author: Crew, J.

text:
    Peter v. Parkinson, Treasurer.

      Suit by county treasurer — To enforce collection of personal taxes— County commissioners without authority — To compromise or settle such suit — Section 2859, Revised Statutes.

    Where suit is brought by the county treasurer under favor of Section 2859,' Revised Statutes, — Section 5697 General Code, — to enforce the collection of personal taxes which stand charged upon the duplicate in the name of the person against whom such suit is instituted, the board of county commissioners, is without authority to compromise or settle such suit, or to remit or release, in whole or in part, the taxes sued for.
    (No. 12098 —
    Decided October 25, 1910.)
    Error to the Circuit Court of Holmes county.
    The defendant in error, Charles D. Parkinson, as treasurer of Holmes county, Ohio, filed his petition in the court of common pleas of that county against Emil A. Peter, plaintiff in error herein, alleging that personal taxes to the amount of four thousand eight hundred eighty-three dollars and ninety-five cents stood charged on the tax duplicate of said county against said Emil A. Peter, that said taxes were due and unpaid, and that the defendant, Emil A. Peter, was indebted to plaintiff as treasurer of said county in that amount, and praying for judgment against said Emil A. Peter for said sum of four thousand eight hundred and eighty-three dollars and ninety-five cents with interest thereon from September 16, 1905. To this petition Emil A. Peter filed the following answer: “The defendant for answer herein admits that the said Charles D. Parkinson is the treasurer of said Holmes county, Ohio, and is acting as such, but defendant denies that personal taxes to the amount of $4,883.95 stand charged on the tax duplicate of said county against him, and he-denies that there are any taxes due and unpaid said treasurer or county. Defendant denies that he is indebted to the plaintiff in said sum of $4,883.95, the said alleged amount charged against him, or in any sum whatever, and if any entry or charge exists on the records as alleged the same is without authority or knowledge of the auditor of said county and were not duly levied, and defendant denies that said sum or any sum whatever is charged against him on said duplicate as taxes and penalty. And defendant denies each and every allegation in the petition contained except such as are herein specifically admitted to be true. Wherefore, defendant prays that this action be dismissed at plaintiff’s costs.” To this answer' Charles D. Parkinson, plaintiff below, filed the following reply: “The plaintiff for reply to the answer of the defendant, denies each and every allegation'thereof, except such as constitute admission of facts set forth in the petition. On February 19, 1908, the cause being then pending in the court of common pleas, S. D. Anderson and P. M. Deetz, two of the commissioners of Holmes county, together with the defendant in said action, Emil A. Peter, appeared in open court, and S. D. Anderson on behalf of the county commissioners stated to the court that the board of county commissioners had settled said cause with the defendant, Emil A. Peter, for one thousand dollars and the costs of the action; neither the plaintiff, Charles D. Parkinson, nor his attorney being then present. On February 24, 1908, the plaintiff, - Charles D. Parkinson, treasurer, with S. D. Anderson, P. M. Deetz and William Ploerger, the three commissioners of Piolines county, and the defendant, Emil A. Peter, all appeared in open court and said Charles D. Parkinson, treasurer, objected and protested against the settlement of said action as theretofore made by said commissioners and the defendant, Emil A. Peter.” We learn from the bill of exceptions that the foregoing was all the evidence offered by either party on the trial of the case. Thereafter, to-wit: on March 9, 1908, the court of common pleas approved and confirmed the settlement made and entered into be-' tween said commissioners and the defendant in said case, Emil A. Peter, and thereupon rendered judgment against said Emil A. Peter for said sum of one thousand dollars, and for costs, and further ordered, adjudged and decreed that upon final payment of said one thousand dollars and costs of suit, the said plaintiff, Charles D. Parkinson, as treasurer, be perpetually enjoined from collecting or attempting to collect from said Emil A. Peter, by suit or otherwise, any further sum for taxes alleged to be due from him. The plaintiff below, Charles D. Parkinson, treasurer, filed his motion asking that said judgment be set aside and for a new trial. This motion was overruled by the court of common pleas and exceptions were duly noted. Thereafter Charles D. Parkinson, as treasurer, filed his petition in error in the circuit court of Holmes county where the judgment of the court of common pleas was reversed, for the reason, as stated by the circuit court, “that the judgment of the court of common pleas was wholly without authority and contrary to the law and because the commissioners of Holmes county, Ohio, had no authority to settle this said cause then pending in the court of common pleas of said county,” and the circuit court remanded the cause to the court of common pleas for a new trial. Thereupon error was prosecuted to the supreme court, and we are now asked to reverse this judgment of the circuit court and to affirm the judgment of the court of common pleas.

      Mr. W. S. Hanna, for plaintiff in error..
    Plaintiff in error contends that the words “any debt, etc.” are not used in this section’of the statute in a restricted sense, but that they include all obligations ol the taxpayer and citizen, whether arising upon contract or by operation of law, to pay money into the county treasury, that is due and unpaid, for the reciprocal right of governmental protection.
    Past due or delinquent taxes, having been regularly levied by and through the assessing officers, have the force and effect of a judgment, and the duplicate in the hands of the treasurer containing such taxes, has the force and effect of an execution, and he may distrain any goods and chattels of the person found in the county for their payment. Section 1095, Revised Statutes; Bank v. Smith, 7 Ohio St., 42; Stone v. Viele, 38 Ohio St., 317.
    It appears, therefore, that by statute and decisions of our courts that past due or delinquent taxes are considered as a debt, and also as having the force and effect of a judgment, and upon this proposition we contend that the board of commissioners acted wholly within the scope of their authority.
    Again, could the board of commissioners, not being a party to the cause, lawfully compound for or release said claim? The treasurer is a nominal party only; the claim is due the county; and the commissioners are the financial agents of the county. Shanklin v. Commissioners 21 Ohio St., 575.
    There is no statutory power given the treasurer to settle, adjust, or compound any claim, but by Section 855, Revised Statutes, the commissioners have plenary power “to compound for, or release in whole or in part, any debt, judgment, fine, etc.,” even though they are not parties. In criminal cases the commissioners are not parties, yet by Section 6802, Revised Statutes, the fines collected in such' cases are to be turned into the county treasury to the credit of the general fund, and the circuit court, in the case of In re McAdams, 21 C. C., 450, in construing these two sections, hold that the commissioners under said first named section have power to compound for or release fines. If this principle obtains in criminal cases where the prosecuting attorney is made the collecting officer, why should it not apply to the case at bar when the treasurer is the collecting officer?
    It is well settled that where a public board or officer has general authority to collect a debt or claim, that general authority carries with it the power to settle or compromise as indicated in Printing Co. v. State, 68 Ohio St., 370, and referred to in the brief of defendant in error.
    But where a public board or officer is specially authorized to do a particular thing, that board or officer is limited to the authority granted, and the defendant in error, being limited by Section 2859, Revised Statutes, to a special thing, to-wit: to enforce the collection of taxes, not paid within the time prescribed by law, by a civil action in the name of the treasurer, is granted no power to settle or compromise, and no such power is implied. Mechem on Agency, Section 285.

      Mr. David T. Simpson, prosecuting attorney; Mr. C. I. Fisher and Mr. W. Stilwell, for defendant in error.

      Under the head of argument counsel for plaintiff in error repeats another “sole reason” for the judgment of the circuit court, to-wit: “That a tax in Ohio was not considered a debt,” and that Section 855, Revised Statutes, “did not apply to taxes.”
    There is nothing in Section 1095, Revised Statutes, giving it “the force and effect of a judgment,” as stated by counsel. Though the power of distraint exists, that has not the elements of a final judgment, for all remedies to stop proceedings by distraint are open to the taxpayer.
    Counsel say: “And the commissioners are the financial agents of the county,” assuming that as such, they not only may act' in every matter, whether it pertains to business of the county solely or to business in which four political divisions are more interested than the county, and also making the claim, regardless of the law specially vesting the power to act, in some other officer. To the doctrine claimed counsel cite Shanklin v. Commissioners, 21 Ohio St., 575.
    On error to this court in. that, case the question of power of the commissioners to act, arose.
    The court sustained their power, but in speaking of their power as to having control of its “financial, interests,” the language used by the .court, on page 583, “the board * * * is clothed with the authority to do whatever the corporate or political entity, the county, might, if capable of rational action, except in respect to matters the cognizance of which is exclusively vested in some other officer or person.”
    That the commissioners may authorize the treasurer to incur expenses by employing collectors of taxes under Section 2858, Revised Statutes, in no way militates against the exclusive power of the treasurer to maintain and control an action for taxes. The only necessary connection the commissioners have with collection by employing collectors is because of their payment out of the treasury which can only be by order of the commissioners.
    It is not claimed by any one in this case that a tax is either a fine or amercement, but counsel for plaintiff in error contends that a tax is a debt. Let us see what a debt is': Anderson’s Dictionary of Law, 315, defines “debt;” page 576, defines “judgment.”
    This brings us to the meaning of the word “tax.” Anderson’s Dictionary of Law, 1006, defines “tax.” United States v. Railroad Co., 17 Wall., 326; Loan Assn. v. Topeka, 20 Wall., 664; County of Mobile v. Kimball, 102 U. S., 703; Meriwether v. Garrett, 102 U. S., 513; Lane County v. Oregon 7 Wall., 80.
    We therefore claim, from the foregoing authorities, that a tax is not a debt, neither is it a judgment, and therefore, the commissioners had no express authority by virtue of Section 855, Revised Statutes, to settle this case because the commissioners constitute a statutory body, with no powers except those specially devolved on them by statute. They can exercise no powers except those expressly given them by statute, and the powers given them by statute are strictly construed. Commissioners v. Mighels, 7 Ohio St., 109; Treadwell v. Commissioners, 11 Ohio St., 190; Jones v. Commissioners, 57 Ohio St., 189; Finch v. Board, 30 Ohio St., 37.
    Counsel for defendant in error further cite and comment upon the following authorities: State v. Wirick, 81 Ohio St., 343; Commissioners v. Andrews, 18 Ohio St., 64; Commissioners v. Holcomb, 7 Ohio (pt. 1), 232; Swan & Critchfield, page 344.
   Crew, J.

