formance by him of his duties as director of public safety, but not conditioned upon the faithful performance by him of his duties as "special officer." for taking them, yet he is responsible to third persons. because such taking was a breach of his official duty." The Supreme Court of the United States in that case held that the weight of authority supported a liability of the bondsman upon a bond for the faithful performance of official duty, to include acts wrongfully done colore officii as well as virtute officii. In the case of Mace v. Gaddis, supra, the Supreme Court of the territory of Washington, in the syllabus, held: "The sureties are liable when neither the writ nor the office gave any right to commit the trespass." And in the opinion Mr. Justice Langford stated: The case of State v. Medary, 17 Ohio, 554, in principle is like the case of State ex rel. v. Griffith, supra. One Bates was appointed a member of the board of public works, and as such gave bond. After having become a member of the board of public works, by virtue of the statutes as then existing he was eligible to election as an acting commissioner of that board, the board being authorized to elect several acting commissioners from among their number, less however than the whole number of the board. As acting commissioner, Bates received certain moneys for which he did not account. As a member of the board of public works action was begun against his bondsmen, and the court there held that the moneys he received as acting commissioner were not received by him as a member of the board of public works, he being authorized as acting commissioner, and not as a member of the board of public works to receive such money, and, therefore, that the bondsmen were not liable. This, too, would be an authority for exonerating the bondsmen for any act of Campbell's as "special officer," but these cases are not in consistent with Ohio ex rel. Story v. Jennings, supra, and Drolesbaugh v. Hill, supra. This court has not overruled either decision. A logical interpretation of those cases makes the letter of a bond for the faithful perform-where there is not a color of right. We can ance run to the benefit of all persons for any injury unlawfuly caused by an official either virtute officii or colore officii. In the case of Lammon v. Feusier, supra, the Supreme Court of the United States, speaking through Mr. Justice Gray, said, at page 19 (4 S. Ct. 286): "But the remedy of a person, whose property is wrongfully taken by the marshal in officially executing his writ, is not limited to an action against him personally. His official bond is not made to the person in whose behalf the writ is issued, nor to any other individual, but to the government, for the indemnity of all persons injured by the official misconduct of himself or his deputies." The opinion of Chief Justice Thurman, in the case of Ohio ex rel. Story, v. Jennings, supra, is quoted with approval therein practically in toto. The learned justice also quotes with approval from the opinion of Chief Justice Shaw in City of Lowell v. Parker, 10 Metc. (Mass.) 309, 43 Am. Dec. 436, wherein it was said: "It has been held in several cases that when his said acts are a pure trespass ab initio, such a sheriff acts so far beyond his authority that acts are not done from the color of his office, hence, that his bondsmen are not liable for the trespass. The weight of authority is the other way; and to the effect that acts which are entirely unauthorized by the office, and the writ as a levy made upon property exempt from levy, and a levy upon the property of a stranger to the writ, made the bondsmen liable. It has been held by a large number of authorities, and the Supreme Court of the United States among them, that the bondsmen are liable for such acts as these, where neither the writ nor the office gave any right whatever to commit the trespass. The courts do not clearly define what other acts than the above are such as are done by the color of office, but these decisions do show that the color of office exists * see no reason for this rule, except it be that for an officer to pretend he has a right to commit an act because his writ and his office give him the right is color of office. His official position gives him an advantage over private persons, and it being a breach of his official duty to use this advantage, his bondsmen are liable therefor." In the case of Hall v. Tierney, supra, it is stated in the syllabus: "The object of an official bond is to obtain indemnity against the misuse of an official position for wrong purposes; and that which is done under color of office, and which would obtain no credit except for its appearing to be a regular official act, is within the protection of the bond, and must be made good by those who signed it." In the case of Lee, Sheriff, v. Charmley, supra, it is stated in the syllabus: "(1) The sureties upon the official bond of a deputy sheriff, who undertake that he shall faithfully and impartially discharge the duties of his office, are liable for any unlawful or oppressive act done by such officer, under color or by virtue of his office. "He was an officer, had authority to attach goods on mesne process, on a suitable writ, professed to have such process, and thereupon "(2) The purpose of an official bond is to took the plaintiff's goods; that is, the goods of provide indemnity against malfeasance and misBean