author: Summers, J.

text:
    The State of Ohio v. Marble.

      Christian Science treatment for a fee — Is practicing medicine within the meaning of the statutes — Regulating medical'practice — Such statute is not interference with right of conscience — Prohibitory legislation is constitutional, when— Section T of bill of rights — Police power of state — Freedom of worship — Constitutional law.

    1. The giving of Christian Science treatment, for a fee, for the cure of disease, is practicing medicine within the meaning of the statutes regulating such practice in this state.
    2. The statute making it a misdemeanor to give such treatment for a fee is not an interference with the rights of conscience and of worship, conserved by section 7 of the hill of rights, and is not on that ground unconstitutional.
    3. Legislation prohibiting anyone from treating a disease for a fee, excepting such persons as have prescribed qualifications, is a valid exercise of the police power of the state, and is constitutional.
    4. The act regulating the practice of medicine in this state exacts reasonable qualifications and excludes no one possessing them, and it is not void as discriminating against Christian Scientists in that it prescribes that anyone possessing certain qualifications may practice osteopathy and does not make especial provision for those who wish to practice Christian Science.
    (No. 9002
    Decided February 28, 1905.)
    Exceptions to the decision of the Court of Common Pleas of Erie county.
    On the thirteenth day of June, 1903, an information, duly supported by affidavit, by the prosecuting attorney of Erie county was filed in the probate court of that county, charging that the defendant had, on the first day of October, 1902, for a fee, prescribed and recommended Christian Science treatment for the use of one Christ Hehl for the cure and relief of rheumatism.
    The information, as amended, so far as it is material to set it forth, is as follows: “did knowingly, wilfully and unlawfully practice medicine in the state of Ohio and county aforesaid without having first complied with the provisions of the act of the general assembly of the state of Ohio entitled: ‘An act to regulate the. practice of medicine in the state of Ohio,’ passed February 27, 1896, and amended April 14, 1900, and April 21,1902, in this that at the time and place aforesaid, he, the said Oliver ~VY. Marble, did for a fee, to-wit, the sum of five dollars, prescribe and recommend for the use of one Christ Hehl, a certain application, operation and treatment, to-wit, a system of mental treatment, commonly known as Christian Science, the exact nature of which treatment is to the prosecuting attorney unknown, for the treatment, cure and relief of a certain bodily infirmity and disease, commonly called rheumatism, he, the said Oliver W. Marble, at the time aforesaid, not having obtained or received from the state board of medical registration and examination of the state of Ohio a certificate entitling him, the said Oliver W. Marble, to practice medicine, or surgery or midwifery within the state of Ohio, as required by the act aforesaid. ’ ’
    The defendant plead not guilty. The trial resulted in a verdict of guilty and he was sentenced to pay a fine of twenty dollars and costs. On error the court of common pleas reversed ^he judgment and discharged the accused on the ground that sections 4403c, 4403d, 4403f and 4403g of the Revised Statutes, insofar as they relate to Christian Science practitioners, are unconstitutional, for the reason that they unfairly discriminate against those engaged in practicing the healing art by Christian Science methods.

      Mr. Roy H. Williams, prosecuting attorney, for plaintiff in error,
    cited and commented upon the following authorities:
    Act of February 27, 1896, and of April 14, 1900, and of April 21, 1902; State v. Gravett, 65 Ohio St., 289; State v. Buswell, 40 Neb., 158; sec. 17, Neb. Stat.; Parles v. State, 159 Ind., 211; Science and Health by Mary Baker G. Eddy, pages 410, 372, 93 and 76; People v. Gordon, 194 Ill., 560; People v. Pierson, 176 N. Y., 201; secs. 4403c, 4403d, 4403f, 4403g, 7305 and 7306, Rev. Stat.

      Mr. John Ray, attorney for defendant in error,
    cited and commented upon the following authorities :
    Act of February 27, 1896; France v. State, 57 Ohio St., 1; 23 Am. & Eng. Ency. Law, 326; State v. Mylod,
      20 R. I., 632; Hall v. State, 20 Ohio, 7; Denbow v. State, 18 Ohio, 11; Mitchell v. State, 42 Ohio St., 383; Evans v. State, 9 Dec., 222; 6 N. P., 129; Bloom v. Richards, 2 Ohio St., 387; McGatrick v. Wason, 4 Ohio St., 566; Const. U. S., 1st Amendment; Const. Ohio, art. 1, sec. 7; Watson v. Jones, 13 Wall., 728; Davis v. Beason, 133 U. S., 333; Reynolds v. United States, 98 U. S., 145; State v. Liffring, 61 Ohio St., 39; Palmer & Crawford v. Tingle, 55 Ohio St., 423; State v. Gardner, 58 Ohio St., 599; State v. Biggs, 133 N. C., 729; State v. Gravett, 65 Ohio St., 289; Noel v. People, 187 Ill., 587; Webster’s Inter. Dict., p. 41, supp.; Standard Dict., p. 336; 27 Encyclopedia Brittannica (new vol.), 60; 4 New Inter. Encyclopedia, 589; 7 Johnson’s Universal Cyclopedia, 381; Appleton’s Annual Cyclopedia, year books for 1897, 1900 and 1901; Chicago v. Netcher, 183 Ill., 104; Const. U. S., 14th Amendment; Barbier v. Connolly, 113 U. S., 27; Yick Wo v. Hopkins, 118 U. S., 356; Soon High v. Crowley, 113 U. S., 703; Dent v. West Virginia, 129 U. S., 114; Wheeling Bridge & Tr. Co. v. Gilmore, 4 Circ. Dec., 366; 8 C. C. R., 658; secs. 4403c, 4403d, 4403f, 4403g, 7305 and 7306, Rev. Stat.
   Summers, J.

The right to practice medicine has been so long and so universally subject to state regulation that it might almost be said to be not an absolute right but a privilege or franchise. Assuming, however, that it is an absolute right, it is conceded that it is subject to such reasonable regulations or conditions as the state in the exercise of the police power may prescribe. France v. The State, 57 Ohio St., 1; The State of Ohio v. Gardner, 58 Ohio St., 599.

The contention of counsel for the defendant is, first, that prescribing, for a fee, Christian Science treatment for the cure of a bodily ailment is not practicing medicine within the meaning of the statute; second, that Christian Science is a religious belief and that defendant in giving the treatment, did so in obedience to a religious and conscientious duty or, in other words, was worshiping God according to the dictates of his conscience, and that a statute interfering therewith is unconstitutional as depriving him of his natural and indefeasible right to worship Almighty God according to the dictates of his own conscience; third, that if Christian Science is a school of medicine the act discriminates against Christian Science in that it has made provision for the examination of the practitioners of other schools of medicine that are related to other theories of medicine but that it has made no such provision for the Christian Science practitioner, but on the contrary requires him to take the same examination that is prescribed for the so-called regular physician.

It is not necessary to notice the various statutes regulating the practice of medicine that have been passed in this state. The first was passed in 1811 and numerous acts have since been passed down to the act of 1902 involved in the present controversy. Eeference is made to them in the briefs of counsel in State of Ohio v. Gravett, 65 Ohio St., 289. It is sufficient for present purposes to say that in 1896 a comprehensive act, entitled “An act to regulate the practice of medicine in the state of Ohio,” was passed. It provided a state board of medical registration and examination and that no person should practice medicine, surgery or midwifery, in any of its branches in this state without first complying with the requirements of- the act. Its requirements were to the effect that a person engaged in the practice must obtain a certificate from the board upon a showing either that he was a graduate in medicine or surgery, or a legal practitioner under the laws then in force, or upon such examination before the board as to his qualifications as the board might require, and as to a person practicing midwifery, that she should obtain a certificate from the probate judge of the county in which she resides.

So much of the section defining who shall be regarded as a practitioner of medicine and surgery within the meaning of the act, as is necessary to an understanding of the question determined, is here set out, and as subsequently amended, the changes being indicated by the words in italics.

“Any person shall be regarded as practicing medicine or surgery within the meaning of this act who shall append the letters M. D. or M. B. to his name, or for a fee prescribe, direct or recommend for the use of any person, any drug or medicine or other agency for the treatment, cure or relief of any wound, fracture or bodily injury, infirmity or disease; provided, however, that nothing in this act shall be construed to prohibit service in case of emergency, or the domestic administration of family remedies.” (February 27, 1896, 92 O. L., 47.)

“Sec. 4403f. Any person shall be regarded as practicing medicine or surgery or midivifery within the meaning of this act, who shall use the words or letters ‘Dr.,’ ‘Doctor,’ ‘Professor,’ ‘M. D.,’ ‘M. B.,’ or any other title, in connection with- his name, which in any way represents him as engaged in the practice of medicine or surgery or midwifery, in any of its branches, or, who shall prescribe, or who shall recommend for a fee for like use any drug or medicine, appliance, application, operation or treatment, of whatever nature, for the cure or relief of any wound, fracture or bodily injury, infirmity or disease. The use of any of the above mentioned words or letters, or titles in such connection, and under such circumstances as to induce the belief that the person whú uses them is engaged in the practice of medicine or surgery or midwifery in any of its branches, shall be deemed and accepted as prima facie proof of an intent on the part• of such person to represent himself as engaged in the practice of medicine or surgery or midwifery, provided, however, that nothing in this act shall be construed to prohibit service in the ease of emergency, or the domestic administration of family remedies.” (April 14,1900, 94 O. L., 200.)

