text:
    Trustees of the Cincinnati Southern Railway v. Haas et al.
    In proceedings authorizing municipal corporations to appropriate private property (Eev. Stats. §§ 2232 to 2261), the failure of the corporation to pay for and take possession of the same within six months after the assessment of compensation shall have been made, is no bar to a new proceeding under the statute by the same corporation, after the expiration of the six months for the appropriation of the same property for the same public use (Rev. Stats. § 2260).
    ERROR to District Court of Hamilton county.
    On November 23, 1880, the trustees of the Cincinnati Southern Railway, a board appointed by the superior court of Cincinnati, under an act of the general assembly of the State of Ohio, passed May 4, 1869 (66 Ohio, 80; Rev. Stat. § 8303), passed a resolution declaring the necessity for the appropriation of certain property and their intention to condemn and appropriate the same to tlie uses of the railway, of which they were trustees, for the purposes of terminal facilities and rights of way thereto, said property lying on the west side of McLean avenue, in the city of Cincinnati and belonging to the defendants in error.
    An application, under Rev. Stat. §§ 2232, 2261, was hied by said trustees on February 9, 1881, in the court of common pleas of Hamilton county, Ohio, numbered 63905 on the docket thereof, and certain and regular proceedings had therein, resulting in a verdict which was confirmed May 6, 1882.
    The six months allowed by the statute (Rev. St. 2260), within which the corporation could take the property at the assessment, having expired, and the trustees having failed to take possession of and pay for said property, they commenced, on December 2, 1882, under a new resolution, passed November 4, 1882, a new proceeding in said court, numbered 67435 on the docket thereof, describing, as in the first proceeding, defendants’ lots and seeking their condemnation and appropriation.

      Service was made, and, on December 18, 1882, defendants filed an answer, in the second defense of which was set forth the commencement of the first proceedings, the verdict of the jury in full and the judgment of the court confirming the said verdict, so far as it related to defendants’ property, concluding as follows :
    “ These defendants therefore say that the plaintiffs ought not to have and maintain their said action and proceeding herein, because they say that the same is res adjudicata.”
    A demurrer to this defense was overruled in that court, and judgment was rendered for the defendant.
    This was affirmed by the district court.

      W. T. Porter, for plaintiff in error:
    This case involves the construction of section 2260 of the Revised Statutes. That section is, in substance, the same as section 537 of the municipal code, as passed May 4, 1869 (66 Ohio L. 240), the differences being verbal. Section 537 was taken from section 8 of an act passed March 14, 1867 (Si & S. 894), in which the limitation was one year as to all proceedings thereafter taken ; said section containing also a provision applying to all proceedings theretofore had, fixing a limitation for such of one year. Prior thereto there was no limitation, the corporation being allowed to take the property-“as soon as” it had “paid the'compensation assessed, or secured its payment by a deposit of the money under the order of court,” as will be seen by reference to original section 28 of the act “ to provide for the organization of cities and incorporated villages ” (50 Ohio L. 233), and to the said section as amended (S. & O. 1504). Sections 2260, Rev. Stat.; 537, 66 Ohio L. 240 ; 8, S. & S. 894; 28, 54 Ohio L. 240 ; S. & 0.1504; 28, 50 Ohio L. 233, are-all the sections on the sub ject passed in this state since the adoption of the present constitution. They have for their foundation art. 1, section 19 and art. 13, section 5 of the present constitution. These two sections of the constitution are in legal effect identical. Giesy v. B. B. Go., 4 Ohio St. 308. The power of eminent domain is not conferred by either of them. They simply prescribed modes for, and limitations upon its exercise. The power is an inseparable incident of sovereignty, and its exercise, for the accomplishment of lawful objects is conferred upon the general assembly in the general grant of legislative authority, 4 Ohio St. 308;. Iron B. R. Go. v. City of Ironton, 19 Ohio St. 299 ; L. M. & G. & X. R. B. v. City of Dayton, 23 Ohio St. 510; Powers v. Railway Go., 33 Ohio St. 429 ; Dillon’s Municipal Corps. 3d ed. §§ 586, 590, 600; Cooley Const. Lim. 4th ed. 672. The board of trustees of the Cincinnati Southern Railway was authorized, in the original act relating to the construction of the railway (66 Ohio L. 80), to appropriate private property.
    Later the proceedings were changed, and by section 2 of a supplementary act, passed April 18, 1873 [70 Ohio L. 139; Rev. Stats. 8317, et sec¿.~\, the proceedings of muncipal corporations in appropriations of private property were adopted.
    From that time, and, in fact, all the proceedings had by the said trustees for the appropriation of private property have been in conformity to the sections of the municipal code relating to proceedings in appropriation by municipal corporations, as found in Revised Statutes, §§ 2232, 2261, inclusive.
    Under those sections, upon a resolution being passed by the board, an application is filed in the common pleas or probate court, and, after five days’ service, an application is made for a jury, trial had, verdict returned and confirmed. At any time within six months the corporation may take the property, “ upon the terms of the assessment so made.” If it fails to do so, four several things result: 1st, the right to take on the terms of the assessment so made shall cease and determine ; 2d, the land shall be relieved from all incumbrance on account of the proceedings in such case; or 3d, the resolution of the council making the appropriation, and 4th, the judgment or order of the court, directing such assessment to be paid, shall cease to be of any effect, except as to the costs adjudged against the corporation.
    In effect, section 2260 is a legal abandonment of the proceedings, and that is all; the same as though the corporation had entered a discontinuance upon the record of the court.

      It will be noticed that the section deals alone with the “ proceedings ” and with the “ assessment so made,” remaining wholly silent as to the right of eminent domain in the corporation. This distinction must be borne in mind.
    If the power of eminent domain is not conferred in the two articles of the constitution cited, and if they simply prescribe modes for and limitations upon its exercise, then surely the legislation under those articles, such as the sections quoted, do no more. Hence those sections simply deal with the proceedings, and if the proceedings are not consummated by paying for and taking the property then the power of eminent domain' is not exercised, but still exists in the corporation. These proceedings so provided do not constitute eminent domain, and, all being in derogation of common right, are to be strictly pursued. Ilarbeclc v. Toledo, 11 Ohio St. 219 ; Ourrier v. M. & C. B. B. Co., Ibid. 228.
    The proceeding is not a civil action in which a judgment can be rendered upon which an execution may be issued. There is no provision for such a judgment. City of Blooming-ton v. Miller, 84 111. 621; South Park Corns, v. JDunlevy, 91 Ill. 49; Bevridge v. West Chicago Parh Corns., 7 App. O. R. 460; State v. Hug, 44 Mo. 116. The proceedings are special and bear little resemblance to ordinary legal trials. P. H. de S. W. By. Co. v. Voorheis, 50 Mich. 506..
    II. Can the proceedings be abandoned, and if so, what is the effect % On this point see Mills’ Eminent Domain, § 311; City of Bloomington v. Miller, 84 Ill. 621 ; Cook v. Parle Commissioners, 61 Ill. 115 ; 78 N. Y. 57; Beford v. Commissioners, die., 15 Adolf. & Ellis N. S. 773 ; Water Commissioners of N. J., 2 Vroom, 72; Walker v. By. Co., 6 Hare, 594; Doo v. By. Co., 1 Railway Oases, 257; B. B. Co. v. Lack-land, 25 Mo. 515 ; State ex rel. Hayes v. B. B. Co., 17 Ohio St. 108; Beasly v. Mountain Lake Water Co., 13 Cal. 306 ; 20 Iowa, 532; B. B. Co. v. Bradford, 6 W. Va. 220; Bun-can v. Louisville, 8 Bush, 98 ; Dillon on Mun. Corp. (6th ed.) § 608 ; 60 N. Y. 319, 324; 11 Wend. 155 ; B. B. Co. v. Out-water, 3 Sandf. 689 ; 11 N. Y. 311; 78 N. Y. 56 ; Commissioners Washington Park, 56 N. Y. 144; B. B. Co. v. B. B.