for whose use and benefit this action is behavior in public office, the misuse of powers brought, and who, therefore, may be called the belonging to the office, and the assumption unplaintiff. He therefore took the goods colore der guise of official action of powers not beofficii, and though he had no sufficient warrant | longing to it. All acts so performed, though of its conditions. (146 N.E.) "(3) A deputy sheriff who, falsely claiming to have a warrant for the arrest of a person not formally charged with crime of any kind, goes to his house in the nighttime and, under guise of the authority of his office, arrests and takes such person into custody, has committed an unauthorized and unlawful act under color of his office, for which the sureties upon his official bond are liable in a proper action." unlawful or wrongful, are official acts within We have no patience with any theory the meaning of an undertaking that an officer which would permit each separate case of a shall faithfully and impartially discharge the class which may be determined by the same duties of his office; and as such may be reasonably considered to have been within the contem-general principles to become sui generis, for plation of the sureties, at the time they entered the reason that the doctrine of sui generis into the undertaking, as constituting a breach tends to supplant the fundamental principle that rights and liabilities are such by law rather than by the conscience of the particular tribunal who may be called upon to determine them; nor can we follow the logic of those cases that distinguish between wrongful acts perpetrated by an officer colore officii, who having a writ executes it against a person whom the writ does not designate, and wrongful acts perpetrated by an officer, who, colore officii, without a writ, commits a wrongful act to the injury of another, for it is the colore officii which enables him to commit such act. The wrongful act in each case being an excess of power, the character of the excess is not significant if done under color of the office and injury results therefrom. A majority of this court are of opinion that when a court once reaches the conclusion that the sureties are liable on a bond for the faithful performance of the duties of their principal for any wrongful act done colore officii, that any distinction between various wrongful acts done colore officii is artificial and illogical. In the instant case the wrongful acts done would have been wrongful had they been perpetrated in the city of Cambridge, and since the jury found they were perpetrated colore officii, it makes no difference where they were committed. We, therefore, do not determine the territorial jurisdiction of the mayor and safety director in enforcement of the Crabbe Act (General Code, § 6212-13 et seq.). vert after the shooting of the plaintiff, a part of which went in without objection and a part under objection. Evidence of admission was competent as against the parties making the admission, and it would have been error for the court to have wholly excluded it. It was incompetent as against the surety companies. If, for certain wrongful acts done by an official to the injury of another, such wrong ful acts being perpetrated by the official as such, in contradistinction to acts done by him in any and every other capacity, a liability attaches to his bondsmen, it would seem that for every wrongful act done by him to the injury of another, perpetrated in his official capacity as distinguished from his individual capacity, there should be a It is urged here as a ground of reversal liability of his bondsmen; it would seem that, to the prejudice of the surety compathat if a bond conditioned for the faithful nies, evidence was permitted to be introducperformance of the duties of his office is vio-ed of admissions made by Campbell and Callated by his "seizure of the goods of A, under color of process against B," as declared in Ohio ex rel. Story v. Jennings, supra, and a bond conditioned for the faithful performance of the duties of this office is violated by an officer "where under color of his office in making an arrest with or without warrant, and without probable cause, he uses more force and violence than is necessary," as held in Drolesbaugh v. Hill, supra, that the same reasoning which required the holding in those cases would require the holding that the bondsmen of an official upon a bond conditioned for the faithful performance of the duties of his office obligate themselves, not only that the official will faithfully perform the duties which his office imposes upon him to perform, but also that he will not under color of his office exceed the powers which the office confers upon him; that if it obligates the bondsmen to respond in damages for injuries caused by the official exceeding the powers which the office confers upon him in certain situations, it must necessarily obligate them to respond in damages for injuries caused by his exceeding the powers which the office confers upon him in every case where the injury is perpetrated under color of the office, and injury results there- ted to the jury before argument in requests from. The court in his charge before argument gave special charge No. 3: "No admissions made by Campbell or Calvert in the amended petition, if you find that they after the commission of the acts complained of or either of them made such admissions, can bind the defendant surety companies or either of them." The court could not have done more, except to have cautioned the jury at the time the evidence was introduced that it could not bind the surety companies. We think that any error in that respect was cured by the charge before argument. The question whether Campbell at the time of the assault and injury was acting under color of his office as safety director, or whether he was acting under color of his office as "special officer," was fairly submit 3, 6, and 7. On pages 205, 206, and 207 of the 146 N.E.