The defendant in error, Charles D. Parkinson, as treasurer of Holmes county, Ohio, commenced a civil action in the court of common pleas of said Piolines county against the plaintiff in error, Emil A. Peter,, to enforce the collection of certain unpaid personal taxes which then stood charged upon the tax duplicate of said county against the said Emil A. Peter. The suit was brought under favor of Section 2859, Bates’ Revised Statutes (Section 5697, General Code), which section provides as follows: “When any personal taxes, heretofore or herfeafter levied, shall stand charged against any person, and the same' shall not be paid within the time prescribed by law for the payment of such taxes, the treasurer of such county, in addition to any other remedy provided by law for the collection of such personal taxes, is hereby specially authorized and empowered to enforce the collection by a civil action in the name of the treasurer of such county against such person for the recovery of such unpaid taxes; and it shall be sufficient, having made proper parties to the suit, for such treasurer to allege in his bill of particulars or petition that the said taxes stand charged upon the said duplicate of said county against such person, that the same are due and unpaid, and that such person is indebted in the amount appearing to be due on said duplicate, and such treasurer shall not be required to set forth in his petition any other or further special matter relating thereto, and said tax duplicate shall be received as prima facie evidence on the trial of said suit of the amount and validity of such taxes appearing due and unpaid thereon, and of the non-payment of the same, without setting forth-in his bill of particulars or petition any other or further special matter relating thereto; and if, on the trial of the action, it shall be found that such person is so indebted, judgment shall be rendered in favor of such treasurer so prosecuting such action as in other cases-; and the judgment debtor shall not be. entitled to the benefit of the laws for stay of execution or exemption of homestead, or any other property, from levy or sale on execution in the enforcement of any such judgment.” This statute in express terms confers upon the county treasurer, in addition to any other remedy providéd by law, authority to enforce the collection of unpaid personal taxes by civil action against the person in whose name such taxes stand charged upon the duplicate, and the legislature has not by statute, or in any wise, delegated to or conferred upon any other officer, board or person the right to so enforce or collect the same, the right of the treasurer in this behalf -is therefore exclusive. The treasurer then having the sole and exclusive right to bring such action, and it being his duty to bring it, by what authority did the board of county commissioners intervene and compromise and settle said cause without the treasurer’s consent and against his protest? It' is claimed by counsel for plaintiff in error that' authority to make such settlement was and is conferred upon the board of commissioners by Section 855, Bates’ Revised Statutes (Section 2416, General Code), which section provides as follows: “The board shall have power to compound for or' release, in whole or in part, any debt, judgment, fine or amercement due to the county, and for the use thereof, except in case where it, or either of' its members, is personally interested; and when the commissioners compound for or release, in whole or in part, any debt, judgment, fine, or amercement, they shall enter upon their journal a statement of the facts in the case, and the reasons that governed them, in making such release or composition.” That taxes are not embraced in either of the descriptive terms “fine” or “amercement” employed in the above statute is at once obvious, and is "admitted, and we think it equally clear that although the assessment of the tax and its entry or charge upon the duplicate, may, for the purposes of statutory collection, as definitely and conclusively establish the right of the treasurer to demand such tax as would a judgment,yet such assessment and charge do not in a technical, or in any proper sense, constitute a' judgment. A judgment is the judicial determination or sentence of a court rendered in a cause within its jurisdiction; and such is the common acceptation and meaning of the term, and it is in this sense, we think, and in this sense only, that the word judgment is used in the foregoing section. In the further consideration of this statute it remains then only to inquire whether or not within its meaning and intent a tax may be considered as a debt, and this also we think must be answered in the negative. In City of Camden v. Allen, 2 Dutcher’s Reports (New Jersey), 398, Chief Justice Green says: “A tax, in its essential characteristics, is not a debt, nor in the nature of a debt. A tax is an impost levied by authority of government, upon its citizens or subjects, for the support of the state. It is not founded on contract or agreement. It operates in invitum. Peirce v. City of Boston, 3 Metc., 520. A debt is a sum of money due by certain and express agreement. It originates in, and is founded upon contract express or implied.” In Perry v. Washburn, 20 Cal., 318, Field, C. J., in discussing the provision of the act of congress making United States notes “a legal tender in payment of all debts public and private,” says: “Taxes are not debts within the meaning of this provision. A debt is a sum of money due by contract, express or implied. A tax is a charge upon persons or property to raise money for public purposes. It is not founded upon contract; it does not establish the relation of debtor and creditor between the taxpayer and state; it does not draw interest; it is not the subject of attachment; and it is not liable to set-off. It owes its existence to the action of the legislative power, and does not depend for its validity or enforcement upon the individual assent of the taxpayer. It operates in invitum. If authority for the distinction is required, it will be found in the cases of City of Camden v. Allen, (2 Dutcher’s New Jersey R., 398); Peirce v. City of Boston, (3 Met, 520); and Shaw v. Peckett, (26 Vt., 482).” In Anderson’s Dictionary of Law a tax is defined to be: “A charge, a pecuniary burden, for the support of government. A charge or burden for which the state may make requisition in a prescribed mode. A tax is not a ‘debt,’ that is, an obligation for the payment of money founded upon contract. It is an impost levied for the support of the government, or for some special purpose authorized by it. The consent of the taxpayer is not necessary to its enforcement: it operates in invitum. The form of procedure to collect, as, an action of debt, does not change its character.” Other authorities which hold that a tax is not a debt are: Lane County v. Oregon, 7 Wall., 71; Meriwether v. Garrett, 102 U. S., 472; City of Augusta v. North, 57 Maine, 392; and 1 Cooley on Taxation (3 ed.), page 17. In the light of these authorities it seems clear that under no proper interpretation of Section 855, can its provisions be so extended as to include taxes within the term debt, and hence, a tax being neither a debt, judgment, fine nor amercement, no authority is conferred upon the board of county commissioners by the provisions of said section to compound, release, or settle the same. Nor is any such authority vested in the board by Section 845, Revised Statutes, which prescribes and defines the general powers and duties of county commissioners.

Some reliance seems to be placed by counsel for plaintiff in error upon Section 1038, Revised Statutes,- which- authorizes the' correction of errors on tax list and duplicate by the county auditor, and empowers the board of county commissioners, under certain circumstances, to order refunded taxes that have been erroneously charged and collected. But neither by this statute nor by any other, is the board of county commissioners empowered to settle, remit, or release, either in whole, or in part, taxes that stand charged upon the duplicate and are unpaid. While in a sense the board of commissioners is the representative and financial agent of the county, its authority is limited to the exercise of such powers only as are conferred upon it by law. As said by this court in the first paragraph of the syllabus in Jones, Auditor, v. Commissioners of Lucas County, 57 Ohio St., 189: “The board of county commissioners represents the county in respect to its financial affairs, only so far as authority is given to it by statute.”

Another, and perhaps sufficient reason why the county commissioners could not rightfully settle or remit the taxes sued for in this case is that such taxes were not wholly due to, nor were they wholly levied for, the use of Holmes county, but there was included therein as well, state, township, municipal, and other taxes.

Without stopping to consider or. discuss the irregularity of the mode of procedure adopted by the trial court in this case, we think it sufficient to say, that for the reasons already stated, the judgment of the court of common pleas was unauthorized and erroneous and the same was properly reversed by the circuit court.

Judgment affirmed.

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


source: Caselaw Access Project

author: Summers, C. J.

license: Public Domain

text:
    The Merchants National Bank v. Cole.

      Unlimited guaranty — Intended to be continuing — But equivocal for absence of words' — May be explained — But not contradicted— By surrounding circumstances — Intention of parties.

    An unlimited guaranty in the absence of words showing that it was intended to be continuing is equivocal, and the surrounding circumstances may be proven, not to contradict or vary the terms of the writing but, to enable the court to put itself in the place of the parties the better to understand the terms employed in the writing and to arrive at the mutual intention of the parties.
    (No. 11156
    Decided October 25, 1910.)
    Error to the Circuit Court of Lucas county.
    The facts are stated in the opinion.

      Messrs. Swayne, Hayes, Fuller & Tyler and Messrs. Brown, Geddes, Schmettau & Williams, for plaintiff in error.

