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were overruled, and the defendant, being in de- and right of the citizen to have the compensafault for want of answer, demanded a jury for tion for injuries done, measured by the judgment the assessment of damages, but the court refused of the tribunal. For if it be competent for the to empannel a jury and rendered judgment in legislature to prescribe the minimum of comfavor of the plaintiff for $300.00 and costs. pensation in any case, it may in all cases, This judgment was afterward affirmed by the and, as in the present instance, may fix such

, district court.

minimum greatly in excess of any probable or MCILVAINE, J.

even possible injury, thus reducing the right of

. The statute of April 20, 1874 (71 Ohio L. 146), jury trial to a mockery,

“If the forfeiture of the statute be deemed punafter enacting, among other things, that a cor

itive, it violates the constitutional guarantees poration “operating a railroad in whole or in

of liberty in the several respects above stated, part in this State, may demand and receive for

by making the punishment of crime against the the transportation of passengers on said road, not exceeding three cents per mile for a distance of sovereignty of public law, an instrument in the more than eight miles; provided, the fare shall

hands of private malice, fraud and conspiracy, to always be made that multiple of five nearest

be secured without jury or witnesses, through reached by multiplying the rate by the distance;"

the virtual, involuntary confession of the ac

cused.” further provides that“ every such corporation, its officers, employes or agents who shall violate,

The principles of the constitution above reor permit to be violated, the provisions of this

ferred to, are wholly misapplied by counsel in act, or any other corporation, its officers, em

argument. These provisions were not intended

to inhibit private actions for damages resulting ployes or agents, who shall demand or receive a

from the violation of a public statute, nor for a greater sum of money for the transportation of

penalty where the right of action therefor is passengers or property on or over their railroad than the sum allowed by law, shall pay to the

given to the party aggrieved, nor even prosecu

tions in the nature of qui tam actions. All prosparty aggrieved for every such overcharge a sum

ecutions for the violation of criminal laws, on equal to double the amount of such overcharge;

behalf of the State, or general public, must be but in no case shall the amount to be paid be less than one hundred and fifty dollars."

in the name of the State and by its authority,

and in such prosecutions the person charged canThe first question raised on the demurrer, and

not be compelled to be a witness against himself; chiefly urged in the argument of the case, re

but where à right of private action is given by lates to the constitutionality of the statute upon statute for a penalty, a civil action in the name which the action is based. Numerous objections

of the party under the civil code, with all its to the validity of statute are urged. It is contended, that if the right of action given to the provided specially.

incidents, is the proper remedy unless otherwise

: party aggrieved is for compensation for an in- Before the trial in the court below, the Act of jury, the province of a jury is invaded by fixing 1874 was repealed by the Act of March 30, 1875 the minimum recovery at $150.00. We need

(72 Ohio L. 143), as follows: “ Sec. 2. That the not stop to consider the soundness of this propo

said Act of April 20, 1874, be and the same is sition, as it is conceded by counsel for, plaintiff hereby repealed, and the repeal of said act shall in error, in which concession we entirely concur, affect and annul penalties accruing or accrued that the minimum sum to be paid for over- under said actor. The Act of April 25, 1873, recharging fare, where the actual damage of the

pealed thereby; provided, that no railroad comparty aggrieved is less than one hundred and

pany or corporation shall be released from its liafifty dollars, is in the nature of a penalty-isbility in actions now pending and causes of punishment rather than compensation.

action heretofore accrued to any person from In this view of the statute, however, it is whom such railroad company or corporation, by contended, that a violation of its provisions is its officers or agents, shall have demanded and an offense against a public law. And prosecu- received fare or freight at a rate above that tions therefor must be carried on in the name allowed by law; Provided, such person paid out and by the authority of the State of Ohio." Sec.

