text:
    Schell v. DuBois, Admr.

      Negligence — Violation of statute or ordinance — Negligence per se, when — And defendant liable, when.

    1. The violation of a statute passed for the protection of the public is negligence per se, and where such act of negligence by a ¡defendant is the direct and proximate cause of an injury not directly contributed to by the injured person, the defendant is liable.
    2. The violation of a municipal ordinance passed in the proper exercise of the police power- in the interest of the public safety, and not in conflict with general laws, is negligence per se, and where such act of negligence by a defendant is the direct and proximate .cause of an injury, not directly contributed to by the want of due care on the part of the injured person, the defendant is liable.
    (No. 14951 —
    Decided February 29, 1916.)
    Error to the Court of Appeals of Belmont ■ county.
    The administrator of William Git-chell, 'deceased, brought the original action in the court of common pleas of Belmont county, against plaintiff in error, John H. Schell. *
    The allegations of the petition substantially were that the plaintiff’s intestate was killed by reason of the' negligence of the defendant in the operation of an automobile, at the time and place, at an excessive rate of speed and beyond his control — at a rate of speed in violation of Section 12604, General Code; in failing to sound a warning of his approach; and in driving the automobile past a street car, from which the plaintiff’s intestate had alighted, while the same was standing at the street crossing for the purpose of unloading passengers, in violation of an ordinance of the city of Bellaire, which ordinance was duly pleaded.
    It is alleged that the ordinance provided that if should be unlawful for any person to drive an automobile past a street car or other conveyance for passengers in the city of Bellaire when said street car or other conveyance is standing for the purpose of receiving or discharging passengers; that the defendant was negligent and -reckless in failing to see the deceased while crossing the street, in time to avert the accident.
    The answer of the defendant, after acknowledging the qualification of the administrator, admitted that the deceased was struck by the defendant’s automobile and received injuries from which he died.
    The answer contained further admissions as to the description of the locality and general situation with reference to the accident and denied each and every other' allegation in the amended petition contained.
    In a second defense in the answer the defendant alleged that the death of the plaintiff’s intestate was caused solely by his own negligence, in that he failed to keep a proper and reasonable lookout for his safety at the time of, and before, walking across said Noble street. The allegations of- this defense were denied in the reply.
    In the charge of the court to the jury on the trial of the case there was included the following: “It is a rule of law that violation or violations of a provision of the code or statute of the state constitutes prima facie negligence. This means simply that proof of the violation of a provision of the code or statute by running an automobile at a greater rate of speed than is provided by such code or statute shall be prima facie proof only of negligence; but it is not conclusive, and, if the jury find in this particular case, that the defendant ran the automobile at a greater rate of speed than is provided by law, that is not conclusive of negligence on the part of the defendant if the jury should find, under all the circumstances as shown by the evidence in this case, that the defendant was not negligent in the operation of his automobile.”
    There was also included in the charge of the court to the jury the following: “Now, while this ordinance has been introduced in evidence, and while the plaintiff claims that the same was violated by the defendant, which he denies, neither the ordinance itself nor its violation, if the same has been proven, is sufficient in and of itself to establish the claim of the plaintiff that the defendant was guilty of negligence, but such ordinance and the testimony tending to show its violation, if any, may be considered by you as circumstances tending to prove negligence. You are, however, to determine the question as to whether or not the defendant was negligent on account of his failure to exercise ordinary care, as we have said, from a consideration of all the facts and circumstances proven upon the trial of this case.”
    The jury rendered a verdict in favor of the defendant. Judgment was entered on the verdict, and the court of appeals, on error, reversed that judgment for “error in the charge of the court below and in refusing to charge as requested, and that substantial justice, therefore, has not been done said plaintiff in error.”
    This proceeding is brought to reverse the judgment of the court of appeals and affirm that of the common pleas.
    The defendant in error, in support of the judgment of the court of appeals, insists that the portions of the charge above quoted were erroneous and points out other claimed errors which we do not regard as important.

      Mr. William Dixon, Jr.; Mr. David H. James and Mr. Fred Spriggs, for plaintiff in error.

      Mr. D. D. DuBois and Mr. Gordon D. Kinder, for defendant in error.
   Johnson, J.

The decisive questions are those relating to the action of the court in its charge to the jury.

It was alleged in the petition that at the time of the accident the defendant was driving his automobile at. a rate of speed in violation of Section 12604, General Code, which makes unlawful the operation of a motor vehicle at a greater speed than eight miles an hour in the business and closely built-up portions of a municipality. As to this the court charged the jury: “It is a rule of law that violation or violations of a provision of the code or statute of the state constitutes prima facie negligence. This means simply that proof of the violation of a provision of the code or statute, by running an automobile at a greater rate of speed than is provided by such code or statute, shall be prima facie proof only of negligence; but it is not conclusive, and, if the jury find in this particular case, that the defendant ran the automobile at a greater rate of speed than is provided by law, that is not conclusive of negligence on the part of the defendant if the jury should find, under all the circumstances as shown by the evidence in this case, that the defendant was not negligent in the operation of his automobile.”

This was a plain instruction to the jury that, notwithstanding the fact that the evidence might show that the defendant ran the automobile in the business and closely built-up portion of ¡Bellaire at a greater speed than is allowed by law, it would still be the province of the jury to say whether the defendant was negligent in thus disregarding the law and in violating the specific duty which was imposed upon him by the statute.

It was thus left to the jury to say whether the violation of the law was a negligent act. The statute imposed the duty on the defendant not to operate the automobile at a greater rate of speed than that specified in the statute. The defendant was bound to comply with this legal requirement. It was not for him to speculate or decide whether he would or would not obey the law. The obligation was imposed upon him for the protection of the public and for each member of the public; and when he violated that obligation he was guilty of negligence by that act alone. But that would not create a liability unless that act was the proximate cause of the injury.

As was said in Variety Iron Co. v. Poak, 89 Ohio St., 297, 310: “The plaintiff * * * predicated his right of recovery upon the violation of the statute, which made it an absolute duty on the part of the employer to adopt certain measures to protect its employes. It was not for the jury to say whether a failure to comply was negligence. To use the language of the court of appeals: ‘As no jury is allowed to say that which is not the law shall be the law, so they should not be permitted to say that which is the law, is not the law.’ The violation of this statute in this case was negligence as a matter of law. If this negligence was the proximate cause of the injury, the company was liable.” Section 1027, General Code, which was involved in that case, did not expressly create a cause of action in favor of an injured person, but this court held its violation to be negligence per se.

As said by Judge Taft in C., H. & D. Ry. Co. v. Van Horne, 69 Fed. Rep., 139: “There was no issue before the jury as to whether the failure to insert a block was negligence on the part of the railroad company. It was negligence as a matter of law, and the court properly charged the jury that, if the block was not there, and the absence of it caused the accident, the defendant was liable.”

The statute involved in that case (85 O. L., 105), which required the blocking of frogs, was a penal statute and did not by its terms confer a cause of action upon one who had been injured by reason of its violation. Nevertheless the right of action was sustained, and it was held that the plaintiff could recover if he could show that the absence of a block “caused the accident.” It was negligence as matter of law.

This holding was expressly reaffirmed in L. E. & W. Ry. Co. v. Craig, 73 Fed. Rep., 642; Narramore v. C., C., C. & St. L. Ry. Co., 96 Fed. Rep., 298, and Cooper v. B. & O. Rd. Co., 159 Fed. Rep., 82.

In Coal Co. v. Estievenard, 53 Ohio St., 43, the action was brought under the provisions of Section 6871, Revised Statutes. The act. required the owner, agent or operator of a coal mine to keep a supply of timber constantly on hand and to deliver it to the working place of the miner. It provided that no miner should be held responsible for accidents which might occur in mines where the provisions of the section had not been complied with by the owner, agent or operator. It also provided that it should be the duty of the miner to securely prop the roof of the place under his control. This court held, at page 49: “All he [the miner] has to prove to make his case, as to that point, is that in fact the delivery was not made. * * * and a failure on the part of the owner, agent, or operator to so deliver timber to the working place of the miner, is negligence, and if injury is thereby proximately caused to the miner, an action will lie therefor.”

It is likewise to be noted that the act involved in that case did not-confer a -cause of action upon one who had been injured by reason of the failure to comply with its terms.

In Chicago, B. & Q. Ry. Co. v. United States, 220 U. S., 559, it is held that, under the safety appliance act of March 2, 1893, there is imposed an absolute duty on the carrier and the penalty cannot be escaped by the exercise of reasonable care.

In the cases to which we have referred the disregard of the obligation imposed by the statute was held by the courts to be in itself an act of negligence, and it was held that if this act of negligence was the proximate cause of the injury to the plaintiff, to which he had not contributed by any want -of due care on his own part, the defendant was liable.

In the case of a violation of a statute which requires the covering of a set-screw, or other similar safeguard, the negative act of failing to provide the contrivance required is the act of negligence. Whereas, in the case of a violation of a statute regulating speed in the streets of municipalities to secure safety to the public, the positive violation of the statute is the act of negligence.

Of course a different case might be presented in which a speed much less than the maximum fixed by statute, would be found by the jury to be negligence in the particular place and circumstances, without reference to the statute.

