Volume 91 — Ohio State Reports, New Series

In Quo Warranto. This action was brought by the state of Ohio upon relation of Thomas L. Pogue, prosecuting attorney of Hamilton county, Ohio, against Charles A. Groom, who, on account of the disability of Walter M. Schoenle, the duly elected and qualified city solicitor of the city of Cincinnati, Ohio, was then acting city solicitor of that city and performing and claiming the right to perform the •duties of a member of the budget commission of Hamilton county, Ohio.

In Mandamus. The petition of the relator, after setting out the official positions of the parties, alleges that by virtue of Sections 5649-1 to 5649-5&, General Code, it is the duty of the budget commission to adjust and determine the amount of the levy to be made for the ensuing year for the city of Cincinnati, including that for the sinking-fund trustees to provide for a sinking fund and interest on outstanding bonds of the city; that the total amount of the levy required…

In Mandamus. Petition for a peremptory writ of mandamus to compel the defendant, as secretary of state, to certify the nomination of the relator as a candidate for clerk of the supreme court on the Democratic ticket to be voted at the general election in November, 1914.

<p>Elections — Municipal bond issue — Section 3939 et seq., General Code — Two-thirds vote — Blank or unintelligible ballots not considered, when — Section 3947, General Code.</p> <p>1. Where the question of issuing bonds by a municipality pursuant to Section 3939 et seq., General Code, is submitted to the electors at a special or general election, in ascertaining whether two-thirds of the voters voting at such election upon the question of issuing the bonds have voted in favor thereof, as required by Section 3947, blank ballots or unintelligible ballots are not to be considered.</p> <p>2. Where a voter at an election duly held does not by his ballot express his choice for an office to be filled, or on a question submitted to the electors, his ballot should not be counted for such office or on the question. But if it is required by law that a majority or any certain proportion of the votes cast at the election should be in favor of a proposition in order that it should carry, then all the votes cast at the election, including blank and unintelligible ballots, must be considered,</p>

<p>Lessor and lessee — Rights and liabilities of lessee and his assignee for rents — Section 12206, General Code — Sureties—Oil lease— Liability of assignee for royalties.</p>

<p>In Mandamus.</p> <p>Facts are stated in opinion.</p>

<p>Error to the Court of Appeals of Van Wert county.</p> <p>The facts are stated in the opinion;</p>

Exceptions by the Prosecuting Attorney to a Decision of the Court of Common Pleas of Franklin county. Isaac B. Cameron, former treasurer of state, was indicted at the April term, 1913, of the Franklin county court of common pleas upon four counts for embezzlement of state funds which were in his official custody on or about May 5, 1903, for safekeeping and disbursement according to law.

In Mandamus. On the 20th of October, 1914, the relator, L. H. Scott, filed a petition in this court, praying that a peremptory writ of mandamus issue, commanding defendants as deputy state supervisors of elections in and for Harrison county, Ohio, to recount and recanvass the ballots cast August 11, 1914, for the nomination of the Republican candidate for representative in the general assembly of the state of Ohio.

<p>Municipal corporations — Ordinance granting franchise for furnishing water supply — Section 30/82, General Code — Public utility rates — Section 614-44, General Code — Referendunp^-Section 4227-2, General Code — Municipality liable, -when.</p>

These proceedings were all brought in the court of common pleas of Hamilton county. Their object was to test the constitutionality of certain sections of the law known as the workmen’s compensation act (103 O. L., 72). The allegations in the petitions of the several cases are substantially the same.

In Mandamus. On the 14th day of May, 1913, W. O. Jewett entered into a contract with the county commissioners of Franklin county, Ohio, to furnish material and perform all work and labor necessary to build and complete the Boehm road in a good and workmanlike manner, from the Sunbury pike easterly to Harlem road, thence southward to C. Harbarger road, thence east to Central Village road, in Blendon and Plain townships, all materials to be furnished and work done according to…

In Mandamus. Issues of fact were joined in the court of common pleas in an action in which the relatrix and The Steiner Coal Company were adversary parties.

<p>Error to the Court of Appeals of Franklin county.</p> <p>On motion to dismiss.</p>

Defendant in error filed a petition in the court of common pleas of Montgomery county asking judgment against the plaintiff in error in the sum of $189.99 on an account for lamps furnished plaintiff in error by defendant in error.

