author: O’Hara, J.

text:
    The Palace Hotel Company v. Medart.

      Suit by guest against innkeeper — For loss of wearing apparel left in room — Not necessary for plaintiff to show negligence of innkeeper, when — Application of Section 5983, General Code.

    In a suit by a guest against an innkeeper for damages for the loss of ordinary wearing apparel and personal effects left by him in his room, the key thereof having been delivered into the custody of the innkeeper, it is not necessary as a part of his case in chief to show that such loss was occasioned by the fault or negligence of the innkeeper. Proof of such loss by the guest makes out a prima facie case of liability upon the part of the innkeeper, and Section 4427a, Revised Statutes, now Section 5983, General Code, does not change the rule of the common law in this regard.
    (No. 12969
    Decided November 26, 1912.)
    Error to the Circuit Court of Hamilton county.
    The defendant in error, Philip Medart, brought suit against The Palace Hotel Company, plaintiff; in error, before a justice of the peace in Cincinnati township, Hamilton county, Ohio, in June, 1909, for damages for the loss of certain personal effects and wearing apparel, which he claimed had been wrongfully taken from his room in the hotel during his absence therefrom in the daytime. The company took an appeal from the judgment of the justice, and at the trial in the common pleas court it was admitted that Medart was a guest of the hotel, that he had properly- registered and had been assigned to a room. Evidence was offered on behalf of the plaintiff below tending to prove that he had left his property, consisting of the ordinary clothing and effects of a traveler and his valise, in his room; that when he left at an early hour in the morning he locked the door of his room and deposited the key with the clerk at the office; that he was absent from his room all day, and upon his return in the evening received his key from the clerk; and that when he went to his room he discovered that his clothing and other effects were missing, which fact was promptly reported by him to the office. The defendant below practically admitted the foregoing facts, but offered evidence tending to show, among other things, that the room was provided with a lock and bolt and a separate key; that the same were found to be in good condition immediately after the complaint was made by Medart of his loss, and that there were no indications of the room having been entered in any improper way. A verdict was rendered in behalf of Medart in the common pleas court and judgment entered thereon, which was affirmed by the circuit court on error, and these proceedings in error are brought to reverse both said judgments.

      Mr. Harry Hess, for plaintiff in error.

      Messrs. Cohen & Mack, for defendant in error.
   O’Hara, J.

The principal error relied upon by plaintiff in error, and which presents a question of some importance, is raised with reference to the charge of the court. The court charged the jury, in substance, that proof that plaintiff was a guest of the hotel at the time of the loss, that he had been accepted as such and had duly left the property above described in his room in the hotel, and that it was taken therefrom without his knowledge or consent, would establish a prima facie case and put the defendant upon its proof. This is claimed to be erroneous, in that the charge did not require affirmative proof by plaintiff of negligence on the part of the defendant, which it is claimed was required by Section 4427a, Revised Statutes, then in force, now Section 5983, General Code. That section, which was originally passed April 27, 1896 (92 O. L., 322), reads as follows: “The liability of the keeper of any inn, whether individual, partnership, or corporation, for loss of or injury to personal property placed by his guests under his care, other than that described in the preceding section, shall be that of a depositary for hire; provided, however, that in no case, shall such liability exceed the sum of one hundred and fifty dollars for each trunk and its contents, fifty dollars for each valise and its contents, and ten dollars for each box, bundle or package, and contents, so placed under his care, unless he shall have consented in writing with such guest to assume a greater liability.”

It is claimed on behalf of plaintiff in error that, by the enactment of the above section of the statutes, the common law liability of an innkeeper was changed from that of practically an insurer of the goods of his guest to that of a depositary for hire; and also, by necessary intendment, that affirmative proof of negligence on the part of the innkeeper is required under the statute before he can be held liable, because a depositary for hire is bound to exercise ordinary care only, and is responsible only for his neglect so to do.

The question raised is one of general interest, and affects the entire traveling public as well as the many hotels throughout the state. Numerous statutes have been passed in the various states upon this subject, but nevertheless there are few, if any, decisions that bear directly upon the proposition here presented.

In order to arrive at a proper solution of the question, it is necessary to consider the nature of the relation of an innkeeper to his guests, and his duties and responsibilities as fixed by the common law. In his interesting work on this subject, Professor Beale has given a brief history of the development of inns, and he draws the conclusion, that from the earliest times the fundamental characteristic of an inn has been its public nature. Beale on Innkeepers, Section 11. The meagre facilities for travel, and the unsettled condition of the country in medieval England, resulted in the adoption of a very strict responsibility on the part of innkeepers to the public, and what is known as the common law rule of liability was adopted. This has been stated in various ways, but as commonly accepted, it is, in substance, that an innkeeper is liable for the goods of the guest lost in the inn, unless the loss has been caused by act of God, or of a public enemy, or by fault of the owner. Beale on Innkeepers, Section 185. 22 Cyc., 1081. And the rule of the common law has always been recognized by this court as in force in this state. Gast v. Gooding, 7 W. L. J., 234, 1 Dec. Re., 315; Fuller v. Coats, 18 Ohio St., 343, at pages 349 and 350.

The public character of the innkeeper’s relation is further shown by the statutes of Ohio, which provide that all persons within the jurisdiction of the state shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities and privileges of inns, restaurants, eating houses, and other places of public accommodation and amusement; and a denial of these rights to any citizen by any person is made a misdemeanor punishable by fine and imprisonment. Sections 4426-1, 4426-2, Revised Statutes, now Sections 12940, 12941, General Code..

It seems to be universally settled, however, that no matter what view is taken as to the degree of responsibility of the innkeeper under the common law rule, upon loss or injury to the goods of a guest being shown, the innkeeper is prima facie liable and the burden is upon him to establish such facts as will exonerate him. Beale on Innkeepers, Section 190. 22 Cyc., 1082.

The foregoing is conceded by counsel for plaintiff in error, but he claims that the common law rule in this state was materially modified by the passage of the act of March 3, 1860 (57 O. L., 15), which subsequently became Section 4427, Revised Statutes, now Sections 5981, 5982, General Code, and also by the act of April 27, 1896, above referred to, being Section 4427a, Revised Statutes, General Code, Section 5983. The former statute makes provision for the custody of money, bank notes, jewelry, negotiable papers, and other valuables, and limits the liability of an innkeeper therefor, under certain conditions. We are not concerned with this section of the statutes at the present time, however, but are confined to a consideration of the meaning and scope of the latter section, 4427a, which covers personal property placed under the care of an innkeeper by his guests, other than that described in the preceding section.

Although the petition was evidently drawn with reference to Section 4427a, and the court charged the jury upon the theory that the case was governed thereby, counsel for defendant in error now claim in their brief that the statute has no application to the facts herein. It is contended that this section was not intended to apply to personal property of -the guest other than money, jewelry, etc., left by him in his sleeping room, but only to such as are directly placed in the care of the innkeeper, that is, to be kept in his check room or storage room. This question was very briefly presented on behalf of defendant in error, and was not discussed in the brief for plaintiff in error, although its counsel urged upon the court at oral argument that a judicial construction of this statute is greatly desired, the rights of hotel-keepers and guests thereunder being matters of much public interest and concern.

We have accordingdy given the question some consideration, and are inclined toward the opinion that there is force in the contention of defendant in error. Section 4427a was originally enacted on April 27, 1896 (92 O. L., 322), as “supplemental” to Section 4427, which was then amended and re-enacted, and both were made parts of what was designated “An act to amend and supplement Section 4427 of the Revised Statutes of Ohio.” The supplemental section expressly refers to the other, and they seem to be component parts of one plan or purpose, which is to provide a limitation upon the amount of the liability of the innkeeper for the property of every sort or description of his guest, that may or should be directly placed in his charge. This is clear as to the original section with reference to money, jewelry and other valuables, and the language used in the supplemental section indicates that the property referred to is to be presented in the convenient and usual form of either a trunk, valise, box, bundle or package, for checking or storage in a place specially adapted and devoted to that purpose; and for each trunk, valise, etc., and contents, an amount is fixed as the maximum liability of the innkeeper, which would seem to be fair and reasonable, as the innkeeper is not in a position to know the contents, and would not be warranted in opening every trunk, valise and package, to find out. This reasoning does not apply to the apparel and effects of guests kept in their rooms, nor agree with the general custom and usage of guests in that regard.

