author:
      HAYNES, J.
      PARKER, J.

text:
    MANDAMUS — UNIVERSITIES AND COLLEGES — SCHOOLS.
    [Lucas (6th) Circuit Court,
    October 10, 1904.]
    Parker, Hull and Haynes, JJ.
    State ex rel. Waldron v. Toledo (City) et al.
    1. Legislature Cannot Transfer Toledo University to City Board of Education — Attempted Transfer no Defense in Mandamus, When.
    The legislature is without authority to take the entire control and management of the Toledo university, and its property, from the trustees appointed by the mayor, and pass it over to the city board of education. Hence, it is no defense to a mandamus proceeding brought to compel the city auditor and treasurer to issue and pay a warrant for services performed under a contract made with the trustees of the university, that such contract was made after the legislature had transferred the university to the city board of education.
    2. Limits of City District not Required to be Coterminous With Municipality.
    The limits of a city school district are not required to be coterminous with those of the municipality, and whether they are, or are not, will not affect the legal status of either. (Parker, J.)
    Mandamus. ,.
    I. N. Huntsfoerger, for plaintiff:
    Section 4105 Rev. Stat., amended May 3, 1904, is merely permissive of directory, and is prospective in operation. Section 28, Art. 2, Const.; Kelly v. Kelso, 5 Ohio St. 198; State v. Staley, 3 Circ. Dec. 294 (5 R. 602).
    • An officer cannot be removed by the legislature without abolishing the office. State v. Cave, 26 O. C. C. 301; State v. Staley, 3 Circ. Dec, 294 (5 R. 602).
    Section 27, Art. 2, Const., prohibits legislature from exercising any appointing power. State v. Kennon, 7 Ohio St. 546; State v. Staley, 3 Circ. Dec. 294 (5 R. 602); Bender v. Cushing, 14 Dec. 65.
    ■ The directors of the university are officers within the meaning of Sec. 27, Art. 2. Barker v. State, 69 Ohio St. 68 [68 N. E. Rep. 575]; State v. Kennon, 7 Ohio St. 546; State v. Brennon, 49 Ohio St. 33 [29 N. E. Rep. 593] ; State v. Jennings, 57 Ohio St. 415 [49 N. E: Rep. 404 ; 63 Am. St. Rep. 723] ; State v. Halliday, 61 Ohio St. 171 [55 N. E. Rep. 175]; State v. Funk,. 8 Circ. Dec. 782 (16 R. 155) ; Findlay v. Parker, 9 Circ. Dec. 710 (17 R. 294) ; Mechem, Pub. Off. Sec. 4.
    Section 27, Art. 2, cannot be evaded by a change in the name of the office, or by dividing it or assigning its duties to other officers already elected. People v. Porter, 90 N. Y. 68; People v.. Albertson, 55 N. Y. 50; Park Commissioners v. Detroit (Common Council), 28 Mich. 228 [15 Am. Rep. 202]; Tiedeman, Munic. Corp. Sec. 18; 1 Dillon. Munic. Corp. Secs. 58, 58a; Fox v. Humane Soc. 25 App. Div. 26 [48 N. Y„ Supp. 625).
    The legislature has no power to appoint local officers or agents for municipalities, whether they are officers within the meaning of Sec. 27,-Art. 2, or not, as such power is executive. State v.' Kennon, 7 Ohio St.-546; State v. Denny, 118 Ind. 382 [21 N. É. Rep. 252 ; 4 D. R. A. 79] ;; Cooley, Const. Dim. (6 ed.) 206, 208; Cin. W. & Z. Ry. v. Clinton Co, (Comrs.) 1 Ohio St. 77; People v. Dynch, 51 Cal. 15 [21 Am. Repr 677] ; Citizens Sav. & D. Assn. v. Topeka (City), 87 U. S. (20 Wall.) 655 [22 D- Ed. 455]; Mechem, Pub. Off. Sec. 123; 1 Beach, Pub. Corp. Sec. 87; State v. Commissioners, 54 Ohio St. 333 [43 N. E. Rep. 587].
    Section 4105 Rev. Stat, also violates Sec. 1, Art. 2, of the constitution of Ohio, because it is mandatory in form and executive in character and denies the right of local self-government and is in excess of legislative power. State v. Commissioners, 54 Ohio St. 333 [43 N. E. Rep. 587]; Commissioners v. State, 50 Ohio St. 653 [35 N. E. Rep. 887]; Western v. Goesling, 30 Bull. 291, dissenting opinion of Minshall and Spear, JJ.; Park Commissioners v. Common Council, 28 Mich. 228 [15 Am. Rep. 202] ; People v. Hurlbut, 24 Mich. 44 [9 Am. Rep. 103]; People v. Albertson, 55 N. Y. 50; People v. Dynch, 51 Cal. 15 [21 Am. Rep. 677]; State v. Bader, 5 Circ. Dec. 703 (12 R. 659); People v. Chicago (Mayor), 51 Ill. 17; Atkins v. Randolph, 31 Vt. 226; Dartmouth College (Tr.) v. Woodward, 17 U. S. (4 Wheat.) 518 [4 R. Ed. 629]; People v. Coler, 166 N. Y. 1 [59 N. E. Rep. 716; 52 D. R. A. 814; 82 Am. St. Rep. 605]; Dexington v. Thompson, 24 Ky. Daw 384 [68 S. W. Rep. 477] ; State v. Fox, 158 Ind. 126 [63 N. E. Rep. 19; 56 D. R. A.893] ;State v. Barker, 116 Iowa 96 [89 N. W. Rep. 204; 57 D- R. A. 244; 93 Am. St. Rep. 222]; State v. Moores, 55 Neb. 480 [76 N. W. Rep. 175; 41 DR. A. 624]; Cooley, Const. Dim. 47, 206, 209, 281-285, 288-291; 1 Dillon, Munic. Corp. 28a, Secs. 58, 66 to 80; Tiedeman, Munic. Corp. Sec. 18; Mechem, Pub. Off. Sec. 123; State v. Denny, 118 Ind. 382 [21 N. E. Rep. 252; 4 D- R. A. 79] ; State v. Denny, 118 Ind. 449 [21 N. E. Rep. 274 ; 4 D. R. A. 65]; 1 Beach, Pub. Corp. Secs. 30, 87, 712, 729; See Cin. W. & Z. Ry. v. Clinton Co. (Comrs.) 1 Ohio St. 77; State v. Franklin Co. (Comrs.) 35 Ohio St. 458.
    Property held in trust by a city for specific purposes, cannot be taker? and committed to other agencies, unless its organization as a municipality is destroyed, and then a court of equity will appoint a trustee. ' Cary Dibrary v. Bliss, 151 Mass. 364 [25 N. E. Rep. 92; 7 D. R. A. 765]; Mt. Hope Cemetery v. Boston (Prop.), 158 Mass. 509 [33 N. E. Rep. 695; 35 Am. St. Rep. 515; New Gloucester School Fund (Tn) v. Bradbury, 11 Me. 118 [26 Am. Dec. 515]; Montpelier v. East Montpelier, 29 Vt. 12 [67 Am. Dec. 748] ; same case at law, Montpelier v. East Montpelier, 27 Vt. 704; Greenville v. Mason, 53 N. H. 515; Board of Education v. Bakewell, 122 Ill. 339 [10 N. E. Rep. 378] ; Malone, In re, 21 S. C. 435; State v. Springfield Tp. 6 Ind. 83; Milwaukee (Town) v. Milwaukee (City), 12' Wis. 93; Yarmouth v. North Yarmouth, 34 Me. 411 [56 Am. Dec. 666]; Louisville (City) v. University of Louisville, 54 ,Ky. (15 Mon., B.) 642; Cooley, Const. Lim. 289, 293.
    Distinction between the proprietary and governmental rights and duties of a municipal corporation; the former is measured by those of individuals, the latter by an entirely different standard.