      Parol evidence cannot be introduced to vary, modify, explain, add to or limit the terms of this written instrument of guaranty. This question of the right to introduce parol testimony to contradict, vary or limit the terms of this written guaranty has been passed upon and decided in the negative in this and other cases involving this guaranty, under identical pleadings by three different branches of the common pleas, by a referee in bankruptcy, and by the United States district court. The circuit court of appeals did not pass on the guaranty in the case appealed from the district court, but expressly excluded consideration of the question. Five different judges have thus excluded such testimony, while three, the circuit court, have ruled that it is admissible. Pratt v. Paine, 119 Mass., 438; Gilbert v. Plough Co., 119 U. S., 491; Seitz v. Refrigerating. Co., 141 U. S., 510; Union Selling Co. v. Jones, 128 Fed. Rep., 672; Thompson v. Libby, 34 Minn., 374; Wilkins v. Carter, 84 Tex., 438; Savings, Loan & Trust Co. v. Elder, 165 Ill., 55; 1 Greenleaf on Evidence, Sections 281, 282; Transportation Co. v. Bolt & Nut Co., 114 Fed. Rep., 78; Douglass v. Reynolds, 7 Pet., 113; Birdsall v. Pleacock, 32 Ohio St., 177.
    The question before the court is not whether this contract, by its express terms, is continuing or limited, but whether parol testimony can be introduced to explain or modify the terms of said contract, which are not equivocal. Morgan v. Boyer, 39 Ohio St., 324.
    Even if the language of the guaranty be considerea so ambiguous as to admit proof, still the allegations of the second defense are not sufficient to warrant the introduction of evidence, because, if proven, they would not entitle the defendant to a modification of the terms of the warranty.
    The most that can be claimed for the right to modify or supplement a written contract, is to so supplement or modify in accordance with the terms of the actual agreement or understanding between the parties. If, therefore, as alleged, there was no actual agreement or understanding, there is no basis for modifying the written instrument.
    Even if the language of the guaranty be ambiguous and admits of two fair interpretations, then neither upon the pleadings nor the evidence should the guarantor escape liability. Lawrence v. McCalmont, 2 Howard, 426.
    . Mr. Alex. L. Smith and Mr. G. W. Kinney, for defendant in error.
    The guaranty in this case is not a continuing guaranty. It applied only to the indebtedness existing at the time it was given, and to new loans made contemporaneously or at the most, to loans made for and on account of the business that F. E. & G. H. Cole, were then engaged in.
    Reading this guaranty without regard to the circumstances surrounding its execution, it should be construed as a 'limited guaranty as to time. Birdsall v. Heacock, 32 Ohio St., 177; Gard
      v. Stevens, 12 Mich., 292; Morgan v. Boyer, 39 Ohio St., 324.
    This guaranty should be construed in the light of the circumstances surrounding its execution.
    This guaranty was given and received under certain circumstances known to the parties; and was interpreted and understood by the parties in the light of, and bounded by those circumstances, and it should be looked at now as the parties looked at it, and seen in. the same light in which the parties saw it in order to determine what it meant to them — for the intention of the parties is what the court is called upon to ascertain and determine. 4 Wigmore on Evidence, 3479, 3481, 3499; Sewer Pipe Co. v. Ganser, 58 Mich., 385; Stoops v. Smith, 100 Mass., 63; Reed v. Insurance Co., 95 U. S., 23; Dayton v. Hooglund, 39 Ohio St., 671; Iron Co. v. Keynes et al., 56 Ohio St., 501; Gill v. Fletcher, 74 Ohio St., 295; Bank v. Garn et al., 3 C. C., N. S., 428.
    By the terms of this guaranty, Mrs. Cole guaranteed the payment of the notes then held by the bank and all renewals of the same, but she did not guarantee the payment of any renewals of any loans.
    An extension of the time of payment by agreement between the original parties made without the knowledge and consent of the guarantor or surety releases the guarantor or surety. Stearns on Suretyship, 114, 115; Rutherford v. Brachman, 40 Ohio St., 604; Iron Co. v. Keynes et al., 56 Ohio St., 511.
   Summers, C. J.

The Merchants National Bank of Toledo, Ohio, sued the defendant, Louis M. Cole, as administrator of the estate of Lucy A. Cole, to recover upon the following guaranty:

“March 29, 1898.

“I hereby guarantee the payment of all notes of F. E. & G. H. Cole held by the Merchants National Bank, also all renewals of same, or any new loans made to either F. E. or G. LI. Cole by the said bank.

“Lucy A. Cole.”

The answer of the defendant, with other matter, sets up the following:

“That said guaranty was given by her for and on account of loans already made, and thereafter to be made by said bank to said F. E. and G. H. Cole for and on account of work being then done and performed by them in the city of Toledo, Ohio, under contracts with the said city of Toledo, and for no other purpose whatsoever; that at the time said paper was executed the said F. E. and G. H. Cole were engaged in the work of paving streets and building sewers in the city of Toledo, under contracts with the said city, and had been so engaged for a long time prior thereto, and were, and had been doing business with said bank, and had borrowed money from said bank to be used in 'the prosecution of said work, and were at said date indebted to said bank in the sum of thirteen thousand two hundred dollars ($13,200), as evidenced by their promissory notes, for money so borrowed, and on said day applied to said bank for a further loan, the proceeds to be used in the prosecution of said work, and thereupon the said bank demanded of them that their mother, the said Lucy A. Cole, should guaranty the payment of said loans, and thereupon said paper was prepared by one of the officers of said bank and taken to said Lucy A. Cole by one of her sons, and signed by her, and it was not intended or contemplated, either by said bank or said Lucy A. Cole, that such guaranty should apply to any loans made by said bank to said F. E. and G. FI. Cole, or “either of them, other than loans made for and on account of work done under said contracts with the said city of Toledo.
“The said bank had full knowledge of the character of the work in which the said F. E. and G. H. Cole were engaged, and full knowledge of the place or places where said work was being carried on, and of the purposes for which said money was borrowed and used.
“The indebtedness from F. E. and G. H. Cole to the bank, existing on March 29, 1898, and all loans made by said bank to said F. E. and G. H. Cole, or either of them, after said date, for or on account of said contracts, or any work performed under said contracts, have all long since been paid in full.
“About the 1st of January, 1901, the said F. E. and G. H. Cole had substantially completed all ,of the work they had contracted to do in Toledo, under contracts with the said city, and no contracts were ever entered into between them and the said city of Toledo thereafter. All loans made by said bank to said F. E. and G. FI. Cole, or either of them, for or on account of any work done in Toledo, or any contracts with the city of Toledo, have been fully paid.
“In the summer of 1901 the said F. E. and G. H. Cole entered into a contract for the construction of a tunnel, or a section thereof, in Philadelphia, Pennsylvania, and in September, 1902, they entered into a contract for tunnel work in Dossett, Tennessee.
“Defendant further says that the bank loaned the said' F. E. and G. PI. Cole certain sums of money for and on account of said last two above mentioned contracts, all of which loans were evidenced by promissory notes, and that whatever notes said bank now holds against the said F. E. and G. PI.' Cole were given for moneys borrowed by them on account of the said Philadelphia and Dossett contracts.
“The said bank had full knowledge of these contracts and the nature of the work being done under them, • and made the loans last above referred to, with express reference to said contracts, and with full knowledge that the money was being borrowed for the purpose of being used in the prosecution of the work under said contracts, and without consultation with or notice to said Lucy A. Cole.
“All the said notes now held by said bank are dated February 15, 1904, and are all renewal notes, none of them having been given for loans made at the time they were executed,- but all given in lieu of prior notes. The last loan made by said bank to said F. E. and G. H. Cole or either of them, was made prior to July, 1903. The notes given for the loans now represented by these notes were from time to time renewed, and the times of payment of the said loans extended by said bank without notice to the said Lucy A. Cole, and without knowledge on her part.
“No demand was ever made on said Lucy A. Cole for payment of any part of the indebtedness of the said F. E. and G. FI. Cole to said bank, nor was any notice ever given her as to the amount or condition of said indebtedness, nor did she ever have any knowledge of any extension of the time or times of payment of any part of said indebtedness, nor did she ever have any knowledge that the said F. E. and G. EL Cole had borrowed any money from said bank for or on account of said Philadelphia or Dossett contracts, or either of them, prior, at least, to October, 1903, and she had no knowledge of the execution of the renewal notes now held by said bank, and hereinbefore referred to.”

Upon motion, that part of the answer was stricken out and after trial a judgment was entered for the bank.

The circuit court reversed the judgment for' error in sustaining the motion.

Counsel for the bank contend that this guaranty is an unlimited and continuing guaranty, that it is in no respect equivocal or ambiguous, and that to permit proof of the circumstances set up by the answer would be to permit the written contract to be modified by parol evidence.

An unlimited guaranty may be defined as one that is unlimited both as to time and amount, and a continuing guaranty is one that is not limited in time or to a particular transaction or to specific transactions, but is operative until revoked.

This guaranty is not limited by its terms, nor is it by its terms continuing-. The courts are not in accord as to the rule to be applied in the interpretation of guaranties. In" some cases it is held that a guaranty is to be strictly construed in favor of the guarantor, in others that it is to be liberally construed in favor of the creditor. The Hartwell & Richards Co. v. Moss, 22 R. I., 583. In this state it is settled that, “A guarantor, like a surety, is bound only by the express terms of his contract. The language used is' to be understood in its plain and ordinary sense, as read in the light of the surrounding circumstances, the situation of the parties, and the object of the guaranty, and that construction given which most nearly conforms to the intention of the parties. If the language is equally capable of each construction, the one will be adopted which construes it to be limited, and not the one which construes it to be continuing.” Morgan v. Boyer, 39 Ohio St., 324; Hall v. Hall, 32 Ohio St., 184; The Cambria Iron Co. v. Keynes et al., 56 Ohio St., 501.

But counsel contend that the rule adopted in these cases is applicable only when the instrument is equivocal or ambiguous, and that here the fair and natural meaning of the words clearly imports that the guaranty was intended to be continuing.We do not understand that these cases except such instruments from the general rule that parol evidence is inadmissible to limit or to enlarge the terms of a written instrument, but that they hold that an unlimited guaranty is equivocal or ambiguous in respect to being continuing, in the absence of words that clearly import such an intention.

In such cases the instrument is to be construed in the light of the surrounding circumstances, but this does not mean, as some cases would seem to indicate, that the written instrument is to be supplanted by a new contract evolved by the court from the parol evidence. Attention should be given to what is meant by surrounding circumstances, and it should be remembered that they may not be used to contradict or vary the terms of the instrument. In The Cambria Iron Co. v. Keynes et al., 56 Ohio St., 501, it is held: “In construing a contract of guaranty, the object should be to ascertain the intention of the parties ; and, as in construing all contracts, the words employed by the parties should be construed in the light afforded by the circumstances surrounding them at the time it was made.” Monnett v. Monnett, Admr., 46 Ohio St., 30, holds, that oral testimony is not admissible to contradict or vary the terms of written agreements, but is admissible to prove the circumstances under 'which they were made, to enable -the courts to put themselves in the place of the parties, with all the information possessed by them, the better to understand the terms employed in the contract, and to arrive at the intention of the parties.

In Morrell v. Cowan, 7 Ch. Div. (L. R.), 151, where the court construed a guaranty reading as follows: “In consideration of you having at my request agreed to supply and furnish goods to C. [her husband], I do hereby guarantee to you .the sum of £500. This guarantee is to continue in force for the period of six years and no longer,” it was held that the guaranty was limited to goods actually supplied to the husband after it was given. Thesiger, L. J., in his opinion says: “I agree that in determining the construction of this instrument the court is ' entitled to look at the surrounding circumstances; that is to say, it is entitled to consider, first, who the parties were; secondly, in what position they were; and, thirdly, what the subject-matter of the agreement was. Now we find that Morrell was a leather factor, and that Cowan was a shoe manufacturer, and was indebted to him for certain goods supplied to him in the way of trade. Cowan was anxious to get a further supply, which Morrell was willing to furnish if he had a guaranty from Mrs. Cowan, who had separate estate. To these circumstances .we may look, but we can not go further. It is not open to the parties to shew that there was a parol bargain that Mrs. Cowan should guarantee her husband’s past debts, or that the guarantee should be confined to future debts; that question must rest upon the written instrument alone.”

