author: McIlvaine, J. Johnson, C. J.

text:
    Palmer v. State.
    1. The impaneling of the jury is embraced in the “ trial ” of a cause, within the meaning of section 7356 of Revised Statutes as amended April 18, 1883 (80 Ohio Laws, 170).
    2. Section 7278 of Revised Statutes, as amended March 13, 1884 (81 Ohio Law, 53), commonly called the Pruden jury law, is not in conflict with section 10, article 1, of the constitution of the state, which guarantees to every person accused of crime “a speedy public trial by an impartial jury,"
    3. A person called as a juror in a criminal case, who clearly shows himself, on his voir dire, not to be impartial between the parties, isnot rendered competent by saying that he believes himself able to render an impartial verdict, notwithstanding his opinions, although the court may be satisfied that he would .render an impartial verdict on the evidence.
    4. The discretion eonferred upon the court by the second clause of section 7278, Revised Statutes, as amended March 18, 1884 (81 Ohio Laws, 53), is a sound legal discretion and may be reviewed and reversed for manifest abuse.
    5. Under section 79 of Revised Statutes, a repealed or amended statute, relating to the remedy, is to govern in the trial of a prosecution pending at the time of the repeal or amendment, unless otherwise expressed in the repealing or amending statute.
    Eeeoe to the District Court of Hamilton county.

      At the January term, 1884, of the court of common pleas of Hamilton county, Joseph Palmer was indicted for the murder of William 0. Kirk on December 24, 1883, at said county; subsequently the indictment was destroyed by fire and the copy thereof, which had been served on the accused, being lost or mislaid, by leave of the court the prosecuting attorney entered a nolle prosequi as tó this indictment, and the accused was reindicted for the same offense at the May term of said court, in the meantime remaining in custody on said charge. Upon this indictment, the plaintiff in error was tried and convicted of murder in the first degree in June following.
    At the impaneling of the jury'which tried and convicted the plaintiff in error, one í). L. Sampson was called as a juror and was examined on his oath touching his qualifications, with the following result, as shown by the record.
    Examined by Mr. Gerard, counsel for the State: Q. Have you formed or expressed any opinion as to the guilt or innocence of the accused, Palmer in this case? A. Yes Hr.
    Q. Notwithstanding that opinion, would you be able, if sworn as a juror, to give a fair and impartial verdict as between him and the state ? A. If I had strong evidence to withhold that opinion.
    Q. Never mind the evidence. Would you be able to lay aside the opinion and take the evidence, if there was any evidence to acquit him and if there was evidence sufficient to convict him of whatever he was guilty of? A. Well, I think I could.
    Q. Could you, in other words, go into the jury box and be governed by the evidence and by what the court tells you, and lay aside that opinion for the time being ? A. I would try to ; yes, sir.
    Q. Do you think you could do it ? A. Yes, sir.
    Q. Are you- opposed to capital punishment ? A. No, sir.
    Q. You are not the client of any of the attorneys in this case ? A. No, sir.
    Q. Have you been on the grand jury lately ? A. No, sir.
    Examined by Mr.. Symmes, counsel for defendant. Q. What is your name ? A. D. L. Sampson.

      Q. From what did you form that opinion ? A. From reading the newpapers.
    Q. Was it merely a newspaper statement, or was it a report of the testimony before the "coroner? A. Well, I have read all, I think.
    Q. Did you read the testimony taken before the coroner’s jury? A. I think I did.
    Q. Did you read what purported to be a confession of the prisoner? A. Yes, sir.
    Did you read the testimony in the Rerner trial? A. Yes, I did.
    Q. You form your opinion from all you read ? A. Yes, sir.
    Q. And on those things, including the testimony in the Rerner trial? A. Yes, sir.
    Q. Have you that opinion yet? A. Yes, sir ; I have.
    Q. If you was sworn as a juror you would go into the box with that opinion, would you not ? A. Yes, sir.
    Q. I will ask you if your opinion would not remain the same after you were sworn, until it was changed by the testimony ? A. Well, I think it would, unless there was some testimony to change it.
    Q. Would it require strong testimony to change it ? A. Yes, sir; it would require strong testimony.
    Q. Would it require that strong testimony should be furnished by the defendant ? A. It would.
    Q. 6Until that was done you would still be governed by your opinion ? A. Yes, sir.
    Q. Even if you were sworn ? A. Yes, sir.

      Mr. Symmes : I challenge the juror for cause.
    Tee CouRT : I understood you to say to the prosecutor that you felt able tó sit as a juror and hear the evidence and render a verdict, notwithstanding the opinion. Was I right? A. Well, I sáy I would enter the box with that opinion.
    Q. No; I say I understood you to say to the prosecutor that you could sit here and hear the evidence and render a verdict upon that evidence, whatever it might be, without rendering it upon your opinion. Was I right ? A. Well, I say, as I said before, I would enter the box with that opinion.
    Q. Without respect to the evidence. If you were sworn as a juror to render your verdict upon the evidence, would you render it upon your opinion ? A. No, sir. I would render it upon the evidence.
    Q. Now, do I understand you could lay aside the opinion, and hear the evidence as a juror and render a verdict upon the evidence % A. If I went into the box I would try to lay that opinion aside.
    Q. Do you feel able to say that you could ? A. I think 1 could.
    Q. Do you feel able to say that you could render an impartial verdict upon the evidence and the law, aside from your opinion, notwithstanding your opinion ? A. I think I could; yes, sir.
    The Couet : The challenge is overruled.

      Mr. Gerard: The state has no challenge.

      Mr. Symmes : We challenge the gentleman peremptorily.
    The overruling of this challenge of Sampson for cause, is alleged for error, and as the use of a peremptory challenge as to hirii, diminished the number of such challenges allowed the defendant by the statute, and as the number of such challenges was exhausted before the jury was full, it is claimed the defendant was prejudiced by the error.

      James Lawrence, attorney general, for plaintiff in error:
    Under section 1356, Revised Statutes (amended, 80 O. L. 170), only errors of law, occurring at the trial or appearing in the pleadings or judgment, can be reviewed in the supreme court.
    The evident purpose of this amendment was to relieve the supreme court from the consideration of all preliminary questions. The natural and obvious separation between the trial and the preliminary’ proceedings incident thereto, is the point at which a prisoner is first put in jeopardy. To say that a person shall not be twice put in jeopardy for the same offense is equivalent to saying that he shall not be twice put on trial for the same offense. "Whenever the trial commences the prisoner is put in jeopardy.
    The legislature must be understood to have used the term “ trial,” in the same sense as already used in the Revised Statutes, § 5127. “ A trial is a judicial examination of the issues, whether of law or of facts, in an action or proceeding.”
    As thus defined, the term cannot include the selection of the tribunal, whether the court or the jury, which is to try such issues. The judicial examination o£ the issues referred to cannot commence until after the issues are made up and the tribunal which is to examine them has been constituted.
    In section 5190, Revised Statutes, it is provided that “ when the jury is sworn, the trial shall proceed, etc.” So in civil actions before a justice of the peace, if no jury has been demanded, the justice shall proceed to try the action at the time appointed for tidal; if a jury be demanded the trial of the cause must be adjourned ; and after the jury shall have been sworn, they shall sit together and hear proofs and allegations of the parties, or in other words, judicially examine the issues between them. Sections 6545, 6547 and 6557 Revised Statutes. Chapter 6, title II, part IV, Revised Statutes is entitled, “ Trial and proceedings incident thereto.” The subheading, “ trial,” is placed immediately before section 7300, and after the provisions for the impaneling and swearing of the jury, clearly indicating' that the selection of the jury is a mere incident to the trial, and, from the nature of things, is preliminary thereto. Section 7300 then follows, providing that, “ after the jury is impaneled and sworn, the trial shall proceed in the following order, etc.”
    The very expression, “trial by jury,” implies that the jury has been selected before the trial commences.
    The meaning of the word trial is discussed by Judge Story in the case of United States v. Gurtis, 4 Mason 232, and, although the precise question there was whether the arraignment was a part of the trial, yet the court clearly say that a “ trial ” means the trying the cause by the jury.
    The most liberal definition of the term “ trial,” cannot include more than the twelve men finally impaneled as a jury. The disqualification of persons summoned as jurors, but who never served as such, cannot be material. Nor can any proceedings, in relation to the selection of the jury, which do not affect the qualification of the jury which tried the case.
    <7. S. Symmes, for defendant in error •
    The law relating to qualifications of jurors, in force when the crime was committed, for which the plaintiff in error was indicted, was section 7278, Rev. Stats. Long after the commission of the crime and the original indictment this section was amended (81 Ohio Laws, 53), and rendered persons who were incompetent to sit as jurors under section 7.278, before its amendment, competent. The trial of the prisoner under the amended section was to his prejudice, and was in violation of the United States and state constitutions. Art. 1, section 9, U. S. Const.; art. 1, section 10, State Const.; Wring v. State, (Mo.) 2 Sup. Ct. Reporter, 443 ; Cooper v. State, 16 Ohio St. 328, 331. The jury that tried the prisoner was not an impartial one, and the court pérmitting the selection of such a jury was such an abuse of its discretion as to entitle the plaintiff in error to a reversal of the judgment.
   McIlvaine, J.