The section as amended April 21, 1902 (95 O. L., 212), is not changed in the particular part under consideration.

In the State of Ohio v. Liffring, 61 Ohio St., 39, it was held that osteopathy was not an “agency” within the meaning of the act of 1896 and in the State of Ohio v. Gravett, supra, it was held that it was within the meaning of the statute as amended in 1900.

In the opinion in the latter case, Shauck, J., referring to the former case, says: (306, 307)

“The view then urged by the attorney general was that the system of rubbing or kneading the body, known as osteopathy, is an ‘agency’ within the meaning of the statute; hut the interpretation of the statute seemed to invoke the maxim noscitur a sociis as an aid in determining the meaning of the word, and onr conclusion was that it meant something of like character with a drug or medicine to be administered with a view to producing effects by virtue of its own potency; and that it, therefore, did not include osteopathy. * * *

“It seems quite clear that in its present form the statute affords no proper occasion for the application of the maxim of interpretation by which we were aided in State v. Liffring, supra. Careful comparison of the two acts with respect to their definitions of the practice regulated shows that while in the former the legislature intended to prohibit the administration of drugs by persons not informed as to their effect or potency, by the latter it has attempted a comprehensive regulation of the practice of the healing art; so far, at least, as to require the preparatory education of those who, for compensation, practice it according to any of its theories. The comprehensive language of the statute and the purpose which it clearly indicates require the conclusion that osteopathy is within the practice now regulated.”

The conceded facts are that the defendant did not recommend or prescribe for the cure or relief of Christ Hehl any drug, medicine, appliance, application or operation, but on the contrary that he made no diagnosis or any physical examination, gave him no directions as to food, diet, exercise or any other directions, nor did he make any inquiry as to the nature of the disease with which he was afflicted. The only thing he did was to offer prayer for his recovery. He was called to see Hehl for rheumatism, but called on him but once, and after that gave him what is among the followers of Christian Science known as absent treatment for one week, and at the end of that time Hehl paid him $5.00 for his services. The defendant did not have a certificate from the state board of medical registration and examination as required by the statute.

It is contended that the word “treatment” is to be given its meaning as used in the practice of medicine and that as so read it means the application of remedies to the curing of disease, that a remedy is a medicine or application or process; that process is an action or operation and that prayer for the recovery of the sick is neither.'

Technically this may be correct, but the science of medicine has made some advance since the time Macbeth wished to throw physic to the dogs because his doctor could not cure a mind diseased, but told him “Therein the patient must minister to himself.”

Now days doctors cure imaginary diseases by means that would as easily as Christian Science escape the above definition.

What Christian Science is we do not know. The practice of it is referred to as treatment by its followers. Mrs. Mary Baker G. Eddy in “Science and. Health,” page 410, says:

“Always begin your treatment by allaying the fear of patients. Silently reassure the patient as to his exemption from disease and danger. Watch the result of his simple rule of Christian Science, and you will find that it alleviates the symptoms of every disease. If you succeed in wholly removing the fear your patient is healed. The great fact that God wisely governs all, never punishing aught but sin, is your standpoint whence to advance and destroy the human fear of sickness. Plead the case in Science and for Truth, mentally and silently. You may vary the arguments, to meet the peculiar or general symptoms of the case you treat; but be thoroughly persuaded- in your own mind, and you will finally be the winner.

“You may call the disease by name when you address it mentally; but by naming it audibly, you are liable to impress it upon the thought. The silence of Christian Science-and Love is eloquent. It is powerful to unclasp the hold of disease, and reduce its cause to nothingness.

“To prevent disease or to cure it mentally, let Spirit destroy this dream of sense. If you wish to heal by argument, find the type of the ailment, get its name, and array your mental plea against the-physical. Argue with the patient (mentally, not audibly) that he has no disease, and conform the argument to the evidence. Mentally insist that health is the everlasting fact and sickness the temporal falsity. Then realize the presence of health, and the corporeal senses will respond. £ So be it! ’ ”

If its followers call it treatment they ought not to .be heard to say it is not. Dr. O. W. Holmes, Med. Ess., says: “Disease is to be treated by anything that is proved to cure it.”

The statute' of 1896, as we have seen, -had been held by this court not to comprise the practice of osteopathy and by a lower court (Evans v. The State, 9 Dec., 222; 6 N. P., 129) not to apply to Christian Science. So that the use of the words “of whatever nature” in the amendment are quite significant and we have no doubt the legislative intent was to bring within this definition every person who for a fee prescribes or recommends a cure for disease, even though the cure is to come not from himself but, through his intercedence, from God. In Illinois the legislature when it enacted “any person shall be regarded as practicing medicine, within the meaning of this act, who shall treat or profess to treat, operate on or prescribe for any physical ailment or any physical.-injury or deformity of another” thought it necessary to exclude Christian Science by providing that nothing in this section shall be construed to apply to any person who ministers' to or treats the sick or suffering by mental or spiritual means, without the use of any drug or material remedy.

The next contention is that the statute interferes with defendant’s right to worship God according to the dictates of his conscience. No specific provision of the constitution is referred to. Section 7 of our bill of rights provides “All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience * * * nor shall any interference with the rights of conscience be permitted.”

It is to be observed that the statute does not prohibit the prescribing or recommending the treatment except for a fee and we are not advised that it is a part of defendant’s religion to exact a fee as well as to pray. But if the- inhibition of the statute tends' to the public welfare and is not obnoxious on other grounds it is not within this provision of the bill of rights. In Bloom v. Richards, 2 Ohio St., 387, 392, Thurman, J., says: “Acts evil in their nature, or dangerous to the public welfare, may be forbidden and punished, though sanctioned by one religion, apd prohibited by another; but this creates no preference whatever, for they would he equally forbidden and punished if all religions permitted them. Thus, no plea of his religion should shield a murderer, ravisher, or bigamist; for community would be at the mercy of superstition, if such crimes as these could be committed with impunity, because sanctioned by some religious delusion. ’ ’

In Reynolds v. United States, 98 U. S., 145, 164, after showing historically how religious freedom came to be guaranteed by amendment to the constitution of the United States, Chief Justice Waite considers what is meant by religious freedom and concludes: “Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.”

This brings us to the question whether the act, insofar as its application to Christian Science is concerned, is a valid exercise of the police power. The term “police power” it has been said is incapable of exact definition. “It aims directly to secure and promote the public welfare, and it does so by restraint and compulsion.” Section 3, Police Power, Freund.

In Parks v. State, 159 Ind., 211, 220, Gillet, J., gives the following list of subjects that have been dealt with under this power:

“Under this power various burdens are imposed: Criminals.are deprived of their liberty; the implements of crime are destroyed; vice and pauperism are controlled; noxious trades are regulated; nuisances are suppressed; children are required to attend school; the property of infants and persons non compos is placed in the control of others; the construction of buildings in populous neighborhoods is regulated; provision is made for the greater safety of passengers upon railways and steamboats; employers are required to provide safe places in which the work of their employes is to be performed; the hours of work, in employments deleterious to the health, limited; the employment of children in factories prohibited; pure food laws are enacted; physicians, dentists, and druggists are licensed; and so the list might be almost indefinitely extended by specific ’instances of authorized legislative regulations, enforcing the social compact, for the protection of life, health, morals, property, and the general weal of the community, until we perceive that definition is impossible and that the whole matter of the legislative sovereignty as opposed to individual liberty, must, in the absence of other constitutional restriction, be left, as the federal Supreme Court has declared, to the gradual processes of judicial inclusion and exclusion, as the cases presented for decision require.”

The earlier decisions were to the effect that the only question for judicial consideration was whether a condition for legislation existed, if it did the matter was entirely within the discretion of the legislature. A resort to the polls was the only road to relief from abuse or mistake. (Munn v. Illinois, 94 U. S., 113.) But the later cases are that the power is subject to express state constitutional limitations and to the inhibition of the fourteenth amendment to the constitution of the United States against any state to deprive any person of life, liberty or property without due process of law and to deny to any person within its jurisdiction the equal protection of the laws, and to the implied limitation that every exercise of the power must he reasonable. Police Powers, Freund, sec. 63; Rideout v. Knox, 148 Mass., 368; Lawton v. Steele, 152 U. S., 133; Plessy v. Ferguson, 163 U. S., 537; Wisconsin M. & P. R. R. Co. v. Jacobson, 179 U. S., 287, and Dobbins v. Los Angeles, 195 U. S., 223.

