author: By ti-ie Court. Johnson, J. Wanamaker, J., Donahue, J.,

text:
    Jackson, Chief of Police, et al. v. Berger.

      Constitutional law — Labor unions — Preventing employes from joining, etc. — Section 12943, General Code, providing penalty, unconstitutional.

    (No. 13839
    Decided May 4, 1915.)
    Error to the Circuit Court of Hamilton county.

      Mr. Nicholas Klein, for plaintiffs in error.

      Messrs. Morse, Tuttle & Ross, for defendant in error.
   By ti-ie Court.

On January 25, 1915, the supreme court of the United States, in the case of Coppage v. State of Kansas, 236 U. S., 1, held that a Kansas statute, similar to the Ohio law here involved, was violative of the federal constitution, and in so deciding overruled the supreme court of Kansas.

Section 12943, General Code, the Ohio act, is concededly similar to the Kansas statute, and concededly the only question made is whether it contravenes the federal constitution.

The supreme court of the United States having passed directly upon the question, its decision is conclusive upon this court.

The construction placed upon provisions of the federal constitution by our highest tribunal, and its decisions on purely federal questions, are binding upon the state courts. Conflict of authority between state and nation, on federal questions, would result in antagonism and governmental collision between the nation and the several states.

The judgment is affirmed.

Nici-iols, C. J., Newman, Jones and Matthias, JJ., concur.

Johnson, J.

Inasmuch as it is conceded that the only question involved is a federal one and that the supreme court of the United States has decided the exact question in the case of Coppage v. State of Kansas, supra, I yield to the supreme authority of that court.

However, I wish to express my full agreement with the views of Justices Day, Hughes and Holmes, as set forth in the dissenting opinions in the Coppage case.

Wanamaker, J.,

dissenting. The sole question involved in this case is the constitutionality of Section 12943, General Code, which reads as follows:

“Whoever, being a member of a firm, or agent, officer or employe of a company, corporation or person, prevents employes from forming, joining or belonging to a lawful labor organization, or coerces or attempts to coerce employes by discharging or threatening to discharge them from their employ, ór the employ of a firm, company or corporation because of their connection with such labor organization, shall be fined not more than one hundred dollars or imprisoned not more than six months, or both.”

In a very recent case decided by the supreme court of the United States, January 25, 1915, entitled Coppage v. State of Kansas, 236 U. S., 1, a similar statute was before said court for review.

Section 1 of the Kansas statute reads as follows:

“That it shall be unlawful for any individual or member of any firm, or an agent, officer or employe of any company or corporation, to coerce, require, demand or influence any person or persons to enter into any agreement, either written or verbal, not to join or become or remain a member of any labor organization or association, as a condition of such person or persons securing employment, or continuing in the employment of such individual, firm, or corporation.”

It will be observed that, in all essentials, the acts prohibited by the Kansas statute are identical with the acts prohibited by the Ohio statute.

Judge Pitney, five of the supreme judges concurring with him, held that the Kansas statute was unconstitutional in that it violated the liberty of contract guaranteed by the 14th Amendment of .the Federal Constitution, which amendment reads as follows: .

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of^ the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Justices Day, Holmes and Hughes dissented from that judgment.

The majority of this court are content to follow the decision of the supreme court of the United States as controlling in the case at bar, and it must be frankly admitted that if the decision is right in the Kansas case it must also be the law in the case at bar.

With all due respect I deny the soundness of that decision, because I believe it to be unsupported by reason, contrary to logic, against the “equal protection of the law,'” out of joint with the spirit of our American institutions, and especially because I believe the statute in question is in perfect harmony with the 14th Amendment of the Federal Constitution.

Owing to this very radical difference, it is becoming to set forth the grounds upon which this dissent is based.

This is a criminal statute prohibiting certain acts and penalizing the commission of those acts.

- Such a statute, to be void because of unconstitutionality, must prohibit something which the con stitution permits or protects. If the thing prohibited by the statute is not permitted or protected by the constitution, either in express terms or by clear implication, then the statute is not void because of unconstitutionality.

In brief, a statute cannot prohibit what the constitution protects or permits. Neither can a statute permit or protect what the constitution prohibits. Such a conflict is so obvious and clear that all must be agreed that the statutory provision must fall in order that the constitutional provision shall prevail.

This test is simple, short and sound, and when applied to constitutional questions brings about a correct conclusion.

Let us now examine the statute; boil it down and paraphrase it into its elements. It would then read in substance:

“Any employer who coerces his employe in order to prevent him from belonging to a lawful labor organization shall be fined,” etc.

Now, the gist and gravaman of the act prohibited by said statute is “coercion;” coercion by an employer upon his employe with reference to the employe’s membership in a lawful labor organization.

Mr. Justice Pitney, speaking for the supreme court of the United States in Coppage v. State of Kansas, supra, introduces his opinion with the following language:

“At the outset, a few words should be said respecting the construction' of the act. It uses the term ‘coerce,’ and some stress is laid upon this in the opinion of the Kansas supreme court. But, on this record, we have nothing to do with any question of actual or implied coercion or duress, such as might overcome the will of the employe by means unlawful without the act. In the case before us, the state court treated the term 'coerce’ as applying to the mere insistence by the employer, or its agent, upon its right to prescribe terms upon which alone it would consent to a continuance of the relationship of employer and employe. In this sense we must understand the statute to have been construed by the court, for in this sense it was enforced in the present case; there being no finding, nor any evidence to support a finding, that plaintiff in error was guilty in any other sense. * * * The evidence shows that it would have been to the advantage of Hedges, from a pecuniary point of view and otherwise, to have been permitted to retain his membership in the union, and at the same time to remain in the employ of the railway company. In particular, it- shows (although no reference is made to this in the opinion of the court) that as a member of the union he was entitled to benefits in the nature of insurance to the amount of fifteen hundred dollars, which he would have been obliged to forego if he had ceased to be a member. But, aside from this matter of pecuniary interest, there is nothing to show that Hedges was subjected to the least pressure or influence, or that he was not a free agent, in all respects competent, and at liberty- to choose what was best from the standpoint of his own interests. Of course, if plaintiff in error, acting as the representative of the railway company, was otherwise within his legal rights in insisting that Hedges should elect whether to remain in the employ of the company or to retain his membership in the union, that insistence is not rendered unlawful by the fact that the choice involved a pecuniary sacrifice to Hedges. * * * And if the right that plaintiff in error exercised is founded upon a constitutional basis it cannot be impaired by merely applying to its exercise the term ‘coercion.’ ”

Courts have no right to construe that which needs no construction. The language of the statute is simple, plain and free from doubt. It is its own interpreter. To. permit a court to construe such a statute would be to vest it with power to legislate by striking out certain words or by adding certain words.

It is intensely interesting to observe from the above quotation the strained and ingenuous effort of the court to expunge or eliminate. from the statute the word “coerce,” or at least if not to expunge the word to expunge the gist and teeth of the word so as to make it speak kindness, gentleness, voluntariness, and to breathe the spirit of liberty.

By what legal legerdemain may a court make the word “coerce” consistent with liberty?

To coerce is not to coerce. That is the false premise with which the court starts, and it is unavoidable that, reasoning upon this false premise, the court should reach a fallacious conclusion.

It is immaterial for the consideration of any case under the statute whether the form of coercion is mild or severe. The test must be made under the most atrocious case, as well as the most trifling.

The mere fact that a case is not proven under the statute does not affect the constitutionality of the statute, and the labored effort in the first part of the opinion to mollify the facts of the Coppage case is wholly foreign to the question of the constitutionality of the statute.

What did the lawmakers mean when they used the word “coerce?” Webster’s International Dictionary defines “coerce” as follows:

“To compel or constrain to any action; as, to coerce a man to vote for a certain candidate.
“Coerce had at first only the negative sense of checking or restraining by force; as, to coerce a bad man by punishments or a prisoner with fetters. It has now gained a positive sense, viz., that of driving a person into the performance of some act which is required of him by another; as, to coerce a man to sign a contract; to coerce obedience. In this sense (which is now the prevailing one), coerce differs but little from compel, and yet there is a distinction between them. Coercion is usually accomplished by indirect means, as threats and intimidation, physical force being more rarely employed in coercing.”

