author: VOORHEES, J.

text:
    LANDLORD AND TENANT.
    [Richland (5th) Circuit Court,
    January Term, 1902.]
    Douglass, Voorhees and Donahue, JJ.

       Amanda Edwards v. Peter Rissler and William Stoodt.
    1. Landlord and Tenant — Dangerous Premises — Defects Inherent in Original, Construction — Nuisance—Owner Liable, When.
    A landlord, who leases premises with an existing nuisance thereon at the time of leasing, resulting from defects inherent in its original construction, and this occasions injury to a third person, is responsible-therefor.
    2. Same — Same—Landlord Liable Under Agreement to Keep Premises in Repair, When. . i
    Where the defect in the leased premises, rendering them dangerous, occurs after the demise, and the lessor, by virtue of the lease, covenants to keep such premises in repair, and retains or reserves the right to enter for that purpose, he is liable for injuries to third persons, occasioned by the property becoming out of repair and dangerous.

      •3. Same — Same—Buildings Appurtenant to Main Building Demised — Liability of Owner, When.
    A landlord is charged with the duty of keeping in repair and free from danger an outbuilding, appurtenant to the demised premises, constructed and maintained by him for the accommodation and use in common of his tenants, where he has control of such outbuilding, subject only to the tenants’ right to use the same as an outbuilding.
    ■4. Same — Same—Same—Liability of Owner to One Rightfully on Premises, When.
    The owners of a business block, used for public offices, storerooms, and the like, with an outbuilding and privy vault appurtenant thereto, for the accommodation and use in common of their tenants and other persons rightfully about said building, who retain general control over said outbuilding and vault, and agree with their tenants’ that they, the owners, shall keep the same in repair, and they retain or reserve the right to enter for that purpose, are liable for substantial injuries occasioned by said outbuilding becoming out of repair and dangerous to one in attendance as a witness at a trial being conducted in one of the rooms of said building1, leased by said owners to a justice of the peace, for the purpose of conducting the business pertaining to his office.
    ■Error to Richland common pleas court.
    Douglass & Mengert, for plaintiff.
    Twitch ell & Hartman, for defendant.
    On June 21, 1900, the plaintiff in error, Amanda Edwards; plaintiff below, filed her second amended petition in the court of common pleas of Richland county, Ohio, against Peter Rissler and William Stoodt as defendants, and for a cause of action alleged in substance, that the defendants, Rissler and Stoodt, at the time of the happening of the grievances complained of, were the owners of a certain brick building, situated at the corner of Main, street and Plumb ¿lley, in the city of Mansfield, said county; that the building on said premises was used for the purpose of public offices, storerooms, and the like, and no part of it was used for private homes or living rooms; that it was understood and agreed between. the owners and their tenants that the owners should have general control of said building with the right to enter the same at any time for the purpose of making repairs; that it was, by agreement, the duty of the defendants to build, maintain and keep in repair all outbuildings that were appurtenant to the main building that was so owned by defendants and leased to their tenants.
    At the rear of said building and appurtenant thereto there was, at the time of the happening of the grievances complained of, a large privy vault built by defendants on said premises, and built for the accommodation and use in common of their tenants and other persons who were or might be in or legitimately about said building, and said privy was one of the outbuildings on said lot under the absolute control and care of defendants. Said privy vault, as to size, mode of construction, etc., is fully and minutely described in the petition, with the further averment that its original plan and construction were faulty, unsafe and dangerous, describing wherein its faulty construction and dangerous character consisted; that this dangerous and unsafe condition of said outbuilding and vault was, at the time of the happening of the injuries to the plaintiff complained of, and for a long time prior thereto, well known to the defendants; that, on account of its unsafe condition and the defendants’ knowledge of the same, they had, or could have had, reasonable grounds to apprehend that persons using said outbuilding would be in great danger of injury therefrom.
    The petition further states, that one Marcus McDermott was, on July 18, 1899, the date the injury complained of occurred, a duly elected, qualified and acting justice of the peace in and for'Madison township, Richland county, Ohio; that on or about May 1, 1899, said Marcus McDermott became a tenant of said defendants in said building, and has so continued to the present time, he having leased a room therein for the purpose of conducting the business pertaining to his office as such justice of the peace, said lease being upon the terms and conditions as to repairs hereinbefore averred as common to all the tenants in said building; that defendants well knew the purpose for which said McDermott rented said room, and knew that many, persons, as litigants and witnesses, would of necessity frequent said room, and, in the nature of things, have to use said outbuilding; that although defendants well knew of the unsafe condition of said outbuilding at the time of renting said room to said McDermott, they wilfully, wrongfully and negligently failed to, apprise him of its true condition, and led him to believe it was safe for him, and the patrons and others, frequenters of his office, to use said outbuilding.
    Plaintiff further avers, that on the occasion when she received her injuries therein complained of, she was subpoenaed as a witness to attend a trial at the office of said justice; that her attendance was a forced attendance, not voluntary on her part, and that while so attending said trial, having occasion to use said outbuilding, and without any knowledge upon her part as to its unsafe condition, she received the injuries complained of in her petition, to her damage in the sum of $4,000, for which she prayed judgment. v
    The defendants demurred to plaintiff’s said petition on the ground that it does not state facts sufficient to constitute a cause of action. The court of common pleas sustained the demurrer. Judgment was rendered against plaintiff for the costs in the case; to which ruling of the court the plaintiff at the time excepted. Petition in error was filed in this-court to reverse said judgment.

      Affirmed, 69 Ohio St. 572, January 19, 1904, without report.

   VOORHEES, J.

The amended petition and demurrer involve questions relating to the liability of landlord and tenant, lessor and lessee, where a third person, while rightfully upon the leased premises, has been injured in consequence of the unsafe, dangerous and defective condition of said premises. It is alleged that Peter Rissler and William Stoodt were the owners-of a brick building in the city of Mansfield, Ohio, which they had leased to certain tenants, among whom was one Marcus McDermott, a justice of the peace, who kept his office in one of the rooms in said building, and was in possession of and using the same as .such justice in conducting the business incident to such office. That at the rear of said building, and appurtenant to the main building, there was a large privy vault for the use and accommodation in common of the tenants and other persons who might have occasion to use the same when rightfully upon said premises. Said privy vault is described as being about six or .eight feet square and about ten feet in depth. That the floor thereof, on account of long usage and faulty construction, was, at the time the same was leased to said tenants, including said McDermott, unsafe, dangerous and wholly unfit for use.

The petition further states, that at the time said premises were leased, and during the term of the leases, said outbuilding and vault were under the exclusive control of the owners of said building, and, by the terms of renting or leasing, said outbuilding and vault were to be maintained and kept in repair by the owners for the use of their tenants and their patrons; that the plaintiff, while attending a public trial before said justice of the peace, under a subpoena as a witness, had -occasion to use a privy, and without knowledge of the unsafe condition of said outbuilding and privy vault entered the same, and on account of its decayed and unsafe condition, the floor, without fault or negligence on her part, gave way and she was precipitated into said privy vault and was injured.

These conditions being alleged in the amended petition and admitted by the demurrer the question is, are the owners liable upon the statements made in the amended petition.