In this case if the operator of the automobile ran it in the portion of the city referred to at a speed in excess of the speed fixed by the statute, he was guilty of negligence, and if this act of negligence was the direct and proximate cause of the injury, not contributed to by want of due care on the part of the decedent, the defendant was liable.

The court also charged the jury as to the ordinance referred to: “Now, while this ordinance has been introduced in evidence, and while the plaintiff claims that the same was violated by the defendant, which he denies, neither the ordinance itself nor its violation, if the same has been proven, is sufficient in and of itself to establish the claim of the plaintiff that the defendant was guilty of negligence, but such ordinance and the testimony tending to show its violation, if any, may be considered by you as circumstances tending to prove negligence.”

One of the allegations of negligence in the petition, after stating the fact that the car had stopped to discharge passengers and that Gitchell was a passenger, is that the defendant carelessly and negligently drove his automobile past the standing car, in consequence of which the decedent was struck by the automobile. The plaintiff avers that there is an ordinance of the city of Bellaire which provides that it shall be unlawful to drive an automobile past a standing car which is receiving or discharging passengers, and that in consequence of the violation of this ordinance and of defendant’s carelessness in driving his automobile at the time, the decedent received his injuries.

It will be observed that the charge of the court as to the ordinance was different in some essentials from the portion thereof with reference to the violation of the statute. As to the statute the rule declared was that a violation or violations of a provision of the statute’ constitutes prima facie evidence, but that it is not conclusive. As to the ordinance the charge is, that the violation of the ordinance is not sufficient in and of itself to establish that the defendant was negligent. Therefore, if this is the correct rule, if the injury to the deceased had been caused solely by and because of the very acts of the defendant in violation of this ordinance, even though the decedent was wholly free from fault on his part, the jury nevertheless is instructed that this would “not be sufficient to establish negligence by defendant.”

The city of Bellaire was fully authorized by the provisions of the municipal code to pass the ordinance in question. It was a police regulation, passed in the interest of public safety, and each member of the public was entitled to its protection. Nothing is more firmly established than that the state and municipal authorities, in the exercise of the police power, may make all such provisions as may be reasonably necessary and appropriate for the protection of the public health and safety. The Toledo Disposal Co. v. The State, 89 Ohio St., 230, and California Reduction Co. v. Sanitary Reduction Works, 199 U. S., 306.

Manifestly this ordinance had no other object in view than to protect the public. A police regulation, duly and legally passed by a municipal corporation, “not in conflict with general laws,” is entitled to as much respect and is as much a legal regulation within the limits of the municipality as a police regulation passed by the legislature.

Where an incorporated city or village is invested by-the legislature with power to pass ordinances, an ordinance enacted by the legislative branch of the corporation, within the powers conferred on it, has the force and effect of a law passed by the legislature and cannot be regarded otherwise than a law of and within the corporation. 28 Cyc., 391, and cases there cited. Also Hayes v. Mich. Cen. Rd. Co., 111 U. S., 237; Mason, et al. v. City of Shawneetown, 77 Ill., 533, and Bott v. Pratt et al., 33 Minn., 323.

While there is not entire harmony in the decisions as to the legal effect of a violation of a municipal ordinance, passed in the proper exercise of the police power for the protection of the public, we think it clear, from an examination of many cases, that the weight of authority and reason supports the proposition that a violation of an ordinance of the character referred to is negligence per se; and that where the act of violation is the proximate cause of an injury to a plaintiff, who has not by his own negligence contributed to the injury, the defendant is liable. This is now the generally recognized rule.

Thompson, in volume 1 of his work on Negligence (2 ed.), at Section 10, says: “This seems to introduce in this place a consideration of the antithesis of the proposition contained in the preceding paragraph, — the case where the legislature of the state, or the council of a municipal corporation, having in view the promotion of the safety of the public, or of individual members of the public, commands or forbids the doing of a particular act. Here the general conception of the courts, and the only one that is reconcilable with reason, is that the failure to do the act commanded, or the doing of the act prohibited, is negligence as mere matter of law, otherwise called negligence per se.”

And in Section 11 he says: “It is to be regretted that two or three authoritative courts have fallen into the aberration of holding that the violation of a statute, or a municipal ordinance, enacted for the public safety, does not establish negligence per se, but is merely what the books term, ‘evidence of negligence,’ — that is to say, competent, but not conclusive evidence to be submitted to the jury on the question of negligence or no negligence.”

In each of the following cases it was expressly held that the violation of a municipal ordinance, passed in the interest of public safety, was negligence as matter of law upon which an action could be predicated where it was the proximate cause of injury: Pennsylvania Co. v. Horton, 132 Ind., 189; Healy v. Johnson, 127 Ia., 221; Lindler v. Southern Ry. Co., 84 S. Car., 536; Dyson v. Southern Ry. Co., 83 S. Car., 354; Fenn v. Clark, 11 Cal. App., 79; Watts v. Montgomery Trac. Co., 175 Ala., 102; Wise v. Morgan, 101 Tenn., 273; Rosse v. St. Paul & D. Ry. Co., 68 Minn., 216; Missouri, K. & T. Ry. Co. v. Matherly, 35 Tex. Civ. App., 604; Dahlstrom v. St. L., I. M. & S. Ry. Co., 108 Mo., 529; Osborne v. McMasters, 40 Minn., 103; Siemens v. Eisen, 54 Cal., 418; Denver, T. & G. Rd. Co. v. Robbins et al., 2 Colo. App., 313; Jones v. Belt, 8 Houst. (Del.), 562, and Kansas City, M. & B. Rd. Co. v. Flippo, 138 Ala., 487.

It is said that the trial court in this case relied on the case of Meek v. Pennsylvania Co., 38 Ohio St., 632, as sustaining the charge to the jury.

In that well-known case the ordinance of the city was not pleaded as ground of negligence. The negligence alleged was that two detached cars were moving at a dangerous rate of speed and turned on a sidetrack at a switch, while the locomotive and other cars continued on the main track. The flying switch was itself evidently regarded as sufficient ground of recovery. No reference whatever was made to the ordinance in the petition. On the trial the plaintiff offered in evidence an ordinance of the city of Bellaire which forbade trains moving at a higher rate of speed than eight miles an hour. The court rejected the evidence. This court held that the ordinance was admissible and reversed the judgments of the courts below.

In the syllabus it is held: “In an action to recover for an injury alleged to have been caused by cars moving on a railroad track, proof that the company was moving its cars in violation of a city ordinance at the time the injury was inflicted, while not sufficient per se to create a liability, is yet competent to go to the jury as tending to show negligence.”

The counsel for plaintiff in error in that case did not contend that a violation of the ordinance was negligence per se. The only dispute related to its competency as evidence. The court in the opinion, at page 637, say: “In the absence of knowledge of apparent danger from an approaching train, or that these detached cars were moving toward him, and were about to cross the public street near which he was, without sufficient motive power to control them, the deceased had the right, having used due caution in going upon the track, to act on the assumption that the defendant would conform to the requirements of the ordinance.”

The court further say: “While the violation of a law or ordinance is not, per se, conclusive proof of negligence that will render the company liable, yet it is competent to be considered with all the other evidence in the case. The ordinance was enacted for the purpose of rendering the streets more safe and convenient for the public. It is a police regulation defining what is a legitimate use of the streets by the railroad company. It was a command to those operating trains within the city limits which it was their duty to obey.”

It will be observed that these remarks indicate that the court did not make any distinction, between a city ordinance and a statute of the state, so far as its legal effect is concerned within the municipality.

The remark that “While the violation of a law or ordinance is not, per se, conclusive proof of negligence” was an unnecessary parenthetical concession on the matter not put in issue in the case.

There are some considerations which apply with equal force to the statute and the ordinance in the case:

Negligence is the, failure to comply with some duty imposed by law. ,But in order that an act of negligence may be the predicate of an action, it is necessary that the duty should have been imposed for the benefit of the person injured and that the violation of the duty be the proximate cause of the injury.

Where there is no fixed legal duty specifically defined by statute or by an ordinance passed by a municipality within its police power, which has been violated, the acts and conduct of the parties must necessarily be measured by the circumstances of each case. The liability, if any, would arise out of the violation of a common-law duty only. The question in such case is whether the defendant acted as an ordinarily prudent and careful man, having due regard for the protection of others, would have acted in the circumstances. Such conduct is all that the plaintiff had a right to rely on.

But when the legislature or municipality has specifically defined what the conduct of all persons shall be in certain particular circumstances, each member of the public, acting himself with due care, has the right to rely on the compliance by the rest of the public with the duty thus imposed. The soundness and salutary effect of this principle are peculiarly manifest under a state of facts such as are set forth in this case. The rule is stated in Baker v. Pendergast, 32 Ohio St., 494, where it is held: “A person about to cross a street of a city in which there is an ordinance against fast driving, has a right to presume, in the absence of knowledge to the contrary, that others will respect and conform to such ordinance; and it is not negligence On his part to act on the presumption that he is not exposed to a danger which can only arise through a disregard of the ordinance by other persons.”