    Cincinnati v. Cameron, 33 Ohio St. 336; Western College v. Cleveland, 12 Ohio St. 375; Wheeler v. Cincinnati, 19 Ohio St. 19 [2 Am. Rep. 368]; Robinson v. Greenville, 42 Ohio St. 625 [51 Am. Rep. 857], citing Hill v. Boston, 122 Mass. 344 [23 Am. Rep. 332] ; Frederick v. Columbus, 58 Ohio St. 538 [51 N. E. Rep. 35],; Custer v. New Philadelphia, 11 Circ. Dec. 9 (20 R. 177) ; Dayton v. Pease, 4 Ohio St. ¡80; Ironton v. Kelley, 38 Ohio St. 50; Circleville v. Sohn, 59 Ohio St. 285 [52 N.’ E. Rep. 788; 69 Am. St. Rep. 777]; Dayton v. Taylor, 62 Ohio St. 11 [56 N. E. Rep. 480]; Moon v. Middleton, 7 Circ. Dec. 579 (14 R. 498); Gable v. Toledo, 9 Circ. Dec. 63 (16 R. 515) ; Turner v. Toledo, 8 Circ. Dec. 196 (15 R. 627); Cummings v. Toledo, 5 Circ. Dec. 495 (12 R. 650); Dillon, Munic. Corp. 3a, Secs.,66 to 80, 949; Tiede-man, Munic. Corp. Secs. 8, 9, 10, 11, 13, 15, 18; 1 Smith, Munic. Corp.' Sec. 747; Mt. Hope Cemetery (Prop.) v. Boston, 158 Mass. 509 [33 N. E. Rep. 695; 35 Am. St. Rep. 515], citing many cases. Dartmouth College (Tr.) v. Woodward, 17 U. S. (4 Wheat.) 518 [4 L. Ed. 629]; New Orleans v. Water Works Co.-142 U. S. 79 [12 Sup. Ct. Rep. 142; 35 L- Ed. 943]; Tippecanoe Co. (Bd. of Comrs.) v. Lucas, 93 U. S. 108 [23 L. Ed. 822]; New Orleans, M. & T. Co. v. Ellerman, 105 U. S. 166 [26 L- Ed. 1015] ; Safety Ins. W. & C. Co. v. Baltimore, 66 Fed. Rep. 140 [13 C. C. A. 375; 25 U. S. App. 166]; Los Angeles Water Co. v. Los Angeles, 88 Fed. Rep. 720; ■Illinois Tr. & Sav. Bk. v. Arkansas, 76 Fed. Rep. 271 [22 C. C. A. 171; 40 U. S. App. 257]; Beach, Pub. Corp. Secs. 712, 714, 729,
    Section 26, Art. 2, Const, requiring uniform operation in laws of a general nature, forbids the classification of cities attemped by Sec. 4105 Rev. Stat.; State’v. Spellmire, 67 Ohio St. 77 [65 N. E. Rep. 619]’; State v. Jones, 66 Ohio St. 453 [64 N. E. Rep. 424; 90 Am. St. Rep. 593]; State v. Beacom, 66 Ohio St. 491 [64 N. E. Rep. 427; 90 Am. St. Rep. 599]; People v. Eynch, 51 Cal. 15 [21 Am. Rep. 677]; Gulf €. & S. F. Ry. v. Ellis, 165 U. S. 150 [17 Sup. Ct. Rep. 255; 41 E. Ed. 666].
    The transfer to the board of education of the trust property held by the city for university purposes, attempted by Sec. 4105 Rev. Stat. and the definition of the word, “university,” in Sec. 4102 Rev. Stat., impairs the ■contract between the city, the University of Arts and Trades, and the ■original donors, thus violating Sec. 10, Art. 2, Ohio Const., fourteenth amendment to U. S. Const., and Sec. 16, Art. 1, Ohio Const., because it takes the city’s property without due process of law. Dartmouth College v. Woodward, 17 U. S. (4 Weat.) 518 [4 E. Ed. 629]; see 1 Rose Notes '929, 931, 955, 957; Tippecanoe Co. (Comrs.) v. Eucas, 93 U. S. 108 [23 E. Ed. 882]; New Orleans (City) v. Water Works Co. 142 U. S. 79 [12 Sup. Ct. Rep. 142; 35 E. Ed. 943]; 1 Dillon, Mupic. Corp. Secs. €6 to 80; see note p. 113; Tiedeman, Munic. Corp. Secs. 9 to 18; 1 Smith, Munic. Corp. Secs. 747, 764; 2 Kent’s Commentaries 305; Commissioners v. State, 50 Ohio St. 653 [35 N. E. Rep. 887], per Minshall, J.; Cary Eibrary v. Bliss, 151 Mass. 364 [25 N. E. Rep. 92; 7 E. R. A. 765]; Mt. Hope Cemetery (Prop.) v. Boston, 158 Mass. 509 [33 N. E. Rep. €95; 35 Am. St. Rep. 515]; New Gloucester School Fund (Tr.) v. Bradbury, 11 Me. 118 [26 Am. Dec. 515] ; • Montpelier v. East Montpelier, 29 Vt. 12 [67 Am. Dec. 748] ; same case at law, Montpelier v. East Montpelier, 27 Vt. 704; Greenville v. Mason, 53 N. H. •515; Board of Education v. Blakewell, 122 Ill. 339 [10 N. E. Rep. 378]; Malone, In re, 21 S. C. 435; Brownsville v. Basse, 36 Tex. 461; State v. Springfield Tp. 6 Ind. 83; Milwaukee (Town) v. Milwaukee (City), 12 Wis. 93; Grogan v. San Francisco, 18 Cal. 590, per Field, J.; People v. Lynch, 51 Cal. 15; People v. Hurlbut, 24 Mich. 44 [9 Am. Rep. 112]; Park Commisioners v. Detroit Common Council, 28 Mich. 228 [15 Am. Rep. 202]; Spaulding v. Andover, 54 N. H. 38; Grogan v. New York (Mayor), 10 Barb. 223; Bailey v. New York (Mayor), 3 Hill (N. Y.) 531 [38 Am. Dec. 669]; People v. Batchellor; 53 N. Y. 128 [13 Am. Rep. 4801,; People v. O’Brien, 111 N. Y. 1 [18 N. E. Rep. 692; P N A. 255; 7 Am. St. Rep. 684]; State v. Denny, 118 Ind. 382 [21 N. E. Rep. 252; 4 E. R. A. 79] ; Norris v. Abingdon Academy (Tr.), 7 Gill & Johns. (Md.) 7; University of Maryland (Regents) v. Williams, 9 Gill & Johns. (Md.) 365 [31 Am. Dec. 72]; Yarmouth v. Yarmouth, 34 Me. 411 [56 Am. Dec. 666]; Louisville v. University, 54 Ky. (15 Mon., B.) 642; People v. Chicago (Mayor), 51 Ill. 17; Aberdeen Female Academy v. Aberdeen, 21 Miss. (13 Sm. & M.) 645; Western Sav. Fund Soc. v. Philadelphia, 31 Pa. St. 175 [72 Am. Dec. 730] ; Western Sav. Fund Soc. v. Philadelphia, 31 Pa. St. 185; Baker v. Dunning, 77 Tex. 28 [13 S. W. Rep. 617] ; Fisher v. School Directors, 48 Da. Ann.. 1077 [20 So. Rep. 163] ; Yazoo v. State, 48 Miss. 440; Mobile & CL Ry. v. State, 51 Miss. 137; People v. Coler, 166 N. Y. 1 [58 N. E. Rep. 716; 52 D. R. A. 814; 82 Am. St. Rep. 605]; State v. Foley, 30 Minn.. 350 [15 N. W. Rep. 375]; Detroit v. Railway, 43 Mich. 140; People v. Haws, 37 Barb. 440; New Orleans, M. & T. Ry. v. Ellerman, 105-U. S. 166 [26 L. Ed. 1015]; Paterson v. Society, 24 N. J. Daw 385; Baldwin v. New York (Mayor), 45 Barb. 359; Baldwin v. New York (Mayor), 2 Keyes 387; Jensen, In re, 28 Mise. 378 [59 N. Y. Supp.. 653]; State v. Haben, 22 Wis. 660: 1 Beach, Pub. Corp. Secs. 714, 724..
    Section 4105 Rev. Sta.t. also violates Sec. 19, Art. 1, Const., because-this trust property is private and not public property. The legislature has. no greater power over private municipal property than it has over the property of a private corporation whose charter it has reserved power to amend. State v. Neff, 52 Ohio St. 375, [40 N. E- Rep. 720; 28 D- R. A. 409] ; Cincinnati v. Cameron, 33 Ohio St. 336; St. Douis v. Hill, 116 Mo. 527 [22 S. W. Rep. 861; 21 D. R. A. 226] ; St. Douis v. Dorr, 145 Moi 466 [41 S. W. Rep. 1094; 42 D. R. A. 686; 68 Am. St. Rep. 576];. Paterson v. Society, 24 N. J. Daw 385.
    The deed of the university property to Toledo and its acceptance by the city, constitute a contract which cannot be impaired. Fletcher v. Peck, 10 U. S. (6 Cranch) 87 [3 D. Ed. 162]; Pawlet v. Clark, 13 U. S. (9-Cranch) 292 [3 D. Ed. 735]; 1 Beach, Pub. Corp. Sec. 714, and cases,. supra.

