A history of Cleveland, Ohio, Volume III, Part 55

Author: Orth, Samuel Peter, 1873-1922; Clarke, S.J., publishing company
Publication date: 1910
Publisher: Chicago-Cleveland : The S.J. Clarke Publishing Co.
Number of Pages: 1106

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Toward the close of his life Judge Ranney gradually withdrew from the prac- tice of his profession ; but the urgent solicitation of some old friend, or an attack upon some important constitutional or legal principle, drew him occasionally from his library to the courtroom. The announcement that he was to make an argu- ment never failed to bring together an audience of lawyers, eager to learn from him the art of forensic reasoning, of which he was a consummate and acknowl- edged master, to be entertained and instructed by his sympathy and familiarity with the more recent advances in the science of jurisprudence. The well-earned leisure of his later years was far from being indolence. If he had needed an inducement to continue his reading and study, he would have found it in the pleasure it gave him to share with others the results of such study. He was anxious that young men should have the educational advantages which had been denied to him, and it was for the double purpose of helping to provide such advantages and justifying the confidence which had been reposed in him by a valued client and friend, that he devoted much time for several years to placing the Case School of Applied Science at Cleveland upon a firm foundation and providing for it adequate buildings and

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equipment. From the time of Judge Ranney's admission to the bar he found time, by means of his ability to dispose of business rapidly and by unremitting in- dustry, to make up to some extent the deficiency in his early education. Accident and taste combined to direct his attention particularly to the language of France and as soon as he could read it easily he made a profound study of her literature, politics, history and law. The civil law and the debates which resulted in the Code Napoleon became as familiar to him as the Commentaries of Blackstone and had their part in forming his clear and mature conceptions of natural justice and views of public policy. Judge Ranney was a man of great simplicity of char- acter, wholly free from affectation and assumption. He was a man of native modesty of character. He could have attained the highest standing in any pursuit or station requiring the exercise of the best intellectual and moral qualities, but his ambition was chastened and moderate and he seemed to have no aspirations for official place or popular applause. While always dignified, he was a genial and companionable man, of fine wit and rare humor. He had singular powers of memory. Every fact, every rule, every principle, when once acquired, remained with him always. He combined extensive and varied general knowledge with remarkable accuracy of judgment. His originality of mind was not impaired by his accumulation of knowledge and the ideas of others. No man was more fear- less in asserting the right and in the performance of what he deemed his duty. His known integrity and honesty, and his never-failing common sense and sagacity in affairs of business, placed in his hands weighty and responsible trusts embracing important interests and large amounts of property. From the beginning of his career as a lawyer, by reason of the professional learning, the clear and persua- sive method of reasoning, the nice power of discrimination, the strict sense of justice, the inflexible integrity and the great practical wisdom which characterized and adorned all his efforts, he occupied the position of a leading representative of the Ohio bar. He had remarkable power of analysis and saw with the quickness of intuition the principles of law as well as the right or morality of a controversy. In the argument of a cause he never made a useless parade of authorities. He used authorities only to illustrate principles.

While Judge Ranney was on the bench he was one of the strongest adminis- trative forces of the state government. He held a place of his own. He was a personal force whose power was profoundly felt in the administration of justice throughout the state. He made a deep and permanent impression on the juris- prudence of Ohio. His facility and accuracy in disposing of business was owing in large measure, to his almost unequaled habit of concentration on the business before him, the analytical structure and logical action of his mind, his acute per- ception of the crucial points in a cause, his comprehensiveness of view and his quickness in discovering how natural justice and equity suggested a controversy should be decided. His most distinguished trait was his grasp of general prin- ciples, in preference to decided cases. He never ran to book shelves for a case which had some resemblance to that in hand, perceiving, as he did, that the re- semblance is frequently accidental and misleading. To consider questions of con- stitutional law or of public policy and justice, was above all things congenial to him. He took large views of every matter or question with which he had to deal. He was at his best when under the stimulus of working to solve a great and diffi- cult constitutional or legal problem. Difficulties melted away under the fire from his keen and powerful intellect. His reserve force never failed him. Occasion- ally, in hearing or deciding a case, his broad and mellow humor and bright imagi- nation illustrated or illumined the questions involved. He was always courteous on the bench and no member of the bar, young or old, ever had just cause to com- plain of unfair treatment at his hands. On the bench, as at the bar, he never extended any hospitality to loose notions of professional ethics. Judge Ranney's rich style furnished unmistakable evidence that he had drunk deep at the wells of English undefiled. His reported judicial opinions, all of which are characterized by inherent strength and breadth and dispassionate and unbiased judgment, show