A pertinent observation was made by Judge Taft in Narramore v. C., C., C. & St. L. Ry. Co., 96 Fed. Rep., 298, which also concerned our statute as to blocking frogs, which did not expressly give a cause of action in favor of an injured person. Said he: “It was passed in pursuance of the police power of the state, and it expressly provided, as one mode of enforcing it, for a criminal prosecution of the delinquent companies. The expression of one mode of enforcing it did not exclude the operation of another, and in many respects more efficacious, means of compelling compliance with its terms, to-wit, the right of civil action against a delinquent railway company by one of the class sought to be protected by the statute for injury caused by a failure to comply with its requirements.”

In this case the ordinance made it unlawful for a person to drive an automobile past a street car standing for the purpose of receiving or discharging passengers. It is inconceivable that in the riiidst of daily experiences which arrest attention, any argument is needed to show the wisdom of such an ordinance, or that it is within the police power of the state whose exercise has been delegated to the city,

. Such an ordinance must be reasonable and must not conflict with general laws. The right of the driver of an automobile to the use of the public thoroughfares must be recognized and not unreasonably interfered with. But the rights of pedestrians and others must be equally respected. All must realize that this comparatively new and more dangerous method of travel, which has become a permanent and essential factor in the life of the country, has imposed increased mutual obligations of care on drivers and pedestrians.

The general and united action of automobile associations in urging upon members that safety should be the first consideration, is a hopeful indication that these obligations will be increasingly regarded.

It is further claimed in this case that the trial court erred in refusing the request of plaintiff to give certain charges which are included in the record. We think these charges were objectionable because they assumed that Mr. Gitchell did not, when he started to cross the street, know of the approach of the automobile.

For the reasons given the judgment will be affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: Wanamaker, J.

license: Public Domain

text:
    Bly v. Smith, Sheriff.

      Collateral attack — Judgment for alimony or contempt for noncompliance— Cannot be attacked by habeas corpus — Presumption that judgment supported by sufficient findings, when.

    1. A judgment in an action for alimony, or a judgment finding a party guilty of contempt for failure to comply with the order of the court in such judgment for alimony,, cannot be collaterally attacked in a proceeding in habeas corpus.

      2. A judgment which a court has jurisdiction to render presumes a finding by the court of all things necessary and sufficient to support such judgment, in the absence of a record to the contrary.
    (No. 15053 —
    Decided February 29, 1916.)
    Error to the Court of Appeals of Cuyahoga county.
    October 11, 1911, Emma Bly, the wife of the plaintiff in error, brought suit for alimony in the court of common pieas of Cuyahoga county, and on the 25th of October, 1912, said court heard the cause on the pleadings and the evidence and rendered judgment in favor of the wife, giving her as and for alimony certain personal property mentioned therein, and also ordered the plaintiff in error to pay to his wife the sum of $25 per month, payable in equal semi-monthly installments.
    Alimony was paid pursuant to said order until October 7, 1915, when the said William E. Bly refused to make further payments. Thereupon a motion was filed and service had upon said William E. Bly, requiring him to show cause why he should not be punished for contempt in disobeying the order of the court. The court, upon hearing, granted said motion and adjudged said Bly to be guilty of contempt and ordered him committed to the jail of the county until said order should be complied with or until he should otherwise be legally discharged.
    October 7, 1915, plaintiff in error filed his application for writ of habeas corpus in the court of appeals of, Cuyahoga county, praying that he be discharged from the custody of the sheriff, William J. Smith, on the ground that the order of commitment for contempt of court was unlawful-and void, for the reason that the court had no jurisdiction to make the order to pay alimony, upon which said contempt was predicated.
    The court of appeals, on hearing duly had, denied the writ. Plaintiff in error is now here asking this court to reverse the judgment of the court of appeals.

      Mr. George A. Groot, for plaintiff in- error.

      Messrs. Laubscher & Kees, for defendant in error.
   Wanamaker, J.

As aptly stated in plaintiff in error’s brief, “The only question presented in this case for the consideration of this court is whether or not the decree of the common pleas court in the case of Emma Bly against this plaintiff in error, case No. 126,515, for alimony only had the legal power to render the decree it did in said case, which decree is set forth on page 9 of the printed record. The contention of the plaintiff in error is, that said court was without legal power or authority under the statute relating to proceedings for alimony alone to render the decree it did in that case.”

Part of the decree upon which plaintiff in error relies is as follows:

“It is therefore adjudged and decreed that the said plaintiff have, possess and enjoy as and for alimony,, the following personal property, with right to use, sell or dispose thereof, at her pleasure, to-wit: all her wearing apparel, and all the household and kitchen furniture now in the possession of the plaintiff and situated at 3807 West 38th street.
“It is further ordered and adjudged that the defendant pay to the plaintiff as her reasonable alimony in money, the sum of $25.00 per month payable $12.50 on the 5th and 20th of each and every month, first payment to be paid-October 20, 1912; said $25.00 per month to be paid to said plaintiff until further order of the court. It is further ordered that the said defendant pay to the counsel of the plaintiff, namely, A. E. Bernsteen, the sum of $50.00 as attorney fees, same to be paid to the said A. E. Bernsteen on or before four months from October 5, 1912.”

Plaintiff in error contends that “The court on an examination of the decree in the alimony case No. 126,515 will find that the court did not find that the defendant had any property whatever, except the household property which was given .to the wife in said decree.”

Plaintiff in error further contends: “On the hearing of this case in the court below [court of appeals] the plaintiff in error offered to show that at the time said decree was rendered he had no property other than the personal property mentioned in said decree, and that since that time has not had any property and has none now. The court refused to permit the plaintiff in error to show what the real facts were so far as they related to his property at that time and since.”

The record discloses that there were no exceptions taken to the finding of the court of common pleas as to alimony nor any appeal made therefrom. The judgment, therefore, as to alimony is unreversed, unmodified and still subsisting.

That courts of common pleas have jurisdiction to hear and determine alimony cases does not admit of doubt. That being true, it will be conclusively presumed that the provisions of the statutes were followed and that the evidence in the cause was sufficient to authorize the judgment, to-wit, that the plaintiff actually did have property and that the allowance made by the court of common pleas as alimony out of the husband’s property, real or personal, or both, or any money, payable either in gross or by installments, was “equitable.”

Plaintiff in error now seeks to attack that judgment by an action in habeas corpus. This is a collateral attack on the judgment, pure and simple, and courts have held again and again that this cannot be done in a habeas corpus proceeding, providing the court had jurisdiction of the cause, which is unquestionable in this case.

In The State, on Complaint of Cook, v. Cook, 66 Ohio St., 566, the syllabus reads:

“In a proceeding in contempt against a party who has refused to comply with a money decree for alimony, it is not essential that the complaint allege that the party is able" to pay the money. The decree imports a finding of the court that he is able to pay, and the burden is on him, by allegation and proof to establish-his inability.”

Now, upon the contempt hearing before the court of common pleas, that burden of showing his inability was upon the plaintiff in error, Bly.

That is, the presumption is in favor of the judgment of alimony, not only because of the fact that it is a judgment, but because no error or appeal was prosecuted therefrom. The presumption follows that the court found Bly to be possessed of property sufficient to make the allowance of alimony made to the wife an equitable one, and in order to relieve himself of his liability, by reason of said judgment, and purge himself of contempt, the burden was upon him to show such a change of circumstances as would warrant the conclusion that he was unable to comply with and execute the order of the court.

Again, it should be observed that neither error nor appeal was prosecuted from the judgment of contempt of the court of common pleas, and therefore the record in that case is not before us. The presumption is in favor of the correctness of that judgment, and without a record impeaching the same, said judgment must stand. It is not subject to collateral attack.

The able opinion by Judge Spear in The State, on Complaint of Cook, v. Cook, supra, is illuminating and conclusive on many of the phases involved in this case.

We find no error in the judgment of the court below and it is therefore affirmed.

Judgment affirmed.

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


author: Johnson, J.

text:
    The State, ex rel. Garrison, v. Brough et al.

      Writ of prohibition — Purpose and scope — Confined to jurisdictional questions — Injunction — Title to and possession of public office.

    1. The writ of prohibition is an extraordinary legal remedy whose object is to prevent a court or tribunal of peculiar, limited or inferior power from assuming jurisdiction of a matter beyond its cognizance. The writ cannot be made to serve the purpose of a writ of error to correct mistakes of the lower court in deciding questions of law within its jurisdiction.
    2. The power to award writs of prohibition having been conferred on this court by the constitution, and that instrument having provided that no law shall be passed or rule made whereby any person shall be prevented from invoking the original jurisdiction of this court, the power will always be exercised where it clearly appears that a court or tribunal whose action is sought to be prohibited has no jurisdiction of the cause or is about to exceed its jurisdiction.
    3. The remedy by injunction cannot be employed to try the title to a public office, but it may be resorted to by one in possession of a public office, under color of title, to protect his possession against the interference of an adverse claimant whose title is in dispute until the latter shall establish his title by law. (Reemelin v. Mosby, 47 Ohio St., 570, approved and followed.)
    (No. 15074 —
    Decided February 29, 1916.)

