text:
    CONTROL OF SCHOOLS SUPPORTED BY ENDOWMENTS.
    [Circuit Court of Lucas County.]
    State, ex rel Rohr, v. Adam Schauss et al.
    Decided, October 19, 1901.

      Schools — Endowment of, for Public Benefit Does not mafie “Public” Schools — Acceptance of Trust Funds for Support of — Authority to Control — Courts can not Interfere with Discretion of Board of Directors — Unless upon Denial of Some Positive Bight of the Public — Reasonable Regulations.

    1. The directors of an institution of learning are at liberty under Section 4096, relating to trust funds for the endowment, maintenance and aid of such schools, to reject a proposed donation if the terms under which it is offered are not acceptable, but donations which are accepted must be accepted in accordance with the terms prescribed.
    2. A manual training and polytechnical school, founded and supported by private donations which have been accepted under Sections 4095 to 4104, is not a public school in the same sense that schools maintained under our common school system are public schools.
    3. The authority to control schools thus founded on endowments is derived from Section 4099, and is vested in a board of directors who may delegate a part of their authority to a faculty, but not to an independent board.
    4. There is no authority in the courts to interfere with a discretion exercised by a- board of directors of such an institution in the management of its affairs, on the ground that an unwise policy is being pursued, so long as there is no denial of positive rights vouchsafed to the public.
    5. A rule which discriminates against the students of a high school during -the first half of their freshman year, by rendering it impracticable for them to pursue the course of the special school, is not on that account unreasonable or unjust, or a denial of the rights of such pupils.
    Parker, J.; Haynes, J., and Hull, J., concur.
    Heard on appeal.
   This is a proceeding in mandamus brought into this court by appeal. The relator avers in his petition that the Toledo university is supported by general taxation levied by the board of .education upon all the real and personal property in the city of Toledo, and that the persons named as defendants occupy the positions of directors and superintendent of the Toledo university, as indicated by their titles in the caption; that the relator is a resident of the city, and a tax-payer of the city of Toledo, and father and natural guardian of one William P. Rohr, who is a minor and citizen of said city of Toledo; that William P. Rohr is a member of the freshman class of the Toledo high school in the city of Toledo, and as such is pursuing the studies regularly taught in said school; that the Toledo university conducts a manual training school in a building situated upon a certain tract of land described, which, as appears from the averments as well as the evidence, is a part of the lot on which the high school building is situated. The building occupied by the university is really an extension of the high school building. The petition also sets forth that the university occupies this property in question, in pursuance of a certain contract which is in part a lease, that was entered into between the directors of the university and the board of education of the city district, on April 4, 1885. The petition sets forth the various terms of that agreement which I need not notice, other than the provisions touching the right of the relator, and relied upon by him, to-wit:

“If is also agreed between the parties hereto that said party of the second part shall erect upon the premises herein described a suitable building for manual instruction, to be approved by 'said party of the first part, and shall equip the same with suitable tools and machinery for such instruction, and shall furnish and maintain competent instructors for such manual training; and further, that no charge for instruction in such manual training school shall be made for the children, wards or apprentices of any citizen of said city; and such manual training shall be adapted to and at all times accessible to the pupils' of the Toledo high school.
“It is expressly understood and agreed that the purpose of this grant is to secure to the pupils of the Toledo high school a wider and more extended range of instruction than that now furnished, and that the instruction furnished by the said Toledo university shall at all times be such as to be either auxiliary or supplemental to the studies pursued in the Toledo high school.”

The relator avers in his petition that by a rule and practice of the directors and superintendent of the university, his said son, who became a member of the freshman class of the Toledo high school is excluded from taking such course in the university as relator believes he has a right to take, and from pursuing such studies as relator avers he has a right and privilege to pursue; that relator’s son is prohibited from pursuing his regular course in the Toledo high school, and at the same time pursuing the course that he desires to pursue in the Toledo university. And he says that this rule is a discrimination and prohibition against members of said freshman class; that the rule does not apply to and is not in force as to any other pupils of the university. He says that it “is unreasonable and against public policy, and a violation of the legal rights of each member of said class, especially of said William P. Rohr and of the relator as the parent and natural guardian of said William P. Rohr, and not within the discretion of said defendants.”

“That the said defendants, by and through said Virgil G. Curtis, superintendent of said Toledo university, refuses to receive said William P. Rohr in the said school or allow him to enter the same, or to receive any instruction therein, unless he shall abandon and forego receiving any instruction in the Toledo high school, and will sever his connection therefrom, notwithstanding that members of other classes of said Toledo high school are admitted and- allowed to receive instruction therein. ’ ’

The rule to which these objections are made was adopted by the directors of the university on September 5, 1901, and is set forth in haec verba in the answer, as follows:

" Resolved, that all regular students entering the ninth grade of the public schools, who shall elect manual training, must pursue the correlative course as prescribed by this board, unde,r the instruction of the teachers of the polytechnic school.”

It will be seen that the resolution does not, by its terms, exclude those belonging to the freshmen class in the high school. And the testimony shows that this rule as adhered to is not extended; that is to say, that there is no other rule in force that might operate to exclude such pupils of the high school. This rule does not say that such students shall be prohibited from entering the manual training school and taking the correlative course. It says that if regular students of the ninth grade of the public schools shall elect and shall take manual training, they shall take the correlative course.

The testimony shows, however, that the enforcement of this rule has the effect of excluding such members of the high school as belong to the ninth grade for the first half of the freshman year, since by this curriculum adopted by the directors of the university, the correlative course of study that is to be taken in connection with the manual training, and the hours prescribed for study and recitations are such to make it impracticable for one to pursue that course and those studies at the same time that he pursues the regular course in the high school. It is in that sense, therefore, that certain members of the freshman class of the high school are excluded from entering the university and taking the manual training at the same time.

Now, what the relator desires is, that his son shall be permitted to enter the university during the first half of his freshman year in the high school and take a certain course there, and not take the full correlative course prescribed in connection with the manual training. That he shall be permitted to take what is dominated “free hand and mechanical drawing;” and he says that his son is fitted for that by education and by the development of his mind, and that his business occupation outside of school makes it desirable that he should have this instruction. He claims, therefore, the right to have his son pursue his studies in the freshman class of the high school, and to pursue such studies as he may elect in the university, i. e., such as will not interfere with the pursuit of his course in the high school. And the question for decision is, whether the court, at the instance of the relator, may interfere with this rule and regulation of the board of directors and superintendent of the university, and require of them that they shall receive this young man upon the terms he desires to have applied to his case.

This is contended for on behalf of the relator on two grounds: First, upon the ground that this right is secured to pupils of the high school by this agreement between the board of education of the city and the directors of the universify, which was entered into on April 4, 1885. And he claims the right as one of the beneficiaries, so to speak, one of the cestuis. que irustent under that agreement, to enforce it for his own benefit.

It is not clear to us that the effect of the provision in that agreement that the instruction furnished by. the university “shall at all times be such as to be either auxiliary or supplementary to the studies pursued in the Toledo high school, ’ ’ and shall be free and open to such students, is to give to every member of the high school, under any and all circumstances, a right to elect such course as he shall choose to pursue in the university. We are not clear, in other words, that such a rule as has been adopted here would be obnoxious to the terms of this agreement. But assuming that it is so, assuming that the agreement was originally enforceable at the instance and for the benefit of the relator, the question arises whether that agreement as to these stipulations is still in full force. It is clear that the right of the relator is dependent upon the agreement, and that if the agreement is not in force, his contention upon that ground must fail. It is equally clear that the authorities that made the agreement may unmake it.

It appears by the evidence that the nucleus, perhaps the substantial foundation, of the fund for this university arose from donations of certain -persons formerly citizens of this city, Jesup W. Scott and his heirs, and Mr. Raymond, who gave substantial sums for the establishment of this university. What the terms and conditions were upon which these donations were made we are not advised. Counsel on either side claim nothing on that score. We simply have it that.such donations were made. Nothing appears to have been done in pursuance of these donations until a certain act was passed in 1870, for the establishment of the University of Cincinnati, the act as amended being now included in Sections 4095 to 4104, Revised Statutes, and the passage of an act in 1873, which has since been amended (Sections 4105, Revised Statutes), making this act as to the Cincinnati University applicable to the city of Toledo; nor until the common council, in pursuance of that act of the Legislature, had adopted an ordinance which is found in Sections 678 to 683, revised ordinances of the city of Toledo; nor until after this agreement before referred to had been entered into between the board of education of the city of Toledo and the directors of the university, and the erection and equipping of the building in pursuance thereof.