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he had great facility in clear, precise, forcible expression. No one could say a plain thing in a plainer way or deal with an abstruse subject in a clearer manner. In oral argument or public discourse he gave a sort of colloquial familiarity to his utterances. No one could use an apt illustration or an amusing anecdote with greater effect. He never declaimed. He was as wise in what he left unsaid as in what he said. There was never anything puerile or irrelevant in his arguments. They were characterized by a vigor and grasp of mind, a full possession of the subject and a fertility of resource whenever an emergency arose requiring him to bring to his aid his reserve power. Upon occasion no one could use sarcasm with greater effect ; but the blade he used was the sword of the soldier, not the dagger of the assassin. Judge Ranney had those qualities of simplicity, directness, candor, solidity, strength and sovereign good sense which the independence and reflective life of the early settlers of the western country fostered. At the bar or in his own library, he was one of the most interesting of men. He had a just economy of labor; he never did anything which men of narrower capacity could do for him well enough. He did not expend upon his work any super- fluous strength. It is unfortunate that his great powers were not called into use upon the broadest theater. Had he been given a seat upon the bench of the supreme court of the United States, as was in contemplation when he was in his prime, he would have enriched not only his own fame, but the country would have had additional reason to be justly proud of institutions under whose foster- ing influences men like Judge Ranney are entrusted with the highest civil au- thority and the protection of the rights and liberties of the citizen. He was him- self a firm believer in representative government, insisting, however, that in order to perpetuate it, its abuses and evils must be plainly exposed and resolutely resisted.

In the constitutional convention Judge Ranney was made a member of the committee on the judicial department and chairman of the committee on re- vision, enrollment and arrangement. His part in the convention was largely the result of his intense belief in democracy; not democracy in a partisan sense, although that belief determined his party fealty also, but democracy in the first and best sense as meaning government by the people. He trusted the people thoroughly, and although the character of the voting popula- tion of the state gradually changed before his death, his faith in the people con- tinued to be so strong that he looked forward to the outcome of every struggle, in which both sides had a fair hearing, as sure to be wise and right. Without this key to his votes and speeches they would be sadly misunderstood. He fa- vored every proposition to the limit of the executive and the legislative except as the duty of legislative action to restrain encroachments upon the rights of citizens could be imposed upon the general assembly. His faith in the people led him to wish for them a larger share in the administration of justice and to desire that every court should be to some extent a court of first instance, and he would have had every question of fact, in equity as well as at law, referred to a jury. He favored biennial sessions of the general assembly. It was said in favor of annual sessions that one of the principal means by which the people had been able to secure, generation after generation, a portion of their rights under the British government was frequent elections and meetings of public bodies. But while he conceded this, his answer was that in England all power exercised by legislative bodies was taken from the monarch; here from the people. There the people could not fail to gain by legislative action; here they could not fail to lose. He opposed the proposition to give the governor a qualified veto, which was supported by the argument that it would prevent much ill-considered legislation. He admitted that inconsiderate legis- lation had been a sore evil, but in his opinion it arose from the fact that the people of Ohio had theretofore delegated too much power to the departments of government. The remedies that he proposed were to take away patronage from the legislature, to require important laws to be submitted to a direct vote of the

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people and to receive a majority of the votes of both branches of the general assembly by yeas and nays. The first and last of these remedies were applied by the constitution with good results. He supported with success an amendment to the report of the committee reducing the term of senators from four to two years. He proclaimed emphatically the opinion that the people should not dele- gate their power for any longer time than was necessary; that the senate ought to be as popular as the house; that to say that the senate ought to "hang back and hang on" to save the people was to say that they were incapable of self-government. He repudiated it from his very soul. He had not one par- ticle of sympathy for it and it never could have any foundation whatever in his political creed. The committee on the legislative department reported a section forbidding the general assembly to pass retroactive laws, or laws impairing the obligations of contracts or their remedies. Judge Ranney opposed the intro- duction of the words "or their remedies," but gave the remainder of the section his cordial and effective support. The provision against retroactive legislation was then a new constitutional principle, the term "retroactive" being much more broad and comprehensive than the phrase "ex post facto," then in common use. It was urged by such able men as Judge Hitchcock that the power of the retroactive legislation had been exercised beneficially, but Judge Ranney pro- nounced it dangerous. In his judgment the power of curing errors, defects and omissions should be reposed in the courts, and so the convention ultimately de- cided. He considered that as men became more enlightened the stringent laws required to protect the rights of individuals in an uncultivated state of society became unnecessary and the legislative power should be restrained in proportion.