overcharges while using such railroad in the 20, Art. 4, Constitution. And further, that if, due course of his or her business, and not for the for a violation of the statute, the guilty party can purpose or with the view of obtaining the pennot be prosecuted in a civil action. The rule of alty provided by law for such overcharge, &c. the code of civil procedure which declares that Wherefore, it is claimed, that the petition was not allegations in a petition not denied by answer, sufficient to support the judgment for the reason shall be taken as true, violates the principle that it did not show that the plaintiff was guaranteed by the constitution. Sec. 10, Act 1, within the saving clause. that no person in any criminal case shall be Whether an action could have been maincompelled to be a witness against himself. The tained under the Act of 1874, where the oversumming up of the argument by counsel, I charge was not paid in the due course of busiquote:

ness, but was paid for the purpose of obtaining “These conclusions are thus reached: If the the penalty, to say the least, is doubtful; but it forfeiture of the statute be deemed compensatory, is clear, that since its repeal in 1875, a cause of it violates the great civil right of trial by jury; I action arising under it was lost by the repeal


unless the party was within the terms of the ment is, that several causes of action for such saving clause ; yet if an action was pending at injuries may be united in the same petition. the time of the repeal and the petition stated a There was no error in the court refusing a decause of action under the statute, its subsequent mand by the defendant for a jury to assess damrepeal, the case being in fact within the saving ages. There was no issue of fact for a jury to clause, did not render the petition insufficient. try.

try. The statute, upon the facts admitted by And we think the petition was sufficient under the pleadings, fixed the amount of the recovery. the Act of 1874. If the plaintiff's case was If an issue had been joined for the trial of which obnoxious to the charge of bad faith, the petition, either party might, of right, have demanded a however, stating a cause of action in the terms jury, upon the finding of the jury upon the of the statute, the bad faith was, under the Act issue for the plaintiff below, the amount of their of 1874, a matter of defense-assuming that the verdict would have been controlled by the statpayment of the excessive fare was not in the ute. due course of business, but was for the

purpose Judgment affirmed. of obtaining the penalty-would have defeated the action. In the case before us, the testimony

OKEY, C. J. not being in the record, we must assume that it

In my opinion the judgment should be rewas shown that the plaintiff was within the

versed in part and affirmed in part. The second saving clause of the repealing statute.

cause of action is sufficiently stated, and the It is also claimed, that the first count in the judgment as to that should be affirmed. The petition is bad for want of an averment that the

first cause of action is as follows: “On the 10th plaintiff was a passenger on the defendant's day of June, 1874, the plaintiff was at Bellecars from Bellefontaine to New Richland, or

fontaine, in Logan county, and desired to go that the ticket purchased was in fact used by a

from there to the town of New Richland, in said passenger. This objection is answered by the county, the distance of nine and nine-tenths principle above stated. The allegation of the

miles. At the office of said company, in Bellepetition is as broad as the terms of the statute, fontaine, the plaintiff purchased from the namely: that the defendant demanded and re- defendant's agent a ticket from Bellefontaine ceived' excessive fare from the plaintiff for the

to New Richland, which ticket represented that transportation of a passenger. If the passenger

the plaintiff had paid her fare or toll from Bellewas not transported, or in other words, if the

fontaine to New Richland, and was entitled to payment of the fare was not in the due course of

ride on defendant's cars on said road (of the debusiness, but was made for the purpose of ob- fendant) from Bellefontaine to New Richland. taining the penalty, the plaintiff, under the Act

For said ticket and fare as aforesaid, defendant, of 1874, was not bound to aver to the contrary, by its agent, charged, demanded and received of until such fact was set up by way of defense.

