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swer filed by him to the original bill, that said deed, on the day of its date, was deposited with Joseph S. Miles, the cashier of the First National Bank of Mt. Carroll, by John Noble, to be delivered to him upon the death of John Noble, and that, relying upon the validity of said deed and his ownership of said lands, he had made large expenditures of money in improving said lands by the erection of buildings thereon, and that subsequent to the death of John Noble the deed had been delivered to him by said Joseph S. Miles and recorded in the office of the recorder of deeds of said Carroll county, and that by reason of such delivery the title to said premises vested in him, and asked the court to declare said deed was duly executed and delivered, and that by reason thereof the other sons and daughters of said John Noble were barred from claiming any interest in said lands. The complainants in the original bill and three of the other heirs answered the cross-bill, denying the delivery of the deed, and the other sons and daughters disclaimed or made default, and upon a hearing the court found that the deed was made and acknowledged but that it was never delivered, and entered a decree declaring the deed null and void for want of delivery, and ordered that said lands be partitioned among the sons and daughters of said John Noble, and that a credit of $3,000 be allowed to Thomas Noble upon certain notes executed by him to John Noble, which were then held by him as executor of John Noble, deceased, and which notes were for the repayment of moneys which he had expended in improvements placed by him upon the said lands, and dismissed the cross-bill of Thomas Noble for want of equity. Thomas Noble prosecuted an appeal from that decree to this court, where it was determined (Noble v. Tipton, 219 Ill. 182, 76 N. E. 151) the trial court properly held said deed was not delivered and rightfully ordered said lands partitioned among the sons and daughters of John Noble, deceased, but erred in allowing a credit of $3,000 to Thomas Noble upon his said notes in payment and satisfaction of his claim for improvements placed by him on said lands, and that the court, instead of allowing said credit to Thomas Noble, should have provided in its decree that the portion of the lands upon which said improvements were situated, if practicable, in the division and allotment of said lands, should be set off and allotted to said Thomas Noble, and if a partition of said lands could not be made between the parties in interest so that Thomas Noble should receive the portion thereof upon which said improvements were situated, without manifest injury to the other parties in interest, that then and in that case Thomas Noble be reimbursed for the increased value of said lands caused by the improvements placed thereon by him, and the decree was reversed and the cause remanded to the circuit court
for further proceedings in accordance with the views expressed in the opinion of this court filed in this cause upon said appeal. A certified copy of the mandate of this court was filed, and the cause, upon notice, redocketed in the circuit court, whereupon the solicitor for the complainants entered a motion in said cause that the circuit court enter a decree in accordance with the opinion and mandate of this court, and the solicitor for Thomas Noble entered a motion that Thomas Noble be permitted to withdraw from the files the deed from John Noble to Thomas Noble and also the promissory notes of Thomas Noble, and that Thomas Noble be allowed to file a supplemental answer showing that four of his brothers and sisters, since the opinion of this court had been filed in said cause, had conveyed to him all their interest in said lands, and that said Thomas Noble be permitted to amend his answer to the original bill, and his cross-bill, by striking out all averments in said answer and cross-bill to the effect that said deed from John Noble to Thomas Noble had been delivered to said Thomas Noble, and by inserting in said answer and cross-bill, in lieu of such averments, that said deed was a testamentary disposition of said lands by said John Noble to Thomas Noble, and asked the court to continue the hearing of said cause until said deed could be admitted to probate as the last will and testament of John Noble, deceased, in the county court of Carroll county, whereupon the court permitted Thomas Noble to withdraw said deed and promissory notes from the files upon filing certified copies in lieu thereof, also to file a supplemental answer showing that he had acquired by quitclaim deed the interests of four of his brothers and sisters in said lands since the decision of this case in this court upon the former appeal, but denied him leave to amend his answer to the original bill or his crossbill, and entered a decree finding that said John Noble died seised of said lands, that the deed from John Noble purporting to convey said premises to Thomas Noble was null and void for want of delivery, that Elizabeth Tipton, Ada Ostandere, Anna Herrington, and Maggie Fickes were each the owner of an undivided one-ninth part of said premises exclusive of the value of the improvements placed thereon by Thomas Noble, and that Thomas Noble was the owner of an undivided five-ninths part of said premises including the improvements placed thereon by him, and appointed commissioners to make partition of said premises between said parties, and ordered that in the division and allotment of said lands the commissioners set off and allot to Thomas Noble, if the same could be done without manifest injury to the rights of the parties in interest, the portion of said premises as and for his share upon which were located the barns, corncribs, granaries, scalehouse and windmills
erected thereon by him, from which decree the trial court "proceed in accordance with Thomas Noble has again prosecuted an appeal to this court.