If we may restore the word “coerce” to the statute, as the legislature enacted it, embracing its most atrocious, as well as its mildest form (for courts have no right to make laws or to make constitutions), let us proceed to apply the foregoing constitutional test,

The statute prohibits coercion by the employer upon the employe in reference to the latter’s lawful labor organization. If such prohibition by the statute is unconstitutional it must be because the constitution clearly permits or protects such coercion.

Does anybody believe it? Was it the purpose of the 14th Amendment to protect coercion or to prevent coercion?

The 13th Amendment to the Federal Constitution was adopted in 1865. Its purpose and scope are reasonably clear, to-wit, to abolish slavery or involuntary servitude, to fully emancipate the colored population of the nation.

Slavery, as defined by Webster, is “The state of entire subjection of one person to the will of another.”

It soon became quite evident to the congress of the United States and the legislatures of the several states that notwithstanding the 13 th Amendment abolished slavery, the states might still, by a policy of hostile or unfriendly legislation, subject the colored race to many of their infirmities under slavery, and, therefore, the 14th Amendment was adopted in 1868, in order to provide and protect against any such unfair and unjust state legislation as might “deprive any person of life, liberty or property without due process of law,” or “deny to any person within its jurisdiction the equal protection of the laws.”

If it had not been for the provisions of this 14th Amendment the 13th Amendment would have been merely so many high-sounding words on liberty.

While the 13th Amendment abolished the “entire subjection of one person to the will of another,” it was the paramount purpose of the 14th Amendment to prevent any partial “subjection of one person to the will of another” by state enactments.

How can it be claimed seriously that there is lodged anywhere in this 14th Amendment any authority or power to permit or protect any subjection of one person, such as an employe, to the will of another, such as an employer?

In short, the whole spirit and purpose of the amendment is to prevent “subjection,” “coercion,” intimidation and the like, in any degree or in any form whatsoever.

If this constitutional test be sound, it would seem-to bring about a conclusion of the whole matter in favor of the constitutionality of the statute. Otherwise, you have this absurdity, that “liberty of contract” on the part of the employer gives him “liberty to coerce” as against the employe — a monstrous doctrine in any land of liberty.

Instead of a clear conflict, therefore, between the state statute and the 14th Amendment, it conclusively appears that there is a clear concord and that the statute was but a carrying out of the great purposes of anticoercion and antisubjection, provided for in the 14th Amendment.

This would seem to be the undoubted end of this whole controversy and all else would be superfluous, but there are other observations pertinent to the majority opinion that might profitably be made.

A careful reading of the opinion of the supreme • court in the Coppage case discloses a strange and significant omission. The last clause of the 14th Amendment contains this language: “Nor deny to any person within its jurisdiction the equal protection of the laws.” This is as much a part of the amendment as the so-called “liberty of contract,” and each doubtless was intended to throw light upon the other; each was intended to be explanatory and consistent with the other. Throughout the opinion, however, there is no discussion of this phase of the amendment.

The judgment of the supreme court of the United States in the Coppage case is made to hang on the peg “liberty of contract.”

This “liberty of contract” theory has been severely overworked by our courts. It has become decidedly threadbare. Every time a state or federal legislature has undertaken to exercise the police power in preventing gross abuses that jeopardize life, liberty, health and public safety generally, every mercenary interest affected thereby has claimed that its liberty of contract was being violated. This theory has been invoked to protect almost every infamy that can be put into the form of a contract, and it has chiefly grown up by reason of the favor extended to it by our courts under the mistaken view of the 14th Amendment. The colored man’s rights, which were supposed to be the primary consideration of this amendment, have been lost sight of, and the “soulless” corporations seem to have been the chief beneficiaries.

It may not be amiss in this opinion to give a few of the primary considerations that ought to prevail in considering this liberty of contract as applied between employer and employe.

One man’s liberty ends where another man’s liberty begins. It is absurd to say that one man shall have the liberty to deny to another man equal liberty. The distinction must all the while be made that the liberty of contract of one man must not extend so far as to interfere or prevent the equal liberty of contract of the other man, else we have not the equal protection of the law guaranteed by this same 14th Amendment; at least no man’s liberty to contract should be extended so far as to mean his liberty to coerce some other man into.a contract.

Now, what is this liberty of contract, guaranteed to the employer by the constitution, which is abridged or denied'to him by the statute?

Under the statute he may still employ whom he will, when he will and at any wage he will. He may discharge whom he will, when he will and for any reason he will, or for no reason at all; and in these respects his powers are the same after the enactment of the statute as they were before the enactment of the statute. What the employer is demanding, however, is the right to abridge the employe’s liberty of contract, to deny to the employe the right to contract with his fellows by forming and organizing a lawful labor union, and to deny the employe’s right to contract with the union as a member thereof, while he, the employer, enjoys membership in all sorts of business and industrial associations, presumably to his lawful benefit.

Organization is the keynote of the age. This is true not only in educational, religious and benevolent lines, but especially is it true in every kind and branch of business. Formerly the individual man did the business of the country. Today he does about as much business as the individual dollar does. The individual man has given way, first to the simple partnership, then to the joint-stock company, corporation, holding company, syndicates and the like, all of which have brought about a condition in the business world that has practically eliminated the individual man in individual business and substituted therefor a manager or superintendent, or other officer or agent, with a board of directors, stockholders and millions of capital and credit back of him.

This being the situation as to capital and business, the workingman years ago began to realize his weakness, inequality and dependence in contracting with the employer for his labor.

As was said by the supreme court of Kansas in considering the Coppage case:

“It is a matter of common knowledge, of which legislatures and courts should take cognizance, that many individual laborers are unable to cope on an equal footing with wealthy individual or corporate employers as to the terms of employment; also that both employers and employes are in fact separately associated in organizations for the purpose of advancing their respective and, in certain respects, conflicting interests. It goes without saying that the individual employe can not coerce his emplo}^er from remaining a member of his association and that the individual employer may so coerce his employe unless restrained therefrom by law. * * * the individual employe is, in the supposed case, pitted not only against his employer in contracting the conditions of employment, but also against the aggregation of associated employers. That such a condition, if real, tends to reduce employes to mere serfdom can not be questioned.”

The truth is that the individual workman today, seeking employment in the large corporate industrial and transportation plants, enjoys no such thing as liberty of contract. He enjoys it in law, but not in fact.

The workingman, recognizing the large benefits that have accrued to capital and business by corporate organization, joined his fellow workmen together in a so-called labor union for the purpose of protecting and improving the wages, hours of labor, sanitary conditions, protection against loss of life, limb, etc., and, in a general way, securing practical betterment of working conditions. The workingman claimed for himself the clear benefits of the law, and now demands for the preservation of those benefits the “equal protection of the law.” Shall it be denied him? Shall labor and capital be placed on an equal footing before the law and by the law as to the right to organize if they see fit so to do?

Labor unions, lodges and associations, no matter under what name, are outlaws today under the Coppage case, unless they have the consent of the employer. What I mean is that any employer, by the exercise of his power under the so-called right of liberty of contract, may dissolve and destroy any labor union by the withholding of employment by discharging by coercion those who now are, or hereafter may become, members of such lawful labor organization.

The employer is to have the right to organize without the consent of his workmen, but the workmen are not to enjoy the same right of organization unless they secure the consent of the employer. Is that equal protection of the law?

Abraham Lincoln once said something about capital and labor, and it may not be amiss to quote him. In his message to congress, of December 3, 1861, he wrote these immortal words:

“Labor is prior to, and independent of, capital. Capital is only the fruit of labor, and could never have existed if labor had not first existed. Labor is the superior of capital, and deserves much the higher consideration. Capital has its rights, which are as worthy of protection as any other rights. Nor is it denied that there is, and probably always will be, a relation between labor and capital producing mutual benefits.”

