text:
    FAILURE OF A SCHOOL BOARD ACT IN UNIFORMITY OF OPERATION.
    Circuit Court of Hamilton County.
    State, ex rel Stephen B. Marvin, v. John M. Withrow.
    Decided, March 6, 1909.

      Constitutional Law — Uniformity of Operation of Section 3897 — Destroyed by Its Terms — Boards of Education — Office and Officer — Quo Warranto.

    1. The uniformity of operation of Section 3897, relating to boards of education in city districts, as amended in 99 O. L., 584, is destroyed by force of the terms of the act, and as amended this act • is therefore unconstitutional and void.
    2. Previous to its amendment this act was general in character, and so far as its terms were concerned operated uniformly throughout the state, and divested of the amendment the act is unconstitutional.
    3. 'The president of a board of education is an officer within the meaning of the statutes providing for his election and fixing his duties.

      Simeon M. Johnson and William Thornclyhe, for the relator.

      Worthington & Strong, contra.
    Swing, J.; Giffen, P. J., and Smith, J., concur.
   The facts which are decisive of the issues are not in dispute. Section 3897, Revised Statutes, passed in 1904, provided that in city school districts the board of education should consist of not less than two members nor more than seven members elected a large, and not less than two nor more than thirty members elected from sub-districts. It further provided that in cities containing a population of less than 50,000 the board of education should consist of not less than three members nor more than seven members elected at large.

Under the provisions of this act, the five cities of this state having a population of over 50,000 had, at .the time this act was amended, May 9, 1908, boards of education constituted as follows;

CITY SCHOOL BOARDS. AT LARGE. SUB-DIS.
Cincinnati...........3 24
Cleveland . . 5 2
Columbus...........3 12
Toledo.............3 2
Dayton............2 10

This act was amended May 9, 1908 (99 O. L., 585). By this amendment it is provided that in city school districts the board of education shall consist of not less than three nor more than seven members elected at large, provided that in cities having a population of more than 50,000 persons the board shall consist of not less than two nor more than seven memb'ers elected at large, and of not less than two members nor more than twelve members elected from sub-districts. By this act the members to be elected at large from cities is changed from “not less than two to not more than seven at large” to “not less than three to not more than seven, ’ ’ with a proviso that in cities of more than 50,000 it should consist of not less than two nor more than seven members at large and not more than twelve members from sub-districts. Cities of more than 50,000 are thus brought within the proviso, whereas in the former act cities of less than 50,000 were brought within the proviso. It is further provided in the act .as follows:

“Provided, further, that whenever the number of the members of the board of education in the school districts of cities which at the last or any 'subsequent federal census may have a population of more than 50,000 persons is changed under the provisions of this act, then such board of education shall consist of not less than three members nor more than seven members elected at large by the qualified electors of such city school district.”

The effect of this act was to change the board of education in Cincinnati and not in the other four cities in the same class. It deprived the city of Cincinnati from having in its board of education any members from sub-districts, and required the board to have at least three members at large instead of two members at large, which the other cities might have, and which the city of Dayton now has. The act, therefore, does not operate uniformly throughout the state in -cities within the same class, and the uniformity is destroyed by force of the- terms of the statute, and not by the discretion lodged in the cities themselves.

Nor -does this act bring Cincinnati- within the provisions of the' statute applicable to cities under 50,000 persons — for the' board created by this act contains members-at large who were not elected by the qualified electors of the city at large, but members at large who were elected from sub-districts and who became members at large by being chosen by lot. The result is that this act applies only to the city of Cincinnati. That it was intended by the Legislature to apply -only to the city of Cincinnati is certain by the terms of the act when considered in connection with the facts that existed at the time in the different cities of the state. If there could possibly be any question as to this, it is quickly dispelled by reading the Ii-ouse and Senate journal- at the time of the passage of the act.

Having arrived at this- conclusion, little else-need be said; nothing by way of argument — for it is now -a settled law of this state that a law -of this character is a law of general nature and must-have a uniform operation throughout the state, as required by Article II, Section 26, of the Constitution.

The Supreme Court of fhe state having so frequently declared such attempts- to violate this wise provision of the Constitution to be invalid, it seems somewhat strange that this law was enacted.

It is urged that the office -of president of the board of education is not a public office, and therefore Section 8, Revised Statutes, which provides that any one holding an office or public trust shall continue therein until his successor is elected or appointed' or qualified, does- not- apply to the relator, his term of office having expired January 1, 1909.

We think, however, that the office of president of the board of education is an office coming .under this section. Under Sections 3974, 3980, 3982, 3983 and 3984, the president performs other duties besides acting as presiding officer at the meetings of the board, and by virtue of his office he performs for the state the important office of executing deeds for real estate and being the custodian of the bond of the clerk. It would seem to be an office under the holding of the Supreme Court in the case of Attorney-General v. Anderson, 45 O. S., 196.

It is further urged that the relator has estopped himself by his conduct in participating under the law in the reorganization of the board. We think this proposition can not be maintained. Mt. Vernon v. State, 7 O. S., 428, and the leading case of Turnipseed v. Hudson, 50 Miss., 429.

It is unfortunate, to say the least, that the affairs of this important board should be placed in this confused condition, and, while we regret it, it is not within our -judicial power to prevent it.

It is urged that if the law of 1908 is unconstitutional the law of 1904 is also unconstitutional, but we are not inclined to hold that the law of 1904 is unconstitutional. The law is general in character, and, so far .as the terms of the law are concerned, operates uniformly throughout the-state. The discretion lodged in' the cities as to the number of the members constituting the board does not destroy the uniformity of its operation.

If we are correct in our conclusions, it follows that the relator is entitled to the office.

DECISION ON REHEARING.

This case was heard and decided, and on motion for a new trial full time was given. for oral argument, and additional briefs have been submitted on both sides. This is justified when the great importance to the public of the question involved is considered.

Before proceeding to a decision of the question at issue the court desires to say, that at the conclusion of the oral argument at the former -hearing and the submission of briefs, the court did not understand that further briefs were to be submitted and the decision of the case postponed on that account. The court deemed the case of great importance to the community, and that an early determination by the court of the case would be desirable, especially as the Legislature was about to adjourn, and if the court found any defects in the law such defects might be corrected by the Legislature before adjournment. With this idea in view the court immediately took up the ease and considered it, and the result was the decision heretofore announced. The decision was reached before the additional brief of the relator was handed in.

In our former decision we thought the question raised, that the relator could not be heard in this action by reason of his conduct, was settled by the decision of Turnipseed v. Hudson, 50 Miss., 429. It seemed to us to be directly in point, and that it had the sanction of our own Supreme Court as correct law on the question that it did decide, and therefore we contented ourselves by simply saying -that the question was determined by that case; but it is urged with much learning and ability by the learned counsel for the defendant that the Turnipseed case is not the leading case on the subject, and that it is not iti point in -this case.

This question is-discussed by counsel under the heading,/‘Acquiescence. ” '

In Herman on Estoppel and Res Judicata, in Chapter- XII, Estoppels in Pais and Equitable Estoppels-, at Section 776, the author says:

‘•‘If a person having a right and seeing another person about to commit, or in the course of committing, an act infringing upon that, right, stands by in such a manner as- really to induce the person committing the act and who might otherwise have abstained from it, to believe that he assents- to its being committed, he can not afterwards be heard to complain of the act. This is the proper sense of the term ‘ ‘ acquiescence ’ ’ and in that sense it may be defined “quiescence” under sicch circumstances as assent may be reasonably inferred from it, and is no more than an instance of the law of estoppel by words or conduct.”

The decisions in which this term is mostly found are those in eases involving rights to land. We have only found one case in the English cases-in quo warranto where this- term is used. (There may be many others, however, as we have made no extended search.) It is -the case of The King v. Dawes, 1 W. Bl., 634. Lord Mansfield in deciding that case says:

“Therefore, upon .these grounds, taken jointly and not separately (1) the behavior and long acquiescence of the informers knowing the disqualification, and (£) the motive of informers for now moving it, and (3) the probable consequences to the borough of granting this information, we are all of opinion that it would be contrary to the trust reposed in this court by the statute of Queen Anne for quickening the amotion of usurpers to permit these informers to have the assistance of the court in this ease thus circumstanced.”

The “long acquiescence” in this case was from 1753 to 1767. In the other English eases to which we have been referred the rule of law that there obtains, we think, is fairly stated by Lord Denman in the case of The Queen v. Greene, 42 E. C. L., p. 760, as follows: p

“I am of.the opinion that the objection here taken is good.- It •is not necessary to scan particular cases. The principle is that he who. has concurred in inducing a party to exercise an office can not be heard in this court on an application to turn him out of the office.”

Williams, J., in the same ease says:

'“If Brassington, knowing the supposed irregularity in this election, still administered the declaration without which Greene could not act, he can not now complain that Greene is acting. ’ ’

It can not be claimed that Marvin knew that this law was invalid. His conduct was brought about by the terms of the statute,' and Withrow took the office, not by reason of the conduct of Marvin, but because as he thought the law authorized it, and which he still claims is authorized by it and which he claims is valid.

