text:
    Mason v. Moore et al.

      Bank, directors authorized to appoint a cashier — To whom is confided the custody of the money, etc. — Directors not absolved from reasonable supervision and ordinary care — But not insurers of the fidelity of the cashier — Directors not held to know all the bank affairs — Bank directors not liable to purchaser of stock, relying upon published reports, when.

    1. To the directors of a bank are committed the general management and supervision of its affairs, but they are authorized to appoint a cashier and confer upon him the usual powers pertaining to such an office, and to him may be properly confided the custody of the money, securities and valuable papers of the bank, and the supervision of its books and accounts; and while this does not absolve the directors from the duty of reasonable supervision and the exercise of that degree of care which is exercised by ordinarily careful and prudent men, acting under similar circumstances, yet they are not insurers of the fidelity of, the cashier and other agents whom they have appointed; and where such directors act in good faith, and with ordinary care as defined above, they are not responsible for losses resulting from the wrongful acts or omissions of such cashier or other agents, unless the loss is a consequence of their own neglect of duty.
    2. The directors of a bank are not held, as a matter of law, to know all its affairs, or what its books and papers would show, and such knowledge cannot be imputed to them for the purpose of charging them with liability.
    3. In an action against' the directors of a national bank by one who purchases some of its stock, relying on the statements ■ contained in its report to the comptroller of the currency as to its resources and liabilities, -which, report was attested by the directors and published as the statute directs, some of which statements are false, whereby the purchaser is damaged, it is not error for the court to charge the jury that: “It must appear by a preponderance of the evidence, that at the time of the attesting and publication of said report, that the directors so attesting this report, or, who assented to and directed the publication of the same, did so knowing said report to be false, or under such circumstances as will warrant the jury in finding, by a preponderance of the evidence, that such director, or directors, by the exercise of ordinary care and prudence, would have known, that the said report was false in some one or more of the particulars set forth in the petition.”
    (No. 8876
    Decided February 2, 1906.)
    Error to the Circuit Court of Columbiana county.
    The plaintiff in error was plaintiff below in an action against Reason B. Pritchard, William Moore, John McVicker, James K. Frew and David A. Pritchard, to recover of them $2,000, damages which he sustained by reason of the representations and conduct of said defendants while they were acting as directors of the First National Bank of New Lisbon.
    They were the lawful directors during the year 1897 and were elected again to the same positions on the eleventh of January, 1898; they qualified and entered upon the discharge of their duties. During both years, and until the twenty-first day of October, 1898, Reason B. Pritchard was president and William Moore, vice-president of the bank. On the latter day, the comptroller of the currency took possession of the bank, and on the twelfth day of November, 1898, I. B. Cameron was appointed receiver on account of its insolvency.
    On or about the fifteenth day of January, 1898, the plaintiff below, now plaintiff in error, purchased from W. S. Potts, as administrator of the estate of Simon Wisden, deceased, ten shares of the capital stock of said bank for a consideration of $1,000, and procured the shares to be duly transferred to him on the books of the bank, and he owned the stock when the receiver was appointed and the affairs of the bank wound up. He, with other stockholders, was assessed one hundred per cent, on his shares for the purpose of discharging the liabilities of the bank, which he says he paid. This amount and the original purchase price of the stock constitute the sum for which he. asks judgment in his petition.
    He alleges that “On the twenty-fourth day of December, • (which was a short time before he purchased the stock referred to above) the said corporation (the bank) professing to comply with the acts of congress requiring reports exhibiting the resources and liabilities of national banking corporations to be made to the . comptroller of the currency, made, with the knowledge, assent and direction of the defendants, a report to the said comptroller, of the resources and liabilities of said corporation as they existed on the fifteenth day of December, 1897, which report was sworn to by M. J. Child, as cashier, and was attested as correct by said Reason B. Pritchard, J ames K. Frew and J ohn McVicker, A copy of said report, marked exhibit “A” is hereto attached and made a part hereof.”
    The following is the report:
    “exhibit a.
    “Statement of the condition of the First National Bank at Lisbon, in the state of Ohio, at the close of business December 15, 1897.

      Resources.

      1 'Loans and discounts ............... .$ 74,208 01
    “Overdrafts, secured and unsecured.... 7,509 25
    “U. S. bonds to secure circulation...... 12,500 00
    “Banking house, furniture and fixtures, 7,850 00
    “Due from National Banks (not reserve agents) ........................... 1,989 95
    “Due from approved reserved agents... 13
    “ Checks and other cash items.......... 72 00
    “Notes of other National Banks....... 1,520 00
    “Fractional paper currency, nickels and cents ............................ 112 77
    “Lawful money reserved in bank, viz: Specie.................$24,345 60
    Legal tender notes...... 6,920 00
    “U. S. certificates of deposit for legal tenders.......................... 31,265 60
    “Redemption funds with U. S. Treasurer (5 per cent, of circulation)........ 562 50
    “Total .....................$137,590 21

      Liabilities.

    “Capital stock paid in............... $50,000 00
    ‘£ Surplus fund ....................... 1,198 38
    “Undivided profits, less expenses and taxes paid....................... ' 2,331 29
    “National Bank notes outstanding...... 10,950 00
    “Due other National Banks............. 1,635 77
    “Individual deposits, subject to check.. 48,013 40
    “ Demand certificates of deposit........ 17,461 37
    “Bills payable....................... • 6,000 00
    “Total
    $137,590 21

      “The State op Ohio,
    “Columbiana County, ss.:
    “I, M. J. Child, cashier of the above named bank, do solemnly'swear that the above statement is true to the best of my knowledge and belief.
    • “M. J. Child,

      “Cashier.

    ‘ ‘ Subscribed and sworn to before me this 24th day of December, 1897.
    “James W. Clark, “Notary Public.

    “Correct Attest:
    “R. B. Pritchard,
    “James K. Frew,
    “John McYicker,

      •“Directors.”

    The said report and attestation were caused by the defendants as directors and officers of the bank, to be duly published on or about the twenty-seventh day of December, 1897, in the Lisbon Journal, a newspaper published in Lisbon, Ohio.
    The petition alleges that said report was false in this, to-wit: the loans and discounts that were good and collectible did not exceed $40,000 instead of being $74,208.01 as stated in the report. The remaining $34,208.01 of said loans and discounts were, on December 15, 1897, uncollectible and worthless, as defendants then knew. The overdrafts did not exceed $1,000, instead of being $7,509.25; the remaining $6,509.25 of said overdrafts were, on December 15, T897, uncollectible and worthless, as defendants then knew.
    The total resources did not exceed ■ $96,873.95, instead of being $137,590.40, as stated in the report.

      The plaintiff also avers in his petition, that the individual deposits exceeded $68,000, instead of being $48,013.40, as reported.
    The demand certificates of deposit exceeded $46,000, instead of being $17,461.37, as reported.
    The bills payable exceeded $19,000, instead of being $6,000, as reported. The total liabilities exceeded. $199,115.44 instead of $137,590.54, as reported.
    It is further alleged that on the fifteenth day of December, 1897, and ever since, the bank was insolvent and unable to meet its liabilities, and its capital stock utterly worthless, all of which was well known to the defendants, and that any examination of said report and of the books would have disclosed to defendants as such directors that said report was wholly false, and that said bank was being mismanaged and its monies and assets misappropriated and squandered; that said directors, in failing to exercise the slightest diligence or make the slightest investigation of the business of the bank, were grossly negligent of their duties.
    He further alleges that in purchasing his stock, he relied upon the statements contained in said report as published, and believed them to be true, he made said purchase, which he would not have done if the true condition of the bank had been stated in the report.
    The answer admits that the defendants were directors and officers of the bank, as plaintiff alleged; and that on or about October 21, 1898, the comptroller of the currency took possession of the bank and that on November 12, 1898, I. B. Cameron was appointed receiver; and they admit that on or about the twenty-fourth day of December, 1897, the bank made a report to the comptroller of the currency of its resources and liabilities, which was duly published in the Lisbon Journal. The answer denies each and every other allegation in the petition. On the issues thus made up the case was tried to a jury.
    The bill of exceptions contained in the record shows that on the trial, evidence was given tending to prove that the report of the comptroller of the currency on the twenty-fourth of December, 1897, was made as set out in the petition; that the report was attested as correct by the defendants Reason B. Pritchard, James K. Frew and John McVicker, and caused by M. J. Child, cashier, to be published on the third day of January, 1898, in the Lisbon Journal, a newspaper published in Lisbon, Ohio; that the report was false in this, to-wit: that the amount due individual depositors was $68,902.65, and on certificates of deposit $41,781.92 — making the amount of total liabilities $179,270.34; that the bank, on the fifteenth day of December, 1897, was, and ever since, has been, insolvent and unable to meet its liabilities; that John McVicker and James K. Frew signed said report without any examination at the time, of the books of said bank as to its correctness; that an examination by a competent bookkeeper on said day, of the balances stated in the accounts of the individual depositors, would have shown the total amount due them to have been $68,902.65, and an examination of the entries in the journal as to certificates of deposits paid, with the ledger of said bank as to the “certificate deposit account,” would have shown— (here follows in detail the comparison between the amounts of various certificates paid as entered on the journal, and the amounts of same certificates as posted in the ledger at different times between April 11, 1891, and October 29, 1897, making a total of $31,117.25 of false entries in the ledger to the debtor side of the certificate of deposit account. One certificate for $125 which had been paid April 11, 1891, was entered as paid again for $9,117.25 and carried into ledger for that amount).
    The evidence further tended to show that the plaintiff relied on the statements contained in the said report, on the fifteenth day of January, 1898, when he purchased the shares of stock set out in the petition; that he paid $1,000 therefor and was assessed thereon $1,000, which he paid.
    Before argument the plaintiff requested the court to give the following instructions:
    “Gentlemen: If you find that the defendants, John McVicker, James K. Frew, and Reason B. Pritchard, or any of them, attested as correct the report of the condition, on the fifteenth day of December, 1897, of the First National Bank of New Lisbon, Ohio, said attestation as to the persons making the same vouched for, or certified to, the absolute truthfulness of the statements contained in said report; and if you find that said report was not correct, in that the assets were much less, or the liabilities, especially to the individual depositors, or, on certificates of deposit, were much greater, than represented in said report, or that said Bank was insolvent at said time; and if you further find that said report and attestation was caused by said defendants, or any of them, to be duly published in the Lisbon Journal, and that the plaintiff, relying upon said report and the statements therein contained, purchased some of the capital stock of said bank, and has been damaged thereby, you will find in favor of the plaintiff against such of said defendants as so attested and published said report, for the amount of such damage.”
    The court refused to give this request and the plaintiff excepted. In the charge to the jury, which will be considered in the opinion, the court instructed the jury, that as there was no evidence to show that William Moore and David A. Pritchard, who had not attested said report, were present or took any part' either in attesting the report or in assenting to or directing its publication, they should not find a verdict against them; and that, as Reason B. Pritchard had deceased during the pendency of the action, and there had been no competent evidence introduced to bind his estate in the hands of his executrix, the jury was not warranted in finding a verdict against said estate. The case was submitted as to the two other defendants, John McVicker and James K. Frew, and the verdict was in their favor, upon which the court rendered judgment. This judgment was affirmed by the circuit court, and the plaintiff prosecutes error here to reverse both of said judgments.

