text:
    ACTION S — RAI LROADS.
    [Franklin (2nd) Court of Appeals,
    February 14, 1917.]
    Chittenden, Kinkade and Richards of the sixth district sitting by designation.
    Russell L. Blaney v. Baltimore & Ohio Ry.
    Contract of Railroad Relief Department cannot Preclude Recovery against Railroad Company but Suit Precludes Recovery under Contract,
    A contract of a so-called relief department of a railroad company can not preclude an employe of such railroad company who is a member of the relief department from maintaining an action to recover damages for injuries sustained through the alleged negligence of the railroad company, but such a suit to recover damages, unless terminated as provided by the regulations of the relief department, will preclude a recovery under the relief department contract.
    [Syllabus by the court.]
    Error.

      F. 8. Monnett, for plaintiff in error.

      Frasier á¡ Frazier, for defendant in error.
   CHITTENDEN, J.

This action was brought to recover a sum claimed to be due as benefits by virtue of membership in the relief department of the defendant company. A demurrer was sustained to the petition, and thereafter an amended petition was filed, to which a demurrer was also sustained, and plaintiff was given leave to file a second amended petition on or before January 16, 1915. On April 5,1915, no further leave of eourt having been asked or obtained, a second amended petition was filed. The defendant moved to strike the second amended petition from the files for the reason that it was filed without leave, and because it reiterates, as a first cause of action, the same averments, without addition thereto, which had theretofore been adjudged by the eourt as failing to state a cause of -action; also, on the ground that the second cause of action attempted to be set up was not a proper or legitimate pleading in the alternative. The motion to strike the second amended petition from the files was sustained and the court proceeded to enter final judgment in the action, dismissing the petition of the plaintiff at his costs.

It is claimed here that the eourt erred in granting this motion to strike from the files. We find no abuse of discretion on the part of the trial court in granting this motion.

The ease. therefore presents itself in this court upon the question as to whether the court erred in sustaining the demurrer to.the amended petition. This pleading, in substance, sets forth that on July 10, 1911, the plaintiff was employed as a yardmaster of the defendant company at or near Parkersburg, West Virginia. That at that time the defendant maintained and operated a relief department and that the plaintiff was a member thereof. That he remained in the employ of the comqiany from Jiily 10, 1911, until November 6, 1911, at which time he was injured through the alleged negligence of the defendant, which injuries resulted in the amputation of Ms right leg below the knee. That during the time of his employment the defendant had deducted from his wages, in accordance with the terms of the contract of employment and pursuant to the agreement of the membership in the relief department, five dollars per month as a premium. ITe alleges that at the time of the injury both the plaintiff and defendant were engaged in interstate commerce. By reason of the contract between the plaintiff and the relief department the defendant was to pay benefits to the plaintiff for accidental injury, in the sum of 42.50 per day, not including Sundays and legal holidays, for the first fifty-two weeks, and after that time at the rate of $1.2-5 per day. It is further provided that the company shall furnish an artificial limb, the reasonable value of which the plaintiff alleges to be $100. Plaintiff says that the defendant has refused to pay him any benefits or to furnish him with an artificial leg as agreed.

The petition further sets forth that he has performed all of the conditions of the contract upon his part to be performed, except that he did not strictly comply with the notice of injury to the defendant company, but he alleges that the defendant waived the condition of the rules and regulations of the relief department requiring formal proof of loss and injury, by tendering him one year’s benefit for his injury. He says, however, that the tender of benefits was conditioned upon his releasing the company from any liability under the contract that said company might be subjected to for the wrongful and negligent acts of the company in causing said injury, and. also required the plaintiff to agree not to sue the company for the tort committed by the company, and to dismiss his cause of action then pending in the courts of West, Virginia against the defendant company, for the reason that rule number 53 of the regulations of the relief department precluded the plaintiff from recovering any benefits under his certificate of membership while suit was pending.

The amended petition contains the further allegation not contained in the original petition, that the suit brought by the plaintiff against the defendant in the courts of West Virginia to recover damages because of his injury, is now terminated against the plaintiff. He quotes from the regulations of the relief department provisions of Secs. 52 and 53 as follows:

“In the event of disability or death from accidental injuries, the benefits herein promised shall not be payable or paid until there be first filed with the Superintendent of the Relief Department releases satisfactory to him, releasing The Baltimore & Ohio Railroad Company, and all other companies owning or operating its branches or divisions, or company over whose railroad, right of way or property the said The Baltimore & Ohio Railroad Company, or any company owning or operating its branches or divisions, shall have the right to run, operate its engines or ears, or to send its employes in the performance of their duty, or any company whose employes are admitted to the privileges of this department, from all claims for damages by reason of suit for such damages, or those legally competent to release for them, and by the beneficiaries named in the respective applications.” (See. 52.)
“Should suit be brought by a member, his beneficiary or legal representative, or for tbe use of his beneficiary alone or with others, against The Baltimore & Ohio Railroad Company, or any company owning or operating its branches or divisions, or any company over whose railroad, right of way or property The Baltimore & Ohio Railroad Company or any company owning or operating its branches or divisions, shall have the right to run oi* operate its engines or ears or to send its employes in the performance of their duty, or any company whose employes are admitted to the privileges of this department, for damages on account of injury or death of such member, no benefits on account of such injury or death shall be paid, but all claims to sueh benefits under these regulations shall be forfeited, unless such suit be discontinued and all costs incurred by the defendant therein paid by the plaintiff before any hearing or trial on demurrer or otherwise. Should such a suit for damages on account of the death of a member be brought by any person claiming an interest other than those named above, the existence of sueh a suit shall prevent the payment of benefits on account of such death, and any payment by any of the companies above named of damages recovered in sueh suit, or determined ■ by compromise, or of any costs incurred therein, shall operate as a release in full of ail claims against this department.” (Sec. 58.)

The plaintiff claims that the provisions of the above quoted rules are wholly void and against public policy so far as they purport to bar the plaintiff from bis rights to the benefits claimed by him and as set forth in his amended petition.

A similar contract was construed by the Supreme Court of this state in Pittsburg, C. C. & St. L. Ry. v. Cox, 55 Ohio St. 497 [45 N. E. 641; 35 L. R. A. 507]. It wa,s there held that such a contract was not prohibited by a statute of the state of Ohio enacted for the protection and relief of railroad employes. This act prohibited any .railroad company from demanding, accepting or requiring any employe to enter into a contract with the company whereby such person stipulated or agreed to surrender or waive any right to damages against the railroad company arising from personal injuries, or whereby he agreed to surrender or waive, in case he asserted the same, any other right whatsoever. It was also held that the contract was not contrary to public policy. The view the court took of the contract was that it provided for optional remedies to the injured employe. That the effect of the contract was not to surrender or waive any right to damages against the railroad company, but only an agreement that lie might either pursue his remedy against the company for damages or accept his stipulated benefits from the re- • lief fund. The court expressed the opinion that such contracts were not only not against public policy, but were in fact in accord with the wholesome public policy that favors the settlement of controversies and discourages litigation.

The Supreme Court again had the subject before it in the case of State v. Railway, 68 Ohio St. 9 [67 N. E. 93; 64 L. R. A. 405; 96 Am. St. Rep. 635]. After a review of the authorities and a careful examination of the questions presented, the court cited the case of Pittsburg, C. C. & St. L. Ry. v. Cox, supra, and said: “We are still satisfied with that decision and believe it to be entirely sound.” Thus it will be seen that the Supreme Court of the state, after a careful review of the subject in two cases, definitely decided that relief department contracts of the character of the one under consideration are not opposed to the public policy, of this state.

Therefore, it remains to determine whether the public policy thus announced has been changed by. legislative enact ment, and if so, to what extent. The case at bar being one that, arises out of interstate commerce, our attention is called to the federal enactments upon the subject. . ,

The plaintiff relies largely upon the provisions of Sec. 10 of the act of June 1, 1898, 4 Fed. Stat. 787. This section makes it a misdemeanor to require any employe to enter into a contract, whereby such employe shall agree to contribute to a fund for beneficial purposes, and to release such employer from legal liability for any personal injury, by reason of any benefits received from such fund, beyond the proportion of the benefit arising from the employer’s contribution to such fund. This section of the United States statutes makes unlawful a contract undertaking to exempt the employer from legal liability for any personal injury, by reason of any benefits received under the terms of such contract.

Is the contract complained of in this case within the inhibition of the statute above cited? Section 52 does indeed provide that the benefits provided for shall not be paid until there is first filed with the superintendent of the relief department a release of the Baltimore & Ohio Ry. from all claims for damages by reason of such injury or death. But Sec. 53, which constitutes a part of the contract between the relief department and the member contemplates that suit may be brought notwithstanding the provisions of See. 52, and it is provided that if suit be brought by a member no benefits on account of such injury shall be paid, but all claims to such benefits shall be forfeited unless the suit be discontinued and all costs incurred by the defendant therein be paid by the plaintiff before any hearing or trial on demurrer or otherwise. It will be seen that this contract does not by its terms undertake to release the employer from legal liability for personal injuries received by the employe. We are not confronted in this ease by a release signed by the plaintiff upon his receiving benefits from the fund, for no such relief has been paid and no such release has been executed. It is entirely clear from the decided cases that if such benefits had been received and a release executed it would not bar an action against the defendant to recover damages.

Another act of congress bears directly upon the construction to be given to this relief department contract. It is Sec. 5 of the act of April 22, 1908, Fed. Stat. Supp. 1909, page 585, and known as the second employer’s liability act. It reads as follows:

“That any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this act, shall to that extent be void; provided, that in any action brought against any such common carrier under or by virtue of any of the provisions of this act, such common carrier may set off therein any sum it has contributed or paid to any insurance, relief benefit, or indemnity that may have been paid to the injured employe or to the person entitled thereto on account of the injury or death for which said action was brought.”

