text:
    ORDER. ASSESSING COSTS AGAINST PLAINTIFF’S ATTORNEY NOT APPEALABLE.
    [Circuit Court of Lucas County.]
    William Capaul v. The Toledo & Western Railway Company.
    Decided, October 10, 1904.

      Appeal — Does not Lie to a Proceeding- — Ancillary to the Main Action— Assessment of Costs Against Attorney for Bringing Unauthorized Suit — Civil Actions.

    The assessment of the costs against an attorney who had brought the suit without authority is not a civil action, but is ancillary to the main action, and is not appealable. Error only can be prosecuted to such a judgment.

      Hull, J.; Haynes, J., and Parker, J., concur.
    Heard on motion to dismiss appeal.
   This was heard before us on motion to dismiss the appeal on the ground that the order or judgment of the court of common pleas was not appealable.

The action was brought by the plaintiff against the railway company to recover for personal injuries. At the time he commenced the action he was a resident of the state of Michigan, and soon after its commencement a motion was filed to require him to give security for costs. This motion was sustained, and he was ordered to give security within a certain time. He failed to do this, and a motion was made to dismiss the action on that ground, and the cause came on for hearing upon that motion, and the plaintiff came in person, and also his counsel into open court, and the record recites that the plaintiff represented to the court that the action had been brought by counsel of record without any authority for bringing it; and' the court, after hearing the testimony upon that question, adjudged all of the costs in the action against the plaintiff’s attorney; and counsel feeling aggrieved by that order, appealed from the action of the court, and we are asked to dismiss the appeal on the ground that the ease is not appealable.

The record recites that the court having heard the evidence on the part of the plaintiff, and also the evidence of his counsel, finds that before the commencement of the action there had been a full and complete settlement entered njto between the railway company and the plaintiff, and that at the time of bringing the action there was no cause of action against the defendant; and finds further that upon the next day after the filing of the petition in the ease, the plaintiff notified his counsel that he had not authorized him to bring the suit, and the court finds that the action was brought by counsel without ■any authority for doing so; and after making these findings, the court adjudged all of the costs against the plaintiff’s attorney, and from this he appealed.

It is claimed that plaintiff’s counsel can not appeal from this order of the court of common pleas, but that he should have prosecuted error. There is no order in the record formally dismissing the action, although that was evidently done by the court, for in the certified copy of the entries upon the appearance docket there appears on the day that this motion was ' heard, this entry: “Dismissed at the costs of plaintiff’s counsel,” naming him in the entry. So evidently that order was made by the court and entered upon the court docket.

The right of appeal is purely a statutory matter, and without a statute authorizing it no appeal can be taken and the judgment of the trial court is final; and the question is, whether under the statute in a matter of this kind, an appeal may be taken. Section 5226, Revised Statutes, provides that—

“In addition to the eases and matters specially provided for, an appeal may be taken to the circuit court by a party or other person directly affected, from a judgment or final order in a civil action, rendered by the common pleas court, and of which it had original jurisdiction, if the right to demand a jury therein did not exist.”

It is not claimed that the right to appeal in this case is given by any other statute than this, and so the question is, whether this authorizes it. It provides that an appeal may be taken to the circuit court by a party or other person directly affected from a judgment or final order in a civil action, etc. It will be observed that the statute authorizes appeals from judgments or final orders in a civil action. Section 4971, Revised Statutes, provides there shall be but one form of action, and it shall be known as a civil action. Section 4972, Revised Statutes, provides that—

“In every civil action the party complaining shall be known as the plaintiff and the adverse party as the defendant.”

In many instances, the Supreme Court has held that orders of the court of common pleas could not be appealed from, on the ground that the order was not made in a civil action.

It has been held that where .an award of arbitrators has been filed in the court of common pleas, exceptions thereto overruled, and judgment upon the award, under Sections 5608 and 5612, Revised Statutes, the case was not appealable to the district court (Moore v. Boyer, 42 O. S., 312).

A proceeding under Section 536 of the code (Section 5358) by petition in the court of common pleas to vacate a judgment rendered by that court at a former term, and to reinstate tbe case on the docket for trial, is not appealable, such proceeding not being a civil action, but a special proceeding in an action after judgment, and subject to review only on error (Taylor v. Fitch et al, 12 O. S., 169).

An order confirming the report of partition and adjudging costs is not appealable (Jordan v. Jordan, 8 C. C., 431).

In our judgment, this proceeding, whatever it was, was not a civil action. It is true that counsel against whom these costs were adjudged had no right to a trial by jury. He was within the statute, so far as that was concerned. It does not appear whether he demanded a jury or not; but he had no right to one. The action in which this proceeding was had — the action against the railway' company — was a ease where a right to trial by jury existed, it being an action for personal injuries. It is evident from what is said in Section 4972, that a “civil action” is one where there are parties plaintiff and defendant, and pleadings and all other things necessary to and that surround an action. In this proceeding there was no plaintiff, unless the judge might be called the plaintiff, and it will hardly be said that counsel could be called the defendant. It was an incident growing out of the main action, ancillary to it — an assessment of costs against the plaintiff’s attorney, who was not even a party to the original action. It was in the nature of punishment, probably, meted out by the court to counsel for bringing an action without authority, which the court found from the evidence had been done. It seems to us that this can not be said in any sense to have been a civil action. It was a mere proceeding. It may have been in the nature of a proceeding in contempt, but whatever it was, it was not a civil action under the statute.

It is said by counsel in argument that the evidence did not sustain the findings of the court, but we have no bill of exceptions before us, and so we are not able to examine that question. All that we can know is contained in this record. The matter came up before the court on the complaint of the plaintiff that suit had been commenced without his authority, and the finding of the court upon that claim is set forth in the record, and the counsel’s remedy, if he had any, was by proceedings in error. He might have prosecuted, error unquestionably and had the question passed on by this court. Whether the court erred or not, is not before us at this time; but we are clear that there is no right of appeal, and the motion to dismiss the appeal will be sustained.

L. H. Wilkinson, for plaintiff in error.

U. G. Denman, for defendant in error.


source: Caselaw Access Project

license: Public Domain

text:
    DURATION OF OIL LEASE.
    [Circuit Court of Wood County.]
    Thomas H. Meek v. M. R. Cooney et al.
    Decided, April Term, 1904.

      Lease — Carrying Right to Drill for Oil and Gas — Failure to Drill Well within Prescribed Time, and to Pay Rental when Due— Works a Forfeiture.

