author: Price, J.

text:
    Humphreys, Executor, et al. v. The State of Ohio et al

      Collateral inheritance tax — Section 2731-1, Revised Statutes — Appeal may be taken from probate court, when — Appeal bond — • Section 6408, Revised Statutes — Perfection of appeal — Sections 6411 and .5227, Revised Statutes — Incorporated boards and societies for public charity — Liable to collateral tax, when —Construction of statutes — Constitutional law.

    1. Where the probate court, in the settlement of the estate of a decedent, determines the liability of a devise, legacy, bequest or inheritance to pay a collateral inheritance tax, under the provisions of section 2731-1, Revised Statutes, appeal may be taken by either party to the controversy regarding the tax, from the judgment of the probate court, to the court of common pleas as authorized by section 2731-13, Revised Statutes; and where the state, or the prosecuting attorney in behalf of the state, takes the appeal, it may be done without giving an undertaking for such appeal, and without filing the written notice of an intention to appeal provided for in section 6408, Revised Statutes. The appeal may be perfected by either party according to the provisions of sections 6411 and 5227, Revised Statutes.
    2. Boards and societies and auxiliaries thereto, which are incorporated and organized under the laws of other states, for “purposes of purely public charity or other exclusively public purposes,” are not “institutions” of that class in this state within the meaning of the latter clause of section 2731-1, Revised Statutes; and where they are entitled to receive property within the jurisdiction of this state, by deed of gift, bequest or devise, such gift, bequest or devise is liable to a collateral inheritance tax as provided in said section, although some of the charitable work, operations and enterprises of the institutions so incorporated and organized are carried on within this state.
    3. The statute so construed is not obnoxious to the second section of our bill of rights, nor to the fourteenth amendment to the constitution of the United States.
    (No. 8268
    Decided March 22, 1904.)
    Error to tlie Circuit Court of • Hamilton county.
    On July 9,1888, Isabella Brown, a resident of Cincinnati, duly executed her last will and testament, in which she made some bequests to her sister, Mrs. Atkins, to a nephew, Meredith Atkins, and other bequests to Mrs. Gass, of Camden, New Jersey, in trust, with provision therein that the income arising from the money so bequeathed should be paid to two nieces, Harriet and Mary Gass, until each should arrive at the age of thirty-two years, when the principal sum should be paid them equally.
    The testator bequeathed to the American Bible Society the sum of $5,000; to the American Tract Society, $5,000; and to the American Sunday School Union, $2,000. Bequests were also made to certain missionary societies and other benevolent religious organizations which are named separately in the will, and which are also plaintiffs in error.

      This will was admitted to prohate on September 19, 1899, and John E. Humphreys, executor, who was, by the terms of a codicil to the will, appointed executor, entered upon the execution of the trust.
    In progress of the settlement of the estate a question arose in the probate court concerning the payment of an inheritance tax on the several legacies made by the will to the various religious societies and boards, and the executor, Humphreys, submitted to the probate court his petition to have the matter determined.
    The prosecuting attorney of Hamilton county, appeared in behalf of the state, and contended that each of said legacies was subject to a collateral inheritance tax. After hearing, that court decided that no inheritance tax is payable on any of the legacies to the religious societies and boards, and ordered the executor to distribute the estate accordingly.
    The prosecuting attorney gave notice of appeal from so much of said order as finds that an inheritance tax is not payable upon the legacies to the American Bible Society, and the several other religious societies and boards, naming each in the notice.
    The appeal was filed in the court of common pleas, where a motion was made by the appellees to dismiss the appeal on the ground that no appeal bond had been given, nor was written notice of intention to appeal filed, and on the general ground that appellant had not otherwise complied with the law for such appeals. The court of common pleas overruled the motion and the appellees- excepted. The case was then heard on the merits and the court found and adjudged that each of said legacies is liable to a tax of five per centum of the amount of such legacies, with interest thereon from August 25, 1900. A motion for new trial was overruled, a hill of exceptions taken embracing the evidence adduced at the hearing, and the case was taken on error to the circuit court, where the judgment of the court of common pleas was affirmed. Error is prosecuted in this court to reverse the judgments of the circuit and common pleas courts.
    Additional facts appear in the opinion.

      Mr. Lawrence Maxwell, Jr.¡ Mr. John E. Humphreys and Mr. Joseph S. Graydon, for plaintiffs in error,
    cited and commented upon the following authorities :

      Santa Clara County v. Railroad Co., 18 Fed., 385 (affirmed 118 U. S., 394); Railway Co. v. Ellis, 165 U. S., 150; Railway Co. v. New Jersey, 31 N. J. Law, 531; Parker Collector v. Insurance Co., 42 La. An., 428; 7 So. Rep., 599; San Francisco v. Insurance Co., 74 Cal., 113; In re Johnson’s Estate, 73 Pac. Rep., 424; Estate of Leland Stanford, 58 Pac. Rep., 462; Re Mahoney’s Estate, 133 Cal., 180; Magoun v. Bank, 170 U. S., 283; State v. Ferris, 53 Ohio St., 314; Southern Gum Co. v. Laylin, 66 Ohio St., 578; Browne v. Wallace, 66 Ohio St., 57; Gerke v. Purcell, 25 Ohio St., 229; Alfred University v. Hancock, 46 Atl. Rep., 178; In re Prime’s Estate, 136 N. Y., 347; Rice v. Bradford, 180 Mass., 545; Morawetz on Corp. (2 ed.), sec. 1046; State v. Standard Oil Co., 49 Ohio St., 137; Eidman v. Martinez, 184 U. S., 578; In re Enston, 113 N. Y., 174; In re Swift’s Estate, 137 N. Y., 77; Gurr v. Scudds, 11 Exch., 190; U. S. v. Wigglesworth, 2 Story, 369; U. S. v. Watts, 1 Bond., 580; Fox v. Commonwealth, 16 Gratt., 1; Sprague v. Fletcher, 69 Vt., 69; 90 O. L., 17; sec. 6408, Rev. Stat.; Ord. 1787, art. 4; Const. 1851, schedule sec. 1; sec. 1977, U. S. Rev. Stat.

      Messrs. Hoffheimer, Morris & Sawyer, prosecuting attorneys, for defendants in error,
    cited and commented upon the following authorities:

      Keck v. Douglass, Assignee, 3 Circ. Dec., 629; 6 C. C. R., 629; Browne v. Wallace, 66 Ohio St., 57; Layer, Guard. v. Schaber, Admr., 57 Ohio St., 234; Act of April 6, 1900, 94 O. L., 101; Hooper v. Shaw, 176 Mass., 190; art. 4, sec. 2, Federal Const.; Louisiana v. Pilsbury, 105 U. S., 278; Mahoney’s Estate, 133 Cal., 180; Sprague v. Fletcher, 69 Vt., 69; sec. 1978, U. S. Rev. Stat.; State v. Ferris, 53 Ohio St., 314; Ord. 1787, art. 4; Dos Passos, sec. 18; Lee v. Sturges, 46 Ohio St., 153; In re Prime, 136 N. Y., 347; Balleis’ Estate, 144 N. Y., 132; In re Merriam’s Estate, 73 Hun, 587; University v. Hancock, 46 A., 178; U. S. v. Perkins, 163 U. S., 625; Minot v. Winthrop, 162 Mass., 113 (126); People v. Seaman’s Friend Society, 87 Ill., 246; Hagerty v. State, 55 Ohio St., 613; Eyre v. Jacob, 11 Gratt., 422; Tyson v. State, 28 Md., 577; Pullen v. Wake Co., 66 N. C., 361; Peters v. City, 76 Va., 927; Schoolfield v. City, 78 Va., 367; Paul v. Virginia, 8 Wall., 168; Fire Ins. Co. v. Oliver, 10 Wall., 410; Ducat v. Chicago, 10 Wall., 410; Pembina Consol., etc., Co. v. Pennsylvania, 125 U. S., 181; Horn, etc., Mining Co. v. New York, 143 U. S., 305; State v. Hamlin, 86 Me., 495; High v. Shoemaker, 22 Cal., 363; Canal Co. v. Outagamie County, 76 Wis., 587; Northern Pacific Ry. Co. v. Barnes, 51 N. W. Rep., 386; Hughes v. Cairo, 92 Ill., 339; Coal Co. v. Finlen, 124 Ill., 666; Cincinnati, etc., Railroad Co. v. Kentucky, 115 U. S., 321; Commonwealth v. Brewing Co., 145 Pa. St., 83;
      Insurance Co. v. New Orleans, 1 Woods, 85; State v. Lathrop, 10 La. An., 398; Milwaukee v. Helfenstein, 16 Wis., 136; Singer Mfg. Co. v. Wright, 33 Fed. Rep., 121; Express Co. v. Seibert, 142 U. S., 339; Railroad v. Pennsylvania, 136 U. S., 114; Telegraph Co. v. Mayer, 28 Ohio St., 521; Gas Light Co. v. Downey, 127 Ill., 201; Commonwealth v. Light Co., 145 Pa. St., 147.
   Price, J.

It is said in the opening of the brief for plaintiffs in error, that this proceeding involves two-questions of law:

1. Whether the appeal from the probate court to-the court of common pleas was duly taken.
“2. Whether the legacies are taxable.”

1. The right to appeal in cases like the present, is conferred by section 2731-13, Bevised Statutes, which is: ‘ ‘ The court of probate, having either principal or auxiliary jurisdiction of the settlement of' the estate of the decedent, shall have jurisdiction to hear and determine all questions in relation to said’ tax that may arise, affecting any devise, legacy or inheritance under this act, subject to appeal as in other cases, and the prosecuting attorney shall represent, the interests of the state in any such proceedings. ’ ’

■ It is claimed for plaintiffs in error, that the words subject to appeal as in other cases, mean that the remedy of appeal must be exercised according to the general rule provided for appeal from the probate to the court of common pleas, which is found in section 6408, Bevised Statutes. That section provides in substance, that the person desiring to take an appeal, shall, within twenty days after the making of the order, decision or decree from which he desires to appeal, give a written undertaking * * * to the adverse party, with one or more sufficient sureties, to ■ be approved by the probate judge, and conditioned, etc., etc.