      Co., 43 N. J. L. 528; State v. Halstead, 39 N. J. L. 640; State v. Cremes, 19 Md. 351; Graff v. Baltimore, 10 Md. 544; Merrielc v. Mayor of Baltimore, 43 Md. 219; Baltimore v. Musgrave, 48 Md. 272; Millard v, Lafayette, 5 La. Ann. 112; McLaughlin v. Municipality, 5 La. Ann. 504; Hullin y. Municipality, 4 Robinson, 357 ; Chicago v. BarMan, 80 Ill. 482; 7 Brad well, 460 ; 68 Ill. 144; 2 Mo. App. 105 ; 44 Mo. 116; 3 Mo. App. 41; 21 Minn. 533 ; 54 Wis. 136-9 ; 43 Wis. 574; 1 Iowa, 421; 20 Iowa, 523.
    Now with the four several and distinct nugatory provisions of section 2260 of the Revised Statutes, as the law of the case, and especially in view of the last very decided one, i. e., “ that the order directing the assessment to be paid, shall cease to be of any effect,” the court below allowed said assessment and order of confirmation to be plead in bar to a néw suit to condemn the same property after six months had expired, and sustained the plea, holding that the question was res adjudicata, and that the corporation was bound by the assessment so made, thus giving to the judgment and order of the court all the force and effect of a valid, binding, subsisting judgment.
    Clearly under the statute, the trustees cannot after the six months have expired, compel the property owner to accept as compensation the sum so assessed by the jury, for the rights secured, being in derogation of common law, must be strictly construed and the forms closely followed, and the statute itself has declared that after six months the corporation’s right to take shall cease and determine; hence, on this theory, if the corporation acquires title under the proceedings after six months, it is by reason of the consent of the owner and not by force of the proceedings. Ryan v. Hoffman, 26 Ohio St. 109.
    Hence, this judgment is not binding on both parties. Judgments to have the force of res adjudicata, must bind both parties and privies. W ells’ Res Adjudicata, § 5.
    If not binding on both parties, it is not binding on either, and if not binding on either party, it is not a valid and subsisting judgment, and, hence, will not support the plea of res ad-

      judicata. R. R. Go. v. Nesbit, 10 Howard, 395 ; Garrison v. City of New 7orlo, 21 Wallace, 196.
    We say in conclusion : If the trustees desire to acquire the property, they must begin anew, pass á new resolution, declaring a new necessity, file a new application, summon anew the parties, ask the court to fix a day for trial, give the parties their day in court; in a word, proceed de novo.

    No one is injured by such proceeding. The trustees are not in possession; the property owners are not disturbed. They still have their property; they have their day in court. The former verdict can figure in no way in the new trial, either for or against them. They have equal rights with the corporation, but no greater.
    It is quite clear that upon the expiration of the six months the parties are in statu quo — as though no proceedings had ever been commenced, — and if none had been, then the trustees under powers given them had a perfect right to appropriate this private property of these defendants in error to the uses of the railway, upon making full compensation, to be assessed by a jury as provided by law.
    Long, Kramer <& Kramer, and A. G Huston, for defendants in error:
    This proceeding is to condemn and appropriate lands of defendants “to and for the uses of the Cincinnati Southern Railway for the purpose of terminal facilities and rights of way thereto.”
    It is identical with a former proceeding in all essential respects, — as to parties, property, purpose and mode. In the former, the judgment confirming the verdict assessing compensation stood unreversed, and the corporation failed to pay for or take possession of the lands within six months after the final order, and in less than a month thereafter proceeded de novo. The six months began to run from date of the final order and not from date of the verdict. Ryan v.Hoffman, 26 Ohio St. 122.
    The question is, can the present proceeding be maintained ? Is it not barred by the former ?

      Clearly, the conditions exist bere for application of the rule of res adjudícala, except for what is claimed by right of eminent domain.
    But the question not only involves, as counsel for plaintiffs put it, but depends, upon the construction of section 2260 of the Bevised Statutes.
    The fallacy of plaintiffs position lies in the narrow construction given to said section 2260, and in the unlimited power accorded to eminent domain. While it is true, this power is “ inherent in the state,” counsel’s statement, that “ no legislation can restrain the complete, continuous, and repeated exercise of the right,” is extreme and unwarranted. On the contrary, the exercise of this power is subject to legislative regulation and judicial control. The right of eminent domain remains dormant in the state until legislative aetion is had, pointing out the occasions, mode, conditions and agencies for its exercise. Cooley Const. Lim. 528. The question is not as to the existence of the power in the state, but whether the intention of the legislature has been to delegate it to be exercised again and again, through the same agency, over the same property, and especially for the same purpose and against the same owners. This court has construed the provisions of section 2260, to be “ evidently intended for the benefit of the landowner.” By an v. Hoffmam, 26 Ohio St. 120. The section under consideration in that case was 537 of the Municipal Code, which was afterwards embodied in the Bevised Statutes as section 2260. In the absence of any such provisions, the corporation would not be bound, but would be left to determine, at its own option, whether to take the property. The object of those provisions is to set a bound to that option — to limit the period for sueh determination, which would otherwise be unlimited except by the indefinite line of “ a reasonable time.” Section 2260 fixes that reasonable time at six months from date of assessment. The corporation has this time within whieli to consider the ascertained priee in connection with the public necessity affected by it, and its decision should be final. . It is said, that this section “ deals alone with the ‘proceedings,’ and with the ‘assessment so made,’remaining wholly silent as to the right of eminent domain in the corporation.”
    Counsel seem to overlook the fact that the corporation’s right to condemn is entirely statutory. The proceedings referred to are statutory. Without the aid of the statute it would be powerless to maintain any action of this kind. So that if it has lost its remedy provided by law, it cannot fall back upon the right of eminent domain to restore the loss. It is a question of remedy. Hence we do not see the force of counsel’s argument, that the legislation on this subject simply deals with the proceedings, “ and /if the proceedings are not consummated by paying for and taking the property, then the power of eminent domain is not exercised, but still exists in the corporation.”
    Our province here is to get at the intention of the legislature as expressed in said section 2260.
    True, private property is “ subservient to the public welfare,” but public necessity must require it before it can be taken by the public. The right to take, vested by the legislature in the corporation, depends on this necessity. It is a grant in derogation of private right and must be strictly construed against the corporation. While the authority to determine this necessity, in the first instance, is, in this state, generally delegated. Oiesy v. R. R. Go., 4 Ohio St. 326 ; Malone v. Toledo, 34 Ohio St. 546.
    The railway had its day in court on the assessment. It had equal chance with the land-owners before a jury of twelve men to fix, by testimony, the compensation. It took its option of six months to consider the verdict, and having failed to pay for or take the property within that time, it may fairly be presumed to have determined that the necessity for the land had ceased. It is immaterial what may have induced the refusal, — whether the assessment was not satisfactory, the necessity passed, its own neglect, or what not, — it should be held under the obvious meaning of the limitation statute, to have exhausted its power to appropriate the same property for the same purpose, — certainly as against the same owners.
    As to the right of abandonment before confirmation of the assessment, it is immaterial to this discussion — that right might be conceded, and not affect the issue in this case, which involves the question of abandonment after such confirmation irrespective of the six month’s limitation. In some states, as in New York, the courts hold that rights become vested after the confirmation and the corporation cannot then recede. Gas Light Go. v. Syracuse, 78 N. Y. 57; Commissioners of Washington Parle, 56 N. Y. 144.
    In the states wherein the statutes fix a limit within which the corporation may take the property, so far as those statutes have been judicially construed, the courts hold, that the judgment in the first proceeding, if regular, is a bar to any subsequent proceeding to condemn the same property for the same purpose. Rayes v. Cm. dé Lid. R. R. Go., 17 Ohio St. 108 ; Ryan v. Hoffman, 26 Ohio St. 120; Rogers v. City of St. Charles, 3 Mo. App. 41; Mills on Eminent Domain § 315; City of St. Joseph v. Hamilton, 43 Mo. 282; Heal v. Pittsburgh R. R. Co., 2 Grant Cases, 137 ; Weill v. Freeholders of Hudson, 40 N. J. Law, 161-173; Drath v. R. R. Co., 17 Reporter No. 22; State of Iowa v. City of Reolmlc, 9 Iowa, 438. But even admitting the claim, that appropriations made by a municipal corporation may be abandoned even after assessment of compensation, — the conclusion is not warranted that thereupon the power exercised is restored, to be at once re-exercised. Public policy cannot surely require that the same land be subjected again and again to the same proceeding, until a jury be found to fix a price to suit. That would be 'practically enabling the corporation to take the land at its own price.
   Johnson, C. J.

This question not only involves, but depends, upon the construction of section 2260 of the Revised Statutes, which reads as follows :

When a municipal corporation makes an appropriation of land for any purpose specified in this chapter, and fails to pay for or take possession of the same within six months after the assessment of compensation shall have been made, as here-inbefore provided, the right of the corporation to make such appropriation on tbe terms of the assessment so made, shall cease and determine ; and any lands so appropriated shall be relieved from all incumbrance on account of the proceedings in such case, or the resolution of the council mating the appropriation ; and the judgment or order of the court, directing such assessment to be paid, shall cease to be of any effect, except as to the costs adjudged against the corporation.”