However this question is not necessary to a decision of the case before us, from the view we have taken of the main question presented by the record. That involves the charge of the court as to what facts were necessary for the guest to establish to make out a prima facie case, among which negligence on the part of the innkeeper was not included; and if the law was correctly stated in that regard, even upon the theory that the statute was applicable, we need go no further.

We come then to a consideration of Section 4427a, and proceed to ascertain the meaning and effect of that portion which declares the liability of the innkeeper, under the conditions set out therein, to be that of a depositary for hire. It is argued on behalf of plaintiff in error, that a depositary for hire is bound to exercise only ordinary care, and that he is therefore liable only for his failure so to do. It is further claimed to follow in natural sequence, that the burden is upon the guest to establish this want of ordinary care, in the same manner and to the same extent as in other cases where negligence is made the basis of a claim for damages. The rule of the common law and its recognition and adoption in this state as hereinbefore set out, being conceded, we shall consider the claim of plaintiff in error that it has been modified and restricted by the statute in question, in the light of well settled principles.

One of the established doctrines in the construction of statutes is, that those which are in derogation of the common law are to be strictly construed. Dwarris on Statutes, pages 145, 185; 2 Lewis' Sutherland Stat. Con. (2 ed.), Sections 454, 573; Endlich on Interpr. of Stat., Section 127. The rule is .clearly and positively stated by this court in the recent case of State, ex rel. Morris, v. Sullivan, 81 Ohio St., 79: “Statutes are to be read and construed in the light of and with reference to the rules and principles of the common law in force at the time of their enactment, and in giving construction to a statute the legislature will not be presumed or held, to have intended a repeal of the settled rules of the common law unless the language employed by it clearly expresses or imports such intention.” And statutes such as the one now under consideration, which regulate the innkeeper's liability and provide means for his protection, are held to be in derogation of the common law, and are therefore to be strictly construed. 22 Cyc., 1086.

We may assume for the sake of argument, as contended on behalf of plaintiff in error, that it was the purpose of the statute to limit the liability of the innkeeper, designated therein as that of a depositary for hire, to the failure on his part to exercise ordinary care, although the statute itself does not say so, nor does it give any definition of the term “depositary for hire.” Further, there seems to be nothing elsewhere in the statute or common law of this state that meets the situation, and no authority whatever is cited by counsel for plaintiff in error upon this phase of the subject.

Upon investigation we have found that several of the states have statutes, which describe depositaries for hire as persons with whom goods are left on storage for a consideration, and which define the extent of their duties for the preservation of the property stored, as the exercise of at least ordinary care.

On further examination, we have found that in more than two-thirds of the states of the Union, laws have been passed regulating the liability of innkeepers for the property of their guests, and with few exceptions they have practically preserved the common law rule with reference to ordinary baggage and wearing apparel. Only two of the states, viz., California and Michigan, have statutes similar to that of Ohio. Georgia has a statute declaring an innkeeper to be a depositary for hire, but it also provides that he is bound to extraordinary diligence in preserving the property of his guests, and that in case of loss, presumption of the want of proper diligence on his part arises. The statutes of North Carolina make the innkeeper liable for negligence, but also provide that the proof of loss of the baggage of his guests, except in case of damage or destruction by fire, shall be prima facie evidence of negligence on his part.

Without going further into detail, it may safely be said, therefore, that very few states have enacted laws changing the common law liability of innkeepers, so far as the ordinary baggage and wearing apparel of their guests are concerned. However, there seems to be a dearth of decisions under the statutes above referred to, bearing directly upon the question under consideration.

The term “ordinary care” is of a flexible nature, and adapts itself to the particular circumstances under which it is to be applied. It depends upon the relation existing between the parties in interest, as well as the business in which they may be engaged, and varies with the peculiar phase of every situation. As frequently stated, conduct which would be ordinary care in one condition of affairs, might be considered gross negligence in another. C. C. & C. R. R. Co. v. Terry, 8 Ohio St., 570, 581; Grand Trunk Ry. Co. v. Ives, 144 U. S., 408, 417; 6 Words and Phrases, 5035 et seq. The reasons that led up to the adoption of the string-ent common law rule for the protection of the traveling public in earlier times, are not altogether wanting- in principle at the present day. There is as much occasion for travel now as then, and in fact the amount of travel is immeasurably greater to-day than many years ago. It is also as necessary for the traveling- public of the present to receive food and shelter, and protection for such personal effects as their needs and comforts may require, as it ever was. While such protection may be provided to a certain extent by laws with reference to the custody of the money, jewelry and other valuables of guests, nevertheless they are practically as helpless to protect themselves from the loss of their personal effects as ever. These are necessarily left in their rooms when they are out of the hotel for business or other purposes; and when the door has been locked and the key handed in at the office, their power of self-protection is at an end, the entire control and supervision of their property having been turned over to the innkeeper. And if, upon their return at the end of the day, they find that their goods have been taken away, it is obvious that they will have practically no means whatever of knowing or proving the cause of their loss. It would seem to be just, therefore, that upon proof of such a state of facts, the innkeeper should at least be called upon for an explanation, he having been placed in full charge of the property, and being in receipt of a valuable consideration for its safe custody.

Bearing in mind, therefore, the strict construction that is to be applied to such statutes, and there being nothing in the one under consideration which changes the well-established rule of the common law, that proof of such loss of his ordinary baggage and wearing apparel by a guest makes out a prima facie case, we think it clear that the rule is still in force, and that the charge of the court in that regard was correct.

Other errors are alleged, but upon consideration of the whole record, we do not deem them prejudicial. It follows, therefore, that the judgment of the circuit court should be affirmed, and it is so ordered.

Judgment affirmed.

Davis, C. J., Spear, Shauck, Johnson and Donahue, JJ., concur.


source: Caselaw Access Project

author: Donahue, J.

license: Public Domain

text:
    Goff et al. v. Gates et al., Commissioners. Gates et al., Commissioners, v. Granger.

      Act of legislature that fails to repeal in terms an existing statute— Held to repeal former statute by implication, when — Section 2, of act of May jo, 1910, in conflict with Section 6926, General Code — Law of constructing, repairing, and improving public roads.

    1'. An act of the legislature that fails to repeal in terms an existing statute on the same subject-matter must be held to repeal the former statute by implication if the later act is in direct conflict with the former, or if the subsequent act revises the whole subject-matter of the former act and is evidently intended as a substitute for it.
    2. Section 2 of the act of the general assembly, passed May 10, 1910, entitled: “An act to provide for the laying out, construction, repair, or improvement of any public road or any part thereof, and for the straightening, widening, or altering, and draining of the same by the county commissioners,” is in direct conflict with Section 6926, General Code, and, therefore, repeals said section of the General Code by implication.
    3. The act of the general assembly of May 10, 1910, completely revises the whole subject-matter covered by Sections 6926 toi 6956, General Code, inclusive, and is evidently intended as a substitute for these sections, and, therefore, repeals the same by implication.
    (Nos. 13376 and 13375
    Decided November 26, 1912.)