It is not necessary to set out the facts in the Turnipseed case, nor to refer to the different propositions contained in the syllabus. The force of the argument on which the decision rests is found in the latter part -of the decision and is as follows-:

' “The true rule in' a case like the one before the court would •seem to be that in order to create a vacancy the party must permanently disable himself from performing the duties of the office, either by. himself or deputy, or he must by acts and declarations manifest a clear intention to willfully abandon the office and its duties, an intention not shown by the record.
“Holding the order of -the board of supervisors declaring a vacancy in the office in dispute standing alone unacted upon, to be nugatory, this cause is narrowed down to the single question, whether the delivery by the respondent was a resignation by implication so as to create a vacancy. No determination on the part of the relator to abandon the office, in any sense of that term within the authorities, is manifest. On the contrary he did not desire to vacate. It is apparent that he was deluded by the unwise and illegal statute. # * *
“In view of this discussion the case at bar may be summed up thus: that both parties acted under a delusion caused by what proved to be an illegal statute and a void election; that Hudson acted upon no representation express or concealed of Turnipseed, but upon the statute referred to; and that the relator delivered the office to the respondent, not from a desire purposely or willfully to abandon the office and its duties, but in obedience to a law of the Legislature, approved by the Governor, and its,.enforcement threatened by the local, district attorney. When the act which has caused this litigation was declared unconstitutional, the relator demanded of the respondent a restoration of the office to which, upon the record and the authorities as they are understood, he was legally and equitably entitled.”

It can scarcely be claimed in the ease at bar that the defendant was induced to take the office in controversy by any representations made by the relator, or that the relator did anything other than manifest a desire and willingness to comply with the act of the Legislature, which no doubt at the time he believed and had a right -to believe was a valid act. No intention to abandon the office is shown by the relator, and there is a total lack of evidence tending to show that he either induced or tried to induce the defendant to accept the office, either through represensations express or implied. If these -elements are lacking in the case, it is difficult to see wherein -the relator has estopped himself by this conduct from asserting his right herein.

We can not help but think the Turnipseed case is in point, the only difference being that in that case the law had been declared unconstitutional, and in this case it is sought to declare the law unconstitutional, the rights of the parties in either case depending on the illegality of the act. But this can make no difference when considering the conduct of the parties with reference to the different acts. At the time the parties acted, both laws were regarded by the parties as being legal, and their conduct must be looked at with this idea in view. Of course in this case, .if the law is valid, the relator has no standing in court. His 'rights depend upon its invalidity, and it seems to us that estoppel -by conduct has not been shown.

We adhere to our former judgment in holding the law unconstitutional. Nor do- we .think much should be added to what was said in the opinion. While the act in question is properly subject to criticism as to its wording,' its intention and meaning seem free from doubt. We arrive at this conclusion after giving due consideration to all of the words of the act, taken in connection with the facts that existed at the time and this mischief to be remedied by it. When thus 'construed it can haye but one intent and purpose, and that is/to create in the-city o,£ Cincinnati a “small” school board. Courts can not profess ignorance of facts universally known.

It is equally clear that -the intent and purpose of this act was that it should not affect the other four cities placed in the same class by the act of 1904. To hold otherwise would defeat the clear intention of -the Legislature, and give an effect to the act that was clearly not contemplated. The purpose of this act was to change the school board of the city of Cincinnati, which it then had,, and which was a large board consisting of twenty-seven members, to a small board consisting of not less than three and not more than seven members. At the same time it was the intention of the Legislature that the other cities in the same, class with Cincinnati should not be compelled to change their boards from large to small boards. It follows that it did not operate uniformly throughout the 'state.


source: Caselaw Access Project

license: Public Domain

text:
    INJURIES FROM A FALLING SIGN.
    Circuit Court of Franklin County.
    Owen Smith v. Henry Miller and James T. Miller.
    Decided, February, 1909.

      Negligence — Action for Injuries Where a Sign Nell on a Pedestrian— Landlord and Tenant — Oircumstances Fixing Liability — Evidence —Verdict Directed for the Defendant.

    1. The fact that a sign fell to the sidewalk, injuring a pedestrian who • was passing thereunder, affords some evidence, as a matter of law, that someone was negligent in not maintaining it in a safe condition.
    2. But liability in such a case depends upon who was in possessio.51 and control of the building at the time of. the accident; and -where there is no testimony that the defendants owned the building, pr were in possession or control, and therefore no evidence that they were bound for repairs, it is not error to direct -a verdict in their favor at the conclusion of the testimony for the plaintiff.
    Samuel Huston, while the owner of a business block in Columbus, this state, rented certain front rooms to Ei G-. Orebaugh for the purpose of a real estate office, but reserved no control over these rooms. Mr. Orebaugh sublet desk room to D. B. Hillis, an insurance agent. Mr. Hillis placed a sign under the window in front of his office — a long board, upon which was painted the word “Insurance.” In 1903, Mr. Huston sold the building to James Miller, and Mr. Orebaugh continued as a tenant under an annual lease. Less than one year after the sale of the property, the sign blew down during a storm, and in falling struck the plaintiff in error, who sued Henry Miller for $10,000, and subsequently brought in James T. Miller by amended petition.
    Mr. M. E. Thrailkill argued in behalf of the defendants in error that, in Ohio, a tenant or lessee has a right to put up signs on a building which he leases, subject to municipal regulations. A tenant leases the outside as well as the inside of the building, and the lessor can not prevent his- putting up signs unless such a restriction is in the contract of lease; and the weight of authority seems to establish the following rules:
    1. Where there is an inherent fault in design or construction, chargeable direct’y to the lessor, he may be held liable.
    2. Where the dangerous cdndition arises from an act of the lessee or tenant, or after the letting, the lessor is not liable unless he retains control over the premises and negligently permits a nuisance. ’
    3. Where property is demised, and at the time of the demise is not a nuisance, but becomes so by the act of the tenant while in his possession, and injury happens during such possession, the owner or lessor is not liable. Citing.: Shindelbeck v. Moon, 32 O. S., 264; Edwards, Admr., vs Rissler, 5 C. C.—N. S., 44; Burdeck v. Cheodle, 26 O. S., 393; Bailey v. N. O. U. Gas Co., 4 C. C., 471; Schwalbach, Admr., v. Shinkel, 42 B., 170; Persell v. English, 10 B., 143; 18 Am. & Eng. Enc., 240, et seq.; Thomas on Negligence, p. 710.
    Sullivan, J.; Dustin, J., and Allread, J., concur.
   Plaintiff in error contends he was prejudiced by the courts below in sustaining the motion of the defendants in error to direct a verdict in their favor, at the conclusion of the testimony introduced by him in support of the averments of his petition. Judgment for defendants’ costs was entered up against plaintiff in error, and these proceedings are brought to reverse said judgment.

The action was brought by plaintiff in error to recover damages for injuries resulting from the defendants’ negligence.

The acts of negligence set forth in the petition are that the defendants, being owners and controllers of a certain building fronting and abutting upon High street in the city of Columbus, some five years prior to the injuries to plaintiff, the erection upon the front of said building upon the third story and about thirty feet above the sidewalk in front of said premises a wooden sign twenty-four feet long by two wide and one inch in thickness; that during all of said period it remained on said building in the position described; that in its original construction or by lapse of years it became dangerous and unsafe to-persons in the lawful use of the sidewalk immediately thereunder; that the defendants knew or by the exercise of ordinary care could have known of its dangerous condition,, and plaintiff did not have such knowldege; that on or about the 26th day of December, while plaintiff was walking upon the sidewalk below and immediately in front of said building said sign suddenly gave way and fell upon plaintiff, causing the injuries of whicli he complains.

The answer of the defendants is a general denial putting in issue all averments of the petition necessary to be proven to entitle plaintiff to recover.

Whether the defendants were the owners or in control of the building when the accident occurred was by this answer made an issuable fact. We do mot find any testimony in the bill of exceptions to sustain this averment of the petition.

Neither does .the bill contain any testimony showing or tending to show that the method of attaching the sign to the building was faulty, and the fact as disclosed by the testimony that it had been there for several years prior to the accident would furnish a fair inference, at least, that there was no negligence on the part of any one in that respect. Aside from the fact of the sign falling, there is no testimony that in course of time the appliances attaching it to the building had become loosened, and no longer able to sustain the weight they gave way and the sign fell. This, however, was some testimony in support of the claim that some one at least was negligent in not seeing that the sign in its position was maintained in a safe condition, who would be liable for injuries resulting from this negligence as a matter of law, we think fully settled by the law of this state fixing it upon the party in possession and control of the building at the time.

In the absence of a contract to that effect the landlord is not bound for repairs. This obligation rests upon the lessee in such a case’. If the defect which caused the accident occurred during the occupancy and control by the lessee then the landlord would not be liable. Here, in the first place, there is no testimony showing that the defendants were the" owners at the time, or had any control over the building, and if either owned it, there is no testimony showing or tending to show they were bound for repairs. This being the state of the record, we are therefore of the opinion that plaintiff in error was not prejudiced by the court below directing a verdict for defendants and entering judgment against plaintiff for costs. The judgment is therefore affirmed at costs, of plaintiff in error.


text:
    CHARACTER. OF PROCEEDINGS FOR. VACATION OF A STREET. ''
    Circuit Court of Cuyahoga County.
    In re Vacation of Part of Hartford Street in the City of Cleveland.
    Decided, February, 1909.

      Vacation of Street — Proceeding for, is Special — Not Appealable — Sections 1536-148-149-150 and 5236.

      J. A. Fenner, for plaintiff.

      Newton ID. Balter, City Solicitor, contra.
    ' Winch, J.; Henry, J., and Metcalf, J. (sitting in place of Marvin, J.), concur.
    Heard on appeal.
   ' In this case we hold that a proceeding brought under favor of Sections 1536-148 to 15¡3, Revised Statutes, for the vacation of a street, is a special proceeding, as distinguished from a civil action, and so is not appealable to the circuit court under Section 5226, Revised Statutes.

So holding, the appeal 'is dismissed for want of jurisdiction.


text:
    DISMISSAL OF INSUFFICIENT PETITION NOT RES JUDICATA.
    Circuit Court of Lucas County.
    Ellen St. Aubin v. City of Toledo.
    Decided, January 16, 1909.

