Vol. VII.

Superior Court of Cincinnati.

with by the answer. The language of the statute is certainly broad enough to cover the case of stolen goods shipped by the thief in his own name and advanced upon in good faith by an innocent consignee, but in construing statutes it is not safe, in all cases, to be governed by the language alone of any part by itself. The evil sought to be remedied and the language of other parts of the statute must be considered, and these, sometimes, show a much narrower construction to be the true one than that at first apparent. Text must often give way to subject-matter and context: Burgett v. Burgett, 1 O., 480. Moreover, when a statute has been adopted from the laws of another state, the construction given it by the courts of that state is presumed to have been adopted also: People v. Coleman, 4 Cal., 46; Att'y Gen'l v. Brunst, 3 Wis., 787; Leavenworth Co. v. Miller. 7 Ks., 479.

The act in question was copied verbatim from the New York statute of April 16, 1830, and that, in turn, is substantially the English statute of 6 Geo. IV., c. 94. These statutes are known in the books as the Factors Acts." Being in derogation of the common law, courts seemed to have always looked upon them with disfavor and to have given them a strict construction: 1 Am. Leading Cases, H. & W.'s Notes, 678.

Why our general assembly did not adopt the title as well as the language of the New York act it is difficult to perceive, as that was much more appropriate than ours. It was "An act relating to the prac

tices of agents and factors." It is evident, however, that the same object was in mind here as there. That object, as stated in Cartwright v. Wilmerding, 24 N. Y., 526, and Stevens v. Wilson, 6 Hill, 512, was to ratify and make certain, in the cases to which it relates, the common law rule that *where one of two innocent persons must suffer 610 through the act of a third, it shall be he who, by confiding in such third person, made the injury possible. This is very clear as to section 3, which provides that every agent or factor intrusted with the possession of goods, or of the documentary evidence of title to them, for purposes of sale, shall be deemed the true owner so far as necessary to protect the rights of persons dealing with them in ignorance that they are only agents. This section, as well as the first, has been relied upon by counsel for defendant, but does not apply, because, while it is alleged that Hunt was plaintiff's agent, it is not alleged that he was intrusted with the goods for the purposes of sale.

It is to be regretted that the language of the first section is not so explicit as that of the third, and that, unlike the latter, it has never received direct judicial construction. In Covill v. Hill, 4 Denio, 324, Bronson, C. J., declared that the first section was not intended to apply to the case of stolen goods, but only to shipments by agents intrusted with the goods by the owner. That opinion was not called for in that case, but it is entitled to great weight as the opinion of an eminent judge, and is clearly consonant with the other parts and general object of the act. This court is not prepared to hold, merely because the language is broad enough, that the general assembly intended to overthrow one of the fundamental laws of property; that no one can be deprived of his property without his consent, or to provide a way for thieves to perfect a title to their plunder. A perfect analogy to this restrictive construction is found in the construction given to the mechanic's lien law, which provides that any person furnishing labor, etc., shall be entitled to a lien,

etc. It is settled, however, that this language applies only to the immemediate creditors: Stephens v. U. R. R. S. Y. Co., 29 O. S., 227.

Demurrer sustained.

L. Maxwell, for the demurrer.

P. H. Kumler, contra.

*SUBROGATION.

[Pickaway County Common Pleas Court.]

DAVID B. Wagner et. al. v. EDWARD M. OLDS.

611

Held: A surety who has paid the debt of his principal, and has a claim against his co-sureties for contribution, may be subrogated to the rights of the judgment creditor against his co-sureties.

COURTRIGHT, J.

The petition alleges that at the February term, A. D. 1878, of this court, the defendant obtained a judgment against the plaintiffs, one Nancy M. Reinck and D. J. Crouse, in the sum of $1,061.93 and costs of suit; that an execution was issued to the sheriff of Ross county, who levied the same on certain personalty described; that Crouse paid the judgment in full to the defendant, and the writ was returned. That the plaintiffs were the sureties of said Crouse; that the judgment having been paid, it should be entered satisfied. That the defendant has caused an execution to be issued directed to the sheriff of this county, and that the sheriff is threatening to levy said execution upon plaintiff's property, and that said Nancy M. Reinck has no property out of which any part of the judgment can be realized. Upon application of the plaintiffs, a temporary restraining order was allowed.