      Error to the Circuit Court of Morrow county.
    On the 28th day of February, 1911, a petition was presented to the board of county commissioners of Morrow county, praying said board to improve a public road by grading and macadamizing the same. Webb Goff and Elzy Williams filed a petition in the common pleas court of Morrow county seeking to enjoin the board of commissioners from further proceedings under the petition filed with it and from levying any assessment against their property lying and being within one mile of the proposed improvement for and on account of the same, for the reason among others that a majority of the landowners within one mile on either side, end or terminus of said improvement and affected thereby, had not signed the petition asking that such improvement 'be made. Issue was joined by answer and reply, and the common pleas court, at its April term, 1911, dismissed the petition of plaintiff and dissolved the temporary injunction theretofore allowed. Appeal was taken to the circuit court of Morrow county, and that court, at its December term, 1911, also found for the defendants and dismissed the plaintiffs’ petition. This proceeding in error is now prosecuted to reverse this judgment of the circuit court.
    In the case of Gates et al. v. Granger, No. 13375, a similar petition was presented to the board of county commissioners of Morrow county, on the 6th day of February, 1911, praying said board of county commissioners to improve another public road in Morrow county by grading and macadamizing the same. The defendant in error, Solon Granger, filed his petition in the common pleas court of Morrow county, praying that said board of county commissioners be enjoined from making said road improvement or any part thereof and from levying any special assessments upon the plaintiff’s land lying and being within one mile of the proposed improvement, for the reasons, among others, that said proposed improvement was within less than a mile of the lines of Marion and Delaware counties, and that a majority of the resident landowners within one mile on either side, end or terminus of said improvement and affected thereby had not signed a petition asking for the improvement to be made. Issue was joined by proper pleadings, and the common pleas court of Morrow county, upon final hearing of the cause, dismissed the plaintiff’s petition and dissolved the temporary injunction theretofore granted. ' Appeal was taken to the circuit court of Morrow county and that court found for the plaintiff and granted a perpetual injunction, and this proceeding in error is here prosecuted by the board of county commissioners of Morrow county to reverse the judgment of the circuit court.
    The circuit court in both cases made a separate finding of facts, and, among other things, in case No. 13375, found: “that by counting the names of the resident landowners owning lands lying and being within one mile of said improvement and within right angles with the ends thereof and within Morrow county only, a majority have signed said petition.
    “That by counting landowners who reside within Morrow, Delaware and Marion counties, owning lands lying and being within one mile from the sides of said improvement and within right angles with the ends thereof there has not a majority signed said petition.
    “That by counting the resident landowners owning lands within one mile from the side and ends of said improvement and within Morrow county there has not a majority signed said petition.”
    And the circuit court, among other things, in No. 13376, found: “that by counting all the resident landowners owning lands lying and being within one mile of the proposed improvement and within right angles with the ends thereof, a majority have signed the petition for said improvement; that if the resident owners owning lands lying and being within one mile on either side, end or terminus of said improvement are to be counted, then a majority did not sign the petition for said improvement.”

      Mr. I. W. Barry, for plaintiffs in error in case No. 13375 and defendants in error in case No. 13376.
    It is a well-settled rule that when a law enacting a thing to be done differently from the same thing required by a former law, the first thereby becomes repealed without any direct expression of said intention of the law-making power. Lessee of Moore v. Vance, 1 Ohio, 10.
    A subsequent statute revising the whole subject-matter of the former statute and evidently intended as a substitute for it, although it contains no express words to that effect, operates as a repeal. Lorain Plank Road Co. v. Cotton, 12 Ohio St., 272; State, ex rel., v. Commissioners, 16 C. C., 218, 9 C. D., 90; State, ex rel., v. Craig, 22 C. C., 217, 12 C. D., 351; Eggleston v. Harrison, Assignee, 61 Ohio St., 404; Iroquois Co. v. Meyer, 80 Ohio St., 683; State, ex rel., v. Roney, 82 Ohio St., 376; Alexander et al. v. Baker, 74 Ohio St., 270.
    If the act of 1910 was designed as a substitute for the act of 1900, as amended in 1908, and provides a remedy for the uncertainties and ambiguities thereof, and embodies all the provisions, contains all the subject-matter thereof, and that the assessment shall be upon lands benefited, why not apply the rule, “When a subsequent statute revises the whole subject-matter of a former statute, and evidently intended by it, that the same operates as a repeal.” The whole scheme of this law is one of benefits, the foundation of special assessments; shall the benefits resulting from the property assessed from the improvement defray the costs for which the assessment is levied? Craig v. Heis, 30 Ohio St., 550; Chapman v. Sollars, 38 Ohio St., 381; 2 Elliott on Roads and Streets (3 ed.), Sec. 684.

      Mr. J. 'C. Williamson, prosecuting attorney, and Mr. T. B. Mateer, for commissioners of Morrow county.
    The act of May 10, 1910, makes no reference to Sections 6926 to 6956, both inclusive, General Code, nor to any other section or sections, therefore if this subsequent act repeals the former, it does so by implication.
    Repeals by implication are never favored, and if any reasonable construction may be given to previously existing statutes, so that both may stand, it must be given. State, ex rel., v. Commissioners, 20 Ohio St., 421; Gallup v. Commissioners, 20 Ohio St., 324; State, ex rel., v. Trustees Union Tp., 8 Ohio St., 394; Hirn v. State, 1 Ohio St., 20; Cass v. Dillon, 2 Ohio St., 607; Eggleston v. Harrison, 61 Ohio St., 397, 55 N. E. Rep., 993.
    These laws are in pari materia. Lear v. Halstead, 41 Ohio St., 566.
    Statutes in pari materia should be construed so as to give effect to all their provisions. State, ex rel., v. Commissioners, 20 Ohio St., 424; Alexander et al. v. Baker, 74 Ohio St., 269.
   Donahue, J.

A report of these cases is necessary for the purpose, if no other, of calling the attention of the general assembly of Ohio to the complex nature of the legislation on the subject of road improvement and to the lack of uniformity of the statutes upon the same subject-matter, to the end that this legislation may receive such consideration and revision by the law-making power of the state as to make clear the meaning and purpose of the law, so that county commissioners may be able to interpret and follow the same. As it now stands, it is not possible for a court to arrive at anything like certainty in the interpretation of existing statutes on this subject.

Prior to May 10, 1910, Sections 6926, General Code, to and including Section 6956, General Code, provided a clear and explicit method of improving and grading public roads by county commissioners. On May 10, 1910, the general assembly of the state passed an act entitled: “An act to provide for the laying out, construction, repair, or improvement of any public road or any part thereof, and for the straightening, widening or altering, and draining of the same by the county commissioners.” This act is now found in the General Code under Sections numbered 6956-1 to 6956-15, inclusive. This act purports to and does cover the whole subject-matter of the repair and improvement of public roads, and in addition thereto provides for the laying out, constructing, straightening, widening, altering and draining the same, by county commissioners. It covers in detail every step to be pursued by petitioners, commissioners, county surveyors, and all other officers having any duty to perform in reference thereto, and all other persons interested therein, either by ■way of remonstrance, claims for damages, etc. It does not in terms repeal the existing legislation upon the same subject. Repeals by implication are never favored. On the contrary, a court will endeavor to make such reasonable construction of the new legislation so that effect may be given to both. Thorniley, Auditor, v. State, ex rel. Dickey, 81 Ohio St., 108; Eggleston et al. v. Harrison, Assignee, 61 Ohio St., 397-404.

If, however, a statute is in clear conflict with existing legislation upon the same subject-matter, effect must be given to the later act, even flf the result is to repeal by implication the older statute. It is also a well-known rule of construction that where a statute purports to, revise the whole subject-matter of a former act and thereby evidences the fact that it is intended as a substitute for the former, although it contains no express words to that effect, it operates as a repeal of the former law.

The first inquiry, then, is whether there is any conflict between these different provisions for the repair and improvement of public roads. Section 6926, General Code, provides that: “when a majority of the resident owners of real estate situated within one mile of a public road present a petition to a board of county commissioners * * This court in construing a similar statute held that only resident owners of real estate situated one mile on each side of the proposed improvement are to be counted in order to determine whether a majority have signed the petition, thereby excluding from the computation the resident owners of real estate lying within one mile from the termini of the same. Lear v. Halstead, 41 Ohio St., 567.

Section 6956-2, General Code, provides that: “When a majority of the owners of real estate who reside within the county and who own lands lying and being within one mile in any direction from either side, end or terminus of the road or part thereof to be laid out, constructed or improved, shall present a petition * * It therefore appears that this subsequent legislation requires the board of county commissioners to include in its calculation of the resident owners of real estate, those owning land within a mile from the termini of the road or part thereof to be laid out, constructed or improved. There is therefore a clear conflict between these statutes, and that conflict relates not only to the land that is subject to assessment, but also to a jurisdictional matter. Under the older legislation a much smaller number of petitioners would confer jurisdiction upon the board of county commissioners than under the new. If the petition were for the purpose of procuring a new road to be opened or an old one to be widened or altered, or drained, then it could very properly be held that it comes within the provisions of Section 6956-2, General Code. But when the petition is to improve or repair, it is not possible for the commissioners or any other human intelligence to determine, with any degree of certainty, whether it comes within the provisions of Section 6926, or Section 6956-2, General Code, if both of these sections are to stand as the law of this state. It is not important that the petitioners may state in the petition that they seek the improvement under the one section or the other, as was done in these petitions. Such a statement is surplusage merely and can not aid the board of commissioners in determining which section applies. It is evident that the legislature did not intend any such distinction without a difference. That is to say, it did not intend that one law might control one petition and a different law control another petition identically the same in all respects and intended a to accomplish identically the same purpose. The conclusion necessarily follows that the failure to repeal the former statute on the same subject-matter in conflict with the provisions of the later act was a mere oversight.