      Res Judicata — Decision Adjudging Petition Defective and Directing a Verdict for the Defendant — Does not Preclude the Bringing of Another Action. '
    A decision of the common pleas court holding a petition insufficient in that it fails to state facts justifying its submission to the jury, and directing a verdict for the defendant, is not res judicata of an issue of fact in another suit based upen the same cause of action and between the same parties.

      Peter Emslie, for plaintiff.

      G. A. Northup and G. E. Masters, for defendant.
    Wildman, J.; Parker, J., and Kinkade, J., concur.'
    Error to Lucas Common Pleas Court.
   This is an error proceeding to reverse'a judgment of the court of comon pleas rendered in favor of the defendant below, who is the defendant here, upon the sustaining of a general demurrer to plaintiff’s petition. Although the petition in the first instance clearly discloses facts originally constituting a cause of action, it adds allegations which are claimed by defendant to show that the right of the plaintiff is barred by a prior adjudication. The petition does allege the beginning of a former suit, its partial trial, a motion to arrest the case from the jury and says in substance that the court, holding the petition to be insufficient, directed a verdict for the defendant. It is not averred that either a verdict or judgment was rendered. There is in the present case, however, no demurrer on the special ground that the former action is still pending; and while the petition does not in terms say that the former suit went out of court upon the court’s directing the jury to return a verdict, it is" evident that the pleader really intended to charge that. Indeed, counsel on both, sides have construed this petition as treating the former action as at an end, as having been disposed of by the direction of the court to the jury to render a verdict. In one of the adjudications of the Supreme Court it is stated, in .substance, that the rendering of a verdict by the jury after the court has directed one to be rendered is little more than a technical or formal thing. That the submission of a case to the court on motion to direct a verdict, and the ruling of the court upon that motion, is a decision of the issues to such an extent that it is treated as the final submission to the court, so that a party is not thereafter permitted to dismiss his cause without prejudice. That was held in a case in the Cuyahoga circuit in which I sat with two of the judges of that circuit, Turner v. Car Co., 9 C. C.—N. S., 65 (affirmed, Turner v. Car Co., 79 Ohio St., —), although the court at the time the plaintiff attempted to dismiss had not really directed the verdict, but had only expressed its intention to do so, having upheld the contentions of the defendant. We are disposed then to construe this petition somewhat liberally and broadly, but in - accordance with the construction which has been placed upon it by counsel on both sides, as alleging that the former action was determined, and as assuming that the jury did what they undoubtedly should have done and probably did do, render a verdict as directed by the court, and that the court thereafter did what the court was required to do, that is, render a judgment upon the verdict -in favor of the defendant. That being so, the question is, is that an adjudication of the cause of action so as to bar the present suit?

The case of Rafferty v. Traction Co., 1 C. C. —N. S., 538, was decided by this court while Judges Parker, Hull and Haynes constituted its membership. The opinion was rendered by Judge Hull and the syllabus is:

“A cause of action does not become res ad judicata by reason of the fact that a former suit, involving the same subject-matter was dismissed on the grounds that the petition did not state facts sufficient to constitute a cause of action.
“A plaintiff in such a case stands in the position of one to whose petition a demurrer has been sustained; and the fact that no demurrer was interposed, but instead a motion to exclude the plaintiff’s evidence and direct a verdict for the defendant, which was granted and judgment rendered on such verdict, does not change the position of the.plaintiff nor render his suit res adjudicata.”

This case went to the Supreme Court and was affirmed as entitled, Toledo Trac. Co. v. Rafferty, 71 Ohio St., 497, and the affirmation by the Supreme Court is important, in view of the fact that it is said by the Supreme Court, although the case is unreported in other respects, that the judgment is affirmed on the grounds stated in. the opinion of the Circuit Court of Lucas county, Rafferty v. Traction Co., supra. In other words, the Supreme Court seem to have endorsed the views expressed by Judge Hull.

The petition before me in the ease at bar states that upon the former petition the court concluded that the petition was insufficient, that it did not state facts, and for that reason directed the jury to render a verdict for the defendant. It is impossible for us in view of this allegation to distinguish the case before us from Rafferty v. Traction Co., supra. In other words, we are compelled to hold that the decision of the court of common pleas in the former suit begun by Ellen St. Aubin, that the petition therein'was insufficient in that it did not state facts to justify letting the case go to the jury, and the consequent direction of a verdict for the defendant, did not adjudicate the issue of fact presented in the present suit, and I have already said that the present petition in other respects than those referred to is abundantly sufficient. We think, therefore, that the court below erred in holding that the demurrer should be sustained to this petition upon the ground that the petition does not state facts constituting a cause of action. Lor that reason the judgment is reversed and the cause remanded with directions to overrule the demurrer to the petition, and for further proceedings according to law.


text:
    ULTRA VIRES ACTS BY DIRECTORS.
    Circuit Court of Hamilton County.
    Baldwin v. Egan et al.

    Decided, December 5, 1908.

      Corporations — Good Faith of Directors — Ultra Vires Agreements and Purchases of Property — Will not he Ordered Rescinded, When.

    Where the necessities of a corporation required the rentention of real estate which had been acquired under an ultra vires contract and compromise of pending suits, a court will not in the absence of fraud or bad faith order that the agreements be rescinded and a reconveyance made.

      Charles B. Wilby, for plaintiff in error.

      Morison B. Waiie, contra.
    Gifeen, J.; Swing, P. J., and Smith, J., 'concur.

       Affirming Baldwin v. Egan et al, 5 O. L. R., 476.

   The contract of February 16, 1893, although referring to the purchase of -the real estate by the .pronoun 1 ‘ I ” is signed by “The Egan Company. Thos. P. Egan, Pres’t,” and is therefore the contract of the company..

The agreement to pay $30,000 in stock of the J. A. Fay & Egan Company for the real estate and the agreement to repurchase the stock on or before ten years from date at $45,000 constituted one indivisible contract, and was assumed by the J. A. Fay & Egan Company when it purchased the business — assumed and agreed to pay the debts and liabilities-of the Egan Company.

The contract could not, although ultra vires, be rescinded without a tender and ultimate reconveyance of the real estate.

The necessities of the company justified the retention of the' real estate, and a compromise of the pending suits to recover •the $45,000 on return of the stock, and in the absence of fraud and bad faith the judgment will be affirmed.


text:
    A DECREE OF DIVORCE MAY BE SET ASIDE AFTER TERM FOR. FRAUD AND PERJURY-
    Circuit Court of Mercer County.
    Maggie Mulligan v. Frank Mulligan.
    Decided, December, 1908.

      Divorce — Decree for, may be Reopened after Term — 'Where Asked on the Ground of Fraud and Perjury — Courts not Bound by Rules lohich Protect Fraudulent Practices — Such Rules can not Rest on Their Antiquity or a Mistaken Public Policy.

    1. Courts inherently have the right to protect themselves and the public from fraud and perjury; hence, neither question of public policy nor rule of court which protects and encourages perjury and fraud can be permitted perpetually to impede justice, notwithstanding such rule has been observed for more than half a century and courts reluctantly ups.et well established rules.
    2. A decree of divorce obtained by fraud and perjury, on the facts being shown, may be set aside after the term at which the divorce -was granted, and notwithstanding remarriage of the guilty party. Parish v. Parish, 9 Ohio State, 534, and earlier Ohio decisions not followed.
    I-Iurin, J.; Norris, J., and Donnelly, J., concur.
    Error to Mercer Common Pleas Court.
   On March 5, 1907, Maggie Mulligan filed her petition in this • action seeking to have set aside a decree of divorce obtained against her by her husband, the defendant, at a former term of the court of common pleas.

In her amended petition, subsequently filed, she alleges that that decree was obtained by fraud and perjury, in this, that her husband was not, at the time of filing his petition for divorce, a bona fide resident of Mercer county, and had not been a resident of the state for one year prior to the filing of his petition; that she had no actual notice of such action in time to make her defense; that no other service was sought to be had upon her than by publication in -a newspaper. She alleges that she did not discover said facts during the term or terms in which said action was pending, nor until the twentieth of November in the following year, and that she could not, with reasonable diligence, have discovered such facts. She alleges that Frank Mulligan at all times knew the address and place of residence of this petitioner and that the allegation of his affidavit for service by pulication that “the residence of the defendant, Maggie Mulligan, is unknown and can not with reasonable diligence be ascertained,” was false.

She alleges that said Frank Mulligan practiced fraud and suborned witnesses in obtaining his decree of divorce; that the allegations of his petition as grounds for his divorce are false; she admits that she has been separated from him by reason of his aggression; that she is the mother of -two living children and of'one who has died, and she files a full answer setting up her defense to his action for divorce and asks that the decree of divorce be vacated and set aside and that she may-be allowed to defend.

A demurrer to this amended petition was sustained, and the amended petition dismissed, and plaintiff, not desiring to plead further, prosecutes error to this court.

The original petition for divorce was filed April 12, 1905.,. It appears from one of the pleadings that the entry decreeing the divorce was probably dated June 17, 1905.

Plaintiff says in her petition that she did not learn of that decree until November 20, 1906. ITer petition to set aside the decree was filed March 5, 1907, more than one year and eight months after the granting of the decree. It is not properly before us by any allegation of pleadings, but it is said by counsel in argument, as one reason for not granting the prayer of the petition, that the original plaintiff has married again and hence that the rights of his present supposed wife ought not to be interfered with.

Section 5354, Revised Statutes, provides that:

“The common pleas court, or the circuit court, may vacate or modify its own judgment or order, after the term at which the same was made:
“1. By granting a new trial for the cause within the time and in the manner provided in Section 5309 [and that section limits such action to "one year after the final judgment was rendered and not more than two terms after the discovery — evidently not applicable to this case at bar].
“2. By a new trial granted in proceedings against defendants constructively summoned, as provided in Section 5048 [which provides for the service by publication],
“3. For fraud practiced by the successful party in obtaining judgment or order.”