It will be observed that the section just quoted does not undertake to invalidate all contracts providing for the payment of benefits from a relief fund, but only that they shall be void to the extent that the common carrier undertakes to exempt itself from any liability created by that act, and then makes provision that when suit is brought against such common carrier under any of the provisions of the act, the common carrier may set off any sum that it may have contributed to the relief benefit fund and that may have been paid to the injured employe or to any person entitled thereto on account of such injury.

The effect of accepting benefits from the relief department of a common carrier, and of a release executed in pursuance thereof, was considered by the Supreme Court of the United States in the case of Chicago, B. & Q. Ry. v. McGuire, 219 U. S. 549 [31 S. Ct. 259], The case arose in the state of Iowa where the Supreme Court of Iowa previously had held in accordance' with the decision of the' Supreme Court of the State of Ohio in Railway v. Cox, supra, namely, that a relief department contract was not invalid because payment of benefits was conditioned on a release of the company from liability, and that the effect of 'the contract was only to give the injured person an election of remedies. That he might either bring suit for damages, or accept benefits under the contract," and that the election to pursue one remedy operated as a waiver of the other. Thereafter the legislature of the state of Iowa passed an act to the same effect as Sec. 5 of the federal statute above quoted. The Supreme Court of the state of Iowa held that this was a legislative announcement of a public policy different from that which had been announced by the Supreme Court, and that it was within the power of the legislature to enact such a statute. The Supreme Court of the United States in reviewing the judgment of the Supreme Court of Iowa approvingly quoted this language of the Supreme Court of Iowa in construing that act:

“The legislature does not in this act forbid or place any obstacle in the way of such insurance, nor does it forbid or prevent any settlement of the matter of damages with an injured employe fairly made after the injury is received. On the contrary, the right to make such settlement is expressly provided for in the amendment to Code, Section 2071. The one thing which that amendment was intended to prevent was the use of this insurance or relief for which the employe has himself paid in whole or in part, as a bar to the right which the statute has given him to recover damages from the corporation. ”

The Supreme Court of the United States affirmed the judgment of the Supreme Court of Iowa, holding that a release from liability signed by the injured party upon receipt of benefits did not operate as a bar to an action brought to recover damages because of such injuries.

To the same effect was the decision of the Circuit Court of Greene county in this state in the case of Pittsburg, C. C. & St. L. Ry. v. Sheets, 34 O. C. C. 641 (15 N. S. 305), affirmed, no op., Pittsburg, C. C. & St. L. Ry. v. Sheets, 87 Ohio St. 476. In the court of appeals case Judge Allread carefully reviewed the authorities, including the case of Railway v. Cox, supra, and held that the latter ease was not, in view of Sec. 5 of the federal act above quoted, decisive of the construction of the contract then before the court.

It must be said that the decision of the Supreme Court in Railway v. Cox, upholding relief benefit contracts as not against public policy because such contracts only provide for a,n election of remedies, is no longer an authority in so far as that public policy has been affected by the federal enactments above cited. The effect of those statutes is to render void any release of a common carrier from liability for damages, upon receipt of benefits from a relief fund. It is not apparent that the federal statutes have gone farther. It has not been enacted that the bringing of a suit for damages by reason of injuries sustained because of the negligence of the common carrier shall not act as a bar to the recovery of benefits from the relief fund, and it would seem that the courts would not be justified in announcing any different public policy in that respect. The decisions of the Supreme Court in Railway v. Cox, and State v. Railway, supra, have only been modified to the extent indicated, and we therefore find no reason for holding invalid that portion of the contract under consideration which provides that if suit is brought no benefits shall be paid, unless such suit be discontinued and all costs incurred by the defendant therein be paid by the plaintiff, before any hearing or trial on demurrer or otherwise. This portion of the contract in no way attempts to abridge the right of the plaintiff to secure redress in the courts of the state. If he had recovered a judgment against the defendant in his action in the courts of West Virginia it would hardly be claimed that he would be entitled also to recover in this action. In Railway v. Cox, supra, Judge Spear mentions this phase of the case in the following language:

“Perhaps the point would be clearer if the party had, without accepting benefits, recovered against the company and then sought to recover also the benefits against the fund. No one could possibly suppose, in such a case, that his right to recover was absolute, or could in any aspect have a legal existence, or become the subject of a waiver, if the party’s own contract is to be observed.”

The fact that the pleading states that the suit was terminated against him in no sense affects the legal aspect of the case. He was permitted to and did endeavor to maintain his legal rights in court.

There is much force in what was said by Judge Rogers of the common pleas in passing upon this demurrer. He said:

“Although the contract is void and unenforcible by the defendant, the plaintiff having the option to treat the contract as valid, because it is not void as to him, must, in order to entitle him to a recovery, perform those terms which are imposed upon him by the contract. Plaintiff can not repudiate the contract in part and stand upon the contract at the same time. If it was against public policy for the defendant to require the plaintiff to enter into a contract for beneficial insurance and to make á condition of the contract that in case suit was brought for an injury the benefits for such injury were to be forfeited, plaintiff must treat both the contract for benefits and the condition of its payment as valid, or repudiate the whole contract, and will not be permitted to repudiate a part and rely upon another part.”

The contract provides that in order to secure benefits after a suit is brought, the suit must be discontinued and all costs incurred by the defendant therein paid by the plaintiff, before any hearing or trial on demurrer or otherwise. The allegations of the amended petition do not show that the plaintiff has complied with this condition of the contract.

We find that the amended petition does not state facts sufficient to constitute a cause of action against the defendant, and that the judgment of the common pleas was correct, and its judgment will be affirmed.

Kinka.de and Richards, JJ., concur.


source: Caselaw Access Project

author: KUNKLE, J.

license: Public Domain

text:
    COMPENSATION — NATURALIZATION.
    [Champaign (2nd) Court of Appeals,
    February 15, 1916.]
    Ferneding, Kunkle and Allread, JJ.
    Talbott v. State, ex rel. Houston, Prosecuting Attorney.
    County Clerks Entitled to One-Half of Fees for Naturalization Earned Prior to Enactment of General Code.
    Under the salary act of March 22, 1906 (98 Ohio Laws, 89), relating to county officers and prior to the enactment of the General Code of 1910, clerks of the courts of common pleas were entitled to retain one-half the fees received by them in naturalization cases under the federal act of June 29, 1906, in the absence of an averment that the county had provided and paid deputies who performed such services.
    [Syllabus by the court.]
    Error.

      Buroher & Zimmer, for plaintiff in error.

      Harold W. Houston, Pros. Atty., for defendant in error.
   KUNKLE, J.

This action was brought by the state of Ohio, on relation of the prosecuting attorney of Champaign county, Ohio, against M. R. Talbott, a former clerk of the courts of Champaign county, Ohio, to recover the sum of $9.50, being one-half of the fees, for the naturalization of aliens, received by such clerk from time to time during his incumbency as such clerk for the period of three years commencing on the first Monday of August, 1906.

The federal act passed June 29, 1906, conferred upon the clerks of state courts the power to file, issue and record naturalization papers and prescribed in detail the fees which should be charged therefor.

The federal act in question further provided that one-half of such fees to the extent of $3,000 in any one year, might be retained by such clerks, and that the balance of such fees should be remitted to the federal authorities. (34 Stats, at Large, 600; 2 U. S. Comp. Stats. 1913, Sec. 4372.)

Plaintiff in error duly accounted and paid to the bureau of immigration, and naturalization one-half of the fees so received.

This controversy relates to the one-half of such fees, amounting to $9.50, retained by Talbott as clerk under the federal act.

Defendant in error claims that the amount so retained by Talbott should be paid into the county treasury of Champaign county, under the provisions of Sec. 2977 G. C. et seq.

Plaintiff in error claims that under the provisions of the federal act in question, as well as under the provisions of the county salary act, he is entitled to retain the sum as his own.

Plaintiff in error in justification of his action and in support of his contention cites an opinion of the attorney-general of this state, of date January 11, 1907, to the effect that:

"The clerk of the court of common pleas may retain as his own earnings fees allowed him under the naturalization laws of the United States.”

The questions so presented ape raised by a demurrer to the petition.

The trial court overruled a general demurrer to the petition and rendered judgment agaiüst defendant. Error is prosecuted to this court from such judgment.

It is claimed by plaintiff in error, defendant below, that the provision of the federal act, to the effect that a certain portion of such fees may be retained by the clerk, is exclusive, and that the county salary act has therefore no application to sueh fees.

This view has been taken by the supreme courts of various states: the supreme court of New Jersey in the case of Chosen Freeholders of Passaic Co. v. Slater, 84 N. J. Law 589 [88 Atl. 213]; the supreme court of Oregon in the case of Fields v. Multnomah Co. 64 Ore. 117 [128 Pac. 1045]; the supreme court of Massachusetts in the case of Hampden Co. (Inhabitants) v. Morris, 207 Mass. 167 [93 N. E. 579; 1912 A. Ann. Cas. 815]; and in other cases cited by counsel.

The court of appeals of California in the case of San Francisco v. Mulcrevy, 15 Cal. App. 11 [113 Pac. 339], held that the clei’ks of courts were required to account under the salary laws of that state for the amount retained by them from naturalization fees xxnder the federal act in question.