The main contention of the appellant as a ground of reversal on this appeal is that the circuit court erred in refusing to permit him to amend his answer to the original bill, and his cross-bill, by striking out from said answer and cross-bill the averments therein contained that the deed from John Noble to him had been duly acknowledged and delivered and was a valid conveyance to him of said lands by his father, John Noble, and inserting therein, in place of said averments, that said deed was a testamentary, disposition to him of said lands by said John Noble, and not a deed of conveyance to him of said lands, as he had averred in his answer to said original bill and in his cross-bill. Upon the first trial of this cause the appellant, Thomas Noble, filed his answer to the original bill, and his cross-bill, upon the theory, and the case was tried by him upon the theory that said deed, bearing date August 24, 1897, was a valid deed of conveyance from his father to him of said lands. The issue made and tried at that time was, had said deed been delivered by John Noble to Thomas Noble in the lifetime of John Noble, so as to vest the title to said lands in Thomas Noble? The trial court held the deed was null and void for want of a delivery. When the case was here before it was said (page 184 of 219 Ill., and page 152 of 76 N. E.): "There was a hearing of the evidence, and the court entered a decree finding that the deed was made and acknowledged but that it was never delivered," and after an exhaustive discussion of the law and evidence involved in the decision of the case it was further said (page 187 of 219 Ill., and page 152 of 76 N. E.): "The deed did not operate as a conveyance of the property, and whether it must fail as a testamentary disposition of the farm is a question not involved under the pleadings in this case. It is sufficient for the decision of this case that the deed was not delivered and did not take effect in the lifetime of the grantor." It is clear, therefore, that when the case was here. before the court had determined said deed had not been delivered, and when the case was reinstated in the court below that court was powerless to retry that question: the only power remaining in that court being to carry into effect the finding of this court upon that question, and the fact that the decree was reversed upon other questions did not affect the binding force upon the court below of a finding of this court upon the question of delivery and its duty to enter a decree disposing of all questions in the case in favor of the complainants in the original bill, with the exception of the value of the improvements placed on said lands by Thomas Noble. Among the latest expressions of this court upon the effect of a remanding order that 78 N.E.-59
the views herein expressed" is that found in the case of In re Estate of Maher, 210 Ill. 160, on page 164, 71 N. E. 438, on page 440, where it was said: "Where this court, in considering a cause, determines the issues and decides the questions involved upon their merits, and the case is reversed and remanded, with directions 'to proceed in conformity with the views' expressed in the opinion, there is no power in the court below except to enter a final order or judgment, without a retrial." The case of Blackaby v. Blackaby, 189 Ill. 342, 59 N. E. 602, is very similar in its facts to the case at bar. That was a bill for partition and an accounting. A decree of partition was entered in accordance with the prayer of the bill, and the rents and profits were set off by the court in favor of a co-tenant who had been in possession of the premises, against the improvements made by said co-tenant, without the statement of an account by a master in chancery. The decree was reversed, with directions "to proceed in conformity to the views herein expressed." Blackaby v. Blackaby, 185 Ill. 94, 56 N. E. 1053. On the case being reinstated in the court below the defendant sought to retry the question of title. While the decree had been reversed as an entirety, from an examination of the opinion filed in the case it appeared the holding of the trial court upon the question of title had been upheld by this court, and that this court only disagreed in its holdings with the lower court upon its method of stating the account, and the trial court declined to go into a retrial of the question of title, which action was affirmed by this court.
In City of Chicago v. Gregsten, 157 Ill. 160, 45 N. E. 505, which was a bill for injunction, this court reversed the decree of the circuit court of Cook County and remanded the cause to that court for "further proceedings not inconsistent with this opinion." On the case being reinstated in the circuit court appellees entered a motion for a final decree in their favor in conformity to the opinion of this court, and the appellant entered a crossmotion for leave to file a supplemental an
The court allowed the motion of appellees and denied the motion of appellant. This court, in affirming the action of the trial court, said (page 163 of 157 Ill.. and page 506 of 45 N. E.): "It will be observed that when the cause was first submitted to the circuit court the question determined was not merely that the injunction should be dissolved, but there was a hearing on the pleadings and affidavits, which were treated by the parties as evidence, on the merits, and a decree entered dismissing the bill When the case reached this court on appeal it was here considered and decided on the merits and every question involved was fully considered and decided, as shown by the opinion of the court. The order, therefore,
reversing the decree of the circuit court and judgment of the Appellate Court and remanding 'for further proceedings not inconsistent with the opinion,' in connection with the opinion, in our judgment was a clear direction to the circuit court to enter a decree for the complainants upon the filing of the remanding order in that court, and the course pursued by the circuit court in refusing defendant's application to reopen the cause and rendering final decree is sustained by the following authorities: Hollowbush v. McConnel, 12 Ill. 203; Wadhams v. Gay, 83 Ill. 250; Newberry v. Blatchford, 106 Ill. 584; Hook v. Richeson, 115 Ill. 431, 5 N. E. 98; Gage v. Bailey, 119 Ill. 539, 9 N. E. 199; Sanders v. Peck, 131 Ill. 407, 25 N. E. 508; Buck v. Buck, 119 Ill. 613, 8 N. E. 837."