    The trust cannot be renounced by the city or taken from it, even with its consent. Drury v. Natick, 92 Mass. (10 Allen) 169; Douisville-v. University, 54 Ky. (15 Mon., B.) 642; Allen v. McKean, 1 Sumn. 276 [1 Fed. Cas. 489], per Story, J.; Cary Dibrary v. Bliss, 151 Mass.. 364 [25 N. E. Rep. 92; 7D R. A. 765],
    The unconstitutionality of a statute creating an office, cannot be collaterally urged as to acts done by the officers filling the same, until the act has been judicially declared to be void. State v. Gardner, 54 Ohio St. 24 [42 N. E. Rep. 999; 31 D. R. A. 660]; Gitsky v. Newton, 9 Circ. Dec. 682 (17 R. 484); affirmed, no report, 6Ó Ohio St. 605; Heck v. Window-Glass Co. 8 Circ. Dec. 757 (16 R. Ill) ; State v. Bingham, 7 Circ. Dec.. 522 (14 R. 245) ;' Ickes v. State, 8 Circ. Dec. 442 (16 R. 31).
    U. G. Denman and C. K. Friedman, for defendants.
   HAYNES, J.

(Orally.)

A petition was filed, asking that a writ of mandamus issue against those defendants, commanding said defendant Randall G. Bacon, as-auditor of said city of Toledo, and his successors in office, to issue and sign a warrant upon the treasurer of said city in favor of relator for the sum of $65 and commanding said Henry M. Barfield, as treasurer of said city, and his successors in office, to pay the amount of said warrant to-relator, the same being for services performed by relator as an engineer, he having been employed by the trustees of “The Toledo University,” so-called. The action is against these officers, claiming that they have failed to perform their duties in not issuing a warrant and paying him for his services, and averring that there are funds existing in their hands properly applicable to the payment of said amount, as he claims.

The real answer in the case is, that the persons who were the board of trustees at the time he was hired, and at the time that these services-were performed, no longer existed as a board of trustees, by reason of a certain act of the legislature which took effect on the day of its passage; and, as it was passed prior to the time of the performance of these services,, that these officers ceased to have any power or authority in the premises. The officers that are spoken of, were officers who had been appointed as trustees of what was known as the Toledo University of arts and trades, a corporate body that had been organized at the instance of the late Jesup W. Scott, arid for the purpose of carrying out certain benefactions which he was intending to give, for the purpose of carrying out and effecting the establishment of this Toledo University which he proposed to establish and for which he gave funds.

The board or rather the university has been leading a rather strenuous life. I believe this is the fourth time it has been before us in one form or another. Its existence has been attacked, and its methods of carrying on business have also been attacked.

The question here is one that we shall pass upon very briefly. In the case of State v. Toledo, 13-23 O. C. C. 327, after full argument of the question, we delivered an opinion in which we set forth the history of this institution, with a very full discussion of the condition of it at that time; and in which we held that it had a legal existence, and that ,the board of trustees that were then appointed to conduct its affairs, had a lawful right'to continue to do so.

Subsequently, in State v. Schauss, 13-23 O. C. C. 283, there is a very lengthy discussion of the powers and duties of the board and a judgment affirming the action of the board in certain matters.

On the twenty-eighth of May last, in the case of Waddick v. Merrell, 26 O. C. C. 437, the matter was argued again in regard to this board, and an opinion was delivered, in regard to the construction of the word “university” and the powers and duties of the board.

I do not propose to go over again the ground that has been traveled by these cases, or the points made by them. Reference may be had to those for the views of this court, and with the views there expressed we are .still satisfied to abide as matters that have been adjudicated so famas-this court-is concerned. Suffice it to say, that the board of trustees of this institution up to the time of the passage of this act of the legislature was, so far as this court is concerned, a lawful body, and was conducting the affairs of the board in a lawful and proper manner, and that within the definition of the statutes and the definition of the acts of the corporation, it was a university.

The party who brought this action has brought it in the form of a mandamus. Really, it seems to us that if the city intended to attack the lawful authority and. existence of that board, the better way to have brought it would have been quo warranto. Still perhaps it is sufficient to aver and perhaps they may aver that the body has ceased to exist, and that therefore so far as its office is concerned, that anything they have done is without authority of law and beyond their powers, and is not obligatory upon any officer of the city of any person having funds of the board in charge.

This controversy arises under a statute passed in April, 1904. ; It is sufficient to say that under prior statutes, by the action of the board the property of the university had all been transferred to the city of Toledo, and that property remains still in the city of Toledo, as its property, and it took it and made arrangements to carry out the purposes of the original act of incorporation according to the original views of the donor who established the school.