The date when this school went into operation is not stated, but it was some time subsequent to April 4, 1885, and soon thereafter. As to the character of this school and as to the authority of the board of directors, we must look to the acts of the Legislature before referred to; and as to the agreement between these respective boards, representing the high school and the university, we are to look not only to the lease of April 4, 1885, but to certain subsequent transactions between those boards carried on in pursuance of subsequent arrangements or regulations. And going to the question last stated, we find this state of facts: That at a meeting of the board of education on July 16, 1900, Mr. Dowd, a member of the board, stated that he was in receipt of communication from Mr. Adam Schauss, president of -the manual training board, inviting the board of. education to meet with the manual board for the purpose of consultation; that Gen. Hamilton moved that the manual training board be notified that the board of education will meet with them on the next Monday night, and that the clerk should notify them to that effect; and that his motion was carried. That at a subsequent session of the board of education, held on July 23, 1300, for the purpose of meeting with the manual training board in consultation, and for the transaction of other business, Mr. Ashley, on behalf of the university board, appeared before the school board and made certain representations with respect to what the university board had done and what they would like to do — what he conceived to be feasible. The import of it was that the university board desired to extend the course of study.

Up to that time, it appears that the only course of instruction in the university was that pursued in what was called the “manual training school,” which consisted chiefly, if not entirely, of what the name would imply, experimental or manual training in certain arts and occupations'; and it was proposed to add what they denominated a polytechnic school, for the carrying on of the study of arts and sciences, on what may have been perhaps more theoretical lines. This was laid before the board of education, and a committee was appointed to act in conjunction with the committee of the university board, and that committee made a report on August 6, recommending this extension of the studies and instruction in the university, i. e., the establishment of this other branch of the university which they had termed the polytechnic school, and to that report was appended a special report of a proposed curriculum. That curriculum is not carried into the journals, but it has been presented to us here. All this was agreed to and adopted by a very decisive vote of the board of education, there being three votes in favor of the motion, and but one against it.

It appears that the course of study that is now being pursued in the university is based upon that curriculum; that in pursuance of this arrangement and agreement with the board of education, the university board on September 5, 1901, adopted the resolution to which I have referred, and to the enforcement of which relator objects. And thereafter, some members of the board of education, not being satisfied with the result of the operations under this resolution, moved that the university board be requested to set it aside, but that resolution was put to a vote and lost. It fairly appears to us that so far as the board of education of the city of Toledo is concerned, it is acceding and consenting to the enforcement of this rule as it is enforced with the effect stated.

That being true, it appears to us that the relator is not in a position to rely upon the terms of the lease of 1885 that has been referred to, for the reason that this resolution, as it is interpreted and put in practice, with the knowledge, acquiescence and consent of the board of education, amounts to a modification of the terms of the lease, in so far as it may have secured to all students in the high school a right to enter the university; that if that lease provided that each and every student might enter whatever class he pleased in the university, and might take there such studies as he pleased, that part of the lease has been abrogated by the subsequent transactions of the boards.

That, therefore, leads us to a consideration of the other question, i. e., whether this is a public school, supported by public revenues, of a character that the relator may ask and require what he seeks; whether he, as the representative of one of the persons entitled to participate in the advantages of the university, may require that its directors shall so modify its rules as to the admission and instruction of students as to accommodate him in the way he desires. We do not understand that this is a public school in the sense that our common schools, established and supported under the general common school system of the state, are public schools. It is a public school in the sense only that the tuition is to be free. The character of the university is, we think, indicated very clearly by the statute providing for its maintenance. Section 4095, Revised Statutes, reads:

“The board of directors of the university of the city of Cincinnati in the name and behalf of the city, may accept and take any property or funds heretofore or hereafter given to the city for the purposes of founding, maintaining or aiding a university, college or other institution for the promotion of free education, and upon such terms, conditions and trusts, not inconsistent with law, as the said board of directors may deem expedient and proper for that end.”

That is to say, they may accept of the donation if the terms prescribed by the donors are not contrary to law or are not deemed inexpedient by the board. So that it becomes a school, subject, to some extent, to the terms and conditions.of the trust or donation; and in that respect, of course, it is quite different from the common schools. In Section 4096, Revised Statutes, we find this with respect to how the trust funds are to be employed :

“For the further endowment, maintenance and aid of any university, college or institution for the promotion of free education, heretofore or hereafter so founded in said city, the board of directors of the university thereof may, in the name and in behalf of the city, accept and take as trustee, and in trust for the purpose aforesaid, any estate, property or funds, which may have been or may be lawfully transferred to the city for such use, by any person or body corporate having the same, or any annuity or endowment in the nature of income which may be covenanted or pledged to the city toward such use by any person or body corporate.; and any person or body corporate having and holding any estate, property or funds, in trust or applicable for the promotion of education, or the advancement of any of the arts or sciences, may convey, assign, transfer and deliver over the same to said city as trustee in his or its place, or covenant or pledge its income, or any part thereof, to the same; and such estate, property, funds or income shall be held and applied by such city in trust for the further endowment or maintenance of such university, college or institution, in accordance, nevertheless, with the terms and true intent of any trust or condition upon which the same was originally given or held.”

Since we have not present for our consideration any of the terms or conditions upon which this trust fund was donated, I do not read this for the purpose of the consideration of any question that might arise upon the terms of the donation. I' read it for the purpose of showing the character of the school; that it is a school that is subject to the terms and conditions imposed by the donors who gave the property or money in trust for the school. The directors are at liberty to reject a proposed donation if in their opinion the terms are unlawful, or for any reason unacceptable to them. If they accept it, they must accept it upon the terms prescribed.

We find nothing in this law prescribing that the course of studies shall be so mapped out and arranged and pursued as to permit of all students of the high school, whatsoever may be their class, pursuing their studies in the high school and at the same time taking an elective course in the university; and we know of no rule or principle upon which a court is at liberty to impose that condition or to enforce that kind of a regulation. The agreement between these two boards might so provide; it is possible that before it was modified it did so provide. It may be that that would have been a fair interpretation of that order. The directors may have so abrogated their authority, or delegated or surrendered it, as to enter into ah arrangement of that kind. Whether lawfully may be a very serious question, but it is not presented, because the arrangement under which the university is now carried on seems to be acceptable to the directing parties. The authority in the premises to regulate the school, prescribe the course of studies, and to fix the terms and conditions upon which students may enter, is placed in the directors, and the terms of the authority are found in Section 4099, Revised Statutes, which says: .

“The board of directors may provide all the necessary buildings, books, apparatus and means and appliances, and pass all such by-laws, rules and regulations, concerning the president, professors, tutors, instructors, agents and servants, and the admission, government and tuition of students, as they deem wise and proper; but they may by suitable by-laws delegate and commit the admission, government, management and control of the students, course of studies, discipline and other internal affairs of such university, college, or institution, to the faculty which the directors• may appoint from among the professors.” .

They are authorized to delegate their authority to the faculty, but not to any independent board of education. As I have said, if the interpretation be put upon this contract that is insisted upon by counsel for the relator, then it would seem that the directors of the university had placed substantially the whole matter of the running of the university in .the hands or under the control of the board of education; for it would leave it then within the power of the board of education, if it saw fit, to prescribe that students of the high school should be admitted to take such studies as they pleased, at such hours as they pleased, in the university, and if that were the agreement, it would not be within the power of the directors of the university to successfully resist any such regulation as might be prescribed by the board of education. We do not think that that would be consistent with the provisions or the spirit of this law. The only right expressly given by the statute that the relator has here is the right of free tuition, and that right must be pursued subject to such reasonable and proper regulations as may be prescribed by the directors of the university.

Now it appears that students of the high school in other classes than freshmen B (which corresponds with grade 9 — 2 of the university), are permitted by'the university to elect courses there and also at the same time pursue their studies in the high school; but we do not see that because they have adopted this liberal rule as to all classes excepting grade 9 — 2, they are thereby required to adopt the same rule as to grade 9 — 2. They certainly have a wide discretion in the premises which can not be interfered with by a pupil of the school. The only inconvenience to a patron of the school or scholar in the high school is, that he must wait four months before he can enter the university upon these terms; that is to say, before he may elect certain studies and pursue those and none other.