It was Judge Ranney who first proposed that the creditors of corporations should be secured by the individual liability of stockholders, although the form and extent of the proposition were somewhat changed by amendment before its adoption. He met strong opposition from many delegates, who agreed with him that, as an abstract principle, it was right that stockholders should be re- sponsible for the debts of their corporations, but contended that it was impolitic to so provide in the constitution, because it would check public improvements. With terrific sarcasm he replied that to barter away principles in order to push forward prematurely works of public improvement would be "making a most miserable swap," and with eloquence he denounced the abandonment of political principle in matters of legislation. He favored the proposition for the reforma- tion of civil procedure. His ideal for a lawyer was high. In his opinion no one could occupy a respectable position in the legal profession without a knowl- edge of law as a science, which could be attained only by the most assiduous labor and application. He wanted the profession to be relieved of the miserable jargon and mystery of forms and technicalities that it might be left to pursue the noble study of the rights of man, the rights of property and all the varied relations of life subject to legal regulations. He took an active part in the discussions on education, the elective franchise, capital punishment, levying poll taxes, finance and taxation, and the repeal of corporate franchises. His views upon all of these matters were pronounced, but the combined wisdom of all the delegates was greater than the wisdom of any one; so in the closing hour of the convention he had occasion to say that after a careful review of the whole instrument, of all its parts, of every line and word, he believed before God and man that it was one of the best, if not the best, of constitutions of American states, and if the people of Ohio were not well governed thereafter it would be the fault of the people, for the whole responsibility then and thereafter was upon them. He devoted his best thought and labor to the judicial article. His chief objection to it was that it removed the courts of last resort too far from the people. He ob- jected to the district courts because they might be held at only one place in the district, and consequently lawyers and witnesses might be compelled to travel a hundred miles for trial. But most of all he objected to the supreme court, be- cause it was to become substantially a court of errors, sitting at Columbus.

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He looked upon a circuit system as absolutely indispensable. In his judgment a mere paper court would become but little better than mere papers themselves and might as well be filed away in some secure place in the capitol. It was an insurmountable objection that no judge of the court was ever to participate in a trial, face a jury, see the parties, hear the witnesses, study human nature as exhibited in a trial at court or mingle with the people. He also wanted the effect of the circuit system upon the people, because he believed that no court can acquire that power, dignity, influence and authority in the eyes of the people which it ought to have, unless it acts among the people, performs its duties in their sight and places in their view the practical workings of the system of judicial power which acts upon and protects their interests. He and others who agreed with him were able to secure the abandonment of the county courts, for which probate courts were substituted and a provision requiring district courts to be held in every county. This was justly considered a great triumph, but they were unable to secure any substantial change in the duties of the supreme court judges, who, as business increased, were gradually withdrawn from district court duty until they composed simply a court of er- rors sitting at Columbus.

The old supreme court, under the leadership of Judge Peter Hitchcock, was one of the ablest courts in the United States and was acknowledge as such wherever the common law prevailed. It was remarkable for taking certain practical views of the law, which were widely accepted and applied to a great variety of cases. Judge Ranney found himself in thorough sympathy with them, as they satisfied at the same time his feeling of veneration for the prin- ciples of the common law and his love for justice. One of his first opinions is an illustration of this. The owner of a judgment had accepted payment for about one-third of its amount and one hundred dollars for attorney's fees, in satisfaction of the whole, and he refused to enter the satisfaction of the whole. The court recognized the existence of the rule that payment of a sum less than the sum due upon a liquidated judgment, although agreed to be received in full satisfaction, could not be insisted upon as such for want of a valuable consid- eration. Judge Ranney, in giving the opinion, would not set aside this rule: he had too much regard for well settled principles. But he had no hesitation in pronouncing both the reason and the rule purely technical and said that there was nothing of principle left in the rule itself. He therefore held that the pay- ment of one hundred dollars to the attorney instead of the judgment creditor was a sufficient consideration to take the case out of the rule. "I am aware," he said, "that this is an exceedingly technical and unsatisfactory reason, but its justification is found in the fact that the plaintiff seeks to escape from his solemn engagement, by which he has obtained money from the defendant, by the aid of a technicality. To prevent the consummation of such a fraud, he is met with technicalities nearly as absurd as that upon which he insists."

