(145 N.E.) light of Flandermeyer v. Cooper, supra, and, amount of the policy, and defendant anWestlake v. Westlake, supra, constrained to the conclusion that the equitable power exists, even though it should rarely be exercised, and that, therefore, the conclusion of the courts below should be affirmed. OHIO FARMERS' INS. CO. v. TODINO. (No. 18095.) (Supreme Court of Ohio. Oct. 14, 1924.) (Syllabus by the Court.) Insurance 282(2)-Owner of automobile not having complied with registration law cannot recover on policy; "sole and unconditional owner." One who purchases from an insurance company a policy covering on an automobile, which policy contains a provision that the underwriter shall not be liable if the insured be not the sole and unconditional owner of the automobile, may not recover damages under such policy when the owner, neither at the time of the procuring of the insurance nor at the time the liability was claimed to have arisen, had complied with the provisions of the act of the General Assembly relating to the registration of automobiles, found in volume 109, p. 330, Ohio Laws. Jones, J., dissenting. [Ed. Note.-For other definitions, see Words and Phrases, Second Series, Sole and unconditional ownership.] swered with a denial of liability, averring that no bill of sale was executed by the husband to the plaintiff, in accordance with the act of the General Assembly found in volume 109, page 330 et seq., of the Ohio Laws, and that the policy contained a provision exempting the company from liability, in event the insured was not the sole and unconditional owner of the property covered by the policy. Plaintiff and her husband testified that on October 27, 1921, the husband gave the car to the plaintiff; that the car was stolen within a day or two thereafter, and proofs of loss were made to the defendant company, which rejected the claim. It was conceded or fully proven at the trial that no bill of sale was executed, and that the pol icy contained the clause as pleaded by the defendant. The common pleas directed a verdict for defendant and entered judgment thereon, which judgment the Court of Appeals reversed, and the case is here for our construction of that statute, in so far as it is applicable to the precise facts. It is unnecessary at this time to determine what rights, if any, plaintiff might have against her husband and all the world, if the issue were as to her right of possession of this car. The issue and the only issue in this case is: What right has plaintiff, in view of the sole and unconditional ownership clause, to recover from defendant for Error to Court of Appeals, Jefferson the loss of the car, it appearing that no County. Action by Dorothy Todino against the Ohio Farmers' Insurance Company. Judgment for defendant was reversed by the Court of Ap peals, and defendant brings error. Judgment of Court of Appeals reversed; judgment of common pleas court affirmed.-[By Editorial Staff.] The facts are stated in the opinion. Frank Taggart, of Wooster, Don McVay, of Le Roy, and S. C. Kerr, of Steubenville, · for plaintiff in error. bill of sale had been issued to plaintiff for the automobile prior to or at the time she claimed to acquire title to the car, or at the time the indorsement was placed on the pol icy, or, indeed, at the time the car is claimed to have been stolen? that in all gifts in which title passes to a It is provided by the above-cited statute used motor vehicle the person making the gift shall execute, in the presence of two witnesses, a bill of sale in duplicate, and deliver same to the donee at or before the passage of title; that such bill of sale shall Gardner & Bigger, of Steubenville, for be duly verified before a notary public or othdefendant in error. CONN, J. The facts in this case disclose that one Todino, husband of the plaintiff, on April 29, 1921, procured of the Ohio Farmers' Insurance Company, hereinafter referred to as defendant, a fire and theft policy covering on an automobile; that on October 27, 1921, the husband visited the agent of the company and stated that he wanted the policy "corrected" by having it run in favor of his wife, hereinafter referred to as plaintiff; that pursuant to such direction the agent of the company made an indorsement, substituting the plaintiff instead of the husband as the insured. er person authorized to administer oaths; that any such bill of sale not verified before delivery shall be null and void, and of no effect in law; that each person so receiving a used motor vehicle shall obtain from the person conveying, at or before the transfer or delivery, such bill of sale in duplicate, and, finally, that the person receiving the bill of sale shall, within three days, file one of the duplicate copies with the clerk of courts of the county, who shall affix his official seal to such instrument. Other sections of the act provide money penalties for the failure to observe the several require ments. The authorities are plentiful that courts Subsequently suit was entered in the full always look to the language of a statute, its For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes subject-matter, and the wrong or evil it policy forms are settled by statute. While seeks to remedy or prevent, or, in other Ohio has not provided a statutory form of words, the purpose sought to be accom- | policy, practically all policy forms in use in plished by its enactment, to determine whether a transaction