The second question for consideration is whether this new legislation covers the entire subject-matter of the old. A careful consideration of the act of May 10, 1910, shows that it covers in detail every provision found in Sections 6926 to 6956, General Code, inclusive. Every step in the proceeding, from the filing of the petition down to the final disposition of it, is covered in this new legislation. In a proceeding brought under its favor nothing is left to the control of the old law. It is complete in every detail. This court held in the case of The Lorain Plank Road Co. v. Cotton, 12 Ohio St., 263, that: “a section which revises the whole subject-matter of the amendatory act of March 10, 1836, for the regulation of turnpike companies, is evidently intended as a substitution for it and is to be regarded as superseding the latter act, and not as furnishing an additional or cumulative remedy.” The legislation there under consideration was very similar to this. Section 58 of the general act to create and regulate incorporated companies (1 S. & C. Stat., 297) covered the entire subject named in its title, but did not expressly repeal the existing laws in reference thereto. This court there held that the provision of the later act provided an exclusive and not a cumulative remedy, citing in support of its holding Curwen’s Introduction to Vol. 1, Revised Statutes, page 17; Daviess v. Fairbairn, 3 How., 636; Sedgwick on Statutes, 124, 125. In the case of The State, ex rel., v. Board of Commissioners, 16 C. C. R., 218, Price, J., who was then upon the circuit bench but later a judge of this court, in writing the opinion of the court, at page 222, very fully reviews the case of Lorain Plank Road Co. v. Cotton, supra, and announces the same doctrine in relation to the case then under consideration. We have no doubt whatever that this is a correct statement of the law.

The case of Gates et al. v. Solon Granger, No. 13375, presents an additional question not found in the other case. The proposed improvement in this case is less than a mile from the lines of Delaware and Marion counties, although entirely within the county of Morrow. It is contended on the part of the defendant in error, and the circuit court so found, that under the provisions of either Section 6930, or Section 6956-3, General Code, when an improvement is within this limit of one mile from another county line, the petition must be filed with the commissioners of each of the several counties. That is to say, where it is proposed to assess land lying within a mile of the improvement the whole burden shall not fall upon those residing in the county in which the improvement is to be made, but shall be borne by all the land lying within the mile limit, even though part of the land should be in an adjacent county. With the equity of this claim we have no quarrel. But there is a serious doubt as to that being the true construction of this legislation. However, because of the fact that the condition of all of the laws relating to the establishment and repair of roads demands the early attention of the legislature, it would seem unnecessary for us to consider further this question at this time, particularly when the conclusion we have already reached disposes of both cases.

No temporary injunction was sought, or allowed by this court, in the case of Goff et al. v. Gates et al., No. 13376, and the circuit court having found in favor of the improvement, this court is not at present advised as to what has been done by the board of county commissioners of Morrow county with reference to this improvement. This court will not enjoin the doing of that which has been done, for such a judgment would be useless, and therefore the judgment here rendered can apply only to the further proceedings of the commissioners in reference to the lands of these plaintiffs in error.

The judgment of the circuit court in the case of Gates et al. v. Granger, No. 13375, is affirmed. The judgment of the circuit court in the case of Goff et al. v. Gates et al., No. 13376, is reversed for the reasons hereinbefore stated, and in this cause it is further ordered and adjudged that the board of county commissioners of Morrow county be and they are hereby perpetually enjoined from levying any further special assessment upon the lands of plaintiffs in error for and on account of said improvements not actually levied before the entering of this decree.

Judgment accordingly.

Davis, C. J., Spear Shauck, Jopinson and O’Hara, JJ., concur.


author: Johnson, J.

text:
    Brissel et al., County Commissioners, et al. v. The State, ex rel. McCammon.

      Establishing and maintaining district hospitals — For persons suffering from tuberculosis — Obligation of commissioners of counties to joint board — Act of March 23, 1909, Section 3148, et seq., General Code — Valid and not repugnant to constitution — In proceeding in mandamus relator must show, what.

    1. Section 3148, General Code, provides for the creation of a specific subdivision of the state, and the formation therein, of a joint board for the purpose of establishing and maintaining a district hospital for the care and treatment of persons suffering from tuberculosis. And when the joint board provided for in that section has been duly formed in accordance therewith and has thereafter proceeded with the performance of the duties imposed on it by the statute, each of the counties whose commissioners have joined in the formation of such joint board, has obligations in connection with the matter, which are fixed and defined by the statute and which cannot be terminated at the will of such county.

      2. The act of the legislature, approved March 23, 1909 (100 O. L., 87), now Section 3148, et seq., General Code, which provides for establishing and maintaining a district hospital for the care and treatment of persons suffering from tuberculosis, is a valid exercise of legislative power not repugnant to the constitution.
    3. In a proceeding in mandamus where the relief sought is the enforcement of a public duty by a public officer or board, it is sufficient to sustain the right of the relator to maintain the suit, that he show that he is a citizen and as such interested in the execution of the laws.
    (No. 13586
    Decided November 26, 1912.)
    Error to the Circuit Court of Stark county.
    This was a petition in mandamus brought by Harry C. McCammon, one of the commissioners of Columbiana county, in the circuit court of Stark, against the commissioners of Stark county, and the treasurer and auditor of that county, for a writ requiring them as such officials to provide Stark county’s proportionate share of the necessary funds for the erection of a tuberculosis hospital, to be constructed in a joint district composed of the counties of Columbiana, Mahoning, Portage, Stark and Summit. A demurrer was filed to the petition which was overruled by the circuit court, and after answer and reply the cause was tried to the court and judgment rendered in favor of the plaintiff. The circuit court made a finding of facts and conclusions of law and the case is here on error to reverse the judgment of the circuit court.
    The finding of facts which sufficiently indicates all the issues made in the pleadings is substantially as follows: That on the 11th of June, 1910, the counties of Columbiana, Portage, Stark and Summit, by their respective boards of commissioners, acting under authority of Section 3148, General Code, formed themselves into a joint board, for the purpose of establishing and maintaining a district hospital for the care and treatment of persons suffering from tuberculosis; that on the 16th of July, 1910, said board provided the funds for the purchase of a site and purchased the same at a cost of ten thousand dollars, which amount was paid by the four counties mentioned in proportion to their respective tax duplicates, by virtue of Section 3152, General Code; that at the same time the said joint board appointed a board of trustees and said joint board determined that it was necessary to erect five certain buildings and appurtenances thereto, in accordance with a general plan recommended by said board of trustees, and the joint board thereupon directed the board of trustees to have prepared the necessary detailed plans and specifications for said buildings, and to expend for that purpose the sum of ninety thousand dollars and no more; that prior to said last named date, to-wit, January 5, 1911, the board of commissioners of Stark county, by resolution formally adopted and extended upon its minutes, had determined to enter into said joint district composed of the counties above mentioned and to build a joint hospital; that thereafter, by proceedings duly and properly had the commissioners of Mahoning county were admitted into said joint board as a member of said joint district, and on pa3unent by Mahoning county of its proportionate share of the expenses theretofore created in the purchase of a site, the title to said site was transferred to the five county joint board, and the said five county joint board formally approved and adopted as its own acts all the acts and things theretofore done by the four county joint board and elected a trustee from Mahoning county; that thereafter, on the 20th of May, 1911, said five county joint board made its call upon said five counties to provide and appropriate from their respective funds to the use of the board of trustees, their proportionate share of the cost and expense of the project in view, which said call was thereafter complied with and the sum of ninety thousand dollars and more was thereby appropriated and turned over to said board of trustees to be used in the erection of a hospital; that thereafter said board of trustees, pursuant to the direction of said joint board, at some considerable expense, employed architects and engineers and had prepared plans, specifications, bills of materials and estimates of cost of said several buildings and things so determined to be necessary by said joint board, and advertised for and received bids for doing said work; that such proceedings were thereafter had that it was found and determined that the contemplated buildings theretofore decided by said joint board to be necessary to carry out the objects of its organization could not be built within the amount provided and appropriated, and thereupon the joint board determined to' provide a further sum of thirty thousand dollars for such purpose, and directed the secretary to make a call upon the several counties for their respective shares of that fund; that the call upon Stark county for its proportionate share of said additional sum was duly made September 5, 1911, and has not been complied with, the amount of Stark county’s proportionate share being the sum of $7,976.70; that prior to and at the time of the organization of said board no contract, agreement or understanding, express or implied, was made or had between the several counties composing said district or between the boards of county commissioners of said several counties as to a limitation of the amount to be expended in making the improvement contemplated by such organization; that the county commissioners of Stark county neglected and refused to comply with the call of said joint board and refused to provide its proportionate share of said additional amount of thirty thousand dollars; that said Stark county at the time of the commencement of this action had in its treasury in the building fund of said county and not appropriated to any other use a sum in excess of fifty thousand dollars, and in its poor fund not appropriated to any other use a sum in excess of fifty thousand dollars, arising from taxation upon the business of trafficking in spirituous, vinous, malt or other intoxicating liquors, and said sum was not and is not needed for the purpose of caring for the poor of said county; that plaintiff is a taxpayer resident of said district and is president of said joint board, and that the defendants are duly elected and qualified officers of the county of Stark, as alleged in the petition; that the resolution of said joint board determining to provide such further sum of thirty thousand dollars' for the purpose of erecting the buildings by it determined to be necessary was adopted at a meeting of said joint board duly and properly called, and said resolution was voted for by a majority both of the counties comprising said district and of the members of said joint board, and that the county commissioners of Stark county were present at said meeting; that each of the other counties composing said joint district, except Stark county, has complied with said call for additional funds, -and all have provided their proportionate amounts thereof.
    As conclusions of law the circuit court found: first, that it is the duty of the defendants to provide the proportionate share of .Stark county of the additional sum appropriated and called for by the joint board, to-wit, the sum of $7,976.70; second, that the power to determine the amount necessary to be expended in the construction of a joint county tuberculosis hospital is vested in the joint board and a majority of the board, and a majority of the counties composing said joint district, and a majority of the members composing said joint board can determine the amount so to be expended; third, that relator has no adequate remedy at law; fourth, that it is the duty of the commissioners of Stark county and of the auditor and treasurer of Stark county to take the necessary steps to provide its proportionate share of said funds, to-wit, the sum of $7,976.70, for the use of said board of trustees in the construction of said tuberculosis hospital as prayed for in said petition.
    As stated, these findings of fact and law were made on the trial of the cause in determining the issues made by the pleadings in the case.