It is apparent at once that there was no contractual relationship between the plaintiff in error and the defendants in error, and it is not contended that the right to recover is based on that relationship. It is contended by plaintiff in error that the defendants in error, as owners ot said premises, owed her a duty to keep the same free from dangerous defects, and that such duty was created from the fact that said owners had control of that part of the premises where the accident occurred, and that, by the terms of leasing to the various tenants, said owners had undertaken to keep said premises in repair. On the other hand, it is contended by the defendants in error, the owners, that liability in such cases depends entirely on the question as to who invited the injured party on the premises; and that there is no implied warranty on the part of the owners to a guest, customer of the tenant, or one rightfully on said premises, that such premises are in a safe condition; that if an injury occurs on the premises then the injured person must look' for redress to the person who invited him into such dangerous place.

Liability of the owner or landlord to persons rightfully on the premises arises in two ways:

First. Where, at the time of leasing, the property is in an unsafe or defective condition resulting from construction, or is in such want of repair as to be a nuisance, and the owner receives rent for their use, the owner is íiable to persons rightfully on the premises for injuries happening in consequence of such defective and unsafe condition, because the nuisance on or defective and unsafe condition of the premises was occasioned by the owner, and he is held responsible to such persons rightfully on the premises even after the lease of such premises to a tenant. The erector or maintainor of a nuisance cannot relieve himself from liability to such persons by assigning over, and more especially where he grants over and receives rent as a recompense for the use of such premises, and he continues to permit the property to remain a nuisance or in such unsafe and dangerous condition. The principle upon which his liability is based is, that control is the criterion of responsibility, for control means that power which occasions and which can prevent. The nuisance having been created, that is, allowed to originate, by the owner, manifestly he should be responsible for its consequences. I.f the defect is inherent in the original construction, and that occasions the injury, then the owner, or landlord, is responsible for injuries to persons rightfully on the premises.

Second. Where the owner, at the time' of leasing the premises, assumed and agreed to maintain and keep in repair the demised premises and was in the exclusive, immediate and absolute charge and control of such premises, the owner is liable to such persons rightfully on the premises. But when the nuisance or unsafe and dangerous condition of the premises arises after the demise, in absence of an agreement to repair by the owner and where the owner does not retain control over said premises, the tenant would be responsible and not the landlord. The principle of liability ordinarily applies only to persons in possession and having control either as owner or tenant.

The cases of Burdick v. Cheadle, 26 Ohio St. 393 [20 Am. Rep. 767], and Shindelbeck v. Moon, 32 Ohio St. 264 [30 Am. Rep. 584], have been cited by counsel for the defendants in error as applicable to this case. In those cases the tenant himself had possession of and control over the property. They were not cases where the landlord had retained possession of the premises and where he exercised control over them as he saw fit, as is alleged in the amended petition in this case, and the Suprehie Court recognized the principle in those cases, that where, the landlord is in possession of the premises, or of a portion of them, and exercised control over them, he is liable for negligence as the general owner of such property regardless of the lease. And the court say, in Burdick v. Cheadle, supra, on page 396, after discussing the maxim, sic utere tuo alienum laedas:

This principle ordinarily applies only to persons in possession, and having control of the property, either as owners or tenants. But in case a landlord undertakes with his tenant to keep the premises in repair, having thus reserved the control to the extent necessary for making repairs, his duty to the public in relation to the property is not affected by the lease, and he remains responsible, under the doctrine of the above maxim, for defects arising from the want of repairs during the continuance of the lease.”

And on page 397, the court say:

“ The general rule of law undoubtedly is, that persons who claim ■damages on the account that they were invited into a dangerous place, in which they received injuries, must seek their remedy against the person who invited them. There is nothing in the relation of landlord and tenant which changes this rule.” v

And in the case of Shindelbeck v. Moon, supra, the first paragraph ■of the syllabus is as follows:

“ A landlord who has demised property, parting with possession and ■control thereof to a tenant in occupation, is not responsible for injuries arising from defective condition of such premises, when that defect arises ■during the continuance of the lease.”

And on page 267, the court say:

“ The principle which runs through cases, determining the responsibility of the one or the other, may be thus defined: Whoever had con-. trol of the premises at the time the cause of injury originated, that person is liable in damages, which simply means that the party in fault must respond.”

And on page 275 the court say, after discussing the case of Burdick v. Cheadle, supra, and other cases:

“ The rule, therefore, deducible from, the authorities, and which is applicable to the case in hand, is this: A landlord, who is out of possession of the premises, by virtue of a demise, and who has no control over them; who would not have the right to enter therein, even to make repairs, without his tenant’s 'consent, is not liable for accidents occasioned by the fact that the property is temporarily out of repair.”

The superior court of Cincinnati, at general term, in Dorse v. Fisher, 10 Dec. Re. 163 (19 Bull. 106), in the first paragraph of the syllabus, say:

“ A landlord is charged with the duty of keeping in repair and free from danger a common passageway for a number of his tenants, where he has control of the passageway, subject only to the tenants’ right to use the same as á passageway.”

In that case the defendant was the owner of a tenement house in the city of Cincinnati, in which he had fifty-two tenants, among whom were the plaintiff, his wife and two sons. In the yard back of the house was a privy for the use of the tenants of the house. The landlord desiring to improve his property contracted for the erection of a second large tenement house in the yard. The cellar of the new building extended some little distance under the privy, which required the removal of the privy and the vault some three or four feet. By reason of removal from its former position, the wall of the vault had given way under one of the doors and a large hole was made by the caving in of the earth adjacent to the wall. There was evidence that the defendant, the owner, knew of the dangerous condition of the approach to, the privy for some days preceding the accident. The plaintiff, going out to the privy at night, in attempting to enter, fell into this hole before described and was injured. A verdict was rendered against the defendant, the owner, and judgment followed the verdict. At general term the judgment was affirmed.

Taft, J., in rendering the opinion of the court, on page 165 (107), says:

“The tenants were lawfully entitled to use the approaches to the privy. The evidence shows that they shared this right with each other and with the landlord. The landlord had, and exercised control over the yard and approaches to the privy, subject to the right of use by the tenants. Under these circumstances, the ordinary rule as between! the tenant and the landlord, that the tenant shall make repairs, is changed, and the obligation to keep in repair such common way, as controlled by the landlord, is upon the landlord.”

The general rule is stated and authorities cited in 2 Shearman & Redfield, Negligence, Sec. 710, as follows: “And so where a building is let in flats for offices or for habitation — the halls, entries, stairways, roof and yard not being demised to any tenant but used in common by all — - the landlord owes a duty to the tenants, and to those entering the premises to visit them, to keep such undemised parts in a reasonably safe state of repair.”

In the case of Looney v. McLean, 129 Mass. 33 [37 Am. Rep. 295], the court held:

“ A landlord, who lets rooms in a building to different tenants, with a right of way in common over a staircase, is bound to use reasonable care to keep such staircase in repair; if he fails to do so, he is liable to a tenant injured thereby while in the exercise of reasonable care.”

And the court, on page 35, say:

“ Where a portion of a building is let, and the tenant has rights of passageway over staircases and entries in common with the landlord and the other tenants, there is no such leasing as will exonerate the landlord from all responsibility for the safe condition of that portion of which he still retains control, and which he is bound to keep in repair; as to such portion, he still retains the responsibilites of a general owner to all persons, including the tenants of his building.”

This case is approved in Watkins v. Goodall, 138 Mass. 533.