This ease was taken to the Supreme Court of the United States from California, and is reported in Mulcrevy v. San Francisco, 231 U. S. 669 [34 S. Ct. 260]: Justice McKenna in delivering the opinion of the Supreme Court in the above-mentioned case, among other things, says, at page 674:

“The act is entirely satisfied without putting the officers of a state in antagonism to the laws of the state — the laws which give them their official status. It is easily construed and its purpose entirely accomplished by requiring an accounting of one-half of the fees to the United States, leaving the other half to whatever disposition may be provided by the state law.”

This decision by the highest federal authority settles the question that the liability of the clerk, as to the one-half of the fees received in naturalization cases and retained under the federal act in question, is controlled by the state law upon that subject.

Counsel for plaintiff in error contend that under Sec. 2977 G. C., the clerk is required to account only for fees, etc., cot lected or received by law, meaning such laws as are enacted by the legislature of the state.

- In support of such contention counsel cite the case of Freeholders v. Slater, supra, in which a similarly-worded statute was under construction by the Supreme Court of New Jersey.

Section 2977 G. C., reads as follows:

“All the fees, costs, percentages, penalties, allowances and other perquisites collected or received by law as compensation for services by a county auditor, county treasurer, probate judge, sheriff, clerk of courts, or recorder, shall be so received and collected for the sole use of the treasury of the county in which they are elected and shall be held as public moneys belonging to such county and accounted for and paid over as such as hereinafter provided. ’ ’

Counsel for defendant in error claims that Sec. 2977 G. C. should be read in connection with See. 2996 G. C., which latter section reads:

“Such salaries shall be instead of all fees, costs, penalties,percentages, allowances and all' other perquisites of whatever kind which any of such officials may collect and receive, provided that in no case shall the annual salary paid to any such officer exceed six thousand dollars.”

Counsel for defendant in error insist that when Sec. 2977 G. C. is so read in connection with Sec. 2996, it includes fees received from all sources, and therefore falls within the California case and other cases cited.

In this connection .we call attention to the recent decision of our Supreme Court in the case of State v. Stone, 92 Ohio St. 63 [110 N. E. 627], In this ease our Supreme Court has construed the county salary law broadly in order to effectuate the purposes of the act.

The same position was taken by our Supreme Court in the ease of State v. Kennedy, 90 Ohio St. 75 [106 N. E. 773].

It must be remembered that in the ease at bar the fees in question were received between August, 1906, and August, 1909. The question of liability, therefore, depends upon the provisions of the ■salarj'- act of March 22, 1906, and not upon the provisions of the General Code as adopted in 1910.

Sections 1 and 18 of the original county salary act 98 0. L. 89 read as follows:

“Section 1. All the fees, costs, percentages, penalties, allowances and all other perquisites of whatever kind which by law may now be collected or received as compensation for services by any county auditor, county treasurer, probate judge,- sheriff, clerk of courts or recorder, shall be received and collected by all of said officers and each of them for the sole use of the treasury of the county in which they are elected and shall be held as public moneys belonging to said county and accounted for and paid over as such in the manner hereinafter provided. ’ ’
“Section 18. And said salaries shall be in lieu of all fees, costs, penalties, percentages, allowances and all other perquisites .of whatever kind which any of the officials herein named may now collect and receive, provided, however, that in no case shall such annual salary payable to any of the officers aforesaid exceed the sum of $6,000. ’ ’

The above-mentioned sections were included in and superseded by Sec. 2977 and 2996 G. C., adopted February 14, 1910.

When the General Code was adopted in 1910 the word “now” was omitted from Sec. 2977 and also from Sec. 2996.

The case of State v. Horner, 25 Dec. 144 (16 N. S. 449), arose since the adoption of the General Code.

That ease holds that the clerk is required to account for the portion of the fees from naturalization retained under the federal act. The ease, in so far as we are advised, has not been taken to a higher court, and the decision has been accepted by counsel and the parties thereto as containing a correct construction of the present sections of the code

That case is largely relied upon by counsel for defendant in error, and while we'express'no definite opinion thereon, yet after a careful consideration of that decision and the authorities therein cited, we are inclined to the view that the case was correctly decided under the present provisions of the G. C.

It appears from the statement of the case, • however, that Homer’s term of office did not commence until the first Monday- in August, 1911 — -more than a year after -the present provisions of the G C. took effect.

"Where a substantia, change is made in the revision of statutes it amounts to an amendment thereof. See State v. Toney, 81 Ohio St. 130 [90 N. E. 142; 18 Ann. Cas. 395],

What effect, therefore, has the word “now” in Sections 1 and 18 of the county salary act of 1906 ?

We cannot escape the conclusion that the word “now” must be given some meaning.

It is a word which is not ordinarily found in statutes of this character.

It is a word not found in the California law or in the statutes involved in any of the other cases cited.

Why was the word “now” used in both of these sections?

It must be presumed that the legislature used that word advisedly and with some object in view. It was undoubtedly used to exclude sources of revenue not then in existence.

“The term now signifies time present.
“The word now, in its ordinary acceptance, means at this time, or at the present moment, or at a time contemporaneous with something done. It relates to the actual existence of the fact at the time and place mentioned.”

For further definitions of the word now, as used in statutes and elsewhere, see 5 Words and Phrases, 4851.

We are unable to reach any conclusion except that by the use of the. word now in Sees. 1 and 18 of the act in question rhe legislature intended to exclude from the provisions of the county salary law new and independent sources of official revenue such as naturalization fees under the federal act in question, which federal act was not in existence when the county salary act of 1906 was adopted.

The case of State v. Kennedy, supra, involved a contract for indexing, made by the county auditor with the county commissioners, but the authority therefor existed under statutes in force at the time the county salary law was enacted. There was no new source of revenue.

The case of State v. Stone, supra, involved a question of construction between apparently conflicting provisions of the G•. C., and the general policy of the county salary law was allowed to outweigh or over-balance the conflicting provision which apparently revived the fee system.

The general policy, the spirit and the reason of an act may properly be applied to reconcile conflicting or doubtful provisions of an act, but can not be permitted to override the effect of words of clear import.

Construing the county salary law of 1906 as adopted, we think plaintiff in error, under the averments of the petition, was not required to turn such fees into the county treasury.

There is no averment in the petition that the work involved in the naturalization fees in question was performed by deputies provided and paid by the county, and we express no opinion as to the effect of'such an averment.

It therefore follows that the judgment of the court of common pleas should be reversed and the cause remanded with instructions to overrule the demurrer, and for such further proceedings as may be provided by law.

Judgment reversed and cause remanded.

Ferneding and Allread, JJ., concur.


author: LIEGHLEY, J.

text:
    COURTS — CRIMINAL LAW.
    [Cuyahoga (8th) Court of Appeals,
    March 5, 1917.]
    Carpenter, Grant and Lieghley, JJ.
    Geo. C. Hoffman v. State of Ohio.
    Accused Convicted of Misdemeanor in Cleveland Municipal Court Presumed to have Waived Trial by Jury in Absence of Contrary Showing.
    Where a misdemeanor is prosecuted in a court of record such as the municipal court of Cleveland, upon which Jurisdiction Is conferred by law to try the complaint, unless the accused shall demand a jury, and the record of the trial_ on review is silent as to whether accused demanded or expressly waived a jury trial, the accused will be deemed to have waived a trial by Jury.
    [Syllabus approved by the court.]
    Error to the municipal court.

      Marvin & Marvin, for plaintiff in error.

      J. L. Lind, for defendant.
   LIEGHLEY, J.

George C. Hoffman, hereafter designated as defendant, was arrested upon .an affidavit filed in the municipal court of Cleveland, charging him with the crime of unlawfully operating a motor vehicle while in a state of intoxication, under Sec. 12628-1-G. C., tried, convicted and sentenced to thirty days imprisonment in the county jail and to pay a fine.of $50 and costs. Error is .prosecuted to this court to reverse the judgment below, challenging the jurisdiction of said court for the reason that the record does not disclose that the accused waived a jury. The record is silent upon the subject of a jury. Whether a jury was demanded by the accused or whether the accused refused to waive a trial by jury is not disclosed.

It is urged by counsel for the defendant that this is a jurisdictional fact, and the record being silent on the subject of a jury, it fails to disclose the jurisdiction of the court below to try, convict and sentence said defendant.

An examination of the statutes is necessary in an investigation and decision of this question.

Jurisdiction in criminal matters is conferred upon the municipal court of Cleveland, Ohio, by the following section:

“Section 1579-12. The municipal court shall have jurisdiction of all misdemeanors and of all violations of city ordinances of which police courts in municipalities now- have or may hereafter be given jurisdiction. In felonies the municipal court shall have the powers which police courts in municipalities now have or may hereafter be given.”

.It. will be noticed that the court is given jurisdiction in misdemeanors and violation of ordinances in the first sentence. The second sentence relates to. the jurisdiction of the court as an examining magistrate..

The jurisdiction of police courts referred to in the above section -is provided by the following section:

“Section 4577. The police court shall have jurisdiction of, and to hear, finally determine, and to impose the. prescribed penalty for, any offense under any ordinance of the city and of any misdemeanor committed within the limits of the city, or within four miles thereof. The jurisdiction of such court to make inquiry in criminal eases shall be the same as that of a justice of the peace. Cases in which the accused is entitled to a jury trial, shall be so tried, unless a jury be waived. ’ ’

It will be noticed that the first sentence in this section confers jurisdiction upon the police court to hear, finally determine and impose the penalty for any offense under the ordinances of the city, and of anj^- misdemeanor. The second sentence relates to the jurisdiction of the police judge as an examining magistrate. The third sentence necessarily relates to the first sentence in respect to a jury trial.