      In Prohibition.
    In this cause an application for a writ of prohibition against the court of common pleas of Lucas county and two of its judges, Hon. Bernard F. Brough'and Hon. Byron F. Ritchie, was filed to prevent further action in a proceeding in injunction pending in that court, which was.brought by John W. Dowd against Raymond T. Garrison.
    Dowd was appointed a deputy state supervisor of elections of Lucas county on May 1, 1912, for a four-year term.
    It is set forth in the petition filed in this court that on October 27, 1915, the secretary of state, as state supervisor of elections, removed Dowd for cause, and issued a certificate of appointment to Garrison as his successor for the unexpired term.
    The petition sets forth in full detail all of the steps leading up to the removal of Dowd by the state supervisor, and alleges that they were all taken in full compliance with the statutes.
    ' It is further alleged that Garrison at once qualified as the successor of Dowd and presented himself at the rooms of the board of deputy state supervisors as a member, and that he is now a de facto deputy state supervisor and inspector of elections and a member of said board de facto, and became and was and is vested with color of right to hold said office as against said Dowd until it shall be determined by a court of competent jurisdiction in appropriate proceedings that said order of removal was null, illegal and void.

      The petition herein then alleges that on October 28, 1915, which was the day following the alleged removal, said Dowd brought a proceeding in the court of common pleas of Lucas county against Garrison, as defendant, praying for an injunction restraining Garrison “from interfering with said Dowd in the exercise of the duties of deputy state supervisor and inspector of elections, and from appearing at the office of said board, demanding said Dowd to vacate said office, and from in anywise obstructing, interfering with or hindering said Dowd in the performance of said duties;” that in his petition for an injunction Dowd “alleged the opinion and conclusions that he was then a duly appointed, qualified and acting deputy state supervisor and inspector of elections for said county and a member of said board, that his term would not expire until May 1, 1916, that he had not vacated said office, nor relinquished his rights therein or the exercise of the powers and duties thereof,” and that Dowd’s petition then proceeded to allege that he was summarily, arbitrarily, and illegally removed pursuant to certain alleged fraudulent arrangements and contrivances by which pretended charges were to be and were alleged to have been presented against him as a justification for said removal.
    The petition herein then further alleges that a temporary injunction was attempted to be granted by said Brough, defendant; that a motion to dissolve the same was overruled, and that unless prohibited by the order of the court the defendants would proceed with the hearing of the cause and the granting of a permanent injunction.

      It is then alleged in the petition for prohibition .that said steps have been, are and will be in flagrant excess and abuse of the legitimate jurisdiction of said court and judges, for the reason that the relator was a de facto officer and that said Dowd was not a de facto officer, but a mere pretender.
    The defendants in the proceeding in this court, by their answer and return, set forth a transcript of the proceedings in the court of common pleas of Lucas county, which is here referred to in the petition for prohibition, with the exception of the testimony taken on the hearing of the motion to dissolve the temporary injunction.
    The answer alleges that the defendants herein never assumed or attempted to exercise, and they would not assume or attempt to exercise, jurisdiction in said suit further than to enjoin said Raymond T. Garrison, defendant in said suit, from interfering with said John W. Dowd in the performance by Dowd of the duties and the exercise of the power incident to the office of a member of the board of state supervisors and inspectors of election of. Lucas county, while said Dowd was in possession of said office, exercising such powers and performing such duties, and only until said Raymond T. Garrison should establish his title to said office, if title he has thereto, in an action at law, as required by the laws of Ohio for trying title to public office, or until the possession of said John W. Dowd should be otherwise terminated according to law.
    The opinion of the judge overruling the motion referred to was also attached to the answer.

      It is further alleged that the defendants have at all times refrained and will continue to refrain from assuming any jurisdiction in said suit to try the claimed title of said Dowd or said Garrison to the office referred to, and also that the defendants have proceeded in said suit with all reasonable dispatch.
    The petition in the case of Dowd v. Garrison, a copy of which is attached to the answer, after alleging the appointment and qualification of Dowd and the date of the expiration of his term, and that he is now, and ever since his appointment has been, a duly appointed, qualified and acting deputy state supervisor, proceeds to set forth in full detail a certain alleged agreement and conspiracy to trump up, file and sustain charges for the removal of said Dowd by the state supervisor of elections.
    It is alleged that said action was wilfully, knowingly and maliciously taken against the plaintiff and in disregard of his rights and in pursuance of the conspiracy referred to.
    After setting out the alleged plan for the preparation and filing of said alleged false charges, the petition averred as follows:
    “It was arranged, agreed and understood between said parties so conspiring as aforesaid that upon the filing of said false charges aforesaid said Hildebrant would pretend to give the plaintiff a fair and impartial hearing upon said charges and to carry out said appearances would send to plaintiff a copy of said charges and appoint a day and hour at which plaintiff would be required to appear before him at his office in the capítol building of Columbus, Ohio, but that said Hildebrant would wilfully and knowingly with the consent and at the request of said other parties so conspiring with him as aforesaid and in disregard of plaintiff’s rights in that behalf appoint as the time for said hearing the hour of one o’clock p. m. of Tuesday, September 7, 1915, at which time said parties so conspiring as aforesaid, knew that it would be impossible for plaintiff to secure the attendance of any of his material witnesses in his behalf to meet and defend against said charges, it being the fact, as said parties so conspiring as aforesaid well knew, that said McCarthy, Dennis and Van Loo and one Dennis F. Sullivan, deputy clerk of said board, and one, Austin Gibbons, clerk and stenographer of said board, each of whom was a material witness for plaintiff in his defense to said^charges and without whom or any of them he could not safely have gone to said hearing, were compelled to remain on duty in their respective positions aforesaid for the purpose of conducting a special election in Springfield township, Lucas county, Ohio, throughout said day of September 7, 1915, and to make a complete preparation, that is, provide and have provided the necessary ballots, place and locate the necessary election booths and furnish all necessary supplies to the election officers in said booths and fill vacancies of booth officials in the 249 voting precincts in the city of Toledo, Ohio, for a primary election for the nomination of candidates for the various city and ward offices of said city of Toledo, Ohio, which was to be held, and which said parties so conspiring well knew was to be held, on Tuesday, September 14, 1915. It was further a part of said plan and conspiracy by and among said parties so conspiring as aforesaid and it was agreed, arranged and understood between them if the plaintiff should, by any means be able to produce his said witnesses at said hearing or at any continuation thereof, said Hildebrant would hear their testimony in behalf of plaintiff, but that he would give such hearing simply for the purpose of giving the appearance of an intention on his part to deal fairly with plaintiff. It was planned, agreed and understood however, between said parties that notwithstanding any testimony which might be offered by plaintiff in his behalf showing the falsity of said charges aforesaid, he, said Hildebrant would attempt to remove the plaintiff from his said office aforesaid and would make and enter the order of removal of plaintiff from said office as hereinbefore mentioned.”
    The petition then proceeds with the allegation that the state supervisor and inspector of elections, in pursuance of said conspiracy and agreement, summarily and arbitrarily removed the plaintiff from his office, although he knew that the plaintiff was innocent of the pretended charges so made against him. Certain arbitrary proceedings are alleged to have taken place in the carrying out of this purpose, and it is then alleged that the state supervisor attempted to and did issue a certificate of appointment to the defendant, Garrison, that the defendant pretended to and did take an oath of office, attempted otherwise to qualify for said office and “demanded of plaintiff that he be. allowed to enter upon the duties of a member of said board succeeding this plaintiff, and threatens to interfere and is interfering with this plaintiff in the performance of his duties as a member qf said board as aforesaid and is attempting to, and, unless restrained by this court will continue to attempt to interfere with and hinder plaintiff in the discharge of plaintiff’s duties,” although the said defendant, Garrison, had not been recommended by the Republican executive committee of Lucas county, and that other steps required by law to be taken in order to legally make an appointment were not complied with.
    The prayer of the petition was “that a temporary order may be allowed restraining defendant from further interfering with plaintiff in the exercise of plaintiff’s duties in said office aforesaid and from appearing at the office of plaintiff and said board demanding of plaintiff to vacate said office and from in anywise obstructing, interfering with or hindering plaintiff in the performance of his said duties as member of said board; and upon hearing hereof said restraining order and injunction may be made permanent, and that defendant may be permanently enjoined from in anywise interfering with, hindering or obstructing plaintiff in his incumbency of said office or in the exercise of his powers and duties therein as such officer and member; and plaintiff prays for all other proper relief.”
    There was also included in the answer of the case at bar a copy of the opinion of the common pleas court of Lucas county overruling the motion to dissolve the temporary restraining order issued in that case.

      Mr. Ben W. Johnson and Mr. Harry F. West, for relator.

      Messrs. Denman & Wilson, for defendants.
   Johnson, J.

The application by the relator for th'e issuance of the extraordinary writ of prohibition is based upon the contention that the court of common pleas of Lucas county had no jurisdiction to entertain the petition for injunction referred to in the petition of the relator, and no power to grant the relief prayed for in that petition.

There is substantial agreement in the authorities and between counsel in this case as to the nature, extent and necessary circumstances for the proper application of the unusual writ of prohibition.