Keeping in mind the fact that private property, though inviolate,'is always subservient to the public welfare, such a construction is to be avoided as will release this private property from its liability to be taken for public use if the necessity ever arises.

Section 2260, in express terms provides, that in case of failure for six months to pay the compensation assessed, the right of the corporation to take the property on those terms, shall cease, the lands shall be released, and the judgment or order shall no longer home any effect, except as to costs, &c. By the very explicit terms of this section, the former proceedings are to have no other effect than as a judgment for costs. Any other construction would forever release this property from sub-serviency to this public use however great the emergency.

The same principles that would govern if this was a municipal corporation, control the case in behalf of the plaintiff.

The record contains no intimation that the failure to take the property under the former assessment was for the purpose of getting it at a lower rate.

For aught that appears, there was no objection to the amount'of the former assessment, and that the failure to then pay may have arisen from other causes.

The suggestion therefore that this is simply a device to harass the property owner, and get the property at a lower price is dehors the record, and the remarks of counsel as to want of good faith, are not in point.

We hold therefore that upon the case as made the former proceedings, are no bar.

Judgment reversed and cause remanded.


source: Caselaw Access Project

author: McIlvaine, J.

license: Public Domain

text:
    Rothwell v. Winterstein.
    1. The refusal of the court of common pleas to allow a petition in error in a forcible detainer proceeding is not reviewable in the district court on a petition in error.
    2. The district court has no jurisdiction to review the judgment of a justice of the peace rendered in a forcible detainer case.
    3. A court without jurisdiction has no power to render judgment for costs.
    MotioN for leave to file a petition in error to the District Court of Butler county.
    The original action was a proceeding before a justice of the peace, by Mrs. Winterstein against Abraham Rothwell and wife, under chapter nine, title three, of Revised Statutes, for the unlawful and forcible detention of a house and lot situated in the city of Hamilton in said county. Upon the trial of the case, judgment was rendered in favor of the plaintiff and an order of restitution was issued,
    It appears from the record that Mrs. Winterstein was a married woman and the owner in her sole and separate right of the premises in controversy, but neither of these facts appeared in the complaint.
    To reverse this judgment the defendants made application to the court of common pleas of Butler county for leave to file a petition in error, and assigned for error, 1. That the plaintiff had no legal capacity to sue. 2. That the'complaint did not show that the premises in dispute were her sole and separate property, and that the justice erred in overruling a motion to dismiss the action for these reasons. 3. That the justice erred in rendering judgment against them for all the costs made in the case.
    Upon the hearing of this application the court refused leave to file a petition in error.
    Thereupon a petition in error was filed in the district court of Hamilton county by Rothwell and wife to reverse the judgment of the justice of the peace, and also to reverse the ruling and refusal of the court of common pleas in refusing leave to file a petition in error.

      In the district court a motion was made by Anna L. Win-terstein, defendant in error, to dismiss the petition in error therein, for want of jurisdiction. This motion the district court sustained and rendered judgment in favor of defendant in error, against the plaintiffs in error, for her costs therein taxed at $16.37.
    Leave is now sought to file a petition in error in this court to reverse the judgment of the courts below.

      J. G. MoKenny, for the motion.
    Morey, Andrews & Morey, contra.
   McIlvaine, J.

The action of forcible entry and detainer is special and statutory, and is regulated by chapter 9, title 3, of Revised Statutes, whereby original jurisdiction is given to justices of the peace, and section 6601 provides, “Judgments either before the justice or in the court of common pleas, under this chapter, shall not be a bar to any after action brought by either party.”

Such being the limited effect of the judgment, authority to review the same is also limited, and section 6610 provides : but in proceeding to reverse, vacate or modify the judgment or final order of the justice made in such cases, a petition in error can be filed in the court of common pleas only by leave of said court,” etc. A refusal by the court of common pleas to allow a petition in error to be filed in said court, is not reviewable on error such refusal not being a judgment in a case pending in said court.

And in Carroll v. O'Conner, 25 Ohio St. 617, it was held that an application is not authorized to be made to the supreme court to reverse directly the proceedings of a justice in forcible entry and detention, or of forcible detention only, notwithstanding leave to file a petition in error in the common pleas may have been refused. The same rule applies to the district court, hence the district court in the case before us was without jurisdiction to review either, the refusal of the court of common pleas to allow a petition in error, or the judgment of the justice of the peace, and, being without jurisdiction, its judgment in favor of the defendant-in error for costs was erroneus.

For this reason the motion for leave to file a petition in error in this court is granted, and, all the judges concurrings the judgment of the district court as to costs is reversed.

Motion granted and judgment reversed.


author: Owen, J.

text:
    Railway Co. v. McCoy.
    Under the provisions of “An act to secure pay to persons performing labor or furnishing materials in constructing railroads,” passed March 31, 1874 (71 O. L. 51), which provides that “Any person performing said labor or furnishing said materials, who has not been paid therefor, shall serve a notice in writing upon the secretary or other officer or agent of said railroad company, stating in said notice the kind and amount of materials furnished, etc,” the service of such notice upon a director of the railway company to be affected by it is sufficient.
    Eiíeob to the District Court of Pike county.
    Michael and Peter Nessler furnished to the contractors of the Scioto Talley Railway Company, plaintiff in error, to be used in the construction of its railroad, certain cross ties. Within thirty days after their delivery (in October, 1877), —their claim for the ties being wholly unpaid, — the Nesslers served a notice in writing upon W. A. Hutchins, a director of the railway company, of the furnishing of such cross ties, such as is required by “ An act to secure pay to persons performing labor or furnishing materials in constructing railroads,” passed March 31, 1874 (71 O. L. 51).
    Thereafter, the Nesslers sold and assigned their claim for the ties to the defendant in error, who brought his action upon it against the company in the court below. His judgment of recovery was affirmed on error in the district court, and to reverse this judgment of affirmance, the present proceeding is prosecuted. The alleged insufficiency of the notice of the furnishing of the ties is chiefly relied upon to reverse the judgments below.

      C. 0. Hunter, for plaintiff in error
    cited Dunn db Witt v. Banhin, 21 Ohio St. 132; By. Co. v. Gronin, 38 -Ohio St. 122 ; Farrell Foundry Go. v. Dart, 26 Conn. 3T6; Ang. & Ames on Corp. §§ 306, 308; Ouster v. Tomphins County Banh, 9 Barr (Pa.) 21; Ins. Go. v. Shriver, 3 Md. Ch. 381 ; Banh v. Cunningham, 24 Pick. 270 ; Story on Agency, §§ 140b, 140e; Oraighead v. By. Co., 9 H. of L. 711; National Exchange Go. v. Drew, 2 Mich. 105 ; 6 Ellis & B. 963 : 2 De Gre;x, M. &. O. 522; 2 H. of L. 497.

      W. D. James and J. A. Eylor, for defendant in error

      People v. Tweed, 13 Abbott Pr. 442 ; Rev. Stat. § 3248 ; By. Go. v. McPherson, (Mo.) 4 Am. L. Reg. (N. S.) 567; Maynard v. Ins. Go., 8 Am. L. Reg. 186 ; Smith v. Boyalton Banh, 32 Yt. 341; 121 Mass. 490 ; Ang. & Ames on Corp. § 306,
   Owen, J.

The act which is relied upon to authorize the proceedings below, — 71 O. L. 51, — provides that: “ Any person performing said labor or furnishing said materials, who has not been paid therefor shall serve a notice in writing upon the secretary or other officer or agent of said railroad company, . . . stating in said notice the kind and amount of materials furnished, etc.”

Was the service of a notice upon W. A. Hutchins, a director of the railway company, within the requirement of the foregoing provision ? It will not be questioned, that at the common law, and in the absence of statutory provision on the subject, in order to affect a corporation with the knowledge of a fact on the part of one of its directors, it is necessary that he should have such knowledge while acting officially in the business of the corporation, unless he is acting at the time under some special authority conferred on him other than what he would possess as merely one of the directors.

Was the enactment which is relied upon to sustain this notice, intended to qualify or enlarge this common law rule, or is it simply a statutory declaration of it ?

It seems clear to us, upon both reason and authority, that its design was to facilitate the methods by which the laborers and material-men chiefly affected by it are to secure their claims by charging the companies with them, and is entitled to such reasonable and liberal construction as will best carry out its purpose. Railway Co. v. Cronin, 38 Ohio St. 127; Barnes v. Thompson, 2 Swan (Tenn.) 315; Buck v. Brian, 2 How. (Miss.) 880; Phillips Mech. Liens, § 16. There certainly was a literal compliance with its requirements. When we reflect that “ the corporate powers, business, and property of the [railway] corporations,.must be exercised, conducted, and controlled by the board of directors,” (Sec. 3248, Rev. Stat.), we cannot question that a director of such company is an “ officer” of it.