It follows that the court of common pleas erred in not permitting a statement of any of the surrounding circumstances and that the circuit court was not in error in reversing the judgment on that ground.

Judgment affirmed:

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


author: By the Court.

text:
    The State of Ohio v. Cleveland.

      Statute may include by inference — Case not originally contemplated, when — Statute making it unlawful to throw stone at railroad car — Includes interurban or traction car — Interpretation of statutes.

    A statute may include *by inference a case not originally contemplated when it deals with a genus within which a new species is brought. Thus a statute making it unlawful to willfully throw a stone at a railroad car includes an interurban or traction railway car, although such cars were not known or in use at the time the statute was enacted.
    (No. 12525
    Decided October 25, 1910.)
    Exceptions to the Court of Common Pleas of Champaign county.
    The facts are stated in the opinion.

      Mr. George Waite prosecuting attorney, for the exceptions.
    The question that we desire the court to determine in this case is, whether it is unlawful for a person to throw a stone at a car of the character described' above?
    In order to determine this question it will be necessary for the court to construe Section 6862, Bates’ Revised Statutes, or Section 12497, General Code, which are the same.
    The first count in the indictment in this case charges the defendant with throwing' a stone at a railroad car. The second count charges the defendant with throwing a stone at a street railway car.
    If we take the term “railroad car” in its ordinary and generic sense, it certainly means a car which runs or is propelled on rails, and the evidence in this case clearly shows that the car in question is a car of that character.
    Street railwajrs in civil matters are classified by the statutes and by decisions of the courts as a different class from railroads or railways, the law meaning steam railways. This is done for the purpose, as we said, of eminent domain, applying the rules of negligence and. also for taxation purposes. „
    To convince us that this classification is made, it is only necessary to see Sections 9117 to 9122, General Code, and also Section 5488, General Code, and also that the courts have so construed these sections. Bridge Co. v. Iron Co., 59 Ohio St., 179; Electric St. Rd. Co. v. Lohe, Admr., 68 Ohio St., 101; Railway Co. v. Traction Co., 26 C. C., 1, reversed on another question, 72 Ohio St., 429.

      Mr. E. E. Cheney and Mr. Frank A. Zimmer, against the exceptions.

      The defendant claims he is not amenable to Section 6862, Bates' Revised Statutes, or Section 12497, General Code, for throwing a stone at an interurban car, when such car is without the corporate limits of a municipality, as was the car in this case at the time of the alleged offense.
    It is significant to note that “interurban” cars have been invented and have come into general use, altogether, since March 12, 1887, the time when the statute reaches its present embodiment. At that time “interurban” cars were unknown, and it can scarcely be contended that they were included in the terms street car, “by contemplation.” It is beyond the scope of human reason that the legislature by contemplation could enact laws for the protection of anything not in existence.
    The term railroad car in the act is not used in its generic sense to include all cars running on fixed iron or steel rails, for particular kinds of cars running on fixed rails are also mentioned in the act. So that the term “railroad car” has a special meaning, viz.: one of the cars which usually are operated upon steam railroads and propelled by steam locomotives in trains of greater or less length.
    The legislature has always distinguished between roads, commonly operated by steam and those operated by electricity, or other motive power, for many purposes and the term “railroad” is used by the legislature to mean only steam railways as the same are commonly known and used. Sections 9117 to 9122, General Code; Bridge Co. v. Iron

      Co., 59 Ohio St., 179; Electric St. Rd. Co. v. Lohe, Admr., 68 Ohio St., 101.
    Neither from force of necessity can Section 12497 be construed to cover “interurban cars,” for interurban cars are not the only public conveyances not protected by this sort of legislation in Ohio, e. g, omnibuses, cabs, taxicabs, auto cabs, rubber-neck wagons, etc.
    It seems that the legislature has not seen fit to protect those conveyances whose occupants can quickly stop the conveyance and go after the stone thrower. It is known that the courts of Ohio have referred to the case with which interurban cars can be started and stopped and as one of the noticeable distinctions between them and other kinds of cars. Commissioners v. Traction Co., 75 Ohio St., 560.
    A car in making a transit of the road would be a “street railway car” while within the limits of a municipality, and the same car would be an “interurban car” on an interurban railroad when in the open country.
    It is certainly a well settled rule in Ohio that persons can not be made subject to such statutes by implication, and all doubts in the interpretation of such statutes are to be resolved in favor of the accused. Shultz v. Cambridge, 38 Ohio St., 659; Thalls v. State, 21 Ohio St., 233; Hagar v. State, 35 Ohio St., 268; In re McDonough, 49 Fed. Rep., 360.
    It is true that all the evidence shows that the car in question was an interurban car and not any such car as is designated by the statute or indictment. The statutes and the courts have so clearly defined the question involved in this controversy that under the most liberal interpretation the car in question cannot be classified as either a railroad car or a street railway car.
   By the Court.

The Ohio Electric Railway Company operates interurban or traction railways. In April of the present year the defendant was a passenger in a car that left Urbana for Springfield; he asked to be let off the car at one of the streets in the city of Urbana; he had a controversy with the conductor in charge of the car, and the conductor ejected him at. a point outside of that city. This angered the defendant and he picked up a stone about the size of a man’s fist and hurled it at the car in the direction of the conductor. The stone struck on the inside of the rear vestibule, just missed striking several passengers and struck a window breaking it.

The defendant was indicted under Section 12497, General Code, which reads as follows: “Sec. 12497.' Whoever wilfully throws a stone or other hard substance or shoots a missile at a railroad car, train, locomotive, cable railway car or. street railway car, or at a steam vessel or water craft used for carrying passengers or freight, or both, on any of the waters within or bordering on this state, shall be fined not less than fifty dollars nor more than five hundred dollars and imprisoned in the penitentiary not more than three years or in the county jail not more than six months.”

The first’ count in the indictment charged the defendant with throwing a stone at a railroad car, and the second count charged him with throwing a stone at a street railway car.

The court, on motion, excluded the evidence from the jury and instructed the jury to bring in a verdict of not guilty, and the prosecutor files exceptions in this court.

It is said that the court directed the verdict on the ground that an interurban car does not come within the terms of the statute.

The first act was passed in 1879 (76 O. L., 11), and provided: “That whoever wilfully throws'any stone , or other hard substance, or shoots any missile at any railroad car, train or locomotive, shall be fined,” etc.

The law was amended in 1884 (81 O. L., 125), by adding steam vessels or water craft, and in 1887 (84 O. L., 81), by adding “or at any cable railway car or street railway car.” It is contended that interurban cars were not known at the' inception of the statute, and that, therefore, they could not have been intended to be .comprised in its terms, and that under the maxim exclusio unius est exclusio alterius such cars are clearly excluded from the' terms of the statute.

"We do not think either contention is sound. The rule is well settled “that a statute may include by inference a case not originally contemplated when it deals with a genus within which a new species is brought by a subsequent statute.” The cases illustrating this rule are numerous: People v. Kriesel, 136 Mich., 80; 4 A. & E. Ann. Cas., 5 (note); U. S. v. Nihols, 4 McLean (U. S.), 23; State v. Becton, 7 Baxt. (Tenn.), 138; Reg v. Cottle, 16 Q. B., 412; Collier v. Worth, 1 Ex. D., 464; Taylor v. Goodwin, 4 Q. B. D., 228; Parkyns v. Preist, 7 Q. B. D., 313.

The rule applies also to new species that come into existence otherwise than by statute. And when the new species is clearly within the mischief intended to be prevented the rule is not inapplicable because of the rule of strict construction of penal statutes. Endlich on Interpretation of Statutes, Secs. 112 and 335.

The maxim referred to is not of universal application, but is to be applied only as an aid in arriving at intention and not to defeat the apparent intention. The statute as originally enacted unquestionably was broad enough to comprise any kind of a railroad car. The amendments were not intended to narrow the statute, but to add other things, and the subsequent enumeration of cable railway cars and street railway cars was not the addition of new things, but was intended to remove any question as to such cars being within the terms of the statute.

Exceptions sustained.

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


author: Price, J.

text:
    The State of Ohio v. Walder.

      Unlawful to sell malt liquor — Whether intoxicating or non-intoxicating — In county where local option is in force.

