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Here there was no reference to constitutional, by-laws or rules; but the effort to introduce them was made in order to show misrepresentation in the application, which was referred to, and was not set out in or attached to the certificate. The ruling that the testimony was inadmissible, therefore, was right. Boyden v. Masonic Life Ass'n, 167 Mass. 242, 45 N. E. 735; Nugent v. Greenfield Life Ass'n, 172 Mass. 278, 52 N. E. 440.

ed by St. 1890, c. 341; and, as stated in Crowley v. A. O. H. Widows' and Orphans' Fund, 222 Mass. 228, 110 N. E. 276, was and since has been, a fraternal beneficiary life insurance association. At the date of this certificate, however, it was not precluded thereby from entering into contracts of assessment insurance. St. 1890, c. 341, § 9; St. 1890, c. 421, § 1; St. 1892, c. 435, § 1; St. 1894, c. 367, § 16. The certificate differs from that concerned in Crowley v. A. O. H. St. 1895, c. 281, provided that no misrepWidows' and Orphans' Fund, supra, or any resentation or warranty made by the assured other fraternal beneficiary case which we or in his behalf in the application for the find in our reports. It contains no agree-certificate or the negotiation of the contract ment to observe and comply with any oth- should defeat or avoid the certificate iser than "the conditions, requirements and sued by a fraternal beneficiary association, stipulations specified in this certificate." Nothing is said of constitution or by-laws. Carpenter promises to pay "when an assessment is required." The language is more consonant with assessment than with fraternal beneficiary insurance. The judge was right in holding it a contract of assessment insurance. Harding v. Littlehale, 150 Mass. 100, 22 N. E. 703; St. 1890, c. 421, § 1.

[2] Section 21 of St. 1890, c. 421, provides with reference to assessment insurance, that unless a correct copy of the application, constitution, by-laws of rules, if referred to in the certificate as having any bearing on the contract, is contained in or attached to the certificate, no such application, constitution, by-laws or rules shall be received as evidence, nor shall it be considered a part of the policy or of the contract.

unless it increased the risk of loss; but no implication therefrom can defeat the explicit prohibitions of St. 1890, c. 421, § 21-prohibitions continued in force by G. L. c. 177, § 15. They can stand together. Stocker v. Boston Mutual Life Ass'n, 170 Mass. 224, 49 N. E. 116.

unless made with actual intent to deceive or

It is not necessary to consider whether it was a fatal defect here for the defendant to fail to make an express offer to prove that the John Carpenter named in the Lowell birth record was the assured John J. Carpenter, who died at Lawrence. The evidence of age at the time of application and of the issue of the certificate was wholly immaterial.

Exceptions overruled.

(146 N.E.)

offenses were committed within the limits STATE ex rel. NEAD v. NOLTE, MAYOR. of the city of Norwood, or outside of the

(No. 18551.)

(Supreme Court of Ohio. Dec. 16, 1924.)

(Syllabus by the Court.)

1. Mandamus 100-Proper, to determine controversy between mayor and municipality as to right to certain fees collected; only construction of statute being involved.

Where there is a controversy between a municipality and the mayor thereof over the title to certain fees collected by the mayor, it being admitted by the mayor that the fees were collected and retained by him, and it being admitted by the municipality that the identical fees so collected and retained have been kept intact, and no other issue of fact being made, mandamus at the suit of the city against the mayor to order the payment of said moneys into the city treasury is an appropriate remedy. 2. Abatement and revival 5-Suit in mandamus by taxpayer to compel mayor to pay fees into city treasury held maintainable, notwithstanding pending action at law by city solicitor against mayor to collect them.

Where a suit is brought by a city on the relation of its solicitor, to recover a judgment against the mayor thereof, and subsequently thereto a taxpayer makes written request upon the city solicitor to bring an action in mandamus against the mayor to compel the payment of the identical moneys for which judgment is sought in the former action, and the city solicitor refuses to bring such mandamus suit, and the taxpayer thereupon brings suit in mandamus upon his own relation, and the mayor files no answer in the action at law, but joins issue in the action in mandamus, in which he pleads as a defense the pendency of the action at law, the special plea of abatement should be overruled.