The first point claiming the attention of the court is raised by the state. It is claimed that this court has no jurisdiction in the premises. The jurisdiction of the supreme court, in criminal cases, is limited by section 7356 of Revised Statutes, as amended April 18, 1883 (80 Ohio Laws, 170), as follows : “ But in the supreme court only errors of law occurring at the trial or appearing in the pleadings or judgment can be reviewed.”- The point is, that errors of law occurring at the impaneling of the jury are not reviewable. This depends on the solution of the question whether the impaneling of the jury is a part of the “ trial,” within the meaning of this statute. In section 7269 of thé sam„e chapter of the statute, it is provided that “ the first thirty-six jurors who answer to their names at the trial,” &c. This evidently relates to a point of time anterior to the swearing of the jury. Again, section 7300 provides “after the jury is impaneled and sworn, the trial shall proceed,” &c. This use of the word proceed, instead of commence, indicates that the trial was in progress. Hence, we have concluded that within the meaning of this statute the impaneling of 'the jury is embraced in the trial ” of the cause.

At the time plaintiff in error was tried in the court of common pleas, section 7278 of Revised Statutes, as amended March 18, 1884 (81 Ohio Laws, 53), was'in force, which prescribes the causes for challenging a person called as a juror in criminal cases. Among other things it prescribes as a cause for challenge that he has formed or expressed an opinion as to the guilt or innocence of the accused; but if a juror has formed or expressed an opinion as to the guilt or innocence of the accused, the court shall thereupon proceed to examine such juror on oath as to the grounds of such opinion, and if ■such juror shall say that he believes he can render an impartial verdict, notwithstanding such opinions, and if the court is satisfied that such juror will render an impartial verdict on the evidence, may admit him as competent to serve in such case, as a juror.” The constitutionality of this statute has been established (Wagner v. State, ante, 537), and is not now in question. The provision of the constitution which it was supposed to violate, is in section 10, article 1, which guarantees to every person accused of crime “ a speedy public trial by an impartial jury.” For a long time it was assumed in practice that a person who had formed or expressed an opinion as to the guilt or innocence of the accused, was not an impartial juror. That .the forming or expressing of such opinion is strong evidence of a prejudice that is inconsistent with impartiality, has never been doubted; but that it is necessarily equivalent to a partiality, which renders the juror incompetent, is not true. That an opinion as to the guilt or'innocence of a person accused off crime, based upon the hypothesis of the truth or falsity of certain information, without any opinion or conviction as to the truth or falsity of the information, is entirely consistent with such impartiality, as is contemplated by this provision of the constitution. A wide margin existed between the practical rule and the constitutional rule on this subject. In the course of time, as the means of disseminating information and news was greatly augmented in the state, by the increase of newspapers, the general assembly curtailed the grounds of challenge in this respect, as it might well do, and the result was the rule laid down in original section 1278 of Revised Statutes, as follows: “ that he has formed or expressed an opinion as to the guilt or innocence of the accused ; but if a juror state that he has formed or expressed an opinion as to the guilt or innocence of the accused, the court shall thereupon proceed to examine such juror, on oath, as to the ground of such opinion, and if it appear to have been founded upon reading newspaper statements, communications, comments or reports, or upon rumor or hearsay, and not upon conversations with witnesses of the transactions, or reading reports of their testimony, or hearing them testify, and the juror state, on oath, that he -feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, the court, if satisfied that he is impartial, and will render such verdict, may, in its discretion, admit him as competent to serve in such case.”

The whole ground of legislative discretion was not occupied, but as an opinion based on conversations with witnesses of the transactions, or the reading of their testimony, or hearing them testify was more likely to prejudice the person entertaining it, such opinion is left as an absolute cause of challenge.

Subsequent circumstances occurred in the history of the state which induced the general assembly to again modify the rule, by further limiting the grounds of challenge for cause by the amendment of section 7278 (81 Ohio Laws, 53, commonly called the Pruden Law), whereby an opinion based on conversations with witnesses of the transactions, or hearing them testify, or reading reports of their testimony was not sufficient ground for challenge, if the juror, on oath, would say that he believed he could render an impartial verdict notwithstanding such opinion, and the court were satisfied that such juror would render an impartial verdict on the evidence. The whole'field of legislative discretion was thus occupied, but not overreached. The constitutional rule was not violated, as it is quite clear that a juror having formed an opinion of the guilt or innocence of the accused from such information may, nevertheless, be impartial within the meaning of the constitution.

It must, however, be affirmed, that neither legislative discretion nor a discretion conferred by the legislature upon the court, can be allowed to detract one jot or tittle from the guarantee of the’constitution that the accused shall bo tried by an impartial jury. That this statute may have a constitutional operation to the full extent of the language employed, has, heretofore been recognized by this court; but that the court, under the discretion given it by the statute, may evade or nullify the provision of the constitution no one will for a moment contend. Whatever latitude might otherwise, by construction, bo'placed on the discretion given-to the court, it is beyond doubt that the limit imposed by the constitution cannot be overleaped. No juror can be impartial whose prejudice or bias, as to the whole issue, has the force or effect of evidence at trial. This discretion is not absolute, or its exercise a finality. It is a sound legal discretion and can be reviewed. The constitution is not made of such flimsy stuff that its guarantees can be thus brushed aside. The general assembly had no intention to establish such a rule.

In the judgment of the majority of the court, the challenge for cause of the juror Sampson should have been sustained, and the error of the' court in overruling the challenge was prejudicial to the accused.

The juror, on oath, stated that he had formed and expressed an opinion as to the guilt or innocence of the accused, that his opinion had been formed from the reading of the testimony of witnesses in the ease and the reading what purported to be a confession of the accused. That if sworn as a juror he would take his opinion into the jury box, and that the opinion would remain the same until it was changéd by testimony, and that it would require strong testimony from the accused to change his opinion ; and that he would, as such juror, be governed by his opinion until it was so changed.

It is true that the.juror admitted, being pressed thereto, that he felt able to render his verdict upon the evidence, and lay his opinion aside, or at least he would try to do so, and he thought he could do so. The case was thus brought within the letter of the statute which authorized the court, if it were satisfied that the juror would render an impartial verdict on the evidence, to admit him as competent to serve as a juror, but we think the case was not within the spirit of the statute, for the reason that the juror had shown himself not to be impartial within the meaning of the constitution. The juror must be impartial. The opinion of the court that he will render an impartial verdict on the evidence is not equivalent to 'the guarantee of the constitution. A juror may have been an eye-witness to all the circumstances of the transaction which constitute the crime charged; sucha juror is not impartial, and the opinion of the court that he is able to render an impartial verdict in the case, does not render him impartial.

The true spirit and meaning of this statute is that notwithstanding an opinion formed or expressed by the juror, if he believe himself to be impartial and able to render a verdict according to the evidence, the court being satisfied of his impartiality, he may be admitted as a competent juror to try the case.

In our opinion, the court below, in following the letter of the statute, overlooked its principle, and confounded the impartiality required by the constitution with the ability of the juror, notwithstanding his prejudice, to render an impartial verdict, and by overruling the challenge, imposed upon the accused a risk or burden which the constitution relieved him from bearing.

The judgment below must be reversed for another error appearing on the record. The defendant was tried in June, 1884, and the jury was impaneled under the Pruden law; which was passed on March 18, of that year. The crime for which the accused was tried and convicted was committed in December, 1883, and the prosecution of defendant therefor was commenced soon thereafter, the first indictment being found against him, jointly with one Berner, for the crime of which he was convicted in January, 1884. This indictment having been destroyed by fire, another indictment for the same crime was returned by the grand jury in May of the same year. The Pruden law was passed after the prosecution had commenced and while it was pending. The Pruden law repealed the original section 7278 of Revised Statutes, which was in force at the time the crime was committed and when the prosecution therefor was commenced, and for some months while such prosecution was pending in the court of common pleas of Hamilton county.

By section 79 of Revised Statutes, which has been in force since its enactment, it is provided that Whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions or proceedings, civil or criminal, and when the repeal or amendment relates to the remedy, it shall not affect pending actions, prosecutions or proceedings, unless so expressed.” By this section it is quite clear that the Pruden law had no application to the prosecution of plaintiff in error which was pending before its passage.