the plaintiff the sum and price of thirty-five A question of some difficulty is raised as to the cents, and the plaintiff paid said sum of thirtyjoinder of causes of action. Our statute provides five cents for said ticket and fare, which was for the joinder of actions as follows: "The

more than defendant was entitled by law to plaintiff may unite several causes of action in charge and receive for riding on said railroad the same petition, whether they be such as have

said distance of nine and nine-tenths miles, heretofore been denominated legal or equitable, whereby an action has accrued to the plaintiff or both, when they are included in either one of

for the same, and the plaintiff is entitled to have the following classes : * *

* 3. Injuries, and receive from the defendant, by reason of with or without force, to person or property, or

the premises, the sum of one hundred and fifty either,” Sec. 80 of the code of 1853. The join. dollars.” der in this case, if justified at all, is under this The statement of this cause of action is not clause.

aided by any other matter in the record. I deny There is no doubt that this section should be that such statement is as broad as the statute. construed liberally for the purpose of preventing | It is not stated in terms, nor even in substance, multiplicity of actions; and we are inclined un- that the plaintift below was transported to New der this rule of construction to hold that the Richland. The statute, quoted in the opinion of causes of action in the petition are for injuries the court, limited the sum which the company to property; and if this be so, the joinder was might “demand and receive, for the transportatwn proper.

of passengers on said road," to a sum

not exThe wrongful taking of another's property is ceeding three cents per mile," and made highly an injury to the property. Wrongfully demand-penal a violation of its provisions. Indeed, for ing and receiving the plaintiff's 'money for fare receiving five cents--the amount alleged in this in excess of the amount authorized by law, was cause of action-in excess of the prescribed fare, an injury to her in her property. Asthough it the penalty must be at least one hundred and was taken without protest, the company ac

fifty dollars; and knowledge, on the part of the quired no right to retain it. It being unlawful agent, that the sum is in excess of the lawful to demand or receive it, the railroad company fare, is not made by the statute a material eleunlawfully exacted and converted it; and for ment in maintaining the action. Such a statute,

. this wrong and injury, the statute gave the according to well settled principles, must be conplaintiff a right of action; and our best judg-strued strictly. So construed, the first cause of




action, above set forth, is insufficient, in failing ance with the rules and regulations established to state that the defendant in error was trans- by the defendants, for the admission of children ported on the road. The inhibition is not to such home, and asked the defendants to direct against the sale of tickets to a purchaser thereof, the superintendent of said Home to contract at a but receiving an unlawful rate of fare “ for the per capita with the relators for the support of transportation of passengers on said road." Accord- said children, and to pay the relators therefor ing to the construction of the majority, a right out of the $10,000, appropriated by the second of action accrued to the defendant in error the section of said act. That the defendants admitmoment she bought the ticket of an agent, and ted that said children thus presented were there was not left to the company even locus pen- proper persons to be received into the Home unitentiæ. But in my opinion no penalty is incur- der their charge, if there was room therein. That red under the statute, unless for the act of trans- the defendants would not contract for the supportation actually performed by the company, a port of said children for the year ending Februsum in excess of that prescribed in the statute ary 15th, 1881, for want of room in the instituhas been exacted. Nothing of the sort is stated tion. The time of presenting these children for in the first cause of action, and hence it is in- admission is said in the agreed statement to have sufficient. If one from whom illegal fare is been at a meeting of the defendants held “on exacted is not actually carried, he may recover

the day of

1881." It appears the money so paid, but not the penalty pre- that during the year 1880, and thus far in 1881, scribed in the statute. The section, of course, is Montgomery County has had three more orphan susceptible of the meaning ascribed to it by the children in the last named home, than her quota majority of the court; but where a statute highly under section 677 of the Revised Statutes. penal in its provisions, admits of two probable The eleventh annual report of the defendants, but conflicting constructions, that is to be pre- as Trustees, for the year 1880, was also given in ferred which is most favorable to him against evidence. The following extract shows their acwhom the penalty is asserted.

tion under, and construction of the Act of April [This case will appear in 37 O. S.]

