author: Jones, J.

text:
    The National Fire Insurance Co. v. Dennison.

      Fire insurance — Real and personal property — Concurrent insurance —Recovery for partial loss — Effect of valued-policy law — Sections 9583 and 9584, General Code.

    An insurance company issued three separate policies of insurance, one covering a frame building and two covering a stock of goods, furniture and fixtures contained therein. At the time of the fire there was concurrent insurance by other companies on the same property in specified amounts. Each of these policies contained a stipulation that the company should not be liable under the policy for a greater proportion of any loss on the described property than the amount thereby insured should bear to the whole insurance, whether valid or not, or by solvent or insolvent insurers, covering such property. The insured suffered partial loss by fire on both the building and personalty, Held:

    1. In such action, on the policy issued on the building, the insured could recover for the full amount of the partial loss thereon, and was not limited by any such stipulation to a proportionate amount that such policy bore to the whole insurance.
    2. As to the building, such stipulation limiting liability and payment for the actual partial loss, was void by reason of the valued-policy law. (Sections 9583 and 9584, General Code.)
    3. These sections of the valued-policy law apply to buildings and structures named therein and do not affect insurance contracts covering personal property.
    4. As to personal property, the stipulations named in the policy are valid, and recovery based upon insurance contracts containing such stipulations is limited to the proportion of the loss that the amount thereby insured bears to the whole insurance.
    (No. 14776
    Decided February 15, 1916.)
    Error to the Court of Appeals of Fairfield county.
    This was an action by the defendant in error against The National Fire Insurance Company on three separate policies. One policy was for the sum of $1,000 on a frame building occupied as a general store. The second policy was for the sum of $1,000 on the stock of goods, furniture and fixtures therein, $20 of that amount being upon the furniture and fixtures, and the third policy was issued for the sum of $2,000, $40 of which was placed upon the furniture and fixtures.’
    The petition averred, and the answer admitted, that after the fire a written agreement was entered into between the insurer and the insured by which the amount of the loss on the building was fixed and determined in the sum of $225, and the amount of loss upon the stock of goods was likewise fixed and determined in the sum of $2,106.43. By a similar arrangement the actual loss on the furniture and fixtures was determined to be in the sum of $100. Each of the policies contained a clause granting permission for other - concurrent insurance.
    The insurance company filed an answer containing several defenses to the causes of action set forth in the petition. It alleged that each of the policies of insurance contained a stipulation providing that the company should not be liable under the policy for a greater proportion of any loss on the described property than the amount thereby insured should bear to the whole insurance, whether valid or not, or by solvent or insolvent insurers, covering such property; and further alleged in its several defenses that at the time of the fire there was concurrent insurance other than said policies of insurance, severally named in the petition; that upon the frame building mentioned in the petition there was concurrent insurance to the amount of $1,000; and that there was concurrent insurance other than the policies of insurance described in the petition upon the stock of general merchandise in the sum of $6,860, and further concurrent insurance in the amount of $140 on the furniture and fixtures.
    Each policy in suit contained the following provision :
    “This company shall not be liable under this policy for a greater proportion of any loss on the described property, * * * than the amount hereby insured shall bear to the whole insurance, whether valid or not, or by solvent or insolvent’insurers, covering such property.”
    In support of this feature of its defense the insurance company sought to show by an examination of the defendant in error that there were other policies of insurance issued and outstanding at the time of the fire upon the property covered by the policies, and that such concurrent insurance had been issued by the Aetna Insurance Company and was in force at that time. The court refused the admission of this testimony, whereupon counsel for the insurance company offered explicitly to show that the Aetna Insurance Company had issued a concurrent policy in the sum of $1,000 on the building and another policy for $1,960 on the stock of goods and an additional $40 on the furniture and fixtures.
    Upon the question of recovery, the parties having admitted by the pleadings mutual determination of the amount of the loss to the building and personal property, the court charged the j‘ury as a matter of law that the plaintiff was entitled to recover the full amount of such determined loss with interest. A verdict for the full amount was rendered by the jury, and the judgment thereon was affirmed by the court of appeals after ordering a remittitur in the sum of $40, which manifestly was erroneously incorporated in the verdict.

      Mr. J. W. Mooney; Mr. R. M. Edmonds and Mr. W. K. Martin, for plaintiff in error.

      Mr. M. A. Daugherty; Mr. J. S. Sites and Mr. Brooks E. Shell, for defendant in error.
   Jones, J.

The contention of the plaintiff in error is that, in view of the stipulations in its several policies limiting its liability in case of concurrent insurance, its liability is fixed thereby, and that, under ■ such condition, such liability, “where the whole loss upon an item of property is less than the total amount of insurance upon such item, is limited to such proportion of the whole loss upon that item as the amount insured by that company bears to the total insurance covering that item of property, and that under this condition of the policy the liability of each insurance company is several and not joint.”

It has generally been held by the courts of this country that, in the absence of a statute affecting the limitation of liability upon the part of the insurer, a stipulation of the character contained in this policy may serve to fix and limit a ratable liability measured by the proportion of its insurance to the aggregate insurance. In such cases the courts have generally held that such a provision, in case of other concurrent insurance, made the liability several and not joint, and that a recovery cannot be had for more than the pro rata amount stipulated for and fixed by the parties in their insurance contract.

This principle was announced by our own court, before the passage of our valued-policy law, in the case of Good v. Buckeye Mutual Fire Ins. Co., 43 Ohio St., 394, where, under a similar provision, it was held that the liability of the defendant was several and not joint, and that in ascertaining the defendant’s proportionate share of the entire loss, reference should be had to the aggregate insurance without regard to the fact that some of the companies had settled for a less sum than they were liable for, or whether they were insolvent or otherwise. The principle so announced would still obtain if not affected by a statute controlling the stipulation contained in the policy. In so far as the parties have attempted to employ this provision in fixing the liability in case of loss to buildings and structures in this state, they are confronted by our present valued-policy law, which denies them this right. What is known as the valued-policy law is now contained in Sections 9583 and 9584, General Code. These sections provide that any one insuring any building or structure against loss or damage by fire shall cause such building or structure to be examined by his or its agent, a full description thereof be made, and its insurable value be fixed by him. In the absence of any change increasing the risk without the consent of the insurer or intentional fraud on the part of the insured, Section 9583 provides:

“In case of total loss, the whole amount mentioned in the policy of renewal upon which the insurer receives a premium, and in case of a partial loss, the full amount thereof, shall be paid.”

Adhering to the rule uniformly adopted in this state that this section becomes a part of every fire-insurance contract, it devitalizes every such contract inconsistent with its provisions. This section requires in all cases of total loss to buildings and structures that the whole amount mentioned in the policy upon which the insurer received a premium shall be paid, and furthermore that in case of partial loss the full amount of such partial loss shall he paid.

The seeming contention of counsel for plaintiff in error is that, in the face of this statute, only a proportion of the partial loss shall be paid. This contention would nullify the plain terms of the statute. It is attempted to enforce this construction by reference to Section 9584, General Code, which provides:

“When there are two or more policies upon the same property, each policy shall contribute to the payment of the whole or the partial loss in proportion to the amount of insurance mentioned in each policy.”

The latter section has been construed in the case of German-American Ins. Co. v. McBee et al., 85 Ohio St., 161, 173, and it is there plainly shown that the inadvertent change of the word “of” to the word “to” in the separation and codification of the act was not intended to alter its apparent meaning and purpose. The original valued-policy act is found in 76 Ohio Laws, 26. The two present sections were in that act combined in one section, separated by a semicolon only, the latter portion thereof providing that in case of concurrent insurance each policy “shall contribute to the payment of the whole of the partial loss in proportion to the amount of insurance mentioned in each policy.”

In insurance law the term “contribution” has a fixed, legal meaning. It is a principle sanctioned in equity, and arises between coinsurers only, permitting one who has paid the whole loss to obtain contribution from other insurers who are also liable therefor. And, as the term relates to insurance, as used in the context, that is its evident meaning. It does not mean, as otherwise claimed, that the “contribution” is made to the plaintiff by each insurer, under that act, for contribution does not equitably arise between the insurer and insured.

In this view, as originally enacted, the meaning of the entire section seems to be clear. That is, in cases where buildings and structures are insured, both the total loss or the partial loss must be paid by the insurer; but in case of partial loss, where there is concurrent insurance on the same property, a contribution shall accrue to the insurer paying the whole of the partial loss, from other concurrent insurers, “in proportion to the amount of insurance mentioned in each policy.”

In the case at bar the facts show that only partial losses were sustained on both real estate and personalty. The first section cited above imposes liability for the payment of the full amount of the partial loss upon the insurer, and the second section gives him the right of contribution against other insurers issuing concurrent insurance. Had the court therefore, in the instant case, before it merely a policy covering the buildings and structures, within the meaning of the valued-policy law, there would have been no error on its part in refusing evidence showing other concurrent insurance as a means of fixing a pro rata liability under the stipulations of the insurance contract, for the reason that in such case such a stipulation would be void. Two of the policies in question, however, covered a stock of goods and fixtures, and to these the valued-policy law did not apply.