That the practice of medicine may be regulated by legislation has been decided in every court in which the question has arisen. In the leading case, Dent v. West Virginia, 129 U. S., 114, 122, Mr. Justice Fields says:

“The power of the state to.provide for the general welfare of its people authorizes it to prescribe all such regulations as, in its judgment, will secure, or tend to secure them against the consequences of ignorance and incapacity as well as of deception and fraud. As one means to this end it has been the practice of different states, from time immemorial, to exact in many pursuits a certain degree of skill and learning upon which the community may confidently rely, their possession being generally ascer-. tained upon an examination of parties by competent persons, or inferred from a certificate to them in the form of a diploma or license from an institution established for instruction on the subjects, scientific and otherwise, with which such pursuits have to deah The nature and extent of the qualifications required must depend primarily upon the judgment of the state as to their necessity. If they are appropriate to the calling or profession, and attainable by reasonable study or application, no objection to their validity can be raised because of their stringency or difficulty. It is only when they have no relation to such calling or profession, or are unattainable by such reasonable study and application, that they can operate to deprive one of his right to pursue a lawful vocation.

“Few professions require more careful preparation by one who seeks to enter it than that of medicine. It has to deal with all those subtle and mysterious influences upon which health and life depend,, and requires not only a knowledge of the properties1 of vegetable and mineral substances, but of the' human body in all its complicated parts, and their relation to each other, as well as their influence upon the mind. The physician must be able to detect readily the presence of disease and prescribe appropriate remedies for its removal. Every one may have occasion to consult him, but comparatively few can judge of the qualifications of learning and skill which he possesses. Reliance must be placed upon the assurance given by his license, issued by an authority competent to judge in that respect, that he possesses the requisite qualifications. Due consideration, therefore, for the protection of society may well induce the state to exclude from practice those who have not such a license, or who are found upon examination not to be fully qualified.”

And again: “We perceive nothing in the statute which indicates an intention of the legislature to deprive one of any of his rights. No one has a right to practice medicine without having the necessary qualifications of learning and skill; and the statute only requires that whoever assumes, by offering to' the community his services as a physician, that he possesses such learning and skill, shall present evidence of it by a certificate or license from a body designated by tbe state as competent to judge of his qualifications. ’ ’

But it is said tbe offering of prayer to God for tbe recovery of tbe sick is not against public bealtb or public morals or public safety or public welfare. Admitted. But is that a correct statement of tbe case? If tbe defendant prayed for the recovery of Hebl that was tbe treatment be gave him for tbe cure of bis rheumatism and for which Hebl paid him. He was practicing healing or curing disease. To assume that legislation may be directed only against tbe administering of drugs or tbe use of tbe knife is to take a too narrow view. Tbe subject of tbe legislation is not medicine and surgery. It is tbe public bealtb or tbe practice of healing. Tbe state might make it an offense, as has been done in New York (People v. Pierson, 176 N. Y., 201), for any one to omit to furnish medical attendance to those dependent upon him, and at tbe same time leave him at liberty to die in any maimer be may choose. But this is not all. While tbe state may not deem it wise to go to tbe extent of requiring tbe individual to avail himself of tbe services of a physician, yet it may not wish to hasten bis death and so to transfer to itself tbe burden of supporting those dependent upon him by making it possible for him to employ an empiric. Again where there is an infectious or contagious disease tbe public welfare may be vitally affected by a failure promptly to recognize it, and so tbe state is interested in permitting to practice tbe art of healing only those possessing recognized qualifications. So that, regarding disease rather than tbe treatment of it as tbe subject of tbe legislation, it is not necessary that tbe statute be preventive of particular practices, but it may make tbe right to undertake the treatment of disease dependent upon the possession of reasonable qualifications.

It is next contended “that Christian Science is a recognized system or school of healing, and that the statute is unconstitutional, on the ground that it discriminates against Christian Science, or in favor of certain schools of medicine; that different requirements are made of those who use drugs or medicines, of surgeons, and of osteopaths who use no medicines or drugs, but that the Christian Scientist who uses nothing must take the same examination as the regular practitioner, in other words, must understand the use of drugs and medicines, none of which, according to his system, does he ever use. That under the statute the osteopath is given a certificate to practice the healing art according to his system of treatment, without passing an examination before the state board in the subjects of pathology, chemistry and therapeutics, the principles and practice of medicine and surgery. That Christian Science entirely excludes drugs and all material methods of treatment, and relies solely upon prayer as a means for the relief or cure of the sick. Upon what possible theory of justice and equality can the Christian Scientist be required to pass an examination in a half dozen different subjects, which are not required of the osteopath, when these subjects have no relation to the practice of Christian Science and are even further removed from that method of the healing art than they are from the practice of osteopathy? Neither the law nor the rules of the board of medical registration and examination contain any provisions for ascertaining, the attainments of the Christian Scientist who might apply for a certificate to practice his system of healing. The record shows that there is no member of the board qualified to examine a Christian Scientist and no committee or other means for examination has been provided. ”

If we are correct in the conclusion that disease, and not the method of its treatment, is the subject of the legislation, then it is putting the cart before the horse to say that every school of healing must be recognized. That the legislature, in its wisdom, might prescribe a uniform examination, we do not doubt, and that it may recognize one school without recognizing all, is also true, if the recognition be in the exercise of proper classification and for the public welfare, and not with a view to create a monopoly in the schools recognized or a discrimination against other schools. Parles v. The State, 159 Ind., 211; The State ex rel. Kellog v. Currens et al., 111 Wis., 431; Scholle v. State, 90 Md., 729.

The act under consideration in The State, of Ohio v. Gravett, supra, was held void as discriminating against osteopaths because in order to obtain a certificate to practice, limited so that they might not prescribe drugs or perform surgery, they were required to hold diplomas from schools requiring a longer period of study than was required of those for unlimited certificates. The present act, or sections 4403c (94 O. L., 198) and 4403f (95 O. L., 212) make no such discrimination. It provides that no person shall practice medicine and surgery or midwifery without first complying with the requirements of the act. Then it exempts persons entitled to practice at the time the act is to take effect, prescribes what evidence of general learning the applicant shall present as a condition to his being admitted to the examination, and then provides that each applicant shall be examined in certain specified subjects and that he shall be examined in the materia medica and therapeutics and the principles and practice of medicine, of the school of medicine in which he desires to practice, by the member or members of the board representing such school, and if he passes an examination, satisfactory to the board, it shall upon payment of the prescribed fee issue to him a certificate, which when left with the probate judge for record shall be conclusive evidence that its holder is entitled to practice medicine or surgery in this state. It further provides: ‘£ That nothing in this act shall be construed to prohibit services in' a case of emergency and the domestic administration of family remedies; and this act shall not apply to any commissioned medical officer of the United States army, navy or marine hospital service, in the discharge of his professional duties, nor to any legally qualified dentist when engaged exclusively in the practice of dentistry, ’ ’ nor to any physician or surgeon who is a legal practitioner in another state, nor to any Osteopath who shall pass an examination in certain subjects, and then provides for the appointment of a committee to examine applicants to practice osteopathy and prescribes the qualifications for admission. We fail to find anything in the act that discriminates against Christian Science. It does not provide, for a special examination and limited certificate for the Christian Science practitioner, but he may obtain a certificate to practice medicine upon the same conditions as any other person, and there is nothing in the act requiring him to use the knowledge after he acquires it.

In response to an inquiry from the bench as to what, respecting the theory of medicine, a Christian Scientist could be examined, counsel suggested that he might be examined as to his ability to pray. But silent treatment is recommended as likely to be more efficacious.

To admit that a practitioner may determine what treatment he will give for the cure of disease and that the state may examine him only respecting such treatment would be to defeat the purpose of the statute and to make effective legislation of this character impossible.

If the recent statute is too comprehensive the remedy is with the legislature.

The conclusion reached is supported by State of Nebraska v. Buswell, 40 Neb., 158, and the following recent decisions throw more or less light upon such legislation. The People v. Blue Mountain Joe, 129 Ill., 370; Williams v. The People, 121 Ill., 84; The People v. Gordon, 194 Ill., 560; Bragg v. The State, 134 Ala., 165; The State of Iowa v. Bair, 112 Ia., 466; The State of Kansas v. Wilcox, 66 Kan., 711; State of Maine v. Bohemier, 96 Me., 257; People v. Reets, 127 Mich., 87; State v. Biggs, 133 N. C., 729; 98 Am. St., 731, monographic note; State v. Heath, 101 N. W. Rep., 429.

The exceptions are sustained.

Shauck, Price and Spear, JJ., concur.


source: Caselaw Access Project

author: Crew, J.

license: Public Domain

text:
    Orlopp v. Schueller, Admr., de Bonis non.

      Property held by an executor or administrator of an estate— Cannot be attached or garnisheed, when — Section 55S1, Revised Statutes.

    1. Property or money held by the executor or administrator of an estate in his representative capacity, cannot be reached by attachment or garnishee process in an action against the heir or legatee before an order of distribution has been made.
    2. The provisions of section 5531, Revised Statutes, neither apply to nor authorize the service of process of garnishment on an executor or administrator.
    (No. 8722
    Decided February 28, 1905.)
    Error to the Circuit Court of Franklin county.
    On the twenty-seventh day of December, 1901, Odo Orlopp died testate, leaving an estate, consisting entirely of personal property, of the amount and value of about $3,600. By his last will and testament he made disposition of his property as follows: .
    “ 1. I will and direct that my funeral charges and the expense of administering on my estate be paid. .