In the case of Stenberg v. Willcox, 96 Tenn. 163 [33 S. W. Rep. 917; 34 L. R. A. 615], the supreme court of Tennessee held:

“ Where unsafe premises are leased, to be used as a boarding house, the lessor, if he knew the unsafe condition of the premises, or could have known it by the exercise of reasonable care and diligence, is liable to the lessee’s guest or boarder who has sustained personal injuries as the result of such unsafe condition of the premises.”

In the case of Marwedel v. Cook, 154 Mass. 235 [28 N. E. Rep. 140], the court say:

“ The owner of a building let it for office purposes to various tenants, retaining control of the halls, stairways, and elevator. The stairways were winding, and so constructed that the natural light was partially cut off, and .artificial light, for which provision was made, was necessary at times to render them safe. During an afternoon in March a woman went in the elevator to the fifth floor on business, and having finished the same at about half past five o'clock, after the elevator had stopped run-tiing for the day, proceeded to descend by the stairway, with which she was unacquainted, then the only mode of egress. A tenant of the office visited by her, seeing that the gas was not lighted, cautioned her to be careful. As she was going down from the fourth to the third story it grew dark, but, although unable to see, she went on, holding to the hand rail with both hands, and in some way at a turn in the stairs lost her hold, fell, and was injured: Held, in an action against the owner of the building for such injuries, that the question whether the defendant was negligent in not lighting the stairways, and whether the plaintiff exercised due care in descending under the circumstances, were for the jury.” ■

The amended petition avers not only defects in the original construction of the privy vault, before the renting, but it is alleged that the defendants, as owners, at the time of leasing the same, assumed and undertook to maintain said outbuilding and vault, and the same were, at the time of the happening of the grievances complained of, under the exclusive, immediate and absolute charge and control of said owners; that, by the terms of renting or leasing of said premises, it was no part of the •duty of the tenants to provide, maintain or keep in repair' said outbuilding and vault; that by the terms of the leasing by said tenants, including said justice of the peace, it was stipulated and fully understood by said owners and tenants, that all such conveniences, as said outbuilding and vault, were to be furnished for the use and convenience in common of said tenants and their patrons by said owners.

The rule, therefore, deducible from the authorities before mentioned, and which is applicable to this case, is this: A landlord, who leases premises with an existing nuisance thereon at the time of leasing, resulting from defects inherent in the original construction, and this occasions the injury to a third person, is responsible; or, if the defect occurs after the letting, and the lessor, by virtue of the lease, covenants to repair, and retains or reserves the right to enter to make repairs, he is liable for accidents occasioned by the property becoming out of repair and dangerous.

This rule, is well stated in 2 Kerr, Real Prop. Sec. 1227: “ The liability of a landlord for injuries to third persons in the premises leased ceases with the commencement of the tenant’s occupation, unless the landlord has expressly covenanted to repair, in which case he is liable to the same extent .that he would be if in actual occupation of the premises himself, upon the principle that by his covenant to repair he holds out to those in the lawful occupation of the premises an implied assurance that they are safe, and an implied invitation to use all parts of them. "* * * If there be a reservation in the lease to enter and to view and make improvements, the lessor is bound to make the necessary repairs, without notice só to do.”

The allegations contained in the amended petition in this case are1 sufficient to hold the defendants liable on two grounds, first, for defects-inherent in the original construction of the vault, and, second, under-the terms of the lease, whereby they retained control of the building and: agreed to keep the sanie in repair. Therefore, the court erred in sus— taining the demurrer, and for this reason the judgment is reversed.

Cause remanded with instructions to overrule the demurrer.

Douglass and Donahue, JJ., concur.


source: Caselaw Access Project

author: PARKER, J.

license: Public Domain

text:
    WORDS AND PHRASES — COLLEGES AND UNIVERSITIES — INJUNCTION.
    [Lucas (6th) Circuit Court,
    May 28, 1904.]
    Parker, Hull and Haynes, JJ.
    James Waddick (Taxpayer), etc. v. John B. Merrell et al.
    1, Construction of Word “University” in Sec. 217 of the Municipal Code.
    . The word “university,” as used in Sec. 217 of the new municipal code (95 ' O. L. 91; Sec. 1536-933 Rev. Stat.), must be construed according to the legislative intent, and, not in its strict or technical sense. Hence, where the word was used with respect to the “Toledo University” by the donor in a deed of trust providing funds therefor, by the legislature in previous acts, and by the city council in its legislation thereon, an act providing for the administration of “a university supported wholly or in part by municipal taxation,” and clearly referable to such institution, will apply thereto.
    2. Provision of Sec. 4105 Rev. Stat. as to Taxes not Repealed by Sec. 207 or the Municipal Code.
    Section 217 of the new municipal code does not repeal that part of Sec. 4105 Rev. Stat. providing for the levy of taxes for the support of municipal universities.
    3. Effect of Act 97 O. L. 544, Quaere.
    Whether the act of May 3, 1904 (97 O. L. 544), recommits the management of such institution to the board of education, quaere.

    4. Court mot Bound to Grant Mandamus Where Legal Right to Relies' Exists.
    A mandatory injunction when directed to particular officers, and commanding the performance of certain official acts or duties is, in effect, a mandamus. This is an extraordinary remedy which the court, in its discretion, may refuse, even though a legal right to relief exists. Hence, this court, in view of the possible demoralization of the schools liable to result therefrom, will not at this time compel a change of management of the “Toledo University,” under the doubtful authority of act 97 O. I* 544.

      Appeal from Lucas common pleas court.
    J. Y. Todd, for plaintiff.
    C. S. Northup, for defendants.
   PARKER, J.

This action is in this court by way of appeal. It is in its nature and upon its face an action of injunction to restrain the directors of the so-called Toledo University from exercising certain franchises, from holding and controlling 'certain property, and from expending for the purposes of the university funds raised by taxation, and is also to require the board of education of the city of Toledo to do what it is charged the directors of the so-called university are, doing in that behalf. It is charged, in short, that the statute providing for this directory which is appointed by the mayor of Toledo is, invalid, and also that it dqes not apply to the city of Toledo, and is therefore ineffective; that the appointment made under it is nugatory, because, as it is said, it applies only to -cities where there is in fact a university, and that t'he city of Toledo has mot, in fact, a university — that the so-called Toledo University is not a university, within the purview of the act. It is also charged in the petition that the act under which the levy is made to provide for funds to be raised by taxation for the support of this institution is invalid on various grounds, especially on the ground that the legislation is special — that it provides for an unauthorized classification of municipalities.

There are answers filed on behalf of the various defendants, but the issues of fact made' are very narrow, and perhaps not very important in certain aspects of the case, unless in one particular. There is an issue made as to the kind and grade of studies taught by the Toledo University and by the Toledo high school, and we have heard some evidence on that issue.