But granting, for the purpose of this argument, that labor is not superior to capital, it certainly should be conceded that before the law it is the equal of capital.

In his first message of July 4, 1861, he refers also to the leading object of government, of which the judiciary is but a part, the same as are the legislative branch and the executive branch:

“This is essentially a people’s contest * * *. It is a struggle for maintaining in the world that form and substance of government whose leading object is to elevate the condition of men — to lift artificial weights from all shoulders; to clear the paths of laudable pursuit for all; to afford all an unfettered start, and a fair chance in the race of life. Yielding to partial and temporary departures, from necessity, this is the leading object of the government for whose existence we contend.”

If the “leading object” in all government “is to elevate the condition of men — to lift artificial weights from all shoulders; to clear the paths of laudable pursuit for all; to afford all an unfettered start, and a fair chance in the race of life,” why should the right of organization, the right of' mutual association, exchange of ideas* among those engaged .in the same line of employment, consideration and discussion of improved conditions for labor, why should these things be denied to the workingmen ?

Why should capital and business, the stronger and more independent, be allowed the privilege of organization, which it certainly should enjoy, and then deny to labor, the weaker and more dependent, the equal right of organization? Is not such clearly a violation of the provision of the 14th Amendment providing for “equal protection of the laws ?”

Now it must be remembered that the statute uses the words “any lawful labor organization.” Of course if it be unlawful it should be treated as the common enemy. But the language of the statute is so broad that it comprehends not only an international organization, state organization, district, county or municipal organization, but also includes an organization of the workingmen, limited in its membership to a single factory, and if the doctrine of the Coppage case shall prevail as the law, workingmen in such single factory have no right to organize for their mutual benefit if the employer objects.

Now,, it is conceded on all sides, both in the majority and minority opinions in said Coppage case, that the 14th Amendment does not in anywise limit the police power of the several states as enjoyed and exercised prior to the adoption of the 14th Amendment, providing always that such power shall not be exercised arbitrarily and capriciously, and Justice Pitney, speaking for the majority, uses this language:

“We do not mean to say, therefore, that a state may not properly exert its police power to prevent coercion on the part of employers towards employes, or vice versa.”

But the majority opinion most clearly holds that in enacting the Kansas statute the legislature acted arbitrarily and capriciously and without any reference to public health, safety, morals or general welfare. This appears from the opinion as follows :

“Laying aside, therefore, as immaterial for present purposes, so much of the statute as indicates a purpose to repress coercive practices, what possible relation has the residue of the act to the public health, safety, morals or general welfare? None is suggested, and we are unable to conceive of any.”

Of course, laying aside the “criminal act” of coercion, there is practically nothing left of the statute. The court would have an equal right to cut the word “kill” out of a murder statute. The majority of the supreme court of the United States are as seriously disturbed throughout the opinion by this word “coercion” as the distinguished character in Macbeth was constantly disturbed by Banquo’s ghost. It simply won’t down.

As an answer to the question, “What possible relation has the statute to the public health, safety, morals or general welfare?” let me suggest the following:

Too many judges know as men what they refuse to know as judges. It is a matter of common knowledge, of which all courts should take judicial ' notice, that there are constant conflicts in some sections of the industrial world between capital and labor; no matter what the cause, whether it be bad leadership and advice on the part of labor, or bad leadership and advice on the part of capital, or both. Those conflicts are of such frequent occurrence and at times so serious in their nature as to shake the very foundation of popular government. We cannot forget the Homestead strike of 1892; the Chicago railroad strike of 1894; the great anthracite coal strike of 1902; the Colorado Fuel and Iron strike of 1914, and many others which might be named, showing how the stability and security of the very foundations of government are seriously menaced.

Can it be said that a state legislature, having these industrial conditions in mind, might not legislate in a manner to reduce or minimize the conflict between capital organized on the one side and labor organized on the other by denying to either the right to destroy the other? Indeed, what can be more important than domestic peace and safety?

The Fathers so recognized it in the preamble of the federal constitution, in which they announced that one of the great purposes of government was “to insure domestic tranquility,” and evidently the legislature of Kansas, as well as that of Ohio, whose motives cannot be questioned in the enactment of this legislation, may have their acts fairly reconciled with this high purpose of preserving domestic tranquility by preventing the exercise of coercion by the employer upon the employe.

Suppose the legislature of Kansas, or of Ohio, had passed an act providing that “no employer by himself or his agent shall coerce any of his employes into voting any ticket, or for any officer, he desires to vote for,” or “that no employer by himself or his agent shall coerce any employe into joining or attending any church or lodge,” or providing that “no employer by himself or his agent shall coerce any employe into buying at the company’s store,” would it be seriously contended that such statutes were in violation of the liberty of contract, even as construed by those courts that have seemed more eager to protect property rights than personal rights?

■ Again, the opinion says:

“Can it be doubted that a labor organization— a voluntary association of workingmen — has the inherent and constitutional right to deny membership to any man who will not agree that during such membership he will not accept or retain employment in company with non-union men? Or that a union man has the constitutional right to decline proffered employment unless the employer will agree not to employ any non-union man? (In all cases we refer, of course, to agreements made voluntarily, and without coercion or duress as between the parties * * *.)”

Again we see the insidious and strained effort to’get away from the “coercion” of the statute.

The illustration is not apropos or analogous. In . order to be so you must add the element of coercion. You would then have an instance of where an employe was using coercion to induce a nonunion man to join the labor union or to quit the employment. You would then have the same coercion by employe as is prohibited by the statute to the employer. Coercion upon the part of one should be as unlawful as coercion upon the part of the other.

This coercion is in the nature of a secondary boycott. Employers for years have sought, and finally obtained, the support of courts in enjoining what is known as the “secondary boycott” upon business. In effect, this is a “secondary boycott” upon labor, for it is directed not against the individual employe but against the labor union.

This opinion goes much further, and is much more drastic, than anything heretofore pronounced by a court or even demanded by the National Association of Manufacturers, of which John Kirby, Jr., is president, as appears from their fundamental principles touching labor unions. These planks are as follows :

“1. Fair dealing is the fundamental and basic principle upon which relations between employes and employers should rest.
“2. The National Association of Manufacturers is not opposed to organizations of labor as such, but it is unalterably opposed to boycotts, black lists and other illegal acts of interference with the personal liberty of employer or employe.
“3. No person should be refused employment or in any way discriminated against on account of membership or nonmembership in any labor organization and there should be no discrimination against or interference with any employe who is not a member of a labor organization by members of such organization.”

There is a substantial and well-grounded public opinion that courts of last resort, and particularly the federal courts, are too eager to nullify remedial and regulatory legislation enacted by state legislatures under their police power in the interest of the public peace, safety, life, limb, health and morals. The law is not a mummy nor a straight jacket. It is presumably a live, elastic thing, adjusting- itself to the changed and changing conditions of our social, political, industrial and commercial life. It must of necessity, therefore, be a growth, an evolution, keeping pace with the advancement of our twentieth-century civilization.

This attitude of our courts, toward the legislative exercise of police power by the states, in matters that are purely state affairs, has caused a substantial loss of public confidence in courts that is too patent to be denied. While courts are unanimous in holding that such statutes should not be declared unconstitutional unless there is an “obvious repugnance” between the statute and the constitution, or unless the statute is unconstitutional “beyond all reasonable doubt,” yet an analysis of too many decisions of our courts would seem to indicate that the statute was declared unconstitutional, not upon such clear conflict, but upon some whim, caprice, prejudice or predilection of the court rather than by sound reason or the laws of logic.

The decision in the Coppage case is peculiarly unfortunate, not only because it nullifies the Kansas statute and the Ohio statute, but because in a large number of other states similar statutes that have been in force for years are also nullified.

Millions of workingmen and working women, and even working children, not only those who are now members of some labor organization, local, state or national, but those who may hereafter desire to become such, are all most intimately, seriously and prejudicially affected by this decision.