An examination of the sections above named will show clearly that the law applied only to policies covering buildings or structures. There are many and vital reasons why the valued-policy law should not apply to personal property which will at once occur to any one. Many of those states which have adopted valued-policy statutes similar to our own have denied the application of the statute to personal property and applied it to realty only. And in so far as the Ohio courts have passed upon the subject, this view has been sustained in the opinions in the following cases: Insurance Co. v. Leslie, 47 Ohio St., 409, 414, and The Germania Fire Ins. Co. v. Werner, 76 Ohio St., 543, 553.

Inasmuch, therefore, as the valued-policy act did not affect insurance contracts relating to property other than buildings and structures within the terms of that statute, it did not attempt to interfere with contractual relations of parties to insurance contracts covering the personal property described in the second and third policies of insurance in this case, and as to them the principle adhered to by the courts of this country, and as announced in the case of Good v. Buckeye Mutual Fire Ins. Co., supra, obtains, which is, that as to those policies the contract is for a several liability and the parties may, as stipulated, agree upon a fixed liability for a proportionate share of the entire loss. While there has been no Ohio case presenting the question here involved, the principle here announced is consistent with the court’s prior adjudications upon this subject. The case of Good v. Buckeye Mutual Fire Ins. Co., supra, was decided upon a policy issued ten months before the passage of the valued-policy law and therefore the rule announced in that case cannot now apply to the insurance on buildings and structures within the meaning of that act. But the case sustains the view that, unaffected by the valued-policy law, the policy condition would be valid and would cover both buildings and personalty. On the other hand, where personalty was involved under a similar policy stipulation,- in the case of Royal Insurance Co. v. Ries, 80 Ohio St., 272, it was held that, although fixed by appraisement, the amount the plaintiff could recover was limited to a proportionate amount of the loss determined; while in the case of German-American Ins. Co. v. McBee et al., supra, where the policy was issued upon structures and buildings within the meaning of the statute, and which also contained a stipulation of liability limitations similar to the present cáse, the plaintiffs recovered a judgment for the full amount of the total loss, evidently under the provisions of the valued-policy act and in the face of such limitations. Had the loss in that case been partial and not total, in view of the provisions of that act that in case of a partial loss the full amount thereof should be paid, a judgment for the full amount of the partial loss would no doubt have been sustained, leaving the equitable right of contribution under that act to be thrashed out between the coinsurers of the property.

In our view of the case, therefore, under the stipulations of the two policies relating to personal property, the court should have admitted evidence showing the amount of concurrent insurance on the same property at the time of the fire, and should have charged that, as to such property, the defendant was liable only for the proportionate share of the loss, as stipulated by the contract, but as to the frame building, covered by the first ■ policy, it was the duty of the court to charge that the defendant was liable for the full amount of the partial loss sustained.

The judgment of the lower courts, for the reasons stated, will therefore be reversed and the cause remanded to the common pleas court for further proceedings according to law.

Judgments reversed.

Johnson, Newman and Matthias, JJ., concur.

Wan am aker, J., dissents.

Nichols, C. J., not participating.


source: Caselaw Access Project

author: Wanamaker, J.

license: Public Domain

text:
    The State, ex rel. Ross et al., v. Donahey, Auditor of State.

      Mandamus — Issuance of state auditor’s warrant for rental — Lease by state industrial commission — Section 871-6, General Code (103 O. L., 96) — Necessary and current expenses of state departments — Not a debt or liability, when — Sections 1, 2 and 3, Article VIII, Constitution.

    1. Where the general assembly of Ohio has authorized some department or subdepartment of the state government, such as the industrial commission of Ohio, to secure suitable quarters necessary for the transaction of its business pursuant to law, and a contract is regularly executed and signed by the proper parties, which contract by its terms is made subject to an appropriation by the state legislature, and such legislature makes the necessary appropriation pursuant to said contract; Held: Mandamus is the proper remedy to compel the auditor to issue a warrant for any amount due from the state pursuant to such contract.
    2. The necessary, and current expense growing out of the rental of suitable and necessary quarters for the transaction of the state’s business, for which appropriation has been made by the state legislature, is not a debt or liability within the inhibition of the provisions of the constitution.
    (No. 15120
    Decided February 15, 1916.)
    In Mandamus.
    The facts are stated in the opinion.

      Mr. George B. Okey and Mr. John A. Shauck, for relators.

      Mr. Edward C. Turner, attorney general; Mr. Timothy S. Hogan; Mr. Wm. H. Middleton and Mr. Charles Follett, for respondent.
   Wanamaker, J.

This is an original action in mandamus, by which the relators seek to compel the defendant, as auditor of state, to issue his warrant upon the treasurer of state upon a voucher for $3,775, issued by the industrial commission of Ohio in favor of the relators, for the payment of three months’ rent, in advance, from the 1st day of January to the 31st day of March, 1916, for the use and occupation of quarters occupied by said commission under the terms of a lease between it and the relators.

On the 31st day of December, 1914, a paper writing was signed by the industrial commission of Ohio and the relators, whereby the latter undertook to lease to the former certain portions of an office building on High street, Columbus, Ohio, known as the “Majestic .Building,” for the period of two years, commencing on the 1st day of January, 1915, and ending on the 31st day of Decern-, ber, 1916, the agreed rentals whereof were to be paid quarterly in advance.

The industrial commission, on said January 1, 1915, took possession of said premises and has occupied the same continuously ever since said date up to and including the time of the rendition of judgment in this case, all agreeable to the terms and conditions of the lease.

On the 3d day of January, in pursuance of the covenant of the lease providing for the payment of the rent quarterly in advance, the industrial commission issued its voucher for the sum of $3,775 in payment of the rent for the current quarter. The defendant auditor of state refused to issue his warrant upon the treasurer of state therefor. Should the writ issue?

There are two questions of real consequence involved in this case:

1. Did the act of the industrial commission, in signing the lease aforesaid, bind the state, or was it ultra vires? ■

2. Did the general assembly of Ohio appropriate the money necessary for the payment of the voucher it is sought to have the auditor of state issue ?

Other questions have been raised by the briefs, but boiled down they all radiate from these two cardinal questions.

The industrial commission of Ohio was created by the act of March 12, 1913 (103 O. L., 95). The act in effect consolidated the powers and duties theretofore exercised by the following departments of the state, to-wit: The liability board of awards, commissioner of labor statistics, chief inspector of mines, chief inspector of workshops and factories, chief examiner of steam engineers, board of boiler rules and state board of arbitration and possibly others.

By Section 6 of the creating act it was provided:

“The commission shall keep and maintain its office in the city of Columbus, Ohio, and shall provide suitable room or rooms, necessary office furniture, supplies, books, periodicals, maps and appliances as they deem necessary, the expense thereof to be audited and paid in the same manner as other state expenses.”

If simple English means anything, this means that the commission should rent suitable quarters and that these quarters should be paid for as other state expenses.

The vast and varied functions of this department, with its numerous subdepartments and its hundreds of clerks and employes, are most vital to the public welfare of the state, and so the general assembly, believing that the commission, in the ordinary course of events, was the best judge of what would be suitable quarters, authorized it to rent or “provide suitable rooms.” It did so.

The state has taken the use and benefit of these quarters, and is continuing to do so to-day, and unless some plain, obvious constitutional provision clearly prohibits the state from carrying out its obligation, the state should not be permitted to escape its resulting burdens.

Counsel on both sides agree that the case of The State v. Medbery et al., 7 Ohio St., 522, is decisive of the issues herein involved.

The syllabus opens with the following:

“The board of public works made contracts on behalf of the state, stipulating to pay defendants in error and others yearly, for the period of five years, for materials and repairs of the canals of the state, an amount in the aggregate of $1,375,000.”

And the court held in the syllabus:

“1. That, except in certain specified cases, no debt of any kind can be created on behalf of the state. -

“2. That no officers of the state can enter into any contract, except in cases specified in the constitution, whereby the general assembly will, two years after, be bound to make appropriations either for a particular object or a fixed amount — the power and the discretion, intact, to make appropriations in general devolving on each biennial general assembly, and for the period of two years.

“3: The contracts of the board of public works, creating a present obligation to pay defendants and others, for the period of five years, a certain amount, do not come within said constitutional exceptions, and are in contravention of the provisions of Article 8, Section 3, and Article 2, Section 2 [Section 22.]”

The case at bar is clearly distinguishable from the syllabus of the Medbery case, supra. In the first place, on December 31, 1914, the date of the lease, there was no “present” obligation, because by the terms of the lease it was expressly provided that the whole lease — all its terms and provisions — was subject to the appropriation by the state legislature. The language of the lease in this respect is as follows:

“This lease is made subject to the appropriation by the state legislature and the individual members of the industrial commission are relieved from all liability for the payment of rent, if such appropriation is not made.”

1. The vigorous effort to restrict this language to cover only the protection of the members of the industrial commission from personal liability is too technical and restrictive, where the language is as comprehensive as “This lease is made subject to. the appropriation by the state legislature.”

2. The rent provided for in the lease is for the period of only two years, a period contemporaneous with the life of the general assembly, whose approval was necessary in order to give vitality and validity to the lease.