      Messrs. Potts & Wells, for plaintiff in error,
    cited and commented upon the following authorities:

      Gerner v. Mosher, 58 Neb., 150; 21 Am. & Eng. Ency. Law (2 ed.), 356; Bank v. Thoms, 11 Dec. Re., 632; 28 W. L. B., 164;Prewitt v. Trimble, 92 Ky., 176; Tate v. Bates, 118 N. C., 287; Hauser v. Tate, 85 N. C., 81; Briggs v. Spaulding, 141 U. S., 132; 1 Bigelow on Frauds, 513; 2 Pomeroy’s Equity, sec. 884; Insurance Co. v. Reed, 33 Ohio St., 295; Cole v. Cassidy, 138 Mass., 437; Litchfield v. Hutchinson, 117 Mass., 195; Milliken v. Thorndike, 103 Mass., 382; Crislip, Guard. v. Cain, 19 W. Va., 440; Solomon v. Bates, 24 S. E. Rep., 478; Caldwell v. Bates, 24 S. E. Rep., 481; 3 Thompson on Corporations, sec. 4244; Bank v. Wulfekuhler, 19 Kan., 60; Bank v. St. John, 25 Ala., 566; secs. 5211 and 5239, U. S. Rev. Stat.

      Messrs. Carey & Mullins and Mr. Charles S. Speaker, for defendants in error,
    cited and commented upon the following authorities:

      Gerner v. Mosher, 58 Neb., 150; Bank v. Directors, 8 S. W. Rep., 885; Bank v. Thoms et al., Exrs., 11 Dec. Re., 632; 28 W. L. B., 165; Swentzel et al. v. Bank et al., 23 Atl. Rep., 405; Sperring’s Appeal, 71 Pa., 11; Clews v. Bardon et al., 36 Fed., 617; Robinson v. Hall et al., 59 Fed., 648; Insurance Co. v. Reed, 33 Ohio St., 294; 2 Pomeroy’s Equity, sec. 884; Cole v. Cassidy, 138 Mass., 437; Litchfield v. Hutchinson, 117 Mass., 195; Milliken v. Thorndike, 103 Mass., 382; Crislip v. Cain, 19 W. Va., 440; Bank v. Wulfekuhler, 19 Kan., 60; Prewitt v. Trimble, 92 Ky., 176; Solomon v. Bates, 24 S. E. Rep., 478; 14 Am. & Eng. Ency. Law (2 ed.), 86; Steamship Co. v. Horton é Co., 70 Pac. Rep., 59; Russell v. Clark, 7 Cranch, 69; Lord v. Goddard, 13 How., 198; Wakeman v. Dalley, 51 N. Y., 29; King v. Eagle Mills, 10 All., 548; Kountze v. Kennedy, 147 N. Y., 129; 41 N. E. Rep., 414; 29 L. R. A., 360; Hutcheson v. Gorman, 73 S. W. Rep., 793; Stone v. Denny, 4 Met., 151; Insurance Co. v. Matthews, 102 Mass., 221; Cowley v. Smith, 46 N. J. Law, 380; Taylor v. Leith, 26 Ohio St., 434; 1 Cook on Stockholders, etc., sec. 157; Boddy v. Henry, 85 N. W. Rep., 771; 113 Ia., 462; 53 A. L. R., 769; Utley v. Hill, (Sup. Ct. of Mo., March 14, 1900) 55 S. W. Rep., 1091; Sup. Ct. of Iowa, Oct., 1902; Warfield v. Clark, 91 N. W. Rep., 834; Cahill v. Applegarth, 56 Atl. Rep., 794; Bish Non-Contract Law, 316; Briggs v. Spaulding, 141 U. S., 674 (bottom numbering of page); Warfield v. Clark, 91 N. W. Rep., 833; Warner v. Penoyer, 82 Fed., 181;. Warner v. Penoyer, 91 Fed., 587; Spering’s Appeal, 71 Pa., 11; Wallace v. Bank, 15 S. W. Rep., 448; 78 N. W. Rep., 389; Biker v. Hall, 45 S. W. Rep., 556; Ricker v. Hall, 45 Atl. Rep., 556; B. & L. Assn. v. Childs, Sup. Ct. of Wis., 52 N. W. Rep., 600; secs. 5211 and 5239, U. S. Rev. Stat.
   Price, J.

We have made the foregoing extended statement of this case because of the importance of the questions involved and the necessity for a consideration of all the material facts, in order to reach a proper judgment.

The bill of exceptions is brief in its statement of such facts which the evidence tends to prove, and contains the special charges requested by the plaintiff and the general charge to the jury. It is not in dispute that the plaintiff in error relied wholly on the report made by the bank through its cashier, Child, to the comptroller of the currency on the twenty-fourth of December, 1897, attested by three of its directors, Reason B. Pritchard, James K. Frew and John McVieker. He purchased the ten shares of stock on the fifteenth day of January, 1898. The report referred to was published in the Lisbon Journal on the third day of January of that year. The bank was in fact insolvent on and ever since December 15,1897, but the defendants were ignorant of that fact. The evidence also tends to prove that John McVieker and James K. Frew, directors, signed said report without any examination, at the time, of the books of the bank as to its correctness; that an examination by a competent bookkeeper at that time, would have shown the total amount due individual depositors to he $68,902.65, and an examination of the entries in the journal as to certificates of deposit paid, with the ledger of the hank as to “certificate deposit accounts” would have shown quite a number of false entries made by the absconding cashier, between April 11, 1891, and October 29, 1897, making a total of false entries in the ledger of $31,117.25, to the debtor side of the certificate deposit account. So that the cashier, or, some one for him, during the period mentioned frequently manipulated the books, and especially the ledger accounts, at various times producing false entries of the condition of the bank, both as to its resources and liabilities. There is no evidence tending to prove that either of the attesting directors had any knowledge of these false entries, or that anything had previously occurred to their knowledge to excite their suspicion or distrust of the cashier. There is no evidence tending to show that either of them was a competent bookkeeper, and we therefore assume that neither of them was a competent bookkeeper. There is no evidence tending to prove that the directors received any salary or compensation, and we assume that they served without compensation. In short, it seems, as may be the fact in most cases, the directors had implicit confidence in the cashier, who made up the bank’s report to the comptroller, and did not examine the books so as to test its accuracy. And if they had examined the books in order to have discovered the false entries as finally found, their investigation of the preceding year would not have been sufficient, but it must have included each year back to 1890. The bill of exceptions recites in substance, that an examination by a competent book keeper would have shown these false entries and the true condition of the bank. We suppose that a competent bookkeeper is one who is qualified by education and experience to examine and compare the various books kept by the bank, and trace the bearing of one entry upon another in the different books. No doubt that where a cashier turns to be dishonest, it is within his power to purposely complicate his accounts, and thus thwart all ordinary efforts to ascertain the truth from the books. False entries seem to have been the bane in this case. In the presence of these facts how shall the attesting directors be judged? By their attestations did they vouch for the absolute truthfulness of the statements in the report? Or, are they held merely by the rule of ordinary care — care commensurate with the business entrusted to them and the duties properly encumbent upon them?

The plaintiff contends for the former standard, as found in his request appearing in our statement of the casé. The trial court declined to charge that proposition, and this is one of the errors assigned. In its stead the court in paragraph 4 of the general charge, said to the jury: “It must appear by a preponderance of-the evidence, that at the time of the attesting and publication of said report, that the directors so attesting this report, or who assented to and directed the publication of the same, did so knowing the report to’ be false, of, under such circumstances as will warrant the jury in finding by a preponderance of the evidence, that such directors, by the exercise of ordinary care and prudence would have known that said report was false in some one or more of the particulars set forth in the petition. ’ ’

The court further charged: “Inasmuch as there has been a large amount of testimony introduced tending to show the manner in which the affairs of said bank were conducted for many years prior to its dissolution, and inasmuch as a great deal has been said by counsel in argument as to the manner in which the directors of said institution attended to its affairs, I feel it my duty to say to you, at the outset, that this is an action for deceit based on the publication of said report as set out in the petition, and the question for you to determine is not whether the directors were generally negligent in the performance of their duties as directors, but whether or not the report in question was false, and whether or not the defendants or any one of them knew the same to be false, or would have known the same to be false, had they given such attention to their duties as the law requires under the instructions I shall hereafter give you * * V’

The same standard of liability is repeated in later portions of the charge in applying the law to the facts of the case. The plaintiff was not satisfied with the charge and excepted.

The plaintiff, as we have seen, submitted his theory by the request to charge, and we have the different theory of the court in the above instructions. Which of the two is correct?