Prior schools or universities similar to this have been established in Cincinnati, and certain powers in regard to them have been transferred to the city of Cincinnati, and the city of Cincinnati is aiding and carrying on and supporting those schools. In the case of Perin v. Carey, 65 U. S. (24 How.) 465 [16 L. Ed. 701], the whole question of the power of the city of Cincinnati to receive and accept any care or control of these schools or universities that have been established, was brought in question. A was decided by the Supreme Court of the United States, -aUá mat decision is referred to at length in a case m he INrncl in the Ohio Circuit Decisions, of State v. Tinker, supra. The subsequent act had made the original acts in regard to such matters extended — it extended them to the city of Toledo — and the city of Toledo has received this property and is carrying on this trust.

Now Sec. 4102 of this statute is found in 97 O. L. 544 and Sec. 4105 is found on page 545 of the same volume. Under these sections certain powers have been given to a certain body and certain definitions made by the legislature, and it is claimed that under, and by' virtue of these acts, this definition of this grant of power, the authority was taken away from ■ these trustees, and they were deprived of all authority in regard to the ■administration of this fund or of any powers in fact in regard to the university so called.

The latter part of this Sec. 4102 Rev. Stat. provides of enacts:

“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.”

Section 4105 Rev. Stat. provides:

“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 committed to, and exercised by, the board of education of the school district including such municipality, and such board of education shall be held the representative and trustee of. such municipality in the management and control of such estates and funds so held in trust and in the administration of such institution, excepting always such funds and estates held by any municipality which are used to maintain a university as defined by this act.”

It is claimed that this university of arts and trades came within the definition that is laid down by the statute, in this case, and that therefore the control and management of its funds had passed and did pass on the day the act was passed, which was April 25, 1904, to the board of education of the city of Toledo, the school district through which the board of education has control being composed, in part, of the city of Toledo.

Nor this institution when it was founded by Mr. Scott, was called a university; Mr. Scott was a man of rather large views; he looked into the future rather more than he did into the present. He lived in Toledo when it was a very small village, and yet he saw the possibilities of a very large city; and he lived to see the commencement of it but he did not live to see the fulfillment of it; but he budded.according to his conceptions of the future. He laid out and planned for the university. He gave to it property at that time, which he valued at $80,000 and made .provi-r sions for the carrying out of a school that should embody his ideas of a certain class of education that should be given or furnished the youths of this city, or country, or neighborhood.

It was small in its inception. He expected there would be future donations.' It received at the time that he formed this school some $15,000 in money from Mr. William H. Raymond, which went into the fund and has been in ever since. Certain other parties have made donations to the fund — not to a very large extent — but they still are donations and remain the property that is embodied in this scheme, this school, or university. It was small in its beginning, but I assume Mr. Scott did not expect and could not reasonably expect it would grow to large proportions in a day or in a year, but as the city grew and as its means multiplied, he did expect that donations would be made to the school, and that the school would thrive and flourish as a university.

Primarily it was given to help the arts and trades. Schools were designed for things of that kind; still provisions were made for branching-out in other departments. It looked to some extent, evidently from the terms of his grant or d$ed to the incorporation, which he drew and gave, as if he expected that the university he established would furnish the means for scholars taking a course after they had graduated from the schools of the city, and that they would work to a certain extent in cooperation in carrying out the purposes of this trust.

Now the board of education was elected, in pursuance of the statutes of the state, under a distinct department of the government of the state, recognized as such in the’constitution of the state of Ohio — and this department is known as the common-school system in the state of Ohio, being adapted to townships, to school districts, to cities, and to larger districts, but the same objects and purposes being carried out, and that is to educate the children of the state, in the common schools of the state, and to that extent a large fund was provided by the state of Ohio; the money was loaned the state of Ohio, and the interest from it, it has been so provided, was to be for the perpetuity, for the protection and promotion of the schools.

But there are now and always have been universities that are provided for higher degrees of education, for different degrees of education and for different purposes, as the Wants of the people or a portion of the people may seem to need; and they are endowed and possess funds that are held for the purpose of sustaining schools and universities.

Now, in regard to this case there has been quite a number of points made by counsel for the plaintiff and authorities cited in quite a large abundance, and arguments have been made on behalf of the city, ánd .same citation of authority made by them. In regard to this point, in de■ciding it, I shall be very brief, and I shall not attempt to go over these various points that have been, argued by counsel, simply because I do not think it is necessary in the present case. The simple question is whether this board had authority to create a debt in favor of Mr. Waldron.

We think this case has been decided in the state of Ohio in principle, Ty the Supreme Court of this state, to say nothing of the cases that were cited by that court, and the great body of cases that may be cited in other states, and the Supreme Court of the United States, to say nothing of those general principles of law which have been maintained in England in regard to this same class of schools, or charities, as they are sometimes called. In the case that I have referred to, State v. Toledo, supra, is cited what is known as the Dartmouth College case, and the principles which have been laid down by the Supreme Court of the United States. I shall not refer to those cases.

Now this case to which I refer, is denominated State v. Neff, 52 Ohio St. 375 [40 N. E. Rep. 720; 28 L. R. A. 409], was decided on March 12, 1895, by the Supreme Court. The facfs of course are not just the same as they are in this case, but the principles which are announced and which underlie the decision are the same, because in their very nature, they may be said to be eternal in regard to this class of institutions.

In that case there was a school in Cincinnati, called Cincinnati College. It was established at an early day and ran rather a varied course. It was intended that there should be no limitation as to what might be taught in the schools, and they started with several matters, as I understand. They tried medicine and they tried other matters and finally they tried • law; and they established a law school which was under Mr. Timothy Walker’s direction in his day, and it came to be a very large school, and it has continued to' be so until recent times, and a very large number ■ of lawyers in ■ Ohio are educated in that school. That was a success. It was supported and maintained. I speak from history and not from the report. .

Some people had become dissatisfied with the manner in which the school had been conducted, and thought they ought to have some different teachers and some different methods of teaching. Some people were taught in other colleges and they thought the system- that was taught in the college -they were in was adapted to better purposes, than the instruction in the law school, and it finally came about that they established another school. -Perhaps the university or Cincinnati school had been established some little time before. When the time came around, they sought to get control of the law school and they caused an act to be passed, and an act was passed by the general assembly of the state of Ohio, 89 O. L. 647, that amended Secs. 3, 4 and 5 of the act incorporating Cincinnati College, passed January 22, 1819, 17 O. L. 46, and it provided:

“Section 3. The affairs of the said Cincinnati College shall hereafter be under the management of the directors, for the time being, of the University of Cincinnati, which directors shall be, and they hereby are constituted the board of trustees of the Cincinnati College, and they are hereby anuthorized to exercise all the powers granted by law to the board of trustees of the Cincinnati College.
“Section 4. Be it further enacted, that the management of the funds, and of other matters belonging to or connected with the said Cincinnati College, shall be solely in the hands of the board of trustees aforesaid, and the said funds shall be administered for the purpose of carrying out the objects of the charter of the Cincinnati College, in connection with the funds and administration of the University of Cincinnati.
“Section 5. The board of trustees shall appoint a treasurer, whc* shall give bond and security for the faithful performance of his duty; they may elect a president and vice president of the college, and appoint such professors and tutors as they shall think necessary; which president, vice president, professors and tutors may be removed at the pleasure of the board; they may, from time to time, make and enforce such rules, regulations and by-laws for the government and well-being of the college as may seem to them proper, provided they be consistent with the laws of the United States, and of this state; they may appoint a faculty to consist of the president, vice president, professors and such other persons as they may judge necessary, and may vest in the faculty so appointed such powers as they may think expedient for the preservation of good order, and for enforcing obedience to the rules, regulations and bylaws of the institution; they may cause the principles of morality■ and of the Christian religion to be included, but the religious tenets that may be peculiar to any particular sect or denomination, shall never be taught or be enforced in the college.”