In the hope that the law made by the supreme court of the United States in this case may not become the fixed and settled policy of our courts, but that the same may in due course be reversed and labor be given its equal rights with capital, this dissenting opinion is respectfully submitted.

It would be impossible to endorse too favorably the very able dissenting opinions of Justices Day, Holmes and Hughes.

Donahue, J.,

dissenting. In the case of Coppage v. State of Kansas, 236 U. S., 1, decided January 25, 1915, by the supreme court of the United States, Mr. Justice Pitney, in writing the opinion of the majority of the court, specifically declares it is not dealing with the question of coercion. The language of the opinion in that respect is as follows:

“To avoid possible misunderstanding, we should here emphasize, what has been said before, that so far as its title or enacting clause expresses a purpose to deal with coercion, compulsion, duress, or other undue influence, we have no present concern with it, because nothing of that sort is involved in this case. As has been many times stated, this court deals not with moot cases or abstract questions, but with the concrete case before it. * * * We do not mean to say, therefore, that a state ma.y not properly exert its police power to prevent coercion upon the part of the employers towards employes, or vice versa.”

The.opinion then at some length explains why the acts charged against Coppage do not amount to coercion, and in that connection uses this language:

“It is equally clear, we think, that to punish an employer or his agent for simply proposing certain terms of employment, under circumstances devoid of coercion, duress, or undue influence, has no reasonable relation to a declared purpose of repressing coercion, duress and undue influence.”

The affidavit in the case at bar charges the defendant with coercion as defined by Section 12943, General Code; that statute provides, among other things, that “Whoever * * * coerces or attempts to coerce employes by discharging or threatening to discharge them from their employ * * * because of their connection with such [lawful] labor organization, shall be fined,” etc.

In this habeas corpus proceeding the only question presented by the record is whether the petitioner is charged with an offense under a constitutional statute of this state. No presumption obtains that the evidence proposed to be offered by the state will not sustain the charges made in the affidavit. It is declared in the case of Coppage v. State of Kansas, supra, that the state may “properly exert its police power to prevent coercion upon the part of the employers towards employes or vice versa.” That is exactly what the general assembly of this state has undertaken to do in Section 12943, General Code.

That the legislative authority of a state in the exercise of its police power may declare what acts will amount to coercion, provided it does not interfere with the liberty of the citizen guaranteed by the federal constitution, is beyond dispute.

It is said that this statute offends against the provisions of the 14th Amendment to the Constitution. On the contrary, it is in furtherance of the intent and purpose of that amendment; it seeks to protect the liberty of contract, not to restrict it. It does not prevent, or seek to prevent, the employer of labor from employing or discharging whom he will. That is his absolute right, and he must be protected in that right. On the other hand, the employe is entitled to the same protection, and in order to secure employment he should not be required to surrender any of his privileges or rights as an American citizen, and this law must be tested by its application to the rights of citizens, because the 14th Amendment to the Constitution provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”

The contract of employment involves only the meeting of the minds of employer and employe as to the nature of the services to be performed and the wages to be paid therefor. The employer has neither a natural nor a constitutional right to demand that, as a condition of employment or retention in his employment, a citizen of this state shall vote a particular ticket, affiliate or refuse to affiliate with any particular society, or withdraw from any lawful organization of which he is a member. These matters may affect the employer’s mind and prevent or induce him to employ or discharge. The law does not attempt to control his mental attitude towards organized labor, but its sole purpose is to prevent him from coercing an employe, or one who seeks employment, by requiring him to surrender his personal rights and privileges as a citizen of the United States, before he may hope to secure or retain his employment.

It is said that such a demand upon an employe works no hardship, that he is not compelled to accept the terms offered by his employer, but is at liberty to do as he pleases in reference thereto. This argument overlooks the fact that men may be compelled by their necessities, as well as by physical force, to surrender their natural and constitutional rights of personal liberty. It were a useless thing for the constitution of the United States, or the constitution of the state of Ohio, to guarantee personal liberty if the government is powerless to prevent a deprivation of that liberty, even though a citizen should regard it so lightly as to make it a subject of barter and sale.

Such a contract, if made, could not be enforced, nor damages awarded for a breach thereof. It is not only against' public policy, but is directly opposed to the fundamental principles underlying the foundation of our governmental structure, particularly in the respect that there are certain absolute rights of the individual that cannot be alienated, and personal liberty is one of these rights. It is so thoroughly un-American that the only surprise is that it is seriously contended that a law intended to prevent the alienation or deprivation of the liberty of the citizen by coercion or duress is unconstitutional.

Whether labor unions be useful or hurtful to the industrial prosperity of a state is not a question for the court in this case. If it is a lawful organization, then it fills the full measure of the statute.

The state is concerned in the full and free exercise of the rights of citizenship. It is concerned in maintaining the liberty of the individual citizen, and its vigilance should be exerted to prevent any infringement upon or restriction thereof, otherwise we shall soon cease to be a nation of freemen.

Regardless, however, of the protection of individual liberty, it is a wise public policy to prevent, as far as possible, the imposition of impossible or impracticable burdens in the making of contracts for labor, either on the part of the employer or the employe. Idleness is not only an economic loss, but a menace to the peace and perpetuity of the state. The evident fact that a large number of men and women prefer to remain idle rather than accept employment burdened with such conditions, is sufficient reason for the state to invoke its police power for its own peace, prosperity and self-preservation. There are no other transactions in the affairs of men and women where the liberty of contract should receive more zealous protection than in contracts for labor, and if these contracts are to be subjected to burdens entirely foreign to the purpose of the contract, then we are inviting idleness instead of encouraging industry.

Aside from these considerations, however, the coercion intended to be prevented by this statute is in the nature of bribery. It is offering to a man, whose necessities may be compelling, work and wages if he will surrender at least a portion of his liberty, and idleness and want if he will not. If this can lawfully be done in any one particular it can be done in all matters pertaining to personal rights, and the result must necessarily be disastrous to our standard of citizenship.

The argument that this statute offends against the Fifth Amendment to the Constitution of the United States, which provides that no person shall “be deprived of life, liberty, or property, without due process of law,” proceeds upon the theory that property is acquired by contract, and that any restriction upon the liberty of contract is in fact the taking of property without due process of law. If, therefore, this statute is not a restriction upon the liberty of contract, then this objection must fall. In either event, both constitutional objections urged against the validity of this law are determined by the same considerations, and further discussion of this objection is unnecessary.


source: Caselaw Access Project

author: Matthias, J.

license: Public Domain

text:
    The Cleveland & Pittsburgh Railroad Co. et al. v. The City of Martins Ferry.

      Constitutional law — Grade-crossing act — Section 8897 et seq., General Code, constitutional — Section 1, Article II, Constitution— Municipal corporations — Appropriation of property — Section 3677, General Code, unrepealed and unmodified — Determination of question of necessity — Itirisdiction of common pleas court — To determine all questions in one proceeding.

    1. The statute known as the grade-crossing act, Section 8897 et seq., General Code, is not in conflict with Section 1, Article II of the Constitution of Ohio, and, is valid.
    2. The enactment of that statute did not repeal Section 3677, General Code, nor in anywise modify its requirements; hence the appropriation proceeding therein authorized cannot go forward until it shall have been determined by a court of competent jurisdiction that such appropriation will not unnecessarily interfere with the reasonable use of the property to bq crossed by the proposed street.

      3. Upon proper pleading by the city, tendering the issue, the court of common pleas may, in the same proceeding, hear and determine all questions arising under Sections 3G77 and 8899, General Code.
    (No. 14462
    Decided May 4, 1915.)
    Error to the .Court of Appeals of Belmont county.
    Facts stated in opinion.

      Messrs. Healea & Kinsey and Mr. J. C. Heinlein, for plaintiffs in error.

      Mr. David H. James, city solicitor, and Mr. William Dixon, Jr., for defendant in error.
   Matthias, J.