But when the person appealing * * * is a. party in a fiduciary capacity in which he has given bond within this state, and he appeals in the interest of the trust, he shall not be required to give bond, but shall be allowed the appeal, by giving written, notice to the court of his intention to appeal within the time limited for giving bond.

It is conceded in this ease that no bond was given,, by either the state or by the prosecuting attorney in. behalf of the state; and it is manifest on the record that the only notice of appeal was given by journal entry as follows: “The prosecuting attorney gives-notice of appeal from so much of said order as finds-that an inheritance tax is not payable upon the-legacies to the following legatees, viz.: American Bible Society, ’ ’ et al., naming each of the other religious societies and boards, receiving legacies.

But is the mode of appeal governed by section. 6408, Revised Statutes ? In such a proceeding 'before the probate court, it cannot be correctly stated that either the state or the prosecuting attorney acts in a fiduciary capacity. On the contrary the-state is a sovereign and such is its relation to the controversy. It is provided in section 213, Revised Statutes: “No undertaking or security is required on behalf of the state or of any officer thereof in the prosecution or defense of any action, writ, or proceeding; nor is it necessary to verify the pleadings-on the part of the state or any officer thereof in any such action, writ, or proceeding. ’ ’

It is under this section, that the state or its officer is relieved from giving bond for an appeal, and not under section 6408, supra. And the state or the prosecuting attorney, not sustaining a fiduciary relation to the proceeding, the notice of appeal in behalf of the state need not be in writing as provided in the latter section; for it is only where that relation exists, that such written notice is required under its provisions.

We are of opinion that section 6411, of the same chapter and title furnishes the guide in this case. “The provisions of law governing civil proceedings in the court of common pleas shall, so far as applicable, govern like proceedings in the probate court, when there is no provision on the subject in this title.”

We* have seen that the other provisions of the title do not apply to this class of proceedings.

We therefore look to the manner of appeal from the court of common pleas as found in section 5227, Revised Statutes, which is: “A party desiring to appeal his cause to the circuit court, shall, within three days after the judgment or order is entered, enter on the records notice of such intention * * *. ” This was the law at the time of the appeal in this case.

Notice of intention to appeal was entered on the records of the probate court in conformity with the above rule, and we think it is sufficient.

The appeal was properly sustained.

2. Whether the legacies are subject to the collateral inheritance tax, depends on the construction of section 2731-1, Revised Statutes. The statute in its present form was enacted April 6, 1900. See 94 O. L., 101.

This act provides in part: “That all property within the jurisdiction of this state, and any interests therein, whether belonging to inhabitants of this state or not, and whether tangible or intangible, which shall pass by will or by the intestate laws of this state, or by deed, grant, sale or gift, made or intended to take effect in possession or enjoyment after the death of the grantor, to any person in trust or otherwise, other than to or for the use of the father, mother, husband, wife, brother, sister, niece, nephew, lineal descendant, adopted child, * * * or the lineal descendants of any adopted child, the wife or widow of a son, the husband of the daughter ■of a decedent, shall be liable to a tax of five per centum of its value, above the sum of two hundred ■dollars, seventy-five per centum of such tax to be for the use of the state, and twenty-five per centum for the use of the county wherein the same is collected * * *.

“But the provisions-of this act shall not apply to property, or interests in property, transmitted to the ■state of Ohio under the intestate laws of this state, or ■embraced in any bequest, devise, transfer or conveyance to, or for the use of the state of Ohio, or to or for the use of any municipal corporation or ■other political subdivision of said state for exclusively public purposes, or public institutions of learning, or to or for the use of any institution in said state for purposes of purely public charity, or other ■exclusively public purposes; and the property, or interests in property so transmitted or embraced in any such devise, bequest, transfer or conveyance is hereby declared to be exempt from all inheritance .and other taxes, while used exclusively for any of said purposes.”

The words in the exemption clause, “to or for the use of any institution in said state for purposes of purely public chanty or other exclusively public purposes,” are the subject of the present controversy.

The first lines of the act are comprehensive and would embrace the legacies named and subject them, to the inheritance tax, unless they are saved by the above exemption clause. Therefore counsel have discussed, and we are called upon to consider, the scope of the language quoted when applied to the facts of the present case. What are the material facts ?

It is shown by the record that all the legatee societies and boards who are plaintiffs in error, save the-Woman’s Home Missionary Society, are incorporated in states other than Ohio, and while they are not organizations for profit, but for the purpose of advancing the cause of religion and dispensing charity, they are, nevertheless, foreign corporations. Some-were chartered under the laws of New York, and others under the laws of Pennsylvania.

The Woman’s Home Missionary Society, is an auxiliary to the Board of Home Missions, and the-Woman’s Foreign Missionary Society is auxiliary to-the Board of Foreign Missions. The parent of all these societies and boards seems to be The General Assembly of the Presbyterian Church in America, incorporated in another state, which is the central and supreme authority, and where the subordinate societies and -boards became incorporated, it was done under the direction of the General Assembly.

The American Tract Society has colporteurs in almost, if not all the states of the Union, and other agencies for the distribution of religious literature. The aim of the American Bible Society is the distribution of the Holy Scriptures, translated 'into-numerous languages, among the people generally,. .and especially among the destitute and needy classes. While foreign corporations, or auxiliaries thereto, it is true that the work laid out for each board and society, is carried on in all the states through local and "subordinate agencies, and it may be admitted that theirs are works of charity in the broad sense, that the up-lifting of men, women and children to the standard of life taught in the Scriptures is indeed a work of charity, the greatest of the three Christian .graces. The funds to carry forward these religious enterprises, under the various names and organizations, are raised by church and other collections and largely aided by devises and legacies.

The testatrix, Isabella Brown, no doubt was a devout member of the Presbyterian church, and of her. bounty she liberally gave to these several societies .and boards, believing they could best employ her gifts in advancing the cause of the church of her choice.

The work of the Board of Missions for Freedmen lies mostly in our southern states. But it must be stated as a fact appearing in the record, that while legatees who are plaintiffs in error, through auxiliary and subordinate agencies, are diligent in every state of the Union, the higher authority to which they must account, resides beyond the jurisdiction of this state, and hence the question recurs, are they “mstitutions in this state for purposes of purely public-charity, or other exclusively public purposes?”

We are urged to conclude, that because the work of these societies and boards is in progress, in greater or less degree, and their influence felt in this state through the various subordinate agencies employed, the institutions themselves are in this state within the meaning of the statute. If this is true of Ohio, it is true of every other state, and we have these institutions, not only in the state where they are chartered, but omnipresent and in all the states. In other words, they would, as institutions exist in any state where any of their charitable or religious enterprises are projected and carried on, no matter in what degree. Such a construction of the facts and the law we think is not permissible, if the statute is valid, of which we shall speak later in this opinion.

It seems to be true that some of these societies and boards have an office in Ohio in charge of a representative, the better to conduct the affairs of that church agency. So also have railway, insurance, telegraph, telephone, and other foreign corporations; but that is to further their business enterprises. Such companies are not “institutions in this state,” because they have traffic «and conduct business here. They are still corporations and institutions of the state where chartered and organized.

Learned counsel for plaintiff in error ask in their brief, “Where are these institutions if not in Ohio? Where were the institutions before charters were granted? for they were in existence long prior to the dates of the charters.”

It is perhaps true, that these institutions now operating under charters, may have had another form of existence prior to the date of the charters, but in the wisdom of the General Assembly of the church, it was decided to organize them under charters and it selected the state under whose laws it should be done. It is not a new proposition, that the home of the corporation is the state of its incorporation, and when so incorporated under the laws of a. state selected for that purpose, it has also selected its abiding place, and no longer can be recognized as homeless, or as abiding in every state where they have agencies carrying forward their work of benevolence and charity. We think this view is abundantly supported by the authorities.

The will of Mrs. Brown, who was a resident of Cincinnati, gave no directions to her executor or her legatees as to the place where the money should be expended, nor does it undertake to control the time or place of the expenditure. Once in the possession of these institutions, it may be disbursed as they deem proper, and all of it may be disbursed in communities beyond our borders. So we do not find that we are adopting a narrow construction of our statute, if it appears that it undertakes to tax the right of the foreign, though charitable institutions, to receive and so absolutely control the disposition of property owned by the testatrix in this state. We think these legatees are not “institutions in this state” within the meaning of the statute.

The doctrine we maintain is happily expressed by Justice Field in Paul v. Virginia, 8 Wallace, 181, as follows: “Now a grant of corporate existence is a grant of special privileges to the corporators, enabling them to act for certain designated purposes as a single individual, and exempting them (unless otherwise specially provided) from individual liability. The corporation being the mere creation of local law, can have no legal existence beyond the limits of the sovereignty where created. As said by this court in Bank of Augusta v. Earle, ‘It must dwell in the place of its creation and cannot migrate to another sovereignty.’ The recognition of its existence even in other states, and the enforcement of its contracts made therein, depend purely upon the comity of those states — a comity which is never extended where the existence of the corporation or the •exercise of its powers are prejudicial to their interests or repugnant to their policy * * *. They may exclude the foreign corporation entirely; they may restrict its business to particular localities, or they may exact such security for the performance of its contracts with its citizens as in their judgment will best promote the public interest. The whole matter rests in their discretion.” Again, in speaking of the assent of the other states to transact business within their borders, the learned Justice adds, “that such assent may be granted upon such terms and conditions as those states may think proper to impose. ’ ’

We have from this high authority, a definition of the situs of corporations and their relation to states other than where chartered; and we find no distinction in this respect, between business corporations and those not for profit, or, for religious or •charitable purposes.

Quotation from other authorities, we think superfluous, and it seems clear, that these charitable and religious institutions being corporations foreign to this state, are not “institutions in this state,” and are therefore not within the exemption provided in the inheritance statutes.

Applying the doctrine in a practical manner, we have numerous decisions, many of which are cited in the brief for defendants in error. We will occupy space in citing and discussing but few of them, and ■only such as may serve as fairly representative of the many others.