The object of the writ is to prevent a court or tribunal of peculiar, limited or inferior power from assuming jurisdiction of a matter beyond its legal cognizance. Established order and the respect due to properly constituted inferior courts require that it should never issue unless it clearly appears that the inferior court is .about to exceed its jurisdiction. The writ cannot be made to serve the purpose of a writ of error, to correct mistakes of the lower court in deciding questions of law or evidence within its jurisdiction.

The proper function of' prohibition is to check usurpations of inferior tribunals and to confine them within the limits prescribed by law for their operations. It does not lie to prevent a subordinate court from deciding erroneously or from enforcing an erroneous judgment in a case in which it has a right to adjudicate. In all such cases the aggrieved party must pursue the ordinary remedies for the correction of errors. However,- the inclusion of prohibition, by the recent constitutional amendments, among the enumerated subjects of original jurisdiction in this court, accompanied by the general provision that no law shall be passed or rule made whereby any person shall be prevented from invoking the original jurisdiction of the supreme court, admonishes us that where it appears that a court or tribunal whose action is sought to be prohibited has clearly no jurisdiction of the cause originally, a party who has no other adequate remedy is entitled to a writ of prohibition as a matter of right. Ex debito justitiae.

It should be kept in mind that, subject to these limitations, this prerogative writ should be used with great caution and forbearance for the furtherance of justice and in the exercise of a sound discretion, to be determined in accordance with the circumstances of each particular case.

The relator claims that the allegations of Dowd, in his petition filed in the common pleas of Lucas county, disclose that the court did not have jurisdiction to grant any injunctive relief. The defendants, on the other hand, claim that the petition of Dowd, which is attached to their answer in this case, shows that it had such jurisdiction. Defendants also allege that the record under investigation demonstrates that they never assumed or attempted to exercise, and they aver that they would not assume or attempt to exercise, jurisdiction in that suit further than to enjoin Raymond T. Garrison; defendant (relator herein), from interfering with Dowd in the performance of the duties and the exercise of the powers incident to the office of a member of the board referred to, while he was in possession thereof exercising its duties; and then, only until said Garrison should establish his title to said office, if title he has thereto, in an action at law, as required by the laws of Ohio for trying title to public office.

It has come to be well settled that an incumbent of a public office may employ the remedy by injunction to protect his possession against the interference of an adverse claimant, whose title is in dispute, until the latter shall establish his title by law, but it is not the appropriate remedy to try the title to a public office or to determine questions concerning the authority to make appointments thereto. This proposition has been distinctly decided in Reemelin et al. v. Mosby, 47 Ohio St., 570; Harding v. Eichinger, 57 Ohio St., 371, and Holbrook v. Smedley, 79 Ohio St., 391.

In Harding v. Eichinger, supra, the petition of the plaintiff below, Eichinger, alleged in substance that he had been elected as a member of the board of education of the city of Mansfield, by the voters of his ward, and was duly qualified as such officer; that thereafter, on the third Monday of that month, he met with the board in session and attempted to exercise his rights, privilege and franchise by voting to organize said board in the election of its officers and by participating in the other necessary business of the body, but was unlawfully and forcibly prevented in the performance of his duties by the defendant below, Harding, who was then and there neither a resident or elector of said ward nor a member of said board, but defendant did then and there unlawfully usurp the office and membership of the plaintiff; that defendant voted for candidates for the offices aforesaid and acted on other business of the board; that defendant’s vote and action aforesaid were all accepted and recorded by a pretended president and clerk.

An injunction was prayed for and the court, in its opinion, say: “The plaintiff below mistook his remedy. The petition shows that Harding, and not Eichinger, was in possession of the office when the action was commenced. Injunction may be resorted to by the incumbent of a public office to protect his possession against interference by an adverse claimant until the latter establishes his title, but is not the appropriate remedy to try the title. Reemelin v. Mosby, 47 Ohio St., 570. Quo warranto is the proper form of remedy.”

It is alleged in the petition filed by Dowd in the court below that on May 1, 1912, he was appointed by the state supervisor and inspector of elections as a deputy state supervisor and inspector of elections for the term ending May 1, 1916; that he took the oath of office and entered on the performance of its duties; that since that time he has been the duly qualified and acting deputy state supervisor and that his term of office will not expire until May 1, 1916.

The relator here, admits the due appointment and qualification of Dowd as such deputy state supervisor, and that he was duly and legally acting as such, until his removal, but joins issue with the defendants as to the possession by Dowd on October 28th, the date of the filing of his petition in the court of common pleas.

The claim of the relator is that he himself on that day took the oath of office and entered on the discharge of its duties “by requesting and attempting to obtain a meeting of said board for the purpose of investigating irregularities and nonperformance of duty by election officers,” and demanded of said Dowd that “your relator enter, without interference, upon the further and complete discharge of his duties, and attempted to, and, if he had not been restrained * * * would have continued,” etc. Therefore, there was presented to the common pleas court by Dowd a case which entitled him, under the rule which has been established by the consistent holdings of this court, to an injunction restraining Garrison from interfering with him in his possession of the office until Garrison should establish his title by a proper proceeding at law. That issue (as to possession) was one which Garrison was entitled to have heard by the court of common pleas, and we are forced to presume that that court would have proceeded to determine it impartially between the parties. If that court had found that Dowd was in possession under color of title, it would have been its duty to grant the injunction as above stated, and if it had found that Garrison was in possession at the time of the commencement of that suit, it would have been its duty to dismiss the proceeding. This conclusion would of itself require the dismissal of this application for a writ of prohibition. On the record it is shown that the relator has mistaken his remedy.

It is insisted by the relator that the allegations in the petition of Dowd in the court below, subsequent to those to which we have referred, are wholly insufficient to justify an inquiry into the act of the state supervisor in removing Dowd. Even if this were conceded it would not determine or preclude the question of possession by Dowd under color of title, which is the essential matter in determining the jurisdiction of the court of common pleas in the original proceeding. It must not be overlooked that the only order that court could make would be one enjoining Garrison until he had established his title by a proper proceeding.

It being conceded by both parties that the common pleas court in the injunction proceeding had no jurisdiction to try and determine the title, it follows that the allegations in the petition of Dowd in the court of common pleas, which relate to the alleged conspiracy and fraudulent steps which led up to his removal, were irrelevant, except as they might relate to the possession of Dowd under color of title at the beginning of the suit. Those allegations affect the validity of the proceedings for the removal of Dowd, the validity of Garrison’s title and the right of Garrison to the possession of the office, and they would be relevant and appropriate in a proper action to determine the validity of those proceedings. The State, ex rel. Gongwer, v. Graves, 90 Ohio St., 311.

In this case it is sufficient to say that Dowd, in his petition in the court of common pleas, denied the validity of the proceedings by which he was removed, asserted title to the position and alleged that he was in possession under color of his original title, which is admitted by the relator to have been valid, and the court of common pleas in the injunction proceeding could entertain jurisdiction to determine only the question of such possession and enter its decree in accordance therewith. We think it clear that it is not shown from this record that the court of common pleas has, in the proceeding referred to, abused or usurped judicial functions or that it is attempting to go beyond its proper jurisdiction.

It was not contemplated by the people, when they adopted the amendment referred to, that this court would interfere with the proper exercise by inferior courts of the functions and the jurisdiction conferred upon them under the provisions of the constitution. It was intended to be an efficient aid in preventing the abuse or usurpation of judicial functions. It was added to our jurisdiction when new and substantial limitations were made therein. It came with other fundamental matters, in response to what the people regarded as a need created by the changing experiences of our situation, to take its place in our constitutional system of checks and balances through which thus far the spirit of our institutions has been fulfilled.

Writ refused.

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


author: Jones, J. Newman, J.,

text:
    Bauman v. Kiskadden, Trustee.

      Statute of limitations — Action to recover unpaid stock subscriptions — Section 8688, General Code — Providing eighteen months —Applies only to double or secondary liability.

    The limitation of eighteen months, prescribed in Section 8688, General Code, applies to actions enforcing the double or secondary liability of stockholders and does not apply to actions based upon the recovery of unpaid subscriptions for corporate stock.
    (No. 15041
    —Decided April 11, 1916.)
    Certified by the Court of Appeals of Lucas county.
    On October 29, 1913, Alexander Kiskadden, as trustee in bankruptcy of The Fostoria Undermuslin Company, filed a petition in the court of common pleas of Lucas county, of which the following is a copy:
    “The plaintiff Alexander Kiskadden for cause of action against the defendant Albert V. Bauman says:
    “That on or about the first day of November, 1904, The C. C. Anderson Manufacturing Company was a corporation created under the laws of the state of Ohio, having an authorized capital stock of one hundred thousand dollars — divided into shares of one hundred dollars each.
    “That on said first day of November, 1904, said Albert V. Bauman and one Carl C. Anderson were the owners of certain articles of personal property and also of certain real estate situated in the city of Fostoria, Seneca county, Ohio, which personal property and real estate had before that time been used by them in the manufacture of underwear.
    “That on said first day of November, 1904, said Albert V. Bauman and Annie Rose G. Bauman his wife and said Carl C. Anderson and Helen May Anderson his wife and John J. Anderson the father of said Carl C. Anderson were all stockholders and directors of said corporation and were all the directors and stockholders thereof.
    “That on said first day of November, 1904, for the purpose of obtaining thirty thousand dollars of the capital stock of said corporation said Albert V. /Bauman by a written agreement with said other directors of said corporation procured them to issue to him said stock to that amount and which capital stock was then so issued to him in payment for which he delivered to said corporation a one-half interest in the articles of personal property above mentioned and a one-half interest in the real estate above referred to, which interest in said personal property and said real estate so transferred to said corporation was of much less value than twenty thousand dollars, as was then well known to said Albert V. Bauman and to all the other directors of said corporation but which interest in said property was then wrongfully received and accepted by said directors of said corporation in full payment for the capital stock of said corporation to the amount of thirty thousand dollars and that no other or further payment for said capital stock has at any time been made by said Albert V. Bauman.