    An oil and gas lease which 'contains the provision that “in case no well is completed within ninety days from this date then this grant shall become null and void, unless the second party shall pay first party five dollars for each month thereafter said completion is delayed,” becomes void upon failure to complete a well within the prescribed time, unless the rental named in the lease is paid each month as it falls due.
    Hull, J. (orally); Haynes, J., and Parker, J., concur.
    This case comes to this court upon appeal from the judgment •of the court of common pleas. The action was brought by the plaintiff, Meek, to enjoin the defendant from drilling an oil well upon his premises or extracting the oil or gas therefrom. A temporary injunction was allowed by the court below, and upon a hearing to dissolve the injunction, a number of affidavits were used, and upon that hearing, by consent of the parties, the lower court entered final judgment, and in this court, by consent of parties, the hearing was had upon the affidavits used in the court below. The question is whether the plaintiff was entitled to the injunction that he asked for. ' He appears to be the owner of about forty-five acres of land in this county, and on the 14th day of September, 1901, he made a gas and oil lease to the defendant, Cooney, thereby granting to Cooney all the oil and gas in and under said premises. The lease contained this provision:
    “In ease no well is completed within ninety days from this date, then this grant shall become null and void, unless second party shall pay first party five dollars for each month thereafter said completion is delayed.”
   No well was drilled within ninety days after the making of the lease, or ever drilled by the defendant or his grantee, the ninety days expiring December 14, 1901, and on March 11, 1902, the fifteen dollars rent then due was paid to the plaintiff, Meek, which paid the rental to March 14. No rent was paid to plaintiff after that time. But it is claimed it was paid to another for him. On the date of the commencement of this suit, January 10, 1903, the defendant was about to drill a well upon the premises in question, and this the plaintiff sought to enjoin, making one Frank Wolf, who was to do the work for Cooney, a party also. Other persons had become interested in this property, but they are not made parties to this action, the action being between the original parties and Wolf.

It is claimed by the defendant, Cooney, that soon after January 14, 1902, it was agreed between him and Meek’ that the rent need not be paid monthly as provided for in the lease. 'The defendant claims that the plaintiff said he preferred to let it accumulate until it amounted to some considerable sum, so that he could use it to better advantage. Plaintiff denies having ever agreed that the payments need not be made monthly as provided for in the lease. In fact, he claims to have had need of the money as often as he could get it, at least once a month, and could have used it oftener. He appears to have been as poor as a man could be and own land in this county, and he denies that he ever agreed to defer the date of these payments.

The payment of March 11, 1902, was the last one made directly to plaintiff. When the 14th of April came, no rent was paid, five dollars being due at that time, unless the contract had been modified as claimed. Seven days after that, the 21st of April, Meek made another lease of these premises to Bankey & Moore, and on the 18th of June the defendant, Cooney, having heard of this lease to Bankey & Moore, visited Meek at his home in company with one Schroder, a justice of the peace of that township, and offered Meek twenty dollars, which would have paid the back rental of three months to June 14, and a month in advance. This money Meek refused to accept, and stated that he had leased the premises to other parties. It is claimed by Cooney that, though Meek refused to accept the money, he agreed that it might be paid over for him to Schroder, whom Cooney seems to have taken with him as his counsel, and it is claimed by Cooney that he paid each month’s rent thereafter to Schroder for Meek until this action was commenced. But Meek has never taken any of the money, or demanded any of it from Schroder, and if it was paid to Sehroder, it still remains in his hands. Affidavits were read on behalf of both parties, and we have reached the conclusion that the defendant has not established his claim.

The provision in the contract is clear that this rent was to be paid monthly; unless it was paid monthly, in case no well was drilled in ninety days, the lease was to become null and void. To vary the written contract the testimony should be clear and1 convincing. There is a conflict in the evidence. The witnesses for the defendant outnumber those offered by the plaintiff, but it seems to us that the weight of the evidence, considering all the circumstances, is in favor of the plaintiff against this claim of variation or modification of the contract. N01 sufficient reason is given why Meek should have requested that this rent be not paid every month as provided for in the contract. He denies that any arrangement of that kind was ever made, and claims that it was only after much importuning on his part that the fifteen dollars was in fact paid. The evidence shows he was badly in need of money; was old, poor and infirm, and we think that the claim of the defendant is unreasonable and not sustained. Meek denies that he agreed that the money might be deposited with Squire Schroder for him. It is conceded that he has not accepted any money since March 14,1902, nor is it claimed that he had ever asked Schroder for any money. According to the terms of the lease, if no well was drilled in ninety days, it became null and void unless the rent was paid each month thereafter, and Meek had the right to so consider it and treat it, which he did by making a lease to the other parties.

Thos. F. Conley, for plaintiff.

Andrews & Andrews and Baldwin .<& Harrington, for defendants.

The effect of a clause such as this in an oil lease is considered in the case of Van Etten v. Kelly, 66 Ohio St., page 605. The court say in the opinion on page 610:

“The plaintiff below claims that the words ‘unless second • party shall pay to said first party thirty dollars each and every month in advance while such completion is delayed,’ there lies a promise to pay thirty dollars per month for such delay. This is not tenable. The full force and effect of this ‘unless’ clause, taken by itself, is, to give the lessee the option by making such payment to continue the lease in force to the end of the term without completing the first well, or upon failure to make such payment, allow the lease to become null and void at the end of thirty days after the date of the lease.”

So that, unless Meek had waived the condition of the lease that the rent should be paid monthly, on the failure of Cooney" to pay the rent when it was due in April, the lease in our opinion became void. It is said that there was no consideration in any event for an agreement on the part of Meek to alter this contract, so as to waive the payments monthly; no new consideration moving to him. But if such an agreement was made between Meek and Cooney, it would amount to a waiver on the part of Meek, and he could not take advantage of this clause of forfeiture on the ground that rent had not been paid monthly; but we think that the defendant has not established his claim that this contract was varied; and if that is true, then the lease became void on the 14th of April when the default in the payment of the rent occurred, and nothing occurred after that to revive the lease. No well was attempted to be drilled until January, 1903, when this action was commenced to enjoin. At this time the ninety days"within which a well was to be drilled had long since expired, and the lessee was in default for the rent and had been since March of the year' before, and had, therefore, lost his right to drill for oil on the premises. By the “unless clause” he had the privilege of keeping the lease alive by paying the rent; thus he failed to do, and thereby lost his rights under the lease.

An injunction will be granted as prayed for and the same decree entered as in the court below.


text:
    JURY FEES IN CONDEMNATION CASES.
    [Circuit Court of Hamilton County.]
    The Cincinnati, Milford & Loveland Traction Co. v. Philomena Felix.
    Decided, January 2, 1904.

      Constitutional Law — Costs—Jury Fees in Condemnation Cases — May he Legally Assessed Against the Corporation.

    Section 6451, providing that in condemnation cases the jury fees shall be paid as a part of the costs by the corporation seeking to appropriate the land, imposes no burden upon one suitor or class of suitors from -which, others similarly situated are exempt, and is therefore not in conflict with Section 26 of Article II of the Ohio Constitution.
    Giffen, J.; Swing, J., and Jelke, J., concur.
    It is claimed that the court erred in taxing the jury fees as a part of the costs to be paid by the plaintiff in the proceedings to appropriate private property and assess the compensation therefor, for the reason that Section 6451, Revised Statutes, is unconstitutional' and void.
   In such proceedings under Chapter 8, Title II of the Revised Statutes, the right of trial by jury is provided for and unimpaired, except by the requirement that the jury fees shall be paid as a part of the costs by the corporation seeking to appropriate the property.

‘ ‘ Costs are unknown to the common law. They are given only by statute and may be changed or entirely taken away by the will of the Legislature” (Farrier v. Cairns, 5 Ohio, 45).

It would therefore be within the power of the Legislature to provide that the parties in all jury trials should pay, as a part of the costs, the fees allowed by statute to the jury; and the only question then in this case is whether there is an unlawful discrimination against corporations, the jury fees in ordinary trials being paid by the county treasurer on the warrant of the county auditor.