governed by such statute is void if the statutory requirements be not followed, or whether (there being no direct provision making such transaction void) the penalty provided by the statute for the failure to observe it is all that is to be exacted. A distinction has been recognized between statutes designed for the protection of the public and those designed primarily for the raising of revenue. The courts are in accord that, where a statute is enacted to protect the public against fraud or imposition, or to safeguard the public health or morals, a contract in violation thereof is void, even though a money penalty also is exacted. The statute under consideration is not a revenue raising measure. No fees of any consequence are paid or are payable. It was not designed to prevent the sale of automobiles. Its sole purpose was to prevent, in so far as possible, the stealing of automobiles, which, because of the opportunity to commit the crime and escape detection, unfortunately had become, and is still, so prevalent as to be classifiable as a near industry. The declaration of the General Assembly which passed the act is that its purpose was and is to prevent traffic in stolen cars. In view of the requirement of the statute that a bill of sale shall be verified before it can have force and effect, how can it be successfully argued that no bill at all may have force and effect? Omission of action is not action. Nonperformance is not performance. Failure to do a thing is not the doing of it. The absence of a paper is not the equivalent of a paper. As title cannot pass without a verified bill of sale, and in this transaction no bill of any kind or character was executed by the donor or filed by the donee (plaintiff), how can it be claimed that at the time of the theft plaintiff was the sole and unconditional owner of the car, within the meaning of the policy? Conditions in policies are part of the consideration. For a small premium an insured obtains a large protection. A recovery on an insurance policy in the face of a violation of the provisions of the policy has the effect of penalizing the prudent and careful policy holders for the benefit of the careless and negligent one. This is so, since insurance companies are merely clearing houses for their policy holders. Such companies primarily bring no property into the world. Insurance companies are trustees of an express trust, and the payment by the officers of such companies of questionable bills and charges is as reprehensible as would be the squandering of trust funds by bankers, administrators, guardians, or other trustees. Insurance contracts, as a rule, are plain. They follow standard forms. In some states this state are in line with the accepted forms of other states. The one in suit is the standard form. Plaintiff under the law was required to know the contents of her policy. If in doubt as to its scope and extent, it was her duty to consult some one who could advise her. An explanation to the agent of the company of her so-called ownership at the time he was directed by the husband to change the name of the insured would have resulted either in the cancellation of the policy or in an accurate indorsement being made thereon. If the latter had been made, the company would have been estopped to plead the ownership clause. Thus both parties would have been protected, and the loss of this car, which was stolen the next day after the indorsement was placed on the policy, would have been sustained by the party who, having full knowledge of the facts, assumed the risk. No fraud on the part of the company or its agent is pleaded, nor could any be set up under the conceded facts, and, this being so, the policy conditions must be respected. As bearing upon the question of what is necessary to pass title, attention is called to the case of Building Association v. Clark, 43 Ohio St. 427, 2 N. E. 846, in which it was held that the purchaser from the mortgagor of lands incumbered by an unrecorded mortgage takes title thereto free of such incumbrance, even if such purchaser had full knowledge and notice of the existence of the mortgage. This is so because the statute relating to the recording of such instruments provides that a mortgage shall take effect from the time it is delivered to the recorder of the proper county for record, and, until delivered, it is invalid to all the world, except the parties to it. In the case of Holliday v. Franklin Bank of Columbus, 16 Ohio, 533, it was held that a mortgage has no effect, either in law or equity, until it is delivered to the recorder of the county for record. Statutes relating to conveyancing are designed to settle the title to real estate, so that individuals having to do with lands may be protected, and were passed primarily to prevent crime, not to raise revenue. How can the statute in question be waived or disregarded, in the face of the construction given by this court to the statutes relating to conveyancing? This transaction is not like unto that of one who in good faith buys a car from another believed to be the owner, but who, in fact, is not the owner; for instance, a thief. In such case, the courts have allowed a recovery. A recent case of that type is Norris v. Alliance Insurance Co. (N. J. Sup.) 123 Atl. 762. The court there says: "The plaintiff did not, knowingly, make any false representation to defendant as to his (145 N.E.) ownership; he supposed he was the uncondi- | clerk