OHIO DECISIONS.

Hamilton Common Pleas.

and in State ex rel. v. Governor, 5 O. S., 534, the court says: "The judicial power cannot interpose and direct in regard to the performance of an official act which rests in the discretion of any officer, whether executive, legislative or judicial;" and in the same connection quotes the language of Chief Justice Marshall (1 Cranen, 170): "It is not by the officer of the person to whom the writ is directed, but the nature of the thing to be done that the propriety or impropriety of issuing a mandamus is to be determined."

What then is the nature of the case at bar, that the propriety or impropriety of granting the writ may be determined? The prisoner was entitled to bail, but it does not appear that the court refused him bail; it only refused a particular bondsman, and it nowhere appears that he could not give other bail. The judge in refusing Mr. Campbell on this bond and placing that refusal on the ground he did, namely, that he was a practicing attorney and therefore, if for no other reason, insufficient, established a rule of his court in that regard. able rule? was not its tendency to promote justice and order, and consoWas not that a reasonnant with sound public policy? We think it was.

From the earliest times in the federal courts the rule has been strictly enforced that attorneys should not be received on any bond in any court proceeding.

In the court of common pleas of this county, the rule is long and well established, and while the rules in the common pleas are not binding on the police court, yet when the judge of the police court adopts a rule which already prevails in the common pleas, the right would require to be very clear to justify the common pleas in commanding the judge of the police court to abandon that rule.

In Cin. College v. LaRue, 22 O. S., 469, the court says, that the writ will not be awarded unless the existence of all the facts necessary to put the defendant in default be shown.

In order to justify the awarding of the writ in this case then, it must appear that the right clearly exists, that the act is ministerial in its character; and not discretionary, that there is no other specific remedy, and that the nature of the thing to be done is such as appeals to the discretion of the court as right and promotive of the administration of justice.

Another view of the case is, that the rule adopted by Judge Von Martels refusing attorneys as bail bond, is in the nature of an interlocutory judgment of his court. He has already determined the question, and passed judgment that the bond offered was insufficient for the reasons given; now while mandamus will lie to a subordinate court to require the court to proceed to judgment it cannot dictate the judgment to be rendered, much less can such courts be required to retrace their steps and reverse the decision already made. The People ex rel. v. The Judges of Dutchess C. P., 20 Wendell, 658, and cases there cited.

In the intermediate proceedings between the commencement and trial of a suit, the judge must exercise his discretion. If he acts oppressively, it is not ground for mandamus but for error. Bradstreet, 8 Peters N. S., 588. Ex parte Martha

Mr. Campbell is an officer of Judge Von Martel's court, and that court can control and has the right to control any of its officers with reference to any proceeding therein. The attorney is an officer in a court of justice, employed to manage the cause of his client in accordance with the forms and usages of the court in which he practices; he is

State ex rel. v. Von Martels.

bound to be as true to the court as he is to his client, and while he practices in that court, is bound by the rules made by the court.

While in a proper case a mandamus may issue to require a court of inferior jurisdiction to take bail, even then it would not and could not dictate who that court should take as bail.

In the case at bar we are not warranted in granting the peremptory writ.

Writ refused.

Campbell, Bates & Bettman, for relator.

T. Shay, for defendant.

11 B. 244

FORCIBLE ENTRY AND DETAINER.

[Franklin Common Pleas.]

J. W. Cox v. FREDERICK Jaeger.

A justice of the peace has jurisdiction in forcible detainer proceedings to declare a forfeiture and oust a tenant for non-payment of rent.

It having been, and being still, a mooted question whether a justice of the peace has the jurisdiction above mentioned in forcible detainer proceedings, and it being a fact that some justices are still from time to time ruling that they have no such jurisdiction, and from the further fact that the Supreme Court has not directly passed upon this precise question, the following case, decided not long since by Judge Bingham, in the court of common pleas of Franklin county, and the cases cited by him will be useful, which are in accordance with the weight of authority in the district courts of the state, although not in accordance with some earlier decisions in the Cincinnati superior court.

The case was originally brought before a justice of the peace to enforce a forfeiture of a lease for non-payment of rent. The justice gave judgment in javor of the plaintiff below, declaring the lease forfeited for non-payment of rent.

On petition in error to the common pleas court, it was assigned for error that the justice had no jurisdiction to declare such forfeiture, not being a court of equitable jurisdiction.-[Editorial.

BINGHAM, J.