In People v. The Seaman’s Friend Society, 87 Ill., 246, it appears that the Society was incorporated under the laws of Ohio. It had a building in Chicago in charge of a superintendent, where seamen, dock-men, were solicited to meet for religious and moral instruction, and lodging was provided for needy ■cases. The object of the society, as declared in the act of incorporation, is “for disseminating moral and religious instruction, and other charities, among sailórs, and laborers doing business on our western ■waters.” This institution resisted the collection of a tax on the Chicago premises, on the ground that being a place where charity is dispensed, it was exempt. The court, on page 249, say: “But if a broader construction could be given to the statute, and it could be held to embrace all institutions that dispense charity, whether public or private, and the property used exclusively for that purpose, there is still a valid reason why the property in this case is not exempt from its just proportion of taxation. The statute must, in any event, be understood to have exclusive reference to institutions or corporations created by the laws of this state, and not to foreign corporations that may choose to locate branches in this state. It is only by the comity that exists between states that foreign corporations are permitted to transact in this state the business for which they were created. The general assembly has manifested no intention to relieve the property situated in this state, belonging to such corporations, no matter what their objects may be, whether charitable or otherwise, from the burdens of taxation.”

We further illustrate the application of the statute by reference to another leading case, decided by -the Court of Appeals of New York: Matter of Estate of Prime, deceased, 136 N. Y., 347.

Prime, a resident of that state, died in the city ■of New York on April 7, 1891, leaving a will disposing of real and personal property. He gave legacies to collateral relatives and also to two foreign corporations — The American Board of Commissioners for Foreign Missions and the Presbyterian Board of Belief for Disabled Ministers. The taxing authorities exacted a collateral inheritance tax on the legacies to those corporations, as well as on the legacies to the collateral heirs. These legatees appealed and the controversy finally reached the court of appeals. Other questions were in' the case, as to the condition of the statutes of that state upon the subject, which are not relevant here and they a're omitted. We quote from the able opinion of Andrews, C. J., as follows:

“The claim that the test of liability of foreign corporations to a legacy tax is the liability of a domestic corporation of the same character to the payment of such tax, and that if one is exempt, the other is exempt also, has, we think, no foundation.. In both cases, the question is the same; has the statute made the legacy taxable? * * * The argument that gifts for the promotion of charity, education and religion should be encouraged and should, not be diminished by exactions of the state, presents-a moral and political rather than a judicial question.. It is the duty of courts in the interpretation of statutes, to declare the law as it is, and the interests of society are best subserved by a close adherence by courts to what they find to be their plain meaning, neither narrowing the application on one hand, nor extending the meaning on the other, to meet a case not specified, which may be within the reason of the-law.' # * * It is the policy of society to encourage benevolence and charity. But it is not the proper function of a state to go outside its own limits and devote its resources to support the cause of religion, education or missions for the benefit of mankind at large. ’ ’

The opinion from which the above is quoted was unanimous.

The same court had before it another inheritance tax case which is found in Matter of Balleis, 144 N. Y., 132, where the Prime case was considered and its principles unanimously approved. It was held that, “a statute of a state granting powers and privileges to corporations must, in the absence of plain indications to the contrary, be held to apply only to corporations created by the state and over which it has the power of visitation and control. The legislature in such cases is dealing with its own creations, whose rights and obligations it may limit, define and control. ”

The Prime case was considered as a valuable authority in United States v. Perkins, 163 U. S., 625, and it is quoted from, as we have done, with approval, and adds, as found on page 629: “Such a tax (inheritance tax) was also held by this court to be free from any constitutional objection in Mager v. Grima, 8 How., 490-93, Mr. Justice Taney remarking that ‘the law in question is nothing more than an exercise of the power which every state and sovereignty possesses, of regulating the manner and terms within which property, real and personal, within its dominion may be transferred by last will and testament, or by inheritance ,* and of prescribing who shall and who shall not be capable of taking it. * * * If a state may deny the privilege altogether, it follows that when it grants it, it may annex to the grant any conditions which it supposes to be required by its interests or policy.’ We think that it follows from this that the act in question is not open to the objection that it is an attempt to tax the property of the United States (a legatee of personal property), since the tax is imposed upon the legacy before it reaches the hands of the government. The legacy becomes the property of the United States only after it has suffered a diminution to the amount of the tax, and is only upon this condition that the legislature assents to a bequest of it.”

The same doctrine is found in Eidman v. Martinez, 184 U. S., 578; Horn Silver Mining Co. v. New York, 143 U. S., 305.

From the foregoing cases, we see that the exemptions of charitable institutions, would relate only to domestic institutions of that class, even if the words “in the state” had been omitted from the statute. It is not a tax upon property, but upon the right to receive property and have it transferred. Our statute does not impose the tax upon the property directly, because it provides that “all administrators, executors and trustees * * * shall be liable for all such taxes, with lawful interest, as hereinafter provided * * *.”

However, it is argued that our construction of the statute, places it in conflict with section 2 of our bill of rights; and also in conflict with the fourteenth amendment to the constitution of the United States. .We will consider these guarantees together.

That part of section 2 of our bill of rights which is germane to the argument is, “ * * * # and no special privileges, or immunities shall ever be granted, that may not be altered, revoked, or repealed by the general assembly.” ' That portion of the so-called fourteenth amendment to the constitution of the United States, which is pertinent now, is:

“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; * * * nor deny to any person the equal protection of the laws. ’ ’

Very much that we have already said and quoted, bears upon the interposition of these provisions, and we still fail to see how the statute under consideration discriminates against the institutions complaining here.

Section 2 of the bill of rights interdicts the conferring special privileges and immunities beyond the power of the general assembly to alter, revoke, or repeal. There is nothing occult or mysterious about this language in our declaration of fundamental principles.

Our constitution was adopted by the people of Ohio as their charter of rights and restraints, and it is not charged with the care of non-resident persons or corporations; and the statute in question creates no privileges or immunities in favor of charitable institutions within the state, which the general assembly may not alter, revoke, or repeal; and surely it is competent for it to exempt the property of institutions, corporations, which it has created, which property is devoted to purely religious or charitable purposes. There are no Ohio institutions here complaining of any discrimination against them.

Nor do we see any help for plaintiff: in error, in the fourteenth amendment to our federal constitution. The statute we are considering, does not abridge the privileges or immunities of citizens of other states, nor does it deny to any person the equal protection of the laws.

Within the meaning of this clause a foreign corporation is not a citizen, and cannot invoke its prot'ection. By judicial construction of the constitution of the United States and the Federal Judiciary Act, a corporation is a citizen for the purposes of federal jurisdiction, of the state by which its charter has been granted, and this without reference to the residence of the members or shareholders who compose the corporation. When a corporation chartered by or created under the laws of a foreign state is sued in a state court, it may remove the cause to the circuit court of the United States in like manner as a non-resident citizen may, without regard to residence of its members or shareholders. But it is a settled principle of constitutional law that a corporation is not a citizen within the meaning of that clause of the constitution of-the United States which declares that “the citizens of each state shall be entitled to all privileges and immunities of citizens of the several states.” 10 Cyc., 150; Ducat v. Chicago, 48 Ill., 172; Tatem v. Wright, 23 N. J. Law, 429; Ducat v. Chicago, 10 Wall., 410.

In Pembina Consolidated Silver Mining and Milling Co. v. Pennsylvania, 125 U. S., 181, the Supreme Court of the United States says in the syllabus:

“Corporations are not citizens within the meaning of the clause of the constitution declaring that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states: article 4, section 2, clause 1. A private corporation is included under the designation of ‘person’ in the fourteenth amendment to the constitution, section 1. The provisions in the fourteenth amendment to the constitution, section 1, ‘that no state shall deny to any person within its jurisdiction the equal protection of the laws,’ do not prohibit a state from requiring for the admission within its limits of a corporation of another state, such conditions as it chooses.”

This doctrine was fully reviewed and endorsed in Horn Silver Mining Co. v. New York State, 143 U. S., 305.

It seems unnecessary to cite other decisions by state courts, since the highest tribunal in the land has thus expounded these constitutional provisions.

There is another reason why the alleged discriminations against non-resident institutions is without foundation. The- legislature has the right, in laying taxes, to classify corporations, as has been done in this state in recent years and which has been upheld by this court as within the constitutional power of the general assembly. Railroad companies are reached by one mode of appraisal and assessment for taxes; telegraph, telephone, and express companies by other methods; and more private corporations by still another mode. No discriminations can be tolerated in favor of or against one of the corporations of the same class; but there is no' valid objection in the fact that one class is required to share in the common burden of taxation in a different way and even in a different degree, from those in other classes. Lee, Treas. v. Sturges, 46 Ohio St., 153; Hagerty v. The State ex rel., 55 Ohio St., 613.

If resident corporations, the creatures of our own laws, cannot justly complain of such classification, how can foreign corporations be heard to find fault, when they may be subjected to any reasonable condition for their admission to operate in this state, and even may be excluded altogether, unless engaged in interstate commerce?

The judgment of the lower court is sound, and it is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: Shauck, J.

license: Public Domain

text:
    The Cincinnati, Hamilton & Dayton Railway Co. v. Bailey.

      Mistakes and amendments in pleadings — Section 5114, Revised Statutes — Applicable in proceedings in error — Omission to subscribe petition may be rectified, when.

    Section 5114, Revised Statutes, providing for the amendment of “any pleading, process or proceeding,” is applicable to proceedings in error, and if a petition in error has been filed within the time limited for that purpose, the plaintiff and his-counsel having, by mistake, omitted to subscribe it, it may, under favor of this section, be amended by subscribing it after the expiration of such time.
    (No. 8225
    Decided April 12, 1904.)
    Error to the Circuit Court of Putnam county.
    In the court of common pleas the defendant in error instituted an action against the railway company, and, upon the trial of the issues of fact joined, recovered a judgment against it. The company, within the time limited by the statute, took proper1 steps to have a bill of exceptions made a part of the record and filed its petition in error in the circuit court for the reversal of the judgment of the court of common pleas for errors specifically assigned. By mistake and inadvertence the petition in error was not signed at the bottom thereof by the company, its counsel or any one representing it. There was, however, indorsed upon it the following waiver of process and entry of appearance: “I, the defendant in error, hereby waive the issuing and service of process, and enter my appearance in the above entitled cause in the circuit court of Putman county, Ohio. John P. Bailey, defendant in error. May 17, 1902.” Thereupon, after the expiration of the time limited for filing the petition in error, the defendant in error filed a motion “to strike from the files of the court, the paper styled a petition in error.” The company thereupon filed a motion for leave to amend its petition in error by subscribing the same, and. with its motion filed an affidavit by its counsel who. had charge of the preparation and filing of the petition in error, showing that by mere mistake and inadvertence the waiver of summons had been obtained upon what was intended to be an office copy,, and that it had been filed instead of the petition .which had been signed. These motions came on for-hearing in the circuit court and on October 29, 1902, that court overruled the motion of the company for-leave to amend the petition in error by signing it, and sustained the motion to strike it from the files. The rulings upon these motions are here assigned as. grounds for reversing the judgment of the circuit, court.