      “That the facts attending the fraudulent procurement of said $30,000 of said capital stock of said corporation as above stated were not known to the plaintiff nor to the creditors of said corporation nor to any person except said directors of said corporation until July, 1910.
    “That afterwards on or about the nineteenth day of April, 1909, the name of said The C. C. Anderson Manufacturing Company was duly changed to The Fostoria Undermuslin Company.
    “That said The Fostoria Undermuslin Company was duly adjudged a bankrupt on or about the fourth day of November, 1909, and the plaintiff was afterwards duly appointed trustee in bankruptcy of said corporation and he is now acting as such trustee; and that the liabilities of said corporation, so far as known, are one hundred and eighty thousand dollars ($180,000), and the assets of said corporation, so far as known, are one hundred and ten thousand dollars ($110,000).
    “Wherefore the plaintiff as such trustee prays for a judgment against said defendant for the sum of ten thousand dollars with interest thereon from and after November 4, 1904.”
    A demurrer to the petition was sustained by the court of common pleas and, plaintiff not desiring to plead further, judgment was rendered against him for costs. Error was prosecuted to the court of appeals, and that court found that the court of common pleas had erred in sustaining the demurrer to the petition. The judges further found that the judgment of reversal, upon which they had agreed, was in conflict with the judgment pronounced upon the same question by the court of appeals of Seneca county, and certified the record of the case to this court for review and final determination.

      Mr. H. C. DeRan,' for plaintiff in error.

      Messrs. Denman & Wilson and Messrs. Mc-Cauley & Weller, for defendant in error.
   Jones, J.

In this case the trustee in bankruptcy seeks to recover from the stockholder the difference between the par value of the stock which was issued to him, under a written agreement, and the value of the real and personal property which was turned over to the corporation in payment thereof, manifestly seeking relief under the principle announced in the case of Gates, Admr., v. The Tippecanoe Stone Co. et al., 57 Ohio St., 60.

In sustaining the demurrer the court of common pleas held that Section 8688, General Code, applied to cases of this class and that the action was barred. On the other hand, counsel for the trustee contend that the section above noted applies only to what is known as the double liability of stockholders, and that it does not affect actions upon subscriptions -for unpaid stock. This view was adopted by the .court of appeals.

Section 8688, General Code, must be read and construed in connection with the two sections relating to the same subject, and which immediately (precede it. They are as follows:

“Sec. 8686. The stockholders of a corporation who are holders of its shares at a time when its debts and liabilities are enforcible against them, shall be held liable, equally and ratably, but not one for another, in addition to their stock in an amount equal thereto, to the creditors of the corporation, to secure the payment of such debts and liabilities. No stockholder who transfers his stock in good faith, if such transfer is made on the books of the company or on the back of the certificate of stock properly witnessed or tendered for transfer on its books prior to the time when such debts and liabilities are so enforcible, may be held to pay any portion thereof.”
“Sec. 8687. The next preceding section shall not apply to stockholders in a corporation created after the twenty-third of November, 1903, nor to debts or liabilities of a corporation incurred after such date. As to all debts and liabilities of corporations for profit incurred after such date, the stockholders thereof shall be under no liabilities other than those stated in Article XIII, Section three, of the Constitution of Ohio.”
“Sec. 8688. An' action upon the liability of stockholders under the two next preceding- sections can only be brought within eighteen months after the debt or obligation shall become enforcible against stockholders.”

The constitutional provision adopted November 3, 1903, referred to in Section 8687, is as follows:

“Dues from private corporations shall be secured by such means as may be prescribed by law, but in no case shall any stockholder be individually liable 0 otherwise than for the -unpaid stock owned by him or her.”

In the analysis and determination of the question involved it is important to note that these code sections relate to the same subject-matter and were embodied by the legislature of the state in a single enactment, and furthermore that prior to the adoption of Section 8687, General Code, the limitation section (Section 8688, General Code, formerly Section 3258a, Revised Statutes) had acquired a fixed meaning, established by the act of its creation (95 O. L., 312), applying such limitation solely to a double stock liability. The question, therefore, remains, What is meant by the term “liability of stockholders” found within these three codified sections? Does this term, as variously used in these cognate sections, include the liability or obligation due upon an unpaid subscription for stock? We have no hesitation in holding that it does not. Unquestionably, before the adoption of Section 8687, General Code, it cannot be claimed otherwise than that the entire subject-matter referred only to the double liability of stockholders. The adoption of the later section has changed neither the meaning nor the intent of the act.

Section 8687, General Code, is merely a qualification or limitation upon the preceding section, and was not intended to and does not create any additional liability other than that mentioned in the preceding section, upon which it rests and of which it formed a part when originally adopted. An examination of Section 8686, General Code, discloses that the subject-matter under legislation was simply the stock liability, or what is known as the double liability, under the constitution and laws of this state. No other meaning could attach to the language used therein, “shall be held liable, equally and ratably, but not one for another, in addition to their stock in an amount equal thereto.” Obviously this section cannot apply otherwise than to the double stock liability. Furthermore, while Section 8687, General Code, releases corporate stockholders in corporations created subsequently to November, 1903, from liability as stockholders, evidéntly it does not include a liability for unpaid subscription, for a stockholder would be liable for an obligation of that character whether the corporation was created before or after the date named. But it is insisted that the latter portion of Section 8687, General Code, when considered with Article XIII, Section 3, of the Ohio Constitution, imposes a positive liability thereunder for the unpaid subscriptions for stock. These sections do no more than recognize an existing obligation upon the part of the stockholder to pay his stock subscription. This obligation rests upon the stockholder irrespective of the constitution and statute. It is not an obligation created by law, but one resting upon contract between the stockholder and the corporation. It is a corporate asset. The present provision of Article XIII, Section 3, of the Constitution, in this regard, is substantially similar to the constitutional provision upon that subject before its amendment. In the various cases touching the liability of stockholders considered by the supreme court of this state, the term “liability of stockholders” had obtained a well-recognized definition. In every case treating of the subject of “stockholders’ liability” or the “liability of stockholders” the supreme court recognized that those terms comprehended only the double liability imposed by the constitution and statutes of the state and did not include an obligation or liability upon the part of the stockholder to pay for his unpaid stock.

The distinction between the liability of a stockholder under these statutes and his obligation to pay unpaid subscription upon stock, and the further distinction between their legal and contractual character, has been recognized in the following cases: Wright et al. v. McCormack et al., 17 Ohio St., 86; Hawkins v. Furnace Co., 40 Ohio St., 507; Barrick v. Gifford et al., 47 Ohio St., 180, 184, and Peter v. The Farrel Foundry & Machine Co., 53 Ohio St., 534.

In Hawkins v. Furnace Co., supra, speaking of this statutory liability of stockholders, the court' said, at page 513: “ Tt is a security provided by law for the exclusive benefit of creditors, over which the corporation authorities can have ho control.’ To repeat what is here said or inferred. The liability of the stockholder is to pay the debt of the corporation, not his own debt. His obligation is distinct and dehors that of the company.”

It is possible that a mere subscriber for stock may not thereafter assume the relation of a stockholder, but may assign his subscription to another. In such case a right of action upon the subscription contract might be sustained against the subscriber, while the stockholder liability would be enforced against his assignee, who obtained the initial issue of stock. The former is an action at law for a money judgment upon the individual contract between the subscriber and the corporation (Smith, Receiver, v. Johnson et al., 57 Ohio St., 486, 490); the latter action is an equitable one upon the liability created by law resulting from the stockholder relation. This distinction is made in other jurisdictions. In the case of Barrick v. Gifford et al., supra, Justice Minshall quotes Mr. Cook as to the dual character of the liability of the subscriber and stockholder as follows: “This rule is based upon the principle that the liability of the shareholder is not a primary resource of corporate creditors, and is not, therefore, to be resorted to if the assets of the corporation, including the assessments on the stock enforceable at common law, will suffice to pay the debts.”

Furthermore, the section providing the venue in which the action shall be brought, to-wit, Section 8690, General Code, grants such right “on account of a liability created by law,” and this section remains now as it was before the adoption of Section 3, Article XIII of the Constitution, and Section 8687, General Code.