The repeal and amendment of original section 7278 related to the remedy for the offense as was then being prosecuted against the plaintiff in error, and it was not expressed in the amended act that it should have effect in pending prosecutions.

It follows therefore that the jury in this prosecution should have been impaneled in accordance with the provisions of the repealed section, which made an opinion formed from reading the report of the evidence of witnesses of the transaction a good and sufficient cause for the challenge of a juror. See Hartnett v. State, reported in this volume.

Judgment reversed and causé remanded for a new trial.

Johnson, C. J.

I concur in the judgment but dissent from so much of the opinion of the majority as holds that the trial judge abused the discretion vested in him, in accepting Sampson as a competent juror.

This discretion is a sound legal discretion, which this court cannot review, unless it is clear to the reviewing court that there has been a manifest abuse of that discretion. Hanof v. State, 37 Ohio St. 178. Whether the juror was impartial, is a question of fact. The trial judge, who sees the juror, observes the kind of man he is and the manner as well as the matter of his answers, is far more competent to decide as to the competency of a juror, than a reviewing court. 1 do not think, taking all Sampson said on his voir dire, that this court can fairly say, that the trial judge so manifestly abused his discretion as to warrant this court in reviewing his action in this respect.


source: Caselaw Access Project

author: Johnson, C. J.

license: Public Domain

text:
    State ex rel. Fanger v. Board of Public Works.
    1. Under the provisions of the act of March 23, 1840 (3 Rev. Stats 417, §§ 20 to 23 inclusive), relating to the canals of the state, it is the duty, as well as the right, of the hoard of public works, to resume the privilege or right to the use of surplus water, leased or sold for hydraulic purposes, or any portion thereof, whenever, at any time, it may he deemed necessary for the purposes of navigation, or whenever its use for hydraulic purposes shall be found in any manner to interfere with and injuriously afEect the navigation of the canal, feeder or stream from which such water is taken.
    2. The hoard of public works is not authorized by said statute to in any manner surrender, abridge, restrict or limit its power to resume, at any time, the surplus water leased ór sold for hydraulic purposes, whenever it may be deemed necessary for the purposes of navigation ; nor to create or impose any burden or obligation upon the state, by reason of the exercise of such right of resumption, other than is authorized by the 23d section of said act.
    3. Hence, a clause providing that on such resumption of surplus water and termination of the lease, the board of public works shall pay to the lessee the value of the lasting improvements erected for the use of such water, is a restriction on the performance of a public duty, and is unauthorized and void.
    MANDAMUS.

      The relator’s intestate was the assignee of a lease, dated June 27, 1853, made by the board of public works, to Riley and Le Blond, whereby certain water-power, out of the Mercer county reservoir, together with about one and three-quarter acres of land adjoining the same, was leased to' them for the term of thirty years, from November 1, 1853, with the privilege of a renewal, on the terms as hereinafter stated. The use of said water-power was to be subject to the restrictions, conditions and limitations stated in said lease.
    Among these were the following:
    “It is expressly understood and agreed by and between the parties that the party of the second part (the lessees), shall not be entitled to any deduction from the rent hereby made payable, unless said parties shall be deprived of the use of the water, for more than one month in any one year, and the party of the first part reserves the right to resume, at any time, the use of the water hereby leased, _ whenever, in the opinion of the acting commissioner in charge of tliis canal, the interests of .the party of the first part require it, the water hereby leased may be resumed, and then, and in that case, all the rights and privileges, derivable to said party of the second part from this agreement, shall cease and determine, provided the party of the first part shallfistpay or tender the party of the second part, the mine of all lasting improvements now made, or hereafter to he made, by said second party. Said value to be determined by three disinterested persons, chosen for that purpose. Each party choosing one, and the two thus chosen to choose the third.” Said lease also contains the following stipulations, touching the renewal of said lease for an additional term of thirty years, “ And it is further understood and agreed that at the expiration of this agreement, the party of the second part shall be entitled to a renewal of this lease for the like term of years, for such annual rent as may be offered by the highest bidder, who shall also agree to purchase of said party of the second part all permanent and valuable buildings necessarily erected by said party, for the convenient usé of the water-power hereby leased, at such price as such buildings shall be adjudged to be worth by three judicious, disinterested freeholders, to be chosen as hereinbefore specified, provided such buildings shall .be erected on land belonging to the state, or land which can be purchased by said •bidder at a reasonable price, to be determined by said appraisers. And if no such bids shall be made on the terms •aforesaid, at a higher rent than is herein specified, said party shall be entitled to such renewal on the terms of this lease.”
    The first term of thirty years expired on the first day of November, 1883. Prior to that date the board of public works notified the assignee of said lease that said board would not renew said lease for an additional term after the expiration of the first term, for the reason that said leased water was necessary for the purposes of navigation, and its use for hydraulic purposes interfered with the navigation of the canal, and said board proposed to resume the same. On the 6th day of May following, the board passed an order formally resuming the use of the said water.
    The petition avers that the said relator and. those under whom he claims have performed all the conditions of said lease on their part to be performed; that lasting and valuable improvements have been placed upon .the lands of the state, described in said lease; and that the board of public works has resumed the water-power so let, but has neglected and refused to renew said lease or to appoint an appraiser, of said improvements, though often requested so to do. The prayer of said petition is for a writ of mandamus commanding the defendant to select an appraiser so as to ascertain the value of said improvements, and for general relief.
    The parcel of land included in said lease, as is expressly stated therein, was leased for the purpose of enabling the party of the second part to use and enjoy the use of the water-power thereby leased. The land was a mere incident to the use of the water, and, independently of that, is of comparatively small value. The lease provided that upon resumption of the use of the water the entire lease should cease and determine.
    The main question in this case is the proper construction of the statute authorizing the lease of water-power by the board of public works — being sections 20 to 23, inclusive, of the act of March 23, 1840, found in volume 3 (Supplement), Revised Statutes, page 417. These sections are as follows :

      “ Seo. 20. Whenever, in the opinion of the board of public works, there shall be surplus water in either of the canals, or in the feeders, or at the dams erected for the purpose of supplying either of said canals with waterj or for the purpose of improving the navigation of any river, and constructed at the expense of the state, over and above the quantity of water which may be required for the purpose of navigation, the said commissioners may order such surplus water, and any lands granted to, or purchased by the state, for the purpose of using the same, or such part thereof as they may deem expedient, to.'be sold for hydraulic purposes, subject to such conditions and reservations as they may consider necessary and proper, either in perpetuity or for a limited number of years, for a certain annual rent, or otherwise, as they may deem most beneficial for the interests of the state.
    ' “ Sec. 21. The provisions of the foregoing section shall extend to and include the water passing round locks, from one level to another, on either of the canals of the state.
    “ Sec. 22. No hydraulic power, nor right to the use of any water, shall be sold, leased or conveyed, except such as shall accrue from the surplus water of the canal, feeders or dams, or from the water passing round any lock, after supplying the full quantity necessary for the purposes of navigation.
    “ Sec. 23. Every lease, grant, or conveyance of waterpower shall contain a reservation and condition that the state, or its authorized agents, may at any time resume the privilege or right to the use of water, or any portion thereof, whenever it may be deemed necessary for the purposes of navigation, or whenever its use for hydraulic purposes shall be found in any manner to interfere with and injuriously affect the navigation of either of the canals, feeders, or streams from which the water shall be taken for such hydraulic purposes ; and, whenever such privilege shall be resumed, in whole or in part, the sum paid therefor, or the rent reserved, or such reasonable portion thereof as shall be determined upon, agreeably to the conditions and stipulations of the lease or deed of conveyance aforesaid, shall be refunded or remitted to the purchaser or or. lessee, his heirs, or assigns.”

      T. J. Godfrey and Marsh & Loree, for plaintiff, filed no brief.

      Janies Lawrence, attorney general, for defendant:
    The agreement to pay for improvements was void. Section 12, art. 8, Const.; State v. Medbury, 7 Ohio St. 522; 37 Ohio St. 157; 5 Ohio, 184; Cooper v. Williams, 4 Ohio, 254 ; 5 Ohio, 391; Elevator Co. v. Cincinnati, 30 Ohio St. 629; Buckingham v. Smith, 10 Ohio, 288; Fox v. Cincinnati, 33 Ohio St. 492; Hubbard v. Toledo, 21 Ohio St. 379; Cooley’s Const. Lim. 128; 21 Ohio St. 14, 41; 12 Wis. 586 ; 24 Minn. 459; 31 Ind. 7; 16 Ohio St. 236. Hence, the writ asked for should be refused.
    If the act of March 23, 1840, authorized the board of public works to create an indebtedness or liability on the part of the state, for which the legislature is bound to appropriate money, said act is in conflict with article 2, section 2, and article 8, section 3, of the constitution.
   Johnson, C. J.