      Mr. R. D. Marshall and Messrs. Watts & Moore,. for plaintiff in error.

      Messrs. Randy & Unverferth and Mr. D. M.. Bailey, for defendant in error.
   Shauck, J.

It will be necessary to consider but. one of the reasons assigned by counsel for the plaintiff in error in support of the conclusion that the-judgment of the circuit court is erroneous. The.question first in order and importance is, did the circuit court err in refusing leave to the plaintiff in error to amend its petition in error by subscribing it? It has long been recognized that with respect to questions of practice in reviewing courts they are, in the absence of statutory provisions specially applicable, determined by the provisions of the code of civil procedure with respect to similar questions .arising in original cases. The case of Smetters v. Rainey, 14 Ohio St., 288, was determined by such analogy. The case, though adversely criticised in ■ other respects, has, in this respect, always been followed with approval. It was so approved in Robinson v. Orr et al., 16 Ohio St., 289, where the subject is sufficiently discussed, and in numerous other--cases.

Is the amendment proposed by the motion for leave to amend within the established' rules with re,spect to the general subject of amendments? The legislation upon the subject is found in section 5114, Revised Statutes, that: ‘ The court may, before or .after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading,' process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, ■ or by inserting other allegations material to the case, ■ or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved; and when an action or proceeding fails to conform to the provisions of this title, the court may permit the same to be made conformable thereto, by amendment.” We have not been favored with a process of reasoning by which it is supposed that a proceeding in error may be excepted from the provisions of the statute which provides generally for the amendment of proceedings. The section has been under consideration many times, and in Irwin v. Bank, 6 Ohio St., 81, it was held applicable to an appellate proceeding and to authorize the correction of a substantial defect in such proceeding, if it results from mistake and the correction would be made in furtherance of justice. The express terms of the statute defining the, amendment which may be made authorize the addition of a name. To the suggestion that ,the case presented nothing to amend, it is sufficient to say that it has already been decided that an unsigned petition is a petition. Conn v. Rhodes, 26 Ohio St., 644. Since .the section authorizes the amendment of proceedings with respect to substantial defects no inference against the right to amend can be drawn from the dismissal of petitions substantially defective when no application was made for leave to amend. It appears, therefore, that all suggestions urged in support of the action of the court on the motion for leave to amend have been clearly answered by the decided cases.

It seems important to observe that the tendency of recent legislation and attendant adjudication is toward, and not from, the view that proceedings in error are not to be regarded with less favor than other remedial proceedings. •

Judgment reversed.

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


author: Davis, J.

text:
    Thomas v. The Trustees of Ohio State University.

      Devise to educational institution — In case devise fails — Testator empowers only lineal descendant to ratify devise — Descendant deeds to devisee — Section 5915, Revised Statutes■ — ■ Construction of wills.

    1. A testator having devised to an educational institution, and in case such devise should fail or be held void for any cause, then to the children of his two brothers, anil having in a codicil authorized, empowered and requested his daughter, who was his only lineal descendant, to ratify and confirm the devise to the institution, declaring that, “in case she complies” with this request the devises and bequests over to the children of the testator’s brothers “are revoked,” and the testator having died within a year from the making of the will, so that the devise to the institution became invalid by virtue of section 5915, Revised Statutes, and the daughter having executed the power by a deed to the institution, the children of the testator’s brothers take nothing under the will. Board of Trustees of the Ohio State University v. Folsom et at., 56 Ohio St., 701, approved and followed.
    2. The power and authority by the testator conferred upon his daughter and heir at law, is not a devise in trust to or for such institution, but is a naked power to appoint to a design nated object, and is not rendered invalid by section 5915, Revised Statutes.
    3. A deed of confirmation expressly purporting to execute such power and conveying the property which had been devised,is operative to invest the grantees with a full and perfect title to the property therein described.
    (No. 8302
    Decided April 12, 1904.)
    Error to tlie Circuit Court of Pickaway county.
    This is another phase of the same controversy which appears in the case of the Board of Trustees of the Ohio State University v. Folsom et al., 56 Ohio St., 701. This action was begun by John Gr. Haas and Daniel Haas, as trustees under the last will and testament of Henry P. Page, deceased, against Charlotte G. Page, the widow of the testator, the Board of Trustees of the Ohio State University, the plaintiff in error, Maria P. Thomas, Charles J. Folsom, Ellen Gill, Henry P. Folsom, Clarence H. Folsom et al., the object and purpose of said action being to obtain an interpleader between the said defendants in respect to their claims under the will and codicils thereto of Henry F. Page, and a certain deed made by Isabel Page, his daughter, as hereinafter stated, and to determine the rights of the said • defendants thereunder. The last will and testament of Henry F. Page, late of Pickaway county, contained, among other things, the following:
    “V. I give and devise to the Ohio State University to be invested as the endowment fund, in fee simple .and absolutely, all the residue, rest and remainder of my real estate and personal property in Ohio, Illinois or elsewhere. This devise shall include lands or personal property acquired hereafter, or .acquired under Item 7.
    “VI. If the devise and bequests contained in the last clause shall fail or be held void for any cause, then I give and devise the real and personal estate described in said clause number five (5) to the •children and legal representatives of my brother, Charles Folsom, and of George Folsom, deceased, in fee simple and absolutely.
    “VII. By the words rest and residue and remainder, in clause five, is meant all my real and personal property, subject to the life estate and interest given to my wife and daughter.”
    Also a codicil containing the following:
    “II. The object and intention of the devise in my will to the children of George Folsom, deceased, and to the children of Charles Folsom, was that in case of my death, within a year from the date of my will and the consequent failure of the bequest and devise to the Ohio State University, the said children should take the property, but not that they should have the same in any other event.
    “I now provide and declare that my said daughter is fully authorized and empowered to ratify and confirm said devise and bequest to the said university in case of my death within a year from the date of said will, and she is desired and requested by me to do so.
    “In case she complies with this request the devises and bequests to the said children of George Folsom and Charles Folsom are hereby revoked. ’ ’
    • The said daughter of Henry F. Page, Isabel Page, executed the power conferred in the said will and. .codicil by a deed of confirmation, in which the material parts are as follows:
    “Now, therefore, I, the said Isabel Page, the-daughter and only issue of the said Henry F. Page, the said testator, in execution of the authority and. power conferred upon and vested in me by said testator in and by the first of said codicils, to ratify and confirm the said devise and bequest to the Ohio-State University contained in said will and the said first codicil, and in consideration of the premises and of the sum of one dollar to me paid by the Board of Trustees of the Ohio State University, the receipt whereof is hereby acknowledged, do hereby ratify and confirm said devise and bequest to the said Ohio State University, and do hereby convey unto the Board of Trustees of the Ohio State University, and the successors and assigns of said board forever, in trust for the use and benefit of said university, to be invested as the endowment fund, all the property,, real and personal, devised and bequeathed by said. testator to the said Ohio' State University in and by his said will and codicils, the same being all the residue, rest and remainder of the real estate and personal property in Ohio or elsewhere of which said testator died seized, ’ ’ etc.
    After executing the said deed Isabel Páge, who was the daughter and only lineal descendant of Henry F. Page, died, leaving her mother, Charlotte G-. Page, claiming to be her only heir at law. The plaintiff in error claims an interest in the lands devised to the Board of Trustees of the Ohio State University by virtue of the said will of Henry F. Page, and also claims by inheritance from him through the said Isabel Page. Charlotte Gr. Page afterward, on or about January 17, 1898, by deed of that date, released and quitclaimed to the board of trustees of the Ohio State University all of the real estate of the testator, Henry F. Page, in Ohio and Illinois, subject to her life estate therein.
    This suit was heard in the court of common pleas of Pickaway county and was dismissed for the reason that the court was of opinion that it had no jurisdiction to try the issues therein presented; an appeal was taken to the circuit court by the board of trustees of the Ohio State University, and, upon the hearing in the circuit court, the findings and adjudication of that court were in favor of the Board of Trustees of the Ohio State University; a motion for new trial was made by Maria F. Thomas, which was overruled, and she files her petition in error in this court to reverse the judgment of the circuit court.