Individuals may not invoke the power of eminent domain, and all private corporations that may resort to it are subject to the provisions of Section 6451, Revised Statutes, which imposes no burden upon one suitor or class of suitors from which others similarly situated are exempt. In the case of Snell v. Street Railway Co., 60 O. S., 256, Judge Williams, delivering the opinion of the court, says, at page 267:

Gordon, Granger <& DeWitt and Charles W. Baker, for plaintiff in error.

John Nichols and Ampt, Ireton & Collins, for defendant in error.

“It has never been regarded as essential to the validity of remedial procedure that it should be applicable in all its provisions to all persons or parties alike. Different situations and conditions often render appropriate and necessary different provisions, the necessity or propriety of which rests largely in the legislative discretion.”

The case of Silberman et al v. Hay, 59 O. S., 528, cited by counsel for the plaintiff in error, is not in point, as the statute under consideration in that ease was held unconstitutional, not because it required a deposit of a certain sum of money for the jury fund, but because it applied to Cuyahoga county alone, and being a law of a general nature, did not have uniform operation throughout the state.

In view of the extraordinary power of corporations to appropriate private property the Legislature deemed it wise, in the event that the parties could not agree upon the compensation and the jury was impanneled to ascertain the amount, that the cost thereof should be taxed against the corporation appropriating the land.

We think therefore that this section of the statutes is not in conflict with Section 26, Article II of the Constitution, and the judgment will be affirmed.


text:
    LIABILITY UNDER MORTGAGE COVERING PROPERTY RECEIVED IN EXCHANGE.
    [Circuit Court of Lucas County.]
    Noah A. Whitney v. Julia Meister et al.
    Decided, June 25, 1904.

      Mortgage Debt — Personal Liability of Grantee Thereon — Who Became ■ Owner of the Property Subject Thereto — Form of Decree — Personal Judgment may be Entered, When.

    Personal judgment can not be taken against a grantee, wbo bas become tbe owner of land subject to mortgage, by exchange of properties, until the land has been sold to satisfy the mortgage and it is found that a deficiency exists.
    I-Iaynes, J. (orally); Parker, J., and Hull, J., concur.
    The facts in this case are, that one Matilda Weehtel and her husband were possessed of certain property in the city of Toledo, on Nebraska avenue, and upon Wabash avenue, upon which there were two mortgages, one in favor of the Ohio Savings Bank for about $2,000, which - was afterwards transferred to R. B. Mitchell & Co., and the other to Julia Meister, for about $900. Whitney had certain parcels of land in Miami, in this county. The parties entered into negotiations, and finally concluded they would exchange their properties. After some little negotiation they entered into a written contract with regard to the matter. It was drawn up by the real estate men who were negotiating the sale. It is claimed by plaintiff, Julia Meister, and perhaps by Mr. Weehtel, that at the time the trade was finally consummated and the deed made there was some conversation in regard to these mortgages. The writing had provided that Mr. Whitney was to take the Nebraska avenue property subject to the mortgages -of $1,800 and $925, and it is claimed on behalf of Mrs. Meister that at the time the deed was executed there was a further agreement or conversation wherein Whitney assumed and agreed that he would pay those mortgages. The case was tried to the court, and the court rendered a personal judgment against Noah A. Whitney in favor of Julia Meister for the amount of her mortgage of $925 and in favor of R. B. Mitchell & Co. for the amount of their mortgage of $1,800. R. B. Mitchell & Co. had filed a cross-petition and set up their mortgage, but had not prayed for a personal judgment.
   The deed that was made by Matilda Weehtel and her husband of the property on Nebraska avenue contained this clause:

“They will warrant and defend the same against all claim or claims of all persons whomsoever, except a certain mortgage of $1,800 held by the Ohio Savings Bank & Trust Company, of Toledo, Ohio, and a second mortgage of $925, due Julia Meister, of Toledo, Ohio.”

The contention is, so far as the case is prosecuted in error, that the court of common pleas erred in rendering this personal judgment in the first instance against Whitney for the amount of these mortgages, the judgment and decree in fact being an ordinary decree of foreclosure and a personal judgment for the amount of the mortgages against Whitney, upon the claim that there was an arrangement verbally made by Whitney at the time that the deed was executed that he would pay the mortgages. It appears to us from the evidence that the transaction was closed in pursuance of the written contract, and that this clause in the deed was written in accordance with the terms of the written contract. The exchange was the exchange of the properties. It is true that in their own minds they put a certain valuation on the lands, but the exchange was the exchange of the properties, subject to the mortgage on one side and the improvements on the lots and lands on the other.

There were certain matters crept into the suit, and some effort to show the value of the property, that are not very material to this question.

The Weehtels did in fact execute a mortgage on the property which they received for about $1,900, and that was made up of some $750, which it was agreed was the difference in the trade, which was to be paid by the Weehtels to Whitney as boot money, and the amount of about $925 that was due upon the property fronting on Wabash avenue included in the trade. The Weehtels held this Wabash avenue property by a purchase contract with Mr. Franklin, of this city, and they owed some $925 on the purchase money, never having received a deed from him. They assigned their contract to Whitney, and agreed to pay off the $925. And thereupon they executed this mortgage, and, as they testified, afterwards paid the amount, $925, which they were to pay to Mr. Franklin, into the hands of Mr. Whitney. The mortgage of Mrs. Meister, of course, was at the time on the other property, and the property was taken subject to that mortgage.

We think the court erred in rendering a personal judgment against Mr. Whitney in this case for the amount of those mortgages. We think under the law of the land the plaintiffs were not entitled to such judgment. We think the most that can be said is, that the Weehtels were, under the transaction, to be indemnified in regard to those mortgages. The law stated in Jones on Mortgages seems to be sustained by a great many authorities. Section 748 of Jones on Mortgages says:

“Personal Liability of Purchaser. — A deed which is merely made subject to a mortgage specified, does not alone render the grantee personally liable for the mortgage debt. To create such liability there must be such words as will clearly import that the grantee assumed the obligation of paying the debt. * * *
“A purchaser of land accepting a deed expressly conveying it subject to a mortgage, and excepting it from the covenants, is not himself personally liable to pay it, unless he covenants to do so. The land in such case is primarily liable as between the vendor and purchaser; and the vendor is liable for any deficiency.1 ’

We are cited also to the case of Thompson v. Thompson, in 4 O. S., 333, as sustaining the'right of the parties to the judgment. The first syllabus is this:

“It seems to be a well-settled principle, that the purchaser of an incumbered estate, if he agree to take it subject to the incumbrance, and an abatement is made in the price on that account, is bound to indemnify his grantor against the incumbrance, whether he expressly promise to do so or not — a promise to that effect being implied from the nature of the transaction. ’ ’

Perhaps it is proper to make a statement with regard to the facts of this case to get at the point which was decided. A man by the name of Thompson had purchased some property in. Circleville, some sixty years ago. It had originally been sold in 1835 by a man by the name of Hamilton, who had given a mortgage back on the property to another party, and that other party to Thompson, subject to the mortgage. Thompson died, having made a will in which he devised this property for life to his daughter and remainder over to her children, if she had any, and if not, the remainder to his family. He provided in his will that all debts should be paid. An administratrix was appointed with the will annexed, and acting under that clause, had paid off this mortgage, which amounted to some $700, which was equal at least to two-thirds of the value of the land itself, the life estate in which had been willed to the daughter. An exception was taken by certain heirs to that payment, the administratrix having been notified beforehand that an exception would be lodged against her if she paid that amount, the heirs claiming that the personal estate of the decedent was not liable for that mortgage — in other words, it was not a debt against the estate. The probate court overruled the exception and allowed the account of the administratrix as a proper payment, and the court of common pleas reversed the probate court. The case was taken to the old district court, and the district court reserved the case to the Supreme Court, and the point that was finally decided and judgment finally rendered, was a judgment of affirmance of the action of the probate court and the overruling of the court of common pleas.