A somewhat different illustration of the view which the court took of the force of the English common law, which also shows the effect of Judge Ran- ney's early life upon the formation of his opinions, is found in his opinion of cattle running at large.

(C. H. & D. R. R. Company vs. Watterson, 4 O. S., 424.)

After holding that before any statutory inhibition the owner of domestic animals was not in fault in suffering them to run at large, he said: "I am aware that this is flatly opposed to the common law doctrine upon the subject and if the rule of the common law was enforced in this state it would be entirely inad- missible ; but it is not in force, and it is not in force because, in addition to being utterly inconsistent with our legislation, it lacks all the essential requisites that give vitality to any principle of the common law and is opposed to the common understanding, habits and even the necessities of the people of the state. Indeed, with the strict enforcement of such a rule the state could never have been settled. The lands were all heavily timbered, and the. introduction of do-

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mestic animals, from the scarcity of herbage, requiring a wide range for their support, became indispensable before the forests could be removed. It would have been a novel proposition to a sturdy pioneer, when he listened in the morn- ing for the bell that indicated where the oxen that had hauled his logs together for burning might be found, to have told him that his cattle were trespassers on every other man's unenclosed land upon which they might have fed during the night ; or that he could plant corn without enclosing the ground, and sue his neighbor whose cattle had eaten it up."

The tendency of the court in Judge Ranney's time to sustain the title of occu- pants of land under generally acknowledged titles whether strictly legal or not, as against those who sought to gain possession under technical rights after the lapse of years, is shown by his opinion in Lessee of Blake vs. Davis (20 Ohio, 231). The title of the plaintiff came from a married woman. The title of the defendant came through an administrator's sale which had no validity. An allotment had been made by the trustees of the district known as the Ohio Company's Purchase, and the plaintiff claimed that the woman who was grantor was entitled to the benefit of the presumption that a deed had been delivered in pursuance of the allotment. The court conceded that the claim was well founded if the plaintiff was in a position to avail himself of the claim; but after a careful review of all the authorities Judge Ranney said that the whole doc- trine rested upon the idea that titles and possessions are to be quieted, not dis- turbed by it; that right and justice are protected in its application, not injured ; in short, that it is only what ought to be done that can be considered as done. Referring to the plaintiff's grantor, he added: "She has no legal advantage, but now seeks by presumption to get it. To get it she must present an honest, not a technical case. She cannot in honesty take this land from the occupants while her father's estate was relieved by the very money that paid for it, and when she has acquiesced in the action of the administrator for more than half a cen- tury. I know it is said that she is a married woman, but I have yet to learn that even a married woman has a right to do a wrong. We take from her no rights, we only prevent her from taking the rights of others."

It was Judge Ranney who pronounced the opinion, reviewing all the author- ities in England and America, in which the rule was settled for Ohio that the transfer of a negotiable promissory note secured by mortgage on real estate to a bona fide endorsee, does not entitle the holder to foreclose the mortgage, when it appears that both note and mortgage were obtained by fraud. (Bailey vs. Smith, 14 O. S. 396.) "Mortgages," he said, "are not necessities of commerce ; they have none of the attributes of money; they do not pass in currency in the ordinary course of business, nor do any of the prompt and decisive rules of the law merchant apply to them. They are securities, or documents for debts, used for the purpose of investment, and unavoidably requiring from those who would take them with prudence and safety, an inquiry into value, condition and title of the property upon which they rest; nor have we the least apprehension that commerce will be impeded by requiring the further inquiry of the mortgagor, whether he pretends to any defense, before a court will foreclose his right to defend against those which have been obtained by force or fraud."