      Mr. H. J. Booth and Messrs. Abernethy S Folsom, for plaintiff in error.
    Charles Folsom and the children of Greorge Folsom were the heirs at law of Henry F. Page, upon the death of Isabel Page, intestate. The Board of Trustees, etc. v. Folsom et al., 56 Ohio St., 701; Patton v. Patton, 39 Ohio St., 590; Davis v. Davis, 62 Ohio St., 411; The New York Act of 1860 (N. Y. Laws of 1860, 607); McKeown v. Officer, 6 N. Y. Supp., 201; 3 Greenleaf’s Cruise on Real Property, star page 14; secs. 4158 and 5915, Rev. Stat.
    The university had not the legal capacity to take from the testator, because he died within a year after making his will; and the devise to it failed for that reason also. Stephenson v. Short, 92 N. Y., 433; sec. 2, chap. 41, Laws of N. Y., 1862; High School v. Harrison, 12 W. N. C., 32; Lefevre v. Lefevre, 59 N. Y., 434; Starkweather v. Bible Society, 72 Ill., 50; People’s Trust Co. v. Smith, 82 Hun, 494; Fairchild v. Edson, 77 Hun, 298; Russell v. Topping, 5 McL., 194; secs. 20 and 4105-15, Rev. Stat.
    The testator could not confer upon his daughter any power or authority to do for him that which he could not do directly; therefore, his attempt to authorize and empower her to ratify and confirm his void devise to the university was itself absolutely void. 2 Bouvier’s Law Dictionary, 445; 18 Am. & Eng. Ency. Law, 878, 893; 1 Jarman on Wills (5 ed. Bigelow), 385, 388; Williams’ Real Property, 130; Willard on Real Estate and Conveyancing, 268; Eells v. Lynch, 8 Bosw., 482; Doolittle v. Lewis et al., 7 Johns. Ch., 45; Burleigh v. Clough, 52 N. H., 271; Matter of Stewart, 131 N. Y., 274; Martindale on Conveyancing, sec. 148; Fargo v. Squires, 39 N. Y. Supp., 648; Tilden v. Green et al., 130 N. Y., 29; 1 Devlin on Deeds, sec. 17; People v. Law, 34 Barb., 511; 3 Com. Dig., 139; Branham v. Mayor, 24 Cal., 585; Co. Litt., 295, 296; 1 Rep., 146; Dyer, 109; 5 Rep., 15; 1 Tomlin’s Law Dictionary, “Confirmation;” Bolton v. Bank, 50 Ohio St., 290; Crane v. Doty, 1 Ohio St., 282; Linton v. Laycock, 33 Ohio St., 134; Hawkins on Wills, 237.
    The intention of Isabel Page, as shown by the instrument she executed, was to ratify and confirm his devise to the university in compliance with his desire and request, and not to convey any interest of her oVn in the land. Uhl v. Ohio River Railroad Co., 41 S. E. Rep., 340 (W. Va. S. C. App.); Mintier v. Mintier, 28 Ohio St., 307; Dawson v. Lawrence, 13 Ohio, 544; Davis v. Hollingsworth, 113 Ga., 210; 84 Am. St., 233, 235; 2 Blackstone’s Com., 298; Huie v. McDaniel, 105 Ga., 319; 31 S. E. Rep., 189; Goldsmith v. Goldsmith, 33 S. E. Rep., 266 (W. Va. S. C. App.); Estate of Fair, 132 Cal., 523; 84 Am. St. Rep., 70; Bradish v. Gibbs, 3 Johns. Ch., 550; Fitzgerald v. Fauconberge, Fitz., 207; Bennett v. Aburrow, 8 Ves. Jr., 614; Cooper v. Martin, 12 Jur. N. S., 887; Bouvier’s Institutes, sec. 1946 et seq.; Berridge v. Glassey, 2 Cent., 804; Second Universalist Society v. Dugan, 3 Cent., 875; Henderson v. Mack, 82 Ky., 379; Beardsley v. Hotchkiss, 96 N. Y., 201; Pollock v. Hooley, 67 Hun, 371; 2 Devlin on Deeds, sec. 848; Elphinstone Inter. of Deeds, 94; Sanders on Uses and Trusts, 89, star page 90; 2 Story’s Equity Juris., sec. 1062a; Monk v. Mawdsley, 1 Sim., star page 289; Ridgely v. Cross, 34 Atl. Rep., 469; Wynne v. Griffith, 4 Law Jour. C. P., 27; S. C. 3 Bingham, 179; 1 Steph. Inst., 507; 4 Cruis. Dig., 282, 497; Bringloe v. Goodson, 4 Bing. N. C., 734; Turner v. Timberlake, 53 Mo., 371; Gulf Red Cedar Co. v. O’Neal, 30 So. Rep., 466; 1 Devlin on Deeds, sec. 423; 4 Kent’s Com., 335; McRae v. McDonald, 57 Ala., 423; Matthews v. McDade, 72 Ala., 387; Sir Edward McClere’s Case, 6 Coke, 17; Pomery v. Partington, 3 Term R., 665; Gindrat v. Gaslight Co., 82 Ala., 596; 60 Am. Rep., 769; Blagge v. Miles, 1 Story, 426; Bishop v. Remple, 11 Ohio St., 277.
    The instrument which Isabel Page executed is an essential part of the scheme of the testator to transmit his property to the university in violation of the.statute, and is therefore void. Board of Trustees v. Folsom, 56 Ohio St., 701; Endlich on Inter. of Stat., sec. 138; O’Hara v. Dudley, 95 N. Y., 403; Duke of Marlborough v. Earl Godolphin, 1 Eden, 417; Strickland v. Aldridge, 9 Ves. Jr., 516; Boston v. Stratham, 1 Eden, star page 508; Leonard v. Springer, 98 Ill. App., 530; 1 Powers Dev., 380, 389; Brattle Square Church v. Grant, 3 Gray, 142; Sears v. Russell, 8 Gray, 94; Hall v. Priest, 6 Gray, 22; Richardson v. Wheatland, 7 Metc., 169; Olney v. Hull, 21 Pick., 314; Fosdick v. Fosdick, 6 All., 47.

      Messrs. Harrison, Olds <& Henderson and Messrs.. Maxwell é Ramsey, for Board of Trustees of the-Ohio State University.
    The language used by the testator distinctly recognizes the unqualified right of his daughter to exercise the power conferred upon her, in favor of the-university, or to decline to do so, as she sees fit. It. is clear, therefore, that there was no trust, precatory or otherwise, in favor of the university. No secret, trust is alleged. 2 Sugden on Powers, star page in brackets 158 (3 Am., 7 London ed.); Farwell on Powers, 266; 2 Perry on Trusts, sec. 248; Sugden on Property, star page in brackets, 376; In re Hamilton, C. A. (1895), 2 Ch., 730; In re Adams, 27 Ch. Div., 410; Hill v. Hill, C. A. (1897), 1 Q. B., 483; Williams v. Williams, C. A. (1897), 2 Ch., 12; 2 Story’s Eq. Jur., sec. 1069; 2 Redfield on Wills (2 ed.), 423; Hess v. Singler, 114 Mass., 56; Aldrich v. Aldrich, 172 Mass., 101; Foose v. Whitmore, 82 N. Y., 405; Boyle v. Boyle, 152 Pa. St., 108; Bills v. Bills, 80 Ia., 269; Arnold v. Arnold, 41 S. C., 291; Bryan v. Milby, 6 Del. Ch., 208; Pratt v. Sheppard, etc., Hospital, 88 Md., 610.
    What the testator did, in substance and effect, was to confer upon his daughter power if she saw fit in the exercise of her own judgment and discretion, to appoint the estate in remainder to the university: Young Women’s Christian Home v. French, 187 U. S., 401; 47 L. Ed., 233; Adv. Sheets Law. Ed. U. S. S. C. Rep., Feb. 1, 1903, p. 184; 1 Sugden on Powersstar page in brackets, 358.
    The question, therefore, is whether the power to appoint an estate to educational purposes in the free exercise of the judgment and discretion, not of the testator, but of the donee of the power (who in this case was an entirely disinterested person and the only issue of the testator) is within the prohibition of section 5915. Board of Trustees, etc. v. Folsom, 56 Ohio St., 701; Helfenstine v. Garrard, 7 Ohio (pt. 1), 275; Stilley v. Folger, 14 Ohio, 650; Thompson v. Thompson, 17 Ohio St., 655; Tilden v. Green et al., 130 N. Y., 29; De Serre v. Clarke, 18 Law Rep. Eq., 587; Theobald v. Fugman, 64 Ohio St., 473; McGlade’s Appeal, 99 Pa. St., 339; Allen v. Stevens, 161 N. Y., 123; secs. 4182 and 5915, Rev. Stat.
    The only issue of the testator waived and relinquished the protection of the statute, and the result was the same as if the statute had never been enacted. New York act of 1860, Ch. 360; Amherst College v. Ritch, 151 N. Y., 282.
    If the estate in remainder passed to Isabel as intestate property, then it was conveyed by her deed to said board of trustees. The deed from Isabel Page to the Board of Trustees of the Ohio State University is not nor does it purport to be, merely a deed of ratification and confirmation or merely a deed made in execution of a power. Further than that, it is, and it purports to be, an original and primary conveyance from the grantor to the grantee. 9 Am. & Eng. Ency. Law (2 ed.), 137; 2 Smith’s Leading Cases, Pt. 1 (8 Am. ed.), 539; Br. Leg. Max., star page 415; 7 Am. & Eng. Ency. Law (2 ed.), 484; Lambert v. Smith, 9 Ore., 185; Cross v. Weare Commission Co., 153 Ill., 499; Agricultural Society v. Tubbessing, 87 Ia., 140; 9 Am. & Eng. Ency. Law (2 ed.), 18, 127, 141, note; White’s Lessee v. Sayre, 2 Ohio, 110; 3 Washburn on Real Propery (5 ed.), star pages 606, 607, 620, 621; 2 Devlin on Deeds, secs. 212, 840; 1 Devlin on Deeds, sec. 17; Tiedeman on Real Property, sec. 782; Boone on Real Property, secs. 300, 304; Hoffman v. Mackall, 5 Ohio St., 124; Foster’s Lessee v. Dennison, 9 Ohio, 121; Hall’s Lessee v. Ashby, 9 Ohio, 96; Coal Co. v. Mining Co., 40 Ohio St., 559; Martin v. Jones, 62 Ohio St., 525; Mittel v. Karl, 133 Ill., 65; Hennessy v. Gore, 35 Ill. App., 594; Peckham v. Haddock, 36 Ill., 44; 4 Grreenleaf’s Cruise, star pages 83, 244; Touchard v. Crow, 20 Cal., 150; Barr v. Schroeder, 32 Cal., 609; Fauntleroy’s Heirs v. Dunn, 3 B. Mon., 594.
    The deed of Isabel is not void for illegality. Thomas v. Cronise, 16 Ohio, 54; Williams v. Englebrecht, 37 Ohio St., 383; Barton v. Morris, 15 Ohio, 408; White v. Brocaw, 14 Ohio St., 339; Tremper v. Barton, 18 Ohio, 418; Van Zant v. Davies, 6 Ohio St., 52; Robinson v. Robinson, 17 Ohio St., 480; Randall
      v. Howard, 2 Black, 585; Gibson v. Lyon, 115 U. S., 439.
    The conveyance by Isabel vested in the board all the rights and interests she had in the estate which her deed purported to convey. 1 Sugden on Powers, star page in brackets, 243; 4 Greenleaf’s Cruise, star page 114 (Title 32, Ch. 2, sec. 5); Crane v. Doty, 1 Ohio St., 282; Gilpin and wife v. Williams, 25 Ohio St., 283; Patton v. Patton, 39 Ohio St., 590; Lessee of Thompson v. Hoop, 6 Ohio St., 481.