Judge Thurman, in delivering the opinion of the court, discussed two views of the case which may be taken. He starts out by stating this proposition:

“It seems to be a well-settled principle, that the purchaser of an incumbered estate, if he agree to take it subject to the incumbrance, * * * is bound to indemnify his grantor against incumbrance, whether he expressly promise to do so or not — a promise to that effect being implied from the nature of the transaction.”

And he further proceeds to state that the agreed statement of facts is somewhat obscure as to whether there was an abatement in the price, and further discusses the facts and circumstances of the case, and concludes that there was. He then proceeds to discuss the question as to whether the administratrix was authorized to consider this as a debt and act upon that assumption, because they are not able to find from the statement of facts that 'there was any agreement on the part of Thompson when he took the land that he would pay the amount of the mortgage to the mortgagee. He simply took it subject to the mortgage, and under the rules of law was bound to indemnify, and his obligation was an obligation of indemnification, and not an obligation of payment. After discussing it upon the theory that it was an indemnification, and holding that the decedent had treated it as an indebtedness, having paid interest on the mortgage from the time he obtained the land until his death, and that the administratrix was justified in paying it, he says (page 353):

“I have so far considered the case upon the assumption that Thompson did not expressly promise Green to pay the debt, that view of the ease being the most favorable one for the defendant in error. If he did make such a promise, it was upon a sufficient consideration, and an action of assumpsit could have been maintained upon it by the trust company — it being well settled ‘that if one person makes a promise to another, for the benefit of a third person, that third person may maintain an action at law on that promise.’ * * * And if such were the case, there could be no doubt that Thompson was a debtor for the money, and that his liability was covered by the clause in his will directing his debts to be paid. But it is, to say the least of it, doubtful whether the agreed statement of the facts would warrant us in finding that such an express promise was made, and we prefer to place our decision on the other view of the case, with which we are entirely satisfied.”

Troup & Truesdale, for plaintiff in error.

Bierly & Dickey, for defendants, Wechtel.

There being, as we have said, no express promise in this case by which Whitney agreed to pay the amount of this mortgage to the respective mortgagees, we hold that there was no promise upon which a suit could be brought; that the obligation was an obligation of indemnification. He was bound to Wechtel, so far as Wechtel was concerned, to see that the mortgage was paid off, and if Wechtel was called upon to pay the notes which he had given, for which the mortgage was security, he then would have a right to call upon Mr. Whitney, upon this land, to enforce the payment of that amount. In other words, he would be subrogated to the rights of the mortgagee — the right to enforce the claim against the land. That being the ease, we think this judgment should be modified; that the personal judgment should be set aside and the decree itself modified to this extent: that the mortgage itself should first be foreclosed, the land sold, and if anything thereafter remains owing upon these mortgages or either of them, that a judgment may be entered by the court.

The decree is that the personal judgment be set aside, and the decree modified to this extent: that there shall be a sale of the land under the mortgage, and that if any portion of the indebtedness remains upon these two mortgages and the notes, that then execution may issue against Whitney for the balance unpaid.


author: Parker, J.

text:
    UNCONSTITUTIONAL FEATURES IN THE AMENDED MUNICIPAL UNIVERSITY STATUTES.
    [Circuit Court of Lucas County.]
    The State of Ohio, on Relation of Alfred M. Waldron v. The City of Toledo, Randall G. Bacon, as Auditor of the City of Toledo, and Henry M. Barfield, as Treasurer of the City of Toledo.
    Decided, October 10, 1904.