Then it provides for holding their meetings, and it has a proviso, “that the funds of the institution shall not be applied to any use, or for any purpose not herein expressed or intended.” And they repeal the act incorporating Cincinnati College, and provide that that act shall be in force and take effect from and after its passage.

In deciding these matters, Judge Bradbury, in giving the opinion of the court, proceeds to state the views of that court in regard to the case, and it seems entirely proper that I should read that decision although-it is a little long; but it states the law which governs this case. (See State v. Neff, 52 Ohio St. 375 [40 N. E. Rep. 720; 28 L. R. A. 409], opinion by Bradbury, J., commencing with last paragraph, page 400 and ending on page 408.) In that case, they declared the law to be unconstitutional.

It appears in evidence that the original property that was donated by Mr. Scott, and by others with him, still remains as the property of this institution. It is true that the control of it was transferred to the city of Toledo, and is in their hands subject to the donor’s trust, accepted as such, and is subject to this trust as we have already held. It will be seen that this statute seeks to take from the trustees appointed by the mayor of the city of Toledo, the control of this property and pass it over to another board, to wit, the board of education. We are clear in our views, that the legislature had no authority, whatever to authorize this. They had no right to take this property, to control this property, or this school, in any manner or form, from these trustees, and pass it to the board of education. As to them, that board of education is a foreign board and separate and distinct, and they might as well have passed it to some other board — the county commissioners — or any set of men that they had seen fit, as to have passed it to the board of education. The board of education, is has been held in this state, is not a corporation. It consists of certain trustees. It simply takes those trustees, and in the-language of the statute, makes them the representatives of the city of Toledo. They have done exactly what was done in this case of Cincinnati College. They put the trustees of the board of education in place of the trustees of this board, and they say that they shall vote for and shall carry out the management and control of this institution.

We do not think it is necessary to pass upon the definition of the word “university.” I do not think that has any bearing whatever on this present case. The school was started as a university. It was intended to be such in the future. It was intended to have different departments, but back.of that it was a school established by a private donor to carry out his purposes and his views in regard to education, and was endowed by his property, and by the property of others who donated it with him, and that property, whether you call it a “university” or a polytechnic school, is a corporation that owns property, and is to be protected by the constitution of the state of Ohio, which declares that private property shall ever be held inviolate. If this incorporation had $1,000,000, it would not make any difference in the principles involved. A mandamus will be awarded in this case.

Hull, J., concurs.

PARKER, J.

I want to say, with respect to the board of education being an ¡entirely distinct body and the school district being entirely distinct from the municipality under the statute, the fact that the governing body of thé former is called the “board of education of ,the city of Toledo” may tend to create confusion; but when we come to think of it, though the limits of the school districts may be coterminous with those of the corporation, it appears that in this case they are not precisely so, and the law does not require that they shall be so; and the fact that they may, in a given case, be exactly coterminus would not change the legal status of the two bodies. They are created by the law to perform entirely different functions from those performed by the' city government. They represent a different electorate; not only may they be chosen by people, some of whom reside outside the city limits and some within the city limits, but the electors are not the same, for now, under the law, women are authorized to vote for members of the board of education. They are officers, in the choice of whom the city as such, has no voice whatever, either directly or indirectly. It may be expedient, it may be wise to put this school under the management of the board of education; but we are all of the opinion that it cannot be legally done in the way it is here attempted. If these statutes were put in form, so that the city, through some board or officer, or through its electors, might voluntarily choose the board of education to manage this school, for my part, I am not prepared to say that that would not be entirely legal or regular; but we are clear that where the legislature undertakes to do it so as directly to deprive the city of all voice in the matter, the attempt must fail for the reasons stated by Judge Haynes.


source: Caselaw Access Project

author: HULL, J.

license: Public Domain

text:
    PLEADINGS — VARIANCE—NEGLIGENCE.
    [Lucas (6th) Circuit Court,
    October 20, 1904.]
    Parker, Hull and Haynes, JJ.
    Toledo Ry. & Light Co. v. Carrie Ketrow.
    1. Vabiancb Between Pleadings and Proof Must be Material and Prejudicial to Disturb Verdict and Judgment.
    A variance between the allegations of the petition and the proof is not material and fatal, unless of such character as to mislead or prejudice the defendant. Hence, where, in an action by a passenger to recover for injuries alleged to have resulted from her being thrown from a street car platform, by reason of the sudden starting of the car as she was alighting therefrom, the proof shows substantially the state of facts alleged in the petition, and the fafcts as proved would, if they had been alleged in the petition, have required the same testimony to meet it as was offered, and the only variance was that the car had not come to a full stop as alleged, but was moving very slowly, and stopped within three feet of the place of the accident, the variance is not, in such case, material or prejudicial, and a verdict and judgment for plaintiff will not be set aside and a new trial awarded defendant.
    Heard on error.
    Smith & Baker, for plaintiff in error.
    Alonzo G. Duer, and O. S. Brumback, for defendant in error:
    The mere fact that the ear was moving slowly at the time plaintiff attempted to alight, would not prevent her from recovering; bnt, whether attempting to get off a street ear while in motion, is negligence or not, is a question for the jury to determine. Holmes v. Transit Co. 10 Circ, Dec. 638; Nichols v. Railway, 38 N. Y. 131 [97 Am. Dec. 780]; Sec, 5294 Rev. Stat.; Hoffman v. Gordon, 15 Ohio St. 211.
    The conductor did not use the highest degree of care in permitting plaintiff to alight from the car. , Ashtabula Rapid Transit Co. v. Holmes, 67 Ohio St. 153 [65 N. E. Rep. 877]; New York, L. E. & W. Ry. v. Harber, 12 Circ. Dee. 648; Harmon v. Railway, 18 D. C. 255 (2 Am. Neg. Cas. 302) ; Birmingham Union Ry. v. Hale, 90 Ala. 8 [8 So. Rep. 142; 24 Am. St. Rep. 748; 2 Am. Neg. Cas. 52]; Birmingham Union Ry. v. Smith, 90 Ala. 60 [8 So. Rep. 86; 24 Am. St. Rep. 761; 2 Am. Neg. Cas. 58]; Augusta & S. Ry. v. Randall, 79 Ga. 304 [4 S. E. Rep. 674; 2 Am. Neg. Cas. 394]; Atlanta St. Ry. v. Jacobs, 88 Ga. 647 [15 S. E. Rep. 825; 2 Am. Neg. Cas. 451]; Mt. Adams & E. P. Ry. v. Wysong, 6 Circ. Dee. 28 (8 R. 211).
   HULL, J.

Tbis action was brought by the defendant in error, plaintiff below,, against the railway company to recover damages for personal injuries which she claims to have sustained on account of the negligence of the-company. She claimed in substance, in her petition, and testified at the trial, that on the day of her injury she was riding on a car of the plaintiff in error along Brie street in the city of Toledo, and that she desired, to get off at Hobart street where it crosses Erie; that she notified the-conductor where she wished to alight; that the signal was given for the-car to stop at the Hobart street crossing; that she was sitting in the rear of the car very near the door — it not being an open car, — and that she-went out on the platform and stood on the step, waiting for the car tO' stop, and she claims that the car did stop at the Hobart street crossing,, the south crossing, the car going south, and that just as she was about to alight and before she had time to get off, the conductor rang the bell and the car started with a sudden jerk, so that she was thrown off.