W. H. A. Read, for relator.

C. K. Friedman, for defendants.

The purp'ose of this regulation, as claimed by the relator and confessed by the respondents, is to fill up the university and increase the attendance of those who will take the full four years’ course prescribed, and this they believe will be of benefit to the university. Whether the policy is wise or unwise is not a question for this court to consider. We would have no right to interfere with this regulation upon the ground, if it were true, that the policy being pursued is an unwise policy. It is within the discretion of the board. They have a right to do that so long as they do not interfere with some positive right of the relator; and where he seeks the enforcement of a right by mandamus, the right must clearly appear; and that the right is denied must likewise clearly appear.

We are not prepared to say that this discrimination against this particular class in the high school (for it is a discrimination, confessedly) is unreasonable and unjust, and so far a denial of the clear rights of pupils in that class of the high school that a court of equity has a right to interfere by mandamus to compel the university'directors to so conduct this school as to wipe out this discrimination; and being of that opinion, the prayer of the relator for a writ must be denied.

J. M. Sheets, Attorney-General and S. W. Bennett, for the demurrer.

Warren Gard, Wm. M. Ampt and James E. Neal, against the demurrer.


source: Caselaw Access Project

license: Public Domain

text:
    THE ACT LICENSING STEAM ENGINEERS.
    [Circuit Court of Butler County.]
    State, ex rel Gard, v. E. H. Harmon, District Examiner.

    Decided, 1902.

      Constitutional Law — The Act Licensing Steam Engineers Invalid— Because of the Arbitrary Exemption of a Particular Class.

    Section 4364-891 (94 O. L., 33), providing for the licensing of stationary engineers, contravenes Section 2 of Article I .of the Bill of Rights, and Section 36 of Article II of the Ohio Constitution, in that it arbitrarily exempts from its operation those who have been continuously employed as engineers for three years next-preceding its passage, and excludes all others not within the time limit therein designated.
    Jelke, J.; Swing, J., and Giffen, J., concur.

       Affirmed by the Supreme Court (66 O. S., 249).

   The only objection to the law herein involved, viz.: “An act for the better protection of life and property against injury or damage resulting from the operation of steam engines and boilers by incompetent engineers and others, and to repeal an act therein named” (94 O. L., 33, Sections 4364-891 to 4364-89w, Revised Statutes), which gives us serious consideration is that urged to the provision of Section 7, which reads as follows:

“Section 7. Any engineer who has been employed continuously as a steam engineer in the state of Ohio for a period of three years next prior to the passage of this act, and who files with his application a certificate of such fact, under oath, accompanied by a certificate from his employer or employers, verifying the same, or who holds a license issued to him under any ordinance of a municipal corporation of this state, shall be entitled" to a license without further examination. ’ ’

It is contended that this section arbitrarily exempts-from the requirements of the act a large, fixed, particular number of engineers who would naturally belong to the class sought to be regulated by the general provisions of the law and hence is in contravention of Section 2, Article I of the Bill of Rights, and Section 26, Article II of the Constitution.

The particular engineers who can substitute three years’ continuous employment in lieu of an examination are fixed once and for always by the passage of the act. They are those who have been continuously employed as engineers between March 1, 1897, and March 1, 1900, and none other. Here is a particular class marked off by an arbitrarily fixed time limit from the general class, and into this particular class no one thereafter can ever enter. A little reflection will make apparent that this particular class is large.

There is no objection within the legislative wisdom to making three years’ continuous employment the equivalent of an examination, but the privilege of tendering this equivalent must not be given to a particular set of engineers.

The Supreme Court said, per Spear, C. J., in State v. Gardner, 58 Ohio St., 599, 610:

‘ ‘ Our Bill of Rights prohibits the granting of privileges to one which are denied to others of the same class, and the imposition of restrictions or burdens upon certain citizens from which others of the same class are exempt, and Section 26 of Article II of the Constitution requires that all laws of a general nature shall have a uniform operation throughout the state. A statute, therefore, which imposes special restrictions or burdens, or grants special privileges to persons engaged in the same business under the same circumstances, can not be sustained because it is in contravention of the equal right which all are entitled to in the enforcement of laws, and in the enjoyment of liberty, and in the enjoyment of an equal right in the acquisition and possession of property, and so is not of uniform operation.
'“The constitutional objection to this statute is that it operates unequally in that it imposes the burden of an examination and license fee upon certain persons, and exempts others of the same class, pursuing the same business in the same way.”

Also see State v. Gravett, 65 Ohio St., 289.

At first we considered declaring Section 7 invalid and letting the remainder of the law stand, but the exception of Section 7 is so large that it affects the scope of the whole law.

The General Assembly may not have legislated on the subject at all had it realized that it could not make the exceptions provided for in Section 7.

We do not think the Fourteenth Amendment of the Federal Constitution applies to this subject matter.

The other objections to this law are not, in our opinion, well taken. We are of opinion that this law is invalid.

Demurrer to petition overruled.


text:
    INJUNCTION AGAINST RAILWAY TICKET BROKERS.
    [Circuit Court of Cuyahoga County.]
    John M. Kinner et al v. Lake Shore & Michigan Southern Railroad Co.

    Decided, February 10, 1902.

      Railways — Combination of to Maintain Fares — Can not be Attacked Collaterally as Unlawful — In a Suit to Enjoin Ticket Brokers from Dealing in Non-transferable Tickets-r-Application of the Maxim as to Glean Hands — Public Policy — Injunction—Contracts.
    1. The maxim as to coming into court with clean hands is only applicable to misconduct in regard to or connected with the matter in litigation in such a way that it affects the equitable relations subsisting between the two parties and arising out of the trahsaetion; it does not extend to misconduct, however gross, which is not connected with the matter in litigation and with which the opposite party has no concern.
    2. The question of the legality of a combination of railroads, known as the Central Passenger Association, having as its purpose the fixing of passenger fares within a given territory, can not be determined in a suit to enjoin ticket brokers ‘from selling certain limited non-transferable tickets; and such a combination whether lawful or otherwise does not so affect and taint the contract between one of the companies composing the combination and its passengers, that a court of equity will refuse to enjoin ticket brokers from doing with these tickets what they acknowledge to be unlawful.

      3. But a court of equity, unless the contract under consideration is itself unlawful and against public policy, will grant relief by way of injunction to restrain one who is not a party to the contract from seeking to induce others to violate the contract, to accomplish which they must do a wrong that is an offense to a court and amounts to a crime.
    4. Where the use of railway tickets by others than the original purchasers can only be effected by fraudulent representations, a court of equity will enjoin brokers from inducing purchasers to buy non-transferabe tickets, issued • by a railway company in combination with other companies under a passenger association agree ment.
    Caldwell, J.; Hale, J., and Marvin, J., concur.
    Heard on error.

       Affirmed by the Supreme Court (69 O. S., 339).

   A petition was filed in this case in the court of common pleas by the defendant in error to restrain John M. Kinner and others who are known as ticket brokers in the city of Cleveland from dealing in certain tickets issued by it to persons who were attending the encampment of the Grand Army of the Republic in the city of Cleveland in the month of September, 1901.

The tickets issued by the railway company were for round trips to Cleveland and to a return from the place of starting, and they were made non-transferable and were good only in the hands of the person to whom they were issued, and no other person could use the same except by fraudulently and unlawfully representing himself to be the one named in the ticket, and the party to whom the ticket was issued had entered into a contract evidenced by the ticket wherein he agreed to do all he could to further the intent and purpose of the railway company in issuing the same, and to this end, that he would not transfer it nor use it for any purpose other than that for which it was issued. ■ Many persons attending the encampment by means of such tickets, after coming to Cleveland, undertook to dispose of the same to the plaintiffs in error, and the plaintiffs in error were about to sell and were selling the same to persons to be used upon the railroad of the defendant in error. And, from thus unlawfully dealing in these tickets, this action was instituted and an injunction obtained from the court restraining the plaintiffs in error from dealing in the tickets as above set forth.

These .tickets constituted limited contracts, not transferable, and good only in the hands of the original purchaser. They were also limited as to the time of their use. They could not be used earlier than September 8, 1901, nor later than September 12, of the same year, unless certain arrangements were made in Cleveland through the agent of the railway company, who had power upon the performance of certain conditions stipulated in the tickets to extend the time within which the tickets could be used for a return passage, and, in accepting the ticket, the person agreed to be governed by all the conditions as stated, in the contract; and the tickets had marked upon them, “Account of the Grand Army of the Republic, National Encampment.”