      “2. I give and bequeath to my niece, Lucy Orlopp, of Atchison, in the state of Kansas, two thousand dollars.
    “3. I give and bequeath to my brother, Oscar Orlopp, of Atchison, in the state of Kansas, the balance of my property.”
    This will was admitted to probate on January 7, 1902, and thereupon Charles W. Haldy was duly appointed and qualified as administrator with the will annexed of the estate of said' decedent.
    On the eighth day of January, 1902, the defendant in error commenced an action in the court of common pleas of Franklin county, Ohio, against the plaintiff in error, Oscar Orlopp, to recover from him the sum of $500 with interest, on a certain paper writing designated in plaintiff’s petition as a promissory note. Plaintiff’s petition among other averments contained the following: “Plaintiff further says that under and hy virtue of the last will and testament of Odo Orlopp, recently deceased, and late of Franklin county, Ohio, the said defendant, Oscar Orlopp, was named as legatee under said will, and that the estate of said Odo Orlopp is solvent, and that the property bequeathed to said defendant under said will of Odo Orlopp is within the county of Franklin and state of Ohio.”
    At the time of the commencement of his action the defendant in error filed in the office of the clerk of the court of common pleas of said Franklin county the following affidavit:

      “State of Ohio, Franldin County, ss.:

    “Fred W. Schueller, administrator de bonis non, with the will annexed of the estate of Daniel Deiss, deceased, plaintiff herein, makes oath and says that he has commenced an action in the court of common pleas of Franklin county, Ohio, against the said Oscar Orlopp, defendant, upon a promissory note executed hy said defendant to this, plaintiff’s decedent for the sum of five hundred dollars with interest from the year 1875; and said affiant further makes oath and says that said claim is just, and that said plaintiff ought to recover thereon the sum of five hundred dollars with interest from the year 1875. He also makes oath that said defendant is a nonresident of the county of Franklin and of the state of Ohio.

      “And further affiant makes oath and says that he has good reason to and does verily believe that Charles W. Haldy, administrator with the will annexed of the estate of Odo Orlopp, deceased, of and within said county of Franklin and state of Ohio, has property of the said defendant in his possession liable to be attached in this action, to-wit, money and other chattel property, and said affiant says that the facts sel; forth in the foregoing affidavit are true.
    “Fred W. Schueller.
    “Sworn to before me and subscribed in my presence by the said Fred W. Schueller this eighth day of January, A. D. 1902.
    “ [Seal] Frank F. Hoffman,

      “Notary Public, Franklin County, Ohio.”

    Upon the filing of this affidavit an order of attachment was made by the clerk of the court of common pleas, and notice of garnishment was issued to the said Charles W. Haldy, as administrator with the will annexed of the estate of Odo Orlopp, deceased, which order of attachment and notice of garnishment were personally served upon said Charles W. Haldy on the ninth day of January, 1902.
    On March 22,1902, Charles W. Haldy, administrator, answered as garnishee, disclosing by his answer that he then had in his possession $3,000 in four per cent United States government bonds and about $1,550 in money, which he held as administrator to be paid out and distributed agreeably to the provisions of the will of said Odo Orlopp. That the debts of said Odo Orlopp so far as then known and the costs of administration up to that time, had been fully paid, and that upon the final settlement and distribution of said estate Oscar Orlopp would probably be entitled to receive as residuary legatee under said will, about tbe sum of $1,550.
    On the fourteenth day of March, 1902, Oscar Orlopp, defendant in said cause, filed his motion therein and expressly disclaiming any purpose or intention to enter his appearance in said cause and alleging that he appeared for the purposes of said motion only, moved the court to discharge said attachment and to release the property claimed to have been garnisheed in said action, alleging among other grounds therefor the following causes:
    “4. That the property or the interest sought to be attached is not subject to or liable to attachment or garnishment, as the same is a contingent legacy in the possession and control of Charles W. Haldy, as administrator with the will annexed of the estate of Odo Orlopp, deceased, and not in said Charles W. Haldy’s possession and control as an individual or as a debtor of defendant.
    “5. That no order of distribution has been made by the probate cojirt appointing the said Charles W. Haldy administrator with the will annexed of the estate of Odo Orlopp, deceased, nor has the debts of said estate been ascertained or paid; the said Charles W. Haldy having been appointed by the probate court of Franklin county, Ohio, administrator as aforesaid on the eighth day of January, 1902.”
    This motion, which was supported by affidavits, was overruled by the court of common pleas, and upon petition in error to the circuit court this order and judgment of the common pleas overruling said motion was affirmed. Plaintiff in error now asks, that this judgment of affirmance be reversed and that said attachment and. garnishment be discharged.

      Mr. A. H. Johnson and Mr. Henry Elliston, attorneys for plaintiff in error.
    The property or interest sought to be attached was not subject or liable to attachment or garnishment, being a contingent residuary legacy in the hands of the garnishee as administrator, and no order of distribution having been made.
    No property of the plaintiff in error was seized by the sheriff under the order of attachment, but Charles W. Haldy as administrator with the will annexed of the estate of Odo Orlopp, deceased, was served two days after he was appointed such administrator, with a notice of garnishment, thereby attempting to reach and hold a certain residuary legacy of the plaintiff in error under the will of said Odo Orlopp, deceased.
    The procedure in attachment and garnishment is a statutory remedy and must be confined to the limits assigned by the legislature. 4 Cyc., 396 (2-1); Buckeye Pipe Line Co. v. Fee, 62 Ohio St., 543; Humphrey v. Wood, Wright, 566; Colwell v. Bank, 2 Ohio, 229; Taylor v. McDonald, 4 Ohio, 149.
    In the absence of special statutes, it is an undisputed rule of law that an executor or administrator cannot, in his official capacity, he held liable as a garnishee, before a final order of distribution is made, at a suit of a creditor of the deceased, or of one who was, or is, a legatee or distributee or other creditor of the estate. Shinn on Attachment and Garnishment, secs. 510a and 532b; 4 Cyc., 409 (4-e); 14 Am. & Eng. Ency. Law (2 ed.), 917 (10), 828 (11); Woemer on Administration (2 ed.), *390, sec. 177; Nelson v. Stull et al., 68 Pac. Rep., 617; Threshing Machine Co. v. Miracle, etc., 54 Wis., 295; Weeks et

      al. v. Gas Co., 22 Tex. App., 245; Bentley v. Strathers, 8 Dec. Re., 44; 5 W. L. B., 288; Picquet v. Swan, 4 Mass., 443.
    The reasons for this rule of law are:

      (a) The attaching creditor can acquire no greater rights than the defendant; he stands in the same position as the defendant did. Shinn on Attachment, sec. 516a; 4 Cyc., 632 (b-1-a); 14 Am. & Eng. Ency. Law (2 ed.), 765 (11 and 833, 12-1); Drake on Attachment, sec. 452; Waple on Attachment, sec. 357; Buckeye Pipe Line Co. v. Fee, 62 Ohio St., 543; Smyth v. Anderson, 31 Ohio St., 144; Straus v. Wessel, 30 Ohio St., 211, 213.
    In the case at bar the plaintiff in error at the time the order of garnishment was served had no claim against the administrator, the garnishee. The court could not order, without qualification, the payment of any part of the legacy to plaintiff in error’s creditor. The administrator was only an agent of the law to ádminister the estate in accordance therewith, under the control of the probate court, and to pay to the legatee, if there was anything left after paying the debts and the general legacy under the will. The debts and general legacy to Lucy Orlopp of $2,000 may consume the estate and leave no residue for the plaintiff in error. Besides the residuary legacy did not become due or payable until the estate was settled and an order of distribution made by the probate court. This was necessary to determine whether there was anything to be paid plaintiff in error as residuary legatee under the will of Odo Orlopp, deceased. Rockell on Probate Practice,, secs. 676, 682, 694; Webster v. Bible Society, 50 Ohm St., 1-15; Gray, Exr., et al. v. Case School of Applied

      Science, 62 Ohio St., 1; secs. 6075, 6195, 6128, 6211, Rev. Stat.; Dawson v. Dawson, 25 Ohio St., 443.

      (b) The common pleas conrt will not take away from the prohate conrt money or property over which the prohate court had acquired jurisdiction. The probate court had acquired possession of the money and property, sought to be attached in this proceeding, under the provisions for administering the estate of deceased persons, and had jurisdiction over the garnishee and his administration of said property. To allow the property to be taken by the common pleas court in attachment would take away the jurisdiction of the probate court to settle the estate. This the court will not permit. Byers: v. McAuley and McAuley v. McAuley, 149 U. S., 608; Overturf v. Gerlach, 62 Ohio St., 127; Shewell v. Keen, 2 Whar. (Pa.), 339.