    It is unlawful to sell malt liquor to be used as a beverage in a county of this state where the county local option law is in force, whether such malt liquor is in fact intoxicating or nonintoxicating. Such is the effect of section three (3) of said enactment, which declares that the “phrase ‘intoxicating liquor’ as used in this act, shall be construed to mean any distilled malt, vinous or any intoxicating liquor whatever.". See 99 O. L„ 3S.
    (No. 12316
    Decided November 22, 1910.)
    Error to the Circuit Couiit of Fulton county.
    I
    At the April term of the court of common pleas of Fulton county, held in the year 1909, the following charge was made against the defendant in error, to-wit:
    “The State of Ohio, Fulton county, ss.
    “Before me, Ed. Scott, clerk of the court of common pleas in and for said county, and in which said county Hon. J. M. Killits, judge of said court is now' sitting, personally came Fred Grandy, who being duly sworn according to law, deposes and says, that on the twenty-fifth day of. January, 1909, in the county of Fulton and state of Ohio, one August Walder did then and there sell intoxicating liquors, to-wit, a malt liquor containing .49 per cent, alcohol and no more, commonly known as ‘Near Beer/ as a beverage to one Fred Grandy; that the selling of said liquor as aforesaid by the said August Walder was then and there prohibited and unlawful and contrary to the local option laws of the general assembly of the state of Ohio, and against the peace and dignity of the state of Ohio.
    “Fred Grandy.”
    This is followed by the proper jurat signed by the clerk of the court.
    Upon this affidavit, a warrant was issued, and the accused party taken into custody and before the said John M. Killits, as judge of the court of common pleas, where he was tried on the charge made in said affidavit.
    The bill of exceptions shows that certain facts were agreed upon at the trial, namely: “It was admitted by and between counsel in open court that whatever crime was committed, if any, was committed in the county of Fulton and state of Ohio; that a local option election was held in the county of Fulton, state of Ohio, on the twenty-fourth day of November, 1908, and that a majority of the votes cast were in favor of the sale of intoxicating liquors as a beverage being prohibited; that whatever, if any, crime was committed, was committed more than thirty days after the date o.f the holding of said local option election; that a certificate of said local option election has been filed with the clerk of court of Fulton county, Ohio, and that said certificate is on record as provided by law.”
    The state introduced its evidence and rested, . and the accused introduced his evidence and rested. Thereupon the court found him guilty as charged in the affidavit, and assessed a fine of fifty dollars and the costs of the prosecution. The finding of the court appears in the journal entry as follows:
    “On consideration whereof the court find that the liquor charged in the affidavit to have been sold by defendant was a malt liquor, but was not intoxicating, and the court finds as a matter of law that the sale of said malt liquor is within the inhibition of statute and contrary to law.” A motion for new trial was overruled, to all of which rulings and judgment proper exceptions were entered. A bill of exceptions was prepared, allowed and signed.
    The circuit court granted leave to file therein a petition in error, which was filed, and on hearing the cause on error, said court reversed the court of common pleas, on the ground, as stated in the judgment entry, “that said judgment is contrary to law, in this, to-wit, that there was no evidence offered upon the trial of said cause showing or tending to show that the beverage sold was an intoxicating liquor.” The case was remanded to the court of common pleas.
    The state prosecutes error in this court to reverse the judgment of the circuit court.

      Mr. F. H. Wolf, prosecuting attorney, and Mr. Wayne B. Wheeler, for plaintiff in error.
    Section 3 of the county local option law (99 O. L., 36), is as follows: “The phrase ‘intoxicating liquor/ as used in this act shall be construed to mean any distilled, malt, vinous or any intoxicating liquor whatever.”

      The question which arises in this case is, whether a malt liquor sold in a county where this law is in operation, violates the statute.
    A proper construction of the definition in question, necessitates the determination of the intention of the general assembly in framing it. Had no such definition of the phrase “intoxicating liquor” been prescribed, the question as to the nature of the liquor dealt in by the defendant as intoxicating in point of fact would have been material in every prosecution instituted thereunder. The difficulty in the enforcement of the statute framed in such general terms, and the possibility of the lack of uniformity in the results of prosecution instituted under such language, have induced the general assembly to adopt the legislative policy followed in formulating various other police regulations of the state, such as the laws respecting food adulterations, those requiring the registration of physicians, druggists, stationary engineers, etc. This policy is that which eliminates disputes as to intrinsically doubtful facts, such as would have to be established by so-called expert testimony, and establishes a positive standard which though arbitrary is to be upheld by the courts, if the legislature had power to establish it. 23 Cyc., 57; State v. Intoxicating Liquors, 76 Ia., 243; Commissioners v. Timothy, 8 Gray, 480; State v. Wittmar, 12 Mo., 407.
    That the legislature intended to include all malt liquors as coming within this definition, whether in fact there was a sufficient amount of alcohol in them to make them intoxicating, is clearly shown by recent legislation and the decision of this court. When the municipal option law was enacted defining intoxicating liquor to mean any distilled, malt, vinous or any other intoxicating liquor, Sections 4364-20a to 4364-20i, there was doubt in the minds of the courts as to whether or not under that wording it included all malt liquors, whether intoxicating or not. This doubt arose from the decision of Justice Brewer in the Kansas case under a similar wording of the law, holding the word “other” showed these terms, vinous, malt and distilled, were qualified by the word “intoxicating.”
    Following the decision of this court in State, ex rel., v. Kauffman, 68 Ohio St., 635, in construing the Dow law, the legislature made the definition of intoxicating liquor to conform to it with the distinct purpose of settling this mooted question.
    In the General Code the codifying commission struck out the word “whatever” on the theory it added nothing to the definition of intoxicating liquor. The legislative intent is • absolutely clear, both from the reading of the statute, and especially from the fact that the statute was put in its present form immediately following the construction by this court as to what similar language meant.
    Both laws have the same title, “To further provide against the evils resulting from the traffic in intoxicating liquor,” and they were sustained on this theory of providing against the evils of the traffic. Senior v. Ratterman, 44 Ohio St., 661.

      There are three theories upon which this case may be decided:
    First. That the term “malt liquor” includes all malt liquids, whether they contain any alcohol or not. This might be called the literal construction placed upon the term.
    Second. The term “malt liquor” includes all 'malt alcoholic beverages, regardless of the amount of alcohol contained therein. This is the middle ground, and the decisions cited in this brief show the reason for such a construction.
    Third. The term “malt liquor” includes only such malt liquors as are intoxicating in fact. This represents the other extreme from the first one named.
    See definitions in Standard Dictionary, Century Dictionary and Webster’s for “liquor” and “malt liquor.”
    Webster’s International Dictionary defines “malt” to be barley, or other grain steeped in water and dried in a kiln, thus forcing germination until the saccharine principle has been evolved. It is used in brewing and the distillation of whiskey. United States v. Cohn, 52 S. W. Rep., 44.
    A number of cases have been decided covering this question as to the power of the legislature to enact such a definition, and what the term “malt liquor” means. Hewitt v. People, 57 N. E. Rep., 1077; United States v. Cohn, 52 S. W. Rep., 38; State v. Frederickson, 101 Me., 37; Feibelman v. State, 130 Ala., 122; Dinkins v. State, 43 So. Rep., 114; Edwards v. Gulfport, 49 So. Rep., 620; State
      v. Virgo, 14 N. Dak., 293; Pennel v. State, 123 N. W. Rep., 115; 1 Jones on Evidence, p. 270; Briffttt v. State, 58 Wis., 39; State v. Spaulding, 61 Vt., 509, 17 Atl. Rep., 844; Eaves v. State, 113 Ga., 749, 39 S. E. Rep., 318; Merkle v. State, 37 Ala., 139; Vinegar Co. v. Printing Co., 35 Fed. Rep., 570; Kettering v. Jacksonville, 50 Ill., 39; People v. Adams, 95 Mich., 541; People v. Kinney, 124 Mich., 486, 83 N. W. Rep., 147; Jones v. Surprise, 64 N. H., 243; People v. Foster, 64 Mich., 715; Feldman v. Morrison, 1 Ill. App., 460; Commonwealth v. Chappel, 116 Mass., 7; Commonwealth v. Dean, 14 Gray, 99; Commonwealth v. Bubser, 14 Gray, 83; Commonwealth v. Anthes, 12 Gray, 29; State v. Wadsworth, 30 Conn., 55.
    The legislature having defined what liquors shall be deemed intoxicating, was it incumbent upon the state in the tr.ial of the case below to prove that one of the liquors named in the definition of intoxicating liquors was in fact intoxicating? The state contends that it was not; that when the liquor was shown to have been a malt liquor that it was, in law, intoxicating liquor; that the court was bound by the definition and could not inquire whether or not it was intoxicating. Black on Intoxicating Liquors, Section 521; Commonwealth v. Shea, 14 Gray, 386.
    Where a word or phrase in a criminal statute has received a statutory definition, proof that an act comes within the definition is sufficient to support 'a conviction. Hansberg v. People, 60 Am. Rep., 549; State v. Intoxicating Liquors, 2 L. R. A., 408; Lemly v. State, 20 L. R. A., 645; State v.
      Brewing Co., 26 L. R. A., 138; Commonwealth v. Timothy, 8 Gray, 480; 23 Cyc., 60.
    The supreme court of Nebraska .recently decided a case involving nearly every phase of this controversy. The liquor which was sold was malt liquor, and there was no evidence that it was intoxicating. Luther v. State, 20 L. R. A., N. S., 1146; South Shore Club v. People, 228 Ill., 75; Barden v. Montana Club, 10 Mont., 330; Mohrman v. State, 105 Ga., 709; Lemly v. State, 69 Miss., 628.

      Mr. James P. Ragan, for defendant in error.
    The evidence upon which the judge of the common pleas court based his finding was the undisputed statements and evidence of the defendant in error, that the liquor was? made in the following manner. The malt syrup was made as weak as it could be, then the alcohol was boiled out, so it did not contain any alcohol whatever. The other ingredient was sweetened water; one-third of the first was mixed with two-thirds of the second, and then carbonated.
    He further testified that when so made, the liquor contained absolutely no alcohol whatever.
    We need cite no authorities to define what a malt liquor is; it is a matter of common knowledge. Barley is sprouted. That changes the starch into sugar; it js then fermented, that changes the sugar into alcohol. It is'then brewed with hops; it is then beer; or instead of brewing with hops, the férmented mash may be distilled; it is then malt whiskey. The beer so made is a malt liquor, and so is the whiskey, whether distilled or brewed, the liquor when made contains alcohol, and if when made it contains no alcohol, it is not a malt liquor. This court has decided in Weisbrodt v. State, 50 Ohio St., 192, that malt liquors as defined in the statutes providing against the evils resulting from the sale of intoxicating liquors, must be intoxicating 'malt liquors; if it is not intoxicating, it is not a malt liquor within the purview of those statutes. In -that case the court say, all spirituous, vinous, or malt liquors are intoxicating, but all intoxicating liquors are not necessarily either spirituous, vinous or malt.
    Are we to look past the substance of the law, and look only at the shadow? Is it a contravention of the statute to keep on sale distilled water, or unfermented grape juice, or unfermented cider? In the cases at bar, the liquor when made was absolutely free from alcohol, and therefore was not a malt liquor, as defined by the statute referred to. It is no answer to say that it would generate alcohol if left standing long enough after its manufacture; sweet cider, or any mash of fruit or grain that contains any sugar will do that; this is a matter of common knowledge. The judge of the common pleas court must have found that no al- . cohol had generated in the liquor that Walder sold Grandy, for he found it was not intoxicating.
    It is unnecessary to turn to the decisions of other states for a definition of the phrase “intoxicating liquors” because a careful examination of the Rose law disposes of the question without reference to the decisions of other states. The true scope and meaning of that statute is to stop the traffic in the prohibited locality, in all intoxicating liquors, by whatever name called'. As a means to this end, it is made unlawful after thirty days after a locality has voted dry, for any person, by himself or agent, to sell, furnish or give away intoxicating liquors to be used as a beverage. Roberts v. State, 60 S. E. Rep., 1082, which is the nearest a parallel case with the one at bar that we can find.
    The circuit court considered the intent of the legislature in framing the Rose law; considered the’ letter of the law, analyzed it by section, and decided that the section properly understood should be construed to mean, “any distilled, malt, vinous or any other kind of intoxicating liquor.” We think the legislature could not have more clearly indicated its intent to make the Rose law apply to only intoxicating liquors if it had inserted the word, “intoxicating,” before the words, “spirituous” and “malt;” the phrase “or any intoxicating liquor whatever,” can bear but one literal construction, and that is that it means, “whether it be the kind of intoxicating liquors specifically mentioned, or whether it be any other kind of intoxicating liquor.” In support of this view, we cite the following authorities: Mason v. State, 58 S. E. Rep., 139; McDuffie v. State, 87 Ga., 687; Bell v. State, 91 Ga., 227; Bradley v. State, 121 Ga., 206; Intoxicating Liquor Cases, 2 L. R. A., 408; Murray v. LaFollette, 54 W. L. B., 203, 31 C. C., 247; 29 Cent. Dig., pp. 866-872.