First, a motion was made by the defendant below, to vacate the restraining order granted upon the petition, which motion was overruled, and thereupon the plantiff in error answered in that court, and the matters set forth in the answer, so far as necessary to speak of them here, are:

First. The plaintiff was engaged in a fraudulent conspiracy, and that the action brought in the petition was in the furtherance thereof.

Second. That the railway company has no standing in a court of equity by reason of the illegal acts which this suit is brought to protect and execute.

The acts of conspiracy on the part of the railway company are set out in great detail in the answer. Briefly stated, they are: That the railway company in this case, in conjunction with about twenty other railroad companies, entered into a combination and conspiracy for the purpose of suppressing competition among themselves in the business of transporting passengers to and from the encampment.' That this was accomplished through what is known as the “Central Passenger Association,” and that this association had its office in Chicago; that said association was composed of certain railroads of which the Lake Shore & Michigan Southern is one; and that this association had meetings by agents and representatives of all the companies parties thereto, including an agent and representative of the defendant in error, and that, at such meetings, rates had been fixed and forms of tickets had been agreed upon to be issued by all the companies to such combination, for the purpose of transporting passengers to and from the city of Cleveland during the said encampment of the Grand Army of the Republic.

Various acts are set out in the answer, done by these companies in furtherance of this unlawful combination, and it is then pleaded that the association of these railroad companies is contrary to the' laws of the United States and the state of Ohio; and that all the acts and things done by it in furtherance of the general illegal and unlawful design of the combination, are illegal and ought not to be protected or furthered by the aid of a court of equity.

When the case came on for trial in the court below, the plaintiffs in error put cn a witness who was asked many questions in regard to the way in which the Central Passenger Association is made up and in regard to its purposes and rules and regulations and various other matters pertaining to it and tending to connect the Lake Shore & Michigan Southern Railway Company with the Central Passenger Association. Each of these questions was objected to, and the objections were sustained, and counsel for the plaintiffs in error stated in the record what answers would be made to the questions if permitted to be answered, and the statements are responsive to the questions.asked.

The sole question made in this action is, whether or not the defendant in error as a member of a combination of railroad companies which had for its object the suppression and competition in violation of the federal statute in such case made, and whether the defendant in error can appeal to a court of equity to protect tickets issued by it of the kind, character and from agreed by said combination to be issued and, after issued, in danger of being fraudulently misused; or, in other words, had the defendant in error such a standing in a court of equity? Were its own hands so clean that a court of equity would intervene to protect it and the contracts or tickets issued by it ?

It appears from the record in the case, that whatever was done by the combination known as the “Passenger Association,” that the tickets issued and under consideration in this case were issued by each railroad separately, and that the contract of the passenger was with the road over which he took passage and with no other road, nor was his contract with the passenger association.

The plaintiffs in error insisted that they were not urging that the defendant in error can not be heard in a court of equity because it is a member of this illegal conspiracy, but for the reason that the tickets which it seeks to protect by the aid of a court of equity are themselves the subject-matter of an illegal agreement, each individual ticket being the product and result of, and in furtherance of, the agreement made between the defendant in error and the other roads.

Nor do the plaintiffs in error contend that these tickets are void as contracts between the railroad companies and purchasers. They are sold for a valuable consideration, and are agreements on the part of the railroad company to perform services in return for the money received and that the purchaser may insist upon the performance of that service, and the railroad company can not set up its own wrong to avoid the contract; and they insist that the contention could not be raised with regard to the ticket as a contract between the vendor and the purchaser.

They admit that their act was unlawful in that they were attempting to induce the ticket holders to break the contract which he had with tbe railroad company, and to accomplish the end sought, it became necessary that they should induce the person to whom they would sell the ticket to commit a fraud upon the railroad company by representing himself to be the person named in the ticket. •

The plaintiffs in error do not seek to attack in a legal sense the Central, Passenger Association in this proceeding; but say that, in order to accamplish that end, an action would have to be commenced and prosecuted as in United States v. Joint Traffic Assn., 171 U. S., 505 (19 Sup. Ct. Rep., 948), and in United States v. Freight Assn., 166 U. S., 290 (17 Sup. Ct. Rep. 540), and that they are here not seeking the relief that was obtained in those cases on behalf of the United States but they have narrowed their contention to the claim that if the defendant in error is engaged in an enterprise obnoxious to the federal statute, and the tickets here issued are sought to be protected as in futheranee of that enterprise, it can not ask the protection of a court of equity, and, on this ground alone, it is claimed that the injunction allowed is contrary to law, and that is the question before the court.

It is not necessary to cite authority to the point that a court of equity will not protect the subject-matter of an illegal contract and will not enforce an illegal contract.

The question, then, as we understand it, is this: A number of railroads furnish each a member of an association, which association, it is claimed, is organized for the purpose of keeping up passenger rates and stifling competition, and, hence, is against public policy and contrary to the anti-trust law passed by the congress of the United States in 1890; and that that association took some action in regard to the amount that should be charged for tickets from various states along the line of the railroad to persons attending the encampment. It is not shown, however, that the association went into such detail, nor that it did anything more than to determine that the persons attending the encampment should have passage thereto and return for one fare; and that, after such association, each railroad for itself made terms and sold the tickets for the round trip for one fare; and after the persons who bought the tickets arrived in Cleveland, the plaintiffs in error undertook to buy the tickets for the return trip contrary to the terms of the contract and in fraud of the defendant in error and illegally and unlawfully; and, thereupon, the defendant in error obtained an injunction against their so dealing with these tickets.

Under these facts, will a court of equity refuse the defendant in error relief against such unlawful dealing?

The defendant in error relies almost wholly upon the case of Delaware, L. & W. R. R. Co. v. Frank, 110 Fed. Rep., 689, in the United States Circuit Court for the Western District of New York.

That case is the one wherein the railroads made special terms to persons attending the Pan-American at Buffalo. It appears that the combination there made was, that the railroads agreed to pool their roads and their earnings upon such tickets and, at a time, divide the proceeds upon some basis determined by the association. In that regard the case differs from the one under consideration.

The defendant in error cites us to a case decided in San Francisco about the same time that Judge Hazel decided the case at Buffalo, and the cases seem to be at variance with each other. In the San Francisco case an injunction was. issued restraining scalpers from dealing in Epworth League excursion tickets, and in seeking dissolution of the order, the scalpers’ attorney urged that the railroad company did not come into the court of equity with clean hands, and that its combination with the other competing railroads by which the Epworth League scheme was brought about, was in violation of the provisions of the Sherman act by which it was made unlawful for competing railroads to fix rates; and it was urged that on this account, the tickets being themselves unlawful, the railroad could not restrain any one from dealing in them. We have not seen this case reported in any law report, but have been referred to a notice of the same, and in the notice it seems that Judge Murasky decided the case, saying that the rule requiring persons to enter a court of equity with clean hands applies equally to plaintiffs and defendants; and that the defendant, by his own affidavit, showed that he himself was engaged in an unlawful business which involved deceit, false personation and forgery, and that he who. asks the court to relieve his shoulders of the burden of an injunction upon any other ground than lack of jurisdiction, is expected to deny the equities of the bill and not to disclose an utter absence of right on his part.

Nashville, C. & St. L. Ry. Co. v. McConnell, 82 Fed. Rep., 65, is a ease much like the one before us, where the injunction was allowed.

In Baltimore & O. S. W. R. R. Co. v. Broome, in the Superior Court of Cincinnati, an injunction was granted July 9, 1901, the occasion being the Christian Endeavor convention.

The maxim of coming ‘into court with clean hands is confined by courts of equity to misconduct in regard to or connected with the matter in litigation, so that it affects the equitable relations subsisting between the two parties and arising out of the transaction. It does not extend to any misconduct, however gross it is, unconnected with the matter in litigation and with which the opposite party has no concern.

A court of equity will not shut its doors to the wicked and to those who are guilty of violation of law, simply because of the moral state of the person, but will confine the maxim to where the wrong-doing has directly affected the particular matter under consideration by the court. There is no contention in this case as to this matter between the parties hereto. The real question is: Does the illegal contract, set up in the answer, so affect and taint the contract between the railroad company and its passenger that a court will refuse to restrain the plaintiffs in error from doing what they acknowledge to be an unlawful thing.