3. The liability which the industrial commission was authorized to incur on behalf of the state, in providing suitable quarters for its use in the state service, is not a debt within the provisions of the constitution as contended under the doctrine announced in the Medbery case.

The sovereign powers of government cannot be exercised unless suitable quarters are provided for the various governmental departments in the performance of public duty and service. This is axiomatic.

Manifestly it is within the sovereign power of the state, and particularly is it a legislative function under that sovereignty, for the general assembly to appropriately legislate so as to furnish the government and its various departments with suitable quarters.

In the exercise of this legislative power it authorized the industrial commission to provide suitable quarters, which the general assembly clearly had the right to do.

Now, did the industrial commission, in what it evidently believed to be pursuant to authority vested in it by the general assembly, in the execution of this lease transcend its authority either from the legislature or the constitution?

In construing the word “debt,” as used in the various sections of the constitution referred to in the case at bar, to-wit, Sections 1, 2 and 3, Article VIII, we hold that it has no reference whatsoever to the necessary and every-day current expenses of the sovereign government itself.

In the Medbery case, supra, the contract in question involved an expense of $1,375,000 for materials and repairs on the canals, covering a period of five years. In short, it was a contract for public works — public improvements — as to which general assemblies might differ as to whether or not the expense of such improvement, especially one covering such a long period of time, or for any time .beyond the life of any one general assembly, should be incurred. It was not an expense that was inseparable, inherent and absolutely necessary to the carrying on of the governmental function of any department of government made necessary by provision of law.

The suggestion that this department might be abolished at any time by the legislature does not affect in any way the proposition that an inherent, necessary and current expense is not within the meaning of the word “debt.” The same legislature that might abandon the improvement would, in all probability, be consistent and refuse to make the appropriation for the improvement, and so in the case at bar, if the legislature had seen fit to abandon the department, the probabilities are it would have refused to make the appropriation for the department subsequent to the period of abandonment.

We believe this fully answers the constitutional objections, and we. now pass to the matter of whether or not an appropriation was made by the legislature for the period covered by this warrant, to-wit, from January 1, 1916, to April 1, 1916.

A long line of authorities hold the true doctrine to be that the occupation of premises under a lease for a period of years, payable monthly or quarterly, does not fix a debt or liability for the whole amount that may become due and payable under the lease, but, upon the other hand, that such debt or liability arises only from month to month, or quarter to quarter, and becomes a debt or liability only when the use and occupation of the premises are actually furnished agreeable to the lease.

We believe that the pleadings in this case fairly admit that at least $14,000 is in the treasury of the state of the amount appropriated by the general assembly of Ohio for the payment of rent for the rooms used by the industrial commission.

It is urged, however, that while this appropriation made by the general assembly for rent of quarters for the industrial commission is still in the treasury in the amount of at least $14,000, still no part of said amount is available by reason of the limitation made upon the appropriation, to-wit, that such appropriation “shall not be expended to pay liabilities or deficiencies existing prior to July 1, 1915, or incurred subsequent to June 30, 1917.”

We have already held that a necessary current expense, duly authorized to be incurred by the general assembly, in its legislative power, is not a debt, and second, that if it were, where it is based upon the rental of premises, it does not become an existing debt in that respect until the month, quarter or year the premises are so used and occupied.

We do not believe that the advance payment in anywise affects the liability of the state. Prudent landlords are requiring such advance payment from private persons in the private use of premises, and it is noteworthy that such custom generally prevails. Why the state should demand, under its constitutional rights, any special privilege or favor in this behalf we cannot understand.

The liability for which the warrant in question was sought by relators is for service in the shape of occupation and use of premises covering the period from January 1, 1916, to April 1, 1916, and therefore is not within the limitation of the exception mentioned in the act, 106 Ohio Laws, 666.

After a careful examination of the record and the briefs in this case, supplemented by able argument upon both sides, we are fully persuaded that, in good conscience and business sense, the state, by reason of its occupation and use of these premises to date, without any claim made that the lease was fraudulently procured or that the rent is excessive and unreasonable, is bound in both law and equity to assume the burdens of the contract as well as the benefits and issue its voucher to the relators as prayed for in the petition.

Writ awarded.

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


author: Donahue, J.

text:
    The State, ex rel. Lander, v. Prestien et al.

      Courts of appeals — Jurisdiction—Cases filed after January i, 1913 —Controlled by Section 6, Article IV, Constitution, 1912— Schedule to constitution inapplicable, when — Dismissal of appeal after case submitted on merits.

    1. Section 6 of Article IV of the Constitution as amended September 3, 1912, specifically provides that the provisions of that section in reference to the jurisdiction of the courts of appeals shall apply to all cases coming into that court after the taking effect of the amendment, which was on the first day of January, 1913. Upon this question the special provision found in that section must control. The provision of the general schedule to the amendments to the constitution has no application.
    2. If is not error for a court of appeals to sustain a motion to dismiss an appeal, for want of jurisdiction, filed after the cause has been submitted to the court upon its merits.
    (No. 15042
    Decided February 15, 1916.)
    Error to the Court of Appeals of Cuyahoga county.
    On the 3d day of February, 1912, the plaintiff in error, Marcellus A. Lander, filed a petition in the common pleas court of Cuyahoga county, praying that a writ of mandamus issue against the defendants in error, Charles T. Prestien and others, as auditor, treasurer and commissioners of Cuyahoga county, Ohio, directing them to cause to be paid to the plaintiff the sum of $61,224.64, unlawfully withheld from him, together with lawful interest, from the commencement of this action.
    On the 29th day of January, 1914, the plaintiff filed an amended petition, making John A. Zangerle and others, the successors in office of the original defendants, parties to the suit and praying for the same relief.
    Issue was joined by the proper pleadings. The cause was tried in the court of common pleas and judgment rendered on the 3d day of July, 1914, from which judgment an appeal was taken by the plaintiff in error to the court of appeals of Cuyahoga county.
    On March 22, 1915, a motion to dismiss the appeal was sustained and the appeal dismissed.
    On April 28, 1915, this judgment of dismissal was vacated and a rehearing granted.
    On August 30, 1915, the court of appeals again sustained the motion of the defendants to dismiss, but there are no other or further entries showing that the cause was tried and submitted to the court.
    It is made to appear, however, by a bill of exceptions, that on the 6th day of November, 1914, the cause was orally argued by counsel and submitted to the court upon the transcript of the evidence taken in the common pleas court, but no judgment was rendered upon the merits, either before or after the filing of the motion to dismiss.
    This proceeding in error is prosecuted in this court to reverse the judgment of the court of appeals in sustaining the motion of the defendant in error and dismissing the appeal.

      Messrs. Griswold, White & Hadden and Messrs. Thompson, Hiñe & Flory, for plaintiff in error.

      Mr. Cyrus Locher, prosecuting attorney, and Mr. Frederick W. Green, for defendants in error.
   Donahue, J.

It is not claimed by counsel for plaintiff in error that this cause was appealable under the provisions of the constitution of Ohio, as amended September 3, 1912. It is contended, however, that the action having been commenced in the common pleas court prior to the time these amendments to the constitution took effect, the provisions of the statute then in force regulating appeals applies to this case.

This contention is predicated upon the general schedule to the amendments to the constitution adopted September 3, 1912, which is in part as follows:

“All laws then in force, not inconsistent therewith shall continue in force until amended or repealed; provided that all cases pending in the courts on the first day of January, 1913, shall be heard and tried in the same manner and by the same procedure as is now authorized by law.”

It is unnecessary to determine at this time whether this language in the general schedule is subject to the construction contended for.by counsel for plaintiff in error, for the reason that there is a special provision in the amendments to the constitution that definitely provides when the provisions of the constitution fixing the jurisdiction of the court of appeals shall apply to cases in that court. Necessarily the special provision must obtain, even though it be in conflict with the general provision.

Section 6 of Article IV, among other things, specifically provides:

“The courts of appeals shall continue the work of the respective circuit courts and all pending cases and proceedings in the circuit courts shall proceed to judgment and be determined by the respective courts of appeals, and the supreme court, as now provided by law, and cases brought into said courts of appeals after the taking effect hereof shall be subject to the provisions hereof.”

This case was brought into the court of appeals after the taking effect of the amendments to the constitution, to-wit, January 1, 1913; therefore, this specific provision in Section 6 of Article IV, that it shall be subject to the provisions of that amendment, applies, and this section of the constitution limits the jurisdiction of the courts of appeals to “appellate jurisdiction in the trial of chancery cases.”

It is further contended on the part of the plaintiff in error that, under the doctrine announced in the case of Drake et al., Trustees, v. Tucker et al., 83 Ohio St., 97, the court of appeals erred in sustaining this motion. In that case the appeal was taken from the judgment of the common pleas court to the circuit court. No objection was interposed to the manner in which the appellate jurisr diction of that court was invoked, and the cause proceeded to trial and judgment. The question of the'jurisdiction of the circuit court to hear that cause upon appeal was made for the first time in the supreme court upon the proceedings in error to reverse the judgment of the circuit court. This court held that this objection came too late; that a litigant could not be permitted to submit his cause to the court in the hope of securing a more favorable judgment than the judgment secured below, and, when disappointed in that expectation, then complain in the reviewing court that the appellate jurisdiction of the circuit court had not been properly invoked.