The twentieth section of the above recited statute, authorizes the board of public works to sell, for hydraulic purposes, the surplus water in the canals of the state, their feeders, dams and locks, “ subject to such conditions as they may consider necessary and proper, either in perpetuity or for a limited number of years for a certain annual rent, or otherwise, as they may deem most beneficial for the interest of the state.”

33y section 22, the board is expressly limited to a sale of such surplus water as may remain, “ after supplying the full quantity necessary for the purposes of navigation.”

And to make this limitation effective, section 23- requires that every lease grant or conveyance of water-power shall contain a reservation and condition that the state or its authorized agents may at any time resume the privilege or right to the use of water or any portion thereof whenever it may be deemed necessary for the purposes of navigation, or when its use for hydraulic purposes shall be found in any manner to interfere with, and injuriously affect the navigation of either of the canals, feeders or streams from which the water shall be taken for such hydraulic purposes.”

The admitted facts of this case show, that the lease before us contains' such reservation and' condition, and- that the .authorities of the state have properly resumed the right to the use of the water granted by this lease. The sole question involved is, as to the validity of a proviso annexed to said reservation and condition, which reads as follows:

■“ Provided the party of the first part shall first pay or tender to the party of the second part, the value of all lasting improvements now made or hereafter to be made by said second party, said value to be determined by three disinterested persons chosen for that purpose, each party choosing one and the two thus chosen to choose the third.”

If the clause thus quoted is valid, the relator is entitled to the relief sought, otherwise not. Piad the board of public works the power to bind the state to purchase' the improvements, should it be deemed necessary to resume the use of the surplus water for the purposes of navigation or when its use by the lessees will be found injuriously to affect navigation ? We think not; The latter clause of section 23 provides what shall be the right of the lessees in case of such resumption. Whenever such privilege shall be resumed in whole or in part, the sum paid therefor, or the rent reserved, or such portion thereof as shall be determined upon agreeably to the conditions and stipulations of the lease or deed of conveyance aforesaid, shall be refunded or remitted to the purchaser or lessee, his heirs or assigns.”

This clause, which section 23 requires shall be inserted in the lease, and which seems to embrace the only right reserved to the lessee in case of the resumption of the surplus water, is, strange to say, omitted from this lease, and in lieu thereof is the proviso above quoted, which requires of the state, as the condition precedent to the resumption of such water-power, that the state shall first pay, or tender, to the lessee, the value Of all lasting improvements, and which further requires that the state shall pay sucli amount as shall be fixed by arbitrators mutually chosen by the parties.. Whether we regard the obligation to purchase as a condition precedent or subsequent, the result is the same, as in neither case is the power conferred to make such purchase. .

It may well be doubted whether the board of public works, as the agent of the state, has power to enter into arbitration that will bind the state in any matter committed to their charge, in the absence of express legislative authority. However this may be, it is quite clear that no authority is delegated to them to contract away or restrict the right to resume this surplus water, whenever its use for navigation is required. The power to grant or lease water privileges is incidental and subordinate to the public use. The duty of those having charge of the canals to employ all the water, if needed for public use, is imperative. The public right is paramount; so important was this principle deemed by the legislature, that this right to resume the surplus water was required to be inserted in every lease, grant or conveyance. The board possesses no power to surrender this right or hamper themselves in its exercise.' By this so-called proviso, they cannot resume this surplus water, however much it may be needed for the public use, or however injuriously its use by the lessee may affect the navigation of the canals, without purchasing the improvements. Such a restriction upon' the performance by them of an important public trust, is clearly unauthorized, and.is contrary to that public policy under which the canals have been constructed and operated... They were constructed-at great expense for'the public convenience and welfare. They are public navigable highways. The statutes in force from time to time, show how careful the state has been to preserve these great highways, free from all encroachments that might interfere with their usefulness.

The board of public works have power to perfect, render useful, maintain, keep in repair and protect the same. Revised Statutes, 7691. This is a power of superintendence .for the protection and maintenance of the canals, including every thing that pertains to them. They possess no powers, except such as are expressly conferred by law or that are necessarily implied, the purpose .of which is, the maintenance of the canals as public highways.

It is said, however, in argument, that the 20th section in the act of 1840 authorizes the board to grant this surplus water, “subject to such conditions and reservations, as they may consider necessary and proper,” and that this proviso, which makes it a condition precedent that the state shall first pay or tender the value of the permanent improvements upon the resumption of the surplus water, is a condition within the meaning of that clause, which the board could agree to, if they deemed it necessary and proper. It is further said that at that day, it was to, the interest of the state to encourage the development of manufacturing interests along the line of the canals by offering favorable terms to lessees or grantees, so that their products would be transported over the canals, and thus increase the revenue of the state. In reply to this it may be said : 1st. As already shown, the board possessed no power to surrender the duty of performing the public trust committed to their charge, and the limitation, self-imposed, to pay for these improvements before resuming the water, though it may be necessary for the purpose of navigation, was against the public policy of the state, which made it the duty of the board to resume this water at any time when needed for the public use, untrammeled by any condition or any right of the lessee to prevent it.

2nd. The phrase “ subject to such conditions and reservations,” has the same meaning as it has in section 23, where it is . provided, that every lease, grant or conveyance of water power, shall contain “ a reservation and condition that the state or its authorized agents, may at any time resume the use of water or any portion thereof.”

What we mean to say is, that these terms, “ conditions and reservations,” are such as are imposed upon the lessees or grantees of water-power, and not upon the state.

3d. But if we are in error in this construction of the statute, and these words embrace conditions and reservations imposed ■ upon the state, they must bo such as relate to the use of the water for hydraulic purposes, which are in the nature of the quantity used, the manner of its use, &c. It is quite clear they are not broad enough to embrace conditions to be imposed upon the state after the right to use the water ■ has expired, or after the state has abandoned the canal as a public highway. By such resumption or abandonment, which are identical in their results, so far as lessees are concerned (Hubbard v. Toledo, 21 Ohio St. 379), the state is not liable to respond in damages to the lessee. If it were otherwise, the state would be compelled to maintain her canalssat any sacrifice for the exclusive benefit of the lessees of surplus water, or become the purchaser of the property of the lessee, thus making the incidental purpose, paramount to the public use.

If this obligation to purchase is valid in this instance, it is within the power of the board of public works to bind the state to become the purchaser of all the permanent improvements in the state, erected for the use of surplus water leased or granted. They cannot do this, although they might deem it necessary and proper, as a means of developing manufacturing interests along the line of the canals, and thereby increasing transportation over them and thus enhancing the revenues from the canals.

4th. This obligation to purchase, when the surplus water is resumed, is in legal effect, a covenant to purchase, and not a condition annexed to the use of the water.

A condition in its legal signification is something annexed to the grant, while this is in the nature of a stipulation binding the state to purchase, when the lease is terminated. The state covenants that upon the resumption of the surplus water it will purchase the improvements at a price to be fixed by arbitrators. If it be called a condition instead of a covenant, it can only apply to the right of the state to resume water.

. In this sense, it is a condition precedent to such resumption. As such it would be clearly illegal, for as we have shown, there can be no restriction on the right and duty to resume the use of this surplus water whenever it becomes necessary for the public use.

5th. The statute provides what shall be the relief to which the purchaser or lessee is entitled on such resumption. The last clause of section 23 reads thus: Whenever such privilege shall be resumed in whole or in part,' the sum paid therefor, or the rent reserved, or such reasonable portion as shall be determined upon agreeable to the conditions and stipulations of the lease or deed of conveyance aforesaid, shall be refunded or remitted to the purchaser or lessee, his heirs or assigns.”