      Constitutional Law — Schools and Universities — Legislature Without Power — To Change Control of Schools — Founded hy Private Donors —Definition of “University” — Boards of Education — Mandamus.
    1. Section 4105, Revised Statutes, as amended April 25, 1904, is invalid in so far as it attempts to transfer, from the board in which previously lodged to the board of education, the management and administration of any and all estates or funds given in trust to any municipality for the promotion of education.
    2. The definition of a “university” given in the latter part of Section 4102, as amended, can have no bearing on the question of control of a school established by a private donor to carry out his purposes in regard to education, and endowed by his property and the property of others given for the same purpose. The denominating of such a school as a “university” does not deprive it of the protection of the Constitution of the state and the guaranty that all private property shall ever be held inviolate, notwithstanding o it has not yet attained to the full scope of a university.
    Haynes, J.; Parker, J., and Hull, J., concur.
    A petition was filed, asking that a writ of mandamus issue against these defendants, commanding said defendant, Randall G. Bacon, as auditor of said city of Toledo, and Ms 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 Ms 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 ser/ices, 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, and 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 has also been attacked.
    The question here is one that we shall pass upon very briefly. In the ease of State, ex rel, v. Toledo, 3 C. C. — N. S., 468, 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, ex rel Rohr, v. Adam Schauss et al, 3 C. C. — N. S., 388, 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 28th of May, last, in the case of James Waddick, a tax-payer, et al v. John B. Merrill et al, 5 C. C. — N. S., 103, 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 by them as matters that have been adjudicated so far as 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 fax 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 or 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 purpQses 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 a ease that is found in the 65 U. S., at page 465, 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, and was decided by the Supreme Court of the United States, and that decision is referred to at length in a case to be found in The Ohio Circuit Decisions, of State v. Toledo, 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, Section 4102 of this statute is found on page 544 of “Volume 97, Ohio Laws, and Section 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 Section 4102 provides or 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.” 1
    Section 4105 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 a 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.
    Now 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 builded 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 provisions 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 county, 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 or 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 deed to the incorporation, which he drew and gave to the city, 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 co-operation in carrying out the purposes of this trust. I should say here, that although this was a school that had not large means, still it is entitled to the same protection of the law as though it had an endowment of millions.
    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 people and 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 by 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 is now and always has been universities that are provided for higher degrees of education, for different'degrees of education and education 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 ease 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, and some citation of authority made by them. In regard to this point, in deciding 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 ease has been decided in the state of Ohio in principle, by the Supreme Court of this state, and 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 ease that I have referred to, State v. Toledo, is cited what is known as the Dartmouth College casé, 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, which is denominated Ohio, ex rel, v. Neff et al, decided on March 12, 1895, by the Supreme Court, is found in 52 Ohio State Reports, at page 375. The facts, of course, are not just the same as they are in this ease, but the principles which are announced and which underlie the dieision are the same, because in their very nature, they may be said to be eternal in regard to this class of institutions. In that ease 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, 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 were 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 finally 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, that amended Sections 3, 4 and 5 of the act incorporating Cincinnati College, passed January 22, 1819, and it provided:
    “See. 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 are hereby constituted the board of trustees of the Cincinnati College, and they are hereby authorized to exercise all the powers granted by law to the board of trustees of the Cincinnati College.
    “Sec. 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.
    “Sec. 5. The board of trustees shall appoint a treasurer, who 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 tutors and professors they shall think necessary; which president and 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 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 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 they 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. Judge Bradbury says:
    “The constitutionality of this statute is assailed on a number of grounds, one of which is that it violates that provision of the nineteenth section of Article I of the Constitution of Ohio, which asserts that ‘private property shall ever be held inviolate.’ Whether the statute is obnoxious to that constitutional provision depends (1) whether it violates the property rights of the Cincinnati College, and (2) if it does so, whether that corporation is entitled to the protection secured by the clause of the Constitution of this state above quoted.
    “No refined process of reasoning or unusual keenness of perception is required to ascertain the effect of this statute upon the property rights of the Cincinnati College. It simply, and in unambiguous terms, abrogates these rights by transferring them to a body of strangers. No language that the court might use can make this result more clear than does the concise language employed by the General Assembly. The expressly declared reason for this legislative action is the assumed insufficiency of the property of the Cincinnati College, as managed by the present directory, to ‘carry out the purposes of its charter,’ and assuming further, that ‘it would be advantageous to the Cincinnati College and to the University of Cincinnati, and the public generally, that the government of the two institutions should be joined and consolidated,’ it seizes the entire property of the one and hands it over to the other of the two bodies. It is no answer to this to assert that the new directory represents the old corporation, or that the legal title to the property still remains in the Cincinnati College. The mere naked legal title to the property has no value, when that title is absolutely severed from its control and beneficial enjoyment. It is the province and the duty of courts to look at the substance of the transaction, and to ignore refined and unsubstantial distinctions. And we can see no substantial difference between a statute which expressly creates a new corporation and endows it with the property of another body corporate, and a statute like the one under consideration, which, finding the corporation already existing, vests in the directory of the latter all the powers and rights of property which had belonged to another corporate body. And whether we regard the corporation as the actual and potential proprietor of the property in contention, or whether we consider those who contributed to or created this fund or property as such proprietors, and the corporation a mere agency, created to represent them and carry their will into execution, is immaterial in this connection. For, if the corporation is the real owner, it has been deprived of its .use and enjoyment of its property, while if those who originally created the fund are the real owners, then without their consent and against their will, it has been taken from their chosen agents, and placed in the custody and management of others, whom they did not appoint and over whom they have no control. Property in the hands of an agent is just as inviolate as that in the custody of the owner himself. As long as the principal may choose and control his agent, his dominion of the property confided to the agent continues, but this dominion, or proprietorship, is at once destroyed the moment that his property is forcibly, and against his will, seized, and absolutely and irrevocably transferred to another agent, selected not by the owner, but by some other person or authority.
    “We have seen, that the statute under consideration has taken from the control and management of the Cincinnati College all of its property and placed it under the control and management of the University of Cincinnati. One ground, we understand the argument of counsel, upon which this result is maintained to be lawful, is that the purpose to which this property was devoted by its original donors is a public purpose, and, therefore, that circumstance alone is sufficient to impress upon the property a public character; but if that is not so, yet as the purpose of the donors was not private gain, but public charity, and as the property under the new corporation would be applied to the same purpose to which the Cincinnati College would have applied it, had the latter continued its administration, that therefore no substantial right, either of the original donors or of the corporation, was violated by the law. That in fact the only rights the original donors had, as the result of their contribution to the funds of the Cincinnati College was that of voting for directors of the concern, which was ‘no more property than the privilege and duty of a citizen to vote for a governor of state, or presidential electors, are are property.’

      “The results of establishing this doctrine would be to place every eleemosynary corporation within the state, whether religious, educational, or created to administer to the wants of the suffering or needy, beyond the limits of constitutional protection. Whenever, in the opinion of a majority of the General Assembly, the public interest, or the interest of two or more colleges, or churches, or other private or eleemosynary corporations, required them to be united, the property of one’ or more of them could be seized and transferred to another. The doctrine finds no support in any treatise or adjudication within our knowledge, nor by reason or justice. There are two classes of public charities, one where the institutions are public in the broadest sense of that term; that is, they are owned by the state, or some subdivision thereof created for governmental purposes, and maintained at the public expense. These institutions are absolutely under the control and management of the public through its proper representatives. As respects them no vested or private rights p'ertain. It does not follow, however, that because this class of public charitable institutions are the subject of absolute public control, that another class, whose property consists of private donations, and to which the organized publie has contributed nothing, shall also be subjected to such absolute governmental control, because the charity they administer has been christened a ‘public charity’ in legal nomenclature. In common acceptation, colleges are not ‘ charitable institutions, ’ although in law they administer a public charity. This means no more than that the public are incidentally benefited by the education of some of its members, the immediate advantage accruing to the individual members who have received the instruction.
    ‘ ‘ The unbroken current of authority declares that the property of such institutions is private property, and the corporations themselves private corporations. Dartmouth College v. Woodward, 4 Wheaton, 518; Vincennes University v. Indiana, 14 Howard (U. S.), 269; Inhabitants of Yarmouth v. Inhabitants of North Yarmouth et al, 34 Me., 411; Trustee v. Salamond, 11 Me., 114; Trustees v. Foy, 1 Murph. (N. C.), 58; State, ex rel Pittman et al, v. Adams et al, 44 Mo., 570; Downing et al v. The Indiana State Board of Agriculture, 129 Ind., 443; Board of Education v. Greenbaum, 39 Ill., 609; Board of Education v. Bakewell, 122 Ill., 339; Montpelier Academy Trustees v. George et al, 14 Louisiana, 395.
    “When the donors of property devote it to a charitable purpose and choose an existing, or create a new corporation as an instrument by which this purpose is to be effected, they make this instrument their perpetual representative for that purpose. ‘ These gifts were made, not indeed to make a profit for the donors or their posterity, but for something in their opinion of inestimable value; for something which they deem a full equivalent for the money with which it was purchased. The consideration for which they stipulated is the perpetual application of the fund to its object in the mode prescribed by themselves. Their descendants may take no interest in the preservation of this consideration. But in this respect their descendants are not their representatives. They are represented by the corporation. The corporation is the assignee of their rights, stands in their place, and distributes their bounty, as they would themselves have distributed it, had they been immortal.’ Dartmouth College v. Woodward, 4 Wheaton, 642.
    “Whether the Cincinnati College is regarded as the owner in its own right of the property donated to it, or as the representative of the donors, charged with the execution of their purpose, is not material; in either view the property is private as contra-distinguished from public, and as such is within the protection of that provision of the Constitution, which declares private property to be inviolate.
    “We. now come to the consideration of the provision in the charter of the Cincinnati College, which reserves to the General Assembly the right of amendment. This reservation would be wholly unnecessary if the Cincinnati College had no rights of property, which the General Assembly was bound to respect. If the Legislature, at its will, could divest this corporation of its property, the legislative control of the institution would be absolute, for by taking away its entire property rights, all effectual corporate action would be at once paralyzed. Thence forward it would be powerless to advance the purposes of its creation.
    “The authorities agree in holding that the legislative power of amendment and alteration thus reserved in charters, is not absolute, although its boundaries are not yet established. In Kentucky this power of amendment seems to be limited to those matters which concern the relations established by the charter between the corporation and the state.
    “ ‘The power to alter or amend the contract, in our Conception, is to change it as between the original parties and such others only as have been permitted, by their mutual consent, to come into the enjoyment of its benefits and privileges; not to compel one of the parties to operate in conjunction with the others, and share with them the privileges and benefits of the contract.’ Sage v. Dillard, 15 B. Monroe, s359.