Both of the two subdivisions last cited are apparently applicable to this ease, as is also Section 5355, Revised Statutes, which provides:

“A party against whom a judgment or order has been rendered without other service than, by publication in a newspaper, may, at any time within five years after the date of the judgment or order, have the same opened, and be let in to defend; but before the judgment or order can be opened; the applicant shall give notice to the adverse party of his intention to make the application, and shall file a full answer to the petition, pay all costs, if the court require them to be paid, and make it appear, to the satisfaction of the court, that during the pendency of -the action he had no actual notice thereof in time to appear in court and make his defense; and each party may present affidavits. ’ ’

It is under this section apparently that the action has been brought, and its provisions have been fully complied with by the present petitioner.

1 In its terms this section is clear and explicit, and apparently applicable to all cases of every kind where no other service has been obtained than by publication. But for some reason, wise or otherwise, the Legislature and the courts of this state have, for a long time, treated divorce suits as if governed by a separate rule and reason from all other suits.

The allegations of the petition in a divorce proceeding are not required to be verified. Distinct rules as to costs distinguish such suits generally from other suits; and it has been held that this statute, clear and explicit and of universal application as it appears to be, must not be held to apply to divorce suits. '

The reason on which all of these judicial decisions are based,is that public policy requires that a “decree which affects directly the status of married persons, by sundering the matrimonial tie, and thereby enabling them to contract new matrimonial relations with other and innocent persons, should never be reopened.” See Parish v. Parish, 9 Ohio St., 534, 537.

This principle was first applied to divorce cases in this state in the opinion of Judge Lane in the case of Bascom v. Bascom, 7 Ohio (pt. 2), 125. He supports his conclusion by reasoning regarding the different forms of testimony in chancery cases and divorce cases — reasoning which would have but little weight under our present practice — but the only reason relied on apparently is that of public policy, which, without discussion, he assumes to be against the granting of any relief to the injured party in divorce cases. That ease w>as followed in the case of Laughery v. Laughery, 15 Ohio, 404, but without discussion and merely as decisive of the question as to the appealability of a divorce case — a question now settled by statute.

Both the cases of Bascom v. Bascom and Laughery v. Laughery, supra, were cited and relied upon in the case of Tappan v. Tappan, 6 Ohio St., 64 — not to determine the question here at issue, as to the right of a court which has granted a divorce to reopen the case on notice of fraud and perjury in obtaining the decree— but to support the holding that there can be no review in Ohio by a higher court of a decision of a lower court granting a divorce — a proposition not now before us.

Judge Scott, however, in an obiter dictum in Tappan v. Tappan, supra, states on page 67, that “these cases may be regarded as settling the question that, as the law then stood in Ohio, the decision of the court on the hearing of a petition for divorce was final, and beyond the reach of judicial revision.” Even this statement of the law, though going beyond the question before the court at that time, and therefore not to be .regarded as conclusive, would not necessarily be applicable to the law as it has since been amended; and, in his subsequent discussion in that case, Judge Scott proceeds to point out defects in the then existing law in certain respects and his views have since been embodied by the Legislature in the law as it stands today.

But in the case of Parish v. Parish, supra, the question now before us was squarely met by the Supreme Court, and the case was decided upon that issue alone, the facts of that case being practically identical with those in the case at bar.

In that case, after a careful review of the authorities Judge Peck concludes as follows:

“We therefore feel compelled, though reluctantly, to hold that sound public policy in this class of cases, forbids us from setting aside a decree of divorce a vinculo, though obtained by fraud and false testimony, on an original bill filed at a subsequent term. ’ ’

: It is evident from this quotation that the Supreme Court realized the extreme hardship which its decision would entail on innocent wives and children, deserted by unscrupulous men who without their knowledge had procured the protection of judicial decrees annuling their former marriages. It is perhaps significant that at the very time this decision was rendered the Legislature had already modified the statute relied upon by that court as showing that, at the time the divorce in that case was obtained, it was final. From page 537 of that opinion I quote:

“The statute of March 14, 1843, conferring jurisdiction in divorce eases upon the courts of common pleas, which was in force when these proceedings were had, provides that ‘no appeal shall be obtained from the decree, but the same shall be fina1 and conclusive.’ 2 Curwen, 991.”

It is significant, I say, that the last clause quoted, viz., “but the same shall be final and conclusive,” had already been expunged from the statute (see 51 O. L., 377; S. & C., 514) and has never since been incorporated in the statutes of Ohio.

But, to continue the quotation, the court, referring to the statute as it had formerly stood, proceeds':

“This statutory provision is nothing more than a legislative recognition of the principle of public policy, which had been repeatedly affirmed by the courts, that a judgment or decree which affects directly the status of married persons by sundering the matrimonial tie, and thereby enabling them to contract new matrimonial relations with other and innocent persons, should never be reopened. Such a course would endanger the peace and good order of society, and the happiness and well-being of those who, innocently relying upon the stability of a decree of a court of competent jurisdiction, have formed a connection with the person who wrongfully, perhaps, procured its promulgation.”

This presents to us in carefully chosen language the grave reasons which influenced that court in holding that a decree of divorce, obtained at a former term of'the court which was asked to set it aside, could not be set aside or annuled.

We can not fail to recognize the gravity of the question. Yet there is another side which we must also consider. In cases such as Parish v. Parish, supra, and the case at bar, there are other innocent persons involved — the innocent wife and children of the -perjured hjisband. Shall it be said that public policy demands that the wife, who for ten or perhaps twenty years has lived with her husband and borne children to him, has no rights which he may not avoid by quietly slipping off to another county .and there swearing that he does not know her address ? Has an affinity greater rights than a wife? Are the interests of a man’s children less sacred than those of his paramour?

Suppose a case! A man has lived with his wife many years— in -the city of Cincinnati, say. When she has lost some of her youthful charm, he tires of her -and finds a younger and fairer charmer. He explains to. his wife that he is interested in oil leases in Wood county, say, which will for a few weeks require his attention. He bids her .an affectionate good-bye and betakes himself to Wood county, where he actually engages in the oil business. He writes to his wife constantly and affectionately and occasionally runs home and spends a day with her. But in Wood county he lets it be known that he is located there permanently and his occasional absences are not noticed. In a few weeks he flies his petition for divorce, swearing that he does not know his wife’s residence or -address. He obtains service by publication, but the papers of that county d-o- not circulate in Cincinnati and his wife never hears of the suit. On the last day of the term his case is tried, a divorce is granted on perjured testimony and the court adjourns. His wife has heard nothing of these proceedings and still supposes that she is his wife. Six months or a year' later she is confronted by her successor — who has been conniving with and probably living with her husband during most of these proceedings, and is then told for -the first time that she is no longer a wife; and that the public policy of this great country forbids that the sacred rights of her husband’s new wife should be interfered with by anything that she can do. Is this a mere dream — an imaginary ease? In almost all of its essential facts it is but a recital' of a ease that actually occurred within the writer’s professional experience. But in' that case the wife did accidentally hear of the proceedings just in' time to prevent the entry of the decree — and the husband suddenly and wisely disappeared. Had 'she been but a few days later in getting her information she would, under the authority of Parish v. Parish, supra, have been wholly without remedy.

There seems, then, ’ to be two sides to' the question,, Public policy has grave responsibility resting upon it.

On the one side must be regarded the rights of the first'wife and her children' — rights guaranteed to them by all the formalities and legal safeguards which the law can provide.' That wife has been married under a license issued in behalf of the state with rigid requirements as to how it should'be obtained; her marriage has been formally performed and registered; she has openly 'lived with her husband as his wife in the face of all the world. Her children have been acknowledged by him as his; she has vested interests in his property and a vested right in his services for her support and the support of her children. Must she, after all this, watch him at her peril' and see to it that he never leaves his home and remains away a week or a month at a time, no matter what his business may require? Must she never permit bim to send her off with the children for fresh air and rest, under peril of finding herself deposed and her children fatherless on her return ? Is she to live in constant fear that some day she will receive a newspaper clipping from a county of which perhaps she has almost never heard, announcing his divorce and remarriage on the same day and then learn that because the court on that same day adjourned for the term, the decree is final and she is helpless? If ill-health requires her to go to a hospital or a sanitarium for treatment, must she enter its doors with the fear haunting her that when she recovers her physical strength a,nd returns to her home, it will be to find another woman installed as. wife and mistress of the household, and this under the full sanction of the law ? That is the meaning to her of the case of Parish v. Parish, supra. That is what public policy is there said to do to her. .

But much may be said on the other side. Where an innocent, woman marries a man whom she has known perhaps for a year or for two or three years and has- had no reason to suspect that he ever had a wife; when he tells her that he has lived where he never did live, or otherwise conceals his past; or where, possibly, he finally admits that he has been divorced and tells her truthfully that service was obtained by publication, but tells her also that, his former wife had deserted him and that he knows nothing of her whereabouts. Suppose sbe investigates and finds nothing which discloses the true state of facts. A¥bat are her rights? Is she to be turned out of her home years after her marriage? Are her children to be declared illegitimate by a decree setting aside her marriage and the divorce from the former wife?

We frankly admit that we have sought in vain for a solution, oil: this question which will do justice to both of these victims of this perjured husband — for by the demurrer he is admitted, for the-purposes of this case, to be all that and more too, whatever the facts may be as to the truth of these charges of perjury and fraud.