The practice and procedure and the manner and extent of exercising the same is provided for in the following section:

“Section 1579-20. In all criminal cases and proceedings the practice and procedure and mode of bringing and conducting prosecutions for offenses, and the powers of the court in relation thereto, shall be the same as those which are now, or may hereafter be, possessed by police courts in municipalities.”

The following section specifics that the court shall exercise the jurisdiction of the municipal court unless a jury be demanded by the accused:

‘ ‘ Section 1579-24. All causes in the municipal court shall be tried to the court unless a jury trial be demanded by a party. The time for making a demand for a jury trial may be fixed and limited by rule of court. In all civil actions, where a jury is demanded, it shall be composed of six lawful men, having qualifications of electors, unless the parties agree on a less number. Provided, however, that any party may demand a jury of twelve men. In all actions and proceedings of which police courts in cities have or may be given jurisdiction, where a jury ma3r be and is demanded, it shall be composed of twelve lawful men having the qualifications of electors. In all civil actions a jmy shall render a verdict upon the concurrence of three-fourths or more of their number. Whenever over three-fourths of the jury, as herein provided, shall not consist of an integral number, the next highest number shall be construed to represent three-fourths of such jury.”

It will be observed that the first sentence of this section coilfers jurisdiction upon the court to try all causes unless a jury trial be demanded by a party. The second sentence states that the time for making a demand may be fixed by the rule of court. The third and fourth sentences relate to civil causes. The fifth sentence applies to criminal causes, and provides that a jury of twelve men shall constitute a lawful jury in the event the accused exercises his option to demand a jury. The remaining sentences apply to civil causes.

The authorities cited, with others examined by the court, may be grouped into the following classes:

First. Those in which the courts reviewed the transcript of a justice of the peace.
Second. Those in which the courts reviewed the records of courts of record. •

Under the first classification the following cases were cited or examined by the court: Simmons v. State, 75 Ohio St. 346 [79 N. E. 555; 9 Ann. Cas. 260]; Edminston v. Edminston, 2 Ohio, 251; Robbins v. Clemens, 41 Ohio St. 285; Jones v. Toledo & Ohio Central R. R. Co. 10 Circ. Dec. 789 (20 R. 63); Chapman v. Seely, 4 Circ. Dec. 395 (8 R. 179-186); Uihlein v. Gladeaux, 74 Ohio St. 232 [78 N. E. 363].

The following cases are those which were cited or examined by the court in which the court reviewed the records of courts of record appertaining to this question: Dailey v. State, 4 Ohio St. 57; Billigheimer v. State, 32 Ohio St. 435; Evans v. State, 23 O. C. C. 103 (3 N. S. 23), affirmed, no opinion, 68 Ohio St. 700; In re George Hildebrand, 33 O. C. C. 638 (15 N. S. 187); Petri v. State, 36 O. C. C. 331 (25 N. S. 255).

In the case of a review of the transcript of a justice of the peace, the authorities are unanimous that the facts necessary to eonfer jurisdiction upon the trial court must affirmatively appear upon the transcript. This is the unanimous holding of the courts in the cases cited under the first class.

An examination of the authorities above referred to in the second class mil disclose that it is the unanimous holding of the courts that the record of a court of record need not necessarily disclose that the accused waived or failed to demand a trial by jury, with the exception of the cases In re Hildebrand, supra, and Petri v. State, supra.

Defendant urges that Simmonds v. State, supra, is decisive of this case, relying on the language in the opinion at pages 351 and 352. This was a trial by a justice of the peace, and the language used by the court is clearly referable to the facts of that case. The court holds that the «waiver must affirmatively appear upon the record. Observe the language of the court at page 353: “This conclusion is not in conflict with Dailey v. State, supra, or Billigheimer v. State, supra. Both of these cases having been prosecuted under statutes which conferred upon the court jurisdiction to try the complaint, if the defendant did not demand a jury trial, are clearly distinguishable from the case at bar. ’ ’

It was urged by counsel that the case of Billigheimer v. State, supra, although apparently decisive of this question, should not be regarded as an authority for the reason that the crime charged in that case was not one in which imprisonment was a part of the penalty, and that therefore what was said by the court upon the question here involved is obiter dictum. Conceding the claim of counsel that the crime charged was a misdemeanor with only a fine imposed as a penalty, yet the record reviewed by the court was from the police court of Cincinnati, and we think what the court decided in respect to that record should be regarded as the law of the state. Although the record is silent as to a jury, the court definitely decides that, unless the record shows that the defendant demanded a jury, he will be deemed to have waived it. On page 441 the court says:

“The only question, therefore, is, did the defendant waive his right. As has been said, the record indicates nothing on the subject. It merely shows that when the court ordered the plea of not guilty filed, the cause proceeded and evidence was heard. It does not show that defendant demanded a jury, nor that he excepted to proceeding without one. This failure to. avail himself of his rights must be held to be a giving of consent.”

Further quoting from page 443:

“We think a defendant may waive his rights impliedly as well as expressly, and if he remains silent when by speaking he could have obtained what he desired, it is too late to complain after his cause has proceeded to final adjudication.”

The probate court is given jurisdiction to try the accused “if the-defendant does not demand a trial by jury.” Dailey v. State, supra. The juvenile court act has a similar provision. In the case at bar, it is not claimed that the court below did not have jurisdiction of the person and of the subject-matter. By Sec.'24 of the act, jurisdiction is expressly conferred upon the court to hear the cause. Option is given to the accused to demand a jury. So long as a trial by jury is provided for the accused and a trial by jury is available to him, the constitutional guaranty of a right of trial by jury is preserved inviolate. Quoting from page 28, Evans v. State, supra:

“So we have a ease where the court had jurisdiction of the crime and of the person, and a court that is a court of record; and, therefore, the general rule may be invoked,-that in a court of record where jurisdiction is shown, it will be presumed that all the necessary proof was made or things done in order to enable the court to arrive- at the judgment at which it did arrive, unless the contrary is shown; that is to say, it may be said that the principle should be invoked in favor of the waiver of a jury. The court will presume that a jury was waived, unless by a proper bill of exceptions it is shown that the party demanded his right to a trial by jury, or unless it is shown that he refused to waive his right, which amounts to the same thing.”

The facts of the case last above referred to are identical with the case at bar, excepting that the record under review was from the police court cf the- city of Toledo. In this case the record is of the municipal court of Cleveland, with reference to which sub-section 24 of the act expressly provides that the court shall try the cause, which is substantially the same as the probate court and juvenile court acts.. Said Sec. 24 specifically designates who shall exercise the jurisdiction of the municipal court.’ ‘ - • - -

It is claimed that Secs. 12, 20 and 24 of the municipal court act of Cleveland are inconsistent and repugnant. With this claim we are unable to agree. Section 12 by reference defines what the • jurisdiction of the municipal court is in criminal matters. Section 20 by reference prescribed wbat practice and procedure and the nature and extent of the same shall -be pursued and adopted. Section 24 defines who shall exercise that jurisdiction.

• We think that Billigheimer v. State, supra, Dailey v. State, supra, and Evans v. State, supra, affirmed by the Supreme Court in 68 Ohio St. 700, fix the law of this state upon the question involved in this lawsuit.

We hold, therefore, that when a misdemeanor is prosecuted in a court of record upon which jurisdiction is conferred by statute to try the complaint, unless the accused shall demand a jury, and the record of the trial upon review is silent as to whether the accused demanded or expressly waived a jury trial, the accused will be deemed to have waived a trial by jury.

For these reasons, upon rehearing, the former judgment of reversal of this court is hereby vacated, and the judgment' of the court below is hereby affirmed, with costs assessed against the plaintiff in error.

©rant and Carpenter. JJ., concur.


author: RICHARDS, J.

text:
    EXECUTORS AND ADMINISTRATORS — GIFTS.
    [Knox (5th) Court of Appeals,
    May 23, 1917.]
    Chittenden, Kinkade and Richards, JJ., Sixth Dist., sitting by designation.
    Columbus Ewalt, Admr. de bonis non v. Benjamin Ames et al.
    1. Validity of Appointment of Administrator on Appeal from Probate Refusing, cannot be Attacked by Contention for First Time that Appeal Would not Lie.
    The probate court having, on application made therefor, refused to appoint an administrator de bonis non, and the court of common pleas, after a hearing on the merits on appeal, having made such appointment, the parties cannot thereafter contest the validity of the appointment by contending for the first time that appeal would not lie from the judgment of the probate court.
    2. Failure of Donor Writing Assignment of Stocks to Daughter to Write Signature does not Defeat Gift, nor does His Receipt of Dividends.
    A father, residing in Mount Vernon, in consideration of love and affection executed and delivered to bis daughter four years before his death a written assignment of a large portion of his personal estate consisting of stocks and securities and other property including 230 shares of stock of the Western Union Telegraph Company, and caused her name to be written on the back of the certificates of stock as assignee thereof, and the certificates were found in her possession at her home in Washington, D. C., after his death, but he had omitted to attach his signature to the transfer on the back of the stock certificates. Held: 1st, That the gift was complete notwithstanding the omission of the donor’s signature on the back of the certificates. 2nd, The receipt by the father of some of the dividends declared after the execution and delivery of the instrument of transfer is not, in view of the affectionate relations existing between the parties so inconsistent as to impeach the gift.
    3. Election of Widow to Take Under Will Presumed from Arrangement of Husband and Wife for Disposition of Respective Estates.
    While the law requires that the acts of a widow in order to constitute an election by conduct on her part to take under the will of her husband must clearly and unequivocally evince a purpose on her part so to elect, yet where the husband and wife have together deliberately planned an arrangement for the disposition of their respective estates by will and have executed their wills to carry out that purpose a court will be readily convinced that she has elected to take under the will.
    [Syllabus by the court.]
    Error.