The petition was filed on July 6, 1903. It appears that prior to the enactment of the. statute providing for this board of directors which is now in control, to wit, (96 O. L. 91), Sec. 217 of the new code the property and the management of the so-called university was under the control of the board of education of the city of Toledo school district, and that by virtue of an act so providing theretofore in force. It is charged in the petition that this pretended board of directors of the “university,” as it is therein designated, “has demanded that the board of education turn over to it all of said property and funds, and that said board of education shall hereafter cease to maintain instruction in said manual training work, leaving such instruction to be provided by such pretended board of directors,” and that unless restrained from so doing the board of education will accordingly turn over tbe property and affairs to the board of ■directors of the university. It appears by a supplemental petition filed in the case, and by the records and evidence in the case, that no restraining order was issued, and that subsequently the property was turned over to the board of directors of the university, and the university took charge •of it, and has since been in control of the school or the department of ■education which is designated as the “Toledo University.” It is also stated in the petition that a levy of three-tenths of one mill on the dollar ■of valuation has been made on the taxable property of the city for the purposes of the Toledo University; that this was done on June 15, 1903; .-and that the board of directors of the university has requested the defendant William M. Godfrey, as county auditor, to place the same upon the tax duplicate of the county, the funds to be realized from such levy to be used by said “pretended board of directors.” With respect to that it appears that no restraining order was issued; that this levy was subsequently made; that the December half of this levy has been collected, and the funds turned over to the board of directors of the university. The June half is upon the tax duplicate, and is about due for collection; so that the aspect of affairs has changed somewhat, we may'say has, in our judgment, changed materially, as the ease presents itself to the court for disposition, since the action was commenced.

As to the constitutional questions involved. In the case of State v. Toledo, 13-23 O. C. C. 327, these constitutional questions and various other questions pertaining to this institution, were very fully considered by this court, as will be seen by reading the opinion by Judge Haynes in that case. A great many of the questions considered in that case are not involved here, but we think that these constitutional questions were necessarily involved there. It is urged that the particular questions of the taxing power which is conferred, or undertaken to be conferred, upon the city or upon the board.of education, under the statute in question, was not passed upon by the court there. We think, however, that the whole act was necessarily involved, and all its provisions. Even if that were not so, in the situation of this case as I have described it, the tax having gone upon the duplicate, being due for collection and partly- collected, the treasurer not being made a party defendant, nor sought to be restrained from making any collection, the case seems to have shifted into one where we are asked to require one board to take control of the property and affairs of the Toledo University, including the amount to be collected as taxes, and to restrain the other board from exercising such control, and that its aspect of a proceeding to restrain the levy of taxes has passed away. We therefore do not believe that it is necessary for us. to go any further into a consideration of the constitutional questions involved. We think they are sufficiently discussed and that they are necessarily disposed of in the case of State v. Toledo, supra.

It will be observed that what remains of the case, and the disposition to be made of it, depends in large measure upon the construction to be put upon this section of the statute (96 O. L. 91, Sec. 217) providing for the appointment of this board of directors, and more particularly upon the construction of the word “ university ” found in the statute. It reads in part:

“In any municipal corporation having a university supported in whole or in part by municipal taxation all the authority, powers and control vested in or belonging to said corporation with respect to the management of the estate, property and funds given, transferred, covenanted or pledged to said corporation in trust or otherwise for such university, as well as the government, conduct and control of such university, shall be vested in and exercised by a board of directors consisting of nine electors of said municipal corporation, who shall be appointed by the-mayor of such municipal corporation. ’ ’

It then gives their terms of office, etc.

It was in pursuance of that provision that this board was appointed,, and it is contended that this act does not apply to this city or to this institution in the city of Toledo, because the institution is not a university. Upon that subject counsel for plaintiff has furnished us with many definitions of lexicographers, and scholars, and it seems to us plain that, according to these definitions, the institution is not a university as it is- and for some time has been carred on.

But that does not settle the question. What we are called upon to-determine is, the sense in which the legislature used this word “university” in this statute. It is said with very good reason, that ordinarily the legislature will be presumed to have adopted the correct and technical meaning of words, or at least their general and ordinary meaning; but it seems to us that there has been a somewhat loose use or misuse of this-word from the beginning, by the donor in the deed of trust providing for funds for this institution, by the council of the city in its legislation upon the subject, and by the state legislature in legislating upon the same subject. It seems to us that it is apparent from the legislation of the state that the word “university” has been used with respect to this very institution, from the beginning of the legislation upon the subject, or ever since the city of Toledo could have come within the purview of the law» It has been suggested that tbe original statute applicable to the city of Cincinnati, and to that city alone, mentions “university,” and that there has never been, or was not in the beginning, a university there, within the true meaning of the term. It was a university in embryo in the first instance. But however that may be, with respect to the city of Toledo it is apparent that the legislation has been directed to the control and management of this very institution. It is the only institution in the city of Toledo that is or has been a university either in fact or in name, either in existence or in embryo. In point on the subject is 94 O. L. 241. This is Sec. 4105 Rev. Stat., as amended on April 16, 1900, and it is the law that was in force at the time the case of State v. Toledo, supra, was decided. It prescribes (as does 96 O. L. 91, Sec. 217 also), that it shall apply to a city where a university is located. Most of the statutes, and this Sec. 4105 Rev. Stat. in most instances as it has been amended from time to time, have contained other terms whereby they might be applied to other institutions than universities; “schools,” and “institutions of learning,” were terms used in addition to the word “university,” but in this statute the word' “university” alone is used. It provides:

“That the provisions of this chapter shall be applicable to cities of the third grade of the first class, except that the rate of taxation to be assessed and levied, shall not exceed one-half of one mill upon the taxable property of such cities; and except that the board of directors or trustees shall consist of five members and shall be filled by appointment from persons of approved learning, discretion and fitness for the office, by the board of education and confirmed by the common council in the city in which such university shall be located.”

It was in pursuance of that section that the board in control was acting at the time of the doing of the acts that I have mentioned. It was in pursuance of that that it had been formed. Under that it derived whatever authority it may have acquired.

• Now, we think that some weight and significance should be attached to the action of the state, as represented by the attorney-general in the case of State v. Toledo, supra. Without stopping to recite a great deal that is contained in the petition in that case, I will say that it is therein stated and repeated in various forms, that the city of Toledo came within the purview of the act, and that this was a university. There is no question made about it in that case. It was stated, and accepted on all hands as a fact. The idea of making the attack upon the other ground seems to be a new one — something that has originated since that case was brought here by the state. This, as I say, indicates that the then law officer of the state as well as the legislature of the state, have treated the institution called a university in the city of Toledo as a university, and that the state has legislated with respect to it. The act to which I have just called attention would apply to the city of Toledo only. Indeed, it was attacked upon that ground in that ease as being special. In part of this legislation, in one act at least, the city of Toledo is specifically mentioned as the city to which the act is to apply.

Our conclusion upon the matter is, therefore, it being, as I say, apparent to us that the legislature has legislated with respect to the city of Toledo and this institution called a “university” in the city of Toledo, that the legislature has used the term “university” in the loose way, perhaps in the improper way, that it has been used by citizens of the city generally, by the donor, and by the city legislature of the city of Toledo i. e., as applicable to this institution; and that therefore the act applies to the city of Toledo, and the mayor was called upon to act, and proceeded properly and regularly in appointing this board of directors. That substantially disposes,of the case.