13th, 1880, above referred to:


Preliminary steps have been taken to carry THE STATE EX REL.

into operation the provisions of the act of April

13, 1880, (Laws, p. 187), but no contracts have as THE TRUSTEES OF THE OHIO SOLDIERS AND SAIL- yet been made in that behalf

. The statute is obORS' ORPHANS' HOME.

scure, and the board have been in a state of un

certainty as to their powers and duties under it. November 15, 1881.

It reads as follows, omitting formal parts and the

second section, which appropriates $10,000 for the 1. A statute declaratory of a former one has the same effect upon such former Act, in the absence of interven

purposės of the act : " ing rights, as if the declaratory Act had been embodied in

“That the Trustees of the Soldiers' and Sailors' the original Act at the time of its passage.

Orphans' Home, and under their direction the 2. The legislative approval in the Act of April 19, Superintendent is hereby authorized and directed 1881 (78 0. L. 309), of the construction given by the defendants, to the Act of April 13, 1880 (77 O. L. 187), re

to contract at a per capita not to exceed the curquires the Ten Thousand dollars appropriated by the last rent expense cost of keeping the children at the named Act, to be distributed according to such construc- Xenia Home, with the proper officers of the diftion, where no contracts had been previously entered

ferent Children's Asylums or Homes in the State, into by the defendants for a different distribution of the fund.

for the support of such children as have been or Mandamus.

may hereafter be transferred to said Homes, who

are children of soldiers or sailors who served in M. P. Nolan, for plaintiff.

the late war from the State of Ohio." C. H. Grosvenor, for defendant.

“A number of questions have arisen in our WHITE, J.

minds in considering the act difficult of settleThis proceeding was instituted on the relation ment. Who are to receive the benefit of its pro of the Trustees of the Montgomery County visions ? Are there other restrictions upon those Childrens' Home against the defendants, who may, than that they are to be children of The Trustees of the Ohio Soldiers' and soldiers or sailors who served in the late war Sailors' Orphans' Home, to compel them to from Ohio?' or must they fall within some of the contract with the relators under the act of classes who may be admitted to the Home? May 13th, 1880, (77 0. L. 187), for the support Who shall make the transfers' contemplated ? of certain orphans and destitute children of Ohio Whence shall they be made and how? Are chilsoldiers and sailors. The alternative writ was dren first to be admitted to the Home, or their apissued October 18th, 1881. The case was submit- plications for admissions accepted before they can ted on an agreed statement of facts in writing. be transferred;' or is it intended to transfer From this statement it appears that the relators those not inmates or applicants to become such ? presented forty-seven such children in their Are the board to have any supervision over them charge, to the defendants for admission to Ohio when 'transferred ?' What if those 'transSoldiers' and Sailors’ Orphans' Home, in accord- | ferred' are not properly cared for? Are the ben

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efits of the act to be apportioned among the for the support of orphans thereunder in the year counties of the State as contemplated by section ending February 15, 1881." 677 of the Revised Statutes ? These are some of On the 20th of April, 1881, (78 0. L. 201) anthe questions that have arisen, the consideration other act was passed on the subject. The first of which has caused delay in taking action under section is as follows: the law.

"SECTION 1. Be it enacted by the General Assembly “ On full reflection and consultation with the of the State of Ohio, That the trustees of the solAttorney General (who is in accord with the diers' and sailors' orphans' home are hereby auview taken as to its construction), we have con

thorized to contract, at a per capita not to excluded to treat the act as in pari matria with the

ceed the current expense cost of supporting the general law governing the Home, and as a pro

children at the Xenia home, with the proper vision for the support and care of such classes of officers of any of the children's homes authorized children named in section 676, Revised Statutes, by the laws of Ohio in the State, for the support as it, for want of room, cannot accommodate. All of such children as are by exisiting law entitled the counties of the State, as far as possible, are

to admission to the Xenia home, provided, that to have their proportional benefits of the law. the total expenditure under this statute shall not We suppose the trustees of the Home are to make

exceed the sum of ten thousand dollars for any the transfers.' They cannot make transfers of one year, from February 15th to February 15th children not under their authority. Such au

of the succeeding year.” thority can be obtained only by acceptance into

The following is the third section : the Home, or, at least, by the acceptance and ap