      Pomerene, Ambler & Pomerene, Williams & Nash, and F. 0. Levering, for plaintiff in error.

      H. C. Devin, Jones & Jones, Carl Norpell and Frank Moore, for defendants in error.
   RICHARDS, J.

Columbus Ewalt, as administrator of Elizabeth Delano, deceased, commenced this action in the court of common pleas against the defendant, Benjamin Ames, individually and as surviving executor of the last will and testament of Columbus Delano, deceased, and also against other defendants, for a citation to appear and disclose as to the assets of the estate of said Columbus Delano, deceased, in their possession or under their control. Benjamin Ames filed a second amended answer denying most of the allegations contained in the petition and setting up numerous defenses thereto.

On the trial in the court of common pleas the issues were found and adjudged with the defendants and the petition dismissed. Error i» prosecuted to this court and a reversal of the judgment so rendered is demanded upon numerous grounds.

Columbus Delano was a distinguished citizen oí Mount Vernon who died testate on October 26, 1896, leaving as his widow Elizabeth Delano. The widow died testate'in August, 1897. At the time Columbus Delano executed his last will and testament, to wit, on November 18, 1891, he was eighty-two years of age, had been a brilliant lawyer, was a man of wide experience in business affairs, had represented Knox county in the general assembly, had represented his district in congress, had served as commissioner of internal revenue during the first term of President Grant, and as secretary of the interior during the second term of that president. His wife, Elizabeth, appears by the evidence to have been a lady of education and refinement and to have enjoyed his implicit confidence and to have been entirely familiar with his numerous business transactions and with the extent of his large estate. His will is shown to be in her handwriting, and her will was prepared in her own handwriting but before she executed it she had the same typewritten by an attorney-at-law. At the time of Columbus Delano’s death he had an estate variously estimated but apparently exceeding $150,000 in value. His wife was the owner, also, of a very considerable estate. They had two children, John S. Delano and Elizabeth Delano Ames, the latter residing in Washington, D. C. Mrs. -Ames had three sons and one daughter, and John S. Delano was married and had a daughter named Eleanor Delano Shealey. John S. Delano died in 1896 shortly before the death of his father Columbus Delano.

While many defenses are urged in this case to the contentions made by the plaintiff, we find it necessary to discuss only three of them.

First: It is insisted that Columbus Ewalt is not the administrator de bonis non of Elizabeth Delano, deceased.
Second: It is insisted that the property which is sought to be reached by this proceeding was given by Columbus Delano to his daughter, Elizabeth Delano Ames, by completed gift inter vivos a number of years before the donor’s death.
Third: It is insisted by the defendants that the widow, Elizabeth Delano, elected in fact to take under the will of Columbus Delano, and that having done so she was not by the terms of that will entitled to any of the assets now sought to be reached.

If either of the defenses named should be found to be sustained the plaintiff, can not recover. We will take up first the issue as to the appointment of Columbus Ewalt as administrator de bonis non, with the will annexed, of the estate of Elizabeth Delano, deceased. In her will she named as executor H. II. Greer, a prominent attorney of Mount Vernon, who qualified and served as such executor, filing a final account and subsequently resigning his trust in May, 1911, the resignation being accepted by the probate court. Shortly thereafter application was made in the probate court of Knox county by Eleanor Delano Shealey for the appointment of an administrator de bonis non of the estate on the claim that there were assets belonging to the estate which were unadministered, to the amount of many thousands of dollars. The probate court on hearing this application denied the same and refused to appoint an administrator de bonis non. The proceeding was taken on appeal to the court of common pleas and was there heard on its merits, the court of common pleas adjudging that an administrator de bonis non should be appointed, and thereupon proceeded to and did appoint the plaintiff, Columbus Ewalt, as such administrator de bonis non. So far as the record before us discloses, the adjudication and appointment thus made in the court of common pleas was never reviewed on error or appeal.

It is insisted, however, that the validity of the appointment may be contested in this case, and it is contested on the ground that the decision of the probate court refusing to appoint an administrator de bonis non was not appealable and that the court of common pleas had no jurisdiction to make the appointment. It appears that the parties went to trial on the merits in the court of common pleas in the case so attempted to be appealed, and it does not appear that any objection was made in that court to the appealability of the proceeding. We think it not important to review the statutes on the question of whether an appeal lies from the refusal of the probate court to appoint an administrator de bonis non. Whether or not such appeal would lie, it is apparent that error could have been prosecuted to that judgment of the probate court.

The parties having gone to trial on the merits in the court of common pleas and permitted the action to proceed to judgment, without objection, so far as the record shows, to its appealability, and on a matter in respect to which that court could have taken jurisdiction on error, they could not thereafter be permitted to question the jurisdiction of the court to try the case on appeal, even if they had so attempted in that action; much less can they do so collaterally in this proceeding.

Drake v. Tucker, 83 Ohio St. 97 [93 N. E. 534]; Cadwell v. Cadwell, 93 Ohio St. 23; Barner v. Barner, 93 Ohio St. 477; State v. Jones, 95 Ohio St. 220.

Cadwell v. Cadwell, supra, and Barner v. Barner, supra, were tried in the court of appeals by the judges now sitting in the ease at bar.

Furthermore, it must be remembered that a proceeding for the appointment of an administrator is one in rent, and, the court having jurisdiction, its decision in that class of proceedings binds the whole world. That an application for the appointment of an administrator is a proceeding in r'em was directly announced by the Supreme Court in Cross v. Armstrong, 44 Ohio St. 613 [10 N. E. 160], in the course of the opinion delivered by Judge Spear, on page 624.

It was held in Oliver, In re, 77 Ohio St. 474 [83 N. E. 795], that a court of common pleas could appoint a guardian of an imbecile on appeal from an order of the probate court refusing to make an appointment and dismissing the application. The court in that case held that the common pleas court was empowered to make the appointment. It is true that the statute specifically authorizes an appeal from an order refusing to appoint a guardian, while no such specific provision is found as to the refusal of the probate court to appoint an administrator. That distinction, however, becomes unimportant in view of the facts already recited showing that the parties on the appeal went to trial on the merits of the case without objection.

We conclude, therefore, that the defendants can not now contest the validity of the appointment of Columbus Ewalt as administrator de bonis non of the estate of Elizabeth Delano, deceased.

We proceed therefore to determine the issue as to whether the assets sought to be recovered in the proceeding at bar were really assets of the estate at the time of the death of Columbus Delano, or whether he had effectually parted with them by gift to his daughter, Elizabeth Delano Ames. The validity of the gift depends largely upon the execution and delivery of an instrument dated February 16, 1892, and the delivery of the property pursuant to such instrument. That instrument recites, in substance, that in consideration of natural love and affection he sells, assigns, transfers and sets over to his daughter, Elizabeth Delano Ames, of Washington, D. C., all of his personal property, consisting of bonds, notes, mortgages, choses in action, stocks and securities, except his bank stock and the live stock on his farms and the farming implements and household goods. The original of this instrument had been written out and was carried by Mr. Delano to the law office of Mr. Greer in Mount Vernon and at Delano’s request R. M. Greer copied the same on the typewriter and it was there signed in his presence and the acknowledgment of the signature taken before him as notary public. At the time of the execution of this instrument Columbus Delano was .the owner of two hundred and thirty shares of the capital stock of the Western Union Telegraph Co. and of stock and securities in various other companies. The stock of the Western Union Telegraph Co., however, is the item about which most of the controversy in this case revolves. Subsequent to the making of this instrument Columbus Delano received from the Western Union Telegraph Co. stock dividends on this stock amounting to twenty-three shares, and on February 7, 1894, he purchased forty-seven additional shares making three hundred shares in all.

The assignment of his personal property to his daughter is shown to have been delivered to her in the summer of 1892 when she was visiting at her father’s home, known as Lake Home, about a mile from the city of Mount Vernon. The certificates of stock were never signed over on the back by Columbus Delano to his daughter, but the assignment was made after his death by the defendant Ben Ames, as executor, who is the grandson of Columbus Delano and a son of Elizabeth Delano Ames, the executor claiming to act under authority of the written assignment to which reference has been made. There is, however, endorsed on the back of these certificates in a blank printed form prepared for that purpose the name “Mrs. E. Delano Ames,” and it is shown that in each instance this name appears in the handwriting of a confidential friend of Columbus Delano who was employed in the First National Bank of Mount Yernon in •which bank Mr. Delano was a stockholder and director, and that the death of this friend occurred before Columbus Delano died, so that the name of Sirs. Delano must of necessity have been written on the back of the certificates before the death of Mr. Delano. It was in this bank that Mr. Delano kept his private paper’s. After the death of Columbus Delano these certificates of stock and other securities claimed to have been passed by gift to Elizabeth Delano Ames were found in her possession in Washington, D. C., and it was at her request that her son Ben Ames, as executor, completed the formal transfer on the back of the stock by signing his name thereto as executor.

It is apparent that the certificate for forty-seven shares of stock in the Western Union Telegraph Co. could not pass directly and specifically under the provisions of this assignment and gift by Columbus Delano to his daughter because it represents stock which he did not at that time own, but subsequently purchased. The evidence shows, however, that he had contemplated making a gift of three hundred shares of stock in this company to his daughter, and was sufficient to justify the finding by the trial judge that he had made and completed such gift.

The evidence shows that although this certificate for forty-seven shares of stock was taken in his name and paid for by him, yet that he intended it as a gift to his daughter to complete the full number of three hundred shares which he had in mind at the time of the execution of the instrument transferring securities to her.