      The affidavit charged the saie of intoxicating liquor — a malt liquor containing .49 per cent, of alcohol.
    No proof was made of the malt or intoxicating quality of “near beer” except as stated by Walder. His testimony clearly showed that it was not intoxicating and admitted only a possibility of it being alcoholic; his testimony showed also that it was not a malt liquor, as malt liquor is defined by the courts.
    “Malt liquor” needs no legal definition; it is a matter of common knowledge.
    Thé testimony being undisputed admissions of Walder, the finding of the judge of the common pleas court, that the liquor was a malt liquor, was an unwarranted conclusion from the evidence which the circuit court had a right to revise and correct.
   Price, J.

This is one of the many cases which have reached this court, involving alleged violation of some provision of the county local option law. The act is designated in the statute as amended senate bill No. 345, and is entitled: “An act to provide against the evils resulting from the traffic in intoxicating- liquors, by providing for local option in counties,” and was passed March 5, 1908, to take effect and be in force on and after September 1, 1908. See 99 O. L., 35. It is regarded as a case of great importance by the prosecuting attorneys of at least fifteen counties of the state who join in the brief for plaintiff in. error.

The charge preferred against defendant in error is that, “on the 25th day of January, 1909, in the county of Fulton and state of Ohio, one August Walder did then and there sell intoxicating liquors, to-wit, a malt liquor containing .49 per cent, alcohol and no more, commonly known as ‘Near Beer/ as a beverage to one Fred Grandy; that the selling of said liquor as aforesaid by the said August Walder was then and there prohibited and unlawful and contrary to. the local option laws of the general assembly,” etc. The charge in full is found in our statement of the case.

We are not clearly advised as to the author of the name of “Near Beer,” nor as to its real significance, but it may mean next to or almost “beer.” While the affidavit charges that the “Near Beer” so sold to Grandy was an intoxicating liquor, to-wit, a malt liquor of .49 per cent, alcohol, it was found by the trial court where the evidence was heard and' considered, “that the liquor charged in the affidavit to have been sold by defendant was a malt liquor, but not intoxicating” and then found as a matter of law that the sale of said malt liquor is “within the inhibition of statute and contrary to law.”

The statute authorizing a local option election provided how the question should be stated on the ballots, and it was in substance whether the sale of “intoxicating liquors” as a beverage should or should not be prohibited: And when the májority of the votes cast at the election were in favor of prohibiting the sale of intoxicating liquors in thát county, Section 2 of the act referred to made it unlawful, from and' after the holding of the election, “for any person personally or by agent, within the limits of such county, to sell, furnish or give away intoxicating liquors to be used as a beverage.”

Therefore, the sole living question in the case is,'did Walder violate the provisions of the statute by selling a malt liquor that was not in fact intoxicating? Or, was it essential to a conviction that the malt liquor sold was intoxicating?

The accused testified in his own behalf and he undertook to give the elements composing and the method of brewing the liquor from which the sale was made. His statement is brief, and we quote from it.

“Ques. to Deft. Tell the court whether or not you sold Mr. Grandy beer as he testified to? Ans. I did: it isn’t beer — near beer. At the time Mr. Grandy purchased that beer we were making near beer on a — that is, practically it wasn’t intoxicating at all; of course the beer was made, the first beer that was all made similar only far weaker than the other beer. The other beer contains four to five per cent, alcohol. We made it as weak as we could and then we boiled out the alcohol so it didn’t contain any alcohol whatever.

“Ques. This near beer you sold to Grandy? Ans. Yes, sir; then the raw product, sugar, etc., and we made nothing but a syrup. These articles laid there till we got ready to use them, when we would put in one-third of the first.substance, which didn’t contain any alcohol whatever, and then we took two-thirds of the other stuff which contained mostly water, and then we put them together, you know, and carbonated it; carbonating is what forms the foam and gives it the life; but of course there is a natural limit to that — it might be thirty hours and it might be ten hours — it depends on what kind of shape you keep it — if you keep it in a warm place it would generate alcohol right away; where if you keep it cold it might go two weeks or three weeks, as far as that is concerned, and never get alcohol. That is the reason I didn’t ship any or sell any except in my own place.”

He was asked to tell what ingredients entered into the beer sold to Grandy, and he said: “It was made out of that sugar — of course it had that malt ingredient; part of the malt was in there, but the alcohol part had all boiled out — there is nothing but' the nutritious part of the malt * *

Another question: “Was there any alcohol in the beer you sold Fred? (Grandy). Ans. I suppose it had generated a little, but I don’t think at the time I sold it — I don’t think there was probably two-tenths of one per cent. — may be not that much * *

On cross-examination, he admits the malt ingredient, and in another part of his testimony, he states that hops are used in lager beer, while in the near beer hop .extract is used, that is nonalcoholic but is the same thing as hops.

Again he is asked: “This brew that you sold that day would become intoxicating if left standing there? Ans. ' Yes, if I had sold' it to somebody else, or let it go out of the place; but I don’t allow it to go in a can or pail anywhere, so I was sure it wouldn’t get intoxicating * *

The purchaser of this article called “Near Beer” testified that it foamed like beer — looked like beer except that it was a little lighter — and smelled like beer. He also testified that Walder told him “he had a brew of malt the same as they would for beer, and that the liquid was boiled until they boiled the alcohol out of it * * He said it was made from malt the same as they made their beer.

It appears from the above and other evidence, that the trial court is fully supported in its finding that the beverage sold was a malt liquor, and it might also have been found that if given time or moderate warmth, it would generate alcohol. For this reason the accused would not sell the beverage to be taken from his premises.

What is the law applicable to the finding and the facts?

Section 3 of the county local option statute, already referred to, provides: “The phrase 'intoxicating liquor’ as used in this act shall be construed to mean any distilled, malt, vinous or any intoxicating liquor whatever.” While this section of the above statute has not heretofore been before this court for construction, we borrow light from what has been said in construing certain provisions of the Dow law and of the later Aikin law, concerning the taxing of the traffic in intoxicating liquors. In State, ex rel. Guilbert, Auditor, v. Kauffman, 68 Ohio St., 635, a dealer in “Bishop’s Beer” was resisting the payment of what was commonly called the Dow tax, because such beer was not intoxicating and did not come within the purview of the taxing statute. This court held in the syllabus that, “Section 4364-9, Revised Statutes, applies to the business of selling a malt liquor or beverage which contains less than two per cent, of alcohol and is not intoxicating.” The court disposed of the question in the following per curiam: “Section 4364-9, Revised Statutes, imposes a tax oh the business of trafficking in any intoxicating liquors, and also on the business of trafficking in spirituous, vinous or malt liquors. The generic term ‘malt liquors’ includes both non-intoxicating and intoxicating malt liquors * *

The statute then before the court was Section 4364-9, Revised Statutes, which provides that, “upon the business of trafficking in spirituous, vinous, malt, or other intoxicating liquors, there shall be assessed yearly and shall be paid into the county treasury * * * the sum of * * . This wording is the same as contained in the prior statute on the subject, except that the word “any” in the former is supplanted by the word “other” in the statute in force when the above Kauffman case was decided.

In a later case, La Follette, Treasurer, v. Murray, 81 Ohio St., 474, this court considered the section (4364-9) which is worded as above quoted, viz: “upon the business of trafficking in spirituous, vinous, malt or other intoxicating liquors, there shall be assessed,” etc. The case was not one of “Near Beef” but of “Friedon Beer,” containing .47 of one per cent, of alcohol, which it was claimed was hot intoxicating. The statute? 'and former decisions were reviewed, and the court’s conclusion is stated in the following syllabus: “Section 4364-9, Revised Statutes, (98 O. L., 100) in effect April 10, 1906, applies to the business of trafficking in malt liquors, whether intoxicating or nonintoxicating.”

The legislature went further, in order to make clear its -meaning, and made a definition of the phrase “trafficking' in intoxicating liquors,” which is found in Section 4364-16, Revised Statutes. And we find that in the statute providing for municipal local option, the legislature, in Section 4364-20c, Revised Statutes, defines the phrase “intoxicating liquors” as used in this act shall be construed to mean any distilled, malt, vinous, or any other intoxicating liquors.

Now as we come to the county local option law, we find the legislature attempting to -silence all quibbles as to what the phrase “intoxicating liquor” means, enacting Section 3 of that act, which may again be quoted: “The phrase ‘intoxicating liquor’ as used in this act shall be construed to mean any distilled, malt, vinous, or any intoxicating liquor whatever.”

This definition is very clear, and is not vexed with the word “any” or “other” which gave rise to the legal controversies in construing the taxing statutes.