But the question in this case goes- further: Suppose that in fact there was no fraud and no perjury on the part of the party obtaining the divorce-; suppose that' the grounds alleged in the petition were all true; suppose that the residence of the defendant in fact was not known; suppose that it is the former wife who, angered at the present happiness of her former husband, now seeks- to harass him 'by false and fraudulent claims! What then? Should the innocent party, having married again, be subjected to a retrial and his rights and those of his new wife be jeopardized?

But here it'must be said that there is better protection against fraud and perjury; for the law requires actual notice of the pendency of this application for a reopening of a ease and gives every possible safeguard against fraud. Moreover, it requires an actual trial before the decree can be reopened with ample oppoiv tunity for proof, and if the charges are false, the party opposing has every opportunity of proving that fact. The parties both being in open court are both subject to the orders of the court — a very different situation from an ex parte hearing in the absence of the party most directly concerned and without her knowledge.

We have read with care the two Massachusetts cases relied upon by Judge Peck as supporting the decision in the ease of Parish v. Parish, supra. Both rely on this same principle of public policy. Perhaps neither of those cases could be, strictly speaking, regarded as.parallel to the case at bar; but the principles at issue.were in each of them discussed.

The case of Lucas v. Lucas, 69 Mass. (3 Gray), 136, was an attempt, by a defeated plaintiff, to reopen a divorce case, and to obtain a divorce denied him at the former trial in which his petition was dismissed. The case was considered principally upon the technical question as to whether a divorce suit is a civil action or a judicial proceeding, and whether as a consequence a writ of review should be granted. But the opinion is based finally on the question of public policy.

The case of Greene v. Greene, 68 Mass. (2 Gray), 361, was an action'by á wife asking a divorce on the ground of desertion, but alleging that the husband had previously (and*, as she avers, falsely and fraudulently) obtained a divorce against her' on the ground of adultery; and, as a basis for her suit, she asks that this former decree be set aside.

The opinion in that case is expressly stated to be based on the doctrine of res judicata as settled in that case and as applied to the case of divorce. This will not help us in this case at bar, for our statute expressly opens up all cases for reconsideration within five years in contradiction of‘the doctrine of res judicata, unless under the rule in Parish v. Parish, supra, a bar is established on other, grounds.

But in the opinion in Greene v. Greene, supra, the court, after basing its decision on the doctrine of res judicata, turns to a discussion of public policy as controlling the ease and considers only the consequences that would follow a retrial without •any consideration of what might follow a refusal of a retrial in a proper case. Neither of these Massachusetts cases therefore is helpful in the case at bar, except for the support which they give to the doctrine that public policy demands, in divorce cases, the adherence to a decree once rendered because of the evil consequences which are likely to follow the opening of such decree as affecting the rights of third parties.

"When these cases and Parish v. Parish were decided, this question was comparatively a new one; but since that time the courts of almost every state in the Union have been called upon to consider it.

In some states the Legislature has passed laws governing the situation of the parties, as for instance Missouri, which by statute has provided that “no petition fot review of any judgment for divorce rendered in any case * * * shall be allowed, any law or statute to the contrary notwithstanding.” And the courts of that state hold that this statute bars the same court in the same proceeding, or even courts of equity, from setting aside a divorce decree in a new ¡oroceeding, where the record shows the necessary -jurisdictional facts which are found by the court to exist. Hansford v. Hansford, 34 Mo. App., 262; Salisbury v. Salisbury, 92 Mo., 683. The latter ease cites with approval Parish v. Parish and Greene v. Greene, supra.

Iir Kansas the statute allows six months after the rendition of 'the divorce decree. In that state and within that period, a defendant in divorce proceedings served by publication may bring suit to vacate the decree (Hemphill v. Hemphill, 38 Kan., 220). And if the action is commenced within two years after the discovery of fraud in obtaining the divorce, the decree may be vacated upon a proper showing. Larimer v. Knoyle, 43 Kan., 338.

In Illinois a decree of divorce against one notified by publication only and who does not appear is not absolute until three years after it is entered, but conditional and subject to be set aside, even though the complainant may have married before it is set aside. Lawrence v. Lawrence, 73 Ill., 577. Also, Whittaker v. Whittaker, 151 Ill., 266.

Anri so, many other states have enacted similar statutes designed to meet the difficulties of such cases and to protect innocent parties from decrees of divorce obtained by fraud.

In Kentucky, under a statute similar to the Ohio statute, when a husband has obtained a divorce on constructive service, the wife is entitled to appear in court within five years and move for a rehearing. Meyar v. Meyar, 60 Ky. (3 Metc.), 298.

In Nebraska á similar statute was formerly (1880) held not to apply to a divorce ease — see the case of O’Connell v. O’Connell, 10 Neb., 390; but in a later case, decided in 1893, it was held that the court, which-had formerly allowed the decree (fraudulently obtained), could in the exercise of its general equity powers vacate it on proper showing of fraud and imposition, though the petition was not filed until eleven years after the decree. Smithson v. Smithson, 37 Neb., 535 (40 Am. St. Rep., 504).

In the case of Wisdom v. Wisdom, 24 Neb., 551 (8 Am. St. Rep., 215), it was held that courts of general jurisdiction have power to set aside or- vacate decrees of divorce, after the term at which the decree was rendered, when obtained by fraud.

In Indiana, while the earlier decisions denied the right to a retrial of a divorce suit, even within the statutory time allowed in other cases (see Ewing v. Ewing, 24 Ind., 468), yet it was held in’1883 that a decree of divorce obtained by fraud will be vacated in a direct proceeding, if plaintiff had acted promptly after discovering the fraud. Earle v. Earle, 91 Ind., 27.

In New York the courts have gone a great way in granting protection to a party defrauded in a divorce proceeding. In the case of Miller v. Miller, 37 How. Pr., 1, a defendant was allowed to come in two years after the decree and file her motion set aside the decree. See, also, Weidner v. Weidner, 85 Hun., 432 (32 N. Y. Supp., 894); Van Rhade v. Van Rhade, 9 N. Y. S. C. (2 Thompson & Cook, 491); Singer v. Singer, 41 Barb. (N. Y.), 139; Jewitt v. Jewitt, 2 N. Y. Supp., 250; Robertson v. Robertson, 9 Daly (N. Y.), 44.

In Pennsylvania it was held in the ease of Fidelity Insurance Co’s Appeal, 93 Pa. St., 242, that:

“Upon sufficient cause shown,' decree of divorce may be vacated, although the libellant is dead and more than twelve years have elapsed since the decree was made.”

And so, in many of the states, the courts, independently of statute, have passed upon this question.

In Minnncsota a decree of divorce obtained by the fraud of the husband, was set aside in a suit commenced one year and seven months after the decree of divorce. Young v. Young, 17 Minn., 181; Colby v. Colby, 64 Minn., 549.

In Illinois a divorce obtained by fraud of which the proof was clear, was set aside on a bill of review • brought after the lapse of fourteen years; and the fact that defendant had married again and had children was held of no consequence.. The court then held that, notwithstanding a statute providing that the defendant in a decree rendered on constructive notice, may on petition within three years thereafter appear;and answer, and that such decree if not set aside within that time shall be 11 deemed confirmed,” this does not bar a defendant in a divorce decree, fraudulently obtained on publication, from filing a bill to impeach it after the expiration of three years. Caswell v. Caswell, 120 Ill., 377. And in that case the court say:

“The fact of appellee’s remarriage, of there being children thereof — although we do not see in the record proofs' of such children — and of the hardship which will result to innocent persons from setting aside the decree of divorce, are dwelt upon as objections to the granting of such relief. Such ill consequences we can appreciate and must regret, but yet they do not form reason sufficient for a denial of the exercise of the court’s power to vacate such a decree, obtained by fraud, as has often been determined.” Citing, Crouch v. Crouch, 30 Wis., 667; Rush v. Rush, 46 Ia., 648 (26 Am. Rep., 179); Whitcomb v. Whitcomb, 46 Ia., 437; Edson v. Edson, 108 Mass., 590 (11 Am. Rep., 393); Bishop, Mar. & Div., Sections 751-753a, and other authorities.

While the courts of Missouri, in obedience to a mandatory statute, follow the Ohio rule of Parish v. Parish, supra, and the supposed precedent of the Massachusetts cases of Greene v. Greene and Lucas v. Lucas, supra, we have found no case in any other state, where upon facts similar to those in the case at bar relief has not been granted upon proof of due diligence on the part of the party complaining of the fraud.

But even in Massachusetts, the supposed precedents of Greene v. Greene and Lucas v. Lucas have been completely departed from or explained away.

In the case of Carley v. Carley, 73 Mass, (7 Gray), 545, it was held that:

“A decree of divorce, obtained by fraud, and without the libelee’s knowledge, may be set aside on the application of the libelee at the same term.”

But in a later casé, the ease of Edson v. Edson, supra, this whole subject was reviewed and the court held as follows1:

“This court has power, upon the petition of the party aggrieved, to vacate a decree of divorce obtained at a former term against the petitioner by false testimony, on a libel of which she had no actual notice, knowledge of which was fraudulently kept from her by the other party, and of which the court had only an apparent jurisdiction, founded on his false allegations of domicile.”