As was said in Hubbard v. Toledo, supra, this clause of the statute expressly negatives the liability of the state for the destruction of the privilege, By resuming the grant, beyond what is therein provided; namely, in case of resumption of such surplus water the sum paid therefor, or the rent reserved, or a reasonable portion thereof shall be refunded or remitted. Hubbard v. Toledo, 21 Ohio St. 379; Elevator Co. v. Cincinnati, 30 Ohio St. 629; Fox v. Cincinnati, 33 Ohio St. 492; Same case, 104 U. S.; State v. Railway, 37 Ohio St. 157. Writ refused.


author: McIlvaine, C. J.

text:
    Dearborn v. Northwestern Savings Bank.
    The phrase “associations with banking powers,” as used in section 7, article 13, of the constitution, relates only to banks of issue.
    Error. Reserved in the District Court of Lucas county.
    The original action was bought by the Northwestern Savings Bank, as indorsee, against Dearborn, the maker, and others, as indorsers, to recover on certain promissory notes and to enforce the lien of a mortgage given to secure the payment of the notes by the maker to the payees, and transferred with the notes by the payees to the plaintiff.
    . The plaintiff sues as 'a corporation of the state of Ohio, organized under the statute of Febuary 26, 1873 (70 Ohio Laws, 40), and doing business at Toledo, as authorized by said statute. The corporate existence of the plaintiff was put in issue on the alleged ground that the statute of February 26, 1873, never had any. force or effect for the reason that it was an act assuming .to confer “ banking powers ” and was never submitted to the electors of the state for their approval, as required by section 7 of the 13th article of the constitution.
    In the court of common pleas judgment was rendered for the plaintiff.
    The defendant Dearborn filed a petition in error in the district court to reverse the judgment of the common pleas. The district court reserved the case for decision in this court.

      O. II. Scribner, for plaintiff in error.

      Haynes & Potter, for defendant in error.
   McIlvaine, C. J.

The main question in this ease relates to the constitutionality of the act of Feb. 26, 1873, entitled, “ An act to incorporate savings and loan associations,” under which defendant in error was incorporated and assumed to exercise “ banking powers,” exclusive of the power to make and issue bills and notes to circulate as money. This enactment was duly passed by the general assembly, but was not submitted to the people at the succeeding general election for their approval.

Section 7, article 13, of the constitution reads as follows: “No act of the general assembly, authorizing associations with banking powers, shall take effect until it shall be submitted to the people, at the general election next succeeding the passage thereof, and be approved by a majority of all the electors voting at such election.”

The statute in question does not assume to authorize the making and issuing of bills or notes to circulate as money, and the question is now submitted for our determination whether it is within the meaning of the provision of the constitution above quoted.

That the statute authorizes the exercise of other powers, to wit, the receiving of deposits, loaning of money, &e., usually exercised by banking associations, is not disputed ; and that the terms of the constitutional provision, “ associations with banking powers,” are broad enough to include the powe2's usually enjoyed by banking associations, is too plain to be doubted. It is not denied, and cannot be, that at the date of the adoption of the constitution, and for a long time prior thereto, the commercial world was familiar with banks of deposit and of discount, as well as banks of issue, of which the last named only made and issued bills and notes to circulate as money; nevertheless the powers exercised by either class of banks, were properly denominated “ banking powers ” by the commercial world.

At the same time it is equally certain that the phrase “ banking powers ” was susceptible of another and restricted meaning, which related only to the powers employed in the making and issuing of paper money, or at most, to powers exercised by associations organized to deal in money, including the making and issuing of bills and notes to circulate as money.

When the use of this phrase, in its restricted meaning, was first introduced, we cannot say, but as early as 1815, the general assembly of this state passed an act, providing, among other things, that it should not be lawful for any individual or company of individuals to issue and put in circulation any note or order for the payment of money and calculated to circulate as a bank-bill or note, unless such individual shall be specially authorized by law to do so; or unless such company of individuals shall be by law “ incorporated for that purpose.” 2 Chase, p. 865, § 5. In the following year, January 27, 1816, an act was passed defining banking in this state (2 Chase, 904), the second section of which reads as follows : “ That every company or association that shall lend money, and shall issue by their officer or officers, or by any person or persons, bonds, notes or bills payable to bearer or payable to order, and indorsed in blank, or use other shift or device whereby the bonds, notes or bills given by such company or association, or on their behalf, pass or circulate by delivery, shall be taken and deemed a bank within this act.” The fourth section of this act prohibited the making and issuing of bills or notes to circulate as money, unless authorized by statute. In speaking of this statute, Judge Hitchcock, in State v. Granville Alexandrian Society, 11 Ohio Reports, 1, says, “This act prohibits the exercise of banking powers except by banks incorporated by the law of the state.”

Whatever may have been the rights ■ at common law of natural persons, it is quite clear that by this legislation the state assumed, as a prerogative right, the control of the business of making and issuing bills and notes to circulate as money, and denominated such business banking. And though the state could not engage in the business by reason of the provision of the constitution of the United States, which prohibited states, as such, from emitting bills of credit, it thus assumed the exclusive right, in this state, of granting the franchise to make paper money to others.

It must be observed, however, that while these restrictions were placed on the making and issuing of bills and notes to circulate as money, the right to receive deposits, discount paper and deal in exchange was not restricted, but was left free to all. The result was that individuals of every class, especially merchants and farmers, having the confidence of the people, received money on deposit and loaned the same at interest, in connection with other business, without being denominated or known as bankers. Other persons, either as individuals or associations, engaged exclusively in dealing in money, and in any mode required by the commerce and trade of the country, except only the making and issuing of bills and notes to circulate as money, without any license or authority from the government. Such dealers in money were denominated and known as brokers or private bankers, but were always designated by some name, which distinguished their business from that involving the power to make or issue bills and notes to circulate as money.

The policy of the state thus inaugurated in 1815 and 1816, as well as the practice of the people under it, was continued for more than a generation, and until the constitution of 1851 was submitted to the people of the state for adoption. Hence, it seems evident, from what has been said, that the phrase, “ banking powers,” may have been used at the adoption of the constitution, in the restricted sense above stated, with propriety, and without violence to the words.

, The sense or understanding of the people upon this subject, before the adoption of the constitution is brought to our attention in a very forcible manner. True, the witnesses have not been examined orally before us, but the testimony, for that reason, is not entitled to less weight. In the case of the Bank of the U. S. v. William D. Primrose, in the Supreme Court of the United States in 1839, where the meaning of the word bank was involved, Daniel Webster, in his argument, as published in volume 6 of his works, p. 106, after great consideration, said, “ What constitutes banking must be something peculiar. There are various acts of legislation by different states in this country, for granting or preventing the exercise of banking privileges. But has any law ever been passed to authorize or to prevent the buying by an individual of a bill of exchange ? No one has ever heard of such a thing. The laws to restrain banking have all been directed to one end ; that is, to repress the unauthorized eirculation of paper money. There are various other functions performed by banks; but, in discharging all these, they only do what unincorporated individuals do.

What is that, then, without which any institution is not a bank, and with which it is a bank? It is a power to.issue promissory notes with a view to their circulation as money.”

Further on in his argument he says, When our state / legislatures have undertaken to restrain banking, the great end in view has been to prevent the circulation of notes. I may on this point refer to the statute books of Massachusetts, Maine, Rhode Island and New Hampshire, for restraining unauthorized companies from issuing notes of circulation. Not unlike is the statute of Ohio, imposing a punishment for unauthorized banking. Her law defines, in the first place, what constitutes a bank, namely, the issuing of notes which pass by delivery, and which are intended for circulation as cash. That .is the true definition of a bank, as we understand it in this eountryP

In an opinion contained in the Supplement to 9 Cushing, 608, Chief Justice Shaw gave substantially the same meaning to banking as that expressed by Mr. Webster. He said : “ It is not only the right, but the duty of the legislature, to make all such reasonable and wholesome laws, in regard to all the various branches of business and pursuits in the community, as may be necessary for the safety and welfare of the body politic. It is upon this principle that the legislature has prohibited altogether what has been called private banking, by subjecting every person to a penalty, who shall issue or pass any note, bill,'order or check, with intent that the same shall be circulated as currency, except such as are particularly specified in the act.”

In the case of Bank of Senora County v. Fairbanks, 57 Cal. 196, it was held :

“Br the Coujkt: Under article 4, section 34, of the constitution of the State, deposit and loaning associations may be formed which do not issue paper to circulate as money; and such associations are not banks within the prohibition of the constitution, although they may be called banks.”

The constitutional prohibition thus construed, reads as follows : “ § 34. The legislature shall have no power to pass any act granting any charter for banking purposes ; but associations may be formed under general laws for the deposit of gold and silver; but no such association shall make, issue, or put in circulation, any bill, check, ticket, certificate, promissory note, or other paper, or the paper of any bank, to circulate as money.”

C. J. Taney, in the case of the O. L. I. & T. Co. v. Debolt, 16 How. 438, said: “In the legislation of Ohio, the words ‘ banking institutions,’ or ‘ banks,’ appear always to be confined to corporations which were authorized to issue bills or notes for circulation as currency.” And Chief Justice Bartley, in Exchange Bank of Columbus v. Hines, 3 Ohio St. 1, said, p. 31: “ By a long course of legislation in this state, the business of banking has acquired a restricted legal signification applying only to those banks which exercise the functions of issuing paper money.” So Chief Justice Wood, in Corwin v. U. & C. M. I. Co., 14 Ohio, 6, said: Although receiving deposits is a part of the business of banks, it is no exclusive privilege of theirs, nor is the discounting of notes.” And in that case, the court determined, that “ it is no violation of a charter, which contains a clause prohibiting the exercise of banking powers, to receive money on deposit.”