      Mr. Chas. Krichbaum, prosecuting attorney, and Mr. H. C. Pontius, assistant prosecuting attorney, for plaintiffs in error.

      Mr. F. J. Rockwell and Mr. C. T. Grant, for defendant in error.
   Johnson, J.

The joint board referred to was formed in pursuance of Section 3148, General Code, which reads as follows:

“In accordance with the purposes, provisions and regulations of the foregoing sections, except as hereinafter provided, the commissioners of any two or more counties, not to exceed five, may form themselves into a joint board for the purpose of establishing and maintaining a district hospital for the care and treatment of persons suffering from tuberculosis, and may provide the necessary funds for the purchase of a site and the erection of the necessary buildings thereon, in the manner and for the purposes hereinbefore provided.”

The succeeding sections confer the same power of appropriation on the joint board, as boards of trustees of benevolent institutions have, as well as power to receive donations and bequests of money or land.

They provide for the appointment of a board of trustees by the joint board, one member from each county, and that the joint board may remove any trustee for good and sufficient cause, after hearing; that the board of trustees shall prepare plans and specifications, and proceed to erect and furnish the necessary buildings for the district hospital referred to, and for the appointment of superintendent, nurses, and other employes by that board; that the first cost of the hospital and the cost of betterments and additions thereto shall be paid by the counties comprising the district, in proportion to the taxable property of each county, as shown by their respective duplicates. And, further, that the boards of commissioners of the counties jointly maintaining the district hospital for tuberculosis shall make annual assessments of taxes sufficient to support and defray all necessary expenses.

In support of the demurrer to the petition, plaintiffs in error maintain, that Section 3148 grants no power to the joint board, to appropriate funds, nor to determine the amount necessary for the equipment of the hospital, but that, that power is lodged solely with the commissioners of the various counties, and that, although as alleged in the petition, the joint board had been duly formed, and had purchased and paid for the site and had appropriated $90,000.00 for the building, and although each of the counties had paid their proportion of the $10,000.00 to purchase the site, and of the $90,000.00 for the building, yet there was no power in the joint board to go forward with the enterprise!

The language is, “the commissioners of any two or more counties, not to exceed five, may form themselves into a joint board * * * and may provide the necessary funds for the purchase of a site,” etc. Substantially, it is contended that from the above language, the matters referred to at all times rest in the discretion, and depend on the will, of the commissioners of the several counties, each county having the right to determine for itself whether it should provide its share of the money.

This law was passed in response to an intelligent public sentiment which was formed in the light of the gratifying advances in medical science, in recent years. The legislature, in the enactment of the law, exercised the police power which belongs to it, as the depositary of the sovereignty of the state, and in the performance of its duty to provide for the health, safety and best interest of the people. It was an effort on the part of the legislature, to provide a plan for arresting the advance, and if possible, for the extermination of a dreadful disease.

It may be conceded, that the law is not as full in some of its details as might be desired, to give facility to its administration, but the court will not let its purpose fail, of its beneficent result, for this reason alone. In the absence of plain terms to require a different course such a construction will be put on the statute as will prevent the failure of the manifest purpose of the legislature. The court will not by construction paralyze the arm of the joint board by denying to it the power necessarily incident to the actual and definite grant of authority.

The “foregoing” sections referred to in Section 3148 are sections which provide for the establishment of a similar hospital by the county commissioners of a county, and this act will be considered in connection with the provisions of that act where it is necessary.

What is it that has been done when the commissioners have met and acted in accordance with the statute?

In the first place, it is plain that Section 3148 provides for the creation of a complete legal entity, a political subdivision, for the specific purpose of “establishing and maintaining” a district hospital, for the care and treatment of persons suffering from tuberculosis.

The enactment is, the commissioners of two or more counties * * * may form the joint board and may provide the necessary funds.

It is the board, as a board, which shall determine what buildings are necessary for its purpose, and shall provide the funds for the “purchase of the site” and erection of the “necessary buildings” thereon.

The subsequent sections referred to furnish the method of raising the money, and impose upon the commissioners of the different counties the duty of levying the tax for the purpose of paying their several shares into the general fund, and having done this, it is the duty of the joint board to appoint the trustees, as the instrumentality to carry on the detail work of erecting and operating the hospital.

The position of the plaintiffs in error necessarily is, in its logical result, that the commissioners of any county may' join with the commissioners of other counties, not exceeding four more, and proceed in full accordance with the terms of this statute to the formation of a joint board; may participate in all of the work necessary to carry out the objects of the statute, including payments into the fund necessary to the purchase of the property and erection of . the buildings; may thereafter, at any time, retire from the enterprise in response to any caprice, or change of mind, and really, that this statute does not furnish a substantial, operative plan at all.

It would be a vain thing for the commissioners of any county to participate in an)^ of the undertakings described in this act if this view of the law is correct. We think it clear that that conclusion is not justified.

When a board of commissioners has proceeded with the commissioners of other counties to the formation of a joint board referred to, and when that board has been formed and proceeded to the carrying out of the duties imposed on it by the statute, each óf'the counties whose commissioners have joined in the forming of the board, have fixed and definite obligations, with reference to the hospital, which cannot bé terminated at the mere will of any such county. The will of the majority must control, as long as it violates no provisions of the law. In re State Treasurer’s Settlement, 51 Neb., 116; Whiteside v. The People, 26 Wend., 634. The words “may provide the' necessary funds,” etc., are part of the same sentence which describes what the commissioners of two or more counties can do, as such board.

It is also contended that certain portions of the law are unconstitutional.

It is said that this statute places in the hands of the board of trustees appointed by the joint board the right of fixing and levying taxes; that this board (though not appointed by the commissioners) but by the joint board, supersedes the commissioners themselves in the right to fix and assess taxes, in violation of Section 7, Article X, of the Constitution, which provides, viz: “The commissioners of counties, trustees of townships and siinilar boards shall have such power of local taxation for police purposes as may be prescribed by law.”