There is another matter that I shall mention. In this Sc. 217 of the new code (96 O. L. 91) there is a provision that “all acts or parts of acts not inconsistent herewith which govern such universities shall be and remain in full force and effect and Secs. 4095, 4096, 4097, 4099, 4100, 4101, 4102, 4103 and 4104 Rev. Stat., as amended May 12, 1902, .shall remain in full force and effect. ’ ’ There is no mention, it will be observed, of Sec. 4105 Rev. Stat., which is the section which makes the act applicable to the city of Toledo — the section which authorizes the levy of taxes in the city of Toledo and which provides the number and character of the trustees, etc., for the institution in the city of Toledo. That has given rise to some doubt and uncertainty as to whether that section of the law was repealed or preserved by the provision, that “all acts or parts of acts not inconsistent herewith which govern such universities shall be and remain in full force and effect;” and the provision elsewhere, found that all acts inconsistent shall be regarded as repealed. But the chief purpose of the legislature in the adoption of the municipal code, as is well known, was to abolish all the classifications that had theretofore been provided by legislation, and which the Supreme Court had held to be unconstitutional. It is the evident purpose of this section to bring all municipal corporations of the state, where there may be universities existing, within its purview. In so far, then, as 96 O. L. 91, Sec. 217 provides for the mode or system of government, who the ■directors shall be, how they shall be appointed, etc., we are of the opinion that it covers .the whole subject, and necessarily abrogates so much of Sec. 4105 Rev. Stat. as contains the provision that the matter shall be committed to the control of the board of education of the city school •district. It does not follow, however, that all of Sec. 4105 Rev. Stat. was thereby abrogated. That section provided for the levy of taxes by the board of education, and there is no corresponding provision in the new municipal code. The section is not specifically repealed, and so far as we can observe, there is no objection to holding, .and there is no reason why we should not hold, that that provision of ■Sec. 4105 Rev. Stat. is still in force, and that the levy that is attacked in this case was regularly made in pursuance of that statute, and the "tax so levied is enforceable.

Our attention is called to the fact that by legislation of the legislature just adjourned this whole matter has been changed, and probably materially changed. 'We have not been furnished with a certified copy of the act [97 O. L. 544], or a printed copy, other than a copy of the bill which was introduced in the legislature, with certain printed and written memoranda upon it, and certain additions, and certain parts stricken out. We assume that this copy is correct; but it does not enlighten us as to the time when it passed or became a law, which is, perhaps, not very important. Our attention is called to the fact that by the new school code, schools of different kinds falling below the dignity of colleges and universities are defined, and so are colleges and universities. Under this new act universities are defined as follows, Sec. 4102 Rev. Stat.:

“A university supported in whole or in part by municipal taxation, is hereby defined as an assemblage of colleges united under one organization or management, affording instruction in the arts, sciences and the learned professions, and conferring degrees.”

This seems to be according to the general definition laid down by lexicographers and scholars.

The act provides that the taxes to be levied after the adoption of this act, Sec. 4104 Rev. Stat.,. “shall only be levied and assessed when the chief work of such university, college or institution, is the maintenance of courses of instruction, in advance of and supplementary to the instruction authorized to be maintained in high schools by boards of ■education. ’ ’

It contains an amendment of Sec. 4105 Rev. Stat.:

“The custody, management and administration of any and all estates or funds, given or transferred in trust to any municipality for the promotion of education, and accepted by the council thereof, and any institution for the promotion of education heretofore or hereafter so founded other than a university as defined by this act, shall be comitted to, and exercised by, the board of education of the school district including such municipality.”

So that it is said that this whole subject is to be recommitted to the board of education. We are not.prepared to dispute that. We do not, however, feel called upon to pass upon that question. In view of the present situation we think the court should decide this case upon the law as it stood at the time the action was instituted. It is shown by the testimony of the superintendent of schools that this so-called university and the high school are working together in conjunction and very harmoniously ; and it appears that we are about at the close of the school year, that is to say, that the term of the schools will close during the month that we are about entering upon. The only effect that any order we could make now, in pursuance of this recent statute, could have, would be to transfer a part of this fund that is about to be collected to the hands of the board of education. It does not appear that this would operate in any way to the advantage 'of the plaintiff who is here complaining, or to the taxpayers of the city whom he represents. As I have indicated, the nature of the ease has changed somewhat. It has developed now into an action of mandamus, practically. It is said what is desired is a mandatory injunction, which is, in its nature, a mandamus, when directed to particular officers and commanding performance of certain specific official acts or duties.. The granting of the relief is largely within the discretion of the court. It is an extraordinary relief; it is a high prerogative writ. The courts are not always called upon to grant such relief, even though there may be a legal right to the thing sought. In the exercise of what we believe to be a sound discretion in this matter, we think that it would be wrong for us at this juncture to take the risk of demoralizing the schools of this city about the time they are to graduate their students who are to graduate this year, about the time they are to close the business of the school year, by decreeing that there shall be a change of management of the affairs of the so-called university; that these university directors shall step down and out, and charge shall be taken by the board of education, and all the funds and property shall be turned over by the former to the latter. Therefore we decline to do it. We leave the matter so that the parties may, if they choose, institute a new action under the new law. Our attention is called to the fact, which is now a matter of common information that we have a right to consider, that there is a possibility, perhaps a probability, of some new features coming into this so-called university, whereby it may come within the purview of the new law, i. e., the statutory definition of a university. For these reasons we think that we should not now undertake to mould the case and determine it under this recent legislation.

We therefore dismiss the petition at the costs of the plaintiff.

Hull and Haynes, JJ., concur.


text:
    COSTS AND FEES — OFFICE AND OFFICERS — STATUTES.
    [Lucas (6th) Circuit Court,
    June 11, 1904.]
    Parker, Hull and Haynes, JJ.
    Irwin I. Millard v. Henry Conrade et al (Comrs.), etc.
    J.. Offices Cannot Exact Compensation From County Except Under Statutory Authority.
    Compensation cannot be exacted from the county by an officer for services performed for the public unless such compensation is specifically provided for by statute.
    "2. Probate Judge not Entitled to Compensation for Appointment of County Treasury Examiners.
    There being no statutory provision authorizing the payment of compensation to the probate judge for services performed in the appointment of examiners of the county treasury under Sec. 1129 Rev. Stat., he is not entitled to compensation based upon the provisions of Sec. 547 Rev. Stat., which allows compensation such as is allowed the clerk of the court of common pleas, as Sec. 547 Rev. Stat. relates only to causes and proceedings between private parties.
    3. Costs and Fees Provided for in Sec. 719 Rev. Stat. are Only Compensation' Authorized in Lunacy Inquests. .
    Under Sec. 719 Rev. Stat., which provides the costs and fees in inquests of lunacy, the probate judge can have no compensation other than that actually provided for in this section, and as it does not provide compensation for making up a record the record is not to be made under favor of Sec. 546 Rev. Stat. where the title to real estate is not drawn in question, unless at the request of a party who may require it, at his own costs.

      4. Probate Judge’s Compensation for Conviction in Truancy Cases not Fixed by Sec. 6470 Rev. Stat.
    Where boys are prosecuted and convicted, of offenses against the laws of the state under and in pursuance of Sec. 753 Rev. Stat. and are sent to the Boy’s Industrial School no fees are allowable to the probate judge to be paid by the county, but where minors are convicted under Sec. 4022 Rev. Stat. et seq. for truancy, or in cases where no prosecution and conviction is required, not being criminal proceedings, the compensation of the judge is not fixed by Sec. 6470 Rev. Stat., and he may have the fees fixed for clerks of the courts of common pleas in like cases as authorized by Secs. 547, 759! and 4022-8 Rev. Stat.