The views thus expressed by eminent lawyers and judges, in connection with the course of legislation in this state, for many years before this clause in the constitution was adopted, renders it quite probable that the phrase “ banking powers,” was understood by the people adopting it, in its restricted sense, as applying only to powers exercised by banks of issue. This probability is strengthened by a review of the circumstances under which the 7th section of the 13 article was inserted in the constitution, by the convention which prepared it. The convention prepared its work with open doors, and its progress was scrutinized by the people, who were much interested in the result. Indeed, much interest was manifested by the people of the state in the selection of delegates to the convention, as two subjects of especial concern, to wit, corporations and currency, were expected to come before the convention for its consideration. A strong feeling existed against paper money and corporate privileges.

When the' convention met, a committee on “banks and currency,” was appointed,-another on “corporations.” The last named committee secured the adoption by the convention of the first six sections of article 13, on corporations. The first named committee did not secure from the convention the adoption of any portion of its work. This committee, however, was not idle. Its members were divided on the question of currency. The issne was between a metallic currency —gold and silver — on one side, and a mixed currency — metallic and paper — on the other. There was no controversy as to banks, save only on the question whether the issue of paper currency should be prohibited. The result was two reports from the committee, a majority and minority report. That of the majority recommended a provision disabling the general assembly to create or incorporate any “ bank or banking institutions whatever,” or to authorize any “ paper medium intended or calculated to circulate as money or currency.” In respect to what is now called other branches of the banking business, it was provided that: “ The business of loaning and dealing in money shall be left free to all, subject to such restrictions as may be provided by law.”

The minority report recommended leaving the whole matter to the discretion of the general assembly. ■ 1 Convention Debates, 708-9.

During the debate on these reports, it was truly said by Mr. Henderson, a member of the convention, in speaking for the party which was most urgent for restrictive measures, “ They have, as I understand, no objection to banks of discount, of deposit or of exchange. It is solely against the issue feat/m'e that they contend. They look upon that function which empowers banks to issue their own notes to circulate as money, as the nuisance which they desire should be abated.”

Substitutes for the reports were also offered in the convention, but no restriction was suggested upon banks or banking-except upon banks of issue. Neither of these reports or propositions received favorable action from the convention ; but as a compromise measure, within four days of-the final adjournment, another section, -to wit; the 7th (above quoted) was added to the article on corporations by a small majority vote of the convention.

There .can be no doubt that the convention intended to limit this provision to banks of issue, and it is reasonable to suppose that the people to whom the constitution was submitted for final adoption and who were fully advised as to the .struggle in the convention on the subject, understood this section in the same way.

It has been held by the supreme courts' of Illinois and Kansas, that similar provisions in the constitutions of those states relate only to banks of issue. Our constitution, in this respect, was substantially a copy from that of Illinois, and that of Kansas from our own. True, in both of these there are other provisions in the constitution which' aided in the construction given to “banking powers;” but, nevertheless, the reasoning of the court, and the conclusions arrived at, are very persuasive in the case before us. People ex rel. Badger v. Loewenthal et al., 93 Ill. 191; Bank v. Pape, 20 Kansas, 440.

In affirming the constitutionality of this statute, we have not felt the necessity of resorting to the well established rule in the deciding on the constitutionality of statutes, to wit: that unless the conflict between the statute and the constitution be manifest, the validity of the statute must be declared, yet we have no hesitation in saying that by applying this rule, the result would be the same as we have above indicated.

Judgment affirmed.


author: Okey, J.

text:
    Robinson v. Greenville.
    1. While the common law rule that pleadings must be construed most strongly against the pleader has been abrogated, we are not required, under the present system of pleading, to construe every equivocal word or phrase most strongly in favor of the pleader, but the meaning of the pleader must be fairly ascertained, without regard to technical rules, from the whole pleading, giving to legal and technical words, however, their ascertained meaning, unless the context shows they were used in some other sense.
    2. In an action against a municipal corporation to recover damages for injuries sustained from the discharge of a cannon in a public street, by an assembly of disorderly persons, an allegation in the petition that the authorities of the corporation “ had negligently and carelessly given permission to such persons to fire the cannon,” maybe construed, in view of the whole pleading, as an allegation that the authorities took no steps to prevent such tiring.
    3. In relation to powers and privileges which are to be exercised by a municipal corporation for the improvement of the territory within the corporate limits, and as to which the pecuniary and proprietary interests of individuals are represented, the liability of the corporation for negligence is largely, if not entirely, measured by the liability of individuals for similar acts ; but with respect to police powers, such as suppressing riots and unlawful assemblages, such corporation is, in the absence of statutory provision to the contrary, the agent of the state, and not liable for a failure to perform or negligence in performing duties in that particular imposed by statute.
    4. An assemblage of disorderly persons, after having been engaged for several hours in discharging a cannon in a public street of a municipal corporation, seriously injured a resident of the corporation, himself without fault, by one of such discharges : Held, that such corporation, is not liable for the injury, although the statute provides that the council shall have the care, supervision and control of the streets, “and shall cause the same to be kept open and in repair, and free from nuisance ” (Rev. Stat. § 2640), and it will make no difference that the authorities of such corporation, with knowledge of such firing, took no steps to prevent the same.
    ERROR to the District Court of Darke county.
    September 21, 1880, James Robinson filed in the court of common pleas of Darke county, a petition against the incorporated village of Greenville, in that county, wbicb petition, omitting caption, verification and signature of counsel, is as follows:

      “ The plaintiff complains of the defendant, and says, that on and before the committing of the grievances hereinafter complained of, the defendant was an incorporated village under the laws of the state in such case made and provided. That on September 26, 1876, the plaintiff was in the village of Greenville, and started to go from his place of business on Broadway, south of Third street, to the city hall, and while he was passing along such public street, and in the act of crossing from the west to the east side, along and over the regular street crossing, provided and used for the purpose, and in a prudent and careful manner, he was suddenly fired upon by a crowd of men, who had placed a cannon within a few feet of such crossing, and in or near the center of the street or highway. That the cannon was loaded with powder, scrapings of sole leather and wadding, and the crowd of persons, whose names are to the plaintiff unknown, had placed the same at the point aforesaid, and carelessly and negligently pointed and aimed at and toward plaintiff as he was passing over the crossing as aforesaid, and the cannon was suddenly discharged and shot off, without notice or warning to plaintiff of any kind whatever, thereby giving to plaintiff, with the leather and wadding so discharged out of the cannon as aforesaid, in and upon his right leg, a severe and dangerous wound, extending from below the knee to the ankle, whereby the plaintiff’s leg became and was so badly bruised and wounded that, in order to save the life of plaintiff, the leg was amputated just below the knee. «
    “ The plaintiff further says, that the defendant and the authorities of the village had full knowledge that such crowd of persons were engaged in firing the cannon for a number of hours, within the corporate limits of the village, and endangering the lives and limbs of its citizens and travelers upon the street. That the authorities of the village had negligently and carelessly given permission to such persons to fire the cannon as aforesaid, and after they had received notice that such persons were engaged in firing the cannon upon the public places and streets of the village, thus negligently and carelessly permitted the same to be continued, without any effort to stop or remove the same, to the great peril of all persons using or passing over the streets.
    “ Plaintiff says that be was so fired upon or injured as aforesaid without any fault or want of care and caution on his ¡iart, and solely by the carelessness and negligence of the defendant and its authorities and officers in giving permission and allowing the firing of the cannon upon its streets as aforesaid.
    “ Plaintiff says that by reason of his wound so received as aforesaid, he became sick, sore, lame and diseased, and so remained for the space of six months next ensuing, and in consequence of his wounds and the amputation of his leg, he has ever since been unable to attend, and prevented from attending his ordinary business, and has lost all wages he would otherwise have earned and made in his business, to his damage in the- sum of thirty thousand dollars. Wherefore plaintiff prays judgment against the defendant for the sum of thirty thousand dollars, his damages so as aforesaid sustained.”
    The court of common pleas having sustained a demurrer to and dismissed the petition, the district court affirmed the judgment; and a petition in error having been filed in this court, the same question presented in the court below, is again presented, namely, does the petition contain facts sufficient to constitute a cause of action ?

      Powell da Picketts, T. B. Fulton and J. P. Knox, for plaintiff in error.