of courts, and carries the imprint of tional and sole owner without any fact known the seal of the clerk. to him to the contrary, and, so far as this record shows, was, and is, the only person claiming ownership." The case at bar is quite a different one, because plaintiff here knew, or was bound as a matter of law to know, that she had no title. She is not in position to assert her good faith, in view of the fact that she disobeyed the statute. In effect, she misrepresented her ownership of the car to the defendant. In the last above cited case the purchaser violated no law and was allowed a recovery. In the case at bar, the plaintiff disobeyed the law and therefore should not have a recovery. It is inconceivable that a person at one moment may defy the state and in the next invoke its protecting arm. One may not disobey a statute and thereafter ask the courts to give him the benefit conferred by such statute. There is a line of cases upholding the principle that, where a contract involved in suit grows out of a prior illegal contract, the later transaction may be deemed valid, if it does not depend for its validity upon the original illegal transaction; in other words, if it is purely collateral. It is not difficult to understand the reason for this rule, but sometimes its application is a close question. True, as has been argued, it was held in Conithan v. Royal Insurance Co., 91 Miss. 386, 45 South. 361, 18 L. R. A. (N. S.) 214, 124 Am. St. Rep. 701, 15 Ann. Cas. 539, that a policy of fire insurance issued to the keeper of a bawdyhouse upon furniture used therein was not void because of the unlawful business conducted there. But on examination that case discloses there was no question raised of the title of the insured. Admittedly, the business conducted in the bawdyhouse was illegal, but the furniture was not held in violation of any law. Furthermore, there was no provision in the pol| icy making an illegal use of the furniture a ground of fortfeiture of the policy. The Supreme Court of that state (Mississippi) does not lose sight of the sound rule, however, because in Pollard v. Phoenix Insurance Co., 63 Miss. 244, 56 Am. Rep. 805, where a question arose under a statute of the state making provision for the collection of its revenue, one of the provisions of that statute being that a person exercising any of the privileges enumerated should pay a privilege tax, a contract of insurance was held to be within the statute. The facts were these: One Mrs. Pollard was a merchant in Okolona and entered into a contract of insurance against loss by fire with an insurance company. Subsequently the stock of goods claimed to have been insured under the policy was destroyed. Proofs of loss were made, and, liability being denied, suit was One test is to ascertain whether one may make out a case in which is involved the second transaction, without calling to his aid the illegal transaction. As was said in Minne-entered to collect the loss and damage. The sota Lumber Co. v. Whitebreast Coal Co., 56 Ill. App. 248, the test is: May the demand be enforced in law without the aid of the illegal contract to establish the case? insurance company set up the defense that the contract was void because the plaintiff was doing business in violation of law. The section of the statute (Code 1880, § 589) in reference to which privilege taxes were required to be paid provided that any person who shall exercise any of the privileges enumerated in the chapter, "without first paying the price and procuring license as required, shall on conviction be fined," etc., "or imprisoned," etc., or both, "and all contracts made with any person who shall violate this act, in reference to the business In the case at bar, while the burden of evidence may have shifted to the insurance company, it was necessary that the plaintiff rest her title to the car in question on the bill of sale required by the statute. Otherwise she had no title. Nor can plaintiff succeed where, although not required to resort to the illegal transaction to establish a prima facie case, he is compelled to resort to it to meet a complete prima facie defense. Math-carried on in disregard of this law, shall be ews v. Wayne Junction Trust Co. (D. C.) 197 Fed. 237, holds that a receiver, having made a prima facie case which was completely answered by defendant, who was compelled in rebuttal to bring out and rely on a fraudulent transaction to which his company and defendant had been parties, could not recover. null and void, so far only as such person may base any claim upon them, and no suit shall be maintainable in favor of such person on any such contract," etc. The court held that a contract of insurance to protect the goods used in the business conducted in violation of the revenue laws was a contract "in reference to the business carried on in disregard of this law," and therefore void. In 1 Story on Contracts (5th Ed.) § 761, it is suggested that there is a distinction between cases where the statute is merely di- In Vining v. Bricker, 14 Ohio St. 331, rectory and those where the statute is pro- a note was given in consideration of a sale hibitory. In the instant case it appears the of diseased sheep; the owner knowing them statute is prohibitory, because a bill of sale to be diseased when he sold them to the givcan have no force and effect unless it is proper of the note. The statute (4 Curwen's Rev. erly executed and filed for