      “Whatever difficulties have been encountered by the courts in ascertaining the limits of this reserved legislative power, they concur in denying that under it the Legislature can strip a corporation of its rights of property.
    “ ‘The power of alteration and amendment is not without limit. The alterations must be reasonable; they must be in good faith, and be consistent with the scope and object of the act of incorporation. Sheer oppression and wrong can not be inflicted under the guise of amendment or alteration. Beyond the sphere of reserved powers, the vested rights of property of corporations in such cases are surrounded by the same sanctions and are as iwviolable as in other cases/ Shield v. Ohio, 95 U. S., 324; Detroit v. Plank Road Co., 43 Mich., 140; Orr v. Bracken Co., 81 Ky. Rep., 593.
    ‘ ‘ The Cincinnati College was the lawful owner of the property in its possession; it is immaterial whether it was acquired from the Cincinnati Lancaster Seminary that it succeeded, or by subscriptions and donations subsequently made. This property had been intrusted to it for the purposes of establishing and maintaining a ‘college,’ no specific branches of learning were prescribed, or nethod of instruction commanded. Primary, academical, medical, legal and philosophical courses were from time to time attempted; all of them except the law school proved unsuccessful and were abandoned; the latter has been continuously and successfully maintained for nearly sixty years, and substantially the entire income of the institution during that period has been devoted to its maintenance and improvement, without material objection appearing to have been made by any one of the donors. The facts that such donors of the property to this institution gave it with knowledge that no specific branches of learning or method of instruction were prescribed by its charter, together with a brief history of its various educational attempts and failures just averted to, and the acquiescence of such donors therein, tend to show that these donors entrusted to this chosen instrument of their will a wide discretion respecting the course and method of instruction, to which their donations were to be devoted, and if good faith is to be kept with these donors', we must deny to the Legislature the power to seize 'the fund this raised, and transfer it from these chosen agents to others, in whose discretion they did not confide. This power we think is prohibited by Section 19 of Article I of the Constitution of 1852, which declares the inviolability of private property.”
    In that case the Supreme Court declared the law 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. Wé 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, it 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 ease 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 one million dollars, it would not make any difference in the principles involved. A mandamus will be awarded in this case.

      I. N. Huntsberger, for plaintiff.

      ü. G. Denman and C. K. Friedman, for defendants.
   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 the former is called the “Board of Education of the City of Toledo” may tend to created 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, but within the city limits the electorate is 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 can not 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 to directly deprive the city of all voice in the matter, the attempt must fail for the reasons stated by Judge Haynes.


text:
    SUPERINTENDENT OF COUNTY CHILDREN’S HOME NOT A PUBLIC OFFICER,
    [Circuit Court of Perry County.]
    The State of Ohio, ex rel O. F. Sears, v. Richard McGonagle.
    Decided, November Term, 1904.

      Office and Officer — County Children’s Somes — Superintendency of, an Employment — And not a Public Office — Quo Warranto.

    The position of superintendent of a county children’s home, under Section 930 of the Revised Statutes of Ohio, is a mere employment, and not an office; and a petition in quo warranto by a person claiming to be rightfully appointed to such position can not be maintained.
    McCarty, J.; Voorhees, J., and Winch, J. (sitting in place of Donahue, J.), concur.
    Action in quo warranto.
   The petition in this ease has been demurred to, and the question arising upon the petition as to whether the action can be maintained by the relator is one of the questions to be considered by us. It is claimed in behalf of the demurrer that the office which the relator claims is wrongfully usurped by the defendant is not an office at all; that if it is a county office at all the relator is not entitled to it on the face of the papers because he has not been elected thereto. The question then is raised on the demurrer as to whether the position of superintendent of the Children’s Home of Perry county, Ohio, is an office or an employment.

The statute, Section 6764, provides who shall bring the action, and it provides among other things—

“A person claiming to be entitled to a public office unlawfully held and exercised by another may by himself, or an attorney at law, upon giving security for costs, bring an action therefor.”

Section 6766 provides that when the action is against a persan toi usurping an office the petition shall set forth the name of the person who claims to be entitled thereto, with an averment of his right thereto, and judgment may be rendered upon the right of -the defendant, and also upon the right of the person so averred to be entitled, or only upon the right of the defendant as justice requires. The following section reads:

“All persons who claim to be entitled to the same office or franchise may be defendants in the same action to try their respective rights to such office of franchise.”

Now there is a difference between an office and a franchise; and the term “franchise” as used in the statute is ordinarily applied to a corporation, or something in connection therewith, and is clearly distinguishable from an office.

The question then that is raised on the demurrer is whether the position of superintendent of the Children’s Home of Perry county, Ohio, is such a public office as will entitle the relator to maintain quo warranto or give this court jurisdiction therein.

Section 930 of the Revised-Statutes of Ohio provides for the organization of a county children’s home, for the appointment of trustees thereof, and further provides as follows—

“Said board of trustees shall designate some suitable person who shall act as superintendent of said home, and who for his services such compensation as the board of trustees desshall also be clerk of said board of trustees and shall receive ignate at the time of appointment; and he shall perform such other duties and give security for the faithful performance of them as the trustees by law direct.”

Does this section, so far as it pertains to the superintendent of the children’s home, create a public office, and one that will give this court jurisdiction in quo warranto proceedings, or does it not?

In distinguishing between an office and an employment, the fact that the powers in question are created and conferred by law is an important item to be considered in determining the question, for, though an employment may be created by law, it is not necessarily so, but is often, if not usually, a creature of contract. A public office, on the other hand, is never conferred by contract, but finds its course and limitations in some act or expression of the governmental power. Where, therefore, the authority in question was conferred by contract, it must be regarded as an employment, and not as a public office. This is clearly laid down in Meachem on Public Officers, Section 5.

Another distinguishing characteristic as appears from this statute, 930, is that it fixes no time or length of term for said superintendent of the children’s home'; nor does said section fix any salary, but leaves the matter entirely in the hands of the trustees of said home. Therefore it is insisted that the relationship between the superintendent and the public is contractual, and is in no sense an office, but merely an employment. The section further provides “that if in their judgment, that is, the judgment of the trustees, if in their judgment it is for the best interests of the home and of the county to dispense with a superintendent and authorize the matron to assume the entire charge of-the home and its management, they may do so.” This seems to fix and determine the nature of the position of the superintendent of the children’s home, for an office created either by the Constitution or statute could only be dispensed with by the power creating the same.

If the position of the superintendent of the Children’s Home of Perry county, Ohio, is an office at all, it is a county office, and could only be filled by election. Our attention has been called to Section 1 of Article X of the Constitution, which provides—

“That General Assembly shall provide by law for an election of such county and township officers as may be necessary..”
“Section 2. Officers shall be elected on the first Tuesday after the first Monday in November, by the electors of each county in such manner and for such terms, not exceeding three years, as may be provided by law.”