It is admitted that she did fall in some way, and one of her arms was broken near the wrist. The jury returned a vefdict in her favor in the amount of $225, for which judgment was entered.

It is claimed by the plaintiff in error that the verdict was against, the weight of the evidence, that the plaintiff did not establish her claim and that the court below erred in overruling the motion for a new trial. The company claims that the car had not stopped when she got off, and that she was thrown down on the ground by reason of her getting off or trying to get off a moving car, and that it was unsafe and negligent for her to undertake to do so. She claims, as I have stated, that the car had in fact stopped. Quite a large number of witnesses were called on behalf of the defendant, but on the part of the plaintiff the only witness called was herself, and the statement of a boy which had been taken was. used as his testimony in behalf of plaintiff. A number of small boys, most of them newsboys, were called by the defendant. They were standing near the crossing at the time of the accident, waiting for papers.. The most of them testified that at the time plaintiff got off, -f¿h.e car was. moving. Some of them say it was moving at some speed and others that it was moving very slowly; and one boy who was in the car, testified to that in substance.

The conductor testified that she undertook to get off about the middle of the street; that a man got off just before her, jumping off near the north crossing, that is, the first crossing, while the car was moving-south with some speed. The conductor testifies that she remained on until the ear was within about three feet of the other crossing, and while it was yet moving, slie jumped off and fell down. He testifies on cross-examination that she took hold of the hand bar with her right hand, with, her face turned to the back end of the car, and that that had something to-do with her falling down. The conductor testifies that the car was moving slowly, that it moved only about three feet, in his judgment, after-she got off. He says that it all happened very quickly; she was sitting-at the rear end of the seat, and he says that she came out quickly on the-platform and turned around and jumped off.

It appears pretty clearly from the evidence that the man did jump off before she did, and that the car was then moving. One of the boys-testified that he saw her get off; that the car was moving slowly at the-time, but that it gave a sudden jerk and she was thrown off. He says:: “The first I saw, the car gave a jerk and she fell and the car was moving just slowly when she fell. ’ ’

Now, it is rather difficult perhaps to tell from this testimony, taking it all together, whether the car at the time she undertook to get off, had come to a full stop or was moving slowly — very slowly. If moving at all, if must have been very slowly, for the conductor says it only went about three feet after she got off. Plaintiff testified positively that the car had come to a full stop; that she was standing on the step and just ready to get off, and the signal was given for the car to start, and she was jerked off and fell. She staggered a few feet after she got off the ear, according to the testimony, and then fell, and when she did fall, she was very near to the south crossing where the car properly stopped-

While there is this conflict in the testimony, and the number of witnesses called by the defendant outnumber those of the plaintiff, we would not feel justified in finding that the verdict was so clearly and manifestly against the weight of the evidence, that the judgment should be reversed and a new trial granted. The whole transaction happened in a very few moments. Those observing it might very easily honestly differ as they do differ in some of the details of the occurrences. It all happened almost in an instant.

We think the evidence is pretty clear that the ear was moving when the man got off, although the plaintiff testified that the car had stopped when he got off and she was about to get off when it started. Taking the testimony all together, it is quite clear that the car had not come to a stop when the man jumped off.

But we are of the opinion that if the car had not come to an absolute stop, if it was moving very slowly, and just about to stop, apparently she was standing on the step of the car ready to get off and the car was started suddenly with a jerk and she was jerked off, she might recover under that state- of facts, although she alleges in her petition that the ear had stopped, and that before she had reasonable time to get ■off she was thrown off by the starting of the car. Such a variance as that would not be material in our judgment; it would not be of such character as to mislead the defendant or prejudice it. It would be substantially the same state of facts, and require the same testimony to meet it, and the only variance would be that the car did not come to a full stop, but was moving very slowly at the time the plaintiff was jerked off. The gist of her action after all was that she was a passenger on a car; had notified the conductor where she wished to get off, and that the .signal for the car to stop was given, and that she had gone out on the platform and was on the step ready to get off and was soon to get off; :and that when she was in that position, the car was jerked, and she ■was thrown off.

If the car only had a foot or two feet more to go before making a :full stop, it could be said to be moving; but that would be a variance iso slight, from the allegations of her petition, that it certainly could not work any prejudice to the railroad company. The case, however, was submitted to the jury by the court upon the proposition that they must be satisfied that the ear had stopped as she alleged in her petition, and that as she was about to get off, it was started, without warning to her, and she was thrown off.'

Upon the question of whether such á variance as that would be material, I call attention to the case of Holmes v. Transit Co. 10 Circ. Dec. 638, a case in which one of the members of this court sat, where a .similar question is discussed.

Our conclusion is that the verdict of the jury should not be disturbed.

Counsel for the defendant in error insist that a penalty should be imposed upon the plaintiff in error. We think that there was reasonable ground for filing the petition in error in this court. The case upon the facts might be said to be a close one. Therefore no penalty will be inflicted, but the judgment of the court of common pleas will be affirmed.

Parker and Haynes, JJ., concur.


text:
    SUBROGATION — TAXATION—VOLUNTARY PAYMENTS.
    [Lucas (6th) Circuit Court,
    June 18, 1904.]
    Parker, Hull and Haynes, JJ.
    Charlotte Eddy et al. v. William H. Leath, Admr., et al.
    1. Peincitle Upon Which Doctrine of Subrogation Rests.
    The doctrine of subrogation rests generally upon the principle, that ona who pays the debt or liability of another, for the purpose of protecting his own interest in property, is entitled to and may enforce all the liens and securities of the party to whom he pays.
    2. Life Tenant Paying Assessments not a Volúntese, and is Entitled to Sub-rogation Against the Land.
    A life tenant who, under the contract, pays certain valid assessments against the property, which she is under no obligation to pay, is not a mere volunteer, when it appears that the county treasurer refused to accept the general taxes, which she was bound to pay, unless the assessments were also paid, and the effect of failing to make such payment would render the property liable to sale both for taxes and assessments; and, after such payment, she will he subrogated to the lien of the assessments, although she paid the same without protest to the treasurer and made no demand upon the owner of the fee in remainder, who, under the contract, was liable therefor, to pay the same.
    3. Action to Enforce Subrogation Governed By Ten Year Limitation (Sec. 4986 Rev. Stat.).
    An action to establish and enforce the lien of an assessment against property under the equitable doctrine of subrogation, is neither an action at law, upon contract, nor one founded upon a liability created by statute, and is therefore governed by the ten year limitation prescribed by Sec. 4985 Rev. Stat., although the statute law creates the lien, and gives the treasurer a right of action to enforce its collection.
    Error to Lucas common pleas court.
    King & Tracey, for plaintiff in error.
    Potter & Potter, for defendants in error:
    Corey v. Hayes, 7 Circ. Dec. 272 (13 R. 185); Dempsey v. Busb, 18 Obio St. 376; Sidener v. Hawes, 37 Obio St. 532; 3 Pomeroy, Eq. Jurisp. Sec. 1298; Stéers v. Kinsey, 68 Ark. 360 [58 S. W. Rep. 1050],
    When plaintiff in an action to quiet title bad paid taxes on land in question, and judgment went agáinst bim as having no title, under tbe doctrine of equitable subrogation be still bas a lien on tbe land for amount of taxes so paid. Simmons v. Lyles, 73 Va. (32 Gratt.) 752; "Whitaker v. "Wright, 35 Ark. 511; 24 Am. & Eng. Enc. Law (1 ed.) 248, cases in note 1; Mosier’s Appeal, 56 Pa. St. 76 [93 Am. Dec. 483]; Wormer v. Agricultural Works, 62 Iowa 699; 24 Am. & Eng. Enc. Law (1 ed.) 281, note 1.