      ERROR to Lucas common pleas court.
    King & Tracy, for plaintiff in error.
    W. G. Ulery and J. S. Martin, for defendant in error.
   PARKER, J.

Error is prosecuted here to the judgment of the court of common pleas. The plaintiff in error was judge of the probate court in and for Lucas county. He presented to the board of county commissioners accounts and claims for certain fees, in other words, certain, fee bills were presented, which he claims should have been allowed by the commissioners and paid to him by the county. The bills were disallowed, and were-taken under the statute to the court of common pleas. There he filed his petition. When the case came on to be heard, by agreement of the parties, no other pleading was filed, the facts stated in the petition being conceded, except the (Conclusion that the amounts claimed were due from the county to the claimant. That was the real question in controversy. In other words, it is contended on behalf of the county that there was no liability of the county for the fees and charges set forth in the fee bills presented. The bill of exceptions consists of this concession as to the facts, and these fee bills.

There are four bill for services, somewhat different in character and the plaintiff in error claims that they should be allowed under different statutes. One is for $6.79 for services in the matter of Henry Fisher, who, it appears, was sent to the Boys’ Industrial School at Lancaster; another is for $6.99 in the matter of Lena Stern, who was sent to the: Girls’ Industrial Home; another is for $20.90 in the matter of James H. McGuire and Louis E. Krieger, who were appointed to examine the treasury in pursuance of the statutes providing for such examination; and thé last is for $8.23 in the matter of State of Ohio v. Louis Shinaver, where an inquest of lunacy was held. In these particular bills it will be observed the amounts in controversy are not large, though it is said the question is of great public interest, because there are a great many other bills of the same sort pending in this county, amounting in the aggregate to a large sum, and that the question is one of interest throughout the state, because like bills are presented in other counties. It is stated in argument, and not disputed, and we have no doubt it is true, that in most cases of the same character such bills have been allowed by the county commissioners throughout the state, and that such bills have been allowed from county funds, almost from time immemorial, 'or as long, perhaps, as such services have been required. So that it, may well be said that the fact that these bills are challenged is no reflection upon the officers presenting the bills, and if the court shall find they are not entitled to payment of any of them, that would not in any way impeach the integrity of the officers. It is urged, however, that we shall give great weight and consideration to the fact that these bills have been allowed in this way for a long time, and generally without question; but we are of opinion that this argument is not entitled to a great deal of weight. Such practices grow up, as we know, very often, when there is no support to be found for them in the provisions of the law.

I probably shall not take these different bills up in the order that I have mentioned them hereinbefore. I shall begin by discussing the bill for the appointment of the examiners of the county treasury. That appointment was made under Sec. 1129 Rev. Stat. The section is quite lengthy; I shall not read all of it. It provides for an examination of the books, vouchers, accounts, moneys, bonds, securities and other property in the treasury of the county by the commissioners as often as every six months each year, and provides also that the probate judge shall, once every six months, or oftener, if he deem it necessary, or whenever he is requested so to do in writing by one or more of the bondsmen of the treasurer, appoint two examiners of- the treasury, and .that upon being appointed they shall proceed forthwith to examine. It defines their duties very fully, and the sort of report that they shall make; and it contains this provision:

“The said accountants shall certify the exact amount of money in the treasury, together with the amount belonging to each particular fund, also all'property, bonds, securities, vouchers, assets and effects as aforesaid in writing, in triplicate, one copy of which certificate shall be recorded in the books of the treasury, and filed by the treasurer in his. office, and one copy shall be recorded and filed by the auditor of the county; one copy thereof shall be duly reported to the probate court and be entered of record therein, a’copy of which shall be furnished by the probate judge for publication one week, in two newspapers of opposite politics, of general circulation in the county in which such examination is made, and said accountants so appointed and performing the duties-therein required, shall be paid five dollars per day for the time necessary to the performance of the same, out of the county treasury, on a warrant drawn by the county auditor and approved by the certificate of said court. ’ ’*

That fee of five dollars per day to the accountants is the only fee provided for in this section of the statute or in the statutes providing for this examination.

But it will be observed that the statute requires considerable services of the probate judge; the matter of selecting and appointing these officers, which involves a certificate of their appointment, which they present to the treasurer as their authority; the preparing by him of a copy of their report which is to be furnished for publication, and recording of such report; and perhaps some other services which I have not mentioned. But there is no fee or compensation specifically provided for such services.

The section of the statutes which provide in a general way for the fees of the probate judge are Sees. 546 Rev. Stat. which contains what is called the “ fee bill,” is very lengthy, and specifies a great many things on account of which fees may be charged and the fees that may be charged therefor, and Sec. 547 Rev. Stat. which provides that “ for any other services not herein provided for, the same fee shall be allowed as for similar services in the court of common pleas of the same county.” Running through the statutes we find in ditch cases and in various other proceedings special provisions for a fee or other compensation in those particular cases, but the compensation provided for the bulk of the services to be performed by him is that provided for by Secs. 546 and 547. In Sec. 546 we -find no provision for a fee or compensation that would be appropriate to the services provided for by Sec. 1129 Rev. Stat. It is claimed, however, that he should receive .compensation to be based upon that provided for clerks of the court of common pleas in this county, under the provisions of Sec. 547. It is to be observed that the compensation here claimed is against the county. Plaintiff in error is claiming compensation from the county, and in view of that I call attention to a number of cases, decided by our Supreme Court, and a few by the circuit courts, which, it seems to us, are entirely inconsistent with the idea that compensation can be exacted from the county by an officer for services performed for the public, unless such compensation is specifically provided for by statute. Some of the cases that I shall cite do not come to this exact proposition, but they all have some bearing on it.

In Debolt v. Cincinnati Tp. (Tr.) 7 Ohio St. 237, it is said, “An officer whose fees are regulated by statute [29 O. L. 489; Sec. 1532 Rev. Stat.], cad charge fees for those services only to which compensation is by law affixed.” In the case of Anderson v. Jefferson Co. (Comrs.) 25 Ohio St. 13, it is held that, “where a service for the benefit of the public is required by law, and no provision for its payment is made, it must be regarded as gratuitous, and no claim for compensation can be enforced. ’ ’ This rule is more fully stated in a later case of Strawn v. Commissioners, 47 Ohio St. 404, 408 [26 N. E. Rep. 635], That was a claim by the county surveyor for making a record of a private survey. The court concludes that he is not required to make such records, and then says:

“However, were this not so, yet it does not follow that, because a private survey is required to be recorded by a public officer, the public is compelled to pay the fees for recording it. In the case before us no statutory provision has been shown directly authorizing payment out of the public, funds of the fees of a county surveyor for recording a private survey; that, however, may not be necessary, for doubtless such an authority might be gathered by construction from the body of a statute in the absence of express words; but in such case the implication of a duty on the part of the public to pay must clearly appear. The fact that a duty is imposed upon a public officer will not be enough to charge the public with an obligation to pay for its performance, for the legislature may deem the duties imposed to be fully compensated by the privileges and other emoluments belonging to the office, or by fees permitted to be charged and collected for services connected with such duty or services, and hence provides no direct conpensation therefor, to be paid out of the public treasury.”