We are at liberty to suppose, also, that a director of a railway corporation is one who is sufficiently interested in its affairs to see to it that any fact which comes to his notice, affecting his company, will, with promptness, be brought to the knowledge of the latter. To hold that class of persons who are chiefly affected by this provision to a strict rather than liberal construction of it, would tend rather to defeat than to effectuate it. Service of such notice on a director of the railway company was good, although such director did not appear to have been charged with the management of the particular business concerning which his company was sought to be charged.

Judgment affirmed.


author: Okey, J.

text:
    Arrowsmith v. Harmoning.
    1. Where there has been such acquiescence in the decision of a court that it has become a rule of property, such decision will not be overruled unless it violates fundamental principles, or is clearly wrong and mischievous in its consequences.
    2. An order of the probate court for the sale by a guardian of the real estate of his ward, where the bond provided for in the statute (1 S. & C. 676, §§ 27, 28 ; Rev. §§ 6285, 6286) is not given, although it may be erron eous, is not void. Mauarr v. Parrish, 26 Ohio St. 686, followed and approved.
    Error to the District Court of Defiance county.
    Dick E. Arrowsmith, by bis next friend, filed a petition in ordinary form, in the court of common pleas of Defiance county, against John F. Harmoning, to recover possession of real estate. In his answer Harmoning admitted that he was in possession, but denied all other allegations of the petition. At the request of the parties, the court, having heard the evidence, made a finding of facts and stated the conclusions of law, which finding and conclusions are as follows:
    “ On the 22d day of July, 1869, Dick Evans Arrowsmith was a minor of the age of six years, and a resident of Defiance county.
    “ On the day last named and for a long time prior thereto he was the owner in fee simple of the lands described in the petition in this case. -On that day, Edward H. Gleason was his duly appointed guardian, and as such filed in the probate court of that county a petition in due form, the object and prayer of which, were the sale of such real estate with all the other real estate of which the minor was then the owner in fee simple for the maintenance and education of the ward, and the payment of certain indebtedness of the ward. Such proceedings were lawfully and duly had by and before the probate court, as that, thereafter, that court duly confirmed and approved an appraisement of the lands theretofore duly made in that proceeding by appraisers duly thereunto appointed. Thereupon the probate court proceeded to and did find and order as follows, to wit: ‘ Said Edward H. Gleason, having upon his appointment as such guardian, given bond with reference to the value and sale of the said real estate of his ward, which bond is now adjudged to be sufficient for the purpose thereof; therefore, the giving of additional bond is hereby dispensed with ; and thereupon, without ordering or requiring the guardian to give any further or additional bond, and without any such additional bond having been given, the probate court, on the 10th day of November, 1869, ordered the guardian to sell the lands or any parcel thereof at private sale, but at not less than the appraised value thereof, and upon the terms of one-third cash in hand on the day of sale, one-third in one year, and one-third in two years, with interest payable annually, and the deferred payments to be secured by mortgage on the premises.’ Thereafter, the guardian, pursuant to the order of the probate court, sold the lands, described'in the petition herein, to the defendant, at the dates, for the sums and of the number of acres following, to wit: On the 15th day of November, 1869, one hundred and fifty-three and twenty-five pne-hundredths acres for $1,537.50. On the 3d day of May, 1873, eighty-seven acres for $812.10. On the 4th day of December, 1874, four hundred acres for $6,000. And upon such sales being reported to and approved and confirmed by the court, and upon the order of the court in that behalf made, proceeded to and did execute in due form and deliver to the defendant his deeds as such guardian, purporting by their terms and recitals to convey, in fee simple, all the title and interest which the ward theretofore as aforesaid had held and was seized of, in and to the lands, to the defendant, who thereupon paid and secured to the guardian the purchase price of the lands according to the terms of the order of court. Thereupon the defendant entei’ed into the possession of the real estate, and remained so in possession thereof up to and until the commencement of this action, having in no manner aliened or disposed of any interest therein.,
    “ As conclusions of law-from tne premises, the court finds that the plaintiff was not, but on the contrary the defendant was, at the commencement of this action, seized in fee simple of the lands described in the petition in this cause. As further conclusion of law, the court finds that the plaintiff was not, but on the contrary the defendant was, at the commencement of this action, entitled to the possession of the lands. It is therefore considered by the court here, that the defendant go hence without day and recover of the plaintiff his costs herein taxed.
    “It is further ordered that the plaintiff pay his own costs herein, or in default thereof that execution issue therefor.”
    The district court affirmed the judgment, and this petition in error is filed in this court to obtain as well the reversal of the judgment of the common pleas as that of the district court.

      Newbegin db Kingsbury and A. 8. Latty, for plaintiff in error :
    Bond condition precedent to power of guardian to act as such. Ca/rpenter v. 8'loane, 20 Ohio, 327. Sureties in bond given at appointment, not liable with respect to the proceeds of the real estate. Shelton v. Smith, 59 Tenn. 82 ; Henderson v. Cooper, 4 Nev. 429 ; Madison Co. v. Johnston, 51 Iowa, 152; Swartout v. Oaks, 52 Barb. 320; Mattoon v. Cowing, 13 Gray, 387 ; I/yman v. Conleey, 1 Met. (Ky.) 317 ; Klauser v. Diehl, 90 Pa. St. 350. Another bond required by statute before sale. 1 S. & 0. 676, § 27; S. & S. 383, § 28. And see Swan’s Stat. 1841, 430; Swan’s Stat. 1854, 447; S. & O. 670, § 22; And such bond a condition precedent to a valid sale, and the bond not having been given the sale is void. Campbell v. Knight, 26 Maine, 224; Parker v. Nichols, 7 Biclc. Ill; Williams v. Reed, 5 Pick. 480; Blackman v. Bauman, 22 Wis. 611; WilMnson v. Filby, 22 Wis. 441; Cooper v. Southerland, 3 Iowa, 114; Thornton v. Mulguinne, 12 Iowa, 549; Wiley v. White, 3 Stew. & P. 335 ; Currie v. Stewart, 26 Miss. 646 ; Babcock v. Cobb, 11 Minn. 347; Ruc-ker v. Morton, 38 Maine, 47; Doe v. Jackson, 1 Ala. 514 ; Stewart v. Baily, 28 Mich. 251; Ryder v. Flander, 30 Mich. 366; McKeever v. Ball, 71 Ind. 398 ; Megowan v. Way, 1 Met. (Ky.) 418 ; Wells v. Cowherd, 2 Met. (Ky.) 514 ; Watts v. Pond, 4 Met. (Ky.) 61; Lloyd v. Erwin, 29 Gratt. 598 ; Pankin v. Miller, 43 Iowa, 11; Lyma/n v. Gonkey, supra ; Wehrle v. TPéAT’Zé, 39 Ohio St. 365 ; JDiehl v. Friester, 37 Obio St. 473 ; Strong v: Strauss, 40 Ohio St. 87; The Reporter, vol. 16, p. 795 ; Sedg. Con. L. (1st. ed.) 351; Potter’s Dwar. (1 Am. ed.) 224; Freeman’s Yoid Jud. Sales, 44,- §22. Nor would it have been necessary to have returned the consideration, even if it had appeared that the ward received it. Self v. Taylor, 33 La. An. 769 ; Miller v. Smith, 26 Minn. 248 ; Welch v. Toung, 110 Mass. 399 ; Reynolds v. M&Otirdy, 100 Ill. 356. Gaveat emjptor applies to guardians’ sales. Strouse v. Drennan, 41 Mo. 289 ; Black v. Walton, 32 Ark. 321; Rutherford v. Clark, 4 Bush,'27 ; Lloyd v. Erwin, 29 Gratt. 598.