The Cleveland & Pittsburgh Railroad Company and The Pennsylvania Company filed their joint petition in the court of common pleas of Belmont county alleging that the. city of Martins Ferry had instituted an action in said court for the assessment of compensation and damages accruing by reason of the appropriation of a portion of their right of way for public street purposes; that the proposed place of crossing is occupied by four tracks of said companies, and the switch-point of the switches that serve the freight traffic of two large industrial establishments located near said railroad, and that one of said tracks is a portion of and the lead track into extensive yards used in connection with said railroad as distributing yards for a local freight district which includes the industrial establishments of said city of Martins Ferry and also the city of Bellaire; that the situation of said tracks and the condition of the business of said companies is such that the appropriation of said property and the extension of said street across their right of way and tracks will unnecessarily interfere with the reasonable use of said property for railroad purposes and will inflict irreparable damage upon the plaintiffs by permanently hindering, impairing and destroying the use of said tracks and of said property as part of the yard system of the plaintiffs. Plaintiffs pray that said city be enjoined from further prosecuting said appropriation proceeding.

In its answer, as a second defense, the city averred that it had theretofore filed its petition in said court praying for an order permitting said city to cross the railway tracks and right of way of said companies at grade for the purpose of opening and extending Sherman avenue thereover; that said cause was heard upon the amended petition, the answer of said companies, the reply of the city and the evidence; that thereupon an order was entered by the court permitting said crossing at grade as prayed for; that upon appeal to the circuit court the following order was made:

“This cause came on to be heard upon the amended petition of plaintiff, the answer of the defendants and reply of plaintiff thereto and the evidence; and upon due consideration thereof, the court finds that the allegations of the said petition are true; that by reason of the situation of the land at this place, it would be impracticable, and impossible to cross said railroad track and right of way by either an overhead or an under crossing, or in any other way than at grade; that it is necessary to cross said railroad tracks at grade; and such construction is reasonably required to accommodate the public, and in order to make any crossing. It is therefore ordered and decreed that said plaintiff be and is hereby permitted to make such crossing, at grade.”

A demurrer to said second defense was overruled in the court of common pleas and a similar ruling was made in the court of appeals. Thereafter a reply was filed alleging the unconstitutionality of the so-called grade-crossing act, being Sections 8897, 8898 and 8899, General Code, and a motion of the city for judgment was sustained. A reversal of this judgment is sought by plaintiffs in error.

The statute known as the grade-crossing act, Sections 8897, 8898 and 8899, General Code, is not in conflict with Section 1 of Article II of the Constitution and is valid. State, ex rel., v. Harmon, 31 Ohio St., 250; City of Zanesville v. Zanesville Telegraph & Telephone Co., 64 Ohio St., 67, and Village of Fairview v. Giffee, 73 Ohio St., 183. The ruling of the court of appeals in that regard is therefore sustained and approved.

It was error, however, to assume that a'hearing and affirmative action upon the application of the city to extend its street over such right of way at grade necessarily included a finding that the proposed appropriation of the property of said companies for a street crossing would “not unnecessarily interfere with the reasonable use of the property so crossed by such improvement.” Section 8897 et seq., General Code, were enacted for the purpose, in so far as possible, of eliminating grade crossings, and under the provisions of such sections all crossings of highways and railroads constructed subsequent to the enactment thereof must be at separate grades, unless, upon application to the court of common pleas for an order permitting such crossing at grade, the court is “satisfied that such construction is reasonably required to accommodate the public,” etc.

The court, in the proceeding here provided for, merely passes upon the character of the crossing, whether it shall be at the same or separate grade. If the court find in favor of the application and permit the crossing at grade, then the city and the railroad company stand in the same position respecting the appropriation as before such act was passed. Section 3677, General Code, has not been repealed, nor the requirements thereof, as clearly stated in The P., C., C. & St. L. Ry. Co. v. City of Greenville, 69 Ohio St., 487, in anywise modified. Rights entirely separate and distinct are considered in these sections. It is certainly clear that a refusal of permission to cross at grade would not be decisive of the question whether an appropriation for a crossing at separate grade would unnecessarily interfere with the reasonable use of the property of the railroad company. Under Section 3677 no power to appropriate is conferred unless such appropriation will not unnecessarily interfere with the use of the property to be crossed, and the appropriation proceeding cannot go forward until that question shall have been determined, whether the crossing be at the same or at separate grade, for it is jurisdictional.

Upon proper and sufficient pleading upon the part of the city, in an action instituted in the common pleas court, showing that the proposed appropriation, whether 'the crossing be at the same or separate grade, will not unnecessarily interfere with the reasonable use of the companies’ property, and further that a crossing at grade is reasonably required to accommodate the public, an issue may be made and both questions determined in the same proceeding. While the suit in which it may be determined whether a crossing shall be at the same or separate grade is in the nature of a special proceeding, regulated by statute, it is therein provided that the rights of the parties to plead shall be the same as in civil actions. There is, therefore, no reason apparent why all the questions arising under Sections 3677 and 8899, General Code, may not be heard and determined in the same proceeding, if brought in the court of common pleas. However, it is incumbent upon the city to present such issue. Here such issue was not presented and, therefore, not considered nor decided in the grade-crossing proceeding, and the order entered by the circuit court, set out in the second defense of the answer herein, negatives the suggestion that it was. The demurrer to the second defense should have been sustained.

Judgment of the court of appeals reversed, and the cause remanded to that court for further proceeding- according- to law.

Judgment reversed.

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


author: By the Court.

text:
    The State, ex rel. Ribble, Prosecuting Attorney, etc., v. Kleinhoffer.

      Office and officer — Humane officer — Compensation—Not entitled to fees from county — For services in humane society cases, when.

    There is no authority for the payment of fees out of the county treasury to a humane officer for services rendered by him in cases prosecuted before a justice of the peace by a humane society under the laws of the state.
    (No. 14697
    Decided May 4, 1915.)
    Error to the Court of Appeals of Muskingum county.

      Mr. Charles F. Ribble> prosecuting attorney; Mr. Timothy S. Hogan, attorney general; Mr. Charles Follett, assistant attorney general, and Mr. Lewis Stout, for plaintiff in error.

      Mr. G. A. Elliott, for defendant in error.
   By the Court.

Defendant in error, Victor Kleinhoffer, as humane officer of Muskingum county, rendered services in serving warrants to arrest and subpenas for witnesses, etc., in a number of cases prosecuted before justices of the peace by the humane society under the humane law. The costs in these cases, including fees for the services rendered by the humane officer, were certified to the county auditor under the provisions of Section 13439, General Code, and upon an allowance by the county commissioners the sum of $176.79, being the aggregate amount of the fees certified as due the humane officer, was paid to him out of the county treasury. The state bureau of inspection and supervision of public offices found that this money had been illegally paid, and thereupon this proceeding was brought in the court of common pleas of Muskingum county under Section 11472, General Code. The matter was submitted to the court upon an agreed statement of facts embodied in the petition, signed by both parties, the controversy being as to the legality of the payment made to the humane officer. The court of common pleas held that the payment was legal and was authorized by law, and rendered judgment for defendant in error for costs. This judgment was affirmed by the court of appeals.

Sections 10062 to 10084, General Code, relate to humane societies and the powers and duties of their officers and agents. These societies are authorized to appoint agents and upon the approval of the appointments, under the provisions of Section 10072, they are paid a salary and are authorized to arrest and prosecute persons found violating any law for the protection of persons or animals or prevention of cruelty thereto, and upon making an arrest in such cases the agent is authorized to convey the person so arrested before a court or magistrate having jurisdiction of the offense and there make complaint.

The question under consideration here involves a construction of the following sections of the General Code:

“Sec. 10075. A member of such society may require the sheriff of any county, the constable of any township, the marshal or policeman of any city or village, or the agent of such society, to arrest any person found violating the laws in relation to cruelty to persons or animals, and to take possession of an animal cruelly treated, in their respective counties, cities, or villages, and deliver it to the proper officers of the society.
“Sec. 10076. For this service and for all services rendered in carrying out the provisions of this chapter, such officers, and the officers and agents of the association, shall be allowed and paid such fees as they are allowed for like services in other cases, which must be charged as costs, and reimbursed to the society by the person convicted.”