3. Municipal corporations 162 (3)-Mayor not required to pay fees in state cases into city treasury.

Section 4270, General Code, as amended (108 O. L. pt. 2, p. 1208), imposes no duty upon the mayor of a municipality to pay into the city treasury the fees taxed in favor of such mayor in the hearing of state cases.

Conn, J., dissenting.

Error to Court of Appeals, Hamilton County.

Mandamus by the State of Ohio, on the relation of Charles E. Nead, taxpayer, against Louis H. Nolte, Mayor of Norwood. Judgment for relator was reversed by the Court of Appeals, and relator brings error. Affirmed.-[By Editorial Staff.]

city, and within the limits of Hamilton county. It is presumed that some of them were committed within the city and others outside of the city within the county. Before beginning the action, the taxpayer, under date of September 24, 1923, made written request, under section 4314, General Code, upon the city solicitor to institute a proceeding in mandamus, which request was refused. On September 10, 1923, the taxpayer had made a previous written request upon the city solicitor that an action be brought to recover the money, and for its payment into the city treasury; that letter making no mention of the form of the action. On September 24, 1923, the same date as the second communication of the taxpayer, a suit was begun by the city solicitor, which action was apparently in form an action to recover money on the ground of conversion, pursuant to a report of the state bureau of accounting, stating that the moneys were withheld from the city treasury, but making no "finding for recovery," under the provisions of section 286, General Code. whether the action brought by the city solicitor was brought after the receipt of the letter of September 24, or before its receipt, does not appear. The taxpayer and his attorney were evidently dissatisfied with that form of action, and on the 26th of September filed a suit in mandamus. There being no "finding for recovery" in the report of the bureau of accounting, and the mayor never having made any use of the money, but having retained, either in the iron safe in his office or in a safety deposit box in a Cincinnati bank, the identical moneys collected by him as fees, there was not a technical conversion. The answer makes a de

fense that there is a former suit pending, and for further defense the mayor claims to be entitled to the fees by virtue of the statutes in such case made and provided.

The first suit brought has lain dormant, no answer ever having been filed. The mandamus suit promptly proceeded to trial, was heard before two of the judges of the court of common pleas, and judgment was rendered in favor of the relator. Upon prosecution of error to the Court of Appeals, that judgment was reversed and final judgment entered in favor of the defendant. The cause was thereupon admitted to this court, upon allowance of motion to certify the record.

Allen C. Roudebush, of Cincinnati, for plaintiff in error.

Charles S. Bell, Pros. Atty., and Louis H. Capelle, both of Cincinnati, for defendant in error.

This action originated in the court of common pleas of Hamilton county, Ohio, as a taxpayer's suit, to require the defendant, the mayor of Norwood, to pay into the city treasury certain fees theretofore collected by him in the trial of criminal cases before C. C. Crabbe, Atty. Gen., Chas. M. Earhim for violation of the laws of the state. hart and Arthur H. Wicks, both of ColumThe record does not disclose whether the bus, amici curiæ.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

MARSHALL, C. J. This record presents | moneys and to have them paid into the treasto this court two questions for determina- ury must be predicated upon a claim of contion: First, the right of the taxpayer to version, and any adverse judgment against maintain a proceeding in mandamus; sec- him in an action at law would necessarily ond, the right of the mayor of the city of place upon him the stigma of having conNorwood to retain the statutory fees tax-verted moneys belonging to the city. The ed in his favor in state criminal cases. These questions will be discussed in the order named.

[1, 2] The first of these questions has two branches: (a) Does mandamus lie, or is there an adequate remedy at law? (b) Does the pending suit brought by the city solicitor, which is still pending, abate the suit in mandamus brought by the taxpayer? These questions will also be disposed of in the order named.