In Strait v. Harrow Co., 51 Fed. Rep., 819, where a suit was brought to enjoin the infringement of a patent, the court say, on page 819:

“Such a combination may be an odious and wicked one, but the proposition that the plaintiffs, while infringing the rights vested in the defendant under letters-patent of the United States, is entitled, to stop the defendant from bringing or prosecuting any, suit therefor because the defendant is an obnoxious corporation, and is seeking to perpetuate the monopoly which is conferred upon it, by its title to the letters-patent, is a novel one, and entirely unwarranted.”

Further on, quoting now again, the court say:

“If the defendant had brought suit against the plaintiffs for some breach of contract or violation of its alleged rights, founded upon the combination agreement, then it might become pertinent to inquire into the character of the combination, and ascertain whether the court would enforce any rights growing out of it. But in a suit brought for the infringement of a patent by the owner, any such inquiry, at the behest of the infringer, would be as impertinent as one in respect to the moral character or antecedents of the plaintiff in an ordinary suit for trespass upon his property.”

In Bonsack Mach. Co. v. Smith, 70 Fed. Rep., 383, the plaintiff sued for an injunction against the infringement of a patent, and the defendant set up the conduct of the plaintiffs in attempting to obtain a monopoly, and the court held that it was no defense.

The Charles E. Wisewall, 74 Fed. Rep., 802. In this case, the defendants undertook to avoid payment of tonnage charges, on the ground that the complainant was a member of an association illegal under the Sherman anti-trust act. The language of the court is directly to the point under consideration and is to the effect that the answer was not well taken.

The purchaser of the ticket, having received compensation in part, and the railroad company being ready to fulfill the entire contract, and having dealt with the railroad company in regard to the ticket, he can not take the benefit of his bargain without paying the consideration. He can not receive the benefits of his contract without fully complying with the same himself.

Dennehy v. McNulta, 86 Fed. Rep., 825, 827. The court say that—

‘1 The mere fact that the corporation as one of the contracting parties may constitute an unjust monopoly, * * * can not serve ipso facto to create default or liability on its contracts generally; nor can such fact be invoked collaterally, in any manner to affect in any manner its' independent contract obligations or rights. ’ ’

LaFayette Bridge Co. v. Streator (City), 105 Fed. Rep., 729.

These cases are to the effect that the illegal combination of the railroads can not be drawn into .a suit in a collateral way; and that the relation between the railroad company and the ticket broker is so far foreign to the action of the passenger association, that it will not avail the plaintiffs in error in this case.

There are many cases cited in the brief of defendant in error which establish the point that courts will refuse to apply this maxim that a person must come into court with clean hands, for the benefit of persons seeking to evade a law. Chicago v. Stock Yards Co., 45 N. E. Rep., 430; Meister v. Alber, 36 Atl. Rep., 360 (85 Md., 73-84); Lew’s & Nelson’s Appeal, 67 Pa. St., 153, 166; Mossler v. Jacobs, 66 Ill. App., 571; United Protestant E. G. Congregation v. Stegner, 21 Ohio St., 488; Norton v. Blinn, 39 Ohio St., 145; National Distilling Co. v. Importing Co., 56 N. W. Rep., 864 (86 Wis., 352, 355); Sylvester v. Jerome, 34 Pac. Rep., 760 (19 Col., 128).

These cases and many others that we have examined establish these propositions:

Foran, McTight & Baker, for plaintiffs in error.

Brewer, Cook & McGowan, for defendant in error.

First — The unlawful combination between the railroad companies can not be tried and determined in this action.

Second — If that combination is unlawful and contrary to the anti-trust law of the United States, still the act of that association is not so directly connected with the contract under consideration that a court of equity will refuse to grant the defendant in error equitable relief.

Third — Unless the contract under consideration is itself unlawful and against public policy, a court of equity will grant relief by way of injunction to restrain one who is not a party to the contract but who is seeking to induce others to violate the same, and to accomplish that end must do a wrong that is offensive to a court of equity and which amounts to .a crime.

These conclusions being reached, it is clear that the plaintiffs in error are not entitled to have the judgment below reversed, and the judgment is affirmed.


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    ACTION ON GUARDIAN’S BOND.
    [Circuit Court of Lucas County.]
    Alvina A. Wegner v. John L. Wiltsie et al.
    Decided, February 7, 1902.

      Guardian and Ward — Bond of Guardian — Action on Accrues, when— Jurisdiction — Conclusions of Law and of Fact — Pleading.

      1. Ño cause of action accrues in favor of a ward on tbe bond of bis guardian until final settlement and adjudication of tbe account of tbe guardian in tbe probate court.
    2. Tbe death of tbe guardian without filing an account, and leaving no books of account or memoranda from which bis indebtedness to tbe estate can be ascertained, does not give tbe common pleas court jurisdiction on tbe bond of tbe guardian to compel an accounting and payment to tbe ward of tbe amount found due him.
    3. An allegation that under such circumstances tbe jurisdiction of tbe probate court is ineffectual for tbe purpose of obtaining an accounting, states a conclusion of law and not of fact to be taken as admitted on demurrer.

      Hull, J.; Haynes, J., and Parker, J., concur.
   This is a proceeding in error to reverse the judgment of the court of common pleas entered against the plaintiff upon a demurrer to the third amended petition, demurrers having been sustained to the petitions theretofore filed.

The action is founded on a guardian’s bond, and the petition sets forth in the first cause of action that:

“On November 21, 1896, Herman Baumbach was duly appointed by the Probate Court of Lucas County, Ohio, guardian of the property of the plaintiff, then fourteen years of age; that said Baumbach as such guardian entered into a bond as required by law, in the sum of $5,000, with Charles Hanner and J. L. Wiltsie as sureties, which said bond was duly approved by said court, and under the terms and conditions of which bond the said Charles Hanner and John L. Wiltsie were and are jointly and severally liable; that said bond was upon the condition that said Baumbach as such guardian should discharge with fidelity the trust reposed in him, and render an accurate statement of his transactions, with a just account of the profits arising from the real and personal estate of his said ward, and deliver up the same to the court, when thereunto required, a copy of which bond is hereto attached, marked exhibit ‘A.’
“There came into the possession and custody of said Baumbach as such guardian the sum of $22,500 in money, which belonged to and was the property of this plaintiff. Said Baumbach continued to act as such guardian and to administer said trust until on or about August 15, 1898, when he died, and in a short time thereafter, John N. Magee was duly appointed and qualified as guardian of the person and property of plaintiff, continuing to administer said trust until the plaintiff became of the age of eighteen years, to-wit, on March 26, 1900.
“On August 25, 1898, John E. Parsons was by the probate court of said Lucas county duly appointed and qualified as administrator of the estate of said Herman Baumbach, deceased, which estate then was and still is wholly insolvent. Said administrator filed Ms final account and was discharged by the probate court on or about June 8, 1899, without being able to acquire information by which he could settle up the account of said Baumbach as such guardian, although diligent and protracted search was made by said administrator to obtain the necessary information, there being an entire absence of boobs or papers that would enable him so to do; but as such administrator said Parsons delivered to said Magee, as such guardian, one promissory note of $400, one promissory note of $200 and $12.60 in cash then remaining in bank to the credit of said guardianship estate, which property was all that said administrator was able to discover belonging to said estate of the plaintiff. Said Magee, as said guardian, 'has filed his final account setting forth his dealings with respect to said property so coming into his hands from said Parsons, and such account has been duly approved and confirmed and said guardian discharged.
“Plaintiff avers that out of or from the said $2,500 received as aforesaid by said Baumbach, she has not been paid nor has she received the benefit, either directly or indirectly, of more than the sum of $1,362; and that said Baumbach failed to faithfully perform his duties and discharge with fidelity the trust committed to him, in that between July 2, 1897, and March 31, 1898, he wrongfully converted to his own use the remainder of the said property coming into his hands as such guardian.
“By reason of the negligence of said Baumbach, and his omission and failure to provide himself with proper books or memoranda, and for other reasons not known to this plaintiff, no account, either partial or final, was ever prepared or filed in said probate court by him in relation to said guardianship property; nor has this plaintiff, or any one in her behalf, been able, after diligent search, to discover any books, papers or other information which would show an accurate statement or the detailed transactions of said guardian, and an accounting can not be obtained from or with said guardian in the exercise of the power and jurisdiction of said probate court in respect to said estate, and such jurisdiction is ineffectual for that purpose.”