It is true it is said in that case that this question “cannot be effectively made except by a motion to dismiss the appeal interposed in the circuit court before the trial in that court,” but it is equally true that the syllabus of every case must be construed with reference to the facts presented by the record in the case under consideration. In Drake v. Tucker judgment had been rendered by the circuit court before any objection to its jurisdiction was interposed, and the court, in using the word “trial” in the syllabus of that case, evidently .intended to include as a part of the trial not only the introduction of evidence and the argument of counsel, but also the judgment of the court upon the issues joined and submitted to it. Technically, of course, the word “trial” does not necessarily include judgment, but it is evident that the court did not use that word in any technical sense, and even if it did, no such case was presented for its consideration, and therefore the authority of that case extends only to the same state of facts presented by the record and is not controlling in this case.

The motion to dismiss in this case was interposed before judgment. The mere fact that the cause had been submitted upon its merits did not prevent that court from entertaining that motion, or, for that matter, dismissing the case sua sponte, if upon consideration it reached the conclusion that it had no jurisdiction on appeal.

Judgment affirmed.

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


author: Johnson, J.

text:
    The Hardin-Wyandot Lighting Co. v. The Village of Upper Sandusky.

      Public utilities — Electric light and power companies — Occupation and use of streets — Power formerly derived from state — Consent and control now vested in municipalities — Sections 9192 and 9193, General Code — Removal and abandonment by com pany — Municipal consent necessary to return and repossess.

      1. The act of January 26, 1887 (84 O. L., 7), made applicable to electric light and power companies the provisions of the chapter relating to magnetic telegraph companies, so far as practicable, and while said act remained in force the power of such companies to occupy the streets ■ of a municipality was derived from the state.
    2. The act of April 21, 1896, Sections 9192 and 9193, General Code, subjected electric light and power companies to “municipal control alone” and provides that no such company shall occupy the streets, alleys, etc., of any city, town or village, with its equipment to conduct electricity for lighting, heating or power purposes without the “consent of such municipality.”
    3. When such a company which has occupied the streets and public places of a city or village with its poles, wires and equipment, voluntarily and without the consent of the municipality, removes and dismantles a portion of the same and renders itself wholly unable to furnish any electricity whatever for the purpose of public lighting, it cannot afterward return and repossess itself of those rights and erect another equipment in such streets and public places without the consent of the city or ■ village.
    (No. 14996
    Decided February 15, 1916.)

      Error to the Court of Appeals of Wyandot county.
    The village of Upper Sandusky brought suit in the common pleas of Wyandot county against the defendant, an Ohio corporation. In its petition it alleged that on the 4th of March, 1889, the council of the village passed an ordinance granting to The Citizens Electric Light & Power Company, its associates, successors and assigns, a franchise to use the streets, lanes, alleys, avenues and other public thoroughfares of the village i'or the. purpose of erecting, maintaining and operating an electric" light and power plant; that in 1912 defendant purchased the plant and fixtures, and is now operating the same, claiming all the rights and privileges in said franchise which were exercised by the original company; that said ordinance was and is silent as to the period of duration of the franchise, there being no limitation as to the length of time it was to remain in force, nor is there any stipulation as to when it shall terminate.
    It is alleged that the original company, when it built and completed the plant and installed a complete system for lighting the streets, lanes, alleys and other public thoroughfares of the village, did, under and by virtue of a contract, light said public thoroughfares during all the time it was the owner; that shortly after the defendant became the owner of the plant and system, and after the contract in force at the time of the purchase had expired, plaintiff made repeated efforts to make a new contract for the lighting of the thoroughfares, etc., but was unable to do so, for the reason that the prices asked by the defendant were exorbitant and unreasonable; that plaintiff prepared and submitted to the defendant a full, fair and complete schedule of prices which the village was willing to pay for the lighting of the streets, etc., which proposition was rejected by the defendant.
    It is averred that defendant claimed that plaintiff should take the matter up with the public service commission of Ohio if the rates proposed by the defendant were not satisfactory, and that thereupon the said- defendant failed and refused to make any further attempts to arrive at a fair and just settlement of the matters in controversy; that the defendant, within a short time thereafter, without the knowledge or consent of the plaintiff, removed all of its street lights from the streets, avenues and thoroughfares, removed all of its wires, cut down and removed all of the poles used for the support of said wires and completely dismantled its street-lighting system, thus rendering itself unable to furnish any electricity whatever for the purposes of public lighting, and placed itself in such position that it cannot light any of the public places of said village, and has rendered its plant absolutely worthless for that purpose.
    It is further alleged that the defendant has removed from its plant whatever valuable machinery was there at the time it purchased it from the original company, and has replaced the same with other machinery, secondhand in quality, and has by this means lowered the value of its plant and rendered itself less able to supply the commodity it purports to sell.
    ■ Plaintiff says it cannot and does not agree with the defendant as to the terms and conditions of said purported franchise; that by its act in demolishing and removing its street-lighting system it has forfeited every and all rights it may have had thereunder, and that its continuing use of the streets, lanes, alleys, etc., for the purpose of supplying private users for its own profit is a violation of said pretended franchise, both as to the letter and spirit of the same, and that the company has no right whatever to use any of the public ways of the said village for any of the purposes for which it is now using them.
    Plaintiff further says that the said defendant is about to erect along and upon the streets of said village a line of poles for the purpose of stringing additional wires to further advance its private interests ; that it is so preparing to do without the consent of the village and entirely ignoring the rights of the public; that said defendant, having forfeited its pretended franchise, has no right to use any of the public ways of the village.-
    It is alleged that the defendant, by reason of its failure to agree with plaintiff as to the rates to be charged private consumers for electric current, as well as for street lighting, and its removal of its system for the lighting of the public highways of the village, has forfeited any rights it had under the franchise.
    The plaintiff prays that the defendant may be enjoined from erecting said additional poles, that the said franchise may be forfeited and that the defendant be required to remove from the public highways of the village all of its equipment now located therein, and for all proper relief.
    There was attached to the petition a copy of the ordinance granting the franchise.
    In its answer the defendant admits the passage of the ordinance granting the franchise, as stated in the petition, and that it purchased the plant and fixtures of the original grantee and is now operating the same and claiming all of the rights and privileges in the said franchise contained.
    It admits that the ordinance was and is silent as to the period of duration of the franchise; admits that there is no limitation as to the length of time it was to remain in force, nor any stipulation as to when it should terminate; admits that the original company installed a system for lighting the public thoroughfares in the village and did, under contract with the village, light the same during all the time it was the owner of the plant. Defendant denies the allegations of the petition with reference to the making of a new contract for the lighting of the streets and thoroughfares of the village, except as to the submitting of a schedule of prices which the village was willing to pay and that the same was rejected by the defendant. It admits that it shortly thereafter removed all of its street lights from the streets, avenues and thoroughfares, and alleges that the same were in a bad state of repair; that it had repeatedly given notice to the village thereof; that it had made repeated efforts to enter into a contract with the village upon terms and under conditions which would be fair and reasonable and which would warrant defendant in making the necessary expenditures to put the same in proper repair so that it could perform any contract into which it might enter and to afford it fair and reasonable remuneration, but that the village refused to treat with the defendant on any terms of fairness; that prior to the removal of said street-lighting system defendant had furnished street lighting to the village upon an understanding that the same should be paid for at the rate paid under the contract with the predecessor company; that said village refused to pay certain amounts due thereunder, as aforesaid, and arbitrarily deducted certain sums on alleged claim of outage, which claim was without foundation in fact; that defendant was unable to maintain its street-lighting system under these conditions and removed the same, as aforesaid; that said defendant at all times has been, and now is, able, ready and willing to furnish the village with street lighting on fair and reasonable terms. It denies that it has replaced the original machinery with secondhand machinery of lower value, and avers that the machinery now in the plant is of a better grade than formerly installed in the plant. It admits that until restrained by the order of the court it was about to erect on the streets a line of poles for the purpose of stringing additional lines to further its interests, and denies all the other allegations of the petition.

      The plaintiff for reply denies all the allegations in the answer except the admission of facts set forth in the petition.
    On the trial in the common pleas court the defendant objected to the introduction of any evidence, on the ground that the petition did not state facts sufficient to constitute a cause of action nor sufficient to entitle the plaintiff to the relief prayed for, and that the court, as a court of equity, had no jurisdiction of the subject of the action. This objection was overruled and the cause was heard upon the pleadings and evidence. The trial court entered judgment in favor of the defendant.
    The cause was appealed to the court of appeals. In the court of appeals the defendant filed a supplemental answer and cross-petition, in which it incorporated the averments contained in its original answer, and alleged that, subsequent to the decree of the common pleas court, the village had passed a certain pretended ordinance which purported to repeal the original ordinance of the 4th of March, 1889. It alleged that the village was without authority to pass said pretended ordinance, and that the same is illegal and void for the reason that the village was without power to withdraw the consent given in March, 1889; that this consent can only be withdrawn by the state of Ohio; that the enforcement of said pretended ordinance would be in violation of certain provisions of the constitution of the United States and of the state, which are specifically referred to.