      (c) It would embarrass and interfere with executors and administrators if, in addition to the ordinary duties which the law imposes, they were drawn inte complications created by the interposi-. tion of creditors and legatees. Weeks et al. v. Gas Co., 22 Tex. App., 245; 14 Am. & Eng. Ency. Law (2 ed.), 817.
    Is there a special statute authorizing executors and administrators to he held as garnishee before order of distribution?
    Sections 5530 and 5538 are in substance the same as the statutes of the various- states that have held that executors and administrators are not subject to attachment or garnishment. Kansas General Statute (1901), secs. 4635 and 4637; Wisconsin Statutes, sec. 2752, etc.; Threshing Machine Co. v.
      Miracle, Exr., etc., 54 Wis., 295; 14 Am. & Eng. Ency. Law (2 ed.), 828 (11) and 830 (c).
    These sections do not give the right to garnishee the executor or administrator as appears from the authorities heretofore cited.
    The circuit court held that under section 5531 an undetermined legacy in the hands of an administrator or executor might be garnisheed. The same holding was made in the case of Sampsell v. Sampsell, 9 Circ. Dec., 510; 17 C. C. R., 455.
    These decisions were based on a construction of section 5531. The circuit courts in construing section 5531 held that executors and administrators were included under the term “other officer” in this section. We contend that it was not the object of the legislature to include executors and administrators in the words “other officer” in this section, and it cannot be so construed. Executors and administrators must be expressly named in the statute before they can be garnished, and the statute cannot be made to apply to them in proceedings of attachment and garnishment by implication. 4 Cyc., 409 (e-1); 14 Am. & Eng. Ency. Law (2 ed.), 817 (10), 828 (11); Woerner on Administration (2 ed.), *390, sec. 177; Conway v. Armington, 11 R. I., 116.
    As executors and administrators are not within the ordinary meaning of the words “or other officer,” we must therefore determine whether the legislature intended to include them within these words, as used in section 5531, by the established rule of statutory interpretation.
    Proceeding in attachment is a summary and extraordinary remedy in derogation of the common law and owes its existence entirely to statutory enactment. 4 Cyc., 396 (ll-a-4).
    The statutory remedy of attachment being in derogation of the common law must be construed strictly in favor of those against whom the proceeding is employed and must be closely confined within the limits assigned by the legislature and cannot be extended by implication beyond the terms. of the statute creating it. Felix v. Griffiths, 56 Ohio St., 39; Hoyman v. Beaverstock et at., 4 Circ. Dec., 491; 8 C. C. R., 473; Taylor v. McDonald, 4 Ohio, 149; 26 Am. & Eng. Ency. Law (2 ed.), 662 (4-a); 4 Cyc., 400 (4).
    In ease the intention is not clear, the question of public policy should have weight. Hurd, v. Robinson, 11 Ohio St., 232.
    Prior to the passage of this statute public officers were not subject to the process of attachment. Dawson v. Holcomb, 1 Ohio, 275.
    To remedy this service of garnishment upon sheriffs, etc., was embodied in section 200 of the code of civil procedure, by an act to “amend section 200 of the code passed March 11, 1853.” 53 O. L., 23.
    This remained as part of the provision of section 200 of the code of civil procedure until May 14, 1878, when the “Act to revise and consolidate the laws relating to civil procedure, etc.,” was passed. 75 O. L., 714. This act subdivided section 200 of the code into sections 10, 11, 12, 13, and placed them under chapter 2 (attachment), division 6, subdivision 3 of that act. These sections of the act of May 14, 1878, were carried into the Revised Statutes oOhio of 1880, and enacted into sections 5530, 5531, 5532, 5533. Section 11 of the act of May 14, 1878, marginal heading is, “Effect of service of garnishment upon public officers. ’ ’ The.title to section 5531 of the Revised Statutes is, “Effect of service of process of garnishment upon public officers.” It therefore would seem that the construction placed upon this section by the legislature and the annotators of our Revised Statutes, was that it applies to public officers only.
    The term “other officer,” as used in section 5531 should be construed in reference to the rule “ ejusdem generis.” That is the meaning of the words “other officer” must be limited and determined from, the specific words of a like nature which they follow, and are presumed to embrace only such officers as are like or similar to those designated by the specific words. Sutherland on Statutory Construction, secs. 268-273; 26 Am. & Eng. Ency. Law, 609; 17 Am. & Eng. Ency. Law, 6; State v. Liffring, 61 Ohio St., 39; Rutherford v. Railway Co., 35 Ohio St., 559; Lane v. State, 39 Ohio St., 312.
    Executors and administrators are not' like or similar to any of the officers specifically named in section 5531 in any respect. The officers named therein are all public officers with the probable exception of master commissioner; and it would seem that under the statutes a master commissioner is a public officer.
    Section 5219, Revised Statutes, creates the office of master commissioner, the term thereof, and provides how it shall be filled, and gives him power to administer oath required in the discharge of his official duties. By section 5223 he has the same powers as the court to summons and enforce the attendance. of witnesses and grant adjournments. By sections 5399 and 5401, he may sell real estate, make deeds therefor, the same as sheriffs.
    The office of master commissioner is then a right, authority and duty created and confirmed by law, by which an individual is invested with some portion of the sovereign functions of the government to be exercised by him for the benefit of the public. Mechem on Public Office and Officers, sec. 1; State ex rel. v. Brennan, 49 Ohio St., 33.
    The probate court does not appoint executors and administrators, but is required to issue letters testamentary or letters of administration of the estate to certain designated persons. Sections 5994, 5995-6005, Rev. Stat.
    His conduct in administering the.estate, to some-extent, is subject to the orders of the probate court,, and the court under its general jurisdiction, may direct his conduct and require him to file inventories'' and settle his account, but he is not an officer of the-court in the same sense as a receiver. He is not subject to the order of the court, but represents the-deceased, performing his contracts, taking into his possession the property of the estate and administering it as the law directs, under the control of the probate court, but not as the probate court directs. In re Estate of Seymour, 4 Dec., 450; 3 N. P., 81.

      Messrs. Gumble & Gumble, attorneys for defendant in error.
    Defendant in error (plaintiff in the common pleas court) sought to hold intact whatever interest, money or property was in the hands of Charles W. Haldy,. administrator with the will annexed of the estate of Odo Orlopp, deceased, that was due and payable, or that might become due and payable to plaintiff in error (defendant in the common pleas court).
    Counsel for plaintiff in error lay down as a proposition of law that attaching creditors can acquire no greater rights than the defendant. . This is undoubtedly true. We .do not seek to obtain any greater rights in the funds in the hands of said administrator than has the said Oscar Orlopp, but only seek to hold intact pending the determination of the merits alleged in the petition the interest that the said Oscar Orlopp has in said fund. Of course, if Oscar Orlopp is not entitled to any of the funds in the hands of Haldy, administrator, then surely we cannot obtain anything from this fund; but if Oscar Orlopp has an interest in said fund such interest may be attached.
    Suppose A. was indebted to B. upon a promissory note due January 1, 1906. Suppose, before the maturity of the note C., a creditor of B., began an .action against B. and made A. the garnishee under the attachment statutes. Remember, if your honors please, that B. could not enforce the payment of the note from A. until January 1, 1906, and yet C., a creditor of B., could compel A. to hold the money due on said note and also compel him to pay C.’s claim when the note matured. Secor v. Witter, 39 Ohio St., 218; Norton v. Norton, 43 Ohio St., 509.
    In the above hypothetical case a creditor has a certain right in the property of a third person before maturity which his debtor could not enforce before maturity. We are not seeking to compel the administrator to pay us the money now in his hands before the administrator files his account and distribution ordered, but we are seeking to hold intact

      any interest that Oscar Orlopp may have in the hands of Haldy, administrator. Bailey et al. v. Childs et al., 46 Ohio St., 557.
    Plaintiff in error complains that by this attachment proceeding brought in the common pleas court, it deprives the probate court of its jurisdictional powers and hence there is an interference by the court of common pleas with' the administration of the estate in the probate court.
    We contend that such is not the case and that the authorities cited by counsel for plaintiff in error do* not fortify him in his contention.
    This case at bar does not in any wise embarrass: or delay the closing up of the estate of Odo Orlopp, deceased. The administrator can safely file his final account and close up the estate so far as the probate court is concerned whenever he pleases, and if the estate is indebted to Oscar Orlopp we are entitled to have it paid to defendant in error, provided, of course, that we can establish upon the trial of the case in the common pleas court that the facts set out in the petition are true.
    By this proceeding the administrator simply holds the. money that would be payable to Oscar Orlopp until the determination in the court of common pleas, as to who is entitled to the same. No one is delayed. No one is embarrassed, except Oscar Orlopp, who would be compelled to pay what he owes, providing, of course, that we can prove the allegations of the petition.
    As to whether or not the court of common pleas had any jurisdiction to test the right of who is entitled to the funds in the hands of an administrator,. we respectfully cite Bank of Cadiz v. Beebe, 62 Ohio St., 41; Pitkin v. Burnham & Co., 55 L. R. A., 280.
    There are many rights that must be worked out in the court of common pleas, notwithstanding the fact that the probate court has some jurisdiction of the subject-matter, but the court can readily see that in a case such as is under consideration here that if we were to wait in instituting attachment proceedings until the probate court ordered the administrator to make distribution of the funds in his hands, we might be prevented from obtaining any legal relief; and while it is no part of the record in this case and while we may be going beyond the proprieties of making a statement in this brief that is not in the record, yet we are certain that Oscar Orlopp has already indicated that after the attachment in this case was begun he assigned whatever interest he may have in said estate to a third person, so that if the attachment herein should not be sustained, then we would have no remedy, because the third person would claim the fund under the assignment of Oscar Orlopp, and that third person is no other than his own daughter. So that we insist that the only court that could possibly give us relief or a remedy for the protection of our rights is the court of common pleas. .
    It is true that before the enactment of statutes and in some states by express statutes an administrator could not and cannot now be garnisheed, but the law in Ohio is different.
    Your honors will observe that sections 5530 and 5531 are intended to reach money, property, or any interest in any fund that the defendant may be entitled to.