The latter section is the only one which mentions the subject of fees to be allowed and paid officers and agents of humane societies. The language used is, “and the officers and agents of the association,” referring to the humane society, “shall be allowed and paid such fees as they are allowed for like services in other cases.” That is, humane officers are allowed such fees as they are allowed for like services in other cases — not those which are allowed the other officers mentioned in the statute. It is necessary to ascertain what fees, if any, are allowed humane officers in like cases. An examination of the statutes will disclose that no provision is made for fees to be paid to the humane officer in any other case. And again, if the pronoun “they,” as used in Section 10076, could be held to refer to officers other than humane officers — for example, to a sheriff or constable— it would be impossible to determine to which it does refer. And it is important and necessary that this be known, for the fees of a sheriff and those of a constable as fixed by Sections 2845.and 3347, respectively, are different.

It is well settled that the compensation of a public officer must be fixed by statute. The legislature has failed to provide for fees for. services rendered by a humane officer and it is not the province of the court to make laws. We conclude, then, that as there is no statutory provision for the allowance of fees in the case under consideration, the payment made by the county was unauthorized. The judgment of the court of appeals is therefore reversed and judgment is here rendered for plaintiff in error in the amount in which it is agreed that judgment may be rendered if the payment is found to have been illegal. '

Judgment of court of appeals reversed, and judgment for plaintiff in error.

Nici-iols, C. J., Johnson, Donahue, Wanamaker, Newman, Jones and Matthias, JJ., concur.


text:
    Snyder v. The State of Ohio.

      Criminal law — Indictment of rape with consent — Defendant may be convicted of assault, zvhen — Charge to jury.

    1. Upon trial on an indictment charging that the defendant, being a male person of the age of eighteen years, carnally knew and abused a female person under sixteen years of age with her consent, an instruction by the court that the indictment includes the offense of assault is not erroneous.
    2. Where the evidence warrants, a conviction of assault in- such case will be sustained.
    (No. 14614
    Decided May 11, 1915.)
    Error to the Court of Appeals of Stark county.
    Facts stated in opinion.

      Mr. A. M. McCarty and Mr. Russell J. Burt, for plaintiff in error.

      Mr. H. C. Pontius, prosecuting attorney, for defendant in error.
   By the Court.

Christian Snyder was indicted at the September term of the common pleas court of Stark county in the year 1912 for the crime of rape with consent, the indictment, omitting its formal parts, reading as follows: “That Christian ' Snyder, late of said county on or about the 4th day of June in the year of our Lord one thousand nine hundred and ten, at the c.ounty of Stark, aforesaid, said Christian Snyder being then and there a male person of the age of eighteen years and upward, did then and there unlawfully and knowingly carnally know and abuse one R. P., with her consent, she, the said R. P., then and there being a female person under the age of sixteen years, to-wit, of the age of fourteen years, contrary to the statute in such case made and provided and against the peace and dignity of the state of Ohio.”

He was tried on this indictment at the January term of common pleas court of Stark county of the year 1913. The judge of the court of common pleas, among other things, charged the jury in substance that the indictment included the crime of rape with consent, the crime of assault and battery and the crime of assault. The jury returned a verdict as follows: “We, the jury impaneled and sworn to well and truly try and true deliverance make between the state of Ohio and the prisoner at bar, Christian Snyder, do find the defendant not guilty of carnally knowing and abusing R. P. with her consent as he stands charged in the indictment, and not guilty of assault and battery, but we do find the defendant guilty of assault as he stands charged in the indictment.”

The defendant did not file a motion for a new trial, but filed a motion asking the court to discharge the defendant on a number of grounds, all based upon the contention, however, that the crime of assault is not contained within said indictment. The motion was overruled by the court of common pleas, error was prosecuted to the court of appeals of Stark county and the holding of the common pleas court was affirmed.

The manner of presentation of the question the court is called upon to determine does not bring before us the record; hence the evidence upon which the trial court and jury acted is not here for consideration. In no manner, therefore, are we advised as to what acts of the defendant were disclosed by the evidence upon which the trial judge based his instructions to the jury and upon which the jury, applying those instructions, returned its verdict. In the absence of a bill of exceptions showing the contrary it must be presumed that the proceedings in the trial court were in every respect regular. We are informed by briefs of counsel that the trial court charged the jury that the indictment included within its term the crime of rape with consent, the crime of assault and battery and the crime of assault. The only complaint made by plaintiff in error is that under an indictment charging him with rape with consent he was found guilty of the offense of assault. He contends that such conviction was erroneous for the reason that the offense of assault is not included in the terms of such indictment. It must be presumed that the trial court, having charged the jury that the offense of assault was included within the indictment, so clearly defined that offense that the jury understood its essential elements, and in the absence of a record it may be assumed, if necessary to sustain the verdict, that the evidence showed force was used and an actual assault committed.

In the case of The State v. Carl, 71 Ohio St., 259, this court has held that upon trial of a defendant charged with having carhal knowledge of a female under sixteen years of age with her consent, evidence showing that the act was committed “by force does not constitute a fatal variance. In that case the court held that the phrase “with her consent” does not define an essential element of the crime charged, and that consequently the indictment would not have been rendered fatally defective if such phrase had been entirely omitted. '--The judge announcing the opinion says: “In this regard the effect of the statute is to nullify the consent of the female under sixteen years of age. It is as if with respect to such persons the provision was that the crime shall be complete notwithstanding her consent.” Such is the rule adopted in many other states. It is true that in some of them the statutory provisions are slightly different from ours. In some of them the statute is entirely silent upon the matter of consent; others contain the phrase “with or without her consent.” In those states the courts have held that force is conclusively presumed, and that a female under the age of consent is conclusively presumed to be incapable of giving her consent. Among such decisions the following are cited: Murphy v. State, 120 Ind., 115, 22 N. E. Rep., 106; Liebscher v. State, 69 Nebr., 395, 95 N. W. Rep., 870; Loose v. State, 120 Wis., 115, 97 N. W. Rep., 526, and Proper v. State, 85 Wis., 615, 55 N. W. Rep., 1035.

We have no inclination to extend in the least the application of the decision in the case of Smith v. The State, 12 Ohio St., 466. We are rather in accord with the rule adopted in many states and applied in The State v. Carl, supra, and which has in several jurisdictions been so extended as to hold that a female under the age of consent, being incapable of consenting to the act of sexual intercourse, is equally incapable of consenting to the incipient advances of the- offender or to the familiarity with her person, which necessarily precede the consummation of the act. Such advances, being a touching of the person in a rude and insolent manner, constitute an assault.

Rape with consent is constituted of the same elements as rape without consent, and one of the elements of rape is assault, and if under such a charge an assault be proved, but not the rape, the defendant may be convicted of assault. It is to be observed that the charge made by this indictment is that the defendant “did carnally know and abuse.” The latter term is defined to mean “an injury to the genital organs in an attempt at carnal knowledge, falling short of actual penetration.”

Upon the' sole question of law presented, our conclusion is that upon trial on an indictment charging that the defendant, being a male person of the age of eighteen years, carnally knew and abused a female under sixteen years of age with her consent, an instruction by the court that the indictment includes the offense of assault is not erroneous, and that, where the evidence warrants, a conviction of assault in such case should be sustained.

The judgment of the court of appeals is, therefore, affirmed.

Judgment affirmed.

Nichols, C. J., Johnson, Wanamaker and Matthias, JJ., concur.


author: Johnson, J.

text:
    Freeman et al. v. Miles, Admx., et al.