-6 necessary finding of the general verdict against the sureties that the acts complained of were done under color of office. While his action in that respect was novel, we are unable to see wherein the sureties were prejudiced thereby. printed record, evidence was introduced, sureties, and rendered a judgment which was tending to prove that the acts done by Camp- in accordance with the pleadings and the bell were done under color of his office as safety director, and evidence was introduced tending to prove the contrary. Under the instructions given before argument, and in the general charge, the jury were fully advised that unless the acts done were done under color of his office as safety director, a verdict could not be returned against his bondsmen. The jury having returned a general verdict against all of the defendants, it necessarily follows that they found that the acts of Campbell and Calvert were done under color of their respective offices as mayor and safety director. The liability of each of the surety companies was limited to the sums stipulated in the respective bonds which they had signed, and they were each entitled to have the jury so instructed. No such instruction was given, and it is assigned here by each of them as error prejudicial. Had a judgment been entered against them for the full amount of the verdict it would have been prejudicial. If the court is without power to enter the judgment which it did enter, to wit, against the American Guaranty Company in the sum of $2,000, and against the American Surety Company in the sum of $1,000, then the entry of such judgment was error. It will hardly be contended that the trial court was without power to require the jury to find in the form of a special verdict whether the acts of Campbell and Calvert complained of in plaintiff's petition were perpetrated under color of their respective offices; nor will it be contended that had he required such a special verdict as to the sureties on the bonds, and the jury had returned a special verdict finding that the acts of their principals were done under color of their respective offices, and had returned such a general verdict against their principals as it did return, that the court would have been without power to render the judgment it did render. The bonds are set out in extenso in the petition. The execution of the bonds and all the terms thereof, including the sums for which they obligated themselves, were admitted by the answers of the sureties on the bonds. As affecting these sureties, there was no issue in this case, except the issue whether the acts complained of were perpetrated under color of the respective offices, for the faithful performance of which they had given bond, and, if so, whether the damages equalled or exceeded the sums named in the bonds. These questions were fairly presented to the jury, and it by its general verdict against all of the defendants, answered them in the affirmative. The trial court treated that verdict as a special verdict in so far as it affected the The judgment is affirmed. JONES, MATTHIAS, DAY, and ALLEN, JJ., concur. STATE ex rel. TENNANT FINANCE COR. (Supreme Court of Ohio. Dec. 23, 1924. Re- (Syllabus by the Court.) Intoxicating liquors 255-Seized automobile not returnable to chattel mortgagee as "owner" on execution of proper bond. Under section 6212-43, General Code (109 O. L. 95), where an officer of the law has taken possession of an automobile, "the said vehicle or conveyance shall be returned to the owner upon execution by him of a good and valid bond with sufficient sureties, in a sum equal to the value of the property, which said bond shall be approved by said officer and shall be conditioned to return said property to the custody of said officer on the day of trial to abide by the judgment of the court." A chattel mortgagee of such automobile, although default in payment of an installment upon the chattel mortgage has taken place before seizure of the automobile by the officer of the law, is not an "owner" within the purview of above section. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Owner.] Original mandamus proceeding by the State of Ohio, on the relation of the Tennant Finance Corporation, against Carl Davis, Mayor of the village of Arlington, and others. Demurrer to amended answer overruled.