In Mandamus. This is a proceeding in mandamus instituted in this court by the relator, a resident and taxpayer of the city of Columbus, who, according to the averments of the petition, brings the action on behalf of himself and all others in like situation. The respondent is the duly elected, qualified and acting secretary of state and is the supervisor and inspector of elections of the state of Ohio.

John S. Jones filed in the common pleas court in this action an answer and cross-petition in which, among other things, he averred that Henry D. Turney and himself were the principal stockholders and the only solvent stockholders of The Turney & Jones Company; that in 1898 said company became involved financially and unable to continue business, and suits were commenced in the courts to wind up the affairs of said corporation, convert its assets into money, and receivers of…

<p>Error to the Circuit Court of Hamilton county.</p> <p>The facts are stated in the opinion.</p>

Exceptions by the Prosecuting Attorney to a Decision of the Court of Common Pleas of Hamilton county. Keith, the defendant in error, was indicted with one Williams on a large number of counts, charging a violation in various respects, under Section 12473, General Code. After the jury was sworn the counts were nollied as against Williams.

Hilton R. Diegle, an inspector of the Ohio dairy and food department, filed an affidavit with T. H. Hennessey, a justice of the peace in and for Montgomery township, Franklin county, in which he charged that Henry H. Steube, on July 17, 1913, in the,-’county of Franklin,- unlawfully sold to him a ^certain quantity of Irish potatoes, • to-wit, about one-fourth peck.

Exceptions by the Prosecuting Attorney to the Decision of the Court of Common Pleas of Hamilton county. The defendant was indicted for a felony on account of acts alleged to have been committed by him as an official of a banking company. On the trial of the indictment the court made rulings of an important character in favor of the defendant, to which the prosecutor excepted.

<p>Error to the Court of Appeals of Henry county.</p> <p>Facts are stated in opinion.</p>

On the 20th day of July, 1914, the city of Cincinnati, by Walter M. Schoenle, city solicitor, filed its petition in the common pleas court of Hamilton county, Ohio, seeking to enjoin the board of trustees of The Cincinnati Southern Railway Company from issuing bonds provided for in the resolution of March 16, 1914, under authority of an act of the general assembly of the state of Ohio, passed May 17, 1911 (102 O. L., Ill), entitled an act supplementary to an act passed April…

<p>Error to the Court of Appeals of Cuyahoga county.</p> <p>Facts are stated in opinion.</p>

<p>Criminal law — Estoppel—Embezzlement—Insurance agent estopped to deny agency — Because acting under another name — Agency and criminal intent question for jury — Directed verdict erroneous, when.</p> <p>1. The principle of estoppel as applied to agency may be invoked in criminal as 'well as in civil cases.</p> <p>2. Where G., under the name of K., entered into a written contract of agency with an insurance company, and pursuant to such agency he sells corporate stock of such insurance company by virtue of which he collects money for the sale of such stock, but fails to account for such money to the said insurance company, upon prosecution for embezzlement, G. is estopped to deny that he was the agent of said insurance company upon the ground that K. was not his correct name, but upon the contrary his correct name was G.</p> <p>3. The question of agency and the question of the time of forming criminal intent in a charge of embezzlement are questions for the jury, and unless there is entire failure of proof as to any essential element of the crime of embezzlement, the court is not authorized to direct a verdict.</p>

At the April term of the common pleas court of Franklin county, Ohio, an indictment was returned by the grand jury against Clement S. Baxter, charging that he was the duly appointed, qualified and acting examiner and deputy superintendent of banks for the state of Ohio, and that in his official capacity certain moneys belonging to The Columbus Savings & Trust Company came into his possession, of which moneys he unlawfully and fraudulently embezzled the sum of $3,140.