The facts in that ease were in all essentials indentical with those in the case at bar, and Bigelow, C. J., in his opinion says:

“The question to be determined, is whether a judgment so obtained can be re-examined and set aside by the party aggrieved by the fraud, or whether it is to be taken as forever binding and conclusive on the rights and obligations of- the parties.
‘ ‘ The statement of the question is of itself sufficient to make it apparent that, if there is no remedy by which judgments so procured to be rendered can be impeached and annuled, courts of justice may be made instruments by which the grossest frauds may be successfully accomplished, to the great wrong and injury of innocent persons. Such a conclusion can not be supported, unless it is founded on adjudicated cases which the court is bound to regard -as obligatory declarations of the law, or upon reasons of the most decisive and satisfactory nature.
“Upon careful examination of the authorities we are entirely satisfied that they do not sustain the doctrine, that courts have no power to grant relief to parties to a suit, against whom a judgment has been obtained by fraud. It is no doubt true, that a decree or judgment which stands unreversed and in force can not be called in question or impeached in collateral proceedings by one of the parties to the original suit; but it is a very different proposition to maintain that an innocent party can not invoke the power of the court by which the original judgment or decree was rendered, to vacate and annul it on the ground that it was procured by a fraud practiced on the court to his gross injury. We believe it to be an established principle of jurisprudence, that courts of justice'have power, on due proceedings had, to set aside or vacate their judgments and decrees, whenever it appears that an innocent party without notice has been aggrieved by a judgment or decree obtained against him without his knowledge, by the fraud of the other party. * * *
“The case of Greene v. Greene, 68 Mass. (2 Gray), 361, which is cited and relied upon by the respondent, is not in conflict with the general current of authorities. Some of the general expressions used by the court, when disconnected from the facts of the case then in adjudication, have been thought to give sanction to the doctrine that a decree of divorce, when once obtained, could not be impeached in any form or mode of proceeding, or set aside by one of the parties to the original suit, however fraudulent and conclusive may have been the conduct of the other party in its procurement. But such a conclusion is not a fair and legitimate result of the language and reasoning of the court, when considered, as it ought to be, solely with reference to the actual case before the court for adjudication. ’ ’

Justice Bigelow then proceeds to distinguish the case of Greene v. Greene, supra, from the case then before the court, and concludes that it is not an authority for the proposition then before the court, and he -thus concludes in words clearly applicable to the case now before this court:

“Nor does the petitioner seek to set aside a decree rendered against her in a suit of which the court had full jurisdiction, of the pendency of which she had due notice, and in which an opportunity to be heard was afforded her; but she asks only that she may not be deprived of her rights by a judgment rendered against her in a proceeding of which she not only had no notice, but of which all knowledge was fraudulently kept from her, and of which the court had no actual jurisdiction, but only an apparent jurisdiction, founded on a false allegation of domicile.
“It is hardly necessary to add that reasons of public policy, or a regard to the consequences which might ensue to innocent parties from the-exercise of a power to invalidate a decree of divorce after it had become res adjudica ta, do not constitute •sufficient reasons for a denial of the existence of the power. Considerations of such a nature may well induce courts of justice to exercise the power with great caution, and only where the rights of parties are clear and there has been no neglect or failure to insist upon them in due season. Further than this, they can have no weight.”

Thus it appears that Massachusetts, like all other states of whose adjudications on this question we have knowledge, excepting only Ohio and Missouri, distinctly declares the powers of courts to open up a divorce decree at a subsequent term on proof of fraud.

And so the courts of California hold to the same effect. See McBlain v. McBlain, 77 Cal., 507; and of Colorado, see Morton v. Morton, 16 Col., 358; and of Iowa, see Rush v. Rush, 46 Ia., 648 (26 Am. Rep., 179); and of Louisana, see Bryant v. Austin, 36 La. Ann., 808; and of Pennsylvania, see Smith v. Smith, 3 Phila., 489, and Wanamaker v. Wanamaker, 10 Phila., 466 (30 Leg. Int., 265); and of Wisconsin, see Everett v. Everett, 60 Wis., 200; and of Montana, see Simpkins v. Simpkins, 14 Mont., 386 (43 Am. St. Rep., 641); and of North Dakota, see Yorke v. Yorke, 3 N. D., 343.

The last case contains a very emphatic statement of the law:

' “Courts of general jurisdiction have the inherent power, independent of any statutory provisions, and in divorce cases no less than in other cases, to set aside and annul any judgment or decree procured by the fraud and deceit of the successful party, practiced upon the complaining party to the action and the court. ’ ’

Cases might be multiplied from many of the other states, all holding that fraud in obtaining a decree of divorce, like fraud in any other proceeding, vitiates it, and that it can be relieved in a divorce proceeding as in any other proceeding, even after the term at which the decree was taken.

Nor does-the remarriage of a plaintiff who has obtained his divorce decree by fraud protect him from the consequences of his fraud. It is so held in Montana in the case of Simpkins v. Simpkins, supra; and in Colorado, see Medina v. Medina, 22 Col., 146; and in New York, Wortman v. Wortman, 17 Abb. Prac. (N. C.), 66; and in Texas, Stephens v. Stephens, 62 Tex., 337; and in’ Illinois, Caswell v. Caswell, 120 Ill., 377; and in Iowa, Whitcomb v. Whitcomb, supra.

Nor where rights of third parties have intervened. Rush v. Rush, 46 Ia., 648; and in Wisconsin, Crouch v. Crouch, 30 Wis., 667; and in Minnesota, Bomsta v. Johnson, 38 Minn., 230.

'Nor under the holdings in several states will even the death of the former plaintiff be a bar to vacating a decree of divorce obtained by false representations in obtaining service by publication when personal service could have been obtained. See Johnson v. Coleman, 23 Wis., 452 (99 Am. Dec., 193); Fidelity Insurance Co’s. Appeal, 93 Pa. St., 242; Bomsta v. Johnson, 38 Minn., 230.

From all of these cases it appears that the view that public policy demands the upholding of all decrees of divorce, no matter how fraudulently obtained, is now practically abandoned by courts generally.

In fact, with the single exception of Missouri, where a statute specifically protects such decrees from modification at subsequent terms of court, we have found no state in the Union, outside of Ohio, where such a view is now held as an absolute proposition. There may, of course, be others and probably there are, but we have not been able to find them.

The difficulty, as we. have said, is great. No rule can be adopted which may not cause great injustice in some of its applications.

Public policy might equally well be invoked in support of either side of the question. But what is more serious in our view than any question of public policy is this: that to upset a rule which has been observed in this state for more than half a century can only be justified after the greatest consideration of the' dangers involved.

But no rule which protects and encourages perjury, and fraud, and misrepresentations, can, it seems to us, safely be permitted to perpetually impede justice. Courts have -inherently 'the right to protect themselves and the public from fraud and perjury.

That ‘ ‘ fraud vitiates everything ’ ’ is a maxim which has grown to be of almost universal' application — and justly so. To arbitrarily, or in deference to a view of public policy which takes no account of other demands of public policy equally weighty, hold that a rule applicable to all other classes of cases, and made so applicable by statute, can have no application to divorce cases, seems only justifiable under most extraordinary conditions.

There are, as we have found, reasons which seem to us as weighty and more so why the ordinary rule should apply.

This view we have based upon an attempted consideration of the principles which should govern the case, and a review of all the accessible decisions of other states leads' us to the conclusion that there is now a practical unanimity among the courts of all the states in holding that in divorce cases, as in all other cases, a decree obtained by fraud and perjury may, on the facts being shown, be set aside even after the term at which the divorce decree was rendered. 1

For these reasons the judgment of the court of common pleas will be reversed, the demurrer to the amended petition overruled and the cause remanded to that court for further proceedings in acc.ordance with law.


text:
    LIABILITY FOR GOODS DAMAGED IN TRANSIT.
    Circuit Court of Hamilton County.
    C., C., C. & St. L. Railway Co. v. Barron, Boyle & Co.

    Decided, February 8, 1908.

      Carriers — Shipment Passes bver Several Lines — One Conimaat for' Transportation Covers All, When — Goods Damaged in Transit-Liability to the Consignee.

    Where a consignee pays to a railway company the full amount of the freight charges on a shipment of goods which had passed over a number of roads and been received in bad condition, and by agreement the consignee files with the railroad company a claim for damages, the company will be held to have recognized that there was but one contract for transportation from the point of shipment to destination, and in the absence of any knowledge as to where or how the damage occurred the company delivering the goods is liable, and a judgment for the amount of damages sustained will not be set aside.

      Harmon, Colston, Goldsmith & Hoadly, for plaintiff in orror.

      C. L. Hopping and W. M. Tugman, contra.
    Swing, P. J.; G-iffbn, J., and Smith, J., concur.

       Affirmed by the Supreme Court without report, C., C., C. & St. L. Ry. Co. v. Barron, Boyle & Co., 80 Ohio State.

   We are of the opinion that the .agreed statement of facts in this case shows that there was but one contract for the transportation of the goods from Boston to Cincinnati through the M. D. T Co. over the B. & M. R. R., the N. Y. C. R. R., the L. S. & M. S. R. R. and the C., C., C. & St. L. R. R., and that separate contracts were not made with the several railroads for transportation of the goods over said different railroads. This is clearly shown by testimony of agent, Smith (bill of exceptions, p. 12). And when the damage to the goods was discovered at Cincinnati no claim was made by the railroad company that there were separate contracts.

But Barron, Boyle & Co., by the request of the railroad company, paid the amount of the freight in full to said company, and by. agreement of the parties filed their claim for damage with the said railroad company, thus clearly recognizing the fact that there was bnt one contract for transportation from Boston to Cincinnati. This must have been the construction that the parties placed upon the contract at the time. When the goods arrived at Cincinnati they were damaged. There is nothing to show when, where or how they were damaged, except that certain of the employes of the B. & M. R. R., who loaded the glass in the cars at ‘ ‘ Mystic Wharf, ’ ’ testified that some of the boxes rattled in loading and some of the boxes were strained, but no examination was made -to ascertain whether any of the glass was broken. It was admitted that each carrier gave to its predecessor a receipt, stating that the goods were received in good order. It was first ascertained that the goods were damaged when the goods were inspected after arrival at Cincinnati. The contract of the carrier was to deliver the goods in g®od order at Cincinnati, subject to certain, exceptions, none of whiph are' set up here, and it is admitted that the goods- were not delivered in good order, and the amount of the damage is admitted, and. it is agreed that the judgment of the court below was for this amount. It seems to us clearly a breach of contract for which the railroad company was liable and the judgment should be affirmed.