It is urged that the provisions of Section 3151 directing the board of trustees to appoint a superintendent, nurses, etc., and fix their salaries, violate that section of the Constitution. And, further, that the plan provided contemplates the levying of taxes by a method that is not uniform, in conflict with Section 2 of Article XII of the Constitution.

It may be said that that question is not reached in the case now before us, because, in the facts set out in the petition, the trustees have had nothing to do with the determination of the amount of, or the manner of raising the money to be used in purchasing the site, and building the hospital. And if it were conceded that the provisions as to the powers and duties of the board of trustees are unconstitutional that would not render void the whole act, because, under Section 3148, the joint board is given the power to “establish and maintain” the hospital. So if the provisions as to the board of trustees were to be held invalid, the joint board could proceed under that section with the “establishing and maintaining” of the hospital without the intervention of the trustees at all. Therefore, under familiar rules, the rest of the act might stand. And, further, if it be conceded that a new tax district was created by the act, the legislature was vested with power while creating this new political entity, to create the new taxing district thereby.

What territory shall constitute a district for the purpose of taxation, may be provided for by the general assembly in the exercise of its legislative power.

It was decided in Bowles v. State, 37 Ohio St., 35, that the legislature, in the exercise of the general power of taxation, may create a special taxing district without regard to municipal or political subdivisions of the state, and may levy taxes on all property within such district by a uniform rule, according to its true value in money, for the purpose of defraying the expense of constructing and maintaining public roads therein.

We have seen that the first cost of the hospital, and the cost of all betterments and additions thereto, shall be paid by the counties comprising the district in proportion to the taxable property of each county, as shown by their respective duplicates; and that the levy and assessment shall be made by the commissioners of the several counties. We are not able to see how any more complete uniformity could be suggested. But we cannot assent to the proposition that the board of trustees provided for in the act is a taxing board with the right of fixing and levying taxes. It is created purely as an administrative agency to build the buildings and conduct and operate the hospital.

Under our system the executive department of the government necessarily has many boards to assist in the administration of governmental affairs. And, as the aims and efforts of the state increase and extend into new fields for the benefit of the people, it will be necessary to constantly extend these provisions.

The joint board continuously exercises a supervising power over the board of trustees appointed by it, and may remove any trustee for good and sufficient cause. All vacancies in the board are filled by the joint board, and the board of trustees is required to file with the joint board, at stated-periods, full reports of all its proceedings, including statements of receipts and expenditures. It is expressly provided that the levying of the taxes sufficient to support and defray the necessary expenses shall be made by the commissioners of the several counties constituting the joint district, in proportion to the use each makes of the common property, as provided in Section 3152. True, they are required to act in all these matters, but they are required to act in any other necessary matter concerning which it is their duty to levy taxes.

In Commissioners v. Church and Caldwell v. Commissioners, 62 Ohio St., 318, the statute relating to actions to recover damages from a county for injuries received at the hands of a mob was involved. It provided that where recovery was had an order should be made directing the commissioners to provide for the amount in the next succeeding tax levy. The commissioners of the county were still left to be the taxing power, but they were required to provide for the payment of the judgment. The court say: “It authorizes an order to be made on the commissioners of the county to include the same in the next succeeding tax levy. This, as we have seen, the legislature has power to enact, under the general police power, the general taxing power and Section 7, Article X of the Constitution.”

So, in this case, this law does not clothe the joint board or its administrative agency, the board of trustees, with authority to levy taxes, but it does clothe the joint board with authority to determine all questions relating to the purchase of the site, and the erection of the necessary buildings thereon, in accordance with the provisions of the statute, and leaves to the different counties the power and the duty of supplying their respective portions of the means necessary to accomplish the purpose by taxation.

The act in question, in all of its essential features — the formation of the joint board, the appointment of trustees and the provisions as to payment of first cost of the home, as well as the accounting for and payment of current expenses and repairs — is similar to and was probably modeled after the act for establishing and maintaining joint district children’s homes, passed March 22, 1876 (73 O. L, 64).

Whatever weight may properly be given to long acquiescence in the validity of that act, may be invoked as to the act here in question, as well as the presumption that the plan has proven feasible and satisfactory.

We conclude that this law is not in conflict with the Constitution.

It is further contended that the circuit court erred in its finding of fact in several respects, to-wit: that Harry C. McCammon, plaintiff below, is a taxpayer, resident of said district; that Stark county, at the time of the commencement of this action, had in its treasury for the building fund of said county, and not appropriated to any other use, a sum in excess of $50,000.00, arising from taxation on the business of the traffic in spirituous, vinous, malt and other intoxicating liquors; and that each of the other counties comprising said joint district, except Stark county, has complied with said call for additional funds and has provided its proportionate amount thereof.

The circuit court made its finding after hearing the evidence, and we are not able to say that the record discloses no evidence in support of any one of them.

As to the plaintiff, it appears that he was a member of the board of commissioners of Columbiana county, and the presumption is as a matter of law, that he was a citizen of that county, and of course, as such is a citizen of the joint district. This was all that was necessary to be shown in order to maintain this proceeding, which is to enforce a public duty.

In State, ex rel., v. Henderson, 38 Ohio St., 649, the court say: “where the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the real party, and the relator need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen, and, as such, interested in the execution of the laws.” To the same effect are, State, ex rel. Trauger, v. Nash, Governor, 66 Ohio St., 612, and State, ex rel., v. Tanzey, 49 Ohio St., 656.

As to the question whether Stark county had in its treasury the sum of $50,000.00 not appropriated for any other use, which under Section 5669 might be transferred to any other fund, there was testimony in the record in support of this finding, and we cannot say the circuit court was not justified in making it. But this is not an important matter, because even if there was not evidence to support the finding, and even if there was no such fund not appropriated to any other use arising from such source, it would be still the duty of the commissioners of Stark county to provide the proportion of that county by taxation according to law. The statute does not contemplate the possession of surplus money before the formation of the joint district, or require that an inquiry must be made as to whether there is such a surplus before joining in the undertaking. Section 3141 enacts that if any county has not funds available for the purposes referred to, the commissioners shall levy for that purpose. The same remark may be made as to the contention of the plaintiff in error that prior to the organization of the board there was an agreement or understanding between the different .boards constituting the joint board as to the limitation of the amount to be fixed in making the improvement contemplated by such organization.

The circuit court found that there was no such understanding or agreement, but even if there were such an understanding, it would be at best the mere expression of the sense of the members of the board, or of the board itself, at the time. It would be a declaration of policy which the members of the board might feel a desire to fulfill, but such a desire, or such a declaration, however solemnly made, could not be binding on the official body.

In the nature of the case matters which were unforeseen at the inception of the undertaking might arise which would clearly show the wisdom of enlarging the sum to be spent, and which would render it unwise not to increase the amount.

Nor can we assent to the suggestion that injustice might be done to any one county by the action of other counties conspiring together to increase the amount that any county should pay, above the amount it had expected to pay, or of right ought to pay.

The statute provides the uniform rule by which each shall contribute to the general fund, and no advantage can be taken in that respect. If there should be collusion or other fraudulent steps taken by two or more of the counties acting together, any injured board of county commissioners could obtain relief in a court of equity.

Another position taken by the plaintiffs in error is, that there was an adequate remedy at law for plaintiff below.

It may be said that an adequate remedy is one that affords relief with reference to the matter in controversy, and is appropriate to the particular circumstance of the case.

Where the remedy sought is the performance of a public duty, by a public board, and an action at law will not enforce the performance of such duty, it is not an adequate remedy. The duty of a public board to appropriate money or to levy such tax as may be necessary to meet legal obligations, is such a duty as may be enforced by mandamus. High’s Ex. Leg. Remedies (3 ed.), Sec. 17; State v. Staley, 38 Ohio St., 265; State, ex rel., v. Henderson, 38 Ohio St., 649; State, ex rel., v. Board of Education, 27 Ohio St., 96; 26 Cyc., 171 and 172.

In this case the remedy sought is a writ to compel the performance of a public duty. It is a proceeding .to compel the officials named to take the necessary legal steps to provide Stark county’s proportionate share of the funds needed to complete the joint undertaking, and appropriate same to the use of the board of trustees for that purpose. The action at law would not be adequate to furnish this proper relief.

We find no error in the record and the judgment of the circuit court will be affirmed.

Judgment affirmed.