Following these cases in the order of the dates when they were decided, I call attention now to the case of Butler Co. (Comrs.) v. Welliver, 5 Circ. Dec. 569, 571 (12 R. 440), the closing paragraph:

“It is not a pleasant thing to disallow, claims of an officer of the court for services actually rendered by him, many of which are necessary and valuable, and for some of which he can receive no compensation from any other source. But, with an understanding of the law that they, cannot be paid from the county treasury unless such payment is explicitly provided for, our duty is plain, and must be performed.”

The next is the case of Jones v. Lucas Co. (Comrs.) 57 Ohio St. 189 [48 N. E. Rep. 882; 63 Am. St. Rep. 710], which went up from this county. The opinion is by Judge Spear. After citing these earlier cases decided by the Supreme Court, he says, page 209:

“The conclusion inevitably follows, that the auditor’s services in making the report for the commissioners must be deemed,, if not gratuitous, at least satisfied by the salary attached to his office, and that he is not entitled to extra compensation for such services, payable out of the-county treasury. 'And this conclusion follows, whether the sections-quoted impose the duty on him to make such report, or devolve it. primarily upon the commissioners, the duty of the auditor being only a general one to aid them, a question which it is not necessary to decide-to dispose of the case. ’ ’

We find no specific compensation provided for these services, and. we hold that as to this bill the court of common pleas did not err.

We next come to the question presented by the bill for holding an inquest of lunacy. For these services compensation is claimed under Sec. 719 Rev. Stat., which provides-the costs and fees in inquests of’ lunacy:

“The taxable costs and expenses to be paid under the provisions of this chapter shall be as follows: To the probate judge with whom the-affidavit is filed, the sum of two dollars for holding an inquest.; for each, warrant, certificate or subpoena he necessarily issues, the same fees as are allowed by law to the clerk of the court of common pleas for similar services; and the amount of postage on all communications to and from, the superintendent which the judge is required to pay. ’ ’

And there are provisions as to the compensation of other officers.

It is conceded that the probate judge is entitled to the'compensation specifically provided by this section of the statute in such eases, but it is contended on behalf of the county that in some of the charges in his. fee bill it is apparent, that not confining himself to the fees provided, by this section of the statute, the probate judge has undertaken to-charge under Sec. 547 Rev. Stat. for other services that he has been, required to perform, basing his claim upon the provision of that section, that he is to have such compensation as the clerk of the court of common pleas shall have in like cases xwhere a specific provision for his compensation is not made in the statute. In addition to these charges he has-also made some charges under See. 546 Rev. Stat., especially the charge for making up a complete record at eight cents per one hundred words,, $1.60. We are of the opinion that Sec. 547, which allows compensation such as is allowed the clerk of the court of common pleas, has no relation to services of this character performed by the probate judge, which are-to be paid for by the public; that it has relation to causes and proceedings, between private parties, and that that is what is provided for by Sec. 546; and Sec. 547 Rev. Stat. is intended to cover the cases or the items that may have been omitted from Sec. 546. We therefore hold that under Sec, 719 Rev. Stat. the probate judge can have no compensation other than that actually provided for in Sec. 719. That does not provide compensation for making up a record. When we turn to Sec. 546, which does provide for ■ compensation for services of that character, and undertake to apply -it to lunacy cases, we meet with another difficulty, for it reads, “making up complete record in canse, eight cents for. each hundred words, but no complete record shall be made in any ease, except when, the title of real estate is drawn in question, the court may order the-same, or either party may require it at his own cost.” We have had-, occasion to pass upon the meaning of the word “cause” when found in,;, fee bills. Our decision on the subject will be found in the case of Clark v. Lucas Co. (Comrs.) 7 Circ. Dec. 427 (14 R. 349). The case went to the Supreme Court, Clark v. Lucas Co. (Comrs.) 58 Ohio St. 107 [50 N. E. Rep. 356]. The closing paragraph in the opinion in the case, which was by Judge Burket, reads as follows, page 112:

“The claim made by counsel for plaintiff in error, to the effect that each cause means each name, whether plaintiff or defendant, is not tenable. A name is not a cause, neither is a plaintiff or defendant a cause.”

There the clerk of the court was asking for compensation for indexing and he made his cross indexes with reference to each name, and claimed that in each instance where he made that index it was an independent cause. The court held that that was not correct.

“The word cause is used in the sense of an action, or lawsuit. There may be many parties to an action but all combined constitute but one action, one lawsuit, one. cause. ’ ’

So it may be doubted whether the proceedings in lunacy cases are in the purview of the statute providing for the record of causes at all. But even if a cause, the record is not to be made where the title to real estate is not drawn in question, unless at the request of a party who may require it, at his own cost. *

It is contended on the part of the plaintiff in error that that provision is exceedingly obscure; that it is impossible to get at the meaning of it, and the conclusion is that it should be ignored, or the statute should be regarded as providing for a complete record in all cases. But we had occasion to consider that provision, and we found it meant as I have expressed it, that the complete record was not to be made unless title to real estate was drawn in question, and where the title to real estate was not drawn in question, the party who desired it and requested it should pay for it. Our position upon that subject will be found in Millard v. Lucas Co. (Comrs.) 7 Circ. Dec. 115 (13 R. 518), affirming a decision by Judge Pugsley of the court of common pleas in Lucas Co. (Comrs.) v. Millard, 4 Dec. 419 (4 N. P. 53), where the matter is more fully stated by the common pleas court. We affirmed his decision and approved his reasoning on the subject.

Our conclusion, therefore, is, upon the matter of the inquest of lunacy, that certain charges made are correct — those that come clearly within the purview of See. 719 Rev. Stat. — and the othérs are not correct; and such examination as we have made of this question convinces us that the fee bill made up tentatively by the counsel for the county, on page nine of his brief, sets forth all that may be legitimately charged under the section: First, two dollars for holding inquest; second, for each warrant, certificate or subpoena necessarily issued, the same fees as are allowed by law to the clerk of the common pleas court for similar services; and third, the amount of postage on all communications to and from the superintendent which the judge is required to pay. I believe these bills were disallowed in toto; we allow part, and the judgment will be modified in that respect as to that matter. ■

We come now to the question of fees charged in eases coming under the statute with reference to the Boys’ Industrial School.. That statute runs from Secs. 752 to 764b Rev. Stat. and then there are other provisions on the subject found in the truancy law, especially in Secs. 4022-4 and 4022-8 Rev. Stat.

Section 6470 Rev. Stat. provides:

“The judges of said probate courts shall be paid for their services in criminal cases such sums as the commissioners of said counties may allow, which sums shall be paid out of the county treasury of said counties, respectively, and said probate judges shall not receive any compensation by way of fees in any criminal business of which they have jurisdiction; but all costs, and all fines by said probate court imposed, including the fees of the judge, shall be collected in the same manner as fines and costs are now collected by the court of common pleas, and the same by said probate judges shall be paid into the county treasury.”