      J. E. Brader and Sater, Allen <& Anderson, for defendant in error.
   Okey, J.

In an action against a municipal corporation to recover damages for an injury to the person, sustained by reason of the negligence of the agents of such corporation, it is important to ascertain with precision the duty which such agents failed to perform or performed negligently. Por, although such corporations derive all their powers from one source, namely, the legislature, and necessarily perforin their functions solely by agencies, yet there is a marked distinction as to their liability for the acts of their agents, arising from the different characters in which the corporation is-charged with the performance of duties. Thus, with respect to the power to suppress riots and assemblages of disorderly persons, it has been uniformly held, in the absence of statutory provision to the contrary, that the corporation is a mere agency of the state, and not liable for negligence in the performance of such duties. Upon this principle it has been held that there is no corporate liability for the acts of a mob, although the charter contains this provision as to the duties of council, that “ it shall be their duty to regulate the police of the city, preserve the peace, prevent riots, disturbances and disorderly assemblages ” (Western Reserve College v. Cleveland, 12 Ohio St. 375); nor is such corporation liable to an individual for damages resulting from a failure to provide the necessary agencies for extinguishing fires, or for negligence of officers and others connected with the fire department, although the obligation to perform such duties is imposed by statute (Wheeler v. Cincinnati, 19 Ohio St. 19); nor is a city liable for failure to enforce an ordinance with respect to the storage of oils, although its agents had notice of the failure to observe the ordinance, and notwithstanding the fact that by reason of such nonobservance, the property of a citizen of the corporation was destroyed. Roberts v. Cincinnati, Sup. Ct. Gen. Term, 5 Am. L. Rec. 73.

But concerning the powers and privileges which are to be exercised for the improvement of the territory within the corporate limits, and as to which the pecuniary and proprietary interests of individuals are represented, as the construction of a bridge (Dayton v. Pease, 4 Ohio St. 80), or placing water mains in a street (Ironton v. Kelley, 38 Ohio St. 50), the liability of the corporation for negligence is largely, if not entirely, measured by the liability of individuals for similar acts. This principle was applied in Newark v. Frye, decided by this court March 22, 1881. The council of the city of Newark, being authorized to "guard against injuries by fh’e,” and to purchase fire engines, etc., “ and all other apparatus and instruments as shall be deemed necessary to the extin-guishment of fires” (66 Ohio L. 204, § 327; Revised Statutes, § 2471), and having under consideration the propriety of purchasing the Champion Fire Engine, a fire extinguisher, appropriated money for the purchase of combustible material for the purpose of making a test of such engine. An old building was removed to the center of one of the principal streets of the city, and the same was partly filled with boxes and shavings, on which was poured a large quantity of gasoline, some of the officers of the city assisting in the work, and several members of the council being present and making no objection. On applying a match, there was an immediate explosion, which destroyed the structure, killed several persons and injured others. This court properly held the city liable, following Dayton v. Pease, supra. 6 Cincinnati L. Bul. 130. And see Little v. Madison, 42 Wis. 643, as explained in Schultz v. Milwaukee, Little v. Madison, 49 Wis. 254, 605; Chicago v. Schmidt, 107 Ill. 187; Bathurst v. Macpherson, 4 App. Cas. 256; Kent v. Worthing Local Board, 10 Q. B. D. 118; The Queen v. Williams, 9 App. Cas. 418.

Undoubtedly there is difficulty, sometimes, in determining the class in which a particular case must fall; and' it is also true that there is considerable conflict in the authorities, as to the extent of such liability. We will'make no attempt to settle this conflict, but have referred to the above cases for the purpose of illustrating the distinction" already stated between cases falling within the police power of the corporation and those in which it represents the property rights of the citizen. Reference to most of the cases on the subject, decided previous to 1877, will be found in Hill v. Boston, 122 Mass. 344; and see Springfield v. Spence, 39 Ohio St. 665; Bathurst v. Macpherson, supra; Barnes v. District of Columbia, 91 U. S. 540.

That firing cannon in a public street of a municipal corporation, except in case of imperative and urgent necessity, is an intolerable nuisance, and that all persons engaged in such unlawful act are personally liable for all damages caused thereby, are propositions concerning which there is no room for difference of opinion. But a very different question is presented when it is attempted to fasten liability for such injuries on a municipal corporation. We cannot say that the firing complained of in the petition was licensed or expressly authorized. While the common law rule, that pleadings must be construed most strongly against the pleader, has been abrogated, we are not required, under the present system, to construe every equivocal word or phrase most strongly in favor of the jaleader. On the contrary, the meaning of the pleader must be fairly ascertained, without regard to technical rules from the whole instrument. Crooks v. Finney, 39 Ohio St. 57. Of course, if legal or technical words are used, we are to understand them in their recognized sense, unless the context shows another sense was intended. The words of the petition,- fairly construed, charge no more than that the authorities of the village permitted, that is, took no measures to prevent, such firing ; and so the case clearly falls within the first class to which we have referred, and hence the corporation is not liable. Morristown v. Fitzpatrick, 94 Pa. St. 121, and Boyland v. New York, 1 Sand. S. C. 27, are both remarkably like this case in their facts, and in each it was held that the corporation was not liable. And see Campbell v. Montgomery, 53 Ala. 527; Lafayette v. Timberlake, 88 Ind. 330. To be sure, it is urged here that the village is liable by force of the Revised Statutes, § 2640, which provides: “ The council shall have the care, supervision, and- control of all public highways, streets, avenues, alleys, side walks, public grounds and bridges within the corporation, and shall cause the same to be kept open and in repair and free from nuisance.” In our opinion, however, the word nuisance, in this connection, does not include an assemblage of persons engaged in such unlawful act, but refers to something which is, in a sense, fixed or permanent, as a defect in the street. But if we could'hold otherwise, the result would be the same, for if nuisance embraces a mob, then the city is not liable for such nuisance, on the principle already stated.

In any view the judgments below are right.

Judgment affirmed.


author: Johnson, J.

text:
    Liles v. Gaster.
    In an action of slander, the petition charges defendant with having spoken certain false, malicious and defamatory words concerning the plaintiff, while giving his testimony before a court having jurisdiction of the subject matter then on trial, in answer to interrogatories put to him as such witness. For aught that is stated in the petilion, these answers were relative to the issue then on trial, and were honestly believed to be true, though in fact they were untrue. Upon demurrer to the petition,

      Held,: 1. That the court will presume,' in the absence of an averment to the contrary, that the answers of the witness were within the scope of inquiry pertinent to the issue then on trial, and that they were believed by the witness to be true.
    3. That upon the statements of the petition and the presumptions arising therefrom, the witness was absolutely privileged, and he is not liable to a civil action for so testifying.
    Eeeoe to the District Court of Wyandot county.
    This is a proceeding to reverse the district court for error in reversing the common pleas where a demurrer was sustained to the following petition:
    “ The plaintiff says, first: That before the committing by the defendant of the grievances hereinafter mentioned and complained of, to wit, on or about the 22d day of September, A. D. 1871, at the residence of the plaintiff and his brother, Robert Gaster, in said county, one Barnabas Wagner, the husband of plaintiff’s sister and a man of great age, had become sick, and died,' of some disease or cause to plaintiff unknown; and that subsequent to the death of said Barnabas Wagner, it was currently reported .and generally believed that said Barnabas Wagner bad died of poison, administered by his attending physician, Dr. William Froemi'g, who was afterwards arrested ■ and indicted for said offense, upon his own confession thereof, but became insane while under indictment for the murder of said Barnabas' Wagner, by means of poison as aforesaid, and was never put upon trial under said indictment by reason of the fact of his said insanity.
    “ 2. That prior to, and at the time of the death of said Barnabas Wagner, one Frederick Bealer, a boy, then about thirteen years of age, was making his home with plaintiff and his said brother, at their said residence, and was engaged during a part of the time in such light work about the farm as he was able to perform.
    “ 3. The said Frederick Bealer became of full age about the 15th day of November, A. D. 1879, and afterwards, on the 30th day of December, 1879, commenced an action against plaintiff and his said brother, Robert, before M. II. Water mire, a justice of the peace of said county, and said action was tried before said justice and a jury on the 7th day of February, 1880.
    . “ 4. The defendant, Plympton J. Liles, well knowing all the premises, and having been called as a witness upon said trial, for the said Frederick Bealer, and having testified as such witness, among other things, that the said Frederick Bealer had put in all the wheat sown upon plaintiff's farm during the fall of the said year, 1871, and having been interrogated as to where the Gaster boys (meaning the plaintiff and his brother Robert), were, and what they were doing, at the time the said Bealer was engaged in putting in said wheat, in answer to said interrogatory and in the presence and hearing of said justice and jury, and of a large audience of witnesses and spectators, maliciously spoke and published of and concerning the plaintiff, the false and malicious words following, that is to say ‘Jacob Gaster5 (meaning the plaintiff), ‘had run away.5
    “ And upon being further asked why the plaintiff had run away, the said defendant upon the trial aforesaid, at the time and place aforesaid, and in the presence and hearing of the justice, jury, spectators and witnesses, aforesaid, in answer to said question, maliciously spoke the false, scandalous, malicious and defamatory words following, that is to say, ‘ Eor poisoning old man Wagner,’ meaning the said Barnabas Wagner, and meaning and intending thereby to charge the plaintiff with the crime of having caused the death of said Barnabas Wagner, by the administration of poison for that purpose, unlawfully and feloniously.
    “ And upon being further asked how he knew that plaintiff had run away, the defendant then and there falsely and maliciously replied : ‘ Everybody says so,’ — meaning and intending thereby, to cause it to be believed by the said justice, jury and witnesses, that it was commonly reported and believed that plaintiff had procured and caused the death of the said Barnabas Wagner, by means of poison unlawfully and criminally administered.

