the statute was pending. This court has nothing to do with the wisdom or unwisdom of the policy involved in the statute. Its duty is ended when it determines the questions as to whether or not any federal or state constitutional provision has been violated, and whether or not the proceedings under the statute have been regular and are agreeable thereto. So far, what has been said has had special reference to what has become known as the “Dayton Conservancy District,” and the judgment of the court of appeals is therefore affirmed.

Judgment affirmed.

The second case, No. 14829, The State, ex rel. Robert P. Duncan, Prosecuting Attorney, v. The Franklin County Conservancy District, was a proceeding in quo warranto instituted in this court, in which substantially the same questions as in No. 14834, the Dayton case, were raised by a demurrer to the amended petition.

The demurrer to the amended petition in that case will therefore be sustained.

Demurrer sustained. '

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

Johnson, Jones and Matthias, JJ., dissent from paragraph 4 of the syllabus.