Section 5211, Revised Statutes of the United States, requires the reports of national banks, such as the one under consideration. It provides that “every banking association shall make to the comptroller of the currency not less than five reports during each year, according to the form which may be prescribed by him, verified by the oath or affirmation of the president or cashier of such association and attested by the signature of at least three of the directors. Such report shall exhibit in detail and under appropriate heads, the resources and liabilities of the association at the close of business on any past day specified by him, and shall be transmitted to the comptroller within five days after the receipt of a request or requisition therefor from him, and in the same form in which it is made to the comptroller it shall be published in a newspaper published in the place where such association is established * # * J J

Section 5146 prescribes the qualifications of directors: (1) Every director must, during his whole term of service, be a citizen of the United States, and at least three-fourths of the directors must have resided in the state, territory or district in which the association is located, for at least one year immediately preceding their election, and must be residents therein during their continuance in office. (2) Every director must own in his own right, at least ten shares of the capital stock of the association. A director who ceases to be the owner of ten .shares or otherwise becomes disqualified shall thereby vacate his place.

By section 5147, each director, when appointed or elected, shall take an oath that he will, so far as the duty devolves on him, diligently and honestly administer the affairs of the association, and will not knowingly violate or willingly permit to be violated, any of the provisions of this title, and that he is the owner in good faith and in his own right of the number of shares of stock required, et cet.

Having the qualifications named in section 5146, and taking the oath prescribed in section 5147, the directors entered upon the discharge of their duties. They were not required to he bookkeepers, or to possess the expert or technical knowledge of bookkeeping usually adopted by the executive officers of such associations. When they attested the bank’s report they did it as the act of ordinary men, or men of common and ordinary intelligence. This report had two purposes: primarily to inform the comptroller of the condition of the bank as to resources and liabilities; and its publication is for the information of the stockholders and the general public. There were no personal representations made to the plaintiff. As one of the public, he read the report and relied upon it in purchasing his stock and was deceived. His action is grounded upon the deceit thus practiced upon him as a member of the public.

As to the liability of the bank and its directors, section 5239, Revised Statutes of the United States, provides: “If the directors of any national banking association shall knowingly violate, or knowingly permit any of the officers, agents or servants of the association to violate any of the provisions of this title, all the rights, privileges and franchises of the association shall be thereby forfeited * * *, and in cases of such violation, every director who participated in or assented to the same, shall be held liable in his personal and individual capacity for all damages which the association, its shareholders, or any other person, shall have sustained in consequence of such violation. ’ ’

We have in this section the statutory standard of liability, and it relates to every director who “participated in or assented to” the violations of the provisions of the title of which said section forms a part. If he did not participate in or assent to such violation, this statute fixes no individual or personal liability against him. In this case there was no evidence tending to prove that the defendants participated in, or assented to any violation of the banking statute except such participation or assent as may be ascribed to the attestation of the bank’s report, and it would seem, that such an act will not be sufficient to establish the participation and assent contemplated and penalized by the statute. Participating and assenting both' imply affirmative action of some sort, as distinguished from mere silence and inaction. This statute does not preclude a liability at common law.

If we leave the statute just considered, and look to the common law liability of directors, we find that actions for damages against them founded on a published false report of the bank, which they attested, are actions for deceit, and they are controlled by the law governing actions of that character. This doctrine is laid down in numerous cases, some of which are cited later in this opinion. Pomeroy in his second volume on equity jurisprudence, section 884, states the rule as follows: “It is now a settled doctrine of the law that there can be no fraud, misrepresentation or concealment without some moral delinquency; there is no actual fraud, legal fraud, which is not also a moral fraud. This immoral element consists in the necessary guilty knowledge and consequent intent to deceive — sometimes designated by the technical term, scienter. The very essence of the legal conception is the fraudulent intention flowing from the guilty knowledge. No misrepresentation is fraudulent at law, unless it is made with actual knowledge of its falsity, or under such circumstances that the law must necessarily impute such knowledge to the party at the time he makes it. ’ ’ The author then proceeds to illustrate his proposition, which we think fairly represents the text writers on the subject of fraud and deceit.

Diligent counsel have cited many adjudicated cases on the subject, to some of which we add others found in our own research. Briggs v. Spaulding, 141 U. S. (Rep. ed.), 132, is a leading case decided by a court frequently called upon to interpret the laws governing national banking associations. To economize space we omit the facts stated in that case, and sunimarize the principles it determines.

It is there decided that directors of a national bank are not insurers of the fidelity of its agents whom they have appointed, and are not responsible for losses resulting from the' wrongful act or omission of other directors or agents, unless the loss is a consequence of their own neglect of duty; they must exercise ordinary care and prudence — such degree of care as ordinarily prudent and diligent men would exercise; knowledge of all the affairs of a bank, or what its books and papers would show, cannot be imputed to a director for the. purpose of charging him with liability.

It is true, as said by counsel, that the decision was made by a divided court, but it is the opinion of the majority, and that majority, as in all such cases, declares the law. But the dissenting opinion is not in conflict with the rule we here adopt. The case has wide support in the decisions of the courts of last resort in many states, some of which we will notice.

Kountze et al. v. Kenneday, 147 N. Y., 124, was an action to recover damages for fraud and deceit alleged to have been practiced by Kenneday, by which plaintiff claimed to have been induced to purchase certain stock and bonds of the Howe Machine Company, a corporation. Two of the prevailing principles of the case appear to be,— (1) That in an action for deceit, the misrepresentation upon which an action is based must be shown not only to have been false and material, but it must be also shown that the defendant, when he made it, knew that it was false, or not knowing whether it was true or false, and not caring what the fact might be, made it recklessly, paying no heed to the injury which might ensue. (2) The written statement of the president of the corporation as to its entire assets and liabilities, and the fact that he furnished the statement as a statement of the entire assets and liabilities, were not of themselves sufficient to warrant the inference that he represented that the statement was true of his own knowledge.

In Sperring’s Appeal, 71 Pa. St., 11, it is held that directors in a stock corporation, as to the stockholders, are not technical trustees, but are as mandatories, and are bound to apply no more than ordinary skill and diligence. The court, through Sharswood, J., reviews many cases and discusses the relation and liability of directors at length. Decided in 1872. The same court, in Swentzel et al. v. Penn Bank et al., decided in 1892, 23 Atl. Rep., 405, cites with approval Sperring’s Appeal, supra, and holds that “a director of a bank, whose services are gratuitous, and whose duties are to attend the bank once or twice a week' to assist in discounting paper, to see how much money there is to loan, and once or twice a year, to count the cash on hand and examine the bills receivable and securities to see whether they correspond with the statement furnished by the officers, does not owe the creditors of the bank such care as a reasonably- prudent man exercises in his own business, but is amenable only for fraud, or for such gross negligence as amounts to fraud. ’ ’

In the opinion of Paxton, G. J., on page 414, it is said: “Negligence is the want of ordinary care according to the circumstances, and the circumstances are everything in considering this question. The ordinary care of a business man in his own affairs is one thing, and the ordinary care of a gratuitous mandatory is quite another matter. The one implies an oversight and knowledge of every detail of his business; the other suggests such care only as a man can give, in a short space of time, to the business of other persons from whom he receives no compensation.” The entire opinion is very pertinent to the controversy in the case at bar.

See also Cowley v. Smyth, 46 N. J. L., 380; Wallace v. Lincoln Savings Bank (Tenn.) 15 S. W. Rep., 448; and Clews et al. v. Bardon, 36 Fed. Rep., 617.

Utley v. Hill et al., (Mo.) 55 S. W. Rep., 1091, was an action by a. depositor in a state bank against the directors to recover money lost by failure of the bank. By the statute of that state, such banks were required to make periodical reports to the secretary of state, and the depositor claimed he was induced to make his deposit by reason of the representations consisting of the reports made to the secretary of state. The court laid down the rule recognized in the above cases.

In Warfield v. Clark, (Ia.) 91 N. W. Rep., 833-4, it is held that in an action against the secretary of an insurance company for deceit consisting of false representations contained in its official statement, an instruction that defendant was charged with knowledge of the true condition of the company, and if the statement filed by him was not correct, it was untrue and false, and so known to. he by the defendant, was erroneous, since the action could he maintained only on proof of active, conscious and intentional fraud.

See also Warner v. Penoyer, 82 Fed. Rep., 181. That case was reviewed on appeal by the United States Circuit Court of Appeals, as found in volume 61 of United States Appeals at page 372 et seq.

On page 379, the court say, “Before they (bank directors) can he made responsible for losses which have occurred through the mismanagement or dishonesty of the cashier, it must appear that such losses resulted as a consequence of the omission of some duty on their part. If in all probability these would have resulted just the same, notwithstanding they had been ordinarily diligent and vigilant, there is no justice in shifting them upon the directors, and no principle' of law to justify it. They are responsible for their own acts and omissions, hut not for those of co-directors in which they have not actively or passively participated. ’ ’ See first paragraph of the syllabus of the case. .

There are many other cases of like import for which we have no space in this opinion.

We do not overlook the fact that they are in conflict with some other causes; notably Gerner v. Mosher, 58 Neb., 135, where it is held that “The attestation of hank reports by the directors is a positive statement that the condition of the hank is as represented therein, and such directors are personally liable for injuries sustained by false representations of the solvency of the bank contained , in the report, even though they were unaware that such report and representations were false or untrue, and their attestation was made without intention to defraud. ” That decision was made February 23,1899, and by a'divided court, — Irvine and Ryan dissenting from the proposition quoted, but concurring in other points decided. The case seems to be in conflict with the judgment of the same court rendered on February 9th of the same year, in Stuart v. Bank of Staplehurst, 78 N. W. Rep., 298.