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    NECESSITY OF CHARGING CRIME IN THE LANGUAGE OF THE STATUTE OR. ITS EQUIVALENT.
    Circuit Court of Hamilton County.
    John L. Orebaugh v. State of Ohio.
    Decided, March 6, 1909.

      Criminal Law — Indictment for Embezzlement — Variance Between Charge and Proof — As to the Capacity in which Defendant Acted —Fraudulent Conversion by Attorney — Section 6842,

    Where an indictment charges embezzlement- as agent, but the proof is to the effect that the defendant was employed by the prosecuting witness as her attorney, and in that capacity received the money which he fraudulently converted to his own use, it is error to overrule a motion for an instructed verdict finding the defendant not guilty on the ground of variance.

      Ulrich Sloane and Otto Krippendorf, for plaintiff in error.

      Arthur G. Friche and Coleman Avery, contra.
    Giffen, P. J.;'Smith, J., and Swing, J., concur.
   The plaintiff in error was indicted under Section 6842, Revised Statutes, for embezzlement .as agent, whereas the proof showed his employment as attorney at law, and the receipt of the money in that capacity. A motion was made at the conclusion of the evidence to instruct the jury to return a verdict for the accused on the ground of such variance.

In charging an offense in an indictment, the language of the statute defining^the crime or its equivalent, which plainly and necessarily includes it, must be used, and it has accordingly been held in Hagar v. State, 35 O. S., 268:

“An indictment charging that the prisoner broke into a storeroom, is insufficient' under a statute making it an offense to break into a ‘ storehouse, ’ .and the defect is available to him, although the objection was not made until the verdict had been rendered. ’ ’

An attorney at law is not necessarily an agent within the ordinary meaning of the term, and the distinction is shown by McIlvaine, J., in Campbell v. State, 35 O. S., 70, at 75:

“The controlling difference between the relation of attorneys, auctioneers, warehousemen, etc., with their employers, and the defendant with the employer, is this: the former engaged in an independent employment, subject only to the usages of their different line of business, while the latter was subject to the direction and control of his employer. And while the former may not be subject to the penalties of this statute, the latter is clearly embraced within its terms and meaning.”

In that case the defendant was charged as agent with embezzlement under a statute that' did not include attorney at laiv. but which was so amended in 1881 (78 O. L., 186).

The Supreme Court having recognized the distinction between an agent and an attorney at law under a statute defining embezzlement, and the Legislature having’ since amended the statute so as to make it an offense for an .attorney at law to convert to his own nse anything of value which shall come into his possession by virtue of his employment as such attorney at’ law, the decisions in other states are not controlling, and especially when they are far from uniform.

The statute now includes guardian, executor, administrator and assignee in insolvency, all of whom act in a representative capacity, yet it will hardly be claimed that proof of conversion of money in either capacity will sustain an indictment for such conversion as agent. The capacity in Avhieh the money or other thing of value is received and appropriated -is of the essence of the offense, which must be proved as charged in the indictment, and the defendant is not required to meet .a different charge although, if properly laid, constituting an offense under the statute. We are of opinion th'St the variance between the statement in the indictment and the evidence offered in the proof thereof was material to the merits of the ease and prejudicial to the defendant. ’ That the decisión' of the trial judge hpon this question may be reversed if erroneous is expressly held in State v. Buechler, 57 O. S., 95.

Judgment reversed and prisoner discharged.


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    NATURE OF THE TENANCY WHERE A WRITTEN LEASE IS EXTENDED BY VERBAL AGREEMENT.
    Circuit Court of Hamilton County.
    Harry F. Hopkins v. Bridget F. Carroll.
    Decided, December 5, 1908.

      Landlord and Tenant — Parol Contract for Lease — Where the Tenant is in Possession Under a Prior Written Lease — Statute of Frauds.

    1. Where a tenancy was begun under a written lease for a term of five years, with a privilege of renewal for another five years, and the lessee entered upon his fourth term by virtue of a verbal agreement for another five years under the same terms as before, his possession is referable to the former written lease, and he becomes a tenant from year to year.

      2. Justices of the peace have jurisdiction, under Section 6600, in cases of tenancy from year to year.

      Gogan & Williams .and PL. A. Reeve, for plaintiff in error.

      PL. O. Kapp .and A. P. Foster, contra.
    Smith, J.; Swing, P. J., and Giffen, J., concur.
   The judgment of the trial court in sustaining the.demurrer of defendant to the petition we think should be affirmed.

In Armstrong v. Kattenhorn, 11 Ohio, 265, it was decided that a parole contract for a lease between landlord and tenant in possession under a prior lease is within the statute of frauds unless possession be held solely under, .and in performance of, the parole contract, the terms of holding clearly indicating the possession to be under the subsequent parole lease. Jf the possession can be. referred to any other source than the parole contract the statute jj&ils.

The petition sets out a tenancy for five years from January 1st, 1891,.under a written lease, containing a privilege of renewal for another term of five years at the expiration of the first term. It also sets out that .plaintiff in error entered upon his fourth term (took possession) as lessee by virtue of a verbal agreement for another term of five years upon the same terms and conditions as his former tenancies. This possession it seems to us is referable to the prior written lease, and .the plaintiff in error' became a’ tenant from year to year and is holding over his term.

Justices of the peace by Section 6600 having jurisdiction in cases of a tenancy from year to year, the demurrer to the petition was properly sustained by -the court, and the judgment is affirmed.


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    ASSIGNMENT BY A RECEIVER OF MONEY DUE.
    Circuit Court of Hamilton County.
    Steinbicker Bros. v. Kuhn et al.
    Decided, January 23, 1909.

      Receiver — Assignment by, of Money Due — Rights of the Drawee— Where the Money was Collected by the Receiver.

    Where a receiver gives an order for the payment of money due to him as receiver and afterward accepts the money from the debtor without the consent of the drawee of the order, he becomes personally liable to the drawee for the amount of the order.

      Reemelin & Hosbrooh, for plaintiff in error.

      Oscar W. Kuhn, contra.
    Giffen, J.; Swing, P. J., and Smith, J., concur.'
   The cause of action .stated in the petition is for money had and received by the defendants for the use of the plaintiff and arose in the following manner: The defendants as receivers were indebted to plaintiff for materials furnished and labor performed, and executed and delivered to plaintiff the following order:

January 26, 1905.
“Mr. Leo J. Oehlers, City.
“Dear Sir: Please .pay to Steinbicker Bros, the sum of $318.94 due them for building tables at the Armory, out of the amount due me for services rendered, etc., as caterer Majestic Hotel Co. and agent of the receivers of said hotel.
“Oscar W. Kuhn,
“F. L. Emmert,
“Receivers Majestic Cafe.”

Afterwards when a settlement was had between Mr. Oehlers and the defendants as receivers the former said: “I must hold out some money for Steinbicker Bros., but I don’t know the amount.” Thereupon Mr. Kuhn in the presence of defendant Emmert said:

“We are under bond, under $10,000 bond, we are personally responsible for that anyway because we signed that agreement and the money was paid to us. We have got to stay, or we will pay Mr. Steinbicker the minute he,presents his bill.”

Mr. Oehlers then paid to the defendant the entire amount due to them originally as receivers. The plaintiff received one hundred dollars from the defendants and sues for the balance.

The order thus given to plaintiff was an equitable assignment to him of a part of a particular fund, which could not be revoked without his consent. 21 Am. & Eng. Ency., 940.

The money received by the' defendants was not, to the extent of the order, due to them in their official capacity, nor, according to the statement made at the time by Mr. Kuhn, received in that capacity; but it was paid by the drawee to the defendants for the use of the plaintiff. They had no right as receivers to accept the money without the consent of the payee of the outstanding order; nor had the drawer any right to so pay it. Hence defendants became personally liable and the court erred in sustaining the motion of defendants, at the conclusion of plaintiff’s evidence, for an instructed verdict.

Judgment reversed and cause remanded for a new trial.


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    TAXATION OF COLLEGE PROPERTIES.
    Circuit Court of Knox County.
    Kenyon College v. John K. Schnebly, as Treasurer of Knox County, Ohio.

    Decided, March, 1909.

      Educational Institutions — Taxation of Buildings and Lands belonging to — Professors Residences and Vacant Land Exempt — Section >
    1. The exemption from taxation of property belonging to colleges and academies, provided by Section 2732, Revised Statutes, extends to all buildings and lands that are with reasonable certainty used in furthering or carrying out the necessary objects and purposes of the institution.
    2. Residences occupied by the president and professors and janitor are exempt, as also is vacant land from which no revenue is derived, but land used for agricultural purposes or pasturage is not exempt.
    3. Land used for a pumping station, from which water is furnished to the college community and is also sold to outsiders at a profit, is taxable so long as the practice of vending water to persons not connected' with it is continued.

      Taggart, J.; Donahue, J., and Voorhees, J., concur.
    This cause was heard on appeal from the Court of Common Pleas.

       Reversing in part Kenyon College v. Schnebly, Treasurer, 8 N. P.—N. S., 160.

   The plaintiff, Kenyon College, by this action, seeks to restrain the collection of a large amount of taxes and penalty which has been placed on the tax duplicate of Knox county against certain tracts and parcels of land owned by it, for the years 1901 to 1907 inclusive, claiming that the same are exempt from taxation.

The defendant, treasurer of the county, by his answer and cross-petitibn, seeks to obtain a judgment for these taxes, and a sale of the property for their non-payment, and denies that said tracts of land, or any part thereof, is exempt.