      Henry B. Harris and Cox & Cochran, for defendant in error:

      Mauarr v. Parrish, 26 Ohio St. 636, is decisive against the plaintiff in error. The probate court is a court of record, with exclusive jurisdiction to appoint guardians, and jurisdiction to order the sale of lands on the petition of such guardian and the records of that court import absolute verity, and they cannot be attacked or questioned collaterally. Const, art. 4, §§ 7, 8; S. & C. 675, 676, 1212,1213 ; Sheldon v. Newton, 3 Ohio St. 500 ; Shroyer v. Richmond, 16 Ohio St. 466 ; Ludlow v. Johnston, 3 O. 560 ; Glo'oer v. Ruffin, 6 O. 255 ; Ewing v. Rigby, 7 O. pt. 1.198 ; Stall v. Macallester, 9 0.23 ; Pillsbury v. Gade, 9 O. 120; Maxsom v. Sawyer, 12 O. 207 ; Pavne v. Morland, 15 O. 696 ; Morgan v. Barnet, 18 0.535 ; Moores. Starks, 1 O. S. 372; Fowlers. Whiteman, 2 O. S. 271 ; Merritt v. Horne, 5 O. S. 307; Richards v. Skiff, 8 O. S. 587 ; Benson v. Gilley, 8 O. S. 614; Gallen v. Ellison, 13 O. S. 446 ; Hammond v. Bamemport, 16 O. S. 177; McClelland -v. Miller, 28 O. S. 488; Johnson v. Pomeroy, 31 O. S. 248; Keys v. Williamson, 31 O. S. 561; Wheeler v. State, 34 O. S. 396 ; Rhodes v. Gunn, 35 O. S. 387 — 394; Lindeman v. Ingham,
      36 O. S. 14; King v. Bell, 36 O. S. 470 ; Trimble v. Long-worth, 13 Ohio St. 439 ; Robb v. Irwin, 15 Ohio, 699 ; Irwin v. Jeffers, 3 Ohio St. 390 ; lienta v. Ward, 1 Cin. Sup. Ct. 392. These principles apply, in general, to probate courts in this country, though there are some exceptions. Qrignonls Lessee v. Astor, 2 How. (U. S.) 319 ; Florentine v. Barton, 2 Wall. 210; McNitt v. Turner, 16 "Wall. 352 ; Cornett v. Williams, 20 Wall. 226 ; Thompson v. Tolmie, 2 Pet. 157 ; Yoorhees v. Bamlc of TJ. S., 10 Pet. 449 ; Davis v. Hudson, 29 Minn. 27 ; v. Snyder, 7 Serg. & R. 166; McPherson v. Ounliffe, 11 lb. 422 ; Ouyler v. Wayne, 64 Ga. 78 ; Rorer on Judicial Sales, §§ 57-65, 479; 1 Smith’s Lead. Cas. pt. II. *825. Counsel also commented on certain cases cited by plaintiff in error, and also upon Thornton v. McGrath, L Duval, 353.
    In Mauarr v. Parrish, 26 Ohio St. 636, counsel, for the purchaser at the guardian’s sale cited in his printed brief the following statutes and authorities, from which he insisted that the order of sale and the order of confirmation of sale were valid against collateral attack, even if they were erroneous. Stall v. McAlister, 9 Ohio 23 ; Cad/walader v. Evans, 1 Disney, 585 ; Sheldon v. Newton, 3 Ohio St. 498 ; 8 Ohio St. 297 ; 1 S. & C. 675 ; §§ 22, 23, 25 ; Grignons v. Astor, 2 Howard,” U. S. 341; Roderigas v. East Riv. Savings Lnst., Am. L. Reg. Apl. 1876, pp. 205, 340 ; Yoorhees v. Bank TJ. S., 10 Peters, 475; Kemp v. Kennedy, 5 Or. 173; Maine v. Smith, Smith (Ind.) 381; Const, art. i, §§ 7, 8; 2 S. & C. 1213, § 3; TJ. S. v. Armadillo, 6 Peters, 709 ; Rhode Island v. Mass., 12 Peters, 718 ; Blaine v. Carter, 4 Cr. 328 ; Harris v. Hardeman, 14 Howard, 399 ; Beauregard v. New Orleans, 18 Howard U. S. 497; Harvey v. Tyler, 2 W all. 228 ; Florentine v. Burton, 2 Wall. 210; Thompson v. Tolmier, 2 Peters, 157; Callen v. Ellison, 13 Ohio St. 446.
    Counsel cited in his brief in Mauarr v. Parrish, in support of the claim of the ward, 1 S, & C. 676, §§ 27, 28, and claimed they were mandatory, and relied on Rorer on Jud. Sales, §§ 74, 77, 127, 130, 260, 261, 284, 480, 483, 484,; Potter’s Dwar. Stats. 224; Frazier v. Steenrod, 7 Iowa, 340 ; Alabama Conference v. Price, 42 Ala. 39; Wilson v. Arm
      strong, lb. 171; Shriver v. Lynn, 2 How. 43 ; Buchanan v. 2 Ohio St. 266; Bucher v. Dyer, 44 Miss. 591.
   Okey, J.

In Mauarr v. Parrish, 26 Ohio St. 636, it appeared that the probate court of Lawrence county, in 1864, appointed a guardian for minors; that the guardian gave bonds at the time of his appointment, in usual form as prescribed by statute (1 S. & 0. 671, § 6 ; Rev. Stat. § 6259); that in 1866, he filed a petition in that court, obtained an order of sale, and sold the real estate of his wards, without giving the additional bonds provided for by the statute, the probate court finding “ the bonds already given by the guardian to be sufficient.” And this court sustained the title of the purchaser.

That case is directly in point. The facts in the two cases were substantially the same, and the proceedings in both were under statutory provisions which are the same, except in a single particular not important to the case before us. 1 S. & C. 670, 681; Rev. Stats. §§ 6254-6301. The statute which governed the proceeding in Mauarr v. Parrish, provided (1 S. & C. 671, § 6) that upon the appointment of a guardian of a minor’s estate by the probate court, such guardian “ shall give bond, with freehold sureties, payable to the state of Ohio, in double the amount of the personal estate belonging to said minor, and also of the gross amount of rents that will be probably received by the guardian from the real estate of said minor, during his or her minority ; which bond shall be conditioned for the faithful discharge of the duties of said person as such guardian.” The probate court may require “ such guardian to give additional bond, whenever, in the opinion of said court, the interest of the ward of such guardian shall demand the same.” The guardian may obtain authority to sell the real estate of his ward, under certain circumstances. The.application must be made by petition, which may be filed in the probate court. § 24. “ Upon such petition being filed, verified by the oath of the guardian, the court shall order the petitioner to give notice to his ward, who shall be defendant to the petition, of the filing and demand thereof, and the time when the same will be heard, in such manner as to the court shall seem reasonable and proper.”

§ 25. “ At the time appointed for the hearing of said petition, and being satisfied that the notice named in the last preceding section has been given, and that such real estate ought to be sold, the court shall appoint three freeholders of the county in which said real estate shall be situated, who are not of kin to the petitioner, to appraise said real estate, and the same shall not be sold for less than two-thirds of the appraised value thereof.”

§ 26. “ Said appraisers shall take an oath to truly and impartially appraise said real estate at the’ fair cash value, which oath shall be indorsed on the certificate of their appointment.”

§ 27. “ Upon the appraisement of said real estate being filed, signed by said appraisers, the court shall require such guardian to execute a bond, with sufficient freehold sureties, payable to the state of Ohio, in double the appraised value of such.real estate, with condition for the faithful discharge of his duties, and the faithful payment and accounting for of all moneys arising from such sale according to law.”

§ 28. “ Upon such bond being filed and approved by the court, the court shall order the sale of such real estate, providing in the order for reasonable notice and the place of such sale, in the county in which such real estate shall lie, and the credit to be given for the payment of the purchase money, and the deferred payments of the purchase money shall be secured by a mortgage, executed by the purchaser, upon the real estate sold, and they shall bear interest at the rate of six per centum per annum from the date of sale, payable annually.”

§ 29. “ Upon the return day of the order of sale issued by the court, such guardian shall make report of the sale by him made ; whereupon the court, on being satisfied that such sale was fairly and legally made, shall confirm the same, and order the petitioner to execute a deed of conveyance for the real estate so sold, upon the purchaser securing the deferred payments of the purchase money, in the manner prescribed in the last preceding section.”

At the time of the proceedings in the probate court, in the case now under consideration, the same statutory provisions which controlled Mauarr v. Parrish were still in force, except that the above section 28 had been repealed and reenacted without other material change than to confer power on the court to authorize the guardian to sell at private sale, if the interest of the ward would be thereby promoted. S. & S. 383; Rev. Stats. § 6286. This change, it will be seen, is wholly immaterial as respects the question before us.