On the face of this petition it clearly appears that the relator was not elected to this office by the people, or that he was appointed to fill any vacancy; so that we have, then, the case of an attempt to provide for the selection of a county officer by appointment, not temporarily or to fill a vacancy, but for a full term, and subject to the will of the board of trustees, who have the power to remove and appoint a successor. This is in the face of the Constitution, which in one section gives power to the General Assembly to provide only for an election of county officers, and in tbe next section provides that they shall be elected and for a term not to exceed three years; and nowhere does it, even by implication, give authority to fill such office save as to vacancies in any manner other than by election.

In the case of The State, ex rel, v. Brennan, 49th Ohio State Reports, on page 39 of the opinion is found this language:

“The office of a ‘stationery storekeeper’ is created for the county of Hamilton. The duties relate to the purchase and custody of the property of the county, and the salary is to be paid by the treasurer of the county from the general fund of the county. We have, then, a case of an attempt to provide for the selection of a county officer by appointment, not temporarily to fill a vacancy, but for as full a term as the act creates, which term is made indefinite and subject to the will of the clerk of the court of common pleas, who, by reasonable intendment, has power to remove and appoint a successor. This in the face of a Constitution which, in one section, gives power to the General Assembly to provide only for the election of county officers, and in the next section provides that they shall be elected and for a term not to exceed three years, and nowhere, by implication even, gives any authority to fill such offices, save as to vacancies, in any manner other than by election.”

The decision goes on to say on page 40—

“A more obvious attempt to override the Constitution can hardly be conceived of. Under our Constitution county offices can not for a full term be filled by appointment. There is not a shadow of authority for the kind of legislation of which this act is an example. The portion of the act which assumes to give authority to the clerk of the court of common pleas to appoint a storelceeper is clearly and palpably in conflict with the sections of the Constitution quoted, and, there being no provision for an election, the act as a whole is absolutely and wholly void.”

In the face of this holding of the Supreme Court can it be claimed that the Legislature, in Section 930, Revised Statutes, did attempt to create a public county office to be filled by ap- ■ pointment? Under the heading of that section it appears to us that the only intention on -the part of the Legislature was to give the trustees of the children’s home the right to employ some person to act as superintendent; or, in other words, that if the trustees in their judgment believed that it was necessary to have a superintendent at all, they could by contract employ such superintendent, fixing his salary and time of service as they might see proper; and under no other theory would Section 930 of the Revised Statutes be constitutional.

In the 52d Ohio State Reports, page 355, second paragraph in the opinion, the court says, in passing upon a similar question with reference to the appointment of jury commissioners by the common pleas court, that—

“It is also claimed that the statute is invalid, because it provides for the appointment of the members composing the commission instead of their election by the electors of the county, as is required in the case of all county officers by Section 2, Article X of the Constitution. This presents a question of more difficulty; for if, within the meaning of this section, the commissioners are to be regarded as county officers, they can not be appointed, and the statute is invalid. In the case of The State, ex rel, v. Jennings et al, 57 Ohio State, 424, opinion, the court says: ‘Many efforts have been made to define a public office; and it is only the incumbent of such an office whose rights can be challenged in a proceeding in quo warranto. But it is easier to conceive the general requirement of such an office than to express them with precision in a definition that shall be entirely faultless.’ It will be found, however, by consulting the cases and authorities that the most general distinction of a public office is that it embraces the performance by the incumbent of a public function delegated to him as a part of the sovereignty of the state. Thus in Meachem’s Offices and Officers, Section 4, it is said: ‘The most important characteristic which distinguishes an office from an employment or contract, is that the creation and conferring of an office involves a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public; that some portion of the sovereignty of the county, either legislative, executive, or judicial, attaches, for the time being, to be exercised for the public benefit. Unless the powers conferred are of this nature, the individual is not a public officer.’ ”

So, that taking all that is stated in this petition to be true, and the demurrer admits the truth of the facts therein stated, is not the conclusion irresistibly reached that the superintendent of the Children’s Home of Perry county, Ohio, is a mere employment, and not a public office? We are of the opinion that it is a mere employment, not for any definite time, but a matter of contract, and to be served during the will of the contracting parties, and not controlled by the Constitution or statutes as to the duties of public officers.

T. B. Williams, H. D. Cochran and John Ferguson, for relator.

Donahue & Spencer, for defendant.

We then go back to Section 6764, supra; “A person claiming to be entitled to a public office unlawfully held and exercised by another, may by himself or an attorney, upon giving security for costs, bring an action therefor. ’ ’ So that it will be observed that in the first line of this statute, “A person claiming to be entitled to a public office” is the party who may bring the action. This not being a public office, the claim made by the relator utterly fails to state the ground for the relief that he claims.

Reading that section in connection with Section 930 heretofore quoted,- it leaves no question in our minds as to the utter absence of any right on the part of the relator, as he has stated in his petition, not having been elected to a public office, and that the employment of superintendent of the Children’s Home of Perry county is not a public office, that he can not maintain this action.

The demurrer will therefore be sustained, and the action dismissed at the costs of the relator, and exceptions noted in behalf of relator.


text:
    INTERURBAN SWITCH AN ADDITIONAL BURDEN.
    [Circuit Court of Lorain County.]
    Minnie C. Chambers v. The Cleveland & South Western Traction Company.
    Decided, October 8, 1904.

      Railways — Laying of an Interurban in the Highway — Switch an Additional Burden — Silence of Land Owner as to the Laying of the Main Trade — Not Consent to Lay a Switch — Constitutional Protection of the Land Owner — Limitation of Time for Completion of the Road — Injunction.
    1. Mere silence on the part of the landowner as to the laying of an interurban railway track in tbe highway passing through his land is not consent to the subsequent laying of a switch in said highway.
    2. An additional burden is imposed upon the land owner by the laying of such a switch, and where this is done without compensation being made therefor, or consent first obtained, a constitutional right of the land owner is violated and an injunction will lie upon his petition.
    3. The fact that by the terms of its franchise it is required that an interurban railway shall be completed within a given time, does not deprive the company of the right to thereafter lay additional switches, etc., but if thereby an additional burden will be laid upon property, the right so to do must first be acquired.
    Marvin, J.; Hale, J., and Winch, J., concur.
    The case of Minnie C. Chambers against the Cleveland & South Western Traction Company and others comes into this court by appeal from the judgment of the court of common pleas.
   The facts are that the plaintiff owns a farm in the township of Ridgeville, in Lorain county, lying on both sides of a public road, and having a frontage along said road, or rather extending from east to west a distance of more than 500 feet, through which the road runs. The plaintiff owns the fee of said road, subject to the rights of the public to use the same for a highway.

In 1895 a predecessor of the defendant company, being incorporated for that purpose, and having obtained from the commissioners of the county a franchise therefor, constructed an electric railroad, passing along this road through the plaintiff’s farm, and extending at that time from the city of Cleveland to the city of Elyria.

The certificate of incorporation of the company which constructed the road, authorized .the construction of an electric railroad, or a railroad using electricity for motive power, with single or double tracks, with such side-tracks, turnouts, offices, depots, shops, telegraph lines, telephone lines, switches, poles, wires, devices, and all other necessary appliances for the operation of an electric railroad. And also authorized the railroad, or provided that it was organized and formed for “the purpose of transporting passengers, packages, express matter, United States mail, baggage and freight over and upon said railroad.”