      Courts of appeals — Disability or disqualification of judges — Assignment of judges — By chief justices of court of appeals and supreme court — Section 1528, General Code — Section 6, Article IV, Constitution (1912).
    1. The chief justice of the court of appeals is, by the provisions of Section 1528, General Code, authorized, subject to the conditions set forth in that section, to assign one or all of the judges of one district to hold court in another district; and the section is not in conflict with the clause in Section 6, Article IV of the Constitution, which confers the power on the chief justice of the supreme court to determine the disability or disqualification of any judge of the court of appeals and to assign any judge of such courts to any county to hold court.
    2. Section 6 of Article IV of the Constitution clothes the chief justice of the supreme court with full authority to determine the disability or disqualification of a judge of the court of appeals, and in addition thereto to assign a judge of that court to any county to hold court for any proper reason, without reference to questions of disability or disqualification.
    (No. 14699
    Decided May 11, 1915.)
    Error to the Court of Appeals of Franklin county.
    The facts are stated in the opinion.

      Messrs. Huggins, Huggins & Hoover and Mr. J. H. Summers, for plaintiffs in error.

      Messrs. Wilson & Rector and Mr. F. S. Mon-nett, for defendants in error.
   Johnson, J.

.The testatrix of William Y. Miles, who was his widow, began a proceeding in the common pleas of Franklin county to obtain a construction of his will. All of the heirs at law and devisees were made parties. On appeal from a final decree in that court the court of appeals entered a decree construing the will.

The plaintiffs in error, Gordon F. Miles -and Lena M. Freeman, who were defendants below, thereupon filed an application for a rehearing in the court of appeals on the grounds “that the court which heard and decided said case was without jurisdiction to hear the same and the decision rendered is contrary to law.”

The reasons why the court was without jurisdiction were stated in the application to be:

“a. Because the judges, Honorable R. R. Kinkade, Honorable S. S. Richards and Honorable Charles E. Chittenden, constituting the court which heard said case were elected for and constitute the court of appeals of the sixth appellate district of Ohio and said court is without power to hear and decide cases in the county of Franklin in the second appellate district of Ohio.
“b. Because the said judges were not assigned to Franklin county, Ohio, to hold court, by the chief justice of the supreme court of Ohio, as is provided by Article four, Section six, of the Constitution.”

The application contained an argument in its support and it was also contended that the court had erred in the construction of the will for reasons set forth at length. The application was overruled. The entry of that order contained the following: “This day this cause came,on for hearing by the court, the Hon. R, R. Kinkade, Hon. S. S, Richards and Hon. Chas. E. Chittenden, judges of the court of appeals for the sixth district sitting as judges of said court, said judges and each of them having been assigned by the chief justice of the court of appeals to hold an additional court in Franklin county, upon the application of the defendants, Gordon F. Miles and Lena M. Freeman, for a rehearing of said cause,” and set out the grounds above stated. The entry then proceeded with the overruling of the application.

It is conceded that the chief justice of the courts of appeals made the assignment of the judges, as stated in the entry, under the authority conferred by Section 1528, General Code, pertinent parts of which are: “The chief justice of the court of appeals, upon being satisfied that the business of such district requires it, shall assign such judge or judges of the court of appeals, as in his opinion can be so assigned without impairing the business of the district of which he is a resident, to hold court in such district.”

The contention of the plaintiffs in error is that the section referred to is in contravention of the following provision contained in Section 6 of Article IV of the Constitution: “The chief justice of the supreme court of the state shall determine the disability or disqualification of any judge of the courts of appeals and he may assign any judge of the courts of appeals to any county to hold court.”

It is insisted that this provision is exclusive, that the legislature^ is without authority to authorize any other person to assign a judge of the court of appeals to hold court in another district and that even the chief justice cannot designate the entire court of appeals of one district to hold court in another.

It will be observed that the provision quoted from Section 6 of Article IV of the Constitution is that the chief justice of the supreme court “shall determine the disability or disqualification" of any judge of the courts of appeals.” It then proceeds with the provision that he may assign any judge of the courts of appeals to any county to hold court. From a consideration of the entire sentence it is very apparent that the purpose of the framers of that provision in the constitution was to definitely locate the authority by which the question of disability or disqualification of a judge of the courts of appeals should be determined. The wisdom and salutary force of the provision are very manifest. It is most desirable that questions of that sort should be disposed of with becoming expedience and without unseemly proceedings, by an ascertained and fixed authority. Having made that provision, it was natural that the latter clause of the sentence should be added conferring the permissive power on the chief justice of the supreme court to assign any judge to any county. Therefore, the further power was conferred to assign any judge of the courts of appeals to any county to hold court. A different purpose was intended to be accomplished by the legislature in the passage of Section 1528, General Code, supra.

Section 6 of the judicial article of the constitution provides that each judge of the courts of appeals “shall be competent to exercise judicial powers in any appellate district of the state.”

The object of Section 1528, General Code, is to facilitate and to put into practical effect, where necessary and desirable, the provisions of the constitution just quoted. That section of the Code does not confer upon the chief justice of the courts of appeals any power to determine the disability or disqualification of any judge of the courts of appeals. The preceding section (1527) provides for the exercise of that power by the chief justice of the supreme court in accordance with the constitutional provision. Section 1528 is purely administrative in its character. In the nature of the situation it is necessary that there should be some system by which the business of the several courts should be expedited, and therefore the section provides that “The chief justice of the court of appeals, upon being satisfied that the business of such district requires it, shall assign such judge or judges of the court of appeals, as in his opinion can be so assigned without impairing the business of the district of which he is a resident.”

It is to be presumed that the legislature contemplated that the chief justice of the courts of appeals would be in reasonable touch with the business of those courts, and would be so situated as to give life and vigor and practical value to the provision of the constitution which confers upon each judge of the courts of appeals of the state authority to exercise judicial powers in any appellate district.

The statute is a reasonable and proper provision, and cannot but contribute substantially to the orderly disposition of the business of the courts of appeals and to the administration of justice.

Section 1528 does not in anywise interfere with the authority conferred upon the chief justice of the supreme court to determine the disability or disqualification of a judge of the courts of appeals, or to assign a judge of that court to any county, and is a valid enactment.

Section 6 of Article IV of the Constitution clothes the chief justice of the supreme court with full authority to determine the disability or disqualification of a judge of the court of appeals, and in addition thereto to assign a judge of that court to any county to hold court for any proper reason, without reference to questions of disability or disqualification.

In the case at bar the trial proceeded before the judges named to final judgment without objection by any of the parties. The first objection that appears on the record to have been made to the qualification of the judges named to sit is found in the application for a rehearing.

Inasmuch as Section 6 of the judicial article contains the provision that each judge of the courts of appeals shall be competent to exercise judicial powers in any appellate district of the state, it follows that each of the judges named was qualified to sit as a judge of the court of appeals of Franklin county at the hearing of this case. In the absence of anything appearing to the contrary, the presumption would be that they had been properly assigned so to do, and when the parties, without objection, proceeded before a court composed of judges with such qualifications and the case was fully tried, all questions of assignment or other merely administrative matters were waived.

However, we have preferred to rest our conclusion upon whát we have said with reference to the validity of Section 1528, General Code.

The court was properly constituted, and inasmuch as the constitutional question raised relates only to the qualification of the judges named to constitute the court and to hear and decide cases at the time, and does not relate to or affect the causes of action or defense involved in the case or the procedure by which they were determined, its judgment is final and will be affirmed.

Judgment affirmed.

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


text:
    The Manufacturers Appraisal Co. v. The Board of County Commissioners of Franklin County.

      Remedies — Quantum meruit — Presentation of claim to county commissioners — Mandamus—Implied contract — Expert assistants to board of real estate assessors — Sections 2460, 2461 and 5545, General Code.

    (No. 14592
    Decided May 11, 1915.)
    Error to the Court of Appeals of Franklin county.

      Messrs. Wilson & Rector and Mr. D. E. Mook, for plaintiff in error.

      Mr. Edward C. Turner, prosecuting attorney, and Mr. Herbert C. Sherman, for defendant in error.
   By the Court.