<p>Referendum — Amendment to constitution — Home rule as to intoxicating liquors — Section ga, Article XV, Constitution, regularly adopted — Validity of amendment.</p> <p>1. The constitution and the statutes of Ohio provide ample and adequate legal machinery for the initiation, submission and adoption or rejection of any proposed amendment to the constitution of Ohio by what is known as a referendum vote.</p> <p>2. Article XV, Section 9a, relating to home rule on the subject of intoxicating liquors, was regularly and legally initiated, submitted and carried by a majority of the voters of Ohio voting thereon at the regular election held in November, 1914, and thereby became a part of the constitution of Ohio.</p> <p>3. Said amendment is not in conflict with any provision of the federal constitution.</p>

. Error to Court of Appeals of Licking county. Isaac Jones filed his petition in the common pleas court of Licking county, Ohio, against James T. Haynes, averring that he is the owner of certain lands described in his petition, that the defendant Haynes claims the right to the use and occupancy of said real estate and is about to enter and erect buildings thereon under and by virtue of a lease of said premises made, executed and delivered to him by the state of Ohio, that…

<p>Workmen’s compensation — Filing first notice and preliminary appli- ' cation — Constitutes application, and bars action against employer, when — Sections 1465-61 and 1465-44, General Code.</p>

The defendant in error, under the style of J. R. Thomas’ Sons, a partnership, brought an action in the court of common pleas of Mahoning county against the plaintiff in error, Anna Walsh, upon an account in the short form, alleging that it was a partnership, organized and doing business in the state of Ohio; that defendant below was indebted to it for merchandise sold to the defendant and delivered at her request to one Frank Lenderman.

This was a proceeding in quo warranto instituted in the court of appeals of Mahoning county. Held: the relator was lawfully entitled to exercise the powers and duties of said office until his successor was legally elected and qualified.

Error- to the Court of Appeals of Hocking county. This was a proceeding brought by the defendant in error against the railway company to recover damages for wrongfully causing the death of plaintiff’s decedent.

Exceptions by the Prosecuting Attorney to the Decision of the Court of Common Pleas of Greene county. John H. Barkman, Jacob C. Smith and Charles C. Jackson were indicted by the grand jury of Greene county, Ohio, for intentionally and wilfully converting the funds of The Osborn Bank of Osborn, Ohio, to the use of The J. G. Russell Company, for no use or benefit of The Osborn Bank, with intent to injure and defraud The Osborn Bank.

<p>Error to the Court of Appeals of Allen county.</p>

On October 21, 1911, the defendant in error, Myrtle M. Bell, filed her petition in the court of common pleas of Cuyahoga county, as follows: “Myrtle M. Bell, the plaintiff, for her cause of action against the defendant, says that on and prior to the 18th day of August, 1907, the defendant, Mary A. Gleason, was the owner of a house and lot at No. 38 Taylor road in the village of East Cleveland, Cuyahoga county, Ohio, which said lot was located on the southwesterly side of…

On the 13th day of May, 1885, Charles Davidson filed a petition in the common pleas court of Mahoning county against Mary J. Davidson and Emma S. Davidson, a minor, being cause No. 13818 on the civil docket of that court, averring among other things that he and William Davidson, late of Boardman township, Mahoning county, were brothers; that William Davidson died on the 26th day of December, 1884; that Mary J. Davidson is the widow of William Davidson and Emma S. Davidson, a…

This action was originally begun by the plaintiff in error in the court of common pleas and appealed to the court of appeals of Franklin county. In the latter court the defendant below, the defendant in error here, demurred to the amended petition for the reasons: (1) The plaintiff had no legal capacity to sue; (2) the amended petition did not state a cause of action. The court of appeals sustained the demurrer and dismissed the amended petition.

<p>Elections — Opening and closing polls — Statutory provisions directory — Keeping polls open after statutory hours — Does not invalidate election, when.</p> <p>1. The provision of the statute fixing the time for opening and closing the polls at an election is directory and not mandatory. (Fry v. Booth, 19 Ohio St., 25, approved and followed.)</p> <p>2. An election will not be invalidated by reason of the fact that the election officers, instead of closing the polls at 5 :30 p. m. as directed by statute, kept the same open until 6:00 o’clock p. m., where there was no fraud or collusion and where there were not illegal votes cast after the time fixed by statute for closing sufficient to change the result of the election.</p>

This is a proceeding in habeas corpus originating in this court. The petitioner, Harry Allen, represents that he is unlawfully restrained of his liberty by P. E. Thomas, warden of the Ohio penitentiary. A copy of the commitment is attached to the petition as an exhibit.