      Defendant prayed that the village be enjoined from doing any acts to interfere with or destroy any of the property of the defendant.
    The cause was heard in the court of appeals, the entry in the case reciting that it was “heard on the pleadings and agreed statement of facts.” The court found that injunction was not the proper remedy to determine the'rights of the defendant company under the franchise granted to the predecessor of the defendant, but that quo warranto was the appropriate and only remedy for determining that question, and further found that the defendant was not entitled to make use of the streets, alleys and public ways of said village for the purpose o.f maintaining .poles or other structures thereon without the consent of the-village, and decreed that the defendant be enjoined from erecting poles, wires, lamps or other structures in, upon or over the streets, alleys and public places within the corporate limits of said village until the consent of said village shall have been obtained.
    This proceeding is brought by the plaintiff in error to reverse this judgment.

      Messrs. Squire, Sanders & Dempsey; Messrs. Carey & Hall and Mr. T. M. Kirby, for plaintiff in error.

      Mr. Clyde Merchant; Mr. W. R. Hare, village solicitor, and Mr. D. C. Parker, for defendant in error.
   Johnson, J.

Although the entry of the decree in the court of appeals recites that the cause was heard on the pleadings and an agreed statement of facts, the record here does not show that any bill of exceptions was taken in that court and no agreed statement of facts was given judicial sanction by any authentication of the court. Therefore, the only question left which this court is authorized to consider is whether the petition states facts sufficient to justify the decree complained of.

It is averred in that pleading that in March, 1889, the village passed the ordinance granting the franchise to The Citizens Electric Light & Power Company.

The plaintiff in error rests its case here on the broad proposition that the right to distribute electricity over the streets of the village emanates from the state and not from the municipality. It is contended that the plaintiff in error and its predecessor were organized under the laws of Ohio, with all the powers and privileges granted to telegraph and telephone companies by Section 9170 et seq., General Code, and that therefore no village ordinance was necessary to make its rights effective, except such as related to the mode of use.

Section 9170 provides that “A magnetic telegraph company may construct telegraph lines, from point to point, along and upon any public road,” etc., and Section 9178 enacts that when lands authorized to be appropriated for the use of such company are subject to the easement of a street, alley, public way or other public use, within the limits of a city or village, the mode of use shall be such as agreed upon between the municipal authorities and the company. If they cannot agree, or if the municipal authorities unreasonably delay to enter into an agreement, the probate court of the county shall direct in what mode the line shall be constructed along such street, etc.

Section 9191 provides that the provisions of this chapter shall apply also to a company organized to construct a line or lines of telephone.

In City of Zanesville v. The Zanesville Telegraph & Telephone Co., 64 Ohio St., 67, it was said, at pages 80 and 81: “It will be noticed that it is not the right to use the streets that is made the subject of agreement between the company and the municipal authorities, or of determination by the court. That right, as has been seen, is granted to the company directly by the legislature, and it is not made to depend upon any consent or agreement on the part of the municipality. It is only the mode of such use that becomes the subject of agreement .or judicial determination.”

In Farmer et al. v. The Columbiana County Telephone Co., 72 Ohio St., 526, it is held: “Telephone companies organized in this state obtain power to construct their lines along the streets and public ways of municipal corporations from the state .by virtue of sections of the Revised Statutes, 3454 to 3471-8, inclusive, and not from the municipal authorities.” And in The Queen City Telephone Co. v. City of Cincinnati, 73 Ohio St., 64, it is said, at page 81: “It is of course conceded as now well settled that the general power to occupy the streets of a municipality by a telephone company is derived from the state.”

It is contended by the plaintiff in error that Sections 9192 and 9193, General Code, confer upon electric light and power companies all of the powers conferred upon telegraph and telephone companies in the sections above referred to.

In the consideration of this contention it is necessary to briefly review the history of legislation on the subject. The sections of the General Code above mentioned are included in Section 3454 et seq., Revised Statutes. Those sections were in effect at the time the transactions involved in the cases above mentioned occurred, and were in effect long before the granting of the franchise described in the petition in this case.

The first enactment touching the power of companies organized for the purpose of supplying electricity for lighting streets, etc., was passed May 12, 1886 (83 O. L., 143), and authorized such companies to construct lines for conducting electricity for power and light purposes through alleys, etc., “with the consent of the municipal authorities of the city, village or town, and under such reasonable regulations as they may prescribe.” Prior to 1886 there was no statute conferring power on the municipality to grant to an electric light company the right to erect poles. In the following year the act of January 26, 1887 (84 O. L., 7), was passed as a supplementary section to Sections 3454 to 3471, being numbered Section 3471a. It provided that the provisions of the chapter (telegraphs and telephones), so far as the same may be applicable, shall apply also to any company organized for the purpose of supplying the public and private buildings, manufacturing establishments, streets, alleys, squares and public places with electric light and power. This act did not repeal the act of May 12, 1886, supra, in express terms, but when the two acts are construed together it is clear that it was the intention of the legislature to confer upon electric light companies “the same powers and be subject to the same restrictions as are herein prescribed for magnetic telegraph companies.” This was the state of the law at the time of the granting of the franchise (March 4, 1889) which is involved in this case. Therefore, under the holdings in the cases cited, the grantee company derived its general power to occupy the streets from the state.

On April 21, 1896 (92' O. L., 205), Section 3471a was amended. This act made the provisions of the chapter as to telegraphs and telephones applicable, except Section 3461, which conferred power upon the probate court to determine the matter in the respects stated if the company and the municipal authorities fail to agree. This amendment of 1896 provided that in order to subject the same to municipal control alone, no person or company shall place, construct or maintain any line for lighting through any street, alley, etc., without the consent of such municipality. These provisions substantially have been carried into the General Code in Sections 9192 and 9193.

The act of 1896 disclosed that the legislature was not content to clothe electric light companies in municipalities with the same powers with which it had invested telegraph and telephone companies. The change was made in the light of experience, and the sound and substantial reasons of public policy which dictated the change would seem to be manifest. There is a clear distinction between telegraph and 'telephone companies on the one hand and electric light companies on the other. The reasons why the state should desire to reserve to itself the right to grant franchises for the use of public highways to telegraph and telephone companies do not apply to electric light companies. Telegraph and telephone systems pervade the entire state. They pass in and out of cities and villages and through the rural districts, connecting the whole in a vast network. It might result in great public inconvenience if each municipality had the absolute right to arbitrarily grant or refuse permission to pass through its limits. It is easy to conceive that in many instances such an arbitrary right could be used to foster monopolies and combinations to the detriment of the general welfare. Generally speaking, these suggestions do not apply to an electric light company. As a general rule an electric light company is formed for the purpose of furnishing light to the municipality in which it is located and to its people. Its plant, its poles, wires and equipment are generally located there. But in addition to this, a more important consideration is that a system of telegraphs and telephones is comparatively harmless to life and property, while a system of electric lighting is highly dangerous to life and property. These are substantial reasons why the local authority should be vested with larger power to deal with a matter of such a nature and which comes in such close contact with its own peopie, than is necessary with reference to telegraphs and telephones. However, these are matters wholly within the power of the legislature, which, when exercised, must be judicially enforced.

The purpose of the act of 1896, now Sections 9192, 9193 and 9194, General Code, was to invest the municipality itself with power to make the grant. It specifically excepts the provision of Section 3461, Revised Statutes, and it expressly provides that in order to subject the same to municipal control alone, no company shall place electric wires for lighting, heating or power purposes in the streets of the city or village without the consent of such municipality. The elimination of Section 3461, Revised Statutes, and the use of the word “alone” abrogate the power of the probate court to act in such cases, and this is followed by the express provision requiring the consent of the municipality.

We are convinced, therefore, that the contention of the plaintiff in error that Section 9170 et seq., General Code, as now in force, clothe the electric light companies with all the powers of telegraph and telephone companies, is unsound.

None of the statutory provisions which were held, in the cases cited, to deny the power of the municipality to determine the right of the telegraph and telephone companies to occupy streets, etc., is included in the sections of the General Code relating to electric light and power companies. On the contrary, those sections contain a positive grant of such power to the municipality.

However, as pointed out, the ordinance in question here was passed in 1889, while the act of 1887 was still in force. As to the judgment here attacked, inasmuch as neither the agreed statement of facts referred to in the decree of the court of appeals nor any other evidence has been brought upon the record by bill of exceptions or entry of the court, we are not able to estimate the force of plaintiff in error’s argument with reference to it. We are compelled to assume that the allegations of the petition were sustained by the evidence, and that the defendant, without the knowledge or consent of the plaintiff, removed all of its street lights from the streets, avenues and other public thoroughfares in the village, removed all of its wires, cut down and removed all of the poles used for the support of said wires and lights, completely dismantled its street-lighting system and rendered itself wholly unable to furnish any electricity whatever for the purposes of public lighting. It is manifest from Section 3 of the ordinance that the parties contemplated public lighting as an essential consideration leading to the granting of the franchise which was accepted by the predecessor of the plaintiff in error.

In this posture of the case, while in view of the statutory provisions which were in force at the inception of the enterprise the village would not be entitled to annul the company’s rights, still, by reason of the facts stated above and the voluntary abandonment by the company of its rights and privileges to the extent set forth, it cannot now return and repossess itself of such rights as it abandoned without the consent of the village in accordance with existing law.