"We express no opinion upon the question whether the sureties in the bond given by the guardian, at the time of his appointment, are or are not liable for the proceeds of the sale of the real estate. Many cases support the view that they would be liable. Assuming, however, that they are not liable, and that, before granting an order for the sale of the real estate, the probate court should have required the guardian to give the bond specified in sections 27 and 28, still, we are fully justified in following Mauarr v. Parrish, on two grounds:

1. Mauarr v. Parrish has become a rule of property. A decision having attained that importance should never be disturbed, unless it violates fundamental principles, or is not only plainly wrong, but mischievous in its consequences. Kearny v. Buttles, 1 Ohio St. 362; Gray v. Askew, 3 Ohio, 466, 478; Sellers v. Corwin, 5 Ohio, 398, 408; Kinsman v. Loomis, 11 Ohio 475, 479; White v. Denman, 1 Ohio St. 110, 115; Corwin v. Benham, 2 Ohio St. 36, 44; Crumbaugh v. Kugler, 2 Ohio St. 373, 380; Strong v. Beach, 11 Ohio St. 283, 288; Knox Co. v. Nichols, 14 Ohio St. 260, 269; Pay v. Munson, 14 Ohio St. 488, 492. And Mauarr v. Parrish is not within any such exception to the rule.

2. The decision in Mauarr v. Parrish was right. The probate court had jurisdiction of the subject matter, — i. e., it saw clothed with authority to. order the sale of the lands of a minor on the petition of his guardian ; and it is fair to say from the record, that notice of filing the petition, provided for by the statute, had been served on the minor, before any order was made in the proceeding, in the manner in such statute provided; and hence when the order of sale was made and also when the sale was confirmed, the probate court had not only jurisdiction of the subject matter, but also the parties. This being true, the order of sale and the order of confirmation, although they may'have been erroneous, were not void. “ The judgment or final order of a court having jurisdiction of the subject matter and parties, however erroneous, irregular or informal such judgment or order may be, is valid until reversed or set aside, . . . within which rule the orders of probate courts are classed. Shroyer v. Richmond, 16 Ohio St. 455. If the judgment or order is erroneous, it may be reversed ; if it is irregular or informal, it may be corrected on motion; in neither ease, however, is it subject to collateral attack.” Wehrle v. Wehrle, 39 Ohio St. 365.

True, Mauarr v. Parrish is very briefly reported on the question we are considering. But the strength of an opinion is not to be determined from its length. Frequently cases are disposed of by the application of principles' so firmly settled that the citation of authorities in support of them would be a work of supererogation. The judge delivering the opinion in Mauarr v. Parrish probably thought the case belonged to that class, and hence the brevity of the report; but the ground of the decision is clearly indicated, — that is, that the court having jurisdiction of the subject matter and parties, the order of sale and the order of confirmation, though they may have been erroneous, were not void, — and that is sufficient. The record and a brief on each side of the case, have remained on file in this court, and we have no doubt that the question received the careful consideration, as in its decision, in the way stated, it received the concurrence, of every member of this court. And although cases in apparent opposition to Mauarr v. Parrish have been cited, yet nearly all of them are clearly distinguishable from it, when regard is had to the statutes on which they were based ; and Mauarr v. Parrish is fully supported by Watts v. Cook, 24 Kansas, 278; Bunce v. Bunce, 59 Iowa, 533; Lockhart v. John, 7 Barr, 137; Merklein v. Trapnall, 10 Casey, 42; Thorn’s Appeal, 35 Pa. St. 47; Dixey v. Laning, 13 Wright, 143.

Diehl v. Friester, 37 Ohio St. 473; and Wehrle v. Wehrle, supra, have been cited as supporting the view that the sale was void. In Diehl v. Friester, it appeared that the probate court allowed an injunction, on an ex parte application, in an action pending in the court of common pleas. The sole purpose for which the probate court was clothed with jurisdiction Avas with respect to the injunction, and by express terms of the statute the injunction could not operate until bond was given. As bond Avas not given, the injunction was wholly inoperative, and hence an order of the probate judge for the imprisonment of the defendant, in proceedings in that court for contempt in refusing to obey such art-injunction, Avas held to be void. In Wehrle v. Wehrle it appeared that under the statute relating to administrator’s sales, the probate court was denied jurisdiction to order the sale of a 'homestead, upon any terms or under any circumstances, and hence the sale of the homestead, under the order of the probate court in such case, was held to be void. We find nothing in these cases to support the claim of the plaintiff in error. The case before us has been ably argued, and we report it thus fully to show that it is clearly our d.uty to adhere to Mauarr v. Parrish.

Judgment affimned.


author: By the Court.

text:
    Banks v. De Witt.
    1. A contract oy a publisher Avith the secretary oí state, under proper, legislation, to print and bind for the state volumes of law reports, maybe assigned by the contractor, with the acquiescence of the state, so as to operate as a novation and vest in the assignee all the rights and subject him to all the obligations of the original contractor.
    2. A contract made in pursuance of a statute or resolution, must be construed as though such statute or resolution had been incorporated into such contract,