record with the | St. p. 2866) then in force provided that who ever, being the owner of diseased sheep, should sell them without fully disclosing the fact to the purchaser, should be fined. There was a further provision in the statute that nothing in the section should change the right of any one sustaining damage in bringing suit for the recovery thereof, or in defending against any suit brought upon the sale of such sheep. In view of the proviso to the section, this court held that the note was not void, for the reason that the Legislature especially provided "that the rights of the party sustaining damage, in his action or defense, should remain unchanged, neither enlarged nor diminished by the statute." Suppose the penalty had been that such a note was to be deemed null and void, would it not have been conclusive? That is precisely what the General Assembly said should be the status of a transaction of the kind in suit, in so far as the passage of title is concerned. Hence the doctrine of upholding a contract as unrelated to a prior illegal contract has no application in this case. The judgment of the Court of Appeals should be and is reversed. The judgment of the Common Pleas should be and is affirmed. Judgment accordingly. Original mandamus by the State on relation of Benjamin Meck against the Board of Deputy State Supervisors of Elections of Crawford County. Writ refused.-[By Editorial Staff.] The facts are stated in the opinion. Benjamin Meck, of Bucyrus, in pro. per. Clarence U. Ahl, Pros. Atty., and Gallinger & McCarron, all of Bucyrus, for respondent. MARSHALL, C. J. This is an original proceeding in this court for a writ of mandamus seeking to compel the board of deputy state supervisors of elections of Crawford county, Ohio, to recount all the votes cast at the recent primary election for the nomination of judge of the court of common pleas of said county on the Democratic ticket. The petition alleges that the relator Benjamin Meck and one Charles Gallinger were rival candidates for the nomination and that the official count disclosed that this relator Meck had 2,718 votes and that Gallinger had 2,740 votes, that 6,456 Democratic votes were cast at that election, and that the total vote cast for the nomination for judge was 998 less than the entire number of Democratic votes polled. The petition contains no allegations of fraud, mistake, or other irregularity, and al MARSHALL, C. J., and ROBINSON, MAT- though the petition contains the allegations THIAS, and DAY, JJ., concur. that the canvass made by the precinct judges and clerks does not correctly state the result JONES, J. (dissenting). I dissent, for the of said primary election, and the further alreason that the provisions of the policy aplegation that if the votes had all been truly ply only to the owner at the time of procuring insurance; there is nothing in the policy applying its terms to the transferee of the automobile, except the provision requiring the assent of the insurance company. STATE ex rel. MECK v. BOARD OF DEP. (Supreme Court of Ohio. Oct. 7, 1924.) (Syllabus by the Court.) 1. Elections 260-No duty devolves on county board to recount undisputed ballots. No duty is enjoined by section 4984, General Code, upon the county board of deputy state supervisors of elections to recount the undisputed ballots cast in the several precincts of the county upon the demand of any candidate. 2. Elections 260 Recount of undisputed ballots unprovided for except in election contests. No provision is made by statute for any recount of undisputed ballots otherwise than in an election contest. counted and correct returns made thereof it would show that the relator received a larger number of votes than his opponent, these allegations are apparently only the opinion of the relator, and a conclusion stated by him without any facts being stated from which such conclusion could reasonably be drawn. It is not claimed that in a single precinct mistakes had been made or fraud perpetrated, but on the contrary in another allegation of the petition the relator has with commendable ethics stated that 998 Democratic votes cast at said primary were not counted for either of the candidates for common pleas judge, without stating in terms that any of said 998 Democratic voters had in fact voted for either of said candidates. It is apparent therefore that the relator has no knowledge of any particular facts or circumstances which would support his belief that there were votes cast which were not counted, and it is equally apparent that he is only entertaining the hope that a recount of the ballots might result in 23 additional votes being found for relator. The petition further discloses that the relator does not claim there were less than 2,740 votes cast for Gallinger, or that any votes actually cast for relator were counted for Gallinger. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (145 N.E.) [1] It must further be kept in mind that this proceeding is not an election contest. It is an action for the extraordinary writ of mandamus to compel officials to perform acts which relator claims are enjoined upon them by law. Whether or not an election contest would lie at the suit of a defeated candidate at a primary election, we have neither decided nor considered. We are only concerned with the question whether by the provisions of section 4984, General Code, a clear legal duty is enjoined upon the board of deputy state supervisors of elections to break the seal of all the ballots cast in each and every precinct, and recount them, or whether on state supervisors of elections of each county shall meet and canvass the vote and certify the result," etc. By reference to this section 4984 it will be seen that practically the same language is used in defining the duties of the board of deputy state supervisors as is used in section 4983, in defining the duties of the judges and clerks at the close of the polls in each indicate that the same duty is imposed upon precinct. Standing alone this would seem to and clerks. If, however, we examine the lata county board as is imposed upon the judges ter provisions of section 4984, it will be seen the other hand it is the duty of the said that practically the same language is emboard only to count the tallies of the votes ployed in defining the duties of the state suor abstract of votes certified to it by the pre-ination papers are required to be filed with pervisor as to those candidates whose nomcinct judges and clerks. That section reads the state supervisor. It is apparent that a colossal task would be imposed upon the county board if required to recount all of the ballots cast at a primary election in the county, and would be especially true in the more populous counties of the state, and it is further apparent that an impossible task would be imposed upon the state supervisor. The impossibility of this latter task is emphasized when it is seen that it would be impossible for the ballots to be in the possession of the county board and of the state supervisor at the same time. as follows: "On the following Thursday after the primary at ten o'clock forenoon the board of deputy state supervisors of elections of each county shall meet and canvass the vote and certify the result or declare the same in the manner hereinafter provided. The controlling committee of any party participating in the primary may have one representative present during the canvass of the vote. In the case of candidates for nomination by primary whose nomination papers are required to be filed with the state supervisor of elections such boards of deputy state supervisors shall, on blanks provided for that purpose, make full and accurate returns of votes cast for each candidate and shall certify duplicate copies thereof to the state supervisor who shall proceed to canvass all of the votes cast for the respective candidates above mentioned and shall declare the result, and shall, not less than forty days before the election, certify the same together with a form of official ballot therefor to the proper boards of deputy state supervisors of the several counties of the state. In case of nominations for offices in districts comprising more than one county, the boards of deputy [state] supervisors of elections in such counties shall certify the results of the primary as regards such district candidates to the board of deputy state supervisors of the county in such district in which the nomination papers were originally filed, which board shall proceed to canvass all of the returns so made of the votes cast for the respective candidates and shall declare the result and certify the names of the successful candidates to the boards of deputy state supervisors of the several counties comprising such district to be placed on the ballot. In case of nominations for offices within a county the results of the primary shall be declared by the board of deputy state supervisors of such county." If by the foregoing provisions a duty is enJoined upon the board to recount the ballots, that duty does not depend upon a request being made by one or more of the candidates. This controversy therefore turns upon a proper construction of that portion of the abovequoted section which reads as follows: "On the following Thursday after the primary at ten o'clock forenoon the board of deputy Again it would seem utterly absurd to have two separate and distinct counts of the votes for county candidates, and three separate and distinct counts of votes for state candidates made in exactly the same way. It is a well-known fact, of which this court may take judicial notice, that ever since the enactment of this statute the votes have been counted by the precinct judges and clerks, and that the deputy state supervisors of the respective counties have only counted the tallies without examination of any ballots other than disputed ballots. This fact must be equally well known to the Legislature, and if this was not the legislative intent that body has had abundant opportunity to make the law more definite. This theory and determination of the matter find support in the fact that section 4983 requires that if the judges are in doubt, or any difference of opinion exists concerning one or more ballots, such ballots shall be sealed up and marked "disputed ballots," and while section 4984 makes no specific provision for such ballots being counted by the board of deputy state supervisors, when sections 4983 and 4984 are read together, it must be conclusively inferred that when disputed ballots are transmitted to the board of deputy state supervisors with the information that such disputed ballots have not been counted, or, if counted, only in part, that it shall be the duty of the board of deputy state supervisors to complete the count. No provision having been made in section 4983 for the determination of undisputed ballots, |