      Messrs. Sater & Sater, for George Folsom.
    Judgment was rendered against persons who were not parties. The decree rendered against Charles J. Folsom and Ellen Gill was void and not binding, and constitutes reversible error. Southward v. Jamison, 66 Ohio St., 290; Endel v. Leibrock, 33 Ohio St., 254; Bukheimer v. Ashcraft, 5 Re., 526; 2 Bull., 266.
    The remedy is at law, not in equity. The prayer of the cross-petition of the Board of Trustees of the Ohio State University is that it be adjudged the owner in fee simple of the premises in question and that it be awarded possession of said premises. It is not in possession, but seeks to gain such. The question is one of title and possession. Sections 5779 and 5781, Rev. Stat.; Marsh v. Reed, 10 Ohio, 347; 17 Am. & Eng. Ency. Pl. & Pr., 277, 278; 7 Ency. of Pl. & Pr., 267; Stephens on Pleadings, 13.
    The Board of Trustees of the Ohio State University has no right, title or interest in the premises. The decree of the circuit court was, therefore, erroneous. Section 5915, Rev. Stat.; Stephenson v. Short, 92 N. Y., 433; Bouvier’s Law Dictionary, “Invalid;” 17 Am. & Eng. Ency. Law (2 ed.), 417; State v. Casteel, 110 Ind., 182.

      How, then, can the exercise of a void or null power, conferred on Isabel Page, convey a valid title of ány kind, character, or description to the university? Hood v. Perry, 75 Ga., 311.
    Collateral heirs may attack the invalidity of the bequest to the university. Patton v. Patton, 39 Ohio St., 590; Davis v. Davis, Executor, 62 Ohio St., 411; Trustees of State University v. Folsom, 56 Ohio St., 701; Theobald v. Fugman, 64 Ohio St., 473; Amherst College v. Ritch, 151 N. Y., 282; Harris v. Slaght, 46 Barb., 470; Harris v. American Bible Society, 2 Abb. Dec., 316; Harris v. American Bible Society, 4 Abb. Pr. N. S., 421; sec. 5915, Rev. Stat.
    The testator could not empower his daughter to confirm a bequest he could not lawfully make, or to do what the law prohibited him from doing. Burleigh v. Clough, 52 N. H., 267 (13 Am. Rep., 23, 26).
    The very nature of a power implies the relation of principal and agent. As Bouvier says in his definition of the term, it is “the right, ability or faculty of doing something. * * * Technically, an authority by which one person enables another to do some act for him.” 2 Lil. Abr., 339; Kent’s Com., star page 318; Anderson’s Law Dictionary, 792; 22 Am. & Eng. Ency. Law (2 ed.), 1095.
    "Whatever authority Isabel Page took was what she got from the power given her by the will to do an act which the testator himself could not do, and the purported deed executed and delivered by her was necessarily taken under and by virtue of the will. Doolittle v. Lewis, 7 Johns. Ch., 45; 11 Am. Dec., 389; Elphinstone on Deeds, star page 244; Crabb on Real Prop., sec. 1969; Bradish v. Gibbs, 3 Johns. Ch., 550; Boson v. Statham, 1 Eden, 508; 1 Devlin on Deeds, sec. 17.

      The purported confirmation passed no estate to the university. Langdeau v. Hanes, 21 Wall., 521.
    The following elements are necessary to and involved in a confirmation:
    1. The confirm or must at the time of the confirmation have an estate or right in the lands and tenements conveyed.
    2. The confirmee must prior to or at the time of the confirmation have possession of the lands and tenements conveyed, or some estate therein;
    3. The confirmation operates to make sure and certain a voidable estate of the confirmee; or to increase and enlarge a particular estate of such confirmee.
    Tested by the above definition, not a single one of the above elements is found in the purported confirmation of Isabel Page, because—
    1. She had no estate or right in the premises conveyed to the Board of Trustees of the Ohio State University at the time of the execution and delivery of her alleged confirmation, excepting a life estate, and that by express exception she did not convey.
    2. Such board did not at the time of such attempted confirmation, or at any prior time, have possession of such premises, or any estate therein.
    3. Such board had no voidable estate capable of being made sure and certain, but a void estate to which no vitality could be imparted. It had no particular estate susceptible of increase or enlargement. It had no estate or right whatever. Morrow v. Whitney, 95 U. S., 554; Slidell v. Grandjean, 111 U. S., 439; DeMares v. Gilpin, 15 Colo., 81; White & T. L. Cas., Pt. 2, star page 695; Am. & Eng. Ency. Law, 588; 1 Cooley’s Blackstone, Book 2, 234; Devlin on Deeds, sec. 17; Barton’s Dig. Leg. Max., 69; 2 Co. Litt., 68, 295b; Branham v. Mayor, 24 Cal., 585, 605; Denson v. Mitchell, 26 Ala., 360; 4 Kent’s Com., 520, 521; 2 Washburn’s Real Prop., star page 371; Greenleaf’s note, 6 Cruise, 208, Devise, Ch. 11, sec. 6; Plucky v. Digges, 2 Hud. & Br., 1, 40-48; Randall v. Duff, 79 Cal., 123; Dupont v. Wertheman, 10 Cal., 368; Batchelor v. Brereton, 112 U. S., 396; Wynne v. Griffith, 4 Law Jour. C. P. 27; S. C. Bingham, 179; Polk v. Wendell, 5 Wheat., 293; Hood v. Brown, 2 Ohio, 269; 5 Viner, 381; Warner v. Conn. Mut. Life Ins. Co., 109 U. S., 357; 16 Am. & Eng. Ency. Law, 936; Ritchie v. Putnam, 13 Wend., 524; Davenport v. Parsons, 10 Mich., 42; 81 Am. Dec., 772; Turner v. Timberlake, 53 Mo., 371; Carter v. Longworth, 4 Ohio, 384; Wendell v. Van Rensselaer, 1 Johns. Ch., 353; Burdett v. Wright, 2 B. & Ald., 710; 1 White & T. L. Cas., Pt. 1, star page 213; Harding v. Glyn, White’s & T. L. Cas., star page 1079; Bullard v. Shirley, 153 Mass., 559; Warren v. Rudall, 4 K. & J., 603; Milwaukee Protestant Home v. Beecher, 82 Wis., 409; Patton v. Patton, 39 Ohio St., 590; 2 Williams on Executors (1895 ed.), 311; 1 Jarman on Wills (Big. ed. 1893), 243.
    The university had not the capacity to take. The university on account of the death of the testator was without legal capacity to take from him as a devisee or legatee, and being unable to take from him, it could not take from his daughter by her pretended confirmation of his void devise and bequest. People’s Trust Co. v. Smith, 82 Hun, 494; Robinson v. Hardcastle, 2 T. R., 241; 7 L. R. A., note 143; Fairchild v. Edson, 77 Hun, 298.
    The general rule relied on by counsel for the Board of Trustees that an instrument should be given some effect, if possible, is necessarily and always limited and controlled by the further rule that the purpose of the instrument must be lawful.
    The courts will not give effect to an instrument bearing on its face the stamp of illegality, or aid in carrying out an unlawful act or purpose. Bank of the United States v. Owens, 2 Pet., 527.
    Isabel Page’s deed did not have either a double or an alternative purpose.
    The habendum clause in a deed is not an essential part of it. It simply denotes the extent of the estate granted. It is almost obsolete in modern conveyances and may be entirely rejected if repugnant to the other clauses qí the conveyance. 1 Devlin on Deeds, sec. 213; Mayor v. Bukley, 51 Mo., 227; 3 Washburn on Real Property (4 ed.), 398.
    If there be a specific limitation contained in the premises, followed by a more general limitation in the habendum, the latter limitation cannot enlarge the estate granted by the premises. Bricker v. Bricker, 11 Ohio St., 240; Tiedeman on Real Property, sec. 844; 5 Am. & Eng. Ency. Law (1 ed.), 457, note 2.
   Davis, J.

The counsel have elaborately argued several technical questions relating to the jurisdiction and procedure in the courts below. As to these matters it is sufficient to say that we are of the opinion that the circuit court had jurisdiction, not only of the subject matter but of all' necessary parties, and in sufficiently proper form, to determine all the issues in the case.

The circuit court found and adjudged that the title to the lands in controversy had been adjudicated in favor of the defendants in error, The Board of Trustees of the Ohio State University, by the circuit court of the United States and the circuit court of the state of Illinois, although the decree of the former court had been appealed from and a proceeding in error had been instituted to review the decree of the latter court; and for that reason the court declined to pass “upon the .question as to what was the operation and effect of the deed of confirmation by Isabel Page, made on the fifth day of December, 1891, as shown by the record.” "Whether the court below was right or wrong in this conclusion is immaterial now; for the view which we take of the real controversy between the parties disposes of the whole case.

In Board of Trustees of Ohio State University v. Folsom et al., 56 Ohio St., 701, construing the same will which we are now considering, it was held by this court that the children of the testator’s brothers fake nothing under the provisions of the will; because the devise over to them is not made to depend upon the validity of the ratification of the devise and conveyance to the trustees of the university, but is defeated by the fact that it was made. Their rights were made determinable upon a condition which has happened; and therefore, whatever may be the state of the title to the property as between the trustees of the university and the children of the testator’s brothers as heirs of the testator’s daughter, it is clear that they cannot take as devisees under the will. There has been suggested to us no sufficient reason for receding from that position. It follows that if the deed of confirmation which was made by Isabel Page after her father’s death, was ineffectual to invest the trustees of the university with the title, and Isabel Page died seized of the property in question as an estate of inheritance, then the children of the testator’s brothers are entitled as her heirs. It is, therefore, apparent that the material questions to be now determined are, First, Was the instrument which was executed by Isabel Page operative and effective to vest the estate in the Board of Trustees ■of the Ohio State University under the will? and, .Second, If the estate passed'to Isabel Page as intestate property of her father, then was it conveyed by the instrument which she executed, to the Board of Trustees of the Ohio State University? If either or both of these questions must be answered in the affirmative, the judgment of the circuit court must be upheld, regardless of the reasoning upon which it was founded.