The defendant answering admits that Crouse has paid him the amount of the judgment on execution, but that Crouse claimed to be a co-surety with the plaintiffs of said Nancy M. Reinck, and that at the time he (Crouse) paid the said judgment, he demanded of the defendant an assignment and transfer of said judgment, which was made, and that Crouse holds said assignment to enable him to collect two-thirds of said judgment and costs from the plaintiffs, as such co-sureties. He denies that he caused the execution to be issued against the plaintiffs, but the same was issued under the directions of Crouse, in order to compel the plaintiffs to contribute the said two-thirds of said judgment and costs, and that he has no interest in this controversy and ought not to be subjected to any costs, and that Crouse is a necessary party defendant to the action. It is further averred, that at the time of the commencement of this action the plaintiffs had full knowledge of all of these facts.

612

To this answer the plaintiffs interposed a general demurrer, and the question presented by the demurrer is, can a surety who has paid the debt of his principal, and has a claim against his co-sureties for contribution, be subrogated to the rights of the judgment creditor as against his co-sureties?

It is well settled that a surety may be subrogated to the rights of

This doctrine no longer

the judgment creditor against his principal. admits of a doubt in this state; it has been settled by a long line of decisions, and recently by legislative enactment.

new and novel made in any of

But the question presented by the case at bar is a one, and, so far as we are able to learn, has never been the courts in this state. We are then, of necessity, obliged to look elsewhere, and learn, if we can, what rule should prevail.

Chief Justice Marshall, in the case of Lidderdale v. Robinson, 2 Brockenbrough 159, said:

"When a person has paid money for which others are responsible, the equitable claim which such payment gives him on those who were so responsible, shall be clothed with the legal garb with which the contract he has discharged was invested, and he shall be substituted, to every equitable intent and purpose, in the place of the creditor whose claim he has discharged. This principle of substitution is completely established in the books, and being established, it must apply to all persons who are parties to the security, so far as is equitable. The cases suppose the surety to stand in the place of the creditor, as completely as if the instrument had been transferred to him, or to a trustee for his use. Under this supposition, he would be at full liberty to proceed against every person bound by the instrument. Equity would undoubtedly restrain him from obtaining more from any individual than the just proportion of that individual; but to that extent his claim upon his co-surety is precisely as valid as upon his principal." See also Hess' Estate 69, Pa. State. 272, Howell v. Reams 73, Nor. Car. 391.

A surety who pays his principal's debt is entitled to be subrogated to all the rights and remedies of the creditor against his *co-surety 613 in the same manner as against the principal. Wright v. Grover & Baker S. M. Co. 82, Pa. St. 80.

We see no reason why the rule just stated should not be adopted. The right to substitution is the important thing. Why require the paying surety to resort to an independent action to enforce contribution, when it may be done in the same action, thereby preventing a multiplicity of suits and additional costs? Certainly the court would interfere and prevent the party from receiving any greater sum than the contributive share of his co-surety.

While there may be some doubt as to the soundness of this doctrine, yet we are of opinion that it should prevail. The demurrer will, therefore, be overruled.

Smith & Morris, for plaintiffs.

Page & Abernethy, for defendants.

52 CONSTITUTIONAL LAW-BOARDS OF CONTROL.

[Hamilton County District Court, 1879.]

Burnet, Avery and Cox, JJ.

STATE OF OHIO, EX REL. V. Brown, et al.

1. The act of March 13, 1872, “to establish boards of control and to prescribe their duties," does not violate Art. X., sec. 2, of the constitution, in requir

State of Ohio ex rel. v. Brown et al.

Vol. VII.

ing the members of the board to be elected at the annual April election instead of at the October election.

2. The act does not confer corporate powers, and, therefore, does not contravene Sec. 1 of Art.. XIII., of the constitution, which prohibits the passage of any special act conferring corporate powers.

3. It is not a law of a "general nature." Neither is the act establishing Boards of County Commissioners and prescribing their duties, a law of a "general nature," within the meaning of the constitution, although it is a general law, applicable throughout the state. Therefore, the act to establish Boards of Control, which is a special act, and operates as a limitation, in Hamilton County, upon the powers of the commissioners, is not for that reason unconstitutional.

Quo warranto. On demurrer to petition.

BURNET, J.