The evidence offered and received at the trial contains no dispute upon any point, and a review of this record by this court does not in any sense involve a weighing of evidence. The mayor had kept all fees taxed in his favor separate and distinct from any other moneys, and from time to time had deposited the same in a private box in a Cincinnati bank, under an agreement between the mayor and the bank that the same were held awaiting a determination of the title to the same. That deposit still awaits a final determination of this controversy. This portion of the case therefore turns upon the

proper construction of section 4313, Gen.

Code:

"Sec. 4313. In case an officer or board fails to perform any duty expressly enjoined by law or ordinance, the solicitor shall apply to a court of competent jurisdiction for a writ of mandamus to compel the performance of such duty."

It being sought by mandamus to compel the mayor to pay the moneys held by him into the city treasury, and it being claimed that this is a duty expressly enjoined upon him by statute, and there being practically no dispute about the facts, but to the contrary, the whole controversy relating to a construction of the statutes of Ohio, a clear case is presented for the exercise of equity jurisdiction. Section 12283, Gen. Code, pro

vides:

"Mandamus is a writ issued, in the name of the state, to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station."

The identical moneys collected by the mayor are deposited in a safety deposit box in a bank, and, if the money belongs to the city, he should be ordered to make the payment. This conclusion is in perfect harmony with the decision of this court in the case of State v. Staley, 38 Ohio St. 259.

The mayor should not seriously complain of the action of the courts below on this

present form of action, as instituted, gives him credit for honesty of purpose, and only submits for determination the construction of a statute.

Let us next inquire whether this controversy is abated by the pendency of the suit for the recovery of the money, brought upon the relation of the city solicitor. By virtue of section 11309, General Code, in paragraph 4 thereof, it is provided that it shall be a ground for demurrer to a petition "that there is another action pending between the same parties for the same cause." And, by virtue of section 11311, when such ground of demurrer does not appear on the face of the petition, "the objection may be taken by answer." jection in the instant case did not appear on the face of the petition, but is pleaded in the answer, thereby presenting the question for determination.

The ob

At common law the pendency of another action was ground for abatement, and the Ohio statutes are but declaratory of the common law. Although the statutes above referred to have been a part of our Code of Procedure for a long period of time, very little light has been thrown upon those provisions by the decisions of the Ohio courts. The diligence of counsel has resulted in no citation of authorities. In the case of Spence V. Union Cent. Life Ins. Co., 40 Ohio St. 517, it was decided that the pendency of an action on a promissory note secured by a mortgage, with a prayer that the amount due on the note be found, and for decree of foreclosure and sale, but in which no personal judgment is demanded, is not a bar to another action upon the note against the maker for personal judgment. One of the actions there involved was a suit in equity; the other, one at law. In the absence of interpretation by this court of the Ohio statute, and the statute being declaratory of the common law, it is proper to turn to the decisions of other states on the subject of abatement, on the ground of another suit pending. There is no lack of authority on this subject. It has been decided that a former bill pending in equity cannot be pleaded in abatement of a subsequent action at law: Blanchard v. Stone, 16 Vt. 234; Mattel v. Conant, 156 Mass. 418, 31 N. E. 487; Moore v. Peirce (Va.) 9 S. E. 1008; Williamson, Trustee, v. Paxton, Trustee, 59 Va. (18 Grat.) 475; Joslin v. Millspaugh, 27 Mich. 517; Kittredge v. Race, 92 U. S. 116, 23 L. Ed. 488; Black v. Lackey, 41 Ky. (2 B. Mon.) 257; Julian v. Pilcher, 63 Ky. (2 Duv.) 254;

(146 N.E.)

258; Graham v. Meyer, Fed. Cas. No. 5673, | be questioned. In the last analysis, there4 Blatchf. 129; Gambling v. Haight, 59 N. Y. 354; Hall v. Bennett, 48 N. Y. Super. Ct. 302; Humphries v. Dawson, 38 Ala. 199.