Davis, C. J., Spear, Shauck, Donahue and O’Hara, JJ., concur.


author: Shauck, J.

text:
    Dow et al. v. The Union National Bank et al.

      Failure to file deed for record — Does not render deed void — As to subsequent creditors of grantor, when — Section 8¿43, General Code.

    Section 8543, General Code, provides the only consequences to follow a failure to file a deed for record, and such failure, unaccompanied by fraudulent representations or conduct by the grantee does not render the deed void as to subsequent creditors of the grantor who do not become purchasers.
    (No. 12662
    Decided November 26, 1912.)
    Error to the Circuit Court of Franklin county.
    The bank brought suit, February 1, 1909, against the plaintiffs in error, who are husband and wife, to set aside a deed of described real estate from the former to the latter and to subject the same to the satisfaction of a judgment which it had recovered against him in June, 1907, on a note executed by him to it February 18, 1907, as a renewal of a balance due on three notes which he had executed to it in August, September and October, 1906. The bank alleged that at the time of the creation of said indebtedness to it Edward W. Dow was the owner in fee simple of the real estate which it sought to subject, but that thereafter, by an alleged deed dated October 23, 1901, he attempted to convey the same to his wife for the colorable consideration of two thousand dollars, his deed executed for that purpose being filed for record January 16, 1907, and that said deed was wholly without consideration and was executed for the purpose of defrauding the bank as his creditor and to place his property beyond the reach of his creditors, he being, as was alleged, insolvent, all of which was known to the parties to the deed. The husband and wife filed separate answers admitting the recovery of the judgment and the amount alleged to be due the bank thereon and that the deed executed to her by her husband October 23, 1901, was not then filed for record because she did not think it necessary, and further alleged that the deed was executed to her upon a valuable consideration paid by her to her husband and that at the time of its execution her husband was not indebted to the bank or to any other person to her knowledge, and that from the date of the deed she was in possession of the premises. The husband’s answer denied all allegations of fraud. On the trial of these issues the judgment of the court of common pleas was in favor of the defendant. On appeal the circuit court made a special finding of the facts upon which it rendered judgment in favor of the plaintiff. A condensed statement of the facts admitted and found is as follows: At the time of the execution of the deed, which was at the time of its date in 1901, Mrs. Dow paid to her husband and promised to pay a valuable consideration for the lot which, with the assumption of the mortgage which is now held by the defendant, Joseph A. Hill, was the full value of the premises. Out of moneys which she so paid to him, on April 8, 1903, he paid to the bank his entire indebtedness to it which had accrued prior to that date. Mrs. Dow’s deed was withheld from record not for any fraudulent purpose, but because until she was advised by counsel she did not appreciate the necessity of having it filed for record. After April 8, 1903, Dow contracted a further indebtedness to the bank, in renewal of which he executed the note which was the basis of the judgment which is admitted to have been recovered by it against him. To obtain such credit he made a financial statement to the bank in which he represented himself to be the owner of the premises in controversy, but Mrs. Dow was entirely without knowledge that such representation was made. Upon these facts the circuit court rendered judgment in favor of the bank.

      Mr. M. E. Thrailkill, for plaintiffs in error.
    The evidence shows that on October 23, 1901, Edward W. Dow was perfectly solvent. Had he even given this house to his wife, it would not have been fraudulent if he kept sufficient means to pay all his debts. Hetrick v. Gregg et al., 8 N. P, 24; Stivens v. Summers, 68 Ohio St., 421; Miller v. Wilson, 15 Ohio, 108.
    Withholding the deed from record was only a badge of fraud, which could be explained. Hetrick v. Gregg, supra.

    The grantee must have participated in the fraud. 2 Bates’ Pleading, 1693; Section 11105; General Code; National Bank v. Gettinger, 68 Ohio St., 399.
    The plaintiff is a subsequent creditor and cannot recover as against Mrs. Dow. 2 Bates’ Pleading, 1693.
    All doubts about the weight of the evidence must be resolved in favor of the defendants. German Natl. Bank v. Young, Jr., 3 O. L. R., 287, 17 Cir. Dec, 333.
    Even if Edward W. Dow paid some installments of interest, out of money which he handled for his wife, that does not make the act fraudulent. First Natl. Bank v. Rice, 22 C. C., 184.
    Mrs. Dow had a right to assume the Hill mortgage. Buckingham v. Commercial Bank, 21 Ohio St., 131.
    Even if they had intended to defraud Mr. Dow’s creditors on October 23, 1901, the plaintiff cannot complain as it was not a creditor, nor could the Union Natl. Bank complain because it was subsequently paid in full. Webb’s Admr. v. Rolf, 9 Ohio St., 430.
    The plaintiff is not a purchaser of this land, and under the law, Mrs. Dow can hold this land as against all but bona fide purchasers. Bier deed did not have to be recorded. An unrecorded deed is good against the world, except a bona fide purchaser, for' value and without notice. Lessee of Irvin v. Smith, 17 Ohio, 226; Morris v. Daniels, 35 Ohio St., 406; Wright v. Franklin Bank, 59 Ohio St., 80.
    The recording act is only for the protection of purchasers, and is not required as against others. Section 8543, General Code; Wright v. Franklin Bank, supra; Oliver v. Moore et al., 23 Ohio St., 473.
    True, the legal maxim is that “when one of two persons must suffer by the wrongful act of another, he must bear the loss that placed it in the power of said persons to do the wrong.” But an examination of all cases announcing this doctrine will show wilfulness, or gross negligence, in the party estopped. Mere “innocent silence” does not estop. Insurance Co. of N. A. v. Miller, 1 C. C., N. S., 397.

      Messrs. Arnold, Morton, Irvine & Lane; Mr. F. H. Game and Messrs. Huggins, Huggins, Johnson & Hoover, for defendants in error.
    It is apparent that the contention . made by plaintiffs in error, that it was necessary for the defendant in error, The Union National Bank, to plead estoppel in order that it might recover in this action, is not well founded. The rule as to when estoppel need not be pleaded is well established in this state. Schurtz, Admr., v. Colvin, 55 Ohio St., 274.
    Plaintiff in error, Cora E. Dow, is estopped from claiming the property in dispute here as against the enforcement of the obligation contracted by her husband with The Union National Bank on the strength of his apparent and asserted ownership of said property. Brice v. Myers, 5 Ohio, 121; McGovern v. Knox, 21 Ohio St., 547; Lander v. Ziehr, 150 Mo., 403, 73 Am. St., 456; Cowling v. Hill, 69 Ark., 350, 86 Am. St., 200; Adler & Sons Clothing Co. v. Hellman, 55 Neb., 266.
    By reason of the foregoing facts, we find that two parties, Cora E. Dow and the bank, are now in a position that if the court would give effect to the rights of Mrs. Dow in preference to the bank, that a loss would necessarily be sustained by the bank, and vice versa.

    Assuming, for the sake of argument, that these two parties were innocent, which one under these circumstances should be given the preference ? This court has already recognized and applied the equitable doctrine which clearly affords a solution of this question. Selser v. Brock, 3 Ohio St., 302; Wilson v. Hicks, 40 Ohio St., 418; Pinney v. Merchants Natl. Bank, 71 Ohio St., 173; Dueber Watch Case Mfg. Co. v. Daugherty, 62 Ohio St., 589.
   Shauck, J.

The facts found by the circuit court leave no occasion to doubt that on October 23, 1901, Edward W. Dow conveyed the premises to his wife, Cora E. Dow, for a valuable consideration by her paid and promised; that the amount thereof and the assumption of the mortgage now held by the defendant, Hill, constituted a full consideration for the property; that on March 30, 1903, she paid to her husband the balance of said consideration and that on April 8, 1903, out of moneys so paid to him by his wife Dow paid to the bank all that he then owed to it. Her title was therefore valid as against the bank.

But both the record and the opinion of the circuit court indicate that its judgment adverse to her was upon the view that she was equitably estopped to assert a title against the bank because, although she received the deed for the property October 23, 1901, before the husband contracted his later debts to the bank, she did not place it upon record until January, 1907, after he had obtained further credit upon which the bank recovered the judgment for whose satisfaction it seeks to subject the property, and that he secured such credit by making a statement of his property in which he included the real property in controversy. Counsel for Mrs. Dow present the unquestionably sound view that the facts out of which an equitable estoppel is claimed to arise must be pleaded if there is opportunity, and there was opportunity in the present case. But we cannot learn that there was objection in the circuit court to the evidence offered by the bank to establish those facts. The case appears to have been tried there upon a transcript of the evidence offered upon the previous trial in the court of common pleas, but of course, objections interposed and exceptions taken below were waived if not renewed upon the trial in the appellate court.