Then follows a second cause of action, setting forth that Charles Planner, one of the bondsmen, carried life insurance to the amount of several thousand dollars, with several life insurance companies that are named, the life insurance being in favor of his wife and children — some in favor of his wife and some in favor of the children. And it is claimed that under Section 3628, Revised Statutes, plaintiff is entitled to have a certain amount of this life insurance subjected to her claim, it being in excess of the amount that could be carried as against creditors, under Section 3628, Revised Statutes, as it then stood. And plaintiff prays that these defendants be required to answer and disclose the amount of life insurance carried upon the life of said Charles Planner, and a number of interrogatories are attached to the petition upon that subject; and asks “that an acounting may be had of said trust property in the hands of said Herman Baumbach, as aforesaid, and of his dealings with respect thereto as such guardian, and that the plaintiff may have judgment for the amount found due her, with interest thereon from March 1, 1898; that the amount of the liability of said Charles Planner on said guardianship bond be determined; that an accounting^ may be had as to said life insurance upon the life of said Charles Hanner, deceased, and the annual premiums or payments therefor; that the amount of each of the insurance premiums and annual payments or cost aforesaid be added together, and that only such portion of all of said insurance as the sum of $150 will bear to the whole of such annual premiums and payments be declared to belong to said beneficiaries, within the meaning of Section 3628, Revised Statutes, and that the residue of such insurance (or so much thereof as may be necessary) be ordered paid over to the plaintiff to be applied to the payment of her said claim and the liability of said Charles Planner on said guardianship bond. And for such other and further relief in the premises as the nature of the case may require and as in equity may seem meet and proper.”

To this third amended petition was filed a demurrer on the grounds:

First. That the plaintiff is without legal capacity to sue.

Second. That several causes of action are improperly joined.

Third. That separate causes of action against several defendants are improperly joined in said amended petition.

Fourth. That said amended petition does not state facts sufficient to constitute a cause of action against this defendant.

The demurrer was sustained by the common pleas court, as demurrers had been to the preceding petitions, and the plaintiff not desiring to plead further, judgment was rendered against her. And this is the judgment that is sought to be reversed in this court.

The claim on the part of the defendant in error, coming first to the fourth ground of demurrer, is that the petition does not state facts sufficient to- constitute a cause of action, for the reason that it does not show either that Herman Baumbaeh filed a final account as guardian of plaintiff and had that account passed upon and settled by the probate court, or that his administrator, John E. Parsons, ever filed such account with the probate court, or had any settlement thereon, or any adjudication of the probate court as to the amount due from Herman Baumbach, as her guardian, to plaintiff.

The claim is that no cause of action would accrue to the plaintiff until final settlement was had with the probate court, and adjudication of this account was had in that court. It is claimed by the plaintiff in error that if the allegations contained in the amended petition are true, as is admitted upon demurrer, it was impossible to have an accounting and settlement in probate court, and that in the language of the pleading, “an accounting can not be obtained from or with such guardian in the exercise of the power and jurisdiction of said probate court in respect to said estate, and such jurisdiction is ineffectual for such purpose,” and therefore it is urged by counsel for plaintiff in error, that the plaintiff had a right to file her petition in the court of common pleas without first having a settlement and accounting in the probate court, and that she may have an accounting in the court of common pleas with these defendants, and, the amount due her determined, and that she may recover judgment, and that they should be required to account to her for the excess of life insurance.

Section 524, Revised Statutes, providing for the jurisdiction of the probate court, provides, among other things, that—

“The probate court shall have exclusive jurisdiction, except as hereinafter provided: * * * to appoint and to remove guardians, to direct and control their conduct and settle their accounts.”

Unless this is a case where there can not be an accounting in the probate court, or can not be an accounting within the exercise of the power and jurisdiction of the probate court, then it is not a case where such an action can be maintained in the court of common pleas, for the probate court has exclusive jurisdiction of these matters.

There has been several decisions of the Supreme Court on this question. A case cited by counsel for plaintiff in error is found in Bricker v. Elliott, 55 Ohio St., 577, where it is held, as laid down in the syllabus:

“A suit to compel a trustee to account to the beneficiaries of his trust and for a judgment for the amount which, upon such accounting, may be found in his hands, is not an action for the recovery of money only; and from the judgment of the court of common pleas in such action either party may appeal to the circuit court.”

The only question decided in this case was that in such an action either party may appeal to the circuit court, and this was an action against a trustee to compel him to account to the beneficiaries, and not an action upon a guardian’s bond. On page 580 of the opinion, which was rendered by Judge Shauck, the court say:

“In the original petition the plaintiff did not allege an indebtedness for a definite amount due from the defendant. He alleged facts which excused him from doing so, by showing that, although the parties were adversary in the suit, they had not been so in the transaction out of which it arose. ’ ’

It is not necessary to discuss the facts in this case. It was a suit brought against a man who had been acting as a trustee for his mother and it was brought by her administrator, requiring him to account for money and property that came, into his hands. This authority is hardly applicable to the question before us now, which is whether this action can be brought against the bondsmen of Plerman Baumbach, as guardian of this plaintiff, for an alleged default in the guardian’s bond before there has been a settlement in the probate court, and that court has found and adjudicated the amount due from Baumbach to his ward.

Newton v. Hammond, 38 Ohio St., 430, it seems to us, is in point and decisive. A portion of the syllabus in the case is:

‘ ‘ The jurisdiction of probate courts over the settlement oi such accounts is exclusive.
“A right of action on a guardian’s bond to recover from the sureties the amount remaining in the hands of the guardian, first accrues to the ward when such amount is ascertained by the probate court on the settlement of the guardian’s final account.”

And the court say, on pages 434 and 435 of the opinion:

“The plaintiffs in error contend that ‘the right of action’ of the plaintiff below first accrued to him at his majority, at which time' he undoubtedly had a right to compel his guardian, by judicial process to perform his duty, to-wit, to make final -settlement and payment. We hold, that the ‘right of action’ meant by the statute is the right to prosecute a suit on the cause of action therein stated, and, as applied in this case, means a suit on the guardian’s bond. The right to sue on the bond, and the right to compel the guardian to render a final account are very different rights. The latter can be enforced only in the probate court, while that court has no jurisdiction over the former. Section 2 of the probate act (S. & C., 1212) gives to the probate court exclusive jurisdiction: ‘To appoint and remove guardians, to direct and control their conduct, and to settle their accounts;’ and by Section 1, Clause 4, of the act of March 26, 1872 (69 Ohio L., 50), it is made the duty of every guardian, ‘at the expiration of his trust, fully to account for, and pay over to the proper person, all the estate of his ward remaining in his hands.’ That the settlement of this final account is within the exclusive jurisdiction of the probate court is not disputed, but the claim of the plaintiff in error is, that the failure to make the account, and pay over the estate remaining in his hands, at the expiration of the trust, is a breach of the bond, for which a right of action immediately accrues to the ward. And in support of this claim, State v. Humphries, 7 Ohio (pt. 1), 223, is relied on, in which it was held that "a previous settlement of the accounts of a guardian was not necessary to an action on his bond. In that case, however, it was admitted that it had been settled by adjudication, * '* * that an action on an executor’s or administrator’s bond would not lie until after settlement of accounts, in the absence of a statute on the subject, yet, as the Legislature had subsequently adopted the rule as to executor’s and administrator’s bond, without including guardians, it was therefore held that an action on a guardian’s bond might be maintained without a previous settlement of his accounts, in accordance with a practice which had obtained in respect to other official bonds; namely, in respect to an insolvent’s bond and a clerk’s bond (3 Ohio, 508; 6 Ohio, 150), cases in which no accounting was required by statute. But Bartlett v. Humphries is of little or no -weight on the question now under consideration, for, as we have shown by reference to the act of March 26, 1872, every guardian is now required at the expiration of his trust to file a final account in the probate court, ‘fully to account for and pay over;’ that is, to account first, so that the amount in his hands may be judicially ascertained, and then pay over, etc.
“The settlement made in the probate court of the accounts ■of the guardian shall be final between him and his ward, unless an appeal be taken to the court of common pleas, or the same be set aside for fraud or manifest mistake. Section 31 of Guardian’s Act (S. & C., 677), and Section 33 of the same act provides: ‘When any guardian has died, or may hereafter die, before the settlement in court of his or her guardianship account, it shall be the duty of the executor or administrator of such guardian to settle up said account in the same manner as such guardian ought to have done..
“If an accounting can not be obtained from the guardian in the exercise of the power and jurisdiction of the probate court, we do not deny that an action on the bond against the makers may be prosecuted in a court of equity for an account and other relief; otherwise, such final accounting being a duty enjoined by law, and the enforcement of it being entirely within the jurisdiction of the probate court, a jurisdiction declared by statute to be exclusive, and that court performing a judicial function in finding the balance due upon such accounting under the power conferred upon it by statute, no action will lie against the guardian and his sureties on his bond for a breach thereof, for any balance due from the guardian to his late ward in a court of law, until such balance shall have been fixed by final settlement in the probate court.
“That an accounting must precede judgment is clear from the fact that the amount of the judgment can not otherwise be ascertained. Exclusive jurisdiction in the settlement of the account is given to the probate court. The probate court has no jurisdiction in an action on the bond.”