The case of Gerner v. Mosher, supra, has some support in Solomon v. Bates, (N. C.) 24 S. E. Rep., 478, and Hauser v. Tate, 85 N. C., 81; also in Tate v. Bates, 118 N. C., 287. But we think those cases are extremely harsh, and not in accord with the great weight of authority which establishes a doctrine more consonant with sound reason and the methods commonly adopted and practiced by prudent and careful men in the business affairs of everyday life.

The directors of a bank are surely authorized to appoint a cashier, conferring upon him the powers usually exercised in such an office. He is properly confided in as to the custody of its money, securities, books and valuable papers, and the supervision of its books and accounts. While is is true, that the directors cannot divest themselves of the duty of general supervision and control, they may properly intrust to him the powers usually appertaining to the direct management of the business, and where they have acted in good faith and with ordinary diligence in their general supervision, they are not liable for losses resulting through secret peculations and secret false entries of the cashier. Their position does not require them to devote themselves to the details of the business, which may be left to the clerks and bookkeepers under the supervision of the cashier. They are not required to look with suspicion upon the conduct of these agents or employes, nor to practice a system of espionage over the cashier or his subordinates, without apparent reason, and they have a right to assume they are honest and faithful, where no circumstances transpire to excite doubt or suspicion.

On the other hand,- they cannot excuse their indifference or negligence by pleading mere honesty of intention.

We believe this a fair summary of the law as deduced from the weightier cases and the opinions of text-writers.

In harmony with the authorities as we approve them, the trial court instructed the jury in the present case with commendable clearness, and properly applied this law to the facts before the jury. It then was a question of fact for the jury to determine whether, under the rules submitted for its guidance, the defendants should be held liable. The verdict was for the defendants. The judgment rendered on the verdict was affirmed by the circuit court, and we are content with that judgment.

Judgment affirmed.

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


source: Caselaw Access Project

author: Shauck, J.

license: Public Domain

text:
    The Morris Coal Company v. Donley.

      Protection to miners — Section 6871, Revised Statutes — Miner not excused from propping mine roof — Because props might interfere with machine mining, when.

    1. An exception to the provisions of a statute not suggested hy any of its terms should not be introduced by construction from considerations of mere convenience.
    2. It is required by section 6871, Revised Statutes and cognate sections of the statute that a miner shall securely prop the roof of a working place under his control and a failure to comply with the requirement cannot be excused because the presence of props might render machine mining impracticable. (Goal and Mining Co. v. Admr. of Clay, 51 Ohio St.,. 542, approved and followed.)
    (No. 9261
    Decided February 2, 1906.)
    Error to the Circuit Court of Guernsey county.
    The defendant in error brought suit in the court of common pleas to recover of the Coal Company on account of injuries by him sustained while working in its mine. The petition is as follows:
    Plaintiff says that the defendant is and was at all the times hereinafter mentioned, a corporation duly organized and doing business under the laws of the state of Ohio, and owning a coal mine in said county of Guernsey, known as “Old Orchard Mine,” and to that end, employing many men, some of whom were by the defendant put under the control and direction of other employes employed by the defendant, as hereinafter appears.
    On and prior to the twenty-sixth day of October, 1901, plaintiff was employed hy defendant in said mine, known as “Old Orchard Mine,” as a machine man, so-called, for a hire amounting to about three (3) dollars per day, with the duty to labor in said mine, underground, at such places and at such work, as his foreman, also employed by the defendant, should direct.
    On said twenty-sixth day of October, 1901, plaintiff was by said foreman, ordered to work in room No. 10 at mining part of the pillar between room No. 9 and room No. 10,-which rooms were driven off of entry number six (6) in said mine, as a machine man, with a certain coal mining machine owned by the defendant, and operated by electricity furnished by the defendant, the roof whereof covering said working place in mining said part of said pillar, at, and covering a space of less than five (5) feet from, the face thereof, was unsafe and dangerous.
    That said unsafe and dangerous condition of said roof was so near to the face of the wall of the coal where plaintiff had to perform his duties in cutting the same with said machine, that it could not be posted or propped, and made safe, by the plaintiff while performing his duties in cutting the same; that said machine with which plaintiff had to work was eight (8) or ten (10) feet long and had to be worked across the entire working place; that the defendant knew that said roof was unsafe and dangerous, and knew that the plaintiff could not post or prop the same, for the reasons aforesaid, and that said defendant knew that the plaintiff had abandoned said working place on account of said dangerous condition of said roof, a day prior to the twenty-sixth day of October, 1901; that the defendant on the said twenty-sixth day of October, T901, with the knowledge aforesaid, represented to the plaintiff that it had caused said working place to be inspected, which was its custom to do in said mine, and that said place was reasonably safe for plaintiff to labor therein, and then and there directed and ordered plaintiff to proceed with said machine to work in said place, and relying upon the said representations and assurances of the defendant, and upon the faithful discharge of the defendant to make said place reasonably safe for said plaintiff, though plaintiff had abandoned the same, as aforesaid, plaintiff entered upon his labor at said place, and while engaged therein, a large part of said unsafe and dangerous roof suddenly fell upon him, throwing him upon said coal mining machine, which was then in operation, and by the weight of said slate upon him and the running of said machine, he was greatly and permanently injured by being bruised, cut and wounded upon the head, body and limbs, so that he was for about two months confined to his bed and to his home in great pain and misery, and incurring an expense of about seventy ($70) dollars for medicine and medical and surgical attention, and has ever since been permanently injured on the head, in the breast, back, right arm, hip, and left leg at the knee, and his ability to labor and his earning capacity have been greatly injured and lessened to his damage in the sum of ten thousand ($10,000) dollars.
    Plaintiff says that the defendant knew, or by the exercise of reasonable care, could have known, that said roof was unsafe and dangerous, and with said knowledge, carelessly and negligently assured and represented to plaintiff that said roof was safe and not dangerous, and carelessly and negligently ordered plaintiff to work at said place, and carelessly and negligently failed to make the same reasonably safe by removing said slate, as was its duty to do, as hereinafter stated, and thereby or by one or more of said negligeneies, caused plaintiff the pain, injuries and damage, as above set forth.
    Plaintiff says that on the twenty-fourth day of October, 1901, and for a long time prior thereto, that the roof, commonly called “draw-slate,” in the said Old Orchard Mine, frequently became loose and fell as soon as the coal was removed from under the same, and the defendant with full knowledge of the same, agreed with all of its employes, including the plaintiff, to remove from eaeh of said working places daily, the loose slate, commonly called “draw-slate,” and the removal thereof by the defendant, was part and parcel of the contract of employment existing between its employes, including the plaintiff, and the defendant; and the plaintiff says that the loose and dangerous slate in said working place was “draw-slate,” and for the purpose of carrying out said contract, the defendant on the twenty-sixth day of October, 1901, and for a long time prior thereto, caused said working place or places to be inspected each day, before its employe or employes entered their respective working places, for the purpose aforesaid. And on the twenty-sixth day of October, 1901, plaintiff relied upon said inspections and relied upon the representations made by said defendant at the time, that said working place was safe.
    Plaintiff says that he was without fault *or' negligence on his part.
    Wherefore, plaintiff prays judgment against the defendant in the sum of ten thousand ($10,000) dollars.
    A demurrer to the petition was sustained in the court of common pleas. Its judgment was reversed in the circuit court.

      Mr. Fred L. Rosemond, for plaintiff in error,
    cited and commented npon the following authorities:

      coal Co. v. Clay, 51 Ohio St., 550; Lawson, Law of Usage, sec. 183; Coal Co. v. Norman, 49 Ohio St., 598; Coal Co. v. Estievenard, 53 Ohio St., 59; Van Duzen Co. v. Schelies, 61 Ohio St., 298; sec 6871, Rev. Stat.

      Mr. Robert T. Scott, for defendant in error,
    cited and commented upon the following authorities:

      Gas & Gasoline Engine Co. v. Schelies, 61 Ohio St., 298; Street Railway Co. v. Sweeney, 4 Circ. Dec., 11; 8 C. C. R., 298; Street Railway Co. v. Mammett, 6 Circ. Dec., 245; 3 C. C. R., 591; Coal & Mining Co. v. Admr. of Clay, 51 Ohio St., 542; Coal Co. v. Estievenard, 53 Ohio St., 43; Hall v. State, 20 Ohio, 7; Denbow v. State, 18 Ohio, 11; Shultz v. Cambridge, 38 Ohio St., 659; White v. Woodward, 44 Ohio St., 347; sec. 6871, Rev. Stat.
   Shauck, J.

It is said by counsel for plaintiff in error that the original petition does not state a cause of action because the plaintiff seeks to recover for neglect by the Company of the duty of taking care of the roof of the mining room under his control, which duty section 6871, Revised Statutes, imposed, not upon the Company, but upon him. That view of the subject was taken in the court of common pleas in accordance with the doctrine of the Coal and Mining Co. v. Administrator of Clay, 51 Ohio St., 542, where, for reasons which need be neither" repeated nor extended, it was held that the policy established by this and related sections of the statute looking to the safety of those engaged in mines imposed the duty which was neglected in the present case upon the miner in control of the room, and that the duty thus imposed upon him cannot he shifted to another.

The judgment of reversal rendered by the circuit court is said to be consistent with the case cited since the present case should be regarded as excepted from the operation of the statute because of the impracticability of propping the ropf of the room under the plaintiff’s control, the averment in that regard being: “that said unsafe and dangerous condition of said roof whs so near to the face of the wall of the coal where plaintiff had to perform his duties in cutting the same with said machine, that it could not be posted or propped, and made safe by the plaintiff while performing his duties in cutting the same; that said machine with which plaintiff had to work was eight or ten feet long and had to be worked across the entire working place. ”

The statute contains no term suggesting the intention that there should be an exception to its operation because of the presence of such conditions as are alleged. To introduce such an exception by construction would be an obvious attempt to avert the consequences of a supposed oversight on the part of the legislature; and the departure from safe rules of construction would not be excused by considerations leading to a clear conviction that the legislature did not deliberately intend to include the case presented within the provisions of the statute. The facts alleged to show that compliance with the statute was impracticable do not show more than that compliance with its provisions would have been attended with some inconvenience. For aught that appears, it would have been quite practicable either to remove from the roof of the room the slate which constituted the source of the danger or to prop the roof and continue to mine with hand tools to such an extent as the presence of the props might have made necessary. To introduce the suggested exception would he the abrogation, rather than the construction, of the statute.