The opinion of Judge Bingham relating to this point, taken in shorthand at the time, is as follows:

"As to the question of jurisdiction: on one occasion, perhaps two, a few years since, following the course of decisions in the Cincinnati superior and common pleas courts, and by a misapplication of other authorities (cited by counsel for plaintiff in error), as I am now convinced, I held that a justice of the peace had no jurisdiction in cases of forfeiture. The district court of this district has since held to the contrary in Clermont county. Besides, the clear indication by Judge White, in 26 Ohio State, is to the contrary, where the exact law is stated, viz.: courts of law enforce forfeitures and courts of equity relieve from forfeitures or the consequences thereof. The same is to be inferred from the case in 13 Ohio State, opinion by Sutliff, Judge, and in 27 Ohio State,

Franklin Common Pleas.

decided by the commission. While the plaintiff, to entitle him to recover for a forfeiture, is held to a strict compliance with the conditions, so the defendant or lessee to be excused from it must show a substantial and at law a quite exact compliance with the conditions on his part. Judgment affirmed."

The cases referred to by Judge Bingham in the above opinion in the Supreme Court are: Justice v. Lowe, 26 Ohio St., 375; McGarvey v. Puckett, 27 Ohio St., 671; Smith v. Whitbeck et al., 13 Ohio St., 471. The district court decisions referred to are the following: Neil v. Thompson, district court of Franklin county, docket S., page 284. Mary Boose v. Isaac Craig, district court of Clermont county, No. 5,877. The last named case is reported by Judge Cowan, of the common pleas court of Clermont county, as follows:

"The case came into the common pleas court before Cowan, Judge, on error from a justice of the peace, who had declared a forfeiture of a lease for non-payment of rent. Judge Cowan reversed the justice on the ground that the justice had no such jurisdiction, following the decisions in the superior court of Cincinnati. The case went to the district court of Clermont county, on the same point, where Judge Cowan was reversed, the district court holding that the justice had jurisdiction to forfeit a lease for non-payment of rent. The judges comprising the court were Judges Steele, Tarbell and Minshall."

19 B. 321

LIBEL.

[Auglaize Common Pleas Court.]

SETTLAGE v. Kampf.

Political abuse, as to print of a man that he is a political liar, traitor, official recalcitrant, nondescript, incompoop, not of his every day character, but implying false doctrines and political unreliability, is not libel per se, for it does not tend to degrade or disgrace him in general esteem.

In this case the petition alleged that the defendant did falsely, wickedly and maliciously write and publish of said plaintiff in the Democrat (having a general circulation in Auglaize county), the following false and malicious libel: "Never weary in well doing. We do and always have felt a repugnance to discussing the acts of a liar and a traitor like Settlage (meaning said H. C Settlage), plaintiff, who has not even honor, ability, or courage to fight his own battles. The truth, however, will prevail and in order to do so must be told. As long as he has two such enthusiastic defenders as the Argus and the Republican he need not complain or want for our patient consideration. And as long as they continue with their misrepresentations and innuendos to assail the Democrat for giving this official recalcitrant and political traitor his just deserts we shall hold him up to public scorn. Nothing will sooner or more certainly land him where he belongs and where his political treachery and ingratitude long ago ought to have placed him."

Whereby said plaintiff was injured in his good name and reputation to his damage $2,000.

The plaintiff for his second cause of action says that on the second day of February the defendant did falsely etc., publish the following:

A long-haired chestnut. There is strong talk here among leading Democrats of establishing a new paper in opposition to the Democrat.Republican.

Settlage v. Kampf.

"Is that so? Well, it is about time for the annual strong talk. So far as the "leading Democrats" are concerned everybody knows who they

are.

But even they, traitors and kickers that they are, are not talking as "strong" as they once did. They are being gradually eliminated from the political problem. Last year's campaign convinced them that the Democrat was well able, not only to take care of itself, but, with the assistance of the loyal and true Democracy of the county, to defeat and conquer the traitors within and the enemies without the party. But, speaking of opposition, nothing would satisfy the Democrat better than to be opposed by a few more traitors, nondescripts and nincompoops like Settlage (meaning said H. C. Settlage, plaintift), the Argus and the Republican. It is just fun to drive in out of the cold that kind of cattle."

Whereby said plaintiff was injured in his good name and reputation to his damage $2,000. Therefore said plaintiff prays judgment for $4,000, his damages as aforesaid.