This ease and one or two other cases seem to decide clearly and finally that unless the jurisdiction of the probate court has been ousted in some way, or it is impossible to settle the matter within the jurisdiction of the probate court, an action can not be maintained upon the guardian’s bond until there has been a settlement and adjudication of the amount due in the probate court.

Gorman v. Taylor, 43 Ohio St., 86, paragraph three of the syllabus is as follows:

“A suit in equity on a guardian’s bond, to compel an account can not be maintained without a showing that the powers and jurisdiction of the probate court are ineffectual to secure such accounting. ’1

And it is held in Braiden v. Mercer, 44 Ohio St., 339, that the settlement in the probate court is conclusive and final against the sureties. The syllabus is:

“In an action upon a guardian’s bond for the recovery of the amount found due the ward upon a final settlement of the guardian’s accounts in the probate, court, the sureties are concluded by the settlement, and will not be heard, in the absence of fraud and collusion, to question its correctness or to demand a rehearing of the accounts. ’ ’

It is sought to avoid these decisions of the Supreme Court and the law as therein established by the allegations in the amended petition that Baumbach kept no books or memoranda of accounts whereby it could be ascertained how much was due from him to his ward, and therefore it was impossible to compel any account or have any settlement of Bumbach’s account; and the further allegation, “that an account can not be obtained from or with said guardian in the exercise of the power and jurisdiction of the probate court with respect to said estate, and such jurisdiction is ineffectual for that purpose.” This last averment is purely a conclusion of law. It is not an allegation of fact to allege that the probate court is without jurisdiction or that an accounting can not be had within the exercise of the power and jurisdiction of- that court, or that such jurisdiction would be ineffectual ; it is necessary to plead facts to show that that is the case.

We are of the opinion that the first cause of action in this petition does not state facts sufficient to constitute a cause of action ; and if the first cause of action falls, the second must fall, for it is based upon it. And there is in fact but one cause of action. That is the claim which plaintiff has against the bondsmen and their representatives. The fact that Baumbach kept no boobs or accounts and left no memoranda behind him did not oust the jurisdiction of the probate court. It might make it more difficult to ascertain in what amount if any he was indebted to his ward, but it would not affect the jurisdiction of the court or render the jurisdiction of the court ineffectual, and it would be no more difficult to ascertain in the probate court in what amount he was indebted to his ward than it would be in the court of common pleas or in this court. It would be a matter of accounting, a matter to be determined by the court from such evidence as could be offered, such papers and memoranda as could be found; and the adjudication of the probate court upon this question, as decided by the Supreme Court, would be final as against the surety in the absence of fraud or mistake or collusion.

George A. Bassett, for plaintiff in error.

Kinney & Newton, for Louis Hanner et al.

We are unable to see how these allegations in the petition to which reference has been made take the case out of the rule established by these decisions of the Supreme Court, or afford any substantial reason or ground why an accounting should not be had in the probate court and this matter determined there. It is not necessary to state or discuss the rules of law or evidence that would apply in a hearing of that kind. The whole matter is within the exclusive jurisdiction of the probate court. There has been no settlement or finding or adjudication of that court fixing the amount due from Baumbach to his ward, and the court of common pleas had no jurisdiction to require an accounting and settlement or make a finding thereon.

Being of this opinion as to this branch of the ease, it is not necessary to discuss the second claim of the plaintiff that the life insurance in a certain amount should be applied to plaintiff’s claim. If plaintiff can not maintain her action against Baumbach ’s bondsmen, for the breach of the guardian’s bond, she of course is not entitled to an accounting against the children and the widow of the bondsman Hanner for the excess of life inr suranee.

We are of the opinion that the court of common pleas was . right in sustaining the demurrer. Holding as we do, that the petition does not state facts sufficient to constitute a cause of action, it is not necessary for us to discuss the other grounds set up in the demurrer.

For the reasons stated, the judgment of the court of common pleas is affirmed.


text:
    EVIDENCE OF INTENT.
    [Circuit Court of Jefferson County.]
    William Coles v. State of Ohio.
    Decided, November Term, 1901.

      Criminal Law — Intent a Substantive Part of the Offense, When — Reviewing Court will Consider Quantum of Proof^-As to Compelling a Defendant to Be a Witness against Himself — By Exhibiting Himself to the Prosecuting Witness.

    1. The intent in a trial under an indictment charging assault to rob and assault to rape in two counts, is a substantive part of the offense, and must be established beyond a reasonable doubt.
    2. Where a woman is struck from behind with a piece of gas pipe, the intent to wound is manifest, but it does not follow that no other purpose existed; and where she carried a gold watch and chain, which could be plainly seen in her belt, and there was no ill feeling between herself and her assailant, and the blow was struck in a dark place away from the street lights, a reviewing court in considering the quantum of proof necessary to convict will uphold a verdict of guilty of intent to rob.
    3. It is not a violation of the constitutional provision, that no person shall be compelled in a criminal case to be a witness against himself, for the trial judge to require him, over the objection of his counsel, to stand up for better identification by the prosecuting witness.
    Cook, J.; Burrows, J., and Laubie, J., concur.
    Heard on error.
   Two questions are made in this case by counsel for plaintiff in error:

First. That the verdict is not sustained by the evidence. Second. 1 That the action of the court upon the trial, by which the accused was compelled to stand up for the better inspection of his person by the prosecuting witness, was a prejudicial violation of his constitutional privilege and rights.

Upon the first proposition the special complaint of counsel is that the evidence was not sufficient to show the intent.

The accused was charged in the indictment with assault with intent to rape and with assault with intent to rob. The jury convicted of assault with intent to rob. In determining the question, we concede the correctness of the claim of counsel that the intent in a case of this character is a substantive part of the offense, and that, in order to convict of the higher offense, the intent must be established beyond a reasonable doubt; and that, in reviewing the judgment of the lower court upon this question, this court must take into consideration the amount of proof necessary to work a conviction; and if the verdict is clearly against the weight of evidence, taking into consideration the amount of proof required in a criminal case, then the action of the lower court in rendering judgment upon'the same should be reversed.

Under this rule, was the evidence sufficient to show the intent? Coles was standing on the corner of Adams and Fifth streets when the prosecuting witness came up Adams street and turned down Fifth street southwardly. He immediately followed her, and when she got to the gate or close to the gate of her home, about half way down the square, struck her upon the head with a piece of gas pipe, stunning her; but she did not entirely lose consciousness, and screamed three times. Coles immediately desisted and ran up an alley immediately opposite the place of assault and out to his own home. The prosecuting witness had a gold watch and chain upon her person, the watch being in her belt, the place where she ordinarily carried it, and where it could be plainly seen. She had gone to her home in the same direction from her work, three or four squares away, for several months previously, two or three times a day. Coles was a resident of the city and had been all his life and lived a few squares from where the prosecuting witness lived. He is a negro about eighteen years of age, and she a white girl twenty-four or five years of age. There is no evidence of any grudge; indeed, she did not know Coles. Simon Loftus was about a square away and heard her scream and immediately ran to her reseñe, but did not see Coles in his flight. When he got to her she was leaning over the gate partially unconscious. Nothing was disturbed upon her person.

Were these facts sufficient to justify the jury in rendering a verdict of guilty with intent to rob. We think they were.