It was also formed “for the purpose of generating electricity by steam or water power, and the selling of the same for light, Peat and power purposes, and the owning of all necessary real estate to carry out said objects.”

The franchise granted by the commissioners also provided *1 that the railroad must be constructed to the satisfaction of the •county commissioners, with a single track, with all suitable and convenient side-tracks, switches, turnouts, turn-tables and stations. And have the right to construct and maintain all necessary wires to connect its feed wires with adjacent property along the route herein petitioned for, necessary to supply light, heat or power to such adjacent property and all other things necessary to operate a first class street railway with inanimate power other than steam; poles for said railway to be located on the opposite side of the track from the traveled roadway, except when it may be necessary to locate a double line of poles at opposite sides of the street, such location to be decided by the commissioners. ’ ’

It also provided that said railway might be used “for the transportation of passengers, baggage, freight, express matter and United States mail.”

Along this highway upon the plaintiff’s premises a main track was built in 1895, on the south side of the traveled roadway. Plaintiff gave no express consent to the construction of the road, nor did she make any objection or protest to the construction of said main track, and the same has been operated from 1895 or 6 up to the present time.

In October, 1903, the defendant, in the night time, commenced putting in a switch on the south side of this main track, along the highway running through the premises of the plaintiff. Immediately upon the commencement of the work, or immediately upon notice being received by the plaintiff, which was almost immediately after the work began that night, she protested and denied the right of the defendant to construct this switch, and did all in her power to prevent the construction of the switch. She sought for an injunction from the court very shortly — immediately, as soon as she could — to have the work stopped.

The switch has been completed, and is something more than 300 feet in length across her premises in the road, and the company is now operating that switch. The plaintiff prays that the defendant be enjoined from operating the switch, and by a mandatory order be required to remove the switch which has been put down.

As has been said, no consent of any kind has been given by the plaintiff to the construction and operation of this railroad, except her silence in letting the main track be constructed and operated.

'Does this carry with it consent to the construction of this switch? On the part of the defendant it is said that it carries with it the right of the construction of this switch, because the articles of incorporation and the franchise from the county commissioners, under which the defendant is acting, authorized the construction of side-tracks, turnouts, switches, etc., as they should be necessary for the operation of the road. It is said that this switch is necessary for the proper operation of the road, and that therefore when she consented by her silence that the main track be laid along her premises, she impliedly consented that such switch, turnout or other device as should be necessary for the opreation of the road should be constructed. If that is so, it would seem to carry with it consent on her part, if it became necessary to put up a power-house, which by their charter and by their franchise they were authorized to put up at all necessary places, should be put up here.

If this plaintiff had consented in writing that the main track might be built along the highway through her premises, and acting upon that the defendant had constructed this main line through her premises along this road, it can hardly be claimed that that consent would have given them the right, whenever it became necessary for the proper operation of the road, to lay a switch or any additional track or put in any additional thing other than was necessary for .the operation of that - main line along this road. Is it possible that by standing by and consenting by silence that this main line be constructed and operated, she gave a broader consent than if she had given in writing a consent that exactly that thing might be done ? It seems to answer itself. It seems difficult to understand how it can be said that one by tacit consent, in seeing the work done upon her premises, gives a greater consent, gives to the corporation laying the track a greater right than would have been given if consent to do exactly the same thing had been given in writing.

It is urged on the part of the plaintiff that since by the franchise it is provided that the road shall be completed and in operation by a given date, which time has long since past, that under the franchise no switch could be laid anywhere that was not laid at the time the original main track and switches were laid.

We think the ease of Railway Company v. Daniels, 16 O. S., 390, answers that, and answers it against the plaintiff. There it was held that the railroad company, a steam railroad company, which had a franchise to put in a railroad with necessary turnouts, switches, etc., in the city of Toledo, might condemn property and extend its turnout up to a certain mill property. But we -think also that that same case clearly shows that in order to make such extension the company must acquire right to the property, if it is property that it is taking.

We are cited to the ease of Cincinnati & Indiana Railroad Company v. Zinn et al, 18 O. S., 417, -as affirming the proposition in the case laid down in the case of Railway Company v. Daniels. It simply says “that the other questions involved in this case are determined by the case of The Railway Company v. Daniels.” Nothing more is said about it.

Numerous authorities are cited aud fully sustain the proposition, that where one stands by and makes no objection to the use of his property by a railroad company .or other public corporation, whereby large sums of money are expended, can not be heard later to complain of such use. But cases cited in the brief of defendant, and so far as we know everywhere, the authorities go no further, than that if one has given consent that the things be done which they have stood by and permitted to be done, they can not- later be heard to complain of its use.

Considerable was said in argument that the putting down of this switch was not putting an additional burden upon the prop-' erty, and authorities are cited in support of that proposition. Those authorities, some of them at least, were cited and read over to two members of this court sitting as judges in chambers, and convinced us that this was not an additional burden, and we so held. But that case went to the Supreme Court (the case of Schaaf v. The Cleveland, Medina & Southern Railway Company), and the Supreme Court said we were wrong; and now without regard to what the authorities are outside of Ohio, the latest authority of the Supreme Court of Ohio on that subject is the case before mentioned, which is found in the 66 O. S., at page 215.

It was urged here in argument that the two cases are not alike, and some stress was laid upon the proposition that in the case of the Medina railroad it was a paper railroad only, never had been built; but it was to prevent the building of it along the premises of the plaintiff in that case, because it would be a burden upon his property, that the suit was brought. And the court said in the first paragraph of the syllabus (of course the case is familiar to counsel upon both sides, .but I do read it) :

“The construction and operation of an interurban railroad laid with T rails, entirely on the side of a public highway next to the abutting improved farms owned and occupied by the plaintiffs, and entirely between their lands and the traveled part of the highway, the company having authority to fun an unlimited number of ears and trains for the carrying of passengers, and the transportation of freight, express matter and government mail, is an additional burden on the public highway and obstruction to and interference with the plaintiff’s easement and rights therein, not substantially different from those that are imposed by the construction and operation of steam railroads, under like conditions.” (Then follows the construction and operation of an electric plant etc.).

D. J. Nye and C. G. Washburn, for plaintiff.

E. G. and H. C. Johnson and G. W. Gollister, for defendant.

But that language laid down as the law in the syllabus, it seems to us settles this case, and settles it in favor of the plaintiff. An additional burden has been imposed upon the plaintiff by the laying of this switch.

It is said she has a complete remedy at law. It is no more true that she has a complete remedy at law than she would have a complete remedy at law if they went through one of her fields, and the Constitution has disposed of that question, by providing as it does in Section 5 of Article XIII, as to the taking of a right of way. And in Section 19 of Article I, providing that private property shall not be taken for public use until compensation has first been made in money; or a deposit of money made.

We think it follows that as the defendant has taken the property, that is, has by putting an additional burden upon the highway taken the property of the plaintiff or established a right of way across her premises, without having first had the value of that property right in her determined by a jury or having paid it or deposited it, the injunction should and must be allowed.

Now this track is laid down, and the order will be that it be removed, unless within ninety days from this date the defendant shall have by some proper means obtained the right from the plaintiff to construct and operate this switch.