If inquiry should he extended beyond the requirements of the statute and the doctrine of the case cited, it might lead to the discovery of further reasons to justify the judgment of the court of common pleas. The petition shows that before the plaintiff sustained his injury he had actual knowledge of the dangerous condition of the roof and that he continued in the place of peril for no other reason than that the place was regarded as safe by one whose experience and knowledge upon the subject may have been less than his own.

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

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


author: Davis, C. J.

text:
    The State ex rel. Pardee v. Pattison, Governor, et al.

      Term of probate judge — Section 7, article If, Ohio Constitution — In force November 7, 1905 — Person then elected to succeed himself as probate judge — Elected for term of three years — Article 17, amendment to the Constitution not retroactive — Terms of office thereunder not abolished, when— Existing terms of office may be extended by general assembly — Power of deputy election supervisors limited, how— Constitutional law — Law of elections.

    1. Section 7 of article 4 of the constitution was in force as to all of its provisions until the close of the election on November 7, 1905, and a person who was elected on that day to succeed himself as probate judge was elected for the term of three years from and after the expiration of the term which he was already holding.
    2. Section 2 of the amendment to the constitution which is now designated as article 17, providing that the term of office of a probate judge shall be four years, applies only to such persons as shall be elected to such office as provided in section 1 of such amendment.
    3. Said amendment is not retroactive. Terms of office existing at and before the adoption of the amendment are not restricted or abolished thereby; but existing terms of office may be extended by the general assembly so as to effect the purpose of section 1 of the amendment. The phrase "existing terms of office” means the terms of office as defined in the constitution and acts of the general assembly as they existed at the time of the proposal of the amendment and of its adoption.
    4. In certifying the election of an officer the power of the deputy supervisors of elections is limited to certifying that the successful candidate has been elected, and they have no power to decide upon a disputed term of office.
    (No. 9868
    Decided February 2, 1906.)
    Mandamus.
    The relator, William E. Pardee, was, on the seventh day of November, 1905, probate judge of Summit county. On that date he was elected to the same office for another term, and on the same day the amendment to the constitution of Ohio, which is now designated as article 17, was adopted by a vote of the people. The relator received a certificate of his election from the deputy supervisors of elections within and for the county of Summit, certifying to his election for the term of four years. This certificate was filed with the secretary of state, who is made one of the defendants to the petition for mandamus, and accompanied with a fee of five dollars as required by law, and the relator demanded from the governor a commission for the said office for the term of four years, which was refused. Relator prays that a writ of mandamus may issue out of this court requiring the defendants to show cause why they should not be compelled to make and deliver to the relator a commission for a term of four years. To the petition, the attorney general, in behalf of the respondents, filed a demurrer on the ground that the petition does not state facts sufficient to constitute a cause of action.

      Mr. George M. Anderson; Mr. Charles B. Grant; Messrs. Safer, Seymour & Safer and Mr. Dlric Sloane, for the relator.
    The relator is entitled to receive from the governor a commission either for three or four years. The relator maintains that there is a plain distinction between the election of the officer and the term for which he shall hold office. When the term of office is once established by the law, the vote of the people at an election has nothing to do with term. In other words, the people vote for an officer and not for a term. That being fixed by the statute or the constitution, if no time is prescribed for taking the office, the term commences at once. State v. Constable, 7 Ohio (pt. 1), 7.
    But where the term is to commence at a future date, the date prescribed controls. State v. Commissioners, 58 Ohio St., 384; State v. Witt, 72 Ohio St., 584.
    It was known to every one that the terms of office of a great majority of the officers elected November 7, 1905, would commence in the future. The voters had before them the election amendment. When they voted for the relator they knew that the term of office would be three years if the amendment was defeated, and four years if the amendment carried. Whether the election amendment went into effect at the close of the polls on election day or upon the proclamation of the governor is not material. The relator’s term of office does not begin until February 9,1906, and the only provision of law in existence at that time will be the election amendment.
    The election amendment took effect eo instanti upon the close of the polls on the seventh of November, last.
    Great confusion must certainly result, not only in this case, but in the future, if we adopt any other rule than that the amendment instantly and absolutely repealed every provision in the old constitution with which it was in conflict.
    At the close of the polls on November 7th and at the same moment of time there were three concurrent and complete acts, to-wit:
    1. The old provisions of the constitution in conflict with the election amendment were repealed.
    2. The election amendment took effect and went into operation.

      3. The relator was elected.
    As the old constitutional provision as to the term of a probate judge was nullified, killed, utterly obliterated, and that of the amendment was adopted and given supreme and controlling force, the relator was elected for a term of four years. Only living sovereigns rule. The same electors who by their ballots destroyed the old constitutional provision, by the same ballots, by the same act and at the same time enthroned the amendment. At the same precise point of time at which the one was destroyed and the other enthroned, the relator was chosen to serve, not under the dead, but under the living amendment.
    It is to be presumed that the legislature and the people were well aware of the principle announced by this court in State v. Taylor, 15 Ohio St., 137, that section 10 of the Schedule, provides, “All officers shall continue in office until their successors shall be chosen and qualified, ’ ’ was merely temporary and related only to the officers elected under the constitution of 1802. The holding over clause was therefore inserted in the election amendment. Great weight has always attached, and very rightly, to contemporaneous construction. Cohens v. Virginia, 6 Wheat., 264-418; Bank v. Halstead, 10 Wheat., 51; Ogden v. Saunders, 12 Wheat., 290; Pike v. Megoun, 44 Mo., 491; Minor v. Happersett, 21 Wall., 162.
    Unless there is some saving clause in the amendment, if the language thereof is clear and explicit, as it is, there is an immediate and absolute repeal of. the old provisions. In this case there is no room for a construction upon the doctrine of inconvenience. As much and more inconvenience and danger results from holding that the repealed provisions continue in force and effect as could possibly arise from holding that the amendment took effect immediately. Settle v. Van Evrea, 49 N. Y., 280; Cooley Const. Lim., 34, 35, 36, and cases cited.
    In discussing the question of when the amendment took effect, the provision of section 1, article 16, relating to the time an amendment becomes a part of the constitution, should be kept in mind. Our contention is sustained by authority. Worman v. Hagan, 78 Md., 152.
    At the general election in 1891, a constitutional amendment was adopted by the vote of the people. (See full statement, 21 L. B. A., 716.)
    The proposed amendment was voted upon at the November election, 1891. The votes cast were returned to the governor, who issued a proclamation declaring that the amendment had been adopted, and it was held, “the action of the governor in this respect is conclusive and the amendment becomes eo instanti a part of the constitution.”
    If an officer voted for at the same election at which an amendment to the constitution was adopted holds under the term fixed in the amendment, although the amendment does not become operative for some time after the result of the election of the officer is determined, much stronger is the argument that the officer takes under the amendment when his election and the adoption of the amendment are simultaneous.
    The foregoing case also makes a distinction between voting for an officer and the term of office.

    Section 1, of article 17, of the constitution of Florida, contains almost the identical language found in section 1, article 16, of the constitution of Ohio, relating to amendments becoming a part of the constitution. An amendment to the constitution of Florida was submitted, voted upon and adopted. In

      re Advisory Opinion to the Governor, 34 Fla., 500 (16 S. Rep., 410).
    Not only did the amendment become operative, bnt it'will be noted that the old provision of the constitution was obliterated, lost all vitality as any part of the organic law, and consequently could not perpetuate itself or project itself into the future. Seneca Mining Co. v. Secretary of State, 9 L. R. A., 770 (82 Mich., 573).
    On the second day of July, 1870, the people of Illinois voted on the adoption of a new constitution and also voted separately on- given articles, one of which related to municipal aid to railways. Schall v. Bowman, 62 Ill., 321; Wade v. La Moille, 112 Ill., 77; 7 Cyc. of Law & Prac., 744.
    Constitutions and constitutional amendments have been held to become operative from the date of their adoption by the people in the following cases: Secombe v. Kittelson, 29 Minn., 559; People ex rel. v. Town of Bishop, 111 Ill., 124; People ex rel. v. Supervisors, 100 Ill., 495; Crook v. The People, 106 Ill., 237; State v. Williams, 49 Miss., 640; Campbell v. Fields, 35 Tex., 751; Scott v. Detroit Young Men’s Society’s Lessee, 1 Doug. (Mich.), 119; Nesbitt v. People, 19 Colo., 441; 6 Am. & Eng. Ency. Law (2 ed.), 900; also 909, text, and note 9; Sigur v. Crenshaw, 8 La., 401.
    Where a constitutional amendment does not become operative eo instanti, it is on account of some constitutional provision or legislative' enactment which defers its operation until some subsequent event arises. City of Duluth v. Duluth St. Ry. Co., 60 Minn., 178; State v. Kyle, 166 Mo., 287.
    In Real v. People, 42 N. Y., 270, although it is stated that the “rule of the common law is, that every law takes effect immediately upon its passage, unless some other time is therein prescribed for that purpose (1 Kent Com., 458, Sedg. Stat. Const. Law, 82) ” nevertheless it was held that the canvass of the votes by the various boards of canvassers as required by law and announcing the result and certifying the same as required by law, is as much a part of the election as the casting of the votes by the electors. State v. Williams, 49 Miss., 640.
    ' But we are not without authority in our own state. Our constitution of 1851 was adopted by the convention March 10th. By its own terms it took effect September 1,1851. State v. Dudley, 1 Ohio St., 437.
    Where a constitution is revised or amended the new provisions come into operation at the same moment that those they take the place of cease to be of force. Cooley Constitutional Limitations, 76. The same rule prevails as to statutes. Endlich Interpretation of Statutes, sec. 478.
    As to many offices the constitutional amendment inevitably created an interim, either before the officers elected in November last take their seats or else at the end of the term for which they were then elected, whatever that term may be. For instance, either an interim for one year arose in the office of governor at the expiration of Governor Herrick’s holding over, to-wit, January 8, 1905, thereby postponing the commencement of Governor Pattison’s term until January 1, 1907, or else an interim will arise at the expiration of two years from the date of Governor Pattison’s inauguration, in which event the legislature must under the middle paragraph of section 2 of the amendment, extend his term for one year-, that his successor may be elected in the even numbered year 1908. The same condition exists as to all county offices, such as that of sheriff, for instance, for which the term was two years and for which an election was held last November. But this was manifestly not the intention of the amendment. Section 3 of the amendment provides that, “every elective officer holding office when this amendment was adopted shall continue to hold office for the full term for which he was elected and until his successor shall be elected and qualified, as provided by law.” By the provisions of this section, Governor Herrick held over for a period elapsing between the ratification of the amendment and January 8th. This third section was no doubt inserted in contemplation of the fact that when the amendment was adopted all terms of office existing prior to and at the time of the November election ceased to exist. 8 Ency. Law and Proced., 763; State v. Holcomb, 46 Neb., 88.
    Section 3 of the amendment provided for and took care of all officers holding prior to and at the time of the November election and, by their holding over until their elected and qualified successors took their seats, continued governmental operations.
    Moreover, constitutional amendments are prospective and not retrospective in their operation. Officers holding at and prior to the election had their terms cut short by the adoption of the amendment. Section 3 permitted them to hold over. Therefore the officers serving continued to serve not for a term, but to hold over until their duly elected and qualified successors took their seats. That they were not holding over for a term is manifest for the reason that a term is defined as a fixed and definite period of time. 23 Am. & Eng. Ency. Law (2 ed.), 404; Throop on Public Officers, sec. 303; State v. Howe, 25 Ohio St., 588.