      An administrator is an officer of the court and comes within the provisions of section 5531.
    Does the plaintiff in error or his counsel claim that he has not an interest (whether present or contingent) in the property sought to be attached? Surely not, because if he had no interest he would not be here contesting our right to subject it to the payment of our claim.
    Section 5538 discloses that the common law rule is abrogated in Ohio, because it recites in substance that when once a person or officer is garnisheed all property in his hands is bound from the time of the • service of process.
    All of the law cited by our opponents applies to cases governed either by common law or by statutes wholly dissimilar to the statutes of Ohio.
    In our state the identical question raised in the case at bar was raised in the case of Sampsell v. Sampsell, 9 Circ. Dec., 510; 17 C. C. R., 455. In Indiana the identical question has also been decided. Stratton et al. v. Ham et al., 8 Ind., 84.
    The answer of the garnishee in the case at bar is exactly like the one made in the Sampsell case. In fact, the case at bar and that in 9 Circ. Dec., 510 (17 C. C. R., 455), are so similar that a substitution of our parties for those in that case is all that is necessary. to make them alike.
   Crew, J.

In the present case the precise question presented by the record may be stated thus: Can an administrator with the will annexed, before an order of distribution is made of the estate he represents, be charged as garnishee in respect to property er funds in his hands that may ultimately belong to one named in said -will as residuary legatee? The clear weight of authority undoubtedly is that executors and administrators cannot be thus charged. Such has been the almost uniform holding of the courts of last resort except in those jurisdictions where the rule has been changed by express statutory enactment. And this rule has thus been generally so held and applied by the courts, whether it was sought to charge the executor or administrator on account of a debt owing from the estate to the defendant in the attachment suit, or on account of the latter’s being entitled to a distributive share of the estate as heir or legatee. 14 Am. & Eng. Ency. Law, 829. Indeed, so far as our examination of the authorities has enabled us to discover, the only state in which the garnishment of an executor or administrator is allowed before final settlement or order of distribution, in the absence of express statutory authority therefor, is the state of Indiana. It was held by the supreme court of that state in 1856, in the case of Stratton v. Ham, 8 Ind., 84, that the unascertained distributive shares of a decedent’s estate in the hands of the executor, are effects liable to the process of garnishment. This case has been much criticised and its doctrine almost universally repudiated in other jurisdictions. It was said of it by Lyon, J., in Machine Co. v. Miracle, Exr., etc., 54 Wis., 299: “This is an exceptional case, and in a learned and elaborate note appended to it numerous cases are cited and the unsoundness of the decision demonstrated on principle and by authority. ’ ’' It would seem to us but reasonable, therefore, that a rule so universally recognized by text writers and so firmly established by judicial decisions as is the rule, that an executor or administrator holding in his representative capacity cannot in the absence of express statutory authorization, in advance of an order of distribution, be held or charged as garnishee in respect to property or funds in his hands belonging to an heir or legatee, should not now, in the absence of statutory requirement, or other cogent and compelling reason, be disregarded or disturbed by us.

That the general rulé of law is- as above stated, counsel for defendant in error admit. But they contend that in Ohio the right is given by statute to so charge an executor or administrator, and that the existence of such right is shown and recognized by section 5531, Eevised Statutes, which section is as follows:

‘ ‘ Section 5531. The service of process of garnishment upon the sheriff, coroner, clerk, constable, master commissioner, marshal of a municipal corporation, or other officer having in his possession any money, claim or other property of the defendant, or in which the defendant has an interest, shall bind the same from the time of such service, and shall be a legal excuse to such officers, to the extent of the demand of the plaintiff, for not paying such money or delivering such claim or property to the defendant, as by law or the terms of the process in his> hands he would otherwise be bound to do.”

The circuit court in its opinion in the present case says: “Were it not for the section above referred to (section 5531) we are not prepared to say that a legacy could be attached especially if the amount was unascertained.” But they say: “We are of .the opinion that under section 5531 an undetermined legacy either in the hands of an administrator or 'executor may he garnisheed; that administrators and executors are included under the designation of other officer in the above section.” Upon this interpretation of this statute the circuit court predicated its judgment. It will be observed that this statute does not mention executors and administrators nor does it in terms provide or prescribe who may be served with garnishee process, it undertakes only as stated in its title, to define the effect of service of the process of garnishment upon public officers. Therefore to give to this section the construction and interpretation placed upon it by the circuit court is, we think, to thereby unduly extend its scope and give to it a potential effect neither warranted by its purpose and provisions nor intended by the legislature. Whether executors and administrators can in any proper sense be regarded as officers may well be doubted. Obviously they are not public officers as. are all those who are specifically named in section 5531, and the obligations and duties devolving upon them in their representative capacity are wholly dissimilar and unlike the duties to be performed by the officers so named and designated. But if it be conceded that executors and administrators fall within the designation “other officer” as found in said statute, it by no means follows that in an action against, the heir or legatee, the executor or administrator may, in advance of an order of distribution and while the estate remains unsettled, be held and charged as garnishee in respect to property in his hands unadministered. So long as the estate remains unsettled, or at least until order of distribution is made, the property'held by an executor or administrator as such, is in the custody of the law and does not vest in, or become the property of the heir or legatee. Until such time the executor or administrator is not the debtor of the heir or legatee, nor is it-certain that he is the custodian of any property belonging to him. In the due course of administration the debts, costs of administering the trust, and specific legacies, are to be first paid and until final settlement or order of distribution, there is not such certainty of fact that the executor or administrator holds or has “in his possession any money claim or property belonging to the heir or legatee, or in which he has an interest” as would warrant or justify holding the executor or administrator liable as garnishee even under an answer by him showing that there would probably be something due the heir or legatee upon the final settlement of the estate. The heir or legatee has no present right to, or interest in, the property and whether there will be any' amount due him on final settlement and order of distribution is matter of contingency.

When we consider, then, that to give section 5531 the force and effect claimed for it by counsel for defendant in error and allowed to it by the circuit-court, is to abrogate a well and firmly established rule of law, presumably known to the legislature at the time of the enactment of said section, we think we may well conclude that if the legislature had intended thereby to provide for and authorize the attachment of, and to allow garnishee process to issue against, executors and administrators, it would have named them in the statute and would not have left its purpose, and intention in that behalf to implication, or to be discovered only through the medium of judicial interpretation. The fact that the legislature did not specifically name executors and administrators in section 5531 or in apt language designate or describe them, clearly shows, we think, an absence of intention on its part to include them in its provisions.

The judgment of the circuit court is reversed and garnishee disclvarged.

Davis, C. J., Shatjck and Spear, JJ., concur.


author: Price, J.

text:
    The State of Ohio ex rel. Sheets, Attorney General, v. The Toledo Home Telephone Company.

      Proceeding in probate court by telephone company — XJnder section SJ¡61, Revised Statutes — Authorizing court to direct mode of construction of telephone lines in streets, etc. — Court has no jurisdiction to prescribe rates to be charged citizens for use of telephones — Action in quo warranto to oust telephone company from streets — -Telephone company not estopped from denying jurisdiction of the court, when.