      3. Under the statutory provisions relating to the publication of the Ohio State Reports (Rev. Stats. §§ 427-437), the resolution of April 17,1883 (79 Ohio L. 249), on the subject, and the contract, made in pursuance of the statute and resolution, Banks & Brothers, assignees of the original contractors, have the right to complete any volumes of reports upon the publication of which they in good faith entered previous to June 23, 1884 ; and the fact that on the last named day, a sufficient number of opinions had not been delivered to complete the volumes then in course of publication, will not defeat such right.
    4. In favor of such an officer as the reporter of the supreme court, it will be presumed, in the absence of anything appearing to the contrary, that in placing, for publication, manuscript opinions in the lianas of the contractors for printing and binding the Ohio State Reports, during the period' embraced by the contract, he acted in entire good faith ; and where, with the opinions so'furnished, the publisher commences in good faith, during such period, to publish a volume of such reports, he cannot be deprived of manuscript opinions to complete the volume, on the ground that the contract was made under the joint resolution of April 17,1882 (79 Ohio L. 249), which authorizes the secretary of state to contract for the publication “ of the thirty-eighth and any other subsequent volume or volumes of the Ohio State Reports that may be ready for publication within two years from the 23d day of June, 1882,” and that sufficient opinions had not been delivered on the last named day to complete the volume ; and on refusal to furnish such manuscripts for such purpose, the officer may be compelled to do go by mandamus.
    .MaNDAMus.
    On June 23, 1884, Banks & Brothers, of New York, made application to this court for a writ of mandamus, and presented a petition therefor, which, omitting caption, signature of counsel and verification, is as follows : “ Your petitioners, David Banks & A. Bleeeker Banks, partners as Banks & Brothers, respectfully' represent, that on April 17, 1882, the general assembly of Ohio passed the following joint resolution : ‘Joint Resolution providing for the publication of the Ohio State Reports and the advance sheets of the same. Be it resolved by the general assembly of the state of Ohio, that the secretary of state be and he is hereby authorized to contract with some-responsible person or firm to furnish materials, print bind and supply the state with three hundred and fifty copies of the thirty-eighth and any other subsequent volume or volumes of the Ohio’State Reports, that may be ready for publication wfithin two years from the 23d day of June, 1882; said contract to be made with the lowest responsible bidder, as provided in section 2, article 15 of the constitution, after first giving public notice to bidders for four weeks in some weekly newspaper in Columbus, Ohio, and of general circulation in the state. Said contract to be made in accordance with the provisions and subject to the limitations and instructions of section 437 of the Revised Statutes, as to cost and otherwise, and shall include the advance sheets provided for in said section. The volumes to be in quality of paper and binding equal to volume 1, Ohio State Reports, as provided by law.’ 79 Ohio Laws, 249.
    “ On June 16,1882, in pursuance of the resolution, Charles Townsend, then secretary of state of the state of Ohio, and acting as such, made and entered into the following contract with H. W. Derby & Co., which contract said H. W. Derby & Co. did in June, 1882, assign to these relators for good and valid consideration, and thereby these relators succeeded to all the rights and liabilities of said H. "W. Derby & Co. under said contract: ‘ This agreement made and entered into this 16th day of June, 1882, by and between H. "W. Derby & Oo., of the city of Columbus and state of Ohio, of the first part, and the state of Ohio, of the second part, witnesseth, that whereas, in pursuance of the provisions of section 437 of the Revised Statutes of Ohio, and as amended January 17, 1882, in relation to contracts for furnishing the materials, printing 'and binding of the Reports of the Supreme Court of Ohio, and in pursuance of the provisions and requirements of the joint resolution of the general assembly of the state of Ohio adopted April 17, 1882, requiring the secretary of state to let said contract to the lowest responsible bidder therefor, after giving public notice to bidders for four weeks in some weekly newspaper published in Columbus, Ohio, and of general circulation in the state. And whereas the secretary of state did, prior to the 6th day of June, 1882, give notice as therein required, in the Ohio State Journal, a weekly paper of general circulation published in Columbus, Ohio, for four consecutive weeks : a copy of which notice is hereto attached, marked A. And whereas, on said 6th day of June, 1882, at 12 o’clock M., the said secretary of state received divers bids therefor in writing, and opened and examined the same in the presence of the several bidders, and it appearing from said examination and the bid of H. W. Derby & Co., which is hereto attached marked B., that the said H. W. Derby & Co. were the lowest responsible bidders therefor. And whereas the said secretary of state accepted the same and awarded the said contract t,o the said H. W. Derby & Co. Now, therefore, for the consideration herein after named, the said H. W. Derby & Co. hereby agree and bind themselves to furnish the materials for and print and bind, on paper and in character and quality of binding, equal to volume 1, Ohio'State Reports, in the manner in all respects and with the expedition as provided by law, a sufficient number of copies of volume 38, and of the next succeeding volume or volumes, if any, of the Ohio State Be-, ports that are or may be ready for publication within two years from and after the 23d day of June, 1882, to supply the State of Ohio with three hundred and fifty copies of each volume so to be published, and to deliver the same to the secretary of state, at his office at Columbus, Ohio, as soon as bound, at 92-¡¿- cents per volume. And the said H. W. Derby & Co. further agree and bind themselves to furnish the materials for and to print and bind on like quality of paper and character of binding and with like expedition and promptness, and to furnish a sufficient number of copies of each of the said volumes of the reports so as aforesaid to be published, to supply the demand of the citizens of the state at a cost not exceeding one dollar and fifty cents per volume, the same to be delivered and kept for sale at Columbus, Ohio. And the said H. W. Derby & Co. agree that their price per volume of the reports to any person or firm, for use or sale in this state, shall not exceed the sum of $1.50, being the sum named in the said contract with said secretary of state, for a period of twenty years. And the said IT. W. Derby & Co. further agree, that upon the receipt from the secretary of state, or other officers, of sufficient manuscript reports of said Ohio State Reports, herein required to be published, to make a form of 16 pages of printed matter of the size and kind required by law, that they will, in every such case, cause the same to be set up in a form as required by law and furnish to said secretary of state a proof sheet of such form or forms, and when said proof sheets shall have been duly corrected by the officer required by law to correct the same, shall be returned by said secretary of state or such other officer to said II. W. Derby & Go., and saidH. W. Derby & Co. shall print such number of copies of such corrected form or forms as said secretary of state may require, not exceeding two hundred of each, and immediately deliver the same to said secretarry of state at his office at Columbus, Ohio, free of all charge and expense to the state.
    ‘ In consideration of the covenants and agreements herein made by the said EL. W. Derby & Co., parties of the first part, the said State of Ohio, party of the second part, hereby agrees that the said II. W. Derby & Co., as such contractors, shall have the sole and exclusive right to publish the reports aforesaid so far as the said State of Ohio can confer the same, for and during the said period of two years commencing with said 23d day of June, 1882, and that they shall moreover be furnished with all the manuscript thereof to be printed, as provided by law.
    ‘ In witness whereof the parties hereto have hereunto subscribed their names and affixed their seals this day and year first above written.
    ‘ II. W. Derby & Co., party of the first part.
    £ Chaules Townsend, Sec. of State, party of the second part.
    £ For value received we hereby assign all our rights and interest in the within contract and agreement to Banks & Brothers, 144 Nassau St., New York, this — day of June, 1882. II. W. DERBY & Co.’
    “ The relators say they have proceeded to carry out all the terms and conditions of the contract, and have in all respects complied with the same, and are still ready and willing to comply with the terms and conditions thereof in all respects. And they say that the respondents (James W. Newman, secretary of state and E. L. De Witt, reporter of the supreme court) have furnished to them, under said contract, prior to this 23d day of June, 1884, manuscript for a part of what will be, when published, volumes 41 and 42 of the Ohio State Reports, volume 41 being supreme • court commission and volume 42 supreme court reports ; and these relators have furnished the material for and have printed all the manuscript copy which has been furnished for said volumes 41 and 42 of said Ohio State Reports, as required by the contract, and have in so doing been at great expense of labor and material. The manuscript so furnished under the contract by the respondents to the relators, amounts to about 75 printed pages of volume 41 and 32 pages of volume 42 of the reports, and the relators have been required to furnish materials for and print the same, and in so doing have been required to prepare materials for and to make contracts for the printing and binding of said volumes 41 and 42 of said Ohio State Reports, entire.

      “ The relators are now ready and willing and fully prepared to complete and furnish said volumes 41 and 42 of the Ohio State Reports in the manner provided for in the contract, but they say that the respondents, James W. Newman, as secretary of state, and E. L. De Witt, as reporter of the supreme court, decline to furnish any more manuscript copy for either of the volumes, although they have a large amount of the same on hand which should be furnished, and the relators have made demand on each of them therefor ; and the relators still refuse as aforesaid. No other or further contract has been made for the printing of said reports.

      “ The relators are without .remedy in the premises unless it is afforded by the interposition of this court, and they therefor pray that a writ of mandamus may issue against James W. Newman, secretary of the state of Ohio, and E. L. De Witt, reporter of the supreme court, directing them to furnish to the relators sufficient manuscript copy to fully complete said volumes 41 and 42, under the terms of the aforesaid contract, and that such further orders may be made as the cáse may require.” '
    De Witt, by his answer, “ admits that the allegations of the petition are true, but says that the contract set forth in the petition of the plaintiffs expired on the 23d day of June, 1884, and no new contract has been made with Banks & Brothers or with any one else by the secretary of state for the further printing of the Ohio State Reports, and no resolution has been passed by the general assembly of Ohio authorizing him to make any further contract in that behalf.” And the answer of the defendant N ewman is in the same form.
    It appears that previous to the publication of the forms of vols. 41 and 42, above referred to, the whole body of vols. 39 and 40 had been printed, except the indexes.
    The Revised Statutes provide, with respect to the publication of the Ohio State Reports, as follows :
    “ Sec. 427. The reporter shall, when required by the court, attend its sessions and consultations, and, under its direction, report and prepare for publication its decisions, and such other decisions as it designates. (69 v. 99, § 2.)

      “ Sec. 428. The court shall cause to be reported, with as much brevity as practicable, each of its decisions, whether made in disposing of a motion or otherwise, that determines or modifies any theretofore unsettled, or new and important, question of law in this state, or that gives construction to a statute of ambiguous or doubtful import, together with such other of its decisions as are deemed of public interest and importance. [69 v. 99, § 3.]
    “ Sec. 429. The reporter immediately after the decision of any case to be reported, shall prepare for publication a report thereof, under the direction and supervision of the court, and in general conformity with the plan hitherto adopted and pursued, and deliver the same, in manuscript, to the supervisor of public printing or Other officer having charge of the state printing, and take his receipt therefor, which receipt shall be filed in the clerk’s office, with the other papers in the case; but no argument of counsel shall be published with such report, other than a brief of the points made, and authorities cited and relied upon by counsel, unless especially ordered by the court. [69 v. 99, § 4.]
    “ Sec. 430. When the supervisor, or other officer, receives sufficient manuscript reports to make a form of sixteen pages of printed matter of the size and kind herein required, he shall deliver the same to the printer having the contract for the printing thereof, who shall forthwith cause the same to be set up in a form, as aforesaid, and after such form is duly corrected and approved by such supervisor, or other officer, the reporter shall cause to be printed three thousand copies of such reports; which copies shall be delivered to the supervisor, or other officer ; the manuscript shall likewise be returned to the supervisor, or other officer, to be by him kept, subject to the order of the reporter. [69 v. 99, § 5.]
    “ Sec. 431. On receiving the copies, the supervisor, or other officer, shall deliver to the secretary of state a sufficient number of the same to supply the state officers, judges of the supreme court, judges of the supreme court commission, judges of the courts of common pleas and superior courts, and clerks of the courts of common pleas, for the sole use of their offices, respectively, with one copy each; and the secretary shall forthwith forward-the same by mail to said officers, respectively; and the remainder of said copies the supervisor, or other officer, shall carefully preserve till a full volume is so printed, and shall then cause the same to be bound as hereinafter provided. [69 v. 99, § 6.]
    “ Sec. 432. The reports shall be printed on good paper, and bound in law-leather, in style not inferior to volume one Ohio State Reports, and shall be in form and manner of execution similar thereto ; and each volume thereof shall contain all the cases for report and prepared, decided during the year ending on the first day of April immediately preceding the publication of such volume, and such others theretofore decided as the court directs; and the court may, for the sake of uniformity in the size of the volumes, or for other good cause, direct a volume to be closed on a different day, and the issuance thereof with a less or greater number of cases; and each volume shall contain an index and table of cases similar to those in volume one, which the reporter shall prepare and furnish to the supervisor, or other officer, to be printed, delivered, and distributed, as aforesaid, in time so as not to delay the publication of such volume. [69 v. 99, § 7.]
    “Sec. 433. When the printing of any volume is completed, as aforesaid, the supervisor, or other officer, shall cause the copies thereof not distributed, to be bound according' to law, and'shall deliver the same so bound to the secretary of state, together with a statement of the actual cost to the state of publication per volume; and the secretary shall forthwith send by mail to the several clerks of the court of common pleas in the state such statement per volume, with ten per centum added thereto; and thereupon, on the receipt in money of the price with such per centum added per volume, accompanied with a certificate, to be made and delivered without cost, of any such clerk, under seal, or other satisfactory evidence that each copy of the report thus sent for, is for the actual use of some person being a citizen of. this state, the secretary shall pay such money into the state treasury, and forward such copy or copies to the person or persons so transmiting the price thereof; but no more copies shall be sold in any county than would be sent thereto, were the whole edition distributed among the several counties according to their population, respectively. [69 v. 99, § 8.]