The legislature -may have heard of “Bishop’s Beer,” “Friedon Beer,” and later of “Near Beer,” and concluded that the enforcement of the will of the majority should not be defeated by subterfuge, or the juggling in percentages of alcohol, and has said that, for the purpose of carrying out the intention of the people to prohibit the sale of intoxicating liquors, certain beverages shall be legally considered intoxicating, although not so in fact; and malt liquor is one of those so designated. “Near Beer,” being a malt liquor, the statute pronounces it an intoxicating liquor, and made proof of its real intoxicating qualities unnecessary. It is no more protected than altogether beer, and the attempt to evade the law by brewing a near or almost beer, is by section 3, supra, rendered futile:

The legislative fiat has gone forth, that malt liquor is intoxicating within the meaning of the act, and that is the end of it.

If the law is wrong, it is for the legislatuie and not the court to correct it, but it was enacted no doubt to cover such evasions as have been, tried in many localities.

However, this feature of legislation is not singular. it has been indulged in many other cases and on various subjects. We have seen how trafficking in intoxicating liquors is defined. We mention some other exemplifications of such legislation. Section 4200-5, Revised Statutes, defines the word “drug,” and also what shall be considered .as “food.” The following section determines when “drugs” and when “food” shall be deemed adulterated. Section 4403/, Revised Statutes, provides : “Any person shall be regarded as practicing medicine or surgery or midwifery within the meaning of this act, who shall use the words or letters, ‘Dr./ ‘Doctor/ ‘Professor.’ ‘M. D.,’ ‘M. B./ or any other title,” etc. Section 4364-30g defines “intoxicating liquor,” “qualified elector,” “residence district;” defines the words “block” and “saloon.” Section 4364-30y makes certain facts prima fácie evidence of guilt, and Section 4387 defines' a “pawnbroker.” Many other illustrations may be found to show how fertile the legislature has been in settling some things by statute which might otherwise be difficult of proof.

The courts of other states have passed on similar legislation, and we select a few decisions from the great number of reported cases.

: In State of Maine v. Frederickson, 101 Me., 37, the supreme judicial court of that state held in the third section of the syllabus as follows: “The constitutional right of the legislature to regulate or prohibit the sale and keeping of intoxicating liquors, and to declare certain liquors intoxicating within the meaning of the law governing intoxicating liquors irrespective of the intoxicating character of such liquors as a matter of fact,-both under the state and federal constitutions, have been so universally answered in the affirmative, both by the decisions in our own state, and by the supreme court of the United States, that it is no longer a question for argument or even doubt..”

Luther v. State of Nebraska, 20 L. R. A., 1146, decides that the prohibition of the sale or keeping for the purpose of sale, of malt liquors without a license so to do, applies to all malt liquors, sold or kept for sale to be used as a beverage, whether intoxicating or not; and that it was not necessary to allege or prove that the malt liquor was in fact intoxicating. This case was decided in 1909.

To the same effect is Eaves v. The State, 113 Ga., 749. In Dinkins v. State, 43 So. Rep., 114, the supreme court of Alabama held that “under acts 1886-87, p. 665, prohibiting the sale of malt liquors, it is an offense to sell a fluid containing a weak solution of malt liquor which cannot intoxicate.” It seems that in that state (Alabama) the courts were called upon to investigate the sale of various beverages which appeared under such enticing names as “Hop Jack,” “Cherry Bitters,” “Harter’s Wildcherry Tonic,” and “Cook’s Malt Tonic.” There, as in other states, enterprise was unbounded to prepare something to slake thirst for some, even slight intoxicant, without being caught in the meshes of law. The above case reviewed Feibelman v. State, 130 Ala., 122, to which we merely refer without quotation. See also State of Missouri v. Wittmar, 12 Mo., 407. A case is found in Commonwealth v. Timothy, 8 Gray, 480, in which it is held: “If the liquor sold was not in fact intoxicating, still, if it was within the liquors enumerated in the first section of the statute, the keeping of it with intent to sell was, by the terms of the statute, to be punished in the same mariner as if it was intoxicating; and such an enactment is within the discretion of the legislature to pass.”

Similar doctrine is laid down in The State v. Certain Intoxicating Liquors et al., 76 Ia., 243. The case is directly in point.

We cite nothing further from the great array of authorities, some of which may be found in the brief for plaintiff in error.

The finding that the sale made which is now under consideration, was a sale of malt liquor is amply supported by the facts, and the statute declares malt liquor to be intoxicating within the meaning of,the act.

The circuit court erred in its judgment, which is now reversed, and the judgment of the court of. common pleas is affirmed.

Judgment reversed.

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

Shauck, J., dissents.


author: Shauck, J.

text:
    The Akron & Chicago Junction Railroad Co. v. Weedman, Executor.

      Unknown death of defendant in error — Before filing of petition in error — Written waiver of summons by counsel — Jurisdiction of circuit court on error complete — Sections 6713 and 6714, Revised Statutes — Executor should be made party defendant — Amendment — Section 5114, Revised Statutes.

    1. In view of the provisions of Sections 6713 and 6714, Revised Statutes, counsel authorized to represent the party who prevails in the court of common pleas is empowered to waive summons in error upon a petition in error in the circuit court for its reversal, and there being such waiver in writing the jurisdiction of the. circuit court is complete, even though the prevailing party dies before the filing of the petition in error, the fact of such death not being known to the adversary party or to counsel. (McGuire et al. v. Ranney, 49 Ohio St., 372, overruled.)
    2. In such case the death of the prevailing party being made known in the circuit court, his executor should be made a party defendant by amendment of the proceeding which is authorized by Section 5114, Revised Statutes.
    (No. 11573
    Decided November 22, 1910.)

      Error to the circuit court of Huron county.
    On the 25th of January, 1907, Mrs. Ramey recovered a judgment in the court of common pleas against the railroad company in an action upon contract. On the third of May, 1907, the company filed a petition in error in the circuit court for the ' reversal of that judgment. The issuance and service of summons on said petition in error was waived and the appearance of Jane Ramey was entered by the following endorsement on said petition in error and by her attorneys of record in the court of common pleas:
    “Now comes Jane Ramey, the defendant in error in the above entitled error proceeding, by C. P. Wickham and E. M. Palmer, her attorneys of record in the original action, and also her attorneys in this error proceeding, and waives the issuance and service of summons in error in this proceeding in error and enters her voluntary appearance herein.
    “E. M. Palmer and
    “C. P. and L. W. Wicki-iam,

      “Attorneys for Defendant in Error.”

    At two terms of the circuit court the hearing of said proceeding was continued, once upon the application of counsel for the company, and once upon the application of counsel for Mrs. Ramey. Thereupon it was learned by counsel that Mrs. Ramey had died on the 9th of March, 1907, though the fact of her death was not previously known by her own counsel, nor by any of the attorneys or officials of the company. Upon that discovery, on September 10, 1908, C. B. Weed-man, who had been qualified as executor of her will by the same counsel who had represented her on the trial of the cause in the court of common pleas, filed the following motion in the circuit court:
    “Now comes C. B. Weedman, as executor of last will and testament of Jane Ramey, deceased, and not entering his personal appearance herein, but appearing only for the purposes of this motion, and protesting against the jurisdiction of this court in the above entitled proceeding, and of himself as such executor, moves the court to dismiss' said 'proceeding for the reason that on the 12th day of March, A. D. 1907, said Jane Ramey, deceased, departed this life, and summons in error did not issue within four months from and after the rendition of the judgment, sought in said proceeding to be reversed, nor has service of the same even been had upon him as such executor.
    “E. M. Palmer,
    “C. P., L. W. & R. D. Wickham, '

      “Attorneys for C. B. Weedman, Administrator of the Estate of Jane Ramey, deceased

    Thereupon, on September 14, 1908, counsel for the company filed in the circuit court the following motion for the amendment of said proceeding:
    “Now comes the plaintiff in error in the above entitled error proceeding, and moves the court to amend, upon proper terms, the petition in error heretofore filed herein, and the record of said proceeding, by striking therefrom the name of Jane Ramey, and by adding in lieu thereof the name of C. B. Weedman, as executor of Jane Ramey, and by adding to said petition in error proper averments, showing the death of said Jane Ramey, and the appointment and qualification of said C. B. Weedman as her executor, and as ground therefor says:
    “That said proposed amendments are in furtherance of justice, and that said final judgment sought to be reversed in said error proceeding was rendered in the original action in the court below at the January term thereof, 1907, and on the 25th day of January in said year; and that said Jane Ramey departed this life on the 9th day of March, A. D.- 1907; and that said C. B. Weedman was duly appointed and qualified as her executor on the 18th day of March, A. D. 1907, by the court of probate in and for the county of Huron, and state of Ohio; and that at the time, to-wit, May 3, 1907, said petition in error was filed in this court, and said error proceeding commenced, said executor had due and legal notice and knowledge thereof, and duly entered his voluntary appearance in said error proceeding, and from thence forward until after the last term of this court, treated the same as duly pending in this court, and having had due notice and knowledge of the pendency of said proceeding, and the purpose thereof, ever since the same was filed therein, he is now estopped "to claim to the contrary; and that through mistake and inadvertence the name of Jane Ramey was inserted in said petition in error and so filed, instead of the name of C. B. Weedman, as her executor, and as defendant in error in said proceeding; and that this plaintiff in error did not know, nor did anyone of its attorneys know of the death of said Jane Ramey until about the 28th day of June, A. D. 1907, but the attorneys in the original action for Jane Ramey, and said C. B. Weedman, her executor as aforesaid, and his general attorney in the settlement of her estate, did know of her death at all the dates hereinbefore stated subsequent to that of her death, and that in their conduct in reference to said error proceeding in this court, said attorneys and said executor treated the same as duly commenced and pending against said executor, and in all their negotiations with the plaintiff in error, and its counsel, and in their statements to this court, they in ‘like manner, treated said error proceeding as duly commenced and pending against said Weedman as such executor, and that said attorneys and said executor, by their conduct and statements aforesaid, misled this plaintiff in error and its attorneys into the honest belief that said Jane Ramey was in full'life on said third day of May, A. D. 1907, and for about two months thereafter.
    “Wherefore, this plaintiff in error prays that said original petition and said record may be amended by striking therefrom the name of Jane Ramey, and by inserting in lieu thereof the name of C. B. Weedman, as executor of the last will and testament of said Jane Ramey, and by adding

      thereto appropriate averments showing the death of said Jane Ramey/ and the appointment and qualification of said Weedman as her executor; and that said executor may be adjudged to be es-topped from claiming that he is not, and never was a party defendant to said error proceeding, and that it may have such other and further relief in that behalf as the facts and justice may require.
    “Arrel, Wilson & Harrington,

      “Attorneys for the Defendant in Error.’"