-[By Editorial Staff.] The facts are as stated in the opinion. Pugh & Pugh and Raymond H. Roberts, all of Columbus, for relator. A. G. Fuller, of Findlay, for defendants. ALLEN, J. This is an original action in mandamus brought by the relator, praying for a peremptory writ of mandamus to compel the defendants Carl Davis, mayor, and Leonard Snyder, marshal, of the village of Arlington, to deliver to the relator an automobile in possession of the said mayor and marshal. The automobile was taken by the said defendants on August 5, 1924, under (146 N.E.) section 6212-43, General Code (109 O. L. [nant Finance Corporation has made no at95), which provides that a police officer who tempt in any manner to intervene in the mayarrests a person upon the charge of violat- or's court to set up its lien under its morting the liquor laws may take into custody gage for the purpose of having its lien transany vehicle or conveyance in which intoxi-ferred to the proceeds of the sale of the autocating liquors are being at the time trans- mobile. ported contrary to law. Under that section of the statute such vehicle or conveyance is required to be returned to the owner upon tender of a bond which complies with the provisions of section 6212-43. The petition alleges execution of such a bond in compliance with the statutes, and the refusal of the mayor and marshal to deliver the car to the relator. The petition further alleges that the relator is the owner of the automobile by virtue of the provisions of a duly executed and filed chattel mortgage thereupon; that such mortgage was originally given to the dealers in the said automobile by one Joseph R. Piccione; that the mortgage was purchased by the relator in good faith and for value, and assigned to relator by the said dealers in the usual course of business; and that at the time the automobile was taken into custody of the defendants the mortgagor was in default for cne installment upon the same and the relator had declared the conditions thereof broken. The answer alleges that the defendants claim to be officers of law duly empowered and having jurisdiction to act upon all matters coming within the purview of section 6212-43, General Code of Ohio; that on or about the 5th day of August, 1924, the defendants seized the automobile, which was then being used in the illegal traffic of intoxicating liquor within their jurisdiction; that no person was apprehended or arrested as being in charge of said automobile at the time it was seized; but that a warrant has been served upon one Joseph R. Piccione, the owner of the automobile, who is at the present time incarcerated in the penitentiary under conviction of a murder charge, so that it has been impossible to produce him before the said mayor's court for trial. The answer further shows that no person has as yet been convicted as being in charge of the vehicle at the time it was taken in custody. Defendants later filed an amendment to the answer, in which they admit that the relator upon August 5, 1924, was the legal holder of a valid chattel mortgage duly filed for record upon the automobile in question, and that at the time the said automobile was seized the conditions of the said mortgage had been broken. The relator demurred to the answer and its amendment. Under the demurrer, the primary question in the case is whether relator is the owner of the automobile within the meaning of section 6212-43, General Code. This section of the statute in its pertinent portions reads as follows: * or "When the commissioner of prohibition, his deputy inspectors, or any officer of the law, shall discover any person in the act of transporting in violation of law, intoxicating liq* automobile, * * uors in any other vehicle, it shall be his duty to seize any and all intoxicating liquors found therein being transported contrary to law. Whenever intoxicating liquors transported or possessed illegally shall be seized by an officer named herein, he shall take possession of the * 串 率 automobile, ** * and shall arrest any person in charge thereof. Such officer shall at once proceed against the person arrested under the law of the state prohibiting the liquor traffic, in any court having jurisdiction under such law, but the said vehicle or conveyance shall be returned to the owner upon execution by him of a good and valid bond with sufficient sureties, in a sum equal to the value of the property, which said bond shall be approved by said officer and shall be conditioned to return said property to the custody of said officer on the day of trial to abide conviction of the person so arrested shall orby the judgment of the court. The court upon der the liquor destroyed, and unless good cause to the contrary is shown by the owner, shall order a sale by public auction of the property seized, and the officer making the sale, after deducting the expenses of keeping the property, the fee for the seizure, and the cost of the sale, shall pay all liens, according to their priorities, which are established, by intervention or otherwise at said hearing or in other bona fide and as having been created without proceeding brought for said purpose, as being the lienor having any notice that the carrying vehicle was being used or was to be used for illegal transportation of liquor, and shali distribute the balance as is distributed money arising from fines and forfeited bonds un der the law of the state prohibiting the liquor traffic. All liens against property sold under the provisions of this section shall be transferred from the property to the proceeds of the sale of the property." The answer further alleges that the said Joseph R. Piccione kept and owned the automobile for the express purpose of the illegal transportation of intoxicating liquor in the state of Ohio, contrary to the law of the state, and that the driver of the automobile used the said machine with Piccione's permission and consent and was so using it for the unlawful transportation of intoxicating liquor at the time of the seizure thereof. Defendants further state that the said owner, Joseph R. Piccione, has at no time or in any manner sought to effect the re- The relator grounds his proposition upon turn of the machine from the custody of the a statement made in the opinion in Metrodefendants, and that the plaintiff the Ten-politan Securities Co. v. Orlow, 107 Ohio St. 583, at page 587, 140 N. E. 306, 32 A. L. R. 992, in which the court, citing Robinson v. Fitch, 26 Ohio St. 659, states that "the 'interest of a mortgagee under a chattel mort gage is that of a general owner of the property mortgaged.'" 