The facts out of which the estoppel is said to arise are that she failed to place her deed upon record because she did not appreciate the necessity of doing so, and that without her knowledge he obtained credit from the bank by falsely representing that he owned the property, and that by reason of her failure to have her deed recorded the record did not furnish information that the representation was false. A statement of the doctrine of equitable estoppel invoked in this case made by Lord Denman has been often approved. It is: “Where one by his words or conduct wilfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time.” In this statement of the doctrine the adverb “wilfully” signifies the knowledge and understanding by the one making the representation that it will be acted upon. The doctrine is plainly inapplicable to the present case because Mrs. Dow did not make any representation, she did not know that the representation made by her husband would be acted upon by the bank nor even that the representation had been made.. There can be no estoppel by silence in the present case, because the bank made no inquiry which called upon her to speak. Morgan v. Spangler, 14 Ohio St., 102; Beardsley v. Foot, Id., 414.

The inference which the circuit court drew from Mrs. Dow’s failure to file her deed for record is clearly, though impliedly, forbidden by Section 8543, General Code. Our recording act itself makes the requirement that deeds shall be recorded and it defines the consequence of a failure to comply with that requirement. That consequence in the language of the section referred to is “until so recorded and filed for record, they (deeds) shall be deemed fraudulent, so far as relates to a subsequent bona ñde purchaser having at the time of purchase no knowledge of the existence of such former deed or instrument.” This provision of the statute must be accepted as exclusively defining the consequences which follow a failure to file a deed for record, and there being mere neglect, unaccompanied by any fraudulent conduct or representation on the part of the grantee, no right can accrue to anyone other than such bona ñde purchaser. That a deed thus remaining unrecorded is not deemed fraudulent as to persons other than subsequent bona ñde purchasers without notice was held by this court in Wright v. Franklin Bank, 59 Ohio St., 80. Indeed the proper judgment to be rendered upon the facts which conclusively appear in this record is so apparent from our previous decisions that this report seems to be a contribution to libraries rather than a presentation of our views upon the subject.

Judgment reversed and judgment for plaintiff in error.

Davis, C. J., Spear, Johnson, Donahue and O’Hara, JJ., concur.


author: Shatjck, J.

text:
    Meyer et al. v. Beck et al.

      IVhen record of cause tried in circuit court — Shozvs statement of conclusions of fact — Separate from conclusions of law — Defeated party may file petition in error, when — Section 12254, General Code, does not require printing bill of exceptions, when— Incumbent upon defendant in error to print bill, when.

    1. When the record of a cause tried on evidence in the circuit court shows that the court stated its conclusions of fact separately from its conclusions of law, the defeated party may file a petition in error here for the reversal of the judgment upon the ground that it is not justified by the facts found, and Section 12254, General Code, does not require him to print a bill of exceptions which he may have taken in the circuit court.
    2. If, in such case, the defendant in error desires to secure an affirmance of the judgment upon the ground that a bill of exceptions which was taken in the circuit court shows, when, considered with other portions of the record, that the judgment was justified by facts not stated in the entry of the circuit court's judgment, it is incumbent upon him, within the time fixed for filing his brief, to print the bill of exceptions.
    (No. 13712
    Decided November 26, 1912.)
    Error to the Circuit Court of Stark county. On motion by- the defendants in error to require the plaintiffs in error to print the bill of exceptions.

      Beck et al., trustees of Bethlehem township, Stark county, Ohio, brought suit in the court of common pleas to enjoin the opening of a public road which had been ordered on the petition of Meyer et al., the plaintiffs in error here. The cause having been disposed of in the court of common pleas an appeal was taken to the circuit court, where the cause was tried upon the issues of fact and the evidence offered by the parties thereon. That court granted a perpetual injunction against the opening of the road. At the request of the original defendants it stated the findings of fact separately from its conclusions of law. The defendants filed a motion for a new trial, which was overruled, whereupon they took a bill of exceptions containing all the evidence offered upon the trial in the circuit court, and exceptions to rulings of the court during its progress. They then filed a petition in error here with a complete transcript of the record and the bill of exceptions. In due time they filed a printed copy of the record excepting the bill of exceptions. The defendants in error move the- court to require the plaintiffs in error to print the bill of exceptions and assign as ground for the motion “that the findings of fact made by said circuit court as set forth in the printed record filed herein do not respond to and answer specifically all of the material issues in the case upon which evidence was offered as will be shown by an examination of the evidence contained in said bill of exceptions.”.

      'Mr. Loren C. Wise, for plaintiffs in error.

      Mr. A. U. Bordner; Mr. Charles Krichbaum, and Messrs. Pomerene, Ambler & Pomerene, for defendants in error.
   Shatjck, J.

The duty enjoined upon the plaintiffs in error with respect to printing the record filed here for a review of the judgment of the circuit court is prescribed by Section 12254, General Code: “When a petition in error is filed in the supreme court, so much of the record to be reviewed as will show the error complained of shall be printed, and ten copies thereof filed with the papers.”

It is true that in their petition in error the plaintiffs have made assignments of error which do not appear in that portion of the record which they have caused to be printed; but the obvious construction of the provision of the statute is in accord with the established practice which is that the plaintiff in error is deemed to have waived all errors assigned in the petition in error which do not appear on the portion of the record which he causes to be printed. The journal entry of the judgment of the circuit court which has been printed includes its findings of fact and conclusions of law, and whether its conclusions of law and the judgment rendered are justified by the facts which it found is a question of law which the plaintiffs in error are entitled to present to this court without any distinct and unrelated question which the bill of exceptions might show to have been raised upon the trial in the circuit court or upon the. motion for a new trial. A finding of fact by the circuit court if its correctness is not challenged by either party is one of the recognized modes of determining the issues of fact joined in the pleadings. It concludes the controversy as to the facts in a case, leaving for the trial court, or a reviewing court, only a consideration of the judgment which the law requires upon the facts so conclusively found. This view is clearly sustained by Carpenter v. Warner, 38 Ohio St., 416, and by familiar practice when facts are so found either by courts or juries.

The view of counsel for the defendants in error is that the evidence adduced upon the trial justified further findings in their favor than those made by the circuit court, and that if this court should be of the opinion that the facts stated in the journal entry of the circuit court are not sufficient to warrant the judgment which it rendered, we should resort to the bill of exceptions to find other facts which would support the judgment. A bill of exceptions taken by either party is, of course, available to his adversary for the presentation to a reviewing court of such questions as the bill would present for review if it had been taken by him. But this would not justify us in sustaining the motion to require the plaintiffs in error to print their bill. As they have printed so much of the record as is required to present the only error of which they now complain,- they are strictly within their rights, and they are entitled to be heard upon the record so printed. To present that question it was not necessary even to take a bill of exceptions.

We do not inquire whether the bill shows that the defendants in error are entitled to a finding of other facts of a material character and favorable to them. If we should so find we should, nevertheless, be required to hold the present motion to be not well taken. Their counsel are aware that we do not determine the weight of conflicting evidence, but if they are of opinion that the bill, if printed and considered with the other portions of the record, would supply support for its judgment though not found by the circuit court, Weaver v. The C. S. & H. Ry. Co., 76 Ohio St., 164, by obvious analogy, suggests what we conceive to be the proper practice. In that case the plaintiff in error had filed a petition here for the reversal of a judgment of reversal which the circuit court had rendered, alleging that it had erred in reversing upon the ground stated in the entry of its judgment, and printing so much of the record as would present that question. We recognized the right of the defendant in error here to have the circuit court’s judgment of reversal sustained upon grounds not stated in its journal entry if they appeared in the record which had been presented to that court, but held that it was incumbent on the defendant in error within the time limited for the filing of his brief to print such additional portion of the record as would present such other grounds for the judgment which he had recovered below as he desired to present here. If the defendants in error desire to present here the question suggested, it is incumbent upon them to print the bill of exceptions.

Motion overruled.

Davis, C. J., Spear, Johnson, Donahue and O’Hara, JJ., concur.