From the evidence in the case we learn that the plaintiff is incorporated under the laws of Ohio as an educational institution, authorized and empowered to “confer degrees in the arts and sciences, and to perform all other acts as pertain unto the faculty of colleges for the encouragement .and reward of learning and shall have power to establish in connection with said college a college and halls for preparatory education.”

The property involved herein may be grouped into the following classes:

1. Residences, occupied by the president and professors in the college, and by the head janitor of the college.

2. Lands, a portion of which are used for agricultural purposes, and from which a revenue is derived, either in crops or rental for pastures.

3. Vacant lands.

4. Pumping station and standpipe.

5. The academy grounds and buildings.

It appears that the college has a number of residences which are occupied by the members of the faculty of the college. It has been the policy of the, college to permit s-uch of its professors as are married, and also its president, to use these residences, rent free. It further appears that they are primarily residences, and no literary exercises or instruction are conducted therein. One of the houses is occupied by the head janitor, who resides therein under a similar arrangement. There are also several tracts of land which are farmed; or, under the direction of a superintendent, are rented for pasturage, and from these 'a profit is realized.

There are also several tracts that are vacant, not devoted to agriculture, and from which no profit is derived; unless in the future the same should be sold at an enhanced value. It does not appear to what purpose these tracts of land are to be devoted, or whether the college has fully determined the use to which they are to be put, or to what they are adapted, or the future policy in respect thereto.

The pumping station and the standpipe were installed in the first instance for the purpose of furnishing water for the college buildings, and afterwards, upon the application of certain citizens of Gambier, water was supplied to certain residences inGambier, so that the college has been receiving from the sale of water about $200 per year.

Thé academy buildings and grounds were prior to 1900 occupied by the preparatory department of the college, and at or about this time the trustees contracted with Hills & Wyant to conduct a school which should prepare its students for Kenyon College. This contract was to continue for three years, with the privilege of a -two years’ extension. Among other things contained in this contract was a stipulation that there should be a rental of $2,000, together with provisions that there* should be close relations established between the school and the college, and that a portion of the money received for room rent from students sent from the school to Kenyon College should be returned to Hills & Wyant and devoted to the improvement of the buildings and grounds. This arrangement continued until about the year 1906, when fire destroyed all the buildings or a greater part of the same, since which time the .school has not been in operation.

The plaintiff claims exemption from taxation on all this property under favor of Section 2732, Revised Statutes, a portion of whicli is as follows:

“The following property shall be exempt from taxation! * * * all public colleges, public academies, all buildings connected with the same, and all lands connected with public institutions of learning, not used tuith a view to profit.”

It appears from the evidence in this case that there are many buildings connected with Kenyon College and lands surrounding the same which are not taxed, and no claim is made that the same are taxable. It is apparently conceded that Kenyon College, so far as some of its lands and’ buildings are concerned, falls within the class of institutions that are exempt from taxation. So that the question in this case arises on the construction of this part of the statute just quoted. As to the rule or construction to be employed, it is contended by the defendant that, “when an exception or exemption is claimed, the intention of the General Assembly to except, must be expressed in clear and umambiguous terms.” 46 O. S., 153-159.

But the Supreme Court, in the case of Watterson v. Halliday, 77 O. S., 169, has adopted a different rule:

“When religious, charitable or educational institutions seek exemption, we think such right of exemption should' appear in the language of the Constitution or statutes with reasonable certainly, and not depend upon their doubtful construction.”

In the case of Little v. Seminary, 72 O. S., 428, the Supreme Court, in effect, say:

“That the court in its interpretation of statutes is not permitted or required to go beyond the plain meaning of the language whiqh the Legislature has used to express its intention.”

So that we must determine whether or not it was the legislative intent that the residences of professors, or residences occupied by the president and professors, are exempt from taxation, judging from the plain meaning of the language employed. While the college is a “corporation,” it is also defined as the “building” or “collection of buildings used by the college.” Another meaning is, “A society of scholars, incorporated for the purpose of study or instruction.” So that the plain meaning of this statute is as follows: “All public colleges, public academies, all buildings connected with the same, are exempt from taxation.” All buildings connected with the same refers to “public colleges” and “public academies,” and refer to buildings that are associated with or assist in carrying out the uses and purposes of the institution known and designated by the terms, college or academy.

It is urged, upon our attention by the defendant, that these houses, or residences are not used, “exclusively,” for literary purposes, and that unless used exclusively for literary purposes, or for the purpose of instruction, that they are not exempt.

But there are many buildings connected with colleges and academies which are necessary for the proper conduct of the business of the college, in which literary exercises do not take place, and which are not employed for the purpose of giving instruction. Many buildings are employed for the purpose of storing the necessary equipment and apparatus of the college, or for -the purpose of carrying on the experiments, or for the purpose of storing the archives and records of the college, and conducting its financial affairs; yet because these, or any of these, are carried on in the buildings, or a portion thereof, it can not be said, that they are not devoted to the uses and purposes of the college.

It appears that the occupation of. these residences grew up from the necessities of the case; that adequate accommodations and facilities were not at hand for the president and professors. We can see no difference between these members of the faculty occupying these residences free of rent, than if they were lodging in the other buildings of the college. But the plain language of the statute is, “ All public colleges, public aoad-. emies, all buildings connected with the same, are exempt.” And we think it was the purpose to exempt all buildings that were with reasonable cerlainly used in furthering or carrying out the necessary objects and purposes of the college. We do not think the term ‘ ‘ not used with a view to profit ’ ’ refers to or controls the clauses “all public colleges, public academies, all buildings connected with the same,” but refers to simply the clause preceding it in the statute “all lands connected with public institutions of learning, not rised with a view to profit.”

But it is insisted that the case of Kendrick v. Farquahr, 8 O., 189, is a case controlling this question, that being the case in which the direct question was involved as to whether a house occupied by the professor was exempt from taxation under the law, as it then stood. But looking to the law at that time, there was an expressed exclusion from exemption of buildings, or any of them, not occupied for literary purposes, and, upon this provision of the law, it was held that the residences occupied by professors were subject to taxation.

So that, with this view of the law and its construction, we think the residence occupied by the president and professors and' the janitor are exempt from taxation. And that brings us to the next question, in respect to lands, a portion of which are now used for agricultural purposes, and from which a revenue is derived. We think the statute is clear, that all lands connected with public institutions of learning, “not used with a view to profit,” are exempt, but the portions of the land herein, which are given up to agricultural purposes, and which are rented for pasturage are subject to taxation. The vacant lands, which are not employed in any way, and from which no revenue is derived, -we also think are exempt from-taxation.

In respect to the pumping station: While the college was justified in installing a -pumping station and maintaining the same, yet it is not authorized by its act of incorporation to engage in the vending of water to the citizens of the village of G-ambipr, and by so employing this pumping station as to derive a revenue therefrom renders such portion of its property subject to -taxation, so long as it continues to supply water to those other than the college.

In respect to the academy grounds: ' We are of the opinion, that while the- arrangement was entered into between ITills & Wyant for the conduct -of a school in the buildings, and on said grounds, that this was within the power and authority of'the college; that its primary purpose was not to rent this property for the purpose of securing a revenue, but its primary object was to carry out the purposes contained in its charter, viz., the conduct and maintenance of the preparatory school; that the same was a public academy, and that, until -the destruction of the buildings,- the same were directly connected with Kenyon College, and directly -and necessarily associated therewith and a part thereof. However, since said date, so much of the grounds as may have been employed to produce a revenue we think would be subject to taxation,-so long as-they are so used. It does not seem to us, from the .proof, that the building or buildings remaining on said grounds -have lost their character as being connected with the college, they not having been used or employed for any purpose inconsistent with the uses and purposes of'the college.

But speaking with reference to these buildings and the residences hereinbefore mentioned, it is strongly urged upon our attention that the case of Watterson v. Halliday, Auditor, et al, 77 O. S., 150, is controlling in this case. Counsel urge upon our attention the following part of the opinion of the court found on page 180, to-wit, “the use to which the property is devoted determines .its right to exemption under any clause of the section,” and claim that the uses to which these buildings and lands are devoted are for the purpose of securing a revenue, and that being so devoted to this purpose, they are not exempt; that the residences fall within the same class as the parish houses or parochial residences of the priests and 'bishops, which it was claimed were exempt in the case under consideration.

But an examination of this ease discloses that the Legislature have used entirely different language with respect to parish houses and residences of priests and bishops of the Roman Catholic Church, or of any other church, than that which is employed in respect to buildings connected with public colleges and public academies. The language of the statute which was under consideration in this case is, ‘ ‘ all public school houses and houses used exclusively for public worship,” it being.claimed further that these residences or parish houses were buildings “belonging to institutions of purely public charity.”

The court, in this case, bases its decision upon two grounds, “that the houses were not used exclusively for public worship; neither were they buildings belonging to institutions of purely public charity; the court finding “that the Roman Catholic Church, while it is engaged in charitable works, its chief and primary object was not charity, but its chief and primary purpose and object was the teaching and extending of its recognized form of religious belief and worship into all parts of the world, and was founded to continue the work of Christ upon earth and to teach, govern, sanctify and save all men.”

So we think that the case at bar is clearly distinguishable from the ease of Watterson v. Halliday, supra.

A decree may be entered along the lines indicated herein, in favor of the plaintiff, restraining the collection of all taxes that have been improperly assessed; a decree may be entered in favor of the defendant for the taxes which are found herein to be a proper charge against the real estate of the plaintiff; and an order of sale may issue therefor. Motions for new trial overruled; twenty days for filing separate findings of facts; and the statutory time for bill of. exceptions allowed. Exceptions may be noted in behalf of both parties herein.