<p>Application for Writ of Habeas Corpus.</p>

On December 16, 1913, the council of the city of Cincinnati passed an ordinance, No. 701, 1913, which, in substance, directed The Cincinnati Street Railway Company and The Cincinnati Traction Company within seventy days after the passage of the ordinance to construct a double-track extension over the so-called Warsaw avenue route from the intersection of Glenway avenue and Wilder avenue northwestwardly and westwardly over Glenway avenue to the intersection of Glenway and…

Aaron A. Ferris, executor and trustee under the will of Elizabeth Zinn, filed his petition in the common pleas court asking the direction of the court as to whether the sum of $2,000 which was paid out by the deceased under circumstances set out in the petition should be treated by him as a gift to Vir- ginia G. Ellard, the sister of the decedent, or as an advancement to be charged against her interest in the estate.

<p>Municipal ordinances — Publication in one newspaper sufficient, when Section 4227 et seq., General Code.</p> <p>In a municipality in which there is only one newspaper published and of general circulation, the publication in that paper of ordinances of a general nature, in the manner and for the period required by Section 4227 et seq., General Code, is a compliance with the requirements of those sections.</p>

<p>Error to the Court of Appeals of Lucas county.</p>

<p>Error to Circuit Court of Erie county.</p>

<p>Error to Circuit Court of Mahoning county.</p>

<p>Error to Circuit Court of Erie county.</p>

<p>Error to Circuit Court of Ashland county.</p>

<p>Error to Circuit Court of Wayne county.</p>

<p>Error to Circuit Court of Summit county.</p>

<p>Journal entry: It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same hereby is, reversed; for the reason that the said circuit court erred in entering final judgment in the cause. But this court finds that the said circuit court, having found that the verdict was not sustained by sufficient evidence, correctly reversed the judgment of the court of common pleas. Coming now to render the judgment which the circuit court should have rendered, it is hereby ordered and adjudged that the judgment of the court of common pleas be, and the same is hereby, reversed, and the cause remanded to the court of common pleas for further proceedings according to law. — Reporter.</p>

<p>Error to Circuit Court of Lorain county.</p>

<p>Error to Circuit Court of Hamilton county.</p>

<p>Error to Circuit Court of Hamilton county.</p>

<p>Reporter’s Note. On July 2, 1915, the following entry was made in the foregoing case:</p> <p>This day this cause came on to be heard upon the application and motion of the plaintiff in error, Federal Union Surety Company, to modify the judgment heretofore rendered in this court affirming the judgment of the circuit court of Franklin county, Ohio, theretofore rendered in this cause, and the same was heard upoñ the admitted facts and statements, and arguments of counsel. And the court upon consideration thereof cloth find that the bond executed by the plaintiff in error upon which this action was based, provided that in case of default thereof the State of Ohio should be entitled to recover thereon the amount of the principal sum, together with interest at the rate of two and one-half per centum per annum.</p> <p>The court doth further find that said circuit court in rendering judgment in favor of the State of Ohio and against said Federal Union Surety Company in said cause, computed the interest on the principal amount of the default, as set forth in plaintiff’s petition below, at the rate of six per centum per annum, from May 16th, 1908, to December 30th, 1912, the date of the rendition of said judgment by the circuit court of Franklin county, Ohio, to-wit, two years and 183 days, when the same should have been computed at the rate of two and one-half per centum per annum.</p> <p>The court doth further find that in making the computation of interest in the method aforesaid, the circuit court in and for Franklin county, Ohio, gave judgment in favor of the State of Ohio against said Federal Union Surety Company, plaintiff in error herein, at said date, to-wit, December 30th, 1912, in the amount of $14,122.25, when according to law and the evidence the amount of said judgment at said date, so given in favor of said State of Ohio against said Federal Union Surety Company should have been for $11,755.58.</p> <p>The court doth further find that said amount of - $11,755.58 should bear interest at the rate of two and one-half per centum per annum to the 5th day of April, 1915, or two years, three months and five days, at the rate of two and one-half per centum per annum, and that the amount thereof, to-wit, $12,420.91, should after said 5th day of April, 1915, until paid, bear interest at the rate of six per centum per annum.</p> <p>It is therefore ordered and adjudged that the judgment of this court in this cause, heretofore rendered on the 1st day of December, A. D. 1914, affirming the judgment of the circuit court of Franklin county, Ohio, in all respects as rendered by that court, be, and the same hereby is modified in this respect, to-wit: That said defendant in error, the State of Ohio, may have and there hereby is awarded to it, judgment against said plaintiff in error, Federal Union Surety Company, as of date of December 30th, 1912, in the sum of $11,755.58, together with interest thereon at the rate of two and one-half per centum per annum, from said 30th day of December, 1912, to the 4th day of April, 1915, with the amount thereof, to-wit, $12,420.91, to bear interest at the rate of six per centum per annum until paid, and in all other respects, not inconsistent herewith, the judgment of said circuit court of Franklin county, Ohio, be affirmed.</p>