    1. In a proceeding instituted in the probate court by a telephone company, under the provisions of section 3461, Revised Statutes, which authorize and require the court to direct in what mode such telephone company may construct its lines along the streets, alleys and other public ways of a city or village, the court has no jurisdiction, as a part of its order, to prescribe or determine the rates to be charged citizens of the municipality for the .use of the telephones, and so much of the order as undertakes to determine such rates is void for want of jurisdiction.
    2. In an action in quo warranto to oust the telephone company from the use of the streets, alleys and'other public ways in the mode directed by the probate court, on the ground that such company has established rates for the use of its telephones exceeding those prescribed by the court, on the application of the company, the latter is not estopped from questioning and denying the jurisdiction of that court to prescribe the former or any rates.
    (No. 8713
    Decided February 28, 1905.)
    Quo "Warranto.
    On leave granted for that purpose, the attorney general of the state brought this suit in quo warranto, challenging the right of The Toledo Home Telephone Company to occupy the streets, alleys, and other public ways of the city of Toledo with its poles, wires, etc., for the operation of a telephone system. The relator charges that the defendant company has abused its corporate -powers and authority, and has misused its franchises and privileges, and has usurped franchises, rights and privileges, not conferred upon it by law. The petition is quite voluminous, and many of its averments are omitted as not being material to the present controversy. It is sufficient to say in this statement, that on or about the twenty-third day of February, 1901, the telephone company presented to the council of the city of Toledo, for its adoption, an orr dinanee prescribing the mode of the use of the streets, alleys and other public ways of the city in the construction and operation of a telephone system which required the erection of poles, stringing of wires, etc. This ordinance was not passed by the council, and after waiting its action for considerable time without results, application in writing was made by the company to the probate court of Lucas county, alleging in substance that the city and the telephone company could not agree on the mode of using the streets, alleys and other public ways, for the construction and operation of the telephone poles, wires, etc., and the probate court was asked to determine the mode of such use, under the provisions of the statute on that subject. This written application was styled The Toledo Home Telephone Company v. The City of Toledo, and it contains an outline of what was desired and included the following as the schedule of rates to be charged the patrons of the company within the limits of the city: “Forty-four dollars per year for each business telephone on an individual wire with metallic circuit, within the city limits, subject to a reduction of one dollar per quarter, if paid quarterly in advance. Twenty-six dollars per year for each residence telephone on an individual wire with metallic circuit wherever located within the city limits, subject to a reduction of fifty cents per quarter if paid quarterly in advance. ’ ’
    The probate court, acting on the application, made an order which was spread upon its journal, prescribing the mode and manner in which the streets, alleys, and other public ways should be- used by the poles, wires, etc., of the telephone company in constructing and operating its system of telephones, and also carried into the order the schedule of rates to be charged its patrons above given. In due time the company filed in said probate court its written acceptance of the terms of the order, made the money deposit, and gave the bond required by the order.
    The petition in this case, after reciting the foregoing facts and the proceedings in the probate court, proceeds to allege, that “The Toledo Home Telephone Company, ever since the first day of September, 1903, eontinnonsly * * * offended against the laws of this state, grossly abused and misused its corporate authority, franchises and privileges and rights conferred upon it by law, and has unlawfully assumed and usurped franchises and privileges not granted to it, and has claimed the right to exercise and has exercised franchises, privileges and rights in contravention, and especially in the following particulars, to-wit:
    “First: That said defendant company did, on or about the first day of September, 1903, without any warrant or authority whatsoever, notify its subscribers that from and after said first day of September, 1903, it would charge for the use of its telephones, from new subscribers, the higher rate hereinafter set forth.
    ‘ ‘ Second: That after said first day of September, 1903, as the contracts of old subscribers expired, it announced and insisted that it would require such subscribers to enter into new contracts for the-use of its telephones at such higher rate, to-wit, in the following sums: Fifty-two dollars per year for each business telephone on an individual wire with metallic circuit, wherever located within the city limits, subject to a reduction of one dollar per quarter if paid quarterly in advance. Thirty-two dollars per year for each residence telephone on an individual wire with metallic circuit * * * subject to a reduction of fifty cents per quarter if paid quarterly in advance.
    ‘ ‘ Third: That said defendant # * * has established, charged, demanded and collected such increased rate for the use of its telephones for new subscribers, and from old subscribers whose contracts have expired after Septembér 1, 1903,. at said increased rate * * * and that said company refuses to enter into any new contracts * * # ' at any other rate * *
    The relator demands that the defendant show its right to so increase its rates, and that it be ousted from the continuance of the wrongs and offenses stated.
    The telephone company answered the petition at great length, but did not deny the rates fixed in its application to the probate court, and carried into its order which was accepted by the company. Nor did it deny that it had increased the rates as charged in the petition. But it denies that it has abused or misused its corporate authority, or its franchises, rights and privileges; and denies that it has usurped any franchise, right or privilege not granted to it, but on the contrary has complied with each and all provisions of law applicable to it.
    The answer proceeds to say in substance that when the company filed its application in the probate court and when that court made its order fixing the rates for telephones, it had prepared plans for an exchange of sufficient capacity to accommodate 3,000 subscribers and no more, and which was the extent of patronage then contemplated, and that on that basis it submitted the. rates contained in its application ; that thereafter its subscribers rapidly exceeded that number, requiring an exchange of much larger capacity, entailing large expense for its construction and operation; that its list of subscribers, when this suit was filed, was,about 7,000, and that at the first rates charged the service demanded could not be furnished. It is also alleged that there is a competing company in operation in Toledo without any restriction as to rates, and that if restricted to the rates approved by the probate court, it cannot enlarge its capacity and give the service demanded of it; and that the patrons of the company are satisfied with the increased rates because of the enlarged capacity and improved service.
    The answer finally pleads that the probate court “did not have the right or power to fix the rates which this defendant might charge its patrons, and that to enforce said rates would deprive defendant of its corporate rights and powers without any consideration therefor, and would cripple defendant in the exercise of .its corporate powers, and prevent it from carrying out and performing its duties to its patrons and to the public. ’ ’
    The case is submitted to the court on a general demurrer to the answer.

      Mr. Wade H. Ellis, attorney general; Mr. U. G. Denman and Mr. Chas. K. Friedman, for plaintiff.

      Messrs. King & Tracy; Messrs. Brown, Geddes, Schmettau & Williams; Mr. Thomas H. Tracy and Mr. Clarence Brown, for defendant.
   Price, J.

The petition in this case embraces a document prepared by the defendant, in the form of an ordinance, which it submitted to the council of the city of Toledo for its adoption, which document presented the mode in which the' telephone company might use the streets, alleys, and other public ways of the city in the construction and operation of its telephone system. It also contained a schedule of rates to be charged for the use of telephones in business houses and private residences.

This proposed ordinance was never passed by the council, and the petition alleges in substance that the telephone company availed itself of the provisions of section 3461, Bevised Statutes, and instituted a proceeding in the probate court of Lucas county for the purpose of having that court determine in what mode the telephone lines should be constructed along the streets, alleys and other public ways of the city, and the proceeding in that court is fully set out in the petition here, including as it does the application, the order of the court made thereon, and the written acceptance of the terms and mode prescribed in the order, as filed by the telephone company. We are particularly concerned in that part of the application filed and acted upon in that proceeding which contains a schedule of rates to be charged for the use of telephones in business houses and private residences within the city, being the same schedule contained in the proposed ordinance which the council declined to pass. As the matter of rates for the use of the telephones is the real bone of contention in this case, we need not quote more from the petition, than to restate them as follows: “the rates to be charged by The Toledo Home Telephone Company for the use of its telephones shall not exceed the following schedule, to-wit: Forty-four ($44) dollars per year for each business telephone on an individual wire with metallic circuit wherever located within the city limits, subject to a reduction of one ($1) dollar per quarter if paid quarterly in advance. Twenty-six ($26) dollars per year for each residence telephone on an individual wire with metallic circuit, wherever located within the city limits, subject to a reduction of fifty cents per quarter, if paid quarterly in advance. ’ ’

Certain city offices and public stations were to be furnished telephones free of charge.

These were the rates which the telephone company proposed in its application filed in the probate court, and they were adopted in the order made by that court, prescribing the mode of use of the streets, alleys, and other public ways of the city in the construction and operation of the telephone system. The gravamen of the relator’s complaint is, that regardless of the proceedings in the probate court under which it occupies the streets and other-public ways, and in which proceeding the ábove rates were adopted, the company on or about the first day of September, 1903, gave notice that it would not renew contracts at said rates after their expiration, and that from and after said date would charge new subscribers fifty-two ($52) dollars per year for each business telephone on an individual wire with metallic circuit, subject to same reduction allowed on former rate; and would charge thirty-two ($32) dollars per year for each residence telephone on an individual wire with metallic circuit, subject to same reduction allowed on former schedule; and that existing contracts could be renewed at the increased rate. This was an increase of eight dollars on each business telephone and of six dollars on each residence telephone. As to the same city offices using-phones, no charge would be made. The relator pronounces this increase unlawful, unauthorized, and an abuse of the company’s franchise, privileges and rights, and that such conduct is a usurpation of 'corporate power, franchise and privileges not conferred upon it, and asks that the company he ousted from the exercise of such unwarranted change in its rates.

The position of the respondent is, that while it is true that it suggested the former rates in its application to the probate court and that the court embodied them as part of its order, yet the schedule is not binding as to the renewal of expiring contracts, nor as to new subscribers, because that court was without jurisdiction and authority to fix any rates to be charged for the use of its telephones, and this is the paramount question in the case, for if the proceedings in the probate court, as to the rates amounted to a contract, authorized by law and entered into by competent parties, it should stand notwithstanding the hardships and losses which the answer says will fall upon the company if the contract is enforced. On that ground merely, and which is so fully elaborated in the answer of respondent, a court will not release it from a losing bargain, if such it be.

But if the probate court had no jurisdiction or authority to entertain the subject of rates, or make an order in reference thereto, a different question arises, and to that we now address our attention.

It is well to remember that telegraph and telephone companies do not depend for their franchise in the streets, alleys, etc., of cities and villages upon a grant from the municipal authorities. The legislature has directly invested such companies with the right to use the streets and highways for these purposes.