The foregoing cases state the converse of the situation presented in the instant case. There are, however, a number of cases which hold that a former suit at law is not a ground of abatement of a subsequent suit in equity. Way v. Bragaw, 16 N. E. Eq. 213, 84 Am. Dec. 147; Chicago & S. W. R. Co. v. Heard, 44 Iowa, 358; Curd v. Lewis, 31 Ky. (1 Dana) 351; Hatch v. Spofford, 22 Conn. 485, 58 Am. Dec. 433; Langstraat v. Nelson (C. C.) 40 F. 783.

In the case of Julian v. Pilcher, 63 Ky. (2 Duv.) 254, the court, construing sections identical with the Ohio Code sections, held that a suit to foreclose a lien is not an action for the same cause as a suit at law to recover a personal judgment on a note secured by the same lien. The court made the following significant statement:

"The Code did not intend to make a new rule for determining the identity of causes of action, but to enforce the old maxim that no one should be twice vexed for the same cause."

Many of the cases above cited hold that abatement will not be ordered in such cases, but suggest that the trial court might require the plaintiff to elect between the two actions.

fore, this controversy turns upon a proper construction of section 4270, General Code. The provisions pertinent to this inquiry are as follows:

"All fines and forfeitures in ordinance cases

and all fees collected by the mayor, or which in
any manner comes into his hands, due such
mayor or to a marshal, chief of police or other
officer of the municipality and any other fees
and expenses which have been advanced out
of the municipal treasury, and all moneys re-
ceived by such mayor for the use of the munici-
pality, shall be by him paid into the treasury
of the municipality on the first Monday of each
month, provided that the council of a village
may, by ordinance, authorize the mayor and
marshal to retain their legal fees in addition
to their salaries, but in such event a marshal
shall not be entitled to his expenses.
Except as otherwise provided by law, all fines
and forfeitures collected by him in state cases
together with all fees and expenses collected,
which have been advanced out of the county
treasury, shall be by him paid over to the coun-
ty treasury on the first business day of each
month."

Prior to the last amendment, that section (P. & A. Code, § 4270) read as follows:

"All fines and forfeitures collected by the mayor, or which in any manner comes into his hands, and all moneys received by him in his official capacity, other than his fees of office, shall be by him paid into the treasury of the corporation weekly. At the first regular meeting of the council in each and every month, he shall submit a full statement of all such moneys received, from whom and for what purpose reAll fines, penalties, and forfeitures collected by him in state cases shall be by him paid over to the county treasurer monthly."

If, by virtue of section 4314, General Code, the taxpayer has a right to have a suit prosecuted, it follows as a necessary adjunct of that right that he is entitled to have a form of action which will be effective and ade-ceived, and when paid over. quate.

If the principles so uniformly held by other jurisdictions shall be applied to the instant case, the question is not one of difficulty. The question presents even less difficulty, by reason of the fact that the suit which was brought upon the relation of the city solicitor has never been brought to an issue, and, in the meantime, the instant case has been tried and prosecuted to this court. The likelihood that the defendant will ever be troubled or embarrassed by the former suit seems, therefore, too remote to justify this court in dismissing this case upon a question of adjective law.

[3] Having found that this action does not abate by reason of the former suit pending, and having found that mandamus is an appropriate remedy, it only remains to determine whether or not the mayor has a legal right to retain fees taxed in his favor in state cases. Other sections of the Code make provision for taxation of costs in favor of the mayor, who hears and decides minor offenses against the state laws, and who conducts preliminary hearings in felony cases, and except for certain provisions found in section 4270, General Code, as last amended (108 O. L. pt. 2, 1208), his right would not

It will be observed that several changes were made by the amendment, and it will be presumed that the Legislature intended that certain rights and privileges which existed before, should no longer exist after, the amendment. The case is full of difficulty, and has commanded the earnest consideration of the court.