In Lynn v. Lynn, 160 Ill. 307, 43 N. E. 482, which was a proceeding by an administratrix to sell real estate to pay debts, the decree of the lower court was reversed, and the cause was remanded "for further proceedings consistent with this opinion." After the case was redocketed in the probate court the administratrix asked leave to file an amended petition. On page 317 of 160 Ill., and page 485 of 43 N. E., it was said: "Was it the duty of the court to permit an amended petition to be filed and enter upon another trial of the cause, or was it the duty of the court to enter a decree in conformity to the decision of this court, as was done, denying the application? It will be observed that this court, in the decision of the case, passed on all the questions there involved, and upon an examination of the amended petition it will be found that the new matters attempted to be litigated were all in existence when the first hearing was had in the probate court. If the deed to Gardner was obtained by undue influence or fraud, that could have been proven on the first hearing, or if the title conveyed or attempted to be conveyed by that deed was barred by any statute of limitations, that was a matter which could have been proven on the first trial. Indeed, we find nothing attempted to be set up on the last hearing which the administratrix could not have brought up on the first."
In Washburn & Moen Manf. Co. v. Chicago Galvanized Wire Fence Co., 119 Ill. 30, on page 35, 6 N. E. 191, on page 197, it was said: "Since the direction that one part of a decree be modified is, by necessary inference, an approval of that part omitted from that direction, the substantial rights of the parties to the decree are not perceptibly different from what they would be were it expressly ordered, in the formal entry upon the record, that such omitted part of the decree is affirmed. No statute requires that the specific modification directed shall be embodied in the formal order of court entered of record by the clerk of this court, and it is conformably with our practice, and suffi
cient, if the modification be specifically directed in the written opinion of the court filed in the case. And so it is held that it is the duty of the lower court to examine the opinion and conform its action to it." And in Wadhams v. Gay, 83 Ill. 250, on page 253, it was said: "On the receipt of the mandate and opinion the superior court was bound to carry into complete effect the decision of this court not to retry the cause or place the complainants, the appellees, in a position by which the cause might be retried. When a case has received full consideration in this court, and the merits fully explored, discussed, and settled, and the cause remanded for further proceedings in conformity to the express views and opinion of this court, there can be no power remaining in the court to which the opinion and mandate are sent to retry the cause, or do any other matter or thing in the cause but to obey the mandate. The opinion of this court was on the merits. They had been declared by this court against the complainants. The mandate required of the superior court the execution of the decree of this court-not a retrial of the cause or the entry of any order which might have that effect, and which, unquestionably, was the design of the party asking such an order." In a case like this, where a cause is reversed by this court, and remanded to the trial court, with directions to proceed in conformity with the views of this court, it is clearly the duty of the trial court to examine the opinion and be governed as to the decree it will enter by the views expressed in the opinion. If the questions involved in the appeal have been considered and determined by this court upon the merits, in whole or in part, then it is the duty of the trial court to enter a judgment or decree as to those questions in accordance with the determination and decision of this court without a retrial, and it would be error, under such circumstances, to permit the pleadings to be amended and thereby so change the issues involved as to require a new trial upon the facts before a final decree was entered. If, however, the questions involved, or any of them, are not decided upon their merits by this court, and the cause is reversed and remanded to the lower court, with directions to proceed in conformity with the opinion of this court, then only the legal principles involved and which have been announced in its opinion by this court will control the lower court in its further consideration of the questions involved in the case which have not been determined on their merits in this
The opinion of this court filed upon the first appeal was upon the question of the delivery of said deed upon the merits. The mandate of this court required the circuit court to proceed in accordance with the views expressed in that opinion, and upon the question of the delivery and validity of
said deed it was the duty of the trial court to enter a decree holding said deed to be null and void, and not to retry that question or to permit the appellant to so amend his pleadings as to prevent a decree upon that question and to cause a retrial of the case upon a question not involved in the case on the first appeal.