. It is strenuously insisted by counsel for plaintiff that the fact that Columbus Delano had not signed his name to the endorsement of the stock on the back thereof shows that his intention was not to complete the gift to his daughter but to retain control himself of the stock notwithstanding the execution and delivery of the written transfer already mentioned and the subsequent delivery of the stock. We have no doubt that the execution and delivery of the written transfer followed by the delivery of the securities completed the gift without the signature of the donor on the back of the certificates.

Neither is the fact that Columbus Delano received some of the dividends subsequent to the transfer sufficient evidence to overcome the gift shown by the written transfer and delivery of the securities and the conduct of the parties. By reason of the affectionate relations existing between Mr. Delano and his daughter it may well be that she was content to have him receive a part of the dividends declared on the stock, and the fact that he did receive some is not inconsistent with the completion of the gift. The oral evidence shows that he was solicitous about the continued support of his daughter and her children and this evidence is supported by the language of his will in the bequest with relation to the children. He had already advanced to his son large sums of money and property amounting perhaps to one-half of his estate.

By reason of the fact that the certificates of stock were not themselves assigned to Elizabeth Delano Ames by written endorsement on the back thereof, the dividends on the same continued to be issued by the Western Union Telegraph Co. in the name of Columbus Delano. The evidence is not very clear as to who really received and appropriated the proceeds of these dividends subsequent to the execution of the instrument of transfer, but a considerable number of the drafts for the quarterly dividends on this stock were made payable to the daughter. The evidence is of such a character as to amply justify the common pleas judge in .finding, as he did, that the gift to Elizabeth Delano Ames was completed and was a valid one, and that the securities were not a part of the estate of Columbus Delano at the time of his death. All through the record it is apparent that the relations existing between Columbus Delano and his daughter were very close. Indeed, the first item of his will gives all of his correspondence and private papers to her and expresses a desire that no one shall have access to or direction over the same without her consent.

The conclusion reached would necessitate an affirmance of the judgment, for the plaintiff-cannot maintain an -action for concealing assets of an estate where the evidence discloses that the assets have been disposed of by the testator in his lifetime. There is, however, another defense urged and we have given it careful consideration. That defense is that the widow of Columbus Delano elected in fact by her words and conduct to take under the will, and if she did do so the securities now sought to be reached would not pass to her even though they had been a part of the estate of Columbus Delano at the- time of his death.

It will be unnecessary to review all of the evidence -bearing on the subject of the widow having made an election, but it will be pertinent to indicate some of the facts bearing on that subject appearing in numerous places throughout the oral and documentary evidence. It is perfectly apparent that Mr. and Mrs. Delano had entered into an agreement with each other on the subject of the disposition to be made of their property, in pursuance of which each had conveyed certain property to the other, and their respective wills were made in fulfillment of the terms of this agreement. It was understood between them that the will of Mr. Delano was to provide for his grandsons and that Mrs. Delano was to provide for the granddaughters in her will. This understanding was carried out by the terms of the wills. Mrs. Delano fully understood this matter and the evidence in the record impresses the court that she was extremely anxious that the provisions of their wills should be carried out. This joint project which was carefully planned by Mr. and Mrs. Delano could not be carried out if she should take under the law rather than under the terms of the will left by him. Both Columbus Delano and his wife repeatedly stated to several of their intimate friends that they had made this arrangement and indicated to these friends their wish and desire that the same should be carried out. Shortly after the death of Columbus Delano, .in the presence of several witnesses, upon the occasion of the reading of his will, she again expressed her earnest wish that the provisions of the will should be. carried out and that she wanted to do her part, to accomplish that object. Indeed, so far as the record discloses, every statement made , and act performed, by her in relation to her husband’s estate indicated unequivocally that she elected to take under the will. We search the record in vain for any evidence looking to a contrary intent.

Certain payments were made to her by the executors and receipted for by her as being payments under the will of her deceased husband. We would, however, in the absence of this receipt have no hesitancy in saying that the record contains ample evidence to justify the trial judge in finding that she had elected to take under the terms of the will. That will gave her the right to use the entire income of the estate for her life if she required it. We are, however, entirely in accord with the following statement made by the trial judge in the opinion rendered by him in this case:

“In our judgment Mrs. Delano would not have refused to take under her husband’s will and elected to take under the law if in so doing she could have secured the entire estate of her husband, for in so doing she would have repudiated the deliberately planned arrangement which she and her husband had made for the distribution of their estates.”

The principles announced in the case of Baxter v. Bowyer, 19 Ohio St. 490, are entirely applicable to this case. See, also, Thompson v. Hoop, 6 Ohio St. 481.

Counsel on both sides cite and rely on Colored Industrial School of Cincinnati v. Bates, 90 Ohio St. 288 [107 N. E. 770]. In reaching the conclusion that Mrs. Delano elected to take under the will of her husband we are not unmindful of the language of the court in the ease just cited, that the acts relied on to constitute an election by conduct must be plain and unequivocal and with a full knowledge of rights under the will and under the law respectively, and of the true' condition of the estate, and generally be of such long duration as to clearly show a purpose to take under the will. In the absence of evidence to the contrary the presumption, of course, is that the widow chooses to take under the law rather than under the will. That presumption, however, is a rebuttable one, and in a case where the evidence clearly shows a long continued purpose on the part of both the husband and wife to make a disposition of their property by will, and where that purpose has been carried out with the full knowledge and approval of both, the presumption is not difficult to rebut. We have no hesitancy in reaching the conclusion in this case that it is rebutted by the evidence and that Mrs. Delano is shown by her words and conduct to have elected to take under the will.

Some of the evidence on this subject comes from H. H. Greer and R. M. Greer who are claimed to have been attorneys for Mr. and Mrs. Delano and to have received the information under such circumstances as to make it privileged and render them incompetent to testify on this subject. It is apparent that much of the information which they received from the Delanos on this subject urns imparted to them for the very purpose of having them make it manifest when the proper occasion should arrive. When we remember that Columbus Delano was himself an eminent member of the bar and that he and his wife determined between themselves as to the disposition of their property and prepared their own wills, simply going to attorneys for the purpose of having them formally executed, we are not able to assent to the contention that the relation of attorney and client existed between them in respect to these matters, nor that the information given to H. H. and R. M. Greer was given under such circumstances as to be privileged. However, the ease being in this court on error, we would be unable to say, even without the testimony of these attorneys, that the evidence was insufficient to maintain the finding and judgment of the court that Mrs. Delano had elected to take under the will of her husband.

Finding no prejudicial error, the judgment will be affirmed.

Chittenden and Kinkade, JJ., concur.


text:
    SUNDAY LAWS — THEATERS.
    [Medina (8th) Court of Appeals,
    October 1917.]
    Carpenter, Grant and Lieghley, JJ.
    William Standen v. State of Ohio.
    Moving Picture Show on Sunday Held Unlawful.
    The phrase “theatrical or dramatic performance” prescribed by Sec. 13049 G. C. comprehends a moving .picture show, the exhibiting of which on Sunday is intended to be prohibited.
    [Syllabus approved by the court.]
    Error.

      Sieber & Sieber, for plaintiff in error.

      F. 0. Smo'yer and A. B. Underwood, for defendant in error.
   LIEGHLEY, J.

For convenience William Standen will hereinafter be called “defendant” and the State of Ohio “plaintiff.”

William Standen was charged by affidavit before a justice of the peace in and for Wadsworth township, Medina county, Ohio, with unlawfully exhibiting a theatrical performance, to wit, a motion picture show, on Sunday. The defendant waived examination and was bound over to the probate court of Medina county. Trial was had in said court without the intervention of a jury and resulted in conviction and sentence. Error was prosecuted from said court to the court of common pleas which resulted in an affirmance of the judgment below. Error is prosecuted to this court to reverse the judgment of the court of common pleas.

The affidavit was founded upon Sec. 13049 G. C. Complaint is made that a moving picture show is not comprehended within the language of said statute a “theatrical or dramatic performance” and, therefore, said conviction is contrary to law.

Section 13049 C. C. was enacted in substantially the present language of the act in 1881, which was long before the moving picture show was generally known. For this reason it is urged that a moving picture show was not contemplated at the time of the enactment and cannot now fairly be said to be comprehended within its language. This section was amended in 1911 after show houses had become prevalent, in respect to Sunday base-ball, but no phrase or clause was ■ added to expressly include the moving picture. It was, therefore suggested, on the one hand, that the act having received recent consideration of the legislature and no mention made in the act of moving pictures, it was not intended to control and regulate the same; and, on the other hand, it is urged that upon consideration of the act by the legislature in 1931, it is just as reasonable to assume that it was concluded that the language theretofore employed in the act fully comprehended and covered the subject.

What does the phrase “theatrical or dramatic performance” mean? According to Webster, “theatrical” means “of or pertaining to a theater or scenic or dramatic representations.”Standard dictionary defines it “of or pertaining to the theater; of the nature of dramatic or scenic representations; befitting the stage; dramatic.” Century dictionary defines it “of or pertaining to a theater or scenic representations resembling the manner of dramatic performers.”

Quoting from the syllabus in the ease of Kalem Co. v. Harper Bros. 222 U. S. 55 [32 S. Ct. 20]:

“An exhibition of a series of photographs of persons and things, arranged on films as moving pictures and so depicting the principal scenes of an author’s work as to tell the story is a dramatization of such work,” * * *

- The conclusion irresistibly follows that one who conducts the exhibition is exhibiting a theatrical or dramatic performance. In this case a moving picture film of scenes and descriptions of certain portions of Gen. Lew,Wallace’s book “Ben Lliir” was held to be an infringement of the copyright upon said book and that “Ben Ilur” wras dramatized by the moving picture film. The opinion is written bv Mr. Justice Holmes of the Supreme Court of the United States and attention is called to the language employed by him as bearing upon a definition of what ‘ ‘ a theatrical and dramatic performance” is.