The conclusion which has been reached by the majority is that the section as amended leaves the fees taxed in favor of the mayor in two general classes, to wit, ordinance cases and state cases. The earlier provisions of the section apply only to ordinance cases, and the latter provision only to state cases. Taking up the latter provision first, it will be observed that in state cases it is the duty of the mayor to pay into the county treasury "all fines and forfeitures collected by him together with all fees and expenses collected, which have been advanced out of the county treasury." It requires no elaboration of argument to show that the fees taxed by the mayor are not included within the language quoted. Construing the earlier parts of the section, it

*

section, which makes provision for payment of certain moneys into the county treasury. As to all ordinance cases, the fees taxed in favor of a mayor or marshal must be paid into the village or city treasury. By virtue of the proviso, a village council may by ordinance authorize the mayor or marshal to retain his legal fees. The judgment of the Court of Appeals will therefore be affirmed.

is plain that whatever moneys are describ-| favor; the same not having been included ed therein must be paid into the municipal within the language of the latter part of the treasury. But, if those portions of the section apply only to ordinance cases, and this controversy relates only to state cases, then the relator is clearly not entitled to the relief prayed for. The amendment has left out the phrase "other than his fees of office," but this omission has no controlling significance in the determination of this suit involving fees in state cases, since the earlier portion of the statute applied, prior to the amendment, only to ordinance cases. This amendment has, however, made a change in that respect, and this omission from the statute as formerly existing seems quite harmonious with another clause which was added in the amendment, to wit, "provided that the council of a village may, by ordinance, authorize the mayor and marshal to retain their legal fees in addition to their salaries."

It is, of course, a well-settled rule of interpretation, well expressed by this court in Board of Education of Hancock County v. Boehm, 102 Ohio St. 292, 131 N. E. 812, that: "When an existing statute is repealed, and a new and different statute upon the same subject is enacted, it is presumed that the Legislature intended to change the effect and operation of the law to the extent of the change in the language thereof."

Very important changes were therefore made by the amendment, but they apply only to ordinance cases, and, whereas formerly the mayor was entitled to hold fees in ordinance cases, the matter is now placed as to villages under the entire control of the village council. It will be observed that the word "village" appears in section 4270, and that the word "city" nowhere appears. It will be further observed that the word "village" appears only in that paragraph giving power to the council to authorize the mayor and marshal to retain their legal fees. Section 4270, however, appears in a chapter relating to both cities and villages. The section which was repealed, and which formerly carried the same number, 4270, was not confined to villages, but apparently applied to all municipalities, and, if the general provisions of the section as amended, other than the proviso, should not be construed as applying to all municipalities, there would be no legislation whatever upon that subject pertaining to cities.

The conclusions we have reached are in harmony with the decision of City of Portsmouth v. Milstead, 8 Ohio Cir. Ct. R. (N. S.) 114, affirmed by this court without report 76 Ohio St. 597, 81 N. E. 1182.

The true interpretation of section 4270, General Code, is, therefore, that in all state cases the mayor of a city or village is entitled to hold the legal fees taxed in his

Judgment affirmed.

ROBINSON, MATTHIAS, DAY, and ALLEN, JJ., concur.

CONN, J., dissents.

W. W. LAWRENCE & CO. v. KERN. (No. 18403.)

(Supreme Court of Ohio. Dec. 23, 1924.)

(Syllabus by the Court.)

Trial 296 (2)-Reading inapplicable statute to jury held without prejudicial error, in view of caution thereon.

In its general charge the trial court read a paragraph of a statute inapplicable to the issue made by the pleadings. Its attention being called to that fact, it read and specifically called the jury's attention to another paragraph of the same statute, which did apply, and cautioned the jury that the latter paragraph was the "part of our law that applied to this case." The court thereupon correctly charged the jury as to the application of the latter paragraph to the issues pleaded. Held, there was no prejudicial error.

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Plaintiff in error sued Kern in the common pleas court on an account for paint sold and delivered, amounting to the sum of $648.23. The defendant answered, admitting the amount due on the account, subject to a cross-demand, which defendant set up in his answer. This cross-petition alleged that the defendant Kern purchased the paint for the purpose of painting two dwelling houses, and that it was so used; that at the time of the purchase the defendant made known to plaintiff the purpose for which the goods were to be used, and relied on the plaintiff's skill and judgment to provide paint reasonably fit for that purpose; that the paint furnished

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