    All the material facts alleged in these motions were, and are, admitted to be true. The circuit court overruled the latter motion and sustained the former, and this is assigned here as error.

      Messrs. Arrel, Wilson & Harrington and Mr. W. Severance, for plaintiff in error, cited and commented upon the following authorities:

      Railway Co. v. Bailey, 70 Ohio St., 88; Railway Co. v. Elyria, 69 Ohio St., 414; City of Toledo v. Converse et al., 65 Ohio St., 401; Irwin et al. v. Bank, 6 Ohio St., 81; Ireland v. Ireland, 11 C. C., 565; Doty et al. v. Rigour & Co., 9 Ohio St., 519; Negley v. Jeffers et al., 28 Ohio St., 90; Snider’s Exrs. et al. v. Young et al, 72 Ohio St., 494; Secor v. Witter, 39 Ohio St., 218; McGuire et al v. Ranney, 49 Ohio St., 372; Spalding v. Wathen, 7 Bush (70 Ky.), 659; Sections 5114, 6713 and 6714, Revised Statutes.

      Mr. E. M. Palmer and Messrs. C. P., L. W. & R. D. Wickham, for defendant in error, cited and commented upon the following authorities;

      Railway Co. v. Bailey, 70 Ohio St., 88; Railway Co. v. Elyria, 69 Ohio St., 414; City of Toledo v. Converse, 65 Ohio St., 401; Snider’s Exrs. v. Young, 72 Ohio St., 494 ; Pope v. Insurance Co., 24 Ohio St., 481; Kennard v. Kennard, 35 Ohio St., 660; Waldron v. Fuchs, 62 Ohio St., 633; Roberts, Exr., v. Roberts, Jr., 61 Ohio St., 96; McGuire v. Ranney, 49 Ohio St., 372.
   Shauck, J.

If it is assumed that attorneys-at-law are agents in the ordinary sense only of the parties whom they represent in courts of justice, the familiar rule that the authority' of an agent is revoked by the death of his principal affords justification for the action of the circuit court in overruling the motion of the plaintiff in error to amend the proceeding in error, as well as in sustaining that of the defendant in error to dismiss ' it. But the subject of a proceeding in error is the judgment whose reversal is sought. Although, unlike an appeal, a petition in error is requisite as the basis of the proceeding, legislation designed to make the proceeding practicable and to relieve it, as far as may be, of difficulty and uncertainty, naturally considers the intimate relation of the jurisdiction exercised by the original and appellate courts, as well as the peculiar representative character of counsel who represent parties in the court of first instance. To facilitate the acquisition of jurisdiction in the reviewing court, and to prevent its failure, Sections 6713 and 6714, Revised Statutes, were enacted. The former section provides that service of the summons in error shall be sufficient if made on the attorney of record in the original case. Section 6714 provides: “The summons mentioned in the last section shall, upon the written precipe of the plaintiff in error, or his attorney, be issued by the- clerk of the court in which the petition is filed, to the sheriff of any county in which the defendant in error, or his attorney of record is found * * * and the defendant in error, or his attorney, may waive in writing the issue or service of the summons.”

To say that counsel who appear as representatives of parties litigant can have no authority except that which depends upon the terms of their employment, or its actual continuance, or which is subject to annulment by any act of the parties, or that it may be revoked in any way by one party without the knowledge of his adversary and to his prejudice, even to the extent of defeating the review of a judgment, is to deny all effect to these provisions of the statute and to introduce unnecessary confusion and uncertainty. It results from these provisions that when a party authorizes an attorney to represent him in the court of record in which the cause is originally tried, he thereby authorizes him to represent him in the steps required to effect the jurisdiction of the reviewing court, and that until that jurisdiction is effected, a revocation of his authority, to be effective, must be of record.

The jurisdiction of the circuit court was complete when the counsel who had represented Mrs. Ramey in the court of common pleas, in strict pursuance of the terms and obvious purpose of the statute, entered in writing their waiver of a summons on the petition in error, and the circuit court should have not only overruled the motion to dismiss the proceeding, but it should have sustained the motion for the amendment of the proceeding. It cannot be necessary to repeat recent discussions which have conducted this court to the conclusion that Section 5114, Revised Statutes, provides for the amendment of proceedings in error and that it extends to such amendment as was here sought. The cases have been intelligently collected by counsel and they will be found in the reporter’s abstract of the briefs.

The action of the circuit court in dismissing the petition in error was in accordance with the decision in McGuire et al. v. Ranney, 49 Ohio St., 372. But in that case the statute authorizing service of summons in error upon the attorney of record in the original case, and authorizing such counsel in writing to waive the issuance of summons, does not appear to have been cited by counsel nor considered by the court. The basis of the conclusion reached in that case was thus stated by the court: “The decease of the defendant in error terminated the authority of the attorneys of record in the original case, and hence the entry of appearance on the petition in error is without legal effect.” However obviously that proposition comports with the general law of agency it cannot be reconciled with the statutory provisions above cited, nor with the considerations which should control in the administration of remedial statutes. That case is overruled: The order of the circuit court will be reversed and the cause will be remanded to that court with instruction to overrule the motion to dismiss the petition in error and grant the motion to amend and for further proceedings.

Judgment reversed.

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


text:
    Drake et al., Trustees, v. Tucker et al.

      Appealability of cause from common pleas to circuit court — Can be questioned only by motion to dismiss — Before trial.

    Whether a cause in which an appeal has been taken to the circuit court from the judgment of the court of common pleas is appealable, is a question which cannot be effectively made except by a motion to dismiss the appeal interposed in the circuit court before the trial in that court.
    (No. 12155
    Decided November 22, 1910.)
    Error to the circuit court of Lorain county.
    Plaintiffs in error brought suit in the court of common pleas to recover possession of a strip of ground eight feet in width which it was admitted the trustees of the church had leased to the ancestor in title of the defendants, and they alleged that the lessee’s right of possession had been forfeited because the property had been put to other than residential uses for which alone it has been leased, and that by the terms of. the lease the premises had, in consequence of such forbidden use, reverted to the lessors. The defendants pleaded by way of estoppel against the right of the plaintiffs to insist upon a forfeiture of the leasehold estate, their acquiescence in the changes of the uses of the property made by the defendants and a waiver of the condition in the lease upon which the action counted. The plaintiffs replied denying the allegations of the answer. In the court of common pleas a jury was waived, and upon a trial to the court the issues were found in-favor of the plaintiffs and judgment was accordingly rendered in their favor for the possession of the strip. The defendants appealed the cause to the circuit court. No motion to dismiss the appeal was made in the circuit court, but, as the record informs us, the cause was submitted to the court upon the pleadings and the evidence, and the court found that the defendants .were entitled to the continued possession of the property, but that they should be enjoined from making further contemplated changes in its use and rendered judgment accordingly. The circuit court made no special findings of fact, nor was a bill of exceptions taken to present the evidence upon which it made its general finding in favor of the defendants. The original plaintiffs prosecute error here for the reversal of the judgment of the circuit court.

      'Messrs. Webber & Metcalf, for. plaintiffs in error.

      Messrs'. Stroup & Fauver, for defendants in error.
   Shauck, J.

Since the record does not contain either a special finding of the facts upon which the circuit court rendered judgment in favor of the defendants, or a bill of exceptions showing the evidence upon which it based its conclusion as to the right of possession, no question respecting that right is before us.

But counsel for the plaintiffs insist that from the nature of the issues joined the case was not appealable from the common pleas court to the circuit court and that the latter court was, therefore,' without jurisdiction to render the judgment whose reversal they now seek. In order that the view upon which the case is to be determined here may not be obscured, we assume, without deciding, that the case was not appealable. It does not follow this assumption that the circuit court was without jurisdiction of the subject of the controversy between the parties. Such jurisdiction is conferred upon the circuit court by statute over the subject of every matter which has been litigated in the court of common pleas. It is quite true that there are different modes of invoking the exercise of that jurisdiction. It may be by appeal for a trial de novo in the cases designated in Section 12224, General Code, or by a petition in error upon the record made in the court of common pleas as is authorized in all cases by Section 12250, General Code. To give the circuit court jurisdiction of the subject of the controversy, the consent of the plaintiffs, upon the-assumption we are now making, was not necessary. Nothing fur-' ther was necessary than that they should waive objection to the mode in which the defendants invoked the exercise of the jurisdiction; and that they effectively did by entering upon the trial of-the cause in the circuit court without there interposing a motion to dismiss the appeal. The record shows that they raised no question respecting the1 mode by which the defendants had invoked the exercise of the jurisdiction of the circuit court until their motion for a new trial which was made after the trial was completed and the adverse conclusion of the court announced.

It frequently happens that the judgment of the circuit court is more favorable to the appellee than was that of the court of common pleas from which the appeal is taken. The view suggested by counsel for the plaintiffs would authorize the appellee in doubtful cases to seek such more favorable judgment by trying his case upon the appeal and then challenging the jurisdiction of the appellate court after it reaches a conclusion less favorable to him. That view is inconsistent with familiar practice and with obvious reasons. . The appellee cannot challenge the appealability of a cause in which proper steps for an appeal have been taken except by a motion to dismiss the appeal made in the circuit court before the cause is there tried. We attach no importance to the fact that in the present case there was a trial in the common pleas court without the intervention of a jury, because the question of appealability of a case cannot be effectively determined in that court even in the first instance.

Judgment affirmed

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