The judgment of the court of appeals is hereby affirmed upon the grounds ably and fully stated in the opinion of the court of appeals of the fourth circuit sitting in Franklin county, Ohio, to which this cause was submitted.

The opinion by Judge Thomas A. Jones, then a member of the court of appeals, and now a member of this court, was as follows:

“Jones, Thos. A., J. This cause is in the court of appeals on error from the common pleas, that court having sustained a demurrer to plaintiff in error’s amended petition and dismissed the action. This is the sole ground of error claimed.
“The cause having originated in the common pleas court, the county insists that the claim should have been presented to the county commissioners in the first instance and, having been disallowed, should have reached the common pleas by way of appeal. Not having pursued this remedy, the county asks a dismissal of the case in this court for want of jurisdiction.
“The amended petition states that in December, 1909, the board of real estate assessors of Columbus employed plaintiff to furnish the said board expert assistants and to render expert assistance to the board in connection with the valuation of real property within the municipality; that certain persons named under the employment of plaintiff, as agents and employes, rendered certain services as expert assistants to said board in relation to such valuation. These, services are set forth in detail and the reasonable value thereof set forth.
“The amended petition alleges that said services were rendered at the special instance and request of the board and accepted by it; that the total cost of said quadrennial .appraisement, including the amount due plaintiff, does not exceed one-twentieth of one per cent, of the total tax duplicate; that the board adjourned finally on October 26, 1910, and that the return of the board, as modified by the board of review, constitutes the basis of taxation for real property of the city; that prior to its adjournment the board ordered that the plaintiff should be paid for. its services the sum of $8,000.
“The plaintiff asks for judgment in the sum of $13,005 and interest;
“The demurrer to this pleading was a general one.
“The amended petition is founded upon an implied contract and seeks to recover as upon a quantum meruit. The action is brought- under favor of Section 5545, General Code:
“ Tf a board of real estate assessors in a city deems it necessary to enable it, within the time herein prescribed, to complete the proper listing and valuation of the real property within such city, it may employ a chief clerk and appoint such expert assistants as it may deem necessary, and fix their compensation. Such compensation shall be paid out of the county treasury upon the order of the board of assessors and the warrant of the county auditor. Such incidental expenses as the board deems necessary, shall be paid out of the county treasury in like manner. The total cost of a quadrennial appraisement in a city shall not exceed the sum of one-twentieth of one per cent, of the total tax duplicate thereof, for the year next preceding that in which such quadrennial appraisement is made, unless such excess has been authorized by the board of county commissioners and auditor of the county in which the city is situated prior to the incurring thereof and has been incurred in accordance with such reasonable provisions and regulations as have been prescribed by the board of county commissioners and county auditor.’
“The confusion and difficulty that arises from this pleading attaches to the allegation therein that the board of assessors ordered that plaintiff should be paid the sum of $8,000 when the entire scope of the pleading seems to base the right of recovery upon the reasonable value of the services rendered and accepted.
“The language of the act, it seems to us, requires an express contract between the board and expert assistants and precludes the idea of any implied contract between them. It provides that the board may appoint expert assistants and fix their compensation. It then provides that this compensation shall be paid out of the county treasury upon the order of the board and the warrant of the county auditor.
“The amended petition discloses that an order was issued by the board, but does not allege any agreement fixing the compensation. The plaintiff falls upon the two horns of a dilemma. If we conceive the action as founded upon a claim ‘fixed by some other person or tribunal,’ then by the provisions of Sectipn 2460, General Code, the claim is to be paid upon the warrant of the county auditor upon the certificate of that tribunal or person. If the auditor refuses, then mandamus is the proper remedy for relief. In that connection the board of county commissioners have no more to do with such a claim than the township trustees. With claims of that character they have no concern, for they do not come within the range of their 'official duties. And if the purpose of alleging the order to plaintiff by the board for $8,000 was to bring it within the section named, the plaintiff would be relegated to its suit against the official at fault, viz., the county auditor.
“However, we attach little value to .the • allegation in question, and consider the claim based solely upon an implied contract against the county. For the purposes of this case we cannot consider the written contract of the parties and its legality as argued by counsel, .for that feature need not be disposed of, though the circuit court of Franklin county, as appears from the opinion of Judge' All-read, held the employment invalid because the board not only delegated its powers but delegated it to a corporation.
“On the other hand, construing the amended petition as upon an implied contract for the reasonable value of services rendered, the function of the board of assessors in fixing compensation passed out of the case, and it becomes one simply for a liability against the county, not for a fixed contractual sum but for services rendered and accepted by the county. In this view, this character of claims must be presented for allowance to the board of county commissioners under Section 2460, General Code; and since the claim is not founded upon a contract which the commissioners are authorized to make, it would seem that an appeal would be necessary under Section 2461, General Code. Commissioners v. Ziegelhofer, 38 Ohio St., 523.
“For the reasons stated we do not think the amended petition states facts sufficient. The lower court did not err, and its judgment is affirmed.
“Walters and Sayre, JJ., concur.”

Judgment affirmed.

Wanamaker, Newman and Matthias, JJ., ' concur.

Nichols, C. J., Johnson and Donahue, JJ., dissent.

Jones, J., not participating.


text:
    Patrick et al. v. Parrott et al.

      Real property — Deeds deposited with hank — For delivery at grant- or’s death — Will also deposited — Disposing of personalty— Control, dominion or power of revocation — Cashier agent of donees — Completed delivery to grantees.

    (No. 14646
    Decided May 11, 1915.)
    Error to the Court of Appeals of Huron county.

      Messrs. Young & Young, for plaintiffs in error.

      Mr. G. Ray Craig; Mr. W. R. Pruner and Mr. S. A. Wildman, for defendants in error.
   By the Court.

On August 29, 1908, John Parrott, 86 years of age, called a notary public and justice of the peace, who at Parrott’s direction prepared a will, bequeathing all his personal property to his wife; and also deeds of conveyance, one for 117 acres to his four grandchildren, 210 acres to his son Frank and the residue of his real estate, comprising 242 acres, to his daughter, Adell. Each of the deeds had a provision that the same should not be recorded until Parrott’s death, with an additional provision in Adell’s deed that she should receive nothing for the care of said Parrott and his wife. On that date each of the deeds, together with the will, were duly executed, acknowledged and attested by Parrott. The will and deeds were prepared and executed at the same time, and each delivered to the notary with directions that they should be taken by him and placed in the custody of the cashier of the local village bank, “with directions that said deeds should be safely kept and delivered, at the decease of said John Parrott, to his heirs.” At the same time the deeds were delivered to the scrivener or notary the following written memorandum was prepared by the notary and the same delivered by Parrott to the notary with the deeds and will, viz.: “My request is that at my diseased [decease] that the within deeds be given to the parties named. Dated Aug. 29th, 1908. John Parrott.”

The notary delivered the deeds and will to the cashier, who placed them in an envelope and endorsed on the outside “John Parrott, Private Papers.” They were placed in the bank vault, where they remained until February, 1910, .when, Parrott's wife having died and desiring to execute another will, he asked the cashier for the will. The cashier then delivered the envelope and contents to Parrott. A day or two thereafter Parrott executed a new will, and soon thereafter took the new will, the deeds and memorandum back to the bank and' delivered them to the cashier, giving him oral instructions to deliver the papers upon his death to his son Frank, who had been named as executor in the new will. In June, 1910, Parrott died, and shortly thereafter the cashier delivered the papers to Frank, the son and executor, who delivered Adell’s deed to her and left the deed for the 117 acres to the grandchildren with the county auditor, and each of the deeds were later recorded.

The new will executed by Parrott made complete disposition of his personalty, but did not qffect the real estate conveyed.

Held, from the facts stated:

1. No control, dominion or power of revocation was reserved over the real estate by the donor.

2. The cashier was the agent or trustee for the donees.

3. There was a valid and legal delivery, on the part of the donor, of the deeds to the grantees therein named.

The judgment is affirmed.

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