“Sec. 3. That the act entitled 'an act to proproval of applications for admission. But the

vide for the support of the soldiers' and sailors' board can only admit children agreeably to said orphans outside of the soldiers' and sailors' orsection 677, which provides, that every county phans' home in Xenia,' passed April 13, 1880, shall be entitled to its proportion, according to

(vol. 77, Ohio laws, 187), be and the same is population, of the whole number that the Home hereby repealed; provided that nothing in will accommodate.' Any other construction in

this section shall operate to impair any this particular would work unequally and un- rights to the appropriations made in said fairly. The counties wherein these homes or repealed act which have accrued heretofore ; and asylums are situated might be enabled to

this act shall take effect and be in force from and support their orphans from the State treasury,

after its passage." thus compelling other counties having no such

The question for decision is, whether the relahomes to contribute to such support, and to

tors are entitled to a peremptory writ. maintain their own indigent orphans in addi

In the determination of this question the first tion. Such could not have been the intention inquiry is as to the effect of the clause above of the Legislature. To effect such a result the quoted of the Appropriation Act, upon the act of terms of the statute should be explicit and im- April 13, 1880. perative.

Whatever may have been the original mean “While the act remains as it is, then it will be ing of the act, the effect of the adoption of this our purpose so to administer it in connection and, in the absence of any intervening rights, to

clause was to incorporate it into the original act; with the general law referred to, as that no

, county shall have more than its due share

give to the act the same meaning and effect as if

the clause had been embodied in it at the time of their benefits. And we think the board should

of its passage. 80 far retain supervision over the children 'transferred' as to see that they are properly

The ten thousand dollars appropriated by the cared for and supported. Provision for this

act of April 13, 1880, was a charitable provision should be made in the contracts for support.

made by the legislature for the objects named in “We have stated our views and purposes thus effect by the defendants. The means prescribed

the act. The provision was to be carried into fully upon this very important, but obscure for the distribution of the fund, were through statute, in order that legislative correction

contracts to be made by defendants, or under may be made, if wrong.”

their direction, “with the proper officers of "The Appropriation Act which was passed and the different children's asylums or homes took effect April 19, 1881, contains the following in the State.” No such contracts having been clause :

made, it was competent for the General Assem" For the and support of orphans bly to repeal the provision, or to construe it acoutside the home, under the act of April cording to its discretion; and, as already stated, 13, 1880, (0. L. p. 187), and in accordance such construction was given to the act by the

, with the interpretation thereof, as set forth clause in the Appropriation Act above quoted. in the recent report of the trustees of said The proviso in Section 3 of the act of April 20, home, the

of ten thousand dollars 1881, does not affect the case. The saving in the ($10,000);, provided, the appropriation of ten proviso of rights which had accrued under the thousand dollars ($10,000) made in said act, or so act of April 13, 1880, embraced the legislative much thereof as remains unexpended, may be construction of the act as declared in the clause used likewise in substantial accordance with the approving the construction given to it by despirit of said act, as thus interpreted, in payment | fendants in their report. No contracts having




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for a different distribution, of the fund. been previously entered into by the defendants en Zation, and that it commenced business

January 1, 1871, as a fire insurance company, Peremptory writ refused.

The defendant then offered evidence tending [This case will appear in 37 O. S.]

to show that after obtaining the charter, the

incorporators did not open books for subscripSUPREME COURT OF OHIO.

tions to stock, but placed the stock through the

agency of canvassers, who took in payment MARY FANNING

notes and mortgages, as well as cash, approved

by an executive committee or temporary board HIBERNIA INSURANCE Co.

of directors, selected by a meeting of those en

gaged in forming the company as stockholders. November 22, 1881.