Perhaps the decision of most far-reaching influence and importance in every- day, practical affairs which he ever delivered, was in the case of Railroad Com- pany against Keary (3 O. S., 201), which elaborated and made effective a rather weak decision of Judge Caldwell in 20 Ohio, 314. The latter held that when an employer places one person in his employment under the direction of an- other also in his employment, such employer is liable for injury to the person of the servant placed in the subordinate position caused by the negligence of his superior. Judge Ranney in the case of Keary, with the unanimous concurrence of the court, declared the rule and the principle thus tersely: "No one has the right to put in operation forces calculated to endanger life and property without placing them under the control of a competent and ever-acting superintending

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intelligence. Whether he undertakes it or procures another to represent him, the obligation remains the same, and a failure to comply with it in either case imposes the duty of making reparation for any injury that may ensue."

W. S. Kerruish contributes the following from his personal recollections : "I was a law student in the office of Backus & Noble at the time Judge Ranney removed from Warren to Cleveland and became the head of that firm in 1857, after his first resignation from the supreme bench. Not long thereafter Mr. Backus was chosen as the republican candidate for supreme judge of the state, and the democratic party selected from the same office as its candidate for the same bench, Judge Ranney. It was said at the time that these candidates were both alike not only surprised, but also each disappointed, at the result of the subsequent election-Mr. Backus at being defeated, and Judge Ranney at being elected. My knowledge of him began upon his accession to the above named firm. He was then in his early prime. Though comparatively young, he had already attracted the attention of the bar of the state for the grasp and vigor of his mind, for the marked ability with which he dealt with constitutional questions, and for his extraordinary judicial force and clearness. Anterior to his elevation to the bench, as one of the younger members of the constitutional convention and as one of the most active of the committee on judiciary in that body, the marked ability displayed by him in counsel and debate may be said to have first challenged general attention. Judge Peter Hitchcock, himself a mem- ber of that body and having for nearly a generation been an occupant of the supreme bench of Ohio, in the light of the young Ranney's capability and the con- structive character of his talent, then prophesied that his young democratic col- league would one day be the leader. An examination of the two volumes con- taining the proceedings and debates of the convention will disclose that although in the first part of those proceedings Ranney's appearance was unfrequent- he was a modest man-yet before the deliberations were half ended he appears to have found his place, and the convention to have found its man; and the result is that the admirable judicial system imbedded in our constitution today bears the marks of no other man's genius so visibly as it does that of Rufus P. Ranney. So much by way of introduction and as the background of a few im- pressions made on my mind by him when he took his place in the office of Backus & Noble. I was less brought into contact with him, he being the leading member of the firm and to some extent a stranger in the city, than a law student under similar circumstances might be at the present time, perhaps. 'A's I re- member it, he was not especially communicative or effusive. I do not mean that his manner was repellant, or that he was difficult of access or unduly dig- nified; but the impression the average young man would get of him in those days, could be expressed as follows: 'There's a man who can tell us all about it; but state your point clearly, avoid all circumlocution, nonsense, and irrel- evancy, and he will tell you all. There were old friends-friends of his earlier practice, Judge Spaulding, Judge Tilden, Judge R. F. Paine and others-with whom he delighted to unbend himself, and they often met, and not withstanding the gravity and dignity of the interlocutors, the wit and banter and merriment and good-humored personality, long to be remembered by the listener, would equal the best pages of Noctes Ambrosianae, and Judge Ranney was not behind any of them. I have an experience of his wonderful tact and delicacy in encour- aging a beginner. It fell to my lot at the commencement of my practice to defend an old gentleman for a felony in which, if there were pretty strong symp- toms of technical guilt, there was at least the mitigating circumstance of igno- rance and inexperience; and my client, becoming alive at last to the gravity of the situation, suggested that I get additional counsel. I selected Judge Ran- ney. He took the second place at the trial table and, notwithstanding my protest, firmly but courteously declined to take the first place. He omitted noth- ing, however, by way of suggestion, but clothed every suggestion with such out- ward circumstances of deference to his young associate as to carefully conceal

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A history of Cleveland, Ohio, Volume III, Part 55

Author: Orth, Samuel Peter, 1873-1922; Clarke, S.J., publishing company Publication date: 1910 Publisher: Chicago-Cleveland : The S.J. Clarke Publishing Co. Number of Pages: 1106

Author: Orth, Samuel Peter, 1873-1922; Clarke, S.J., publishing company
Publication date: 1910
Publisher: Chicago-Cleveland : The S.J. Clarke Publishing Co.
Number of Pages: 1106