It is alleged that the defendants are illegallly exercising the functions of the office of members of the Board of Control of Hamilton county, and in support of the allegation it is claimed that the law under which they are acting is a violation of three several divisions of the constitution of the state, viz.: Article X., section 2; Article XIII., sec

tion 1; and Article II., section 26.

The act nominally "to establish Boards of Control, and to prescribe their duties," but in effect to establish a Board of Control in Hamilton county (69 O. L., 40) was passed March 13, 1872. It was afterward amended in some particulars, but not so as to affect materially the questions presented in this cause. *It provides "that in each county in this 653 state containing a city of the first class, having a population exceeding one hundred and eighty thousand, there shall be, in addition to the Board of County Commissioners, a Board of Control, to consist of five members, who shall be elected at the annual election in April, by the qualified electors of any county in which, by the provisions of this act, a Board of Control is established, and they shall hold their office for three years, and until their successors are elected and qualified."

Section 7 provides: "The Board of Control shall have final action and jurisdiction on all matters involving the expenditure of money. or the awarding of contracts, or the assessing and levying of taxes, by the said Board of County Commissioners; every contrac shall be awarded to the lowest responsible bidder, on his giving sufficient security for his performance of the same; provided that the said Board of Control may reject all bids."

Section 8: "No contract or release made, or liability incurred, nor any appropriation or allowance, nor taxes levied or assessed by the Board of County Commissioners, shall be valid and binding unless a majority of all the members of said Board of Control present shall vote in favor thereof; and no contract or release made, or liability incurred, or appropriation or allowance made, which involves an expenditure of money to the amount of one hundred dollars or more, nor taxes levied or assessed, shall be approved by said Board of Control until the next meeting, after such matter or things come before said board, unless a majority of all the members shall vote for the same."

The effect of the law, in reference to those subjects embraced in its provisions, is to give to the Board of Control an absolute veto upon the acts of the County Commissioners; whereas, in the other counties of the state, the authority of the commissioners, in regard to those matters, is uncontrolled and absolute.

It is claimed, in the first place, that the act is unconstitutional, in requiring the election to take place at the annual April election.

654

Article X., sec. 2, of the constitution, provides that county officers shall be elected on the second Tuesday of October, until *otherwise directed by law, by the qualified electors of each county, in such manner and for such term not exceeding three years, as may be provided by law.

This section confers upon the legislature the power to fix another time than the second Tuesday of October for the election of county officers, but it is claimed that a proper construction of the language requires that there shall be but one time for the election of all county officers, and any change must include all.

Township officers must be elected on the first Monday of April, members of the legislature on the second Tuesday of October, and the governor and other State executive officers on the second Tuesday of October. Section 15 of the schedule provides, "Until otherwise provided by law, elections for judges and clerks shall be held and the poll-books returned, as is provided for governor."

If the claim be correct, that the authority given to the legislature to change the time for the election of county officers, requires them to fix the same day for the election of all county officers, the objection is a fatal one, and the members of the Board of Control illegally assume the powers they exercise; for the time fixed for their election is different from that fixed for most, if not all, other county officers. Any election held at a time not in accordance with the requirement of the constitution, is unauthorized and void. State ex rel. McNeal v. Donbaugh, 20 O. S., 173.

But is this a necessary or correct construction of the section in question? We have seen that the constitution also provides for the election of judges and clerks on the second Tuesday of October until otherwise provided by law.

Under the authority of the constitution, the legislature has frequently provided for the election of additional common pleas judges in different counties and subdivisions of the state. The time for these elections has not always been on the second Tuesday of October, but has been fixed at various periods, and sometimes upon days when no other officer was to be elected. We have not heard it intimated, at any time, that these elections were void, nor do we know that they have ever been questioned.

655

We have been referred to the debates of the constitutional *convention upon this section. We have carefully read the reports of the debates. The first proposition in the convention was to fix the election upon the first Monday in April, at the same time with the township election. The sentiment of the members was divided between the spring and fall elections. The township elections were fixed irrevocably for April, and election for members of the general assembly and most other state officers was fixed irrevocably for October. In reference to county officers, the opinion finally gravitated toward the fall, but it was objected that it would not be wise to tie the hands of the legislature so that they could not, at any time, change it; and hence the introduction of the words, "until otherwise directed by law."

The former constitution did not fix the time for the election of any county officer except sheriff and coroner, and expressly left the time for