      “ And upon being further asked what old Wagner defendant meant in his reply to said question, defendant, in answer to said question, and in the presence and hearing of the parties and persons aforesaid, replied : ‘ Old Barney Wagner’ (meaning the said Barnabas Wagner), who was poisoned and died. ‘ Everybody knows that, and that Bob G-aster’ (meaning plaintiff’s said brother Robert), was in jail.’
    “ And plaintiff avers and charges that all of the above mentioned false, scandalous, malicious and defamatory words were spoken as aforesaid of and concerning the plaintiff, and of and concerning the death of said Barnabas Wagner, and of and concerning the common report, and general belief that the death of said Barnabas Wagner had been caused by poison unlawfully and criminally administered, and that all of said words were spoken as aforesaid by the defendant, falsely and maliciously, and for the purpose of injuring the plaintiff and of causing it to be reported and believed that plaintiff was criminally connected with the death of said Barnabas Wagner, and that by reason thereof plaintiff had been compelled to flee from justice. And plaintiff says that by reason of the premises he has been greatly injured in his good name, fame and reputation, and has suffered damage in the sum of five thous- and dollars, for which he prays judgment against said defendant.”

      John D. Sears, for plaintiff in error.

      I). D. Hare, for defendant in error.
   Johnson, J.

Prom the petition, it appears that the words charged, if disconnected with the circumstances under which they were uttered, are actionable per se. These circumstances disclose the fact, that they were uttered while the defendant below was giving his testimony in a trial before a justice of the peace. It appears, there was an action then on trial, wherein one Bealer was plaintiff, and defendant in error and his brother were defendants. It does not appear what the nature of that action was, nor in whose behalf the plaintiff in error testified. We infer from what follows that Bealer’s suit related to services rendered by him to the Gaster brothers. The plaintiff in error was sworn as a witness, and during his examination testified ,that Bealer had in the fall of 1871 put in all the wheat on the farm of the Gaster brothers, the defendants in that action. He was then asked, where the Gaster boys were at the time. He answered, “ Jacob Gaster” (meaning the plaintiff below in this action), “ had run away.” He was then asked why he had runaway. He answered, “Por poisoning old man Wagner.” He was further asked how he knew. He - said, “Everybody says so.”

These statements were made in the presence of the court, jury and spectators, while defendant in error was giving evidence as a sworn witness. Petition charges that this evidence was false and malicious and was given for the purpose of injuring the plaintiff below, and of causing it to believed that he was guilty of poisoning old man Wagner. It does not appear what was the ■ nature of the cause of action then on trial, nor whether the evidence so given was or was not relevant to the issue. Under the circumstances we must assume that it was pertinent and material. It may fairly be presumed from the tenor of the examination that it was called out upon cross-examination by the defense in that action.

■ The court of common pleas held, that the witness was protected from an action for slander while giving such testimony in that case ; in other words his testimony was what was known as a privileged communication. The district court held, that it was not. The question therefore is, whether a witness, who gives testimony pertinent to the issue in a judicial proceeding, is liable to an action of slander because such testimony is false and malicious. It is not averred that the witness hnew, when he made these statements, that they were false. For aught that appears, he may have believed them to be true, though they were, in fact, untrue. He could not be convicted of perjury unless it appeared that his testimony was not only false but that it was willfully and knowingly made.

We are not called upon, 'in the case at bar, to determine whether there may not be cases where a witness may not subject himself to an action for damages for statements made while giving his testimony, where he abuses his privileges'as a witness, and makes it an occasion to utter defamatory words against another, where the words are false, are not relevant to the issue, and where he is actuated by express malice.

The general rule is, that language used in the ordinary course of judicial proceedings, whether by the judge, a party, counsel, jurors or witnesses, is protected if it be relevant to the matter under consideration, and the court have jurisdiction.

The privilege accorded to a witness, under such circumstances, is founded upon public policy. The due administration of justice requires that a witness should be perfectly free to speak according to his belief, without regard to consequences. He is sworn to tell the truth, the whole truth, and nothing but the truth, concerning the matter in trial. While doing so in good faith, he is absolutely privileged, and cannot be found guilty of perjury, nor is he liable to a civil action : thus far all the authorities agree.

An eminent author thus states the reason of the rule: countable to conscience alone, or perhaps to a supervising public sentiment, but not to the courts. What would be the condition of the witness, for instance, were he under the necessity of calculating, when giving his testimony, not merely whether it satisfied his conscience, but also whether he could prove it to be true, should he be sued for slander in giving it ? It is beyond doubt that to subject him to such responsibility, would at least detract largely from the reliability of evidence, and multiply the opportunities for operating upon the fears of witnesses to the serious detriment of justice.” Cooley on Torts, 211.

“We unhesitatingly recognize the fact that in many cases, however damaging it may be to individuals, there should and must be legal immunity for free speaking, and that justice and the cause of good government would suffer if it were otherwise. With duty often comes a responsibility to speak openly, and act fearlessly, let the consequences' be what they may ; and the party upon whom the duty was imposed, must be left ac-

In a recent English case (Munster v. Lamb, 23 American Law Register, 12; 11 L. R., Q. B. Div. 588), Brett, Master of the Rolls, says:

“ Actions for libel and slander have always been subject to one principle; defamatory statements though they may be actionable on ordinary occasions, nevertheless are not actionable when they are made upon certain occasions; it is not that these statements are libel and slander subject to a defense, but the principle is, that defamatory statements, if they are made on a privileged occasion, from the very moment when they are made, are not libel or slander of which the law tabes notice.”

Malice is either express or implied. If the occasion is such that the statement is privileged, the presumption of legal or implied malice is rebutted, and the burden is on the plaintiff to aver and prove malice in fact, or express malice, but even such malice does not render the words of a witness, who testifies, in good faith,to matters deemed by the court wherein he is testifying to be admissible, actionable, even though the testimony be irrelative to the issue. If the witness, in such a case, believe his statements to be true, though in fact they are false, malice in fact will not render him liable in damages.

What his liability in this respect may be, if he was guilty of intentional falsehood, and actual malice, we need not here determine, as the case made does not require it.

Neither does it require us to "determine such liability if a witness disregard the obligations of his oath, and willfully and maliciously perverts the truth, and takes advantage of his position, to utter false, malicious and slanderous words.

Whether, in such cases, a witness is liable only to an indictment for perjury, as many authorities hold, or may also be liable to a civil action, as others maintain, is a question not now before us.

In the case at bar, the inference or presumption of malice that would arise, if the words were not spoken as a witness in a judicial proceeding, is rebutted by the occasion stated. Odgers on Libel and Slander, 186-193 ; Cooley on Torts, 211-215.

The burden of removing this presumption and of averring and proving a state of facts that would not justify a witness in claiming protection, rests upon the plaintiff.

The case made by the petition raises no question of fact 'for a jury. Whether a question is privileged, is a question of law. The petition does not make, if we concede one could be made, a case of a qualified privilege, to be submitted to a jury. The testimony was given before a competent court, by a sworn witness, in answer to pertinent interrogatories. His answers were, so far as we are advised, material to the case, made in good faith, and believed to be true, though in fact false. It is not averred that he went outside of his duty, and abused his privilege by knowingly and willfully uttering false and defamatory words.

This being so, public policy demands that he should be protected, even though he was actuated by malice, as well as a purpose to perform a duty imposed by law upon him as a witness. 23 Am. Law Register, note to case on p. 12; Lanning v. Christy, 30 Ohio St. 115.

Judgment of the district court reversed and that of the common pleas affirmed.