To this petition the plaintiff demurred on the ground that neither the facts stated in said petition, nor in the several causes of action therein set forth, constitute a cause of action against the defendant.

DAY, J.

"Two causes of action are stated. As the first cause of action it is shown that defendant printed and published an article in the Auglaize County Democrat, in which plaintiff is represented substantially as a liar, an official recalcitrant and political traitor to the injury of his good name, $2,000.

"As a second cause of action in the same manner and through the same channel plaintiff is said to be a traitor, nondescript and nincompoop to the injury of his good name, $2,000.

"The demurrer presents the question as to whether the alleged libelous publications are per se libelous and actionable.

"It is laid down as a rule by the Supreme Court in 37 Ohio St., volume 30, page 34, that: 'Words written or printed and published, imputing to another any act, the tendency of which is to disgrace him or deprive him of the confidence and good will of society, or lessen its esteem for him, are actionable per se.

"The act or conduct imputed must be such as to directly tend to disgrace and degrade him in the community in order to be per se actionable. It would seem that the words used to define and describe the imputed act or conduct should be entirely unequivocal in their meaning to be per se libelous. If the words employed are ambiguous-have more than one meaning- if the meaning is not clearly discoverable from a perusal of the text so that innuendo or colloquium is necessary to point their meaning, they would not be per se libelous. Such words would only become libelous when helped out and their meaning pointed and made clear by the aid of colloquium or innuendo. These are not used in the petition, and the question is, do the words charged to have been printed and published, by a fair construction of the whole text, clearly and unequivocally impute to the plaintiff acts and conduct which directly tend to disgrace and degrade him and lower him in the esteem of the community?

The objectionable words used are: "Liar," "traitor," "official recalcitrant," "nondescript" and "nincompoop."

"It may be conceded that if defendant meant that plaintiff was a liar in its worst sense-that he is a common every day, all the time, will

Auglaize Common Pleas.

ful and malicious liar, that he deliberately and designedly falsifies in material matters in all the relations of life, in his business, social, religious and political relations-the charge is per se a libel. But if he meant that he was unreliable in a political sense or in a particular personal matter, or that he advocated false doctrines in theology or politics, it would not be so.

"A traitor is one who violates or disregards his allegiance. It may mean a man who commits treason by betraying his country into the hands of its enemies, or one who has thrown off his allegiance to a political organization. To falsely charge the first would be a libel; while to charge the latter would, in some cases, be to exalt, glorify and popularize the person charged. Here "political traitor" is alleged in the petition.

An "official recalcitrant" is an officer who kicks backward, one who objects, shows repugnance and refuses to follow. He may be a disagreeable kind of a fellow, but not infamous.

"Nondescript," if intended to be applied to plaintiff, would indicate that he is a bewildering, indescribable kind of a person which fact would not necessarily lower him in the estimation of the public.

'Nincompoop" means a silly fellow, a blockhead. It is the opposite of a philosopher and is only one way of saying the plaintiff is not a statesman. Of course it is very annoying and inconvenient not to be a statesman, but there is nothing in it that has a tendency to disgrace and degrade.

"Upon the whole the conclusion reached is: The words employed by the defendant in his tirade against the plaintiff are very plain and vigorous English, are not at all complimentary to the plaintiff, but they are believed not to be per se libelous. The demurrer is therefore sustained."

F. C. & Layton, for plaintiff.

Hon. F. S. Pillars and R. L. Waters, for defendant.

21 B. 216

TAXATION.

[Hamilton Common Pleas.]

AMPT. V. CINCINNATI (CITY).

1. Under sec. 2690g, Rev. Stat., the board of tax commissioners may exercise a veto power, but they have no authority to modify, the power to levy taxes being one of the legislative functions of the common council.

2. But under sec. 2690h, Rev. Stat., when the common council has apportioned or distributed to the various departments the money raised by the tax levy, and that has been sent to the board of tax commissioners, they may approve, amend or reject (increase or decrease) any of the funds.

MAXWELL, J.

After the common council of Cincinnati had by ordinance apportioned and distributed the funds to be expended by the various departments for the first half of 1889, the ordinance was sent to the board of tax commissioners for their action. They increased the amount to be expended in three of the departments. The plaintiff brought this suit. to test the validity of the action of the tax commissioners. The court held that under the act establishing the board of tax commissioners, 80 O. L., 124 by sec. 2690g, Rev. Stat., after common council has provided for the tax levy to be made and the same has been sent to the tax com