Finding no reversible error in this record, the decree of the circuit court will be affirmed.
(75 Ohio St. 1)
STATE ex rel. ROBERTSON REALTY CO. v. GUILBERT, State Auditor.
(Supreme Court of Ohio. Oct. 16, 1906.) 1. STATUTES-ENACTMENT LEGISLATIVE POWER-SEPARATE HOUSES OF LEGISLature.
The whole legislative power of this state having been conferred by the Constitution upon the General Assembly as a unit and not upon the Senate or House of Representatives acting separately, a single branch of the General Assembly so acting has no power of independent legislation, except as expressly granted in the Constitution or as necessarily implied in the express grants.
2. STATES-LEGISLATURE-POWERS-APPOINTMENT OF COMMITTEES.
Sections 50 to 55, inclusive, of the Revised Statutes of 1906, were not intended by the General Assembly to authorize either branch thereof to appoint committees; but were designed to prescribe procedure for committees which may have been constitutionally and regularly appointed.
3. SAME-CONSTITUTIONAL LAW.
The Constitution of this state contains no express grant of power to either branch of the General Assembly to appoint a select investigating committee for general legislative purposes; and such power is not necessarily implied from the express grants to each house.
Crew and Spear, JJ., dissenting. (Syllabus by the Court.)
Application by the state, on relation of the Robertson Realty Company, for writ of mandamus to Walter D. Guilbert, Auditor of State. Petition dismissed.
This is an original proceeding for mandamus in this court. The petitions and the exhibits which are attached thereto and made part thereof are as follows:
"The relator, the Robertson Realty Company, is a corporation organized under, and in accordance with, the laws of the state of Ohio, and having its principal office in the city of Cincinnati in said state of Ohio. The defendant, Walter D. Guilbert, is the duly elected and qualified, and was at the times hereinafter mentioned and ever since has been and now is, the legally acting Auditor of State of the state of Ohio. On the 7th day of February, 1906, during the regular session of the Seventy-Seventh General Assembly of the state of Ohio, the Senate of said state of Ohio duly adopted Resolution No. 23, by Mr. Espy, entitled: 'Senate Resolution relative
to appointing a committee to investigate charges of corruption existing in the government of the city of Cincinnati and the county of Hamilton,' a true copy of which resolution is hereto attached, marked Exhibit A, and made a part of this petition. On the 26th day of March, 1906, during the regular session of the Seventy-Seventh General Assembly of the state of Ohio, the Senate of said state of Ohio duly adopted Senate Resolution No. 30, by Mr. Espy, entitled 'Senate resolution relative to the committee appointed to investigate charges of corruption existing in the government of the city of Cincinnati and the county of Hamilton,' a true copy of which resolution is hereto attached, marked Exhibit B, and made a part of this petition. On the 1st day of March, 1906, the General Assembly of the state of Ohio duly passed and enacted House Bill No. 139, entitled 'An act to make partial appropriations for the last three-quarters of the fiscal year ending November 15, 1906, and the first quarter of the fiscal year ending February 15, 1907,' which was duly signed by the respective presiding officers of the Senate and of the House of Representatives, and duly approved by the Governor of the state of Ohio on the 5th day of March, 1906. Said act of the General Assembly has never been repealed. By said act passed as aforesaid on said March 1, 1906, there was duly appropriated for the 'contingent fund of the Senate for the use of select investigating committees,' the sum of $12,500, which sum was duly placed to the credit of said contingent fund of the Senate of the state of Ohio, for he use of said select investigating committees, including the committee created by said Senate Resolution No. 23, of which the sum of about $3,500 has been expended, leaving at this time in the treasury of the state of Ohio to the credit of said fund and for the uses and purposes hereinafter stated, and for the uses and purposes of said committee created by said Senate Resolution No. 23, the sum of at least $9,000. By Section 3 of said act it was provided that no money therein appropriated should be drawn except on a requisition of the Auditor of State. Under and in accordance with said Senate Resolution No. 23, the committee therein selected, duly met and organized, elected John C. Drake as chairman, who is still acting as such, and entered upon the discharge of its duties. The said committee, in accordance with said Resolution No. 23, selected as its place of meeting the city of Cincinnati in said state of Ohio. Under and in pursuance of said organization and operation, the said committee found it necessary to rent from the relator in said city of Cincinnati rooms in which to hold its meetings, and for that purpose to incur expense; and also for the purpose of carrying on its said work and discharging its said duties to incur with the relator a bill for electric light, a bill for re