In the case of defendant, it was shown that she

verbally agreed with one of these canvassers to 1. To entitle a person to become a member of a corpo- take $3,000 in stock, and gave this note and ration, which is being organized under “ An act to regulate insurance companies” (8. & S. 205), his contract to

mortgage in payment, but that she never subtake shares therein, must be in writing, and be mutually scribed for stock, in a subscription book for that binding on both parties. 2. A verbal promise to take shares, while the stock

purpose or by any contract in writing, and never is being subscribed which is necessary to authorize an

received any certificates of stock from the comsworrnization, does not constitute the promisor a stock- pany. noiuor member of such corporation, and a promise to In rebuttal, for the purpose of creating an pay for such shares is without a sufficient consideration to support it. A recovery on such promise to pay can

estoppel, plaintiff produced and offered in evi. not be had, in the absence of facts showing that the prom- dence, without first proving its execution, a isor is estopped from setting up such want of considera

proxy, purporting to be signed by defendant, tion.

authorizing one Lavan to vote her stock in Error-Reserved in the District Court of 1875, on which he voted said stock. This paper Cuyahoga County.

was put in evidence over the defendant's obSuch facts only are stated as relate to the jection. points reserved for report.

Among other things the court charged the The Hibernia Insurance Company for a cause

jury that, “if she (the defendant) subscribed of action in the court below, in which it was

for, or agreed to take capital stock, and she could plaintiff and said Mary Fanning was defendant,

agree verbally; it is not necessary she should sign alleged that it was a corporation under the laws any book or anything of that kind; if she of Ohio, that on November 1, 1870, the defend agreed to take capital stock, she owed so much ant executed and delivered her promissory note for $3,000, payable to plaintiff on demand, with

The bill of exceptions and charge of the court interest at six per cent., together with a mort

contain other matters for review, but only so

much is stated as raise the points passed upon. gage on certain real estate, to secure the same, and that said note is due and the condition of

JOHNSON, J. said mortgage is broken; wherefore judgment is

1st. It was clearly erroneous to allow_the asked for the amount due and for the sale of the paper, purporting to be the proxy of Mrs. Fanmortgaged premises.

ning to vote her stock, to be read in evidence The defendant alleges that plaintiff was never

over her objection without first proving its exe

cution. If its execution had been proven to the lawfully organized as a corporation and has no

satisfaction of the court, it might have been legal capacity to sue, and that said note and mortgage are without consideration and void, by estopped from taking advantage of any irregu

competent as tending to show that she was reason of certain fraudulent representations set

larity in the organization or informality'in her out, and for the reason that she was not a subscriber for the stock in said company, for which

obligation to take stock, but until such prelimsaid note and mortgage were given, nor was she inary proof was made, it was error to allow

it to , ever a stockholder in said company.

go to the jury.

2d. Did the court err in its charge that a The reply put the allegations of the answer

verbal agreement to take stock created an inin issue. The trial resulted in a verdict for debtedness to the corporation ? plaintiff and a judgment for the amount of said It appeared that the certificate of incorporanote and mortgage. There was a motion for a tion was dated March 2, 1870. This charter was new trial for error in admitting evidence and obtained under the Act of April 15, 1867, (S. & in charging the jury, as well as for other S. 205). Under this statute, any number of causes, which was overruled, a bill of exceptions persons, as required by the act entitled, “ An was taken, and on error to the district court the act to provide for the creation and regulation of case was reserved for decision in this court. incorporated companies in the State of Ohio,"

On the trial, the plaintiff offered in evidence passed May 1, 1852, may form an insurance comthe certificate of incorporation of the company, pany, other than life insurance, by giving no dated March 2, 1870; proved that this note and tice of their intention so to do four weeks in a mortgage were given November 1, 1870, for public newspaper in the county, and by making subscription to the capital stock thereof, which à certificate specifying the name of the comwas then being made up preparatory to an or- pany, its object, the amount of capital, and


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