The Revised Statutes of Ohio, section 5915, provide: “It any testator die, leaving issue of his "body, or an adopted child, living, or the legal representatives of either, and the will of such testator give, devise or bequeath the estate of such testator, or any part thereof, to any benevolent, religious, ■educational, or charitable purpose, * * * or to any person in trust for any of such purposes, * # * whether such trust appears on the face of the instrument * * * or not; such will as to such gift, •devise or bequest shall be invalid unless such will shall have been executed according to law, at least one year prior to the decease of such testator.” It is obvious that this statute does not make the act of giving, devising or bequeathing property an illegal act; for the same gift, devise or bequest which is declared to be invalid if the testator shall die within one year from the execution of his will, may become valid if the testator shall live one year or more after making the will. In other words, the devise or bequest may be valid or invalid according to the lapse of time. It is therefore apparent that this statute is intended to operate merely as a limitation upon the testator’s power of disposition, for the protection of the heir against improvident wills or wills made under undue influence. Being such a limitation the statute is to be strictly construed. Theobald et al. v. Fugman et al., per Spear, J., 64 Ohio St., 473, 481; McGlade’s Appeal, 99 Pa. St., 339, 343; and being such a limitation and no contrary principle of right or of public policy being involved, the person for whose benefit it is made may waive or relinquish it. This statute declares invalid only gifts, devises and bequests directly to, or in trust for the purposes named. The will which we are now considering devises directly to the Board of Trustees of the Ohio State University, and recognizing the possibility that it might be defeated by his death within a year, the testator devises over to the children of his brothers; and later by a codicil, without revoking this direct devise to the Trustees of the University, he “authorized and empowered” his daughter, who was his only child and heir at law, “to ratify and confirm said devise and bequest” in case it should fail by reason of his death within a year, and “she is desired and requested” to do so, and he further declares that “in case she complies with this request the devises and bequests to the said children of George Folsom and Charles Folsom are hereby revolted.” She did comply with his request and the devises and bequests to the children of George Folsom and Charles Folsom were thereby revoked, as this court has heretofore decided and still so holds. There now being “no other disposition made of the property in the will,” Patton v. Patton, 39 Ohio St., 590, it descended immediately to the heir, if her act of appointment, ratification or confirmation was ineffectual, and can there be any reasonable doubt that she might voluntarily relinquish the estate thus cast upon her or that she might waive the protection which the statute gave to her?

There was no trust in this will. The estate was not devised to Isabel to hold in trust for the trustees of the university nor in trust to convey to them. The remainder in the estate was not devised to her at all. The testator conferred upon her the naked power to appoint the remainder to the designated object. He imposed no conditions as to the manner of executing the power. He only asked that his wishes might be carried out. He did not attempt the futile project of compelling a conveyance to the devisees whom he had selected. The donee was merely “empowered” and he left it entirely optional with her whether she would carry out his purpose, his deliberate and stubborn purpose it seems. The context clearly shows that Isabel was at liberty to do as she might choose in regard to carrying out the testator’s wishes in regard to the devise to the trustees of the university. The mere use of-the precatory words “desire” and “request” will not be sufficient to create an enforceable trust or a power in the nature of a trust, when the context clearly shows that the testator’s intention was the contrary. “No authoritative case ever laid it down that there could be any other ground for deducing a trust or condition than the intention of the testator as shown by the will, taken as a whole, though no doubt in older cases that intention was sometimes inferred on insufficient grounds.” In re Williams (1897), 2 Ch. D., 28. It does not matter that a degree of confidence is reposed in the donee by the testator, for so long as it appears that the execution of the power is not obligatory, and it is left entirely to the discretion of the donee, no trust arises. Meredith v. Heneage, 1 Sim., 543; Williams v. Williams, 1 Sim. N. S., 358;. Toms v. Owen, 52 Fed. Rep., 417; Spooner v. Lovejoy, 108 Mass., 529; Huskisson v. Bridge, 4 DeG. and Sm., 245; Eaton v. Watts, 4 Law Rep. Eq., 151.

It is manifest that this testator, who was himself' a competent lawyer, fully understood the scope and. effect of the statute; and it cannot be presumed that he would defeat the purpose which he so obviously had in mind by an attempt to create a trust. Indeed it is clear upon all considerations that he did not intend to create a trust and studiously endeavored, to avoid doing so. The authorities above cited and. the numerous authorities cited by the counsel for the • defendants in error, fully sustain the contention that. the will of Henry F. Page conferred upon his daughter the naked power to appoint the remainder of his estate to the Board of Trustees of the Ohio State’ University, in her discretion; and in our construction of section 5915, Revised' Statutes, that is not. prohibited by either the letter or the spirit of the-statute.

But it is argued that the testator could not empower his daughter to do that which he could not lawfully do himself. We have already called attention to the fact that the mere act of making a will for • a benevolent or charitable purpose is not unlawful, and that such act is only made invalid for the protection of the heir when it occurs within a year prior - to the decease of the testator, and counsel seem to. overlook the other fact that, in this instance, the. power to ratify and confirm necessarily implies a deed confirming and conveying the property to the; appointee; for the donee of the power is authorized to appoint only after the devise and bequests to the trustees of the university ‘ ‘ shall fail or be held void for any cause. ’ ’ A will might not suffice because an appointment by will might fail in the same way; but she could sanction, carry out and make sure his desire by a conveyance; and it would seem that she could fully execute the power in no other way. Now can anybody doubt that the testator could have lawfully conveyed the property to the trustees of the university? If yea, then this argument falls to the ground; because this power was to be executed, and was executed, by a conveyance.

As we have already remarked the testator did not prescribe the mode in which the donee should execute the power. The form in which she should “ratify and confirm said devise and bequest,” as well as the execution of the power itself, was left to her discretion. It seems to have been deliberately and carefully drawn; and in view of the fact that the children of George Folsom and Charles Folsom do not take under the will, and of the fact that if the exercise of the power of appointment should for any reason fail in its purpose, the property would pass to the donee herself as intestate property, we have no trouble with the dual form of the instrument by which she executed the power. It may be construed as an execution of the power granted in the will or as an original conveyance or both, and it is operative to invest the Board of Trustees of the Ohio State University with a full and perfect title to the property therein described. But if by reason of mistake, accident or ignorance the power was defectively executed, it is within the power of the court in this case to make it effectual. “Whenever a man, having power over an estate, whether of ownership or not, in discharge of his moral or natural obligations, shows an intention to execute such power, the court will operate upon the conscience of the heir or other person benefited by the default to make him perfect this intention.” Chapman v. Gibson, 3 Brown Ch., 229; Barr v. Hatch, 3 Ohio, 527; Bispham, Eq., secs. 193, 195.

There is an ultra-refinement of logic in the contention that Isabel Page could not make and deliver a deed of confirmation under the power conferred in the will and a deed of conveyance in the same instrument, delivered in the same instant of time. It would be unprofitable to discuss this point at length. Upon the death of the testator within twelve months from the date of the will the property devised and bequeathed to the' trustees of the university immediately vested in the children of his brothers, subject to be divested by appointment to the trustees by the donee of the power. Patton v. Patton, 39 Ohio St., 590; Trustees of University v. Folsom et al., 56 Ohio St., 701. Prom the death of the testator it was a future contingent estate in Isabel Page which might be made absolute by appointment to the object designated by the testator which would determine the interests of the children of the testator’s brothers, Board of Trustees, etc. v. Folsom, 56 Ohio St., 701, and by the failure of the appointment by reason of invalidity or for any other reason. This future contingent interest she might convey, Thompson’s Lessee v. Hoop, 6 Ohio St., 480, and if it became absolute thereafter the title' would relate back to the time of the conveyance.

The judgment of the circuit court is

Affirmed.

Spear, G. J./Shattck, Price and Crew, JJ., concur.


author: Spear, C. J.

text:
    The Cincinnati, Hamilton & Dayton Railway Co. v. Wachter.

      Release of right of way to a railroad company — Vendor has right to private crossing over right of way, when — Right to crossing not tarred ty statute of limitations, when — Pleadings in suit to enjoin crossing — Law of reserved rights in realty

    1. An instrument of writing by which the absolute owner of a tract of land consisting of twenty acres or moré, releases to a steam railroad company a right of way one hundred feet in width and passing through said lands leaving a portion thereof on each side of said right of way, conveys an easement in the land for railroad purposes, leaving the fee,-subject to such servitude, in the general owner.
    '2. Among the rights not granted, but remaining in the vendor and incident to his title in fee, is a right to a private crossing over such right of way where the same is necessary for the convenient use of his two parcels of land lying on each side, provided the same can be constructed and used without unreasonably interfering with the use of the right of way by the company for railroad purposes.
    3. The possession of the right of way by the railroad company for railroad purposes is not adverse to the rights remaining in the owner of the fee. Hence the right to a crossing is not barred by the statute of limitations of twenty-one years, and a plea of the statute which alleges that “neither the plaintiff nor any predecessor in title ever used any easement to cross said right -of way, or any private crossing, farm crossing, way of necessity, or way reserved by implication over said right of way during said time,” does not constitute a defense to a suit brought by the landowner to enjoin the company from interfering with him in the construction and use of such crossing.
    (No. 8175
    Decided April 12, 1904.)
    Error to the Circuit Court of Lucas county.
    The action below was by Clara F. Wachter against The Cincinnati, Hamilton & Dayton Railway Co., to procure an injunction forbidding it from interfering with the construction and use by her of a private crossing over the tracks of the Company. Issue being joined by answer and reply, trial was had which resulted in a judgment for plaintiff which was affirmed by the circuit court. The Company brings error. Additional facts are stated in the opinion.