pairs to lights, and a bill for a spring latch and keys. In connection with, and because of, its said organization and the performance of its said duties, in said city of Cincinnati, the said committee became indebted to the relator, the Robertson Realty Company, in the manner aforesaid in the sum of $265.30, a true copy of which account, duly verified, is hereto attached, marked Exhibit C, and made a part of this petition. The amounts named in said account are fair, just and reasonable, and said expenditures were necessary to enable the said committee to organize and carry on the work and to do the things enjoined upon it by said Resolution No. 23. Thereupon in accordance with law and said Senate Resolution No. 23, the relator duly presented to the Auditor of State of the state of Ohio, the defendant herein, a voucher and requisition for said sum of $265.30, duly signed by the said chairman of said committee, a true copy of which voucher and requisition is hereto attached, marked Exhibit D, and made a part of this petition. The Auditor of State has refused, and still refuses, to issue, as is his duty, in accordance with law, his warrant or order on the Treasurer of the State of Ohio for said amount and declares that he will not do so, and assigns as a reason therefor that, in the absence of the direction of this court, he is in doubt as to his powers and rights and duties in the premises, but admits the facts aforesaid and the existence of money in the treasury of the state of Ohio to the credit of the proper fund and sufficient in amount to pay the account aforesaid.
"This relator avers that it is wholly without any remedy of form of action whatsoever in the premises save and except one in mandamus. The said committee, under and in pursuance of said resolutions, for more than two months have proceeded in the discharge of the duties laid upon them by said resolutions, and are desirous of proceeding, and are in duty bound to proceed, to the final discharge of their duties and obligations under said resolutions. Wherefore, this relator prays that this honorable court may cause to issue to the defendant herein, Walter D. Guilbert, the Auditor of State of the state of Ohio, a peremptory writ of mandamus commanding him to issue to this relator, in accordance with law, his proper warrant on the Treasurer of the State of Ohio for the said sum of $265.30 for the uses and purposes aforesaid; or that this court may cause to issue to said defendant an alternative writ of mandamus commanding him forthwith, in accordance with law, to issue to the relator his said proper warrant for said sum of $265.30, or that by a day certain he appear before this honorable court, and show cause why he should not comply with the relator's prayer, and why a peremptory writ of mandamus should not issue as aforesaid. This
relator prays for such other and further relief as may be necessary and proper in the premises to protect and safeguard its interests."
"77th General Assembly, Regular Session. S. R. No. 23. Mr. Espy.
"Relative to Appointing a Committee to Investigate Charges of Corruption Existing in the Government of the City of Cincinnati and the County of Hamilton. "Whereas, it has been charged in the public press and elsewhere, that certain officials of Cincinnati and Hamilton county and the commissioners of waterworks of said city have made certain collusive and illegal contracts and have unlawfully misapplied and misused the public funds, and have otherwise misused their official positions; and that certain persons, corporations, and political committees, not officeholders, have unlawfully conspired with or influenced said officials, or collected certain sums of money therefrom, illegally or for an illegal purpose, or both, and have conspired to corrupt the ballot; and, further, that there have been other forms of misgovernment in said city and county.
"Whereas, it is expressly represented to this General Assembly by the citizens of Hamilton county, through their Senators and Representatives, that for good and sufficient reasons the people of said county cannot, of their own accord and with the means provided by the present laws of the state, make and conduct an investigation of the matters and things herein referred to so as fully to accomplish the results desired, for which reason they appeal to the people of the state to assist them in making and conducting said investigation through and by the General Assembly.
"Whereas, it is of the first importance that the General Assembly should be fully informed as to the extent of these and other alleged abuses, that it, with the fullest possible information in its possession, may be able to make such amendments in the existing laws, and enact, if necessary, such new laws as may protect the people of Cincinnati and Hamilton county, and other cities and counties from like alleged abuses and impositions in the future.
"Be it resolved by the Senate of the state of Ohio, that under and by virtue of sections 50, 51, 52, 53, 54, and 55 of the Revised Statutes of Ohio, a select committee composed of Messrs. Drake, Schmidt, Espy, Sites and Meck be appointed with full power and authority to investigate all and singular the said matters and charges and all matters and things in any way pertaining thereto, and with full power to prosecute its inquiry in any and every direction in its judgment necessary and proper to enable it to obtain