In the ease of Lingenfelter, Ex parte. 64 Tex. Cr. R. 30 [142 S. W. 555, 562], as follows:

"Being of the opinion that a moving picture show of the character and kind presented in this state comes within the definition of amusements of like character, kind and species as a theater, and while not a theater, is of the same genus. ’ ’

We are satisfied that the rule of statutory construction in this state permits and requires the conclusion that a moving picture show is included within the language of the statute and that the said statute was intended to operate to forbid the mischief intended to be remedied thereby, i. e., to prevent certain public exhibitions on Sunday.

"A statute may include by inference a case not originally contemplated when it deals with a genus within which a new species is brought.”

State v. Cleveland, 83 Ohio St. 61 [93 N. E. 467; 21 Ann. Cas. 1284].

We feel that this .judgment should be affirmed. In view of the fact that the court of appeals of Ross county has decided the same question and published its opinion, we deem it unnecessary to prolong this opinion. Myers v. State, 37 O. C. C. 231 (25 N. S. 556). Motion to certify record in the case overruled by the Supreme Court, April 25, 1916, see Myers v. State, 61 Bull. 152.

While it is claimed that said court did not support its opinion by citation of authorities, we think the reasoning of that court is amply supported by the authorities herein cited.

See also, State v. Morris, 24 Del. (1 Boyce) 330 [76 Atl. 479]; Moore v. Owen, 109 N. Y. S. 585; Jacko v. State, 22 Ala. 73.

The judgment is affirmed at the costs of plaintiff in error.

Carpenter and Grant, JJ., concur.


text:
    DESCENT AND DISTRIBUTION — WILLS.
    [Montgomery (2nd) Court of Appeals,
    June 28, 1917.]
    Kunkle, Allread and Ferneding, JJ.

      Catherine Wilson v. Daniel W. Allaman, Exr.
    Widow of a Beneficiary is His Heir at Law in Distribution of Personalty.
    In the distribution of the personalty of a testator the widow of a beneficiary is one of his heirs at law under the statutes of descent and distribution.
    [Syllabus by the court.]
    Error.

      Powell & Howell and E, H. & W. B. Turner, for plaintiff in error.

      Carr, Allaman, Better &• Murr, for defendant in error.

       Affirming, Wilson v. Allaman, 28 Dec. 000.

   KUNKLE, J.

This case was submitted upon the demurrer of the defendants to the second amended petition of plaintiff.

In brief, the case involves the construction of item seven of the will of Isaiah Wilson.

The item reads as follows:

“Item 7. Should my said wife not survive me or upon her death, I authorize and direct my said executor to reduce all my estate to cash, and after the payment of costs and expenses, to distribute the same as follows: One-third to my sister, Mary Jane Hamilton, or her heirs at law. One-third thereof to the heirs at law of my deceased brother, Ephriam Wilson, and one-third to the heirs at law of my deceased brother, Bartholomew Wilson.”

Bartholomew Wilson was a brother of the testator, Isaiah Wilson, and it is admitted that he died prior to the execution of the will of his brother. Bartholomew Wilson left as his survivors his widow, Catherine Wilson, and certain children and grandchildren, all of whom survived the testator, Isaiah Wilson, and all of whom also survived the widow of said testator.

Item 7 provides that the estate shall be reduced to cash and the fund derived therefrom shall be distributed. The fund for distribution therefore consists entirely of personal property.

Catherine Wilson, as the widow of Batholomew Wilson, claims an interest in the property so devised to the “heirs at law of my deceased brother, Bartholomew Wilson.”

Does Catherine Wilson, the widow of Bartholomew Wilson, come-within the description of the “heirs at law of my deceased brother, Barthol omew ’ ’ ?

Did Isaiah Wilson intend to include Catherine Wilson, the widow of Bartholomew, in the class designated as “the heirs at law of my decased brother, Bartholomew Wilson”?

We have carefully considered the very helpful briefs which have been filed by counsel. All the leading cases in Ohio are therein' cited and discussed. We have also read the very exhaustive written decision of Judge Martin of the common pleas court which has been filed with us.

We shall not attempt to discuss or distinguish the various authorities cited by counsel, but will merely announce the conclusion at which we have arrived after a careful examination of such authorities.

We are in accord with the conclusion reached by Judge Martin and as he has so thoroughly analyzed this case and discussed the leading authorities in his decision we do not deem it necessary to further discuss the same, but think the same decision should be rendered in this court as was rendered in the lower court, for the reasons stated in detail in Judge Martin’s decision.

. In reference to the Mills case, recently decided by this court in Clark county, we think it sufficient to say that the Mills ease related solely to real estate. The ease at bar relates solely to personal property.

■ In .addition to this, in the Mills case there were various other provisions of the will which we thought threw light upon and reflected the intention of the testator. In the case at bar it is conceded that no other provisions, of the will throws any light upon the intention of the testator.

Decree accordingly.

Allread and Femeding, JJ., concur.


author: POWELL, J.

text:
    LIBEL AND SLANDER.
    [Franklin (2nd) Court of Appeals,
    July 18, 1917.]
    Shields, Houck and Powell, JJ., of the Fifth District sitting by designation.
    Samuel Heimlich v. Dispatch Printing Co.
    Ohio Statute Modifying Rule as to Liability for Libel in Publication of Court Documents and Proceedings Not In Contravention of Constitutional Provision.
    Sections 11343-1 and 11343-2 G. C., making privileged a fair and impartial report of proceedings before state or municipal boards or officers, or of the return of an indictment or issuance of a warrant, are not in such conflict with either the federal or state constitution as to render them void when applied to the publication of the contents of an affidavit filed in a criminal action then pending in a court of competent jurisdiction.
    [Syllabus by the court.]
    Error.

      J. L. Stern, for plaintiff in error.

      Bennett & Westfall, for defendant in error.
   POWELL, J.

This is an action for the recovery of damages for an alleged libel published by the defendant of the plaintiff.

Three separate causes of action are set forth in the petition for three ¡separate publications made on different days, all of which are charged to be libelous. Plaintiff claims damages in the sum of $100,000.

By its amended answer the defendant makes four separate defenses:

1. It admits its corporate capacity and that it published a daily newspaper known as “The Columbus Evening Dispatch”; it admits the publication of the articles complained of and makes some other minor admissions, and denies each and every allegation, set forth in the petition and not admitted by said amended answer to be true. The admissions made practically leave only the question of damages to the plaintiff as the issue.

2. Defendant claims the publications made and on which the action is founded are fair and impartial reports of certain judicial proceedings in the police court of the city of Columbus, Ohio, in a cause entitled “State of Ohio v. Samuel Heimlich,” and of an official investigation then being made by and before the governor, the secretary of state and the attorney-general; that said publications were made in good faith and without malice toward plaintiff, who never made any demand or request that a retraction be made.

Wherefore it is claimed that said publications were privileged.

3. The third defense is the same as the second above set forth, excepting only that it belongs to and is made a defense to the second cause, of action, while the second defense above set forth is a defense to the first cause of action only.

4. The fourth defense is a defense to the third cause of action only and pleads the same matter as the said second defense, save that the three publications were on different days, which are set out; and it is alleged that they were made without malice and without information on the part of the defendant that the same were not true.

A demurrer was filed to the second, third and fourth defenses of said amended answer and the same were overruled. A motion to strike out was also made and overruled. A reply was then filed denying that said publications, or any part of them, were fair and impartial reports of any police reports in the city of Columbus, or of any investigations that were being made by said officers: denies the good faith of the defendant in making said publications, and denies that defendant was without information that the same were not true or that defendant had reasonable grounds for believing that plaintiff was guilty of perjury, or that any of the matters set forth in said publications were true •, and denies that said publications were made without malice. The same reply, in substance, is made to the second, third and fourth defenses.

Upon the issues thus made trial was had, resulting in a verdict for defendant on each of said three causes of action. A verdict for the defendant was directed by the court on the third cause of action, while the verdict for the first and second causes of action was returned upon the submission of said causes to the jury.

A motion for a new trial was made and overruled, and a bill of exceptions was taken showing all of the evidence and the charge of the court, as well as all other questions of admission of evidence or otherwise, made on such trial, and the ruling of the court thereon, and the ease was brought to this court on error for a review of the judgment below.'

The issues, while somewhat complicated, can be simply stated as follows:

Plaintiff claims that certain publications made of him by the defendant were libelous per se and asks damages.

The defendant denies realice on its part in making such publications and sets out such facts from which it claims that the publications complained of were privileged.

Plaintiff by reply denies the want of malice on the part of defendant and denies that said publications, or any of them, were privileged.

The claim of privilege on the part of the defendant is based on Secs. 11343-1 and 11343-2 G. G., and defendant’s whole case depends practically on tbe construction and validity of said statutes.

The plaintiff contends that said sections, and each of them, are in conflict with both the federal and state constitutions and therefore furnish no defense to said defendant.

Upon these respective theories the case is presented to us upon eighteen assignments of error, each of which is ably argued in tbe briefs filed by plaintiff in error and all of which, together with the entire record, we have examined with care with reference to each and every assignment of error made. Upon such examination of the record and briefs of counsel, both of plaintiff in error and defendant in error, we have arrived at the conclusion that the judgment of the court of common pleas should be affirmed. There is no such manifest error shown by the record as would justify a reversal of said judgment.