      Mr. B. A. Hayes, for plaintiff in error,
    cited and commented upon the following authorities:

      Mining & Milling Co. v. Pennsylvania, 125 U. S., 181; Santa Clara County v. Railroad Co., 118 U. S., 394; Hartford Fire Ins. Co. v. Railway Co., 175 U. S., 91; Railway Co. v. Nebraska, 164 U. S., 403, 411, 413; State v. Railway Co., 36 Minn., 402, 404; Railway Co. v. Beckwith, 129 U. S., 26, 29; Lawton v. Steele, 152 U. S., 133; 3 Elliott on Railroads, sec. 1142; Day v. Railroad, 41 Ohio St., 392; Smith v. Railroad Co., 25 Ohio St., 91; Railway v. Railway, 30 Ohio St., 604, 614; Reeves v. Treas. Wood County, 8 Ohio St., 333, 347; Mansfield v. Balliett, 65 Ohio St., 451, 471; McQuillen v. Hatton, 42 Ohio St., 202; Railroad Co. v. Commissioners, 63 Ohio St., 23; C. & E. Railroad Co. v. Keith, 65 N. E. Rep., 1020; Meredith v. Frank, 56 Ohio St., 479; Railroad v. Comstock, 60 Conn., 200; Pennsylvania Co. v. Platt, 47 Ohio St., 366; Morse v. Benson, 151 Mass., 440; Smith v. Langewald, 140 Mass., 205; Woodruff v. Paddock, 130 N. Y., 618; Platt v. Pennsylvania Co., 43 Ohio St., 228; Railway Co. v. Bell, 32 S. W. Rep., 374; Hemphill v. Railway Co., 46 S. W. Rep., 874; Railway Co. v. Grier, 42 S. W. Rep., 1022; Milliman v. Railroad Co., 10 Barb., 87; 14th Amend. Const. U. S., 3d clause; Const. of Ohio, art. 1, sec. 19; Rev. Stat., secs. 3327, 3328.

      Mr. Frank G. Crane, for defendant in error,
    cited and commented upon the following authorities:

      Lumber Co. v. Railroad Co., 6 Dec., 135; 3 N. P., 231, and Railway Co. v. Lumber Co., 59 Ohio St., 607; Platt v. The Pennsylvania Co., 43 Ohio St., 244; Julien v. Woodsmall, 82 Ind., 568; State v. Railroad Co., 85 Ia., 516; 52 N. W. Rep., 490; People v. Railroad Co., 79 Mich., 474; Railway v. Rowland, 70 Tex., 301; New York & N. E. Ry. Co. v. Railroad Comrs., 162 Mass., 81; Clarke v. Railroad Co., 18 Barb., 350; Railway Co. v. Willenborg, 117 Ill., 203.
   Spear, C. J.

The defendant in error, Clara F. Wacht'er, is the owner in fee of a tract of about twenty acres of land lying partly in the county of Wood and partly in the county of Lucas. The railroad of the plaintiff in error passes through that portion of the land which is situate in Wood county, its right of way extending in an easterly and westerly direction, and being one hundred feet in width. The parties derive their rights from a common source of title, viz.: Gabriel Crane, father of defendant in error. The conveyance from Gabriel Crane, under which the Company claims, was executed March 20, 1854, to the predecessor of the present company, which immediately took possession and which it enjoyed without interruption as a right of way of a steam railroad until in the year 1863, when all its rights passed to the plaintiff in error, which company has had like possession and use since. The conveyance by Gabriel Crane is entitled “Release of Right of Way.” It is recited in the release on the part of said Crane that, “for the consideration of twelve hundred dollars and the advantages which may or will result to the public in general and myself in particular by the construction of the Dayton and Michigan Railroad, as now surveyed, or as the same may be finally located, and for the purpose of facilitating the construction and completion of said work, do hereby for myself, my heirs, executors, administrators and assigns, release, relinquish, and forever quitclaim to the president and directors of The Dayton and Michigan Railroad Company, the right of way for so much of said railroad as may pass through the following described pieces, parcels or lots of land, to-wit: [here follows description.] Said right of way to be one hundred feet wide to extend across the two pieces and parcels of land above' •described. And I hereby further release and relinquish to the president and directors of The Dayton and Michigan Railroad Company all damages, right of damages, actions and causes of action, whatever, which I may sustain or be entitled to, by reason of anything connected with or consequent upon the location or construction of said work, or the repairing thereof, when finally established or completed. ’ ’ There is no reservation of any kind expressed in the release.

■ The right of way has been, during all of the time since the completion of the road in the year 1854, used in the operation of a railroad, passenger trains running daily in both directions at a high rate of speed; also freight trains at the usual rate, and for switching cars, and for no other purpose. A fence has been maintained since about the year 1867 on the southeast-line of the strip in which there has been no opening by gate, or bars, or otherwise. No crossing has at any time been constructed across said strip, nor has it ever been possible. Plaintiff cannot use a crossing in a public street, road, lane or highway, in passing from her land on one side of the defendant’s railroad to that on the other side without great inconvenience. The plaintiff has occasion to cross the railroad at the point designated in her petition only during the daytime, and the number of trains passing, except switch trains, is about fourteen during that time. The plaintiff has fulfilled all the requirements of the statute as to notice and demand. Other facts appear in the record, but they are not regarded as essential to an understanding of the legal questions involved.

Upon this state of facts was the plaintiff below entitled to the relief prayed for? A large portion of the briefs of counsel is taken up with a discussion of the constitutionality of sections 3327 and 3328, Revised Statutes, which provide when private crossings must be built, and when the land-owner may build at the company’s expense, it being claimed on the part of the plaintiff in error that those sections undertake to authorize in effect the taking of private property for private purposes, and to deprive an owner of his property without due process of law, and are therefore in conflict with the first clause of section 19 of article 1 of our constitution, and with the third clause of the first section of the fourteenth amendment to the constitution of the United States. But, as we view the case, it is unnecessary to consider this question, (the plaintiff below not asking that the crossing be made at the Company’s expense), and a disposition of it is properly postponed until a case arises in which a decision of it becomes necessary.

Independent of the statute what are the respective rights of the parties ? The right of way of the Company is an easement. Washb. on E. & S., 4. It is, using exact language, a servitude imposed as a burden on the land. The conveyance from Crane in terms specifies that it is a “release of a right of way,” and no question is made, and we presume none can he, that the right thus granted is not different from, nor greater than, that which would result from an appropriation proceeding under the statute. Platt v. Penna. Co., 43 Ohio St., 228; Clarke v. R. L. & N. E. R. Co., 18 Barb., 350. An easement implies necessarily a fee in another, and it follows that it is a right, by reason of such ownership, to use the land for a special purpose, and one not inconsistent with the general property in the land of the owner of the fee, his property rights, however, to be exercised in such way as not to unreasonably interfere with the special use for which the easement was acquired. Bouvier’s Law Dic., 631; Clarke v. Glidden, 60 Vt., 702. That special purpose is, in the present case, the construction and operation of a steam railroad. The corporation has taken and holds the property by virtue of its power of eminent domain, and the purpose must necessarily be a public purpose; else there would be no power under the constitution to clothe the corporation with such right. Adopting the language of Ranney, J., in Giesy v. C. W. & Z. R. R. Co., 4 Ohio St., 308, the private owner has yielded “the use of his property only to the public, and just so much, and no more, as will answer their purposes— the corporation being a mere trustee of the interest for their use, with no power to divert it to any other ■purpose or to- hold it one moment longer than it is made to serve the uses for which it was appropriated.” It cannot be assumed that it was the purpose of the vendor in selling or of the vendee in buying that any estate different from that which the Company was by its charter authorized to acquire and use, would be conferred upon the Company. No reservation of a right to a crossing, it is true, was expressed in the release. Bnt none was necessary. From the character of the paper, and the relation of the parties, and the nature of the transaction, such reservation springs out of the contract and is implied in law. Hence the construction of a crossing is not a taking of the property of another. It is but the enforcement of a right not granted, but remaining in the vendor. Nor does the paragraph of the release releasing damages which might arise by reason of the location or construction or repair of the work qualify, or in any way affect, this legal conclusion. The action is not one for damages.

It is insisted in argument that the case presented a question of common law way of necessity, and Meredith v. Frank, 56 Ohio St., 479, is cited to the proposition that one cannot derogate from his grant. But the conveyance about which the court was speaking in the case cited was a deed in fee simple purporting to convey all the grantor’s interest, and to clothe the grantee with an unqualified and absolute title to the land. The general rule, as stated, is recognized in the above case, and is conceded, but we have an essentially different case. The claim of the plaintiff below does not derogate from the release of Grabriel Crane, but is entirely consistent with it.

The statute of limitations of twenty-one years is pleaded, and is insisted upon. It is true that more than twenty-one years have elapsed since the plaintiff in error went into possession, and that no demand for a crossing was made until the commencement of suit below. But there is, as we think, a complete answer to that claim in the fact that the possession of the corporation was not adverse. It was, on the other hand, enjoyed for the purpose of an easement only, and such use is entirely consistent with the continued ownership and right of the owner of the fee. It is true, also, that a fence was constructed without gate or other opening in it some thirty-five years since on the southeast line of the right of way. This was, however, after the enactment of the fencing statute of March 25,1859, and is. clearly referable to the compulsory duty by that statute enjoined and does not indicate a claim of adverse-possession.

It is manifest that the plea of the statute, if good" goes to every right of the owner of the fee. If it can be successfully urged against a right to a crossing, it can by the same line of reasoning prevail against the right of reversion in case of abandonment. It is. not good against either.

There was, therefore, presented to the trial court, the issue as a question of fact whether or not the demand of the plaintiff for a right to construct a private crossing was a reasonable exercise of her rights as owner of the fee. The court necessarily had. to consider all the circumstances and determine from, a consideration of the whole case whether the maintaining of her claim would unreasonably interfere with the business of the Company in operating its road. If it did. a denial of the prayer of the petition would follow; if it did not, a decree granting the prayer would be proper. The court reached the latter conclusion, and we accept it as settling the question of fact, and, as a consequence, the rights of the-parties.

The case is here treated somewhat briefly, and in the form of statement rather, than argument and extended citation of authorities, because it has seemed to us that its determination rests upon the application of simple, elementary principles, well settled in this state. Also, from the further fact that all the essential propositions were disposed of by this-court adversely to the claim of plaintiff in error in Railroad Co. v. Mitchell & Rowland Lumber Co., 59 Ohio St., 607, in which case the judgment of the circuit court of Lucas county, affirming that of the common pleas, was affirmed without, however, passing on the validity of the statute. The original case will he found reported in 6 Dec., 135; 3 O. N. P., 231.

The judgment of the circuit court will be

Affirmed.

Shauck, Crew and Summers, JJ., concur.