2. Carriers 8-Affidavit held prima facie evidence of facts alleged, and if facts uncontroverted Commission may issue certificate thereon. General Code, is prima facie evidence of the facts alleged therein. If the material facts set The affidavit required under section 614-87, forth in such affidavit are not controverted the Public Utilities Commission, without further inquiry, may find such facts to be true, and thereupon issue a certificate of public convenience and necessity. 3. Carriers 2-Act requiring issuance of certificate to parties operating busses at time of filing act with secretary of state held valid. We are of opinion that this holding does not apply to the instant case. The statute under which this action arises makes particular provision for the payment of liens. It says that the court upon conviction of the person so arrested shall pay all liens according to their priorities. A further provision is that all liens against property sold under the provision of this section shall be transferred from the property to the proceeds of the sale of the property. Bouvier's Law Diction-requiring the Commission to issue a certificate ary defines a "lien" as "a hold or claim which one person has upon the property of another as a security for some debt or charge." And this is the general definition of lien. Within this definition, there can be no argument upon the proposition that a chattel mortgage does constitute a lien. A chattel mortgage creates a specific lien by express contract. Since the statute makes special provision to pay all liens out of the proceeds of the sale of the car, we see no reason for holding that a chattel mortgage lien is not one of those so intended to be cared for. The mortgagee, hence, within the purview of this statute, is not the owner, and the demurrer to the amended answer must be overruled. That part of section 614-87, General Code, of public convenience and necessity to bus operators who were in good faith operating on the date of the filing of the act with the secretary of state, is a valid and constitutional enactment. Error to Public Utilities Commission. The Anderson Ferry Transit Line was granted certificate of public convenience and necessity by the Public Utilities Commission of Ohio, who overruled complaint of the Cincinnati Traction Company's protesting against granting of certificate, and protestant brings error. Order affirmed.-[By Editorial Staff.] This case comes into this court upon er Demurrer to amended answer overruled. ror proceedings directed against an order MARSHALL, C. J., and ROBINSON, JONES, MATTHIAS, DAY, and CONN, JJ., concur. of the Public Utilities Commission, under which the Commission issued a certificate to the Anderson Ferry Transit Line permitting it to operate a bus line from Anderson Ferry to the city of Cincinnati. The record shows that on the 15th day of September, 1923, the Commission received an affidavit, signed by Oscar B. De La Croix, owner and manager of the Anderson Ferry Transit Line, declaring that on April 28, 1923, his said company was operating in good faith (Supreme Court of Ohio. Dec. 9, 1924. Re- over a regular route and between fixed terhearing Denied Jan. 6, 1925.) CINCINNATI TRACTION CO. v. PUBLIC (Syllabus by the Court.) 1. Carriers 8-Denial of rehearing by Public Utilities Commission without taking evidence held not unreasonable. The Public Utilities Commission issued a certificate of public convenience and necessity to a motor bus operator under section 614-87, General Code (110 O. L. 215). Thereafter a rival common carrier filed a complaint, alleging that misstatements had been made in the affidavit of the motor bus operator upon which the certificate was based, but not controverting any of the material statements set forth in the affidavit. Held, that the action of the Public Utilities Commission in overruling such complaint and denying a rehearing, without taking evidence upon the question of fact raised in the complaint, was not unreasonable, arbitrary and unlawful. mini, setting forth the schedules of the company, a map of its route, its liability insurance policies, and requesting the issuance of sions of section 614-87, General Code (110 a certificate in accordance with the provi0. L. 215). The record also shows that on the 9th day of April, 1924, the Public Utilities Commission made a finding in re the application and affidavit of the defendant bus company, that "the Commission, being fully advised, find the statement in said affidavit to be true," and in accordance with this finding issued an order that a certificate of public convenience and necessity be granted to the Anderson Ferry Transit Line. Upon the same day the plaintiff in error orally objected to the granting of the certificate, and, without setting up positive |