      Mrs. Whitlock was not a volunteer. She paid these taxes and assessments to protect the property, herself, and the heirs. No contract necessary. Bowers v. Williams, 34 Miss 324; Stetson v. Moulton, 140 Mass. 597 [5 N. E. Rep. 809] Zuellig v. Hemerlie, 60 Ohio St. 27 [53 N. E. Rep. 447; 71 Am. St. Rep. 707]; Poe.v. Dixon, 60 Ohio St. 124 [54 N. E. Rep. 86; 71 Am. St. Rep. 713]; Simmons v. Eyles, 73 Ya. ( 32 Gratt.) 752; Neal v. Nash, 23 Ohio St. 483; Neilson v. Fry, 16 Ohio St. 552 [91 Am. Dec. 110]; Hill v. King, 48 Ohio St. 75 [26 N. E. Rep. 988].
   HULL, J.

This action was brought in the court of common pleas by the plaintiffs in error, who were plaintiffs below, against Hester Whitlock, who was then living. After the commencement of the action she died, and the action was revived against William H. Leath, her administrator,' and the other defendant, William Whitlock, husband of Hester Whitlock.

The action was brought to quiet the title of the plaintiffs to certain real estate in the city of Toledo, of which they claimed to be and were the owners in fee simple, and the defendant, Hester Whitlock, was, as stated in the petition, the owner of a life estate in this property, by virtue of a certain contract between the parties; and it was alleged in the petition that Hester Whitlock and her husband William Whitlock, the original defendants, claimed some interest in the property beside the life estate. Plaintiffs prayed that Hester Whitlock should be decreed to have a life estate only in the property, and that the title of plaintiffs in remainder be quieted as to said Hester Whitlock and her husband, and that it be adjudged that on the death of Hester Whitlock the plaintiffs were entitled to the immediate possession thereof.

The defendant, Hester Whitlock, by her answer, and her administrator after her death, by an amended answer and cross petition, set up her claims upon this property. It is admitted that Hester Whitlock was holding it by virtue of a contract which gave her a life estate, that the plaintiffs were the owners of the fee simple in remainder,,but a lien was claimed on the property for certain assessments that Mrs. Whitlock had' paid for sewers and paving and sidewalks while occupying the property, her claim being for $1,069.82,, which she claimed from the year 1889 down to the commencement of the action in March, 190,1. She asked to have that declared a lien upon the property, and that unless paid by the plaintiffs, that the property be sold to satisfy it.

Hester Whitlock had been theretofore the wife of a Mr. Wilcox. After his death she married Mr. Whitlock; The plaintiffs were the children and only heirs of Wilcox, and had entered into the contract, 'which I have mentioned, with Mrs. Whitlock in regard to the occupancy ■of this property, and it is upon this contract that the rights of these parties are based. It is as follows:

“In consideration of one dollar to ns in hand paid by Hester Wilcox., ■of Toledo, 0., (and love and affection) we, Charlotte Eddy, Matilda A. Lloyd and Mary J. Wachter, of same place, hereby consent and agree that the said Hester Wilcox may occupy, so long as she lives or wishes to, the following described premises, viz.: Lot No. 1560 and the southwest sixty feet of lot No. 1561 in the Vistula division of Toledo, Ohio, subject to the condition that the said Hester Wilcox shall pay all the taxes and assessments levied and assessed thereon during her said occupancy, other than those for sewerage, grading, paving or sidewalk. ’ ’

There is also a claim in the cross petition for sidewalks, and one .also for sewerage.

The contract, it will be observed, provides that Mrs. Whitlock should pay the taxes and assessments upon the property during her occupancy, ■other than those for sewerage, grading, paving or sidewalks, and she claims her lien upon and her right in the property for the amount she paid for sewerage, grading, paving and sidewalks. The court of com,mon pleas found that within ten years before the commencement of the action, including interest thereon, she had paid $1,154.32 for paving and •sewer assessments against the property, and it was ordered that this be made a lien upon the property, and if not paid, the property be sold to satisfy it.' The claim for sidewalk assessments was disallowed by the common pleas court upon the ground that at the time they were paid by Mrs. Whitlock they had not been levied and assessed upon the property, only the preliminary notice having been given to her; and no cross petition in error having been filed by the defendants in error, that question is not before us.

It is claimed by the plaintiffs in error that Mrs. Whitlock was not entitled to this relief for the reason that the payments made by her were voluntary; further, that she was not entitled to be subrogated to the lien of the state or municipality for the assessments that she had paidand. ¡ further, that the six years statute of limitations applies, and that all 1 payments that fell outside of six years were therefore barred, instead of ¡ ten years, as held by the court of common pleas. We are asked, there-1 fore, to reverse this judgment.

It is claimed that Mrs. Whitlock, in making these payments, was a-mere volunteer. 'The record shows that the assessments were all paid by. her or by money furnished by her. The money was taken to the treasurer’s office by her husband in most instances, if not in all, as appears by the record. In our judgment the contention of the plaintiffs in error cannot be maintained. Mrs. Whitlock was occupying this property under this contract which I have read. She was bound by it to pay the general taxes. These assessments that were paid by her it was the duty of the plaintiffs in error to pay, by virtue of this contract. They became liens upon the property, were put upon the tax duplicate, and the property was liable to be sold to pay them. She could not pay the general taxes without paying these assessments. A portion of the taxes due upon the property would not be accepted by the treasurer. She was compelled either to pay these assessments or to allow all of the taxes and assessments to go unpaid, and render the property liable to sale, not only for the assessments but for the payment of the general taxes. It seems-to us that one who pays an assessment under those circumstances cannot be called a mere volunteer — one who has simply interfered with another, paying the debt of another without any reason for so doing. It is, of course, well established, that where one is a mere volunteer, and without any duty resting upon him, pays the debt of another, he does it voluntarily, and has no right of action, and cannot recover. In our judgment Mrs. Whitlock was not in that situation. This contract existed between her and these parties. They did not pay these assessments which they were bound to pay, and unless she paid them, these results would follow. We think, therefore, that the claim that she was a mere volunteer cannot .be sustained.

It is claimed that in any event she was not entitled to a lien, but it is claimed for her that she was entitled to it by right of and under the doctrine of subrogation.

The doctrine of subrogation as applied to this case is an equitable doctrine, and rests generally upon the principle that where one pays the debt of another, or a claim against another, to protect his own interest in the property, he is entitled to all the liens and securities that the party has to whom he pays the claim. In Joyce v. Dauntz, 55 Ohio St. 538 [45 N. E. Rep. 900], in the first paragraph of the syllabus, this is said:

“Ás a general rule, any person having an, interest in property subject to an incumbrance which may defeat or impair his title, has a right to disengage the property by payment of the incumbrance, and when he does so, if the debt is not one for which he is personally liable, he is entitled to be subrogated to the rights of the incumbrancer against the property.”