The judgment and decree of the court of appeals will, therefore, be affirmed.

Judgment affirmed.

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


author: Nichols, C. J.

text:
    Wagner v. Armstrong et al. Walker et al. v. Burtscher et al. James, Guardian, v. Vulgamore et al.

      Courts of appeals — Jurisdiction on appeal — Chancery cases — Partition-Section 12224, General Code (103 O. L., 429), unconstitutional and void — Section 6, Article IV, Constitution, 1912.

    1. Section 12224, General Code, purporting to vest the courts of appeals with jurisdiction in the trial of cases on appeal, is unconstitutional and void. The jurisdiction of the courts of appeals in the trial of cases on appeal is expressly limited by the constitution to chancery cases, and this jurisdiction cannot be enlarged by the general assembly.
    2. All partition cases were originally cognizable in courts of chancery only and must still be regarded as chancery cases and therefore appealable under such terms and procedure as may be provided by law.
    (Nos. 15024, 14892 and 15013
    Decided February 15, 1916.)
    Error to the Court of Appeals of Seneca county.
    Error to the Court of Appeals of Stark county.
    Error to the Court of Appeals of Pike county.

      The facts are stated in the opinion.
    In No. 15024. Mr. Frank T. Dore and Mr. Ralph Sugrue, for plaintiff in error. Mr. Chas. E. Derr and Mr. Milton Sayler, for defendants in error.
    In No. 14892. Messrs. Welty & Burt, for plaintiffs in error. Mr. John W. Craine and Mr. Thomas C. Davis, for defendants, in error.
    In No. 15013. Mr. Frank W. Moulton and Mr. David Davis, for plaintiff in error. Mr John A. Eylar; Messrs. Dougherty & Moore; Messrs. McBride & Herrick; Mr. John C. Milner and Mr. Charles M. Caldwell, for defendants in error.
   Nichols, C. J.

Substantially the same question is involved in each of the three above-entitled cases, and they will be considered and disposed of as one.

In the Wagner case, Sarah V. Armstrong and others filed petition in the court of common pleas of Seneca county, praying for partition of certain real estate and an accounting for rents and profits. The case was decided adversely to the aefendant, Otto Wagner, who thereupon appealed the case to the court of appeals of Seneca county.

In the Walker case, Mary Helen Walker and others filed petition against Frances Burtscher and others in the court of common pleas of Stark county, asking for a construction of the will of Joseph Wagner, Sr., the partition of certain real estate and an accounting for rents and profits. This case was decided adversely to the plaintiffs below, who appealed the cause to the court of appeals of Stark county.

In the James case, William M. Vulgamore and others filed their amended petition against Louisa F. James, as guardian, and others, in the court of common pleas of Pike county, praying for the partition of certain real estate situated in that county. This case was decided against Louisa F. James, as guardian, who thereupon appealed the cause to the court of appeals of Pike county. .

In each of these cases a motion was filed to dismiss the appeal for want of jurisdiction, and in each instance the motion was sustained.

Error was prosecuted in all of the cases to the supreme court of Ohio.

Three important questions must be met and disposed of in these cases before we can arrive at a correct decision. In the order of their logical arrangement they may be said to be as follows:

First. Is Section 12224, General Code, constitutional ?

Second. Was a partition proceeding originally recognized as a subject of chancery jurisdiction?

Third. If the second question be answered affirmatively, does the fact that the statutes of Ohio provide a method of securing partition and courts of law administer the remedy, change the action from one of chancery to one of law?

There is no difficulty about the first of this series of questions. Clearly Section 12224, as enacted April 29, 1913 (103 O. L., 429), is unconstitutional. This section reads: “In addition to the cases and matters specially provided for, an appeal may be taken to the court of appeals by a party or other person directly affected, from a judgment or final order in a civil action rendered by the common pleas court, and of which it had original jurisdiction, if the right to demand a jury therein did not exist * * * .”

Here is a plain attempt to enlarge the jurisdiction on appeal of the courts of appeals. This is a power that the general assembly does not possess. It was decided -by this court in The Cincinnati Polyclinic v. Balch, 92 Ohio St., 415, that the jurisdiction of the courts of appeals was unalterably fixed by Section 6, Article IV of the new Constitution, and the legislature consequently could neither enlarge nor diminish it. Section 12224 attempts to enlarge the jurisdiction of the courts of appeals in appeal cases. When it says that all cases may be appealed wherein the right of trial by jury did not exist, it contravenes the jurisdiction fixed by the constitution wherein it limits the jurisdiction by way of appeal to chancery cases. The test of the right of trial by jury is no longer the determinative one.

While a chancery case is now one, generally speaking, where the right of trial by jury does not exist, yet there are a multitude of actions and proceedings provided for by statute, not chancery in their nature, wherein the right of trial by jury does not exist.

The cases under consideration are therefore appealable, if at all, by direct favor of the constitution and not by virtue of any statutory enactment.

The general assembly may regulate the mode and method of appeal; that is, it may provide for bond, may fix the time within which appeal may be had, may require notice, etc., but here its province ends.

The second question may likewise be answered affirmatively.

Abundant authority may be found in support of the proposition that, an action in partition was originally recognized universally as a subject of chancery jurisdiction.

In England, to this very day, partition proceedings are determinable exclusively in the courts of chancery, and it was so in the United States until provision was made by statute in the various states for the partition of real property.

Tiffany, in Volume 1 of The Law of Real Property, says, in Section 175': “In the time of Elizabeth, if not earlier, the court of chancery began to take jurisdiction of suits for partition, and by statute passed in 1833 a bill in equity was made the only form of proceeding.” Pomeroy, in Volume 6 on Equity Jurisprudence (1905 ed.), says, in Section 702: “ The operation of the common-law remedy, even after its extension to joint tenancies and tenancies in common, was imperfect and narrow. The writ of partition lay only against the tenant in possession, and was incompetent to reach the remainderman or the reversioner.’ * * * Moreover, a court of law was unable to adjust the often complicated rights of the' parties, as where one co-tenant had laid out large sums for improvements, or had erected valuable buildings, or had been in receipt of all the rents and profits. A court of law could not order a sale, but could only make an actual partition, although, this might often work a great hardship or even result in a virtual destruction of the property.”

The supreme court of Ohio, in the case of Linton v. Laycock et al., 33 Ohio St., 128, at page 133, speaking through Day, J., says: “Partition was always a subject of equity jurisdiction.”

Counsel for the defendants in error in the several cases all join in saying that, conceding the correctness of our conclusion as to the second proposition, nevertheless the fact that the general assembly has provided a complete remedy by law for the right of partition, the statutory remedy becomes the exclusive one, and the subject of partition thereby loses its chancery nature and has become cognizable only in courts of law.

We therefore now search for the correct solution of the third proposition. Divergent views are clearly possible on this matter. Perhaps one’s disposition as to the nature of the construction to be given a constitutional provision might influence if not determine one’s conclusion. If we were disposed to construe the instrument narrowly and strictly, we might readily hold with the defendants in error. On the other hand, were we of a mind to give this instrument a broad and liberal interpretation, ' a contrary conclusion would be reached.'

In this connection it is proper to say that an exhaustive examination of the debates of the constitutional convention fails to afford any material aid to the court in determining just what was intended when it was written into the constitution that the courts of appeals should haye appellate jurisdiction in the trial of chancery cases.

The original proposal on the subject of the jurisdiction of the courts of appeals made no provision whatever for the trial on appeal in any case. It limited the jurisdiction of that court to error proceedings exclusively. Effort was made to amend the original proposal by adding to the jurisdiction of that court jurisdiction to try de novo cases wherein the right of trial by jury did not exist. This proposition was defeated, and 'finally the language, we now find therein was incorporated.

The convention was informed by lawyers of recognized ability who were members of that body that appellate jurisdiction in the trial of chancery cases conferred the right of appeal where there had been no trial by jury and where there was no right of trial by jury. See page 1829, Vol. 2, Constitutional Debates. Again, it was said: “We have been used to this right of appeal in chancery cases for a great many years in Ohio.” Page 1827, Vol. 2, Constitutional Debates.

It is most likely that the convention, in adopting the language.we find on this subject in the constitution, thought it was making no change as to the right of appeal and was making provision for the appeal of all cases, as was then provided for by statute.

This court, as indicated in the consideration of the first proposition, is wholly unable to give to the words “chancery cases” the enlarged interpretation of “cases in which the parties were not entitled to a trial by jury.”

■ The most liberal possible construction of this language would not justify any such conclusion. Were we so to construe this provision this court would thereby be open to the just charge of writing into the constitution matters and things that' might suit our own fancy and consonant with our own ideas as to what should have been incorporated therein. •

Appealable cases, therefore, must be such cases as are now recognized as equitable in their nature; and perhaps the better way to express it would be, cases that were recognized as equitable actions before the adoption of the code of civil procedure, for, while our code established under one grand division all actions, whether of an equitable or a legal nature, and called them civil actions, yet there was no attempt to change the nature of the remedy. Section 11238, General Code, says: “There shall be but one form of action, to be known as a civil action. This requirement does not affect any substantive right or liability, legal or equitable.”