      That they were merely holding over is apparent from the last case, cited supra. The time for which they held after the adoption of the amendment is uncertain, because they were to hold for the residue of the term for which they were elected and until their duly elected and qualified successors entered upon the discharge of their duties. They were in the same position in effect — their terms having been, cut short — as an officer who has served out his term and continues in office until his duly elected and qualified successor takes his seat. In the adoption of the amendment the electors in substance said to those holding office prior to and at the time of the election, “We will terminate your term of office, but you may continue to serve until your duly elected and qualified successors assume the duties of office. ’ ’
    That the words, “existing terms of office,” occurring in section 2, of the amendment, apply only to the terms existing under the amendment is evident from the fact that section 3 in the clearest of language provides for all officers whose terms existed under the constitution before it was amended.
    Constitutional provisions, like statutes and private instruments, must be construed, if possible, so as to give effect and some force to each of their provisions. By legal intendment each and every clause has been inserted for some purpose, which when rightly understood, may have some practical result. Tuttle v. Bank, 161 Ill., 501.
    Our contention is reinforced by the fact that the constitutional amendment provides for the extension of terms of office but does not provide for a limitation thereof. When it became operative by adoption, all terms of office existing prior to the November, election ceased. There were no terms of office, therefore, to extend. The amendment therefore conld not operate to extend those abrogated terms and conld operate only on those terms which came into existence with and under the amendment itself.
    We think the language of article 16, section 1, Constitution 1851, too plain to call for construction or interpretation. “Adoption” is the acceptance of the amended provisions by a majority vote. That adoption is complete when the acceptance is so expressed. No other condition or prerequisite has to be found to exist. The people by casting a majority vote to accept the amendatory provisions in lieu of the old provisions, by the act of acceptance, eo instanti made ' nugatory the old provisions and replaced them with the new. The only power which can make or amend a constitution is the people. That power is exercised by the act of voting. The vote cast, the power is executed. No power exists, other than the people, by the same means, to nullify, modify or abridge, that act. This position is supported by abundant authority.
    We cite the provisions of article 20, section 1, of the constitution of Michigan for the purpose of showing that its provisions are substantially and practically the same as those of article 16, section 1, of our constitution. This article of the constitution of Michigan is construed and applied by the supreme court of that state in Seneca Mining Co. v. Osmun, 82 Mich., 573. Supportive of this case are the following: Advisory Opinion to Governor, 34 Fla., 500; Schall v. Bowman, 62 Ill., 321; People ex rel. Lynch v. La Salle, 100 Ill., 495; Wade v. La Moille, 112 Ill., 79; In re Deckert, 2 Hughes, U. S. C. R., 187; Pemberton v. McRae, 75 N. C., 497; Peak v. Swindle, 68 Tex., 242; Wade v. Walnut, 105 U. S., 1; Parker v. Smith, 3 Minn., 240; Worman v. Hagan, 78 Md., 152.
    No one will claim that a person elected prohate judge after said article 17 became operative was not entitled to a four year term. It is claimed that one elected simultaneously with the adoption of said article is not entitled to a four years ’ term.
    What is such an one’s tenure of office, if not four years! Three! By what authority! That of article 4, section 7 ! But on the evening of November 7,1905, that article ceased to exist in so far as it fixed or could fix the term of a probate judge.
    If the amendment, now article 17, had not been adopted on November 7, 1905, old article 4 would control.
    But said amendment was adopted and article 4 ceased to exist and, of course, could not operate to fix the term of office of the probate judge.
    And yet the relator’s term of office must be fixed by some constitutional authority. The authority of the old article in that respect died simultaneously with relator’s election; the new article was born to life, immediately on such death. There was no interregnum. “The king is dead; long live the king.” When article 4 died it died to all purposes. When its successor, article 17, was born all the purposes and objects of its being' were born with it. Ex parte Danley, 24 Ark., 3.
    At the general election held on the seventh day of November, 1905, at the same moment of time, three concurrent and complete acts took place:
    (1) The election amendment, being article 17 of the constitution, took effect and went into operation.

      (2) All the provisions of article 4, section 7, of the constitution, in conflict with article 17, were repealed.
    (3) The relator was elected probate judge of Summit county, Ohio.
    Relator was elected by and under the authority of the old constitution. His right to the office to which he was elected can not be questioned.
    The argument, if such be made, that if the term of office of the relator is to be governed by the provisions of article 17, then his election was void, because article 17 provides that probate judges shall be elected in even years, is not sound. The term for which an officer may hold does not fix his right to be elected, the qualifications for his election, nor the rules by which he shall be elected.
    In other words, it is no part of the prerequisites or conditions of an election to office that the term shall be for a greater or less duration.
    The people had the constitutional right and power to elect a probate judge by their vote at the November election,' 1905. They at the same time had the right and power to fix his term of office at either three or four years.
    Following the principle laid down in State ex rel. Evans v. Dudley, 1 Ohio St., 442, and the consequent analogies, may we not claim, that for all purposes of construction as to intended effect and operation, we may properly look to the existence of things at the time the legislature (exercising functions at that time analogous to a constitutional convention) proposed by joint resolution the amendment now known as article 17. That date was March 18,1904.
    ' It may be assumed the legislature knew that a term of office fixed by the constitution can not be limited or extended by legislative act. 8 Cyc., 763, sec. 6; State v. Brewster, 44 Ohio St., 589.
    There would have to be incorporated in the proposed amendment, a provision empowering the legislature to limit or extend the terms of office of probate judge so as to bring about regular elections in even years. This they could do. This, however, the legislature did not do. It did, however, provide in said proposed amendment as follows:
    “And the general assembly shall have power to so extend existing terms of office as to effect the purpose of section 1 of this article.” Section 2, article 17.
    In other words inserted constitutional powers to extend but not to limit terms of office by legislation.
    It is idle to argue that the general assembly can not be presumed to have foreseen just such a condition as has here arisen and provided for it in the very language of the proposed amendment (now article 17), we have quoted.
    Will it be said that the legislature presumed that the article sought to be amended would control as to terms of office, until the legislature should provide for elections under the amendment? All conditions rebut this.
    The provision of section 3, article 17 applies only to such officers as had been elected before the going into effect of article 17, and whose terms, by virtue of the constitutional provision fixing their terms, in existence previous to the adoption of article 17, would continue beyond the time of the adoption and ratification of article 17, and was necessary to be a part of article 17 to make valid the continuance of such officers to the end of their term. For, the legislature will be presumed to have had in mind the decision of onr Supreme Court. State v. Taylor, 15 Ohio St., 137.
    The purpose of the “election” amendment is more comprehensive than is stated by the defendants’ counsel in their argument. It does more than to fix the time of certain elections in even numbered years and others in odd numbered years. The subject-matter dealt with is elections. The purpose of the amendment is expressed in the title of the joint resolution as follows: “Fixing the time of holding elections and terms of office.” The purpose is therefore not twofold. In order to constitute more than one amendment the proposition submitted must relate to more than one subject and have at least two distinct and separate purposes not dependent upon or connected with each other. • State v. Mason, 9 S. Rep., 776; People v. Sours, 13 Col., 369; Cooley Const. Lim., 171.
    Tested by the above rule there was but one amendment submitted and it had but a single purpose.
    It is the intention of the amendment to separate local elections, as far as practicable from state and national elections, so that elections for township, village and municipal purposes will not be influenced or controlled by state and national issues. It will accord with the legislative intent to make the date for the election of county officers.different from the date of presidential elections. County matters are almost as distinctively local as those of a township, village or municipality. The legislative intent will be furthered if probate judges are elected in even numbered years falling between the dates of the presidential elections.
    1. Pardee does not become a probate judge under the old constitution.

      2. He cannot qualify under or by virtue of any provision of the old constitution, because it ceased to exist.
    3. Every provision of the old constitution inconsistent with the amendment was repealed when the vote closed on election day.
    We summarize as follows:

      First. The plain language of the constitution declares that the amendment must go into operation at once.