It has been held that the double liability created by statute is a secondary liability only, and is not to be invoked until the primary fund or liability shall be exhausted. If a stockholder owes an unpaid amount upon his subscription for stock, then this amount constitutes an asset of the corporation which may be enforced under the provisions of our statutes by the directors after call. ( Sections 8632 and 8674, General Code.) It is only upon the insolvency of the corporation that the creditor is entitled to invoke the equitable remedy against the various stockholders for the pro rata share due from each; but before this is done the primary fund of the corporation or its assets, including an obligation of this character, should be enforced as an obligation due to the corporation. (Section 8691, General Code.) And it is only when the corporation is insolvent and has not sufficient property or effects to satisfy the creditor that the court ascertains the “liabilities of the * * * stockholders” and enforces them by judgment. (Section 8692, General Code, and Bronson v. Schneider, 49 Ohio St., 438.) This section in itself discloses that the liabilities of the stockholders named therein can refer only to the secondary or double liability of stockholders.

It has already been noted that the language of the present constitutional provision in this regard is not dissimilar from that formerly employed, inasmuch as both of them, in terms, recognized a liability for unpaid stock. Before the adoption of Section 8688, General Code, the supreme court of this state applied a different limitation in an action upon stockholders’ liability from that upon written stock subscription. Hawkins v. Furnace Co., supra, and Warner v. Callender et al., 20 Ohio St., 190.

In the former, or stock-liability case, the court held that the six-year statute was applicable, and in the latter action, one upon a written, unpaid stock subscription, the court held that'the limitation, ran fifteen years after the call for subscription was made.

It cannot be well insisted that the legislature in- ' tended to give a corporate creditor a less limitation of time to enforce the payment of a stock subscription than the corporation itself had or than its receiver would have when seeking a mere dissolution of the corporation, and yet, if the construction claimed should be given to Section 8688, General Code, cases may well arise where the directors of a corporation would have a much longer period to enforce the payment upon a subscription for stock, while the creditors themselves, under this view, would be relegated to the period of eighteen months after the actual or legal insolvency of the corporation. Manifestly such is not the purpose of the statute. Its only purpose was to affect simply the double liability of the stockholders and to provide a short period of time for its enforcement upon the part of the creditor after legal bankruptcy or insolvency.

The judgment of the court of appeals is affirmed.

Judgment affirmed.

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

Newman, J.,

dissenting. I do not concur in the judgment in this case, as I am of the opinion that Section 8687, General Code, imposes a liability on stockholders for unpaid stock in favor of creditors, and that under the requirement of Section 8688 an action upon such liability must be brought within eighteen months after the debt or obligation becomes enforcible. In the majority opinion several cases are cited in support of the judgment. It is to be remembered, however, that the limitation section (8688), formerly Section 3258a, Revised Statutes, was not enacted until 1902. In 1903, Section 3, Article XIII of the Constitution, was amended, doing away with the double liability of stockholders. Section 8687, formerly a part of Section 3258a, Revised Statutes, was not enacted until after this amendment to the constitution. We are advised of no case in which either Section 8687 or Section 8688 has been considered or passed upon by this court. These sections had not been enacted when the cases cited in the majority opinion were decided, and I do not think those cases are helpful in arriving at the meaning of the sections under consideration here.

Section 8686 imposes a double liability upon stockholders. It is said that the section following (8687) is merely a qualification or limitation upon the preceding section. It - is true that this section (8687) releases stockholders in corporations created subsequently to November 23, 1903, from a double liability, and further provides that Section 8688 shall not apply' to debts or liabilities of a corporation incurred after such date. But if its sole purpose was to place a qualification or limitation upon the liability imposed by Section 8687, that purpose would have been answered in the use of the language contained in the first sentence: “The next preceding section shall not apply to the stockholders in a corporation created after the twenty-third of November, 1903, nor to debts or liabilities of a corporation incurred after such date.” This provision, enacted in pursuance of the amended constitutional provision, would have been sufficient, but the general assembly went further and provided: “As to all debts and liabilities of corporations for profit incurred after such date, the stockholders thereof shall be under no liabilities other than those stated in Article XIII, Section three, of the Constitution of Ohio.” In the use of this language the general assembly certainly had reference to some form of liability. We are referred to the amended constitutional provision, which reads: “Dues from private corporations shall be secured by such means as may be prescribed by law, but in no case shall any stockholder be individually liable otherwise than for the unpaid stock owned by him or her.” Section 8687, in plain and unambiguous language, says that a stockholder shall be under no liability other than the liability mentioned in the constitutional provision. The latter says that a stockholder shall not be individually liable otherwise than for the unpaid stock owned by him or her. What can this mean except that the stockholder is liable for unpaid stock? It is said that this language in Section 8687, to which we have just referred, is merely a recognition of an existing obligation on the part.of the stockholder to pay his stock subscription. If this were its only purpose it would seem to me to be a most unusual enactment on the part of the general assembly. If, as is said, the obligation of the stockholder rests upon the contract between him and the corporation, irrespective of the constitution and the statute, it was a waste of words to use such language.

Again, the general assembly, when in Section 8688 it used the language, “An action upon the liability of stockholders under the two next preceding sections,” recognized a liability under both Section 8686 and Section 8687. Section 8686, as we have seen, relates solely to the double liability. Section 8687 does not again impose the double liability, but on the contrary relieves certain stockholders from that liability. So that the only liability under Section 8687, which is referred to in Section 8688, is liability for unpaid stock.

It is said that it cannot be well insisted that it was intended to give a corporate creditor a less limitation of time to enforce payment of stock subscription than the corporation itself has. It is true that in certain cases, when Section 8688 is applied, a corporate creditor would have less time within which to enforce payment of stock subscription than the corporation itself would have, yet it is equally true that in no instance, under my view of the matter, would a creditor be deprived of his right to enforce a liability for unpaid stock. Regardless of the contract existing between the stockholder and the corporation, the creditor would have eighteen months from the legal insolvency of the corporation in which to proceed. In the present case, of course, it is advantageous to the trustee, representing the creditors, to have the fifteen-year statute applied, in view of the fact that he did not proceed within eighteen months from the time the claim of the creditors became enforcible. But in many instances the right of creditors to recover unpaid stock will be wholly defeated under the holding in this case. Corporations may be prosperous and solvent for years after their incorporation and creditors of course would have no right to interfere. After the expiration of fifteen years, in the case of a written contract of subscription, or six years where the contract is implied, a creditor would be without a remedy, for his claim would be barred if his right were based upon the contract. If, under any theory, a creditor could have fifteen years, or six years, from the time his claim became en-forcible, it would prolong the time for the winding up of corporations beyond all reasonable needs. It is conceded that in 1902 the general assembly shortened the time from six years to eighteen months within which the double liability could be enforced. This was done to compel creditors to act promptly. In keeping with this policy the general assembly, having imposed this liability for unpaid stock in the enactment of Section 8687, requires an action therefor to be commenced within eighteen months from .the time the claims of creditors become enforcible. Eighteen months were deemed sufficient time within which to enforce the double liability, and I do not see how it could work any hardship to place the same limitation upon an action for unpaid stock. I think the general assembly, in the enactment of Section 8687, was safeguarding the rights of creditors of a corporation and was imposing upon the stockholder a liability for unpaid stock regardless of any contract or agreement that might exist between the stockholder and the corporation, and in the enforcement of this liability the creditor was limited to eighteen months.

Donahue, J., concurs in dissenting opinion.


author: Newman, J.

text:
    Arnoff v. Williams et al.

      Covenants — Building restrictions — Agreement against "more than one residence building" — Four-suite apartment house not prohibited, when.