The question yet remains, however, Does the fact that there has been provided a statutory proceeding in partition operate to exclude partition from the category of chancery cases?

The authorities on this subject are not all one way; but it can be ascertained by an independent examination of the authorities that the great weight favors the doctrine that the statutory remedy is cumulative and does not supersede the original jurisdiction in equity. We are fortified, too, in this respect by the views expressed by the leading text-writers on equity jurisdiction.

In 1 Story’s Equity Jurisprudence (13 ed.), paragraph 658, we find: “It is upon some or all of these grounds, the necessity of a discovery of titles, the inadequacy of the remedy at law, the difficulty of making the appropriate and indispensable compensatory adjustments, the peculiar remedial processes of courts of equity, and their ability to clear away all intermediate obstructions against complete justice, that these courts have assumed a general concurrent jurisdiction with courts of law in all cases of partition. So that it is not deemed necessary to state in the bill any peculiar ground of equitable interference.”

Freeman, in his work on Cotenancy and Partition (2 ed.), has said, at page 559: “In some of the states, the jurisdiction of the proceedings authorized by these statutes is confided to courts of law; in others, to courts of equity. * * * The remedy thus created by statute is, we think, generally, but not universally, considered as cumulative, and as in no way divesting courts of equity of their jurisdiction over the same subject matter.”

The same authority, on page 461, says: “In several of the states, the courts designated by statute to exercise authority over suits of partition, are courts having both a common law and a chancery jurisdiction. When proceedings to compel partition are pending in such courts, or even after such proceedings have been consummated, the question must frequently arise whether the jurisdiction which the court has exercised is a common law jurisdiction, a chancery jurisdiction, or a special statutory jurisdiction.”

The author, in the same section, then proceeds to quote with approval quite freely from the case of Wright v. Marsh, 2 G. Greene (Iowa), 104. This last-cited case may be said to be one of commanding authority. At any rate it is quoted with approval by Freeman, Story and Pomeroy. This case holds that principles of law and equity are united and applied by the partition act of Iowa; that in partition proceedings the jurisdiction of the district court is three-fold: (1) Cumulative and special as created by statute. (2) Having full chancery attributes, except as otherwise provided by law. (3) General common-law authority, so far as it could be exercised with the two preceding powers.

In the course of the opinion, Greene, J., at page 105, says: “The doctrine is now universally conceded, that courts of equity may exercise a general concurrent jurisdiction with courts of law in all partition cases.”

It may be pertinent to say in this connection that the code of civil procedure and the statutory partition proceedings of Iowa were then substantially similar to those of Ohio now.

The older authorities really throw more light on the subject than the more modern ones; and quite naturally, for before the consolidation of all remedial actions into the so-called civil actions, the line of demarcation between cases in chancery and those at law was more clearly drawn and was under consideration by the courts much more frequently than at present.

With this state of affairs in mind, it is proper that the early case of Cram et al. v. Green et al., 6 Ohio, 429, should have much weight on the subject in hand. Lane, J., at page 430, says:

“The argument for the demurrants is this: Our statute limits the jurisdiction of chancery to cases where no plain and adequate remedy can be had at law. Such remedy is provided for by law in cases like the present; and, therefore, if the jurisdiction subsisted before this provision, it takes it away.

“I do not stop to inquire if such remedy is, in fact, provided.

“Were it the case, we do not admit the conclusions contended for. ‘That the chancellor has jurisdiction in those cases where a plain, adequate, and complete remedy can not be had at law,’ is the apothegm by which his power is limited' in every country where the distinction is known between courts of law and equity. The extent of the restriction has been long since defined. It is a technical maxim, adopted by our legislature in its technical sense, and receives the same interpretation here as elsewhere. In our practice, we do not give it the restrictive meaning insisted upon by the defendants. But sustain our' powers to the same extent as other similar tribunals, where jurisdiction depends upon this principle. It is a part of the general chancery law, that where a class of cases are the objects of chancery jurisdiction, that jurisdiction is not taken away, because courts of law subsequently administer a remedy. 1 Ohio 435.”

Pomeroy, at Section 62 in Volume 1 of his work on Equity Jurisprudence, under the head of “How the Equitable Jurisdiction is Determined at the Present Day,” says: “The whole question by which the extent of the equity jurisdiction is practically determined is no longer, whether the case is omitted by the law, or the legal rule is unjust, or even the legal remedy is inadequate, — although the latter inquiry is still sometimes made and treated as though it were controlling, — the question is, rather, whether the circumstances and relations presented by the particular case are fairly embraced within any of the settled principles and heads of jurisdiction which are generally acknowledged as constituting the department of equity. Two results therefore follow: First, a court of equity will not, unless perhaps in some very exceptional case, assume jurisdiction over a controversy the facts of which do not bring it within some general principle or acknowledged head of the equitable jurisprudence; and secondly, if the circumstances do bring the case within any of these principles or heads, a jurisdiction over it will be maintained, although the law may have been so altered by judicial action or by positive legislation that it has supplied the original omission, or has brought the legal rule into conformity with justice, or has furnished an adequate legal remedy.”

From these authorities the doctrine may be safely laid down that a case concededly chancery in its nature and calling for an equitable remedy will continue so, in spite of the fact that the law may have formally adopted the offspring of chancery. In short, once a chancery case, always a chancery case, at least for jurisdictional purposes.

It is the law of Ohio, as established by the case of Feuchter v. Keyl et al., 48 Ohio St., 357, and City of Zanesville v. Fannan, 53 Ohio St., 605, that where a new remedy is given by statute for a right of action existing independent of it, without expressly excluding any former remedy, the statutory remedy is cumulative merely.

Applying this doctrine to the instant case, the conclusion is inevitable that the creation of statutory partition proceedings,, even though the remedy be fully as adequate as the remedy provided by chancery,, does not oust the old remedy, but is merely cumulative, for it will not be claimed that the partition statutes of Ohio expressly exclude the then existing equitable remedy.

The term “chancery” is not to be found in our present statute law, nor is it to be found in the Constitution of 1851, but it is not unknown to the Constitution of 1802. Section 2, Article III of the original Constitution provides: “The supreme court shall consist of three judges, any two of whom shall be a quorum. They' shall have original and appellate jurisdiction, both in common law and chancery, in such cases as shall be directed by law.”

We find the term again in Section. 3 of Article III, which provides for the formation of courts of common pleas and. contains the provision that such court shall have common-law and chancery jurisdiction in all such cases as shall be directed by law.

We will not attempt to categorically and finally answer the much-mooted question, What is a chancery case?

It would be a difficult if not dangerous thing to do and of doubtful benefit. It ought, however, to be approached, generally speaking, not from the modern viewpoint, but rather from the old-time conception. Especially would this be so with reference to well-recognized equitable remedies known to the courts prior to the adoption of the code of civil procedure.

This much, however, may safely be said. A chancery case is one in which, according to the usages and practices in courts of chancery prior to and at the time of the adoption of the code of civil procedure, remedies were awarded in accordance with the principles of equity and not in accordance with rules of law. And the proper definition of the term in our new constitution cannot be regarded as affected by the provisions of statutes relating to appeals nor by the introduction bodily of equitable remedies into our statutes.

It would not do, however, to lay down the hard- and-fast rule that only such chancery cases as were known to that period of our legal history could have been intended by the constitution makers as being the cases subject to appeal. The changing condition of the times, development along new lines, the springing up of new problems, progress in many of the avenues of life — these things beget new rights and obligations that call for new equitable remedies.

Equity is not only elastic as to its remedies but it is progressive.

Its principles are indeed immutable, founded as they are on exact justice and equality before the law, but equitable remedies are constantly subject to enlargement.

These considerations make it manifest, therefore, that an all-embracing and satisfactory definition of a chancery case would be most difficult to obtain, and if obtainable, might well promote injustice rather than justice.

The terms “equity” and “chancery” are interchangeable and are constantly used as synonymous in all of our states as well as in England. Equity itself is not easily defined; that is, to give an all-inclusive definition of the term. It is of course capable of definition. But it is quite a different matter to define a case in equity.

Partition, from its very nature, must have been one of.the.most-favored subjects of chancery jurisdiction. The law could not dissolve the relation of coparceners without consent of all. It was and is an adversary proceeding. The ownership of each cotenant extended to every foot of the ground thus jointly owned. It was not just, when separation was desired, to compel the continuation of the joint ownership. The situation appealed strongly to the conscience of the chancellor, so he proceeds, through the intervention of his chosen representatives, in the person of commissioners, to dissolve the relation, and assigns to the several parties a separate and distinct aliquot part, according to justice and equity. One out of a dozen joint owners could demand in equity this forced division and, if incapable of division, a sale and division of the proceeds. The statutes we now have facilitate and simplify the separation of the whole into parts, but in its very essence the action now, as in the beginning, is of an equitable nature. It would be difficult to suggest any remedy known to jurisprudence that partakes more clearly of chancery jurisdiction than the action of partition.