Section 3454, Revised Statutes, provides: “A magnetic telegraph company heretofore or hereafter created may construct telegraph lines from point to point, along and upon any public road, by the erection of the necessary fixtures, including posts,piers and abutments necessary for the wires; but the same shall not incommode the public use of such road.”

The sections following give additional authority to such companies as to taking possession of property belonging to a person or corporation for the purposes of survey and locating their lines, etc.

Then section 3461, Revised Statutes, provides: “When any lands authorized to be appropriated to the use of a company are subject to the easement of a street, alley, public way, or other public use, within the limits of any city or village, the mode of use shall be such as shall be agreed upon between the municipal authorities of the city or village and the company; and. if they cannot agree, or the municipal authorities unreasonably delay to enter into any agreement, the probate court of the county, in a proceeding instituted for the purpose, shall direct in what mode such telegraph line shall be constructed along such street, alley, or public way, so as not to incommode the public in the use of the same; but nothing in this section shall be so construed as to authorize any municipal corporation to demand or receive any compensation for the use of a street, alley, or public way, beyond what may be necessary to restore the pavement to its former state of usefulness.”

Section 3471 provides: “The provisions of this chapter (chapter 4) shall- apply also to any company organized to construct any line or lines of telephone ; and every such company shall have the same powers and be subject to the same restrictions as are herein prescribed for magnetic telegraph •companies. ’ ’

Taking these sections with others in the same chapter, it seems clear that telephone companies have their grant directly from the state through its general assembly, to occupy the roads, streets, and highways with their lines and fixtures, and that a grant for that purpose from the municipality is not necessary. These statutes were so construed in Zanesville v. Telegraph & Telephone Co., 64 Ohio St., 67. But the mode or manner of so occupying or using the streets, alleys, etc., is of vast importance to the public, and hence the provisions of section 3461, above quoted, regulate the method of its determination when the municipal authorities and the company fail to agree.

Until the decision of Zanesville v. Telegraph & Telephone Co., supra, the constitutional validity of section 3461 was gravely doubted, because it attempts to confer upon one of the courts of the state legislative or administrative authority, and this ■court was not unanimous in holding the section valid. But that decision is now the law upon the subject, and it is our duty to follow it until persuasive reasons appear to demand its overthrow. How■ever, in the case at bar, it is shown that in addition to .the express authority conferred upon the probate ■court by section 3461, supra, to determine the mode in which the streets, etc., may be used and occupied, "that court has undertaken to fix the rates to be -charged for the use of the telephones in business houses and residences within the city. It is true the application of the company filed in that court asked that the rates be fixed as suggested and named in the. application, but that would be slight, if any, authority for the action of the court, if it lacks statutory support.

It is evident that the statute has not undertaken to make rate fixing a part of the powers or duties of the probate court, and to have such power, the statute must expressly confer it. It cannot be implied from the powers expressly conferred, because upon the subject committed to the consideration of the- court, its scope is special and limited. ' That court is not one of general jurisdiction. By section 8 of article 4 of our constitution “The probate court shall have jurisdiction in probate and testamentary matters, the appointment of administrators and guardians, the settlement of the accounts of executors, administrators and guardians, and such jurisdiction in habeas corpus, the issuing of marriage licenses, and for the sale of land by executors, administrators and guardians, and such other jurisdiction, in any county or counties, as may be provided by law.”

It seems, therefore, that while the constitution-invests the probate court with jurisdiction over certain matters and subjects named, its further jurisdiction and the manner of its exercise in all cases, depend on legislative provisions; and as section 3461, supra, is the only authority for the probate court to entertain and determine the controversy between the municipality and the company, its authority is not broader than that expressly granted by that section.

There is a rule to the effect that courts, although not of general jurisdiction, have such authority as is expressly granted by constitution or statute, and such implied powers as are necessary to the exercise of those expressly granted. . But that rule is of no avail here, because the fixing of rates was in no sense necessary in determining the mode in which the telephone company might occupy and use the streets and other public ways, and hence the fixing the rates was not the exercise of implied authority within the above rule.

It is urged for the relator that the proceeding in the probate court amounted to a contract between the company and the city. This claim is founded upon the application which asked the court, among other things, to fix the rates suggested, and the order of the court made therebn in connection with the order prescribing the mode of using the streets, and if such contract resulted from the proceeding, it is an abuse of the franchise, privileges and rights conferred for the company now to break its contract.

Was there a contract made in that proceeding? Who were the parties and were they competent to make such contract? The city did not enter into any contract. The proceeding reached the probate court because the city and the company could not agree, either as to the rates or mode of use of the streets, for both of these were subjects of provision in the ordinance proposed by the company for passage by the council. We are informed by counsel for relator that the probate court acted in behalf of the city, which was made party to the proceeding; but that proposition seems untenable when we reflect, that the court has neither express or implied authority to enter into any such contract, and a statute which would undertake to confer upon that court the right to enter into such contracts, would be open to serious attack.

We are not deciding in this case, that the city, through its municipal authorities, and the telephone company may or may not make a binding contract for rates to be charged for the use of telephones. They may or may not be competent to make such a contract; but we do not have the question in the record; it is not before us and we express no opinion now upon it.

We are quite confident, however, that the probate court was without jurisdiction in the proceeding to make any order as to rates for the use of telephones, and therefore that part of its order is a nullity. If this conclusion is sound, there is no basis for the charge made in the petition upon which we are asked to award an ouster of the respondent.

However, it is replied by the relator, that if the court had no jurisdiction to fix the rates as part of its order, the telephone company is now estopped from raising that question, because it instituted the proceeding in which it asked the court to do so, and also because the court did fix the rates as asked, and afterwards the company filed its written acceptance of all the terms of the order. Such written acceptance was filed and the company went into the occupancy of the streets in the mode prescribed by the court and adhered to the rates for a year or more afterwards, or until about September 1, 1903, and then increased the rates as before stated.

In considering this branch of the case, it must be observed that the company broke no contract it had with its patrons. It distinctly appears in the petition and elsewhere in the record, that the higher rates would be charged on renewals of expiring contracts and apply to all new subscribers. Again, the new schedule, like the first, gives free use of the telephones to certain officers and public offices of the city. With these facts in view does the doctrine of estoppel apply and have the effect declared?

We have already found that the statute did not confer on the probate court jurisdiction to fix a schedule of rates, and it is equally true that consent of parties is ineffectual, where the court has no jurisdiction over the subject-matter submitted to it. This rule applies to this case. The consent of the telephone company could not give jurisdiction over the subject-matter where none otherwise existed. The city, while a nominal party to the proceeding, was incompetent to aid the jurisdiction, although it was represented and may have been satisfied with the order made. This order could not amount to a contract, because a valid contract requires the cooperation of at least two competent parties. The probate court was not and could not be a competent party to such contract. Its functions are judicial, and not legislative or contractual. The city had theretofore declined to come to an agreement with the company both as to rates and mode of using the streets, and in the proceeding under consideration the city did not appear or act as a contracting party. How could the doctrine of estoppel grow from such a situation and from such an unauthorized part of the proceeding?

Counsel for relator urge that estoppel by adjudication applies, and that the decree of the probate court is an entirety and must all stand or all fall.

On the subject of rates, the adjudication is a mere nullity, as before stated, and it has no efficacy in law as an adjudication. Therefore there has been no adjudication of the rates, and the record of that •court upon that subject constitutes no estoppel. And we cannot concur in the proposition, that the balance of the order directing the mode of using the streets must also fail.

The latter duty was properly invoked, and the jurisdiction lawfully exercised, and hence the valid portion of the order can well stand, because that alone was within the jurisdiction of the court. In this respect the order is not an entirety and the void is separable from the valid.

It is said that the company should be bound by the representations as to rates, which it made in its application, for the reason that they were made to induce the order it obtained from the court as to the mode of using the streets. Whether such representations had the effect imputed, we know not; but the probate court had no discretion to exercise as to directing the mode of using the streets and other public ways. The statute imposes a positive duty, and the court could not annex a condition that the directing of a mode of use of the highways should be dependent upon submission to any certain schedule of rates.

Again: To whom were the representations made if not to the court? They were not addressed to the city or its citizens. The city was a party to the proceeding, but not as a contracting party. It was not contracting with the company through the medium of the probate court, or the then pending proceeding, and it had no legal authority to do so. The representations made in the application as to rates were addressed to the court, and we have seen that the court could not be a party to any contract upon that subject.

Therefore no party has been induced to enter into a contract, and no party to a contract has been misled or induced to change position by the representations or conduct of the company. We are unable to sustain the contention of the relator upon the doctrine-of estoppel, for we do not discover the material from which the equitable principle arises.

In conclusion we might say that the people of Toledo maybe sorely disappointed in having to meet the-higher rates for telephone service, and may regard the increase as a breach of faith; but if legislation is lax in not properly safeguarding the interests of the-citizens, then laws should be passed or amended to-meet the situation. The probate court could neither legislate or contract, and this court is without power to do either. No ground for the writ of ouster has-been established.

The demurrer to the answer is overruled and the-petition is dismissed.

Writ of ouster refused and the petition is dismissed.

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