      Second. If the amendment had shortened the term or abolished the office, the relator could not have been commissioned for three years in the first instance nor for any period in the second.

      Third. If it was not intended that the amendment should take effect immediately, it would have contained a provision to the contrary, like the taxation amendment.

      Fourth. The plain intent of the amendment is to extend terms of office. It shortens none.

      Fifth. Old officers hold over by virtue of the amendment itself. As to them it takes effect immediately, although elected under the old constitution. Why should it not take effect as to officers elected at the time of its adoption?

      Sixth. If respondents’ construction is adopted, both the amendment and the old construction will operate at the same time and at various periods of time in the future.

      Seventh. By section three of the amendment, old officers are to hold over. The conclusive inference is that the terms of officers, elected November 7th, last, are to be controlled by the provisions of the amendment.

      Our conclusion is that Pardee was elected for a four years’ term. Whatever interim occurs at the end of that time must he provided for by the legislature.

      Mr. Wade H. Ellis, attorney general; Mr. W. R. Miller and Mr. Roscoe J. Mauck, of counsel, for the respondents.

      That construction will he given which is best designed to cure the ill sought to he remedied.

    The primary purpose of the amendment as a whole is expressed in the first section thereof, which provides for the election of state and county officers in even numbered years, and other officers in odd numbered years. Without this none of the remaining sections would have been proposed and all of them are merely incidental to and growing out of section one. If the remaining sections were to be considered as propositions separate and distinct, that is, if the purpose of section two, for instance, had been to fix the term of the probate judge at four years, regardless of the necessity arising through the adoption of section one, the amendment as a whole, must fail because of that provision of section 1, article 16, reading: “Where more than one amendment shall be submitted at the same time, they shall be so submitted as to enable the electors to vote on such amendments, separately.”
    It is then not only fair, but necessary to the case of the relator himself to assume that the one and single purpose of the amendment is to fix the years in which elections shall be held, and only incidentally to alter or to authorize the general assembly to alter terms of office to harmonize with biennial elections. So far as probate judges are concerned, the new amendment is self-executing. The old provision of the constitution, section 7, article 4, fixed the term of that office, and never required legislative action to put it into operation, and there can be no reason advanced why this amendment is not to the same extent self-enforcing. An examination of the whole of section 2 discloses that the terms of the other officers mentioned in the amendment are to be fixed by the general assembly and the tenure of incumbents extended because the terms of the incumbents thereof will expire in different years, while the term of the probate judge in every county in the state expires at one and the same time. Keeping in view then that the purpose of the amendment is to require the election of probate judges in the even years, it ■is seen that if the relator is commissioned for three years, according to the law prevailing at the time he submitted his candidacy to the people, his successor will be-elected in 1908 and thereafter each successive probate judge, at intervals of four years, without any legislative action. If, however, the relator’s position is sustained and he is commissioned for four years, the term of his successor would begin in February, 1910, and inasmuch as no election for probate judge can be held in 1909, legislative action would necessarily be invoked to extend his term to five years. Throop on Public Officers, sec. 308.
    But can the legislature. extend the tenure of the probate judge or fill the interregnum thus sought to be created between February 9, 1909, and February 8, 1910? Under the holding of this court in State ex rel. v. Heffner, 59 Ohio St., 368, it had no such power, and if such power now exists it is by virtue of that provision of the section, under consideration, reading: “And the- general assembly shall have power to so extend existing terms of office as to effect the purpose of section 1 of this article.”
    It is not necessary, however, “to effect the purposes of section 1 of this article” for the general assembly to possess and exercise such power. The necessity for such added power is wholly avoided by the construction placed upon the amendment by the respondent. The relator would invoke employment of the emergency powers bestowed upon the general assembly to meet an emergency of his own creation. Or, to put it another way, he would have a constitutional amendment go into effect for the purpose of giving the legislature an opportunity to violate it.

      Where a statute or constitutional provision can be construed either prospectively or retrospectively, it shall be held to be prospective only in its operation, unless the contrary intention is clear.

    The right that the relator has to the office of probate judge arises by virtue of his election by the people under the law of the state of Ohio. This law fixing the term of his office at the time of his election was to be found in section 7 of article 4 of the constitution and limited the term at three years. A similar question was under consideration by the Court of Appeals of New York in The People v. Foley, 148 N. Y., 677. '
    The difference between the New York case and the one at bar is only a degree. In the former the act changing the term intervened between the election and the. commission, just as in the case at bar. In one case the change was upon the same day, while in the Other the change was the day following the election.
    If the amendment were given the construction sought by the relator, the fact that the amendment was adopted on the same day as the election would not make the amendment any less retrospective in its operation than if some greater length of time had elapsed between the election and the amendment.
    The fiction that the law knows no division of a day is not regarded where substantial rights are involved and the day is capable of division. 26 Am. & Eng. Ency. Law (2 ed.), 563; Arrowsmith v. Hamering, 39 Ohio St., 573.
    The two facts that determine whether the relator in this case seeks a retrospective construction of the amendment are not only determinable, but are already determined by law. His election was a completed fact by the closing of the polls and all of his rights were then vested. This amendment was not a part of the constitution, however, during any part of the time that elapsed prior to the closing of the polls. ' Until 5:30 o ’clock on election day the constitutional provision that a probate judge shall be elected for a term of three years was in full force and effect, so the whole claim of the relator depends upon the retroactive operation of the amendment.
    The authorities cited happen to relate to the application and construction of statutes, but the same rules are applied to the construction of constitutional provisions. This court so held in Allbyer v. State, 10 Ohio St., 588, and the Supreme Court of the United States expressed the same principle in Shreveport v. Cole, 129 U. S., 43, as follows: “If any ambiguity exists as to the length of an official term, it must be so construed as to limit such term to the shorter period.”

    This court does not seem to have ever had occasion to pass upon the rule, but it seems to be well established in other jurisdictions. 23 Am. & Eng. Ency. Law (2 ed.), 409; People v. Brenham, 3 Cal., 477; 114 N. C., 929; Wright v. Adams, 45 Tex., 134; Smith v. Bryan, 100 Va., 199.
    The suggestion has been made that a line of cases in the supreme court of Illinois might be found to support the position of the relator. An examination of these cases seems to disclose that they are not in point. On July 2,1870, the people of Illinois adopted an amendment to their constitution prohibiting aid from local political divisions of the state for the construction of railroads. The court simply held that the amendment was upon the instant of its adoption a constituent part of the. constitution of the state, notwithstanding the fact that a new constitution submitted at the same time did not go into effect until later, and that consequently a municipality could not after July 2, 1870, make any subscription in aid of a railroad. The line of cases referred to are: Schall v. Bowman, 62 Ill., 321; Richards v. Donagho, 66 Ill., 73; Wade v. LaMoille, 112 Ill., 79; Wade v. Walnut, 105 U. S., 1.

      The contention of the relator wotild lead to unnecessary confusion and absurd consequences.

    If the relator is correct, as it is claimed, and his contention as to the construction of the constitutional amendment is to be adopted by the court, it would lead to the following consequences, which we submit make impossible such a construction, and which would be mischievous if not absurd.

      First. It would require the legislature to violate the constitution by extending- the term of a probate judge from four years to five years.

      Second. It would require the legislature to make an extension of a term of office not to effect the purpose of section 1 of the amendment, because such purpose can be effected without any extension of the probate judge’s term.

      Third. If, as the relator contends, this amendment went into effect so as to control- the term of office for which he was elected, it must have gone into effect for all purposes, and therefore he was elected contrary to the amendment, since he was elected in the odd numbered year, whereas he ought to have been chosen in an even numbered year. In other words, a consideration of this amendment shows that the relator must stand upon on'e or the other of these propositions, either he was elected for a term of -three years or he was not elected at all.
    For the reason then that the relator cannot be admitted to have been elected, without doing violence to the cardinal rules for the construction of written laws, it is respectfully submitted that the certificate of election presented to the respondents, reciting the election of the relator to the office of probate judge for a period of four years is not a legal certificate, and that the demurrer to the petition should be sustained.
   Davis, C. J.

The contention that the election of the probate judge was without regard to and separable from, his term of office, cannot be maintained. The electors may not have consciously considered the term of office for which one of the candidates should be chosen; but it is conceivable that many of them may have done so and that the term of office might have some influence in the choice among candidates. It is also true that the conditions with which the constitution and the laws surround an office are necessarily contemplated in the act of choosing or appointing the officer. And such, it seems to us, is the result of former decisions of this court and of a close reading of the constitution itself. Sections 2 and 6 of article 4 of the constitution prescribe that the judges of the supreme court and of the circuit court “shall be elected for such term,” etc.; and in section 13 of article 4 it is provided that “In case the office of any judge shall become vacant before the expiration of the regular term for which he was elected,” etc. Hence the electoral act of choosing between candidates is by the constitution coupled with the choice of the officer for the constitutional term. In State v. Cogswell, 8 Ohio St., 620, where a vacancy occurred in the office of the probate judge of Pickaway county more than thirty days before the next annual election at which a probate judge for the constitutional term was to be chosen, and the sheriff in his proclamation giving notice of said election failed to give notice that a probate judge would be chosen to fill the unexpired term but merely gave notice that one probate judge for said county would be chosen, without more, and the voters cast their ballots for probate judge without indicating whether for the unexpired term or for the constitutional term, it was held that the judge thus elected must by reasonable intendment be held to have been elected for' the full and not for the unexpired term. And the court said in the opinion that “The term of three years as the duration of a probate judge’s .office is the general rule under the constitution, terms to fill vacancies the exception. The office of probate judge, when announced in the call for an election, or inscribed upon the ballot of the elector, without limit or qualification, prima facie, at least, imports a term of three years; and such, in our judgment, was the character, and duration of the office which, under the averments of the answer, the defendant was elected to fill.” Similar views were expressed by this court in the following cases: State v. Chase, Governor, 7 Ohio St., 372; State v. Taylor, 15 Ohio St., 137; State ex rel. v. Handy, 51 Ohio St., 204; and State v. Neibling, 6 Ohio St., 40. It therefore appears that in legal contemplation the choosing an officer at an election, duly proclaimed, is a choosing for the constitutional or statutory term of the office, as the case may be. This view seems to be recognized by the amendment which is now under consideration; for in the third section it provides that every elective officer holding office when this amendment is adopted, shall continue to hold such office for “the full term for which he ivas elected

When the relator was elected, on the seventh day of November, 1905, he was elected for the term of three years beginning February 9, 1906, because his former term of office will extend to that date and because the amendment under which he now claims a term of four years was not yet in force when the proclamation for such election was made, nor whén the election occurred. Indeed the electors could not have known that the amendment would be adopted. Whatever view may be the correct one as to the time when the amendment became operative, it is certain that it was not in force until after the election on the seventh day of November was closed; and it is equally certain that such election was not held under or with reference to this amendment to the constitution. Unless a retroactive effect be given to the amendment it could not in any respect qualify the term for-which the relator had been chosen.