      “ Sec. 434. After receiving the number of copies of the first edition of any such report necessary for the distribution authorized by law, and a sufficiency in addition to supply the probable demand for actual use in this state, the residue thereof shall be disposed of in such manner, by way of exchange for works on law and equity for the use of the state law library, or otherwise, as the supreme court or the general assembly by resolution directs; but the court,shall not authorize the sale of any volume for less than the cost price thereof, with ten per centum added ; and no volume of the first edition of any such report shall be sold, or offered for sale in this state, to any citizen thereof, for more than such cost price, with twenty per centum added; and any person violating this provision is guilty of a misdemeanor, and on conviction thereof shall be fined in any sum not less than ten nor more than one hundred dollars. [69 v. 99, § 9.]

      “ Sec. 435. The commissioners of public printing shall, at the same time and place, in the same manner and under the same restrictions and requirements that they advertise and let the other public printing of the state, advertise and let the printing required by this chapter to be done; each volume of the reports to be equal in quality and mechanical execution to volume one Ohio State Reports ; and the binding herein required shall likewise be provided for by the commissioners; but they shall cause the same to be done at the binding department of the deaf and dumb asylum, if, in their judgment, that be practicable. [69 v. 99, § 10.]
    “ Sec. 436. The reporter shall secure a copyright, for the use of the state, for each volume of the reports so published; and he shall receive such compensation for his services, not exceeding eighteen hundred dollars per year, during the time the supreme court commission is in session ; and at all other times not exceeding one thousand dollars yearly, payable out of the state treasury, in such installments as the supreme court, by order entered on its journal, directs. [73 v. 172, §11-]
    “ Sec. 437, as amended January 17, 1881, 78 Ohio Laws, 14. In lieu of the letting, and printing, and binding of the reports by the means aforesaid, the secretary of state, when and as often as he is thereto authorized by resolution of the general assembly, may contract with any responsible person or firm to furnish the material and to print and bind in the manner in all respects, and with the expedition provided in this chapter, a sufficient number of copies of each volume of the reports to supply the state with three hundred and fifty copies at a cost not exceeding one dollar and fifty cents per volume, and the demand of the citizens of this state, at a cost not exceeding one dollar and seventy-five cents per volume, delivered at some convenient point within the state ; and, in addition thereto, to furnish the secretary promptly with a requisite number of advance sheets of such reports, as herein provided, for distribution as aforesaid, and the price per volume of the reports to any person or firm in this state shall not exceed the sum named in the contract with the secretary, for a period of twenty years; but nothing in this chapter shall prevent the person or firm so contracting with the secretary from doing or causing the work to be done outside the state of Ohio ; and such person or firm so contracting shall enter iirto bonds to the state, with at least three good and sufficient sureties, residents of the state, to the satisfaction of the governor, in the sum of ten thousand dollars, conditioned for the printing and binding, as provided in this chapter, of such reports for the state, and for citizens thereof, on demand, at a cost named in such contract, and for the furnishing of such advance sheets for distribution, as aforesaid. Such contract shall not be for a longer period than two years ; and such contractor shall have the sole and exclusive right to publish such reports, so far as the state can confer the same, during such period of two years, and shall be furnished with the manuscript to be printed as provided in this chapter.”
    All the duties with respect to the publication of the Ohio State Reports, required to be performed by the supervisor of printing, are devolved upon the reporter of the supreme court.
    No objection has been made by the state to the assignment of the contract to Banks & Brothers, but on the contrary the state has uniformly recognized them as substituted for H. W. Derby & Co., contractors.

      Taylor c& Tan/lor, for Banks & Brothers.

      J Lawrence, Attorney General, for the defendants.
   By the Court.

The sole question here is whether, under the contract set forth in the petition, Banks & Brothers, in view of the admitted facts contained in the statement of the case, have a right to publish vols. 41 and 42 Ohio State Reports. In holding that they have such right we will simply state our conclusions.

1. The assignment of the contract by H. W. Derby & Co. to Banks & Brothers, and the acts of the state in accepting the latter in place of the former as contractors, operated as a complete novation, so that Banks & Brothers assumed the obligations and acquired the rights of H. W. Derby & Co., under the contract. Ernst v. Kunkle, 5 Ohio St. 521; Bacon v. Daniel, 37 Ohio St. 279; St. Louis v. Clemens, 42 Mo. 69; Cumminqs v. Blaisdell, 43 Vt. 382; 2 Chitty on Con. 11 Am. ed. 1376, n.

2. The contract, which provided not only for the publication of vol. 38 Ohio State Eeports, but “any other subsequent volumes of the Ohio reports that may be ready for publication within two years from the 23d day of June, 1882,” must be construed in view of the statutes and resolution relating to the matter. Eev. Stats. §§ 427-437; 78 Ohio L. 14; 79 Ohio L. 249; Jewett v. Railw. Co., 34 Ohio St. 607; Alber v. Froehlich, 39 Ohio St. 245, 249.

3. So construed, the contract embraces vols. 41 and 42 Ohio State Eeports; for, before Juno 23, 1884, manuscript opinions properly prepared, sufficient in quantity to make several forms of sixteen pages each of printed matter, for each of those volumes, had been placed by the proper authority in the hands of Banks & Brothers as part of the matter for the publication of those volumes ; and before June 23, 1884, Banks & Brothers had placed in type several of such forms of each volume, and had made sub-contracts for printing and binding both volumes entire; and it is not necessary, in order that those volumes should be embraced by the contract, that manuscripts sufficient to complete either of them should have been prepared before June 23,1884 ; nor is it essential that it should be made to appear that the reporter, when he placed such manuscripts in the hands of Banks & Brothers, believed there would be opinions sufficient in number delivered before June 23, 1884, fully to complete the volumes or either of them.

4. In favor of the acts of such a public officer as a reporter' of the supreme court, it will be presumed that in placing the manuscripts in the hands of Banks & Brothers for publication of vols. 41 and 42, Ohio State Reports, he demeaned himself honestly and faithfully (Ward v. Barrows, 2 Ohio St. 241; Coombs v. Lane, 4 Ohio St. 112; Lima v. McBride, 34 Ohio St. 338, 350; 1 Bishop’s Cr. Pro. § 1131); and there is nothing to show that Banks & Brothers had knowledge as to the quantity of manuscript in the hands of the reporter when they comménced the publication of those volumes, or proceeded, in undertaking such publication, otherwise than in entire good faith.

5. The publication of vols. 41 and 42 having thus been lawfully commenced, the reporter cannot be permitted to stop the publication by placing a changed, and, as we hold, erroneous construction on the contract and the statutes and resolution ; and-mandamus is an appropriate remedy in such case to compel the delivery of the remaining portion of the, manuscript.

6. Where the material facts, upon an application for mandamus, are admitted, and the plaintiff is entitled to relief, this court should award, not an alternative, but a peremptory writ of mandamus. Rev. Stats. § 6745.

We are clear that Banks & Brothers are entitled to the relief for which they applied, by a fair construction of the contract and the legislation ; and in so holding we are glad to see, what is manifest from the record, not only that the contract is greatly to the advantage of the state, but that vexatious delay in the publication of those volumes will be avoided.

Peremptory writ awarded.

JOHNSON, C. J., dissented.