The argument advanced by the several defendants in error is out of harmony with the conclusion of this court in the case of The Cincinnati Polyclinic v. Balch, supra, wherein it was held that the jurisdiction of the courts of appeals, both on appeal and on error, was constitutionally fixed, with no power in the general assembly to abridge, enlarge or interfere with it in any respect. For if the mere fact that the general assembly, by providing by law, even though adequately, a remedy for the various rights now and heretofore enforced in equitable proceedings, changes the nature of the case from a chancery case to a lawsuit, then the general assembly can utterly destroy and annul the new jurisdiction on appeal conferred on the courts of appeals in chancery cases by the simple process of making statutory proceedings of all equitable causes of action.

Thus, by indirection, the general assembly could do the very thing which we have expressly said in the Polyclinic case it is without power to do directly.

The general assembly that provided the statutory partition proceedings clearly recognized the chancery character of the remedy needful in partition proceedings, for it should not be overlooked that in Section 12031, General Code, the commissioners in partition are directed by law to “set it apart in such lots as will be most advantageous and equitable.” And again, in Section 12050, we find provision that “Having regard to the interest of the parties, the benefit each may derive from a partition, and according to equity, the court shall tax the costs and expenses which accrue in the action,” etc.

We are content to say that a partition case must be regarded as appealable; and this quite apart from incidental questions that may arise in such an action, such as an accounting between tenants in common for rents and profits, accounting for improvements claimed to have been made by an occupying tenant in common, construction of the provisions of a will to determine the respective interests of the tenants in common, etc.

It would be particularly unfortunate if the court should attempt to classify partition cases, saying some were and others were not appealable.

A case wherein simple division of the property among coparceners is sought may be regarded as appealable. This being so, it follows as a matter of course that all other partition cases, where further rights and questions are to be determined, are likewise appealable.

We arrive at this conclusion without reluctance. Not only is it the law, but we feel it to be in line with the purpose of the constitution makers and not out of line with the principle of one trial and one review. This principle had its inception in the purpose of limiting to one review cases which had been tried by juries, where not only the trial judge, but twelve citizens of the state sitting as a jury, had determined the rights of the parties. In cases where one man sitting as a court of equity has determined the issues, it is only substantial justice that a de novo hearing be had.

This conclusion will not sensibly increase the labors of the courts of appeals; certainly not beyond the work of the old circuit courts, where the right of appeal was much broader than it can ever be under the new constitution.

Furthermore, if the right of appeal were denied in cases of the character under consideration, the parties would still have the right to prosecute error, thus reaching the court of appeals in any event and thereby calling for its action.

The judgment of the courts of appeals in each of these cases will be reversed and the cases will be remanded with instruction to overrule in each instance the motion to dismiss the appeal for want of jurisdiction.

Judgments reversed.

Johnson, Donahue, Wanamaker and Newman, JJ., concur.

Jones and Matthias, JJ., concur in the first proposition of the syllabus.


author: Matthias, J.

text:
    Crawford et al. v. Weidemeyer et al.

      Courts of appeals — Conflict of judgments — Finding may be made after term, when — Certification of record to supreme court— Seventy-day limitation■ — Rules of construction.

    1. That meaning should he ascribed to the language of a constitutional amendment which will not thwart or defeat, but which will accomplish, the purpose of its enactment and adoption, and the context will be examined to ascertain such purpose.
    2. The provisions of Section 6, Article IV of the Constitution, authorizing the certification of a case to the supreme court by the judges of the court of appeals because of a conflict of a judgment agreed upon by them and a judgment pronounced by another court of appeals, should be so interpreted as to authorize some limitation of time for the filing of such case in the supreme court.
    3 Such constitutional provision, that the finding of conflict shall •be made by the judges of the court of appeals, authorizes the making and entering of such finding either during or after the term at which the judgment in such case is rendered, but the jurisdiction of the supreme court cannot be invoked in such case unless a finding of such conflict is entered and the record certified to and filed in the office of the clerk of the supreme court within seventy days after the entry of judgment in the court of appeals, that limitation of time being hereby prescribed.
    4. Such limitation, however, will not be given a retroactive effect, and therefore shall apply only to cases certified to and filed in this court subsequent to May 1, 1916.
    (No. 15017
    Decided February 15, 1916.)
    Certified by the Court of Appeals of Crawford-county.
    The facts are stated in the opinion.

      Mr. Homer E. Johnson, prosecuting attorney; Mr. Charles H. Conley and Mr. W. J. Schwenck, for plaintiffs in error.

      Mr. O. W. Kennedy and Mr. J. C. Williamson, for defendants in error.
   Matthias, J.

The questions presented arise upon a motion to dismiss this cause on the ground that this court has no jurisdiction thereof. The facts necessary for a consideration of the questions involved, and which are all conceded, are that final judgment was rendered in the court of appeals on July 28, 1915, which was during the January term of that court. On the 19th day of November, 1915, during the term of that court which opened on September 14, 1915, the judges thereof found and certified that the judgment rendered in the case was in conflict with a judgment theretofore pronounced upon the same question by the court of appeals of Fairfield county, and the cause was thereupon certified to this court for review and final determination.

The question squarely presented by these facts is whether there is to be any limit of time whatever within which the judges of a court of appeals must find a conflict of judgment by them agreed upon with a judgment pronounced by another court of appeals, and certify the case to this court for review and final determination.

The amendment of the constitution making a substantial change in the judicial system of the state is involved in the consideration of the proposition presented, and particularly the following portion of Section 6 of Article IV:

“Whenever the judges of a court of appeals find that a judgment upon which they have agreed is in conflict with a judgment pronounced upon the same question by any other court of appeals of the state, the judges shall certify the record of the case to the supreme court for review and final determination.”

The language in the forepart of this provision indicates that in the event of a finding of conflict no judgment should be entered, for the conflict to be noted is of a judgment upon which the judges have agreed with a judgment pronounced by another court of appeals, and some support for that view is found in the debates of the constitutional convention; but it is negatived by the terms of the latter part of the provision which requires that the judges certify the record of the case for revietv and final determination. A review presupposes the rendition of a judgment which is to be reviewed. Had it been the intention of the framers of this provision to reserve the case for decision by the supreme court, appropriate language presumably would have been used to effectuate that purpose. It is quite significant that the original proposal presented to the constitutional convention contained the phrase “reserve and certify,” but before' action was taken thereon by the convention the word “reserve” was eliminated. It is our opinion, therefore, that a judgment should be entered in accordance with the conclusions reached by the court.

It is perfectly clear that such conflict must be found by the judges of the court rendering the judgment, and that a case cannot properly be filed in this court on the ground of conflict of decision upon the same question by two courts of appeals until such finding be so made and entered and the record of the case duly certified to this court. It is just as obvious that upon finding such conflict of decision, it is the duty of the judges so finding to certify the record of the case to this court, the language used being mandatory.

Is there any limitation of time within which such conflict of decision must be found and the record certified to this court? None is fixed by the constitutional provision and none has been prescribed by the legislature. It is contended by the plaintiffs in error that the word “whenever,” as here used, mtist be construed to mean “at any time when,” and therefore authorizes such finding of conflict and certification to this court at any time, the period being limited only by the tenure of office of the judges rendering such judgment. Such a construction of this constitutional provision would do violence to the very purpose of the entire amendment to the constitution reorganizing the judicial system of the state, as so clearly and emphatically stated by the framers thereof and as presumably understood by the people adopting the same. That object was to simplify, not complicate, court procedure; to decrease and limit, not to extend indefinitely, the period of litigation. The effect of th¿\ construction contended for by the plaintiffs in error upon judgments rendered may best be contemplated if, as urged, such provision apply to the judgment first rendered as well as to the later one. Litigation would be interminable and no judgment could be regarded as final. If possible that meaning should be ascribed to the language of a constitutional amendment which will not thwart or defeat, but which will accomplish, the purpose of its enactment and adoption, and the context will be examined to ascertain such purpose. The reasoning which influenced .the decision in the case of Hupp et al. v. The Hock-Hocking Oil & Nat. Gas Co., 88 Ohio St., 61, is equally applicable here.

The word “whenever” as used in this provision may be regarded as meaning “if” or “should,” and so construed this clause is placed in complete harmony with the other provisions of the amendment and promotes the evident purpose of its enactment and adoption.

Although in the particular constitutional provision above cited, and heretofore discussed, there is no suggestion of a limitation of time being prescribed by law for the finding of such conflict of certification of a case to this court upon the ground of conflict of judgments of courts of appeals, as there is in the provision contained in Section 2, Article IV of the Constitution, having reference to the review by this court of cases of public of great general interest, yet it must have been contemplated that analogous provisions would be looked to and applied, to the end that, in so far as possible, uniformity be preserved in all error proceedings. Therefore, in the absence of legislation on the subject, a limitation of seventy days.is hereby prescribed.

The requirement that the finding of conflict shall be made by the judges of the court of appeals permits the making and entering of such finding either during or after the term at which the judgment in such case is rendered, but the jurisdiction of this court cannot be invoked in such case unless the record thereof is certified to and filed in this court within seventy days after the entry of judgment in the court of appeals. Such limitation, however, will not be given a retroactive effect, and therefore shall apply only to cases certified to and filed in this court subsequent to May 1, 1916.

Motion overruled.

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