Without entering into a discussion of the merits of the ease we think that Secs. 11343-1 and 11343-2 G. C. are not in. such conflict with either the federal or state Constitulion as to render them, or either of them, invalid or void as applied to such a case as shown by the record herein; and that the case was fairly submitted to the jury upon the evidence offered that was pertinent and material, and the law, as we find it to be, and the verdict of the jury as returned is not against the evidence or the weight of the evidence and is not contrary to law. We do not say there were no errors made on the trial of the case, but we do say that in our opinion, there were none that were sufficiently prejudicial to the plaintiff in error to justify us, as a reviewing court, in reversing said judgment, and we content ourselves with the simple statement of the conclusions reached without attempting to add anything to what has been said by counsel in their briefs and in the published opinion of the trial court. Heimlich v. Printing Co. 25 Dec. 182 (17 N. S. 161).

It follows that the judgment of said court should be affirmed.

Judgment affirmed.

Shields and Houck, JJ., concur.


text:
    SCHOOLS.
    [Montgomery (2nd) Court of Appeals,
    March 21, 1916.]
    Ferneding, Kunkle and Allread, JJ.

      Wogoman v. Perry (Twp.) Bd. of Ed. et al.
    1. Act Providing for County Boards of Education Held Valid.
    ■ The act of the general assembly, 104 O. L. 133 et seq., providing for the appointment of a county board of education is constitutional.
    2. Courts Denied Authority to Interfere with Discretion of County Board in Transfer of Territory.
    The county board of education has authority under said act to transfer territory from a rural to a village school district, and in the absence of fraud or gross abuse of discretion the courts can not control or interfere with the exercise of such discretion.
    [Syllabus by the court.]

      Appeal.

      A. N. Summers and John N. VanDeman, for plaintiff.

      D. B. Van Pelt and Carr, Allantan & Better, for defendants.

       Affirmed, no op., Wogoman v. Board of Ed. 95 Ohio St. 000; 61 Bull. 413, on the authority of Cline v. Martin, 94 Ohio State 420.

   KUNKLE, J.

The plaintiff, Josiah Wogoman, as a citizen and tax-payer of Perry township, Montgomery county, Ohio, seeks to enjoin the-transfer of certain school territory, in said Perry township (being all of school subdistricts Nos. 1, 2 and 10 and the north half of subdistrict No. 11) to the village district of Brookville, Montgomery county, such transfer having been made by the county board of education of Montgomery county.

The case has been submitted to this court upon affidavits and the oral testimony of certain witnesses, a transcript of which has been filed with us.

Counsel upon both sides have materially aided the court in the consideration of this ease by the exhaustive briefs which they have filed.

We have carefully considered the reasoning contained in such briefs and have examined the authorities cited therein.

We shall not attempt to discuss or distinguish the authorities so cited, but will merely announce the conclusion at which we have arrived after an examination of such authorities.

The plaintiff challenges the constitutionality of Sec. 4728 G. C. et seq. (104 O. L. 136), providing for a county board of education and prescribing the powers and duties thereof.

The objections to the constitutionality of these sections are:

First. That the law is not one of uniform operation.
Second. That the members of said county board of education are made appointive and not elective.

In regard to the first objection, we think the school system provided by the school act of 1914 is complete, that it provides for' every portion of the state, and is, therefore, of uniform operation throughout the state.

It is true the county board of education does not have jurisdiction over cities and the territory annexed thereto for school purposes, and may be excluded from villages containing a population of 3,000 inhabitants and upwards by a majority vote of the board of education of the village district.

This, however, does not in our judgment affect the constitutionality of the act.

The legislature in dealing with school districts has power to make a reasonable classification.

Cities of 5,000 population and upwards may reasonably require an independent governing board, while the rural districts may reasonably be provided for by local boards under the control of the county.

There is nothing unconstitutional or unreasonable in such separate grouping of districts. The provision making villages with a population of 3,000 inhabitants or upwards dependent upon the option of the board of education of the village is also-in harmony with the general plan provided for by the said act. The local board of education of each particular village of 3,000 inhabitants or more has a right to determine whether the interests of the village would be better subserved by remaining in the county group or becoming a separate district.

The second objection is based upon Art. 10, Sees. 1 and 2, of the constitution, which provide that county officers and township officers shall, be elected by the electors of the county and township, respectively.

It is contended that the members of the county board of education provided for in Sec. 4728 et seq. are county officers within the meaning of Art. 10, Secs. 1 and 2, of the constitution, and should therefore be elected.

We think it is clear that such officials are public officers. State v. Brennan, 49 Ohio St. 33 [29 N. E. 593], and other authorities cited by counsel for plaintiff.

The remaining question, therefore, is as to whether such officials are county officers.

We have considered the extensive oral and written arguments of counsel upon this proposition and have reached the conclusion that they are not county officers within the meaning of Art. 10 of the constitution, but are school district officers within the purview of Art. 6 of the constitution.

There has been filed with us the opinion of the court of appeals of tbe fifth district, Cline v. Martin, 37 O. C. C. 524 (27 N. S. 90), written by Judge Houck and concurred in by the other members of that court, holding the section in question constitutional.

We are in harmony with the conclusion reached by that court.

In addition to the reasons suggested by Judge Houck, we think the suffrage decisions in respect to boards of education also throw some light upon the question here involved.

The township has always been the nucleus of the township district.

The township district was heretofore controlled by a township board of education.

This board was elective; but the qualification of the electors was not governed by the suffrage provisions of the constitution, but was subject to legislative limitations.

Our Supreme Court in 1850, in the case of State v. Cincinnati et al. 19 Ohio 178, held that the colored patrons of separate school districts for colored children were entitled to vote at elections for and become members of boards of education controlling such schools, although such persons were not at the time qualified electors under either the state or federal law.

This same principle has been announced in the woman’s suffrage cases where women, not qualified electors under the state or federal law, were given the right to vote for and hold the office of member of the board of education. State v. Board of Elections, 6 Circ. Dec. 36 (9 R. 134); affirmed, no op., Mills v. Board of Elections, 54 Ohio St. 631.

It is true that prior to 1914 there was no county board of education provided for, but it must be x’emembered that township officers are required by Article 10 of the constitution to be elected, and the same principle which would authorize hoards of education to be chosen by a body other than by the electors of a township would also support the provision authorizing a county hoax’d of education to be chosen by an authority other than the qualified electors of the county. It is contended by counsel for plaintiff that in many counties of the state the county board of education would have jurisdiction over the entire county because of the fact that there was no city therein, or village having a population of 3,000 inhabitants or upwards.

We do not think this fact would affect the question. For example, the right of women to vote at and hold office under township school-board elections is not affected by the fact that the township school district and the township may be and often are coextensive.

The county in the one instance and the township in the other would be considered merely school districts for the maintenance and government of schools therein.

Counsel for plaintiff cite the county budget case, State v. Groom, 91 Ohio St. 1 [109 N. E. 477].

We think that case is distinguishable from the case at bar for the reason that the budget commissioners were clearly county officers and performed functions relating to the county as a political subdivision.

The county forms the nucleus of the county school district, but the county school district, we think, constitutes a legislative subdivision separate and distinct from the county as a political subdivision.

Upon the question as to whether the county board of education exceeded its powers or abused its discretion in making the transfer of the territory in question, we will frankly state that upon the first hearing of this case we were impressed with the claim of plaintiff that such transfer would work a hardship upon many of the smaller children residing in such territory and also weaken the resources of the Ferry township rural school district.

We therefore allowed a temporary injunction with the view of fully considering the case upon its merits before permitting the transfer to take effect.

We have given this branch of the case careful consideration.

We are forced to the eonclusio'n that under the broad grant of power conferred upon the county board of education by the statutes in forcé when this transfer was made it hád authorÚ” to make the transfer in question, and that the power to make such transfer can. be questioned only upon the grounds of fraud or gross abuse of discretion.

While some criticism has been made as to the conduct of certain members of the county board of education, yet we find there is no evidence to sustain any claim of fraud.

The power of the court to review the . discretion of the county board of education is somewhat limited.

The legislature having conferred upon such board the power of making a transfer of territory, this court can not: substitute its judgment for the judgment of the county board of education, upon whom such power has been expressly conferred, and overthrow the decision of such board upon a mere difference of opinion.

In the ease of Hulbert v. Mason, 29 Ohio St. 562, our Supreme Court say, at page 564:

‘1 The case made in the plaintiffs ’ petition is simply, that under all the circumstances, ‘it is not right and proper’ that the annexation should be made. Whether it is ‘right and proper’ that the annexation should be made is the very question which the act (Sec. 34) submits to the ‘discretion’ of the commissioners, without any provision for an appeal from their decision.” See also case of Moss v. Board of Ed. 58 Ohio St. 354 [50 N. E. 921].

If this court were permitted to pass upon the propriety of the transfer of the territory in question as an original proposition, we might refuse to make such transfer, but we are unable to find from the evidence that the discretion of the county board of education has been so grossly abused as to warrant a court of equity in interfering.

This view as to the power of the county board of education and the right of a court to review the discretion has been adopted in the case of Cline v. Martin, supra, and also in the unreported case of Bennington (Tp.) Bd. of Ed. v. County Bd. of Ed. by the court of appeals of the same appellate district.

The latter case was presented to the Supreme Court upon an application for a writ of certiorari, and the writ was refused.

The same view was taken by the court of appeals of the sixth district in the ease of Johann v. Board of Ed. and also by the judges of the fourth appellate district, sitting in Fayette county, in the case of West v. Bd. of Ed.

It would therefore follow that a permanent injunction should be refused.

In order to prevent confusion in conducting the schools of Perry township, the temporary injunction heretofore granted will be continued until the end of the present school year.

Decree accordingly.

Femeding and Allread, JJ., concur.