It is a familiar rule of constitutional interpretation that a constitutional provision must be construed prospectively unless the language of the constitution is so clear and distinct as. to require a different construction. We do not think that the language of this amendment requires, or even suggests, a retrospective operation. Since the term of office of any electivé officer is read into the act of the electors in choosing him and is inseparable from that act, it follows that the terms of office defined in section 2 of this amendment, now designated as article 17 of the constitution, were intended to go into effect as to officers elected as provided in section 1; and section 2 can be applied to no other officers unless it be plainly so provided. There were only two classes of officers, not elected under the provisions of the amendment, to be provided for. One class was made up of the elective officers who were in possession of their offices and actually serving when the amendment should be adopted and it was provided in section 3 that every officer in that class should continue, in office for the full term for which he was elected, and until his successor should be elected and qualified as provided by law. The other class, including the relator, is composed of those who were chosen .under and by virtue of the constitution as it existed before the amendment but whose terms of office, although defined by the constitution, had not yet begun when the amendment was adopted. This class is provided for in section 2 of the amendment as follows: “And the general assembly shall have power to so extend existing terms of office as to effect the purpose of section 1 of this article.” The phrase “existing terms of office?’ means the terms of office as defined in the constitution and the acts of the general assembly as existing at the time of the proposal and adoption of the amendment. It could not refer only to the terms of those actually holding office at the time of the adoption of the amendment. Those were provided for by section 3 of the amendment. Nor could it apply to such as might be elected in accordance with section 1 of the amendment; for as to such officers the provisions of section 2 of the amendment were clearly intended to be self-executing: that is, when biennial elections shall be had, as provided in section 1, the provisions of section 2 will work out in harmony with section 1. It is not apparent that any necessity would ever arise for the extension of terms of office provided for in the amendment and therefore no power is conferred on the general assembly to extend such terms. The word ‘‘existing” is referable only to the time of the adoption of the amendment. . Hence we reach the conclusion that the general assembly is not empowered to extend terms defined by or created under the amendment which is now designated as article 17 of the constitution; but that such power is confined to such officers as weré already elected at the time when the amendment became effective.

By no fair construction have we been able to discover any retroactive operation of this amendment. It does not attempt to abolish or in any manner restrict existing terms of office; but on the contrary the manifest intention is to continue them unto the end and, if necessary to fit into the new order of elections, to extend them. We are not construing a new constitution. We are construing an amendment to the constitution, which displaces the constitution only so far as it expressly abrogates, or is irreconcilably in conflict with, former provisions. In the view which most commends itself to our judgment, section 7 of article 4 of the constitution remains wholly operative as to the terms of officers elected at and before the adoption of article 17, with the added provision, as defined above, for the extension of existing terms so as to effect the purpose of section 1 of article 17; and that the three year clause of section 7, article 4, is abrogated only as to such officers as shall be hereafter elected as provided in the amendment now known as article 17.

This construction appears to us to harmonize section. 7 of article 4 with the intent and purpose of the amendment; for, giving the relator the term of three years, from February 8, 1906, when his present term will expire, would bring around the election of his successor in the year 1908, without necessity for extension of the term “so as to effect the purpose of section 1” of the amendment; and thereafter the election for the regular term would occur every fourth year in even years. But if the relator should be commissioned for a term of four years the election of his successor would fall in 1909, which would require an extension of the term so as to bring the election in an even year.

When the purpose of section 1 of the amendment can be easily and naturally effected without the intervention of the general assembly, we cannot presume that it was the intention to create a necessity for an abnormal term in order to accomplish the same end.

The allegation in the petition that the deputy supervisors of elections made and delivered to the relator a certificate of his election for the term of four years, adds nothing to the case. It was the duty of those officers to certify the relator’s election and there the authority conferred by statute ends; and when such certificate has been filed with the secretary of state, accompanied with, the fee required by law, it is made the duty of the governor to issue “the proper commission.” The governor and secretary of state properly refused to make out and deliver to the relator a commission for the office of probate judge for the term of four years.

Demurrer sustained and petition dismissed.

Shauck, Price, Crew and Summers, JJ., concur.


text:
    No. 8680.
    Moore v. The Baltimore & Ohio Railroad Co.
    (Decided October 3, 1905.)
    Error to Circuit Court of Tuscarawas county.

      Mr. J. 8. Graham, for plaintiff in error.

      Mr. J. M. Lessich and Messrs. Healea & Healea, for defendant in error.
   Judgment affirmed.

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


text:
    No. 8746.
    Thoms v. Thoms.
    (Decided October 3, 1905.)
    Error to Superior Court of Cincinnati.

      Messrs. Gordon, Granger & Dewitt, for plaintiff in error.

      Messrs. Bates é Meyer and Messrs. Bromwell é Bruce, for defendant in error.
   Judgment ¿firmed.

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


text:
    No. 9105.
    Kromes v. La Belle Iron Works.
    (Decided October 3, 1905.)
    Error to Circuit Court of Jefferson county.

      Mr. P. P. Lewis and Mr. T. A. L. Thompson, for plaintiff in error.

      Mr. A. C. Lewis and Mr. Bio Rogers, for defendant in error.
   Judgment affirmed.

Davis, C. J., Shauck, Price and Crew, JJ., concur.


text:
    No. 9137.
    Day, Exr., et al. v. Moore et al.
    (Decided October 3, 1905.)
    Error to Circuit Court of Lorain county.

      Mr. Lee 8. Bay; Messrs. E. G. & H. G. Johnson, for plaintiffs in error.

      Messrs. Johnston & Leonard, for defendants in error.
   Judgment affirmed.

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


text:
    No. 9174.
    Grewell v. Carruthers et al.
    (Decided October 3, 1905.)
    Error to Circuit Court of Tuscarawas county.

      Mr. E. E. Lindsay, for plaintiff in error.

      Mr. J. F. Greene, for defendants in error.
   Judgment affirmed.

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


text:
    No. 9181.
    Kappler v. City of Martins Ferry.
    (Decided October 3, 1905.)
    Error to Circuit Court of Belmont county.

      Mr. George Duncan, for plaintiff in error.

      Mr. W. T. Dixon, Jr., for defendant in error.
   Judgment affirmed.

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


text:
    No. 9182.
    The La Belle Land Co. v. Glover et al.
    (Decided October 3, 1905.)
    Error to Circuit Court of Jefferson county.

      Mr, J. G. Bigger and Mr. Ira Blackburn, for plaintiff in error.

      Mr. Rees G. Richards, for defendants in error.
   Judgment affirmed.

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


text:
    No. 9253.
    The State of Ohio v. Lingafelter.
    (Decided October 3, 1905.)
    Exceptions to the Court of Common Pleas of Licking county.

      Mr. J. R. Fits gibbon, for plaintiff in error.

      Mr. John David Jones, for defendant in error.
   Exceptions overruled.

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


text:
    No. 9394.
    The Eastern Ohio Coal Co. v. Bugher.
    (Decided October 3, 1905.)
    Error to Circuit Court of Noble county.'

      Messrs. Okey & Frasier and Mr. G. H. Judkins, for plaintiff in error.

      Mr. R. T. Scott and Mr, C. O. Bye, for defendant in error.
   Judgment affirmed.

Shauck, Price, Summers and Spear, JJ., concur.


text:
    No. 9397.
    Zarembski v. The Cincinnati, Hamilton & Dayton Railway Co.
    (Decided October 3, 1905.)
    Error to Circuit Court of Lucas county.
    ■ Mr. Harvey Scribner and Mr. Cornell Schreib'er, for plaintiff in error.

      Messrs. Swayne, Hayes, Fuller & Tyler and Mr. W. P. Tyler, for defendant in error.
   Judgment affirmed.

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


text:
    No. 9466.
    Powers v. Weber et al.
    (Decided October 3, 1905.)
    Error to Circuit Court of Fulton county.

      Messrs. Handy & Wolf, for plaintiff in error.

      Messrs. Ham, Ham & Ham and Mr. J. M. Sheets, for defendants in error.
   Judgment affirmed.

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


text:
    No. 8812.
    The Union Special Sewing Machine Co. v. Jackson.
    (Decided October 10, 1905.)
    Error to Circuit Court of Sandusky county.

      Mr. J. H. Fowler and Messrs. Hunt & He Ban, for plaintiff in error.

      Messrs. Meek, Hudrow & Worst and Mr. J. B. Stahl, for defendant in error.
   Judgment affirmed.

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


text:
    No. 9149.
    The Toledo, Bowling Green & Fremont Railway Co. v. Pfisterer.
    (Decided October 10, 1905.)
    Error to Circuit Court of Lucas, county.

      Mr. J. A. Bope; Messrs. King & Tracy and Messrs. Marshall £ Marshall, for plaintiff in error.

      Mr. C. A. Thatcher, for defendant in error.
   Judgment affirmed.

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

Price, J., not participating..