<p>Error to Court of Appeals of Logan county.</p>

<p>Journal entry: It appearing from the record that the defendant in error Matilda Stern has not fully complied with the terms of her contract with plaintiffs in error, dated February 26, 1909, deposited with the deed and escrow memorandum with the Northern National Bank, and it further appearing that said plaintiffs in error have not waived performance on the part of defendant in error in any particular therein named, and have in nowise interfered with or prevented said defendant in error Matilda Stern from complying therewith, and have not refused nor has their grantee refused to permit an action to quiet title to these premises to be brought in the name of either of said parties, if the same should become necessary, and for these reasons the court finds that this action was prematurely brought in the common pleas court of Lucas county, and the court of appeals erred in affirming the judgment of that court.</p> <p>It is, therefore, considered and adjudged by this court that the judgment of the court of appeals be, and the same hereby is, reversed.</p> <p>And coming now to render the judgment that the court of appeals should have rendered, the judgment of the common pleas court in this action is hereby reversed, set aside and held for naught, and said action is dismissed without prejudice to a new action when defendant in error Matilda Stern shall have complied with the terms of said contract, or the same shall become impossible of performance by reason of the default, hindrance or refusal of the plaintiffs in error or their assignees or grantees to permit suit to be brought in the name of the real party in interest to quiet the title thereto. — Reporter.</p>

<p>Error to Court of Appeals of Montgomery county.</p>

<p>Error to Circuit Court of Hamilton county.</p>

<p>Error to Circuit Court of Montgomery county.</p>

<p>Error to Court of Appeals of Franklin county.</p>

<p>Error to Court of Appeals of Mahoning county.</p>

<p>Error to Court of Appeals of Williams county.</p>

<p>Error to Court of Appeals of Cuyahoga county.</p>

<p>Error to Court of Appeals of Cuyahoga county.</p>

<p>Error to Court of Appeals of Cuyahoga county.</p>

<p>Error to Court of Appeals of Hamilton county.</p>

<p>Error to Court of Appeals of Tuscarawas county.</p>

<p>Error to Court of Appeals of Putnam county.</p>

<p>Error to Court of Appeals of Franklin county.</p>

<p>Error tó Court of Appeals of Summit county.</p>

<p>Journal entry: It appearing from the record that the owner of the property described in the petition died intestate; that the same is non-ancestral property and descends under paragraph 6 of Section 8574, General Code, to the next of kin of the blood of the intestate; that the “next of kin” as used in this statute refers to those persons who take intestate property under the statutes of descent and distribution {Steel, Admr., v. Kurts, 28 Ohio St., 191, approved and followed); that each paragraph of Section 8574, General Code, must be read in connection with all the other paragraphs for the purpose of determining who are next of kin of the blood of the intestate; and that in Section 8574, General Code, relating to the descent and distribution of non-ancestral property, the whole blood is preferred to the half-blood (Stembel v. Martin, 50 Ohio St., 495, and Lyon et al. v. French et al., 70 Ohio St., 466, affirming Lyon v. Lyon, 24 C. C, 498, 1 C. C, N. S., 246, approved and followed).</p> <p>It is, therefore, considered and adjudged by this court that the judgment of the court of appeals be, and the same hereby is, reversed, and this court coming now to render the judgment that the court of appeals should have rendered, it is ordered, adjudged and decreed that the judgment of the common pleas court be, and the same hereby is, affirmed. — Reporter.</p>

<p>Error to Court of Appeals of Morrow county.</p>

<p>Error to Court of Appeals of Shelby county.</p>