    In an agreement entered into between the owners it is recited that “whereas, after land upon a street is improved with fine buildings for residence purposes with the expectation that the neighboring land will be put to the same uses, stores, factories or nuisances are frequently, created and maintained to the detriment and sudden depreciation of all neighborhood property;” it is provided in such agreement, which is made a part of the deeds from the owners of such land, that the property shall be used for residence purposes only, that the same or any part ■ thereof shall not be used for factories, manufacturing, store, mercantile or business purposes, that no more than one residence building shall be located upon a lot or tract of land of fifty feet in frontage and said depth, that any such residence building shall be built at least forty feet from the line of the street, and that no residence shall be built on the premises costing less than $3,000. Field: Such restrictions do not prevent the erection of a four-suite apartment house.
    (No. 14980 —
    Decided April 11, 1916.)
    Error to the Court of Appeals of Cuyahoga county.
    Defendants in error, other than James M. Cassidy, owners of certain lots in the hamlet of Lakewood, Cuyahoga county, brought an action in the court of common pleas of that county to enjoin Cassidy and plaintiff in error, Morris Arnoff, from violating certain building restrictions and for other relief. The court of common pleas held that plaintiffs below, H. L. Williams and others, were not entitled to the relief prayed for and dismissed their petition. On appeal to the court of appeals the case was heard upon the pleadings and an agreed statement of facts. Defendant in error, James M. Cassidy, had sold to plaintiff in error, under a land contract, a tract of land 310 feet in length by 169 feet in depth, fronting on the north side of Clifton boulevard east of Nicholson avenue in the hamlet of Lakewood and known as sublots 5, 6, 7 and 8 and parts of sublots 4 and 9. After the commencement of this action plaintiff in error completed the payments under the land contract and received a deed for the property from Cassidy, the deed, however, containing no restrictions whatsoever. One Mary S. Bradford, the predecessor in title of both plaintiff in error and defendants in error, had owned a quantity of land fronting on the north and south sides of Clifton boulevard and other land on the south side of Lake avenue, which was subdivided into lots. On March 16, 1900, she, the then owner of the lots now owned by plaintiff in error and defendants in error, and the owners of certain other property on the north and south sides of Clifton boulevard and on the south side of Lake avenue immediately east of Nicholson avenue, entered into two agreements, one relating to the use of the real estate fronting on Clifton boulevard and the other to the use of that on Lake avenue. These agreements were thereupon recorded in the records of deeds and mortgages of Cuyahoga county, volume 765, at pages 486 and 487, respectively. The signing of these agreements was not attested by witnesses or acknowledged according to law. It is recited in the agreement relating to the Clifton boulevard property, the essential parts of which, including the restrictions, appear in the opinion, that the provisions of the agreement are for the benefit of the parties thereto, their heirs, executors, administrators and assigns, and that the parties bind themselves, their heirs, executors and administrators, for a period of fifty years, to a compliance with the provisions thereof. In all of the deeds to the grantees of Mary S. Bradford, except in three instances, where the provisions are slightly different but unimportant so far as this case is concerned, is the following:
    “Together with all the benefits inuring to said premises, and subject to all the burdens or restrictions imposed thereon by two certain agreements entered into by grantor and other neighboring landowners, dated March 16th, 1900, and recorded in Volume 765 of the Records of Deeds and Mortgages of said county at pages 486 and 487 respectively; subject also to the following restriction, 4o-wit: That no residence shall be built on said premises costing less than $3,000.00. By accepting this deed grantee binds himself, his heirs and assigns, to the observance of said restrictions.”
    The same language is contained in the deed to Cassidy, the grantor of plaintiff in error, as well as in the deeds to the other defendants in error. At the time this action was brought plaintiff in error had commenced the erection of one four-suite apartment house on sublot No. 4 and another on sublot No. 5, and was proposing to build a similar apartment house on each of sublots Nos. 6, 7, 8 and 9.

      The court of appeals, having found that plaintiff in error, at the time of the application for an injunction, had no actual notice of the restrictions in question, permitted him to complete and maintain the buildings partly erected on lots 4 and 5, and, having found as to the other buildings that the same would be in violation of the restrictions contained in the agreement of'March 16, 1900, relating to the use of the property on Clifton boulevard, referred to in the deeds of Mary S. Bradford and in the deed to Cassidy, ordered that he, plaintiff in error, be enjoined from building or completing a building on his lots except for a family residence and of the value of $3,000, and rendered judgment against him for costs. Plaintiff in error in this court is challenging the order of the court of appeals as to the buildings on lots other than Nos. 4 and 5.

      Mr. A. E. Bernsteen and Mr. David Perris, for plaintiff in error.

      Messrs. White, Johnson, Cannon & Neff, for defendants in error.
   Newman, J.

The signing of the agreements of March 16, 1900, to which the predecessor in title of the parties to this action was a party, was neither attested by witnesses nor acknowledged according to law. By force of the provisions of Section 8543, General Code, the agreements were concededly not entitled to record. The mere recording of them had no legal effect and could not operate as constructive notice to prospective purchasers of the property to which their provisions related. But in all the deeds made by the common predecessor in title, and in the deeds to defendants in error, including the deed to Cassidy, the grantor of plaintiff in error, is this language:

“Together with all the benefits inuring to said premises, and subject to all the burdens or restrictions' imposed thereon by two certain agreements entered into by grantor and other neighboring landowners, dated March 16th, 1900, and recorded in Volume 765 of the Records of Deeds and Mortgages of said county at pages 486 and 487 respectively; subject also to the following restriction, to-wit: That no residence shall be built on said premises costing less than $3,000.00. By accepting this deed grantee binds himself, his heirs and assigns, to the observance of said restrictions.”

This reference to the agreements was sufficient to put the grantees upon inquiry, and they were chargeable with knowledge of the provisions which the agreements contained. It had the same effect as if the agreements were set out in full in the deeds. While it is true that no restrictions are mentioned in the deed to plaintiff in error, yet, as we have seen, the agreements were by reference incorporated in several deeds in his chain of title and he was bound by all they contained. Defendants in error unquestionably had the right to enforce against him the observance of the covenants contained in the agreements of March 16, 1900, relating to the property on Clifton boulevard, of which his lots were a part.

But the question is, Does the erection of a four-suite apartment house violate any of the restrictive covenants? The pertinent provisions of the agreements of March 16, 1900, upon the violation of which this action was based, are as follows:

“Whereas, the value of land depends alike upon the uses and purposes to which the same is put and the uses and purposes to which the adjoining lands is put;
“And whereas, after land upon a street is improved with fine buildings for residence purposes with ' the expectation that the neighboring land will be put to the same uses, stores, factories or nuisances are frequently created and maintained to the detriment and sudden depreciation of all neighboring property;
“Now, therefore, the undersigned each in consideration of the promise of each other, being owners of land in the hamlet of Lakewood, county of Cuyahoga and state of Ohio, and fronting on Clifton boulevard, so-called, and being 375 feet southerly from and parallel with Lake avenue, and for the benefit thereof and for the benefit of each other, the heirs, executors, administrators and assigns severally bind ourselves, our heirs, executors, administrators and assigns that for the period of fifty (50) years from the date hereof the property now owned by the undersigned fronting as aforesaid and for a depth of one hundred and seventy-five (175) feet shall be used for residence purposes only, that the same or any part thereof shall not be used for factories, manufacturing, store, mercantile or business purposes; that no more than one residence building shall be located upon a lot or tract of land of fifty (50) feet in frontage and said depth; that any barn which may be erected upon such lot shall be at least one hundred (100) feet from the street line; that any such residence building shall be built at least forty (40) feet from the line of said street and at least six (6) feet from the side line of said lots.”

In the preamble is set forth the purpose of the agreement. It is to prevent land upon a street improved with fine buildings for residence purposes from being depreciated by the creation of stores, factories or nuisances in the neighborhood. Then in the agreement it is provided that the property “shall be used for residence purposes only.” This is practically the same language used in the deed under consideration in Hunt v. Held, 90 Ohio St., 280, the holding in which case is conceded by counsel to be in accordance with the universal ruling as applied to such a restriction. We took the position there that the word “residence” was used in contradistinction to “business,” and it was held that such a provision did not prevent the erection of a double or two-family house on the premises. This applies with equal force to the erection of a four-suite apartment house, which is the place of abode for four families. That the term “residence” is used in contradistinction to “business” is emphasized, in the present case, for, after providing that the property shall be used for residence purposes only, the use of the property for certain other purposes named (factories, manufacturing, store, mercantile or business purposes), is expressly prohibited. Again, it is to, be presumed that the parties to the agreement knew the difference between an apartment house and a private residence to be used by one family, and if it had been their intention to exclude the former it seems to us that it would have been expressly excluded, as were factories, stores and business houses. The maxim- expressio unius. est exclusio alterius applies.

But it is urged that the language “no more than one residence building shall be located upon a lot or tract of land of fifty (50) feet in frontage and said depth” does not permit the erection of any building other than a one-family residence. In Hunt v. Held, supra, in the opinion, it is said: “If it had been intended that the building was to be for the use of one family only, words indicating such ah intention would have been used, as is frequently done, such as ‘a single residence,’ ‘a private residence,’ ‘a single dwelling house.’ ” It is insisted that the expression “one residence building,” as used in the sentence under consideration here, is synonymous with the terms suggested in that opinion. Counsel, claim that “one” qualifies “residence,” and they would give the sentence the same meaning as if it had been written “no more than a one residence building.” We do not think this is correct. It is to be observed that the expression “no more” is used. Counsel, in arriving at the meaning of the sentence, do not seem to have given any significance to the use of these two words. If it had been the intention of the parties to use '“one residence” as a compound word relating to the character and use of the building, “no more” would not have been used, at least not unless the article “a” preceded the expression “one residence.” “More” relates to amount, number or quantity, and it is clear to us that the word “one” qualifies “building,” and that the sole purpose of this provision was to limit the number of the buildings which were to be located on each fifty-foot tract of land, viz., one building, to be used for residence purposes and not for business or any of the purposes expressly prohibited by the terms of the agreement. The language “any such residence building shall be built at least forty (40) feet from the line of said street” has to do with the location of the building, and the provision “no residence shall be built on said premises costing less than $3,000.00” fixes the minimum cost of each building on the lot. It may be noted, however, that the. cost of the buildings erected and proposed to be erected by plaintiff in error is not at issue.

Giving effect, then, to what we consider the plain intention of the parties, as gathered from all the provisions of the agreement, our holding is that the erection of the four-suite apartment houses by plaintiff in error is not in violation of any of the restrictive covenants. The judgment of the court of appeals, therefore, will be modified to conform with our holding.

Judgment modified, and affirmed as modified.

Johnson, Donahue, Wanamaker, Jones and Matthias, JJ., concur.