It is urged here on behalf of the county that the allowance of the county commissioners to the probate judge for services in criminal business covers his services performed with reference to the Boys’ Industrial School and with respect to the Girls’ Industrial Home; that these services are services in criminal matters. On the other hand, it is contended on behalf of the probate judge, the plaintiff in error, that these are not criminal cases; and attention is called to the fact that under the statutes with respect to the Girls’ Industrial Home, beginning with Sec. 768 Rev. Stat. there is no.provision for the conviction of a girl of a criminal offense before sending her to the industrial home, and also to the fact that under the statute with respect to compulsory education, providing for the sending of children to the industrial school or the industrial home, whether boys or girls, there is no provision for their conviction of a criminal offense before so sending them; that it is not required that the child shall be convicted of a crime; and it is urged that it would be wrong to undertake to brand a child as a criminal by treating these proceedings as criminal proceedings, in view of the absence of any specific provision of the statute that they shall be so regarded. It is urged by the plaintiff in error that the character of these proceedings is fixed by the statutes; that a proceeding against an incorrigible child or one who is a truant from school, or against a girl who is to be sent to the industrial home, is not a criminal proceeding; that therefore none of the proceedings should be regarded as criminal proceedings, and none of the provisions as criminal provisions. On the other hand, counsel for the county points out that under Sec. 753 Rev. Stat. a conviction of an offense is required as a condition precedent to sending a boy to the Boys’ Industrial School, and he urges that that fixes the character of all proceedings under the statute as criminal proceedings.

We think that both counsel are partly right and partly wrong; that the proceedings are not the same in all cases, and have not the same character in all cases where the children are sent to these institutions by the probate judge; that if an immoral youth is convicted of an offense against the laws of the state under and in pursuance of Sec. 753 Rev. Stat. and for that reason is sent to the Boys’ Industrial School, that is a criminal proceeding; that there must be a criminal prosecution, and it must be in the regular and ordinary methods of'a criminal prosecution. There must be a complaint lodged against him as provided by law; he is entitled to a trial by jury; and that the prosecutor must proceed in all respects to his conviction as though he were prosecuted for the purpose of imposing the penalty of a fine or imprisonment provided by statute, instead of the purpose of sending the boy to the industrial school. On the other hand, where a proceeding is under Sec. 4022 Rev. Stat. because of the boy’s or the girl’s truancy, where no conviction of an offense is required, or no trial by jury is to be had, it does not resemble a criminal prosecution, and in such a case, it not being a criminal prosecution, the compensation of the judge is not fixed by Sec. 6470 Rev. Stat., but he may have his fees. He may have his fees in cases of boys sent to the Boys’ Industrial School, for truancy, and girls sent to the Girls’ Industrial Home for that or any other cause where conviction of offense is not required, and his fees are those fixed for clerks of the courts of common pleas in like cases. This is authorized by Secs. 547, 759 and 4022-8 Rev. Stat. taken together.

Now, that these proceedings where a conviction of an offense is not required are not- criminal proceedings has been held by our Supreme Court in two cases. The first case is that of Prescott v. State, 19 Ohio St. 184 [2 Am. Rep. 388], The proceedings were had under the statute authorizing the establishment of houses of refuge and the subsequent enactment providing that in the cases provided for in the first statute, boys who were found to be offenders might be sent to the State Reform Farm. The court upholds the constitutionality of the act, and has this to say with respect to the proceedings, page 187:

“The provisions referred to in our state constitution relate to the preservation of the right of trial by jury, and to the rights of the accused in criminal prosecutions. We do not regard this case as coming within the operation of either of these provisions. It is neither a criminal prosecution, nor a proceeding according to the course of the common law, in which the right to a trial by jury is guaranteed.
“The proceeding is purely statutory; and the commitment, in cases like the present, is not designed as a punishment for crime, but to place minors of the description, and for the causes specified in the statute, under the guardianship of the public authorities named, for proper care and discipline, until they are reformed, or arrive at the age of majority. The institution to which they are committed is a school, not a prison; nor is the character of their detention affected by the fact that it is also a place where juvenile convicts may be sent, who would otherwise be condemned to confinement in the common jail or the penitentiary. ’ ’

It will be observed the statute on the subject of the reform farm, which is now called the Boys’ Industrial School, was drawn in question, and it was held that the proceeding to send a boy there is not a criminal proceeding; but the statute at the time of this holding was not as it is now; it did not then provide for the conviction of an offense. It was similar in its terms to the provisions in the statute with respect to the Girls’ Home, and similar to the provisions of the statutes with respect to houses of refuge. In the statute on the subject of houses of refuge there is a provision setting forth the offenses for the commission of which an infant may be confined therein, and there are other provisions to the effect that unless required by the person put upon trial, there need be no record made of the proceeding, and provision is made to place incorrigible children therein; so that it is in no proper sense a criminal prosecution, because it does not result in the conviction of an offense. The conviction requires him to remain and be educated. The conviction provided for is incidental, and no record is made of it unless he shall require it. So it is with respect to the Girls’ Industrial Home. The court may require that there shall be a criminal prosecution, and then the statute provides for the institution of such prosecution, and in such case, therefore, the probate judge would not be entitled to compensation for his services.

The statute (75 O. L. 61, Sec. 8) with reference to the reform school ■for boys provided that:

“Male youth, not over sixteen nor under ten years of age, may be ■committed to the reform school by any judge of a police, or judge of the court of common pleas, or the probate court, when, on complaint and proof by the parent, guardian, or next friends of any such youth, supported by the sworn statement of two respectable witnesses, it is shown that he, by reason of his incorrigible or criminal conduct, is beyond the control of such parent, guardian, or next friend, and that, from regard to his future welfare and the protection of society, he should be placed under restraint.”

There is no such provision now in the statute with respect to sending ■boys to the industrial school.

Another ease upon this subject is Cincinnati House of Refuge v. Ryan, 37 Ohio St. 197, 203. There the court refers with approval to the case of Prescott v. State, supra, and says this:

“The proceeding is purely statutory. It is intended to provide a ■summary method for caring for destitute children.
“The commitment is not designed as a punishment for crime, but to place destitute, neglected and homeless children, and those who are in danger of growing up as idle and vicious members of society, under the .guardianship of the public authorities, for their proper care, and to prevent crime and pauperism. As to such infants, it is a home and a ■school, not a prison.”

In the ease of Quigley v. State, 3 Circ. Dec. 310 (5 R. 638), this question is adverted to, and the truancy or compulsory education law was there drawn in question, and was sustained. ■ Reference is made in the opinion to Cincinnati House of Refuge v. Ryan, and Prescott v. :State, supra, as applicable to proceedings under the truancy law.

Our conclusion upon this matter is that where boys are prosecuted for •and convicted of offenses against the laws of the state, and are therefore sent to the Boys’ Industrial School, no fees are allowable to the probate judge to be paid by the county; but where they are sent up under the-compulsory education law, or in cases where no prosecution and conviction is had, fees are to be allowed and paid, and the same is true in all cases where girls are sent to the Girls’ Industrial Home.

Whether the bill in this particular case of State of Ohio v. Louis Shinaver would come under the one rule or the other, that is to say, whether it was a criminal prosecution or a proceeding under the truancy law, we are not advised by this record, and since error, if any occur, must affirmatively appear on the record, we must assume that it was a criminal prosecution, and affirm, unless counsel shall agree that it was a case under truancy law, in which case the record can be made to say so, and the bill will be allowed.

The case of the girl Lena Stern, who was sent to the industrial home, evidently was a proceeding under the statute to which I have referred, which does not require conviction of an offense, and as to that we hold that the bill should be allowed.

I believe no fault is found with the items in these last two bills, so-. that the decree of the court of common pleas will be modified in accordance with this opinion.

The judgment for costs in this court will go against the county.

Hull and Haynes, JJ„ concur.