It seems to us that Mrs. Whitlock comes within the rule laid down by the Supreme Court in this case. She had an interest in this property, a life estate, and by reason of these assessments not being paid they had become a lien and an incumbrance upon the property, which was liable to be sold for their payment; and by reason of their being in default, as I have said, she was unable to pay the general taxes upon the property, and in order to protect her interest from this incumbrance, to enable her to pay all taxes, she-paid the assessments. It is true, as argued by counsel, that she made no demand of these parties to pay these assessments, and it is true that she -paid them to the treasurer without protest. The fact that she did not protest can make no difference in this case. As between her and the treasurer, or between the property and the treasurer, there was no defense to these assessments. It is not claimed that they were invalid, and not a valid and binding lien upon the property. She could make no defense in behalf of the property against the treasurer, and there was no reason why she should protest to the treasurer. The city was entitled to the assessments, she was occupying the property as a life tenant and paid them, and thereby paid debts that were due from the plaintiffs in error, thus relieving the property which they owned in fee simple, subject to her life estate, from these liens, and as a result benefited the owners of the fee simple to the amount of the assessment — something over a thousand dollars.

Simmons v. Lyles, 73 Va. (32 Gratt.) 752, is very much in point. Here a widow was occupying the manor house after the death of her husband, and paid certain taxes upon the property which she was not bound to pay, but they were a lien upon the property, and it was held that she was entitled to be paid the amount of the taxes which she had paid, and that they were a lien upon the property. The court say on page 762:

“Subrogation is the creature of the chancery courts. It is not founded upon any idea of contract, but upon principles of equity and good conscience. It is-a mode which equity adopts to compel the ultimate discharge of a debt by him who in good conscience ought to pay it. Brandt, Suretyship Sec. 260. It is not essential that the party invoking the remedy should technically occupy the position or relation of surety for the debt. It is enough that he is required to pay for his own protection and indemnity, or to relieve his estate of a subsisting lien or in-cumbrance accruing by operation of law, or created by act of the party in whose behalf the payment is made. The appellant, in paying the taxes, cannot be considered a volunteer. The property of which she had possession under the statute was debtor to the state, and she had the right to make the payment, for her own protection and indemnity, and to look to the property for reimbursement. ’ ’

Mrs. Whitlock was situated very similarly to the party in the Virginia case. It seems to us entirely equitable and just that these assessments that were paid by her, and which ought to have been paid by the plaintiffs in error, the payment of which protected their estate as well as hers, should be repaid to her, or her estate, and should be held to be a lien upon the property.

It is claimed, however, that all these payments were made six years before the commencement of the action, and are barred by the statute of limitations. It is urged that the six year statute, Sec. 4981 Rev. Stat., .governs this case. It is as follows:

‘ ‘ Within six years:
“An action upon a contract not in writing, either express or implied.
“An action upon a liability created by statute, other than a forfeiture or penalty.”

It is claimed by defendants in error that Sec. 4985 .Rev. Stat. applies :

“An action for relief not hereinbefore provided for can only be brought within ten years after the cause of action accrues.”

The court below held that the ten year statute applied and not the six year statute, and allowed all coming within the ten years, to the amount of $1,134.32.

Mrs. Whitlock based her action upon her right of subrogation. It is not an action at law, but she is asking to have a lien,,established upon this property under this equitable doctrine, and the property held for the payment of the assessments. We are of the opinion that the court of common pleas was correct in holding that the ten year statute applies, and not the six. The six year statute relates to actions upon contracts, either express or implied, and upon liabilities created by statute other than forfeiture or penalties. Her right of subrogation does not rest upon contract, either express or implied. Under the strict rules of law,! she would have no cause of action. Her claim is based upon the equitable' doctrine of subrogation; that having paid the debt of another under such circumstances, she has the right to have the benefit of whatever securities or liens secured the debt. Nor is her claim an action upon a liability created by statute, although the statute gave to the treasurer á lien and a right to maintain an action for these taxes. We think it has been settled by the Supreme Court oí this state that the ten year statute ■applies.

A case is cited by plaintiffs in error to sustain the proposition that the six year statute applies—Hartman v. Hunter, 56 Ohio St. 175 [46 N. E. Rep. 577] —a case that went up from this county. It is said in the syllabus:

“A civil action brought by the treasurer of a county under Sec. 1104 Eev. Stat. to enforce assessments for the construction of township ditches, is, by the second clause of Sec. 4891 Eev. Stat., barred in six .years after the cause of action arises.”

This action was brought by the treasurer, as appears from the syllabus, under Sec. 1104 Eev. Stat., to collect assessments and subject the property to the payment of them, to enforce a lien against the property. The action was brought according to the provisions of this section, and was based upon it, and the Supreme Court held that it being such an action, the treasurer was within the limitations of See. 4891 Eev. Stat., the same as any individual, and that therefore the action was barred. This action of Mrs. Whitlock’s as set forth in her cross petition is not based upon a statute, but upon her right to subrogation and to have the benefit of this lien that had been created, and such an action, we think, is only barred in ten years. Zuellig v. Hemerlie, 60 Ohio St. 27 [53 N. E. Rep. 447; 71 Am. St. Rep. 707], second paragraph of syllabus:

“An action by a surety who has paid the debt of his principal to be subrogated to a mortgage held by the creditor as additional security for such debt is governed by Sec. 4985 Eev. Stat., and will be barred by lapse of time, unless brought within ten years from the time the cause of action accrued.”

Another case, Poe v. Dixon, 60 Ohio St. 124 [54 N. E. Rep. 86; 71 Am. St. Rep. 713], is also in point on this question.

In this case there is a discussion of this question in line with Zuellig v. Hemerlie, supra. Neal v. Nash, 23 Ohio St. 483, which is cited in Zuellig v. Hemerlie, has this in the second paragraph of the syllabus:

“The statutory period of limitation applicable in such an action— it being for equitable relief only — is ten years.”

The court say on page 490 of the opinion:

“A judgment on a contract, expressed or implied, is not sought; nor is the relief sought based on a contract as the ground of an original recovery, but it rests merely on the just right of the surety to a judgment already existing. The action is grounded on the equitable right of the surety, whether by assignment of the creditor or by subrogation merely, to stand in the shoes of the creditor in the judgment against his principal, and in the place of the creditor, to enforce it against him. The. action is brought to assert this equitable ownership of the judgment, and, being dormant, to revive and enforce it in favor of the party justly entitled to it. The action, therefore, being purely equitable in its character, and not seeking a recovery on an implied contract, is not controlled by the limitation of six years.”

It is said this, perhaps, was dictum, and not necessary to be said by the court in deciding that case, but Judge Bradbury refers to. it in Zuellig v. Hemerlie, supra, as sound doctrine, and whether dictum or not, worthy of consideration by the court and of being followed by it.. The theory that the lien was assigned to Mrs. Whitlock, and that therefore her right would fall at the end of six years, is not sound, but her-right of subrogation is based upon this equitable principle, and her action is founded on that, and not upon any contract express or implied, nor upon a statutory liability.

The judgment of the court of common pleas will be affirmed.

Parker and Haynes, JJ„ concur.