The accused must have had some intent in striking the girl, beyond the malicious purpose of injuring her. It is true that, in striking her with a piece of gas pipe, the natural conclusion is that he intended to kill or at least wound her; that intent follows and is presumed from the use of such a weapon. It may be contended that his purpose was to wound her, but it does not follow that he had no other purpose; or that the wounding of her was not to accomplish the ultimate purpose to rape or rob. There is nothing illogical in holding that both intents were in his mind, the one being necessary to accomplish the other. It is hardly conceivable that he struck her for the purpose of wounding alone. There was no motive at all for simply wounding her; no ill feeling; no quarrel; nothing of that character. "Why, therefore, did he follow her down the street, out of the glare of the electric light and secretly strike her with the weapon! It could only be for the purpose of rape or robbery; the jury found the latter, and we think from the evidence they found correctly.

The next question is a more difficult one. During the .examination of the prosecuting witness, while upon the stand in her direct examination, the following took place:

Prosecuting Attorney Lewis: “State if you could recognize the person who struck you there as he was running away from you. ,

“A. No, sir, I could not.
“Lewis: Stand up, Coles (speaking to the defendant). Turn your back to the witness.
“Defendant objects to this.
“Court: I think that is all right.
“Mr. Erskine (Attorney for Coles): Wte object to that.
‘ ‘ Court: He may remain standing a minute.
“To this the defendant then and there excepts.
“Witness: The size of that man fills the bill.
“Court: The answer is stricken out.
“Erskine: We object to the order of the court to have the defendant stand up. (Overruled; to which ruling of the court the defendant then and there excepted).
“Q. Now state to the jury whether the person that you saw running, how he compared, if at all, with the person of the defendant! (Objected to; sustained).
“Court: Let her state her recollection of his size.
“Q. State as to whether the person you saw was taller or shorter or the same size as the defendant. (Objected to; sustained) .
“Court: Let her state what kind of a man he appeared to be.
1 ‘Q. State ?
“A. He was a short man, and the size of that man fills the bill.
“Court: The latter part of the answer is stricken out; the jury will pay no attention to that remark.”

Prom these proceedings it will be seen that the accused, over the objection and protest of his counsel, was required by the court to stand up and turn his back to the prosecuting witness in order to assist her in identifying him, if possible, and, by his standing up, she was enabled to state that the man that assaulted her was a short man like the accused.

Was this action of the court a violation of the rights of the accused under Section 10 of our Bill of Rights or the Fifth Amendment to the Constitution of the United States? The provisions are practically the same. The Bill of Rights provides:

“Nor shall any person be compelled, in any criminal case, to be a witness against himself.”

Nearly every state in the Union has similar provisions in their organic law. In some of the states the provision is: “Such person shall not be compelled to give evidence against himself,” the phraseology being slightly different but of the same legal effect. Note to State v. Ah Chuey, 33 Am. Rep., 530, 540.

The solution of the question is not free from difficulty from the adjudicated cases. The accused was required to stand up and turn his back to the prosecuting witness, in order that she-might compare him with the person who fled after striking her. It would seem as if that was requiring him to give evidence against himself; but at the same time. he was exercising his right to face his accusers, and, being in court, would be under the control of the court for all fair and reasonable purposes. So far as we have been able to ascertain, there are no reported cases in this state bearing upon this question, either of our Supreme Court or of our lower courts; and in other states the authorities are conflicting.

People v. Mead, 15 N. W. Rep., 95 (50 Mich., 228); State v. Jacobs, 5 Jones Law R. (N. C.), 259; Blackwell v. State, 67 Ga., 76 (44 Am. Rep., 717); Stokes v. State, 5 Baxt., 619 (30 Am. Rep., 72); State v. Ah Chuey, 33 Am. Rep., 530, 540; People v. Gardner, 144 N. Y., 119 (38 N. E. Rep., 1003); Johnson v. Commonwealth, 115 Pa St., 369 (9 Atl. Rep., 78); State v. Reasby, 69 N. W. Rep., 451 (100 Ia., 231); Day v. State, 63 Georgia, 669.

In State v. Jacobs, supra, the court says:

“A judge has not the right to compel a defendant in a criminal prosecution to exhibit himself to the inspection of the jury for the purpose of enabling them to determine his status as a free negro.”

In Stokes v. State, supra, it is held:

“On an accusation of murder, it being claimed that certain footprints were those of the prisoner, the prosecuting attorney brought a pan of mud into court and placed it in front of the jury, and having proved that the mud in the pan was about as soft as that where the tracks were found, called on the prisoner to put his foot in the mud in the pan. On objection the court instructed the prisoner that it was optional with him whether he would comply. The prisoner refused, and the court instructed the jury that his refusal was not to be taken against him. The prisoner being convicted — Held: He was entitled to a new trial.”

In Blackwell v. State, supra, the court held that:

“On a trial for murder the extent of an amputation of one of the prisoner’s legs being a material question, it is error to ¿compel the prisoner to exhibit his leg to the jury.”

In Day v. State, supra, the court held:

“Evidence that a witness forcibly placed defendant’s foot in certain tracks near the scene of the burglary, and that they were of the same size, is not admissible.”

. A defendant can not be compelled to criminate himself by acts or words. The court say:

“By the Constitution of this state no person shall be compelled to give testimony in any manner to criminate himself; nor can one, by force, compel another against his consent to put his foot in a shoe track for the purpose of using it as evidence against him on the criminal side of the court.’

In People v. Mead, supra, the court held:

“A prisoner on trial for crime can not be required, against objection, to try on a shoe to determine whether tracks found at the scene of the offense were his own; nor if he objects can he properly be require to measure the shoe after trying it on.”

In State v. Ah Chuey, supra, it was held:

“In a criminal case on a question of personal identity a witness testified that the defendant had certain tattoo marks on his person. The court compelled the defendant, against his objection, to exhibit his person to the jury — Held: No error.”

The decision in the ease was by a divided court, and we think the dissenting opinion of Leonard, J., is the better reasoning upon the facts of that case.

In State v. Reasby, supra, it was held:

“During the trial of a criminal ease the defendant’s brother, who greatly resembled him, took a seat by his side as a test of identity. At the request of the attorney for the state, the judge ordered the defendant to rise for identification against the objection of his attorney. The prosecuting witness then identified the one who stood up as the one who committed the offense charged. Held: That the action of the court in compelling the defendant to rise was not error, as compelling him to criminate himself.”

In People v. Gardner, supra, it was held:

“Upon a trial of an indictment for an attempt to commit the crime of extortion, a witness called for the purpose of identifying the defendant as the individual in company with the prosecutrix upon an occasion having a material bearing on the case, testified that he did not know him, but would know him if he saw him. Thereupon defendant, by direction of the court, and against the objection of his counsel, was compelled to stand up and was then identified by the witness. Held: That the direction was not error; that this was not a violation of the constitutional provision protecting a person from being compelled in a criminal case to be a witness against himself under the Fifth Amendment of the United States Constitution and Section 6, Article I of the Constitution of New York.”

In Johnson v. Commonwealth, supra, it was held:

“Whether it would have been error, had. timely objection been made and exception taken to the request of the district attorney to the prisoner to stand up and repeat certain words, is not decided, as the question was not properly presented to the court.”

Per Sterrett, J.:

“To hold that this was a violation of the clause in Section 9 of the declaration of rights, which declares the accused ‘can not be compelled to give evidence against himself’ would in my judgment be a strained construction of that instrument.”

From the foregoing authorities it will be observed, as we have said, that there is great disagreement in the courts of final resort in the different states upon the question involved. To attempt to review the reasons given in the different cases for the decisions made would take a great deal of space and throw little additional light upon the question.

We are impressed with the reasoning of the learned judge delivering the opinion in the ease of People v. Gardner, supra, and, while there may be some doubt upon the question, we have concluded to follow that case. In the opinion, Earl, J., says:

“It is now claimed on his behalf that this action on the part of the court violated his constitutional rights, by compelling him to be a witness against himself (N, Y. Const., Article I, Section 6; U. S. Const., Amendment 5). We do not think that the defendant’s constitutional right was violated, or that he was compelled, within the constitutional provisions referred to, to give evidence against himself. He was bound to be in court and in the presence of the jury, the recorder and the witnesses who might be there. The recorder, the jurors and the witnesses had the right to see him and he had the right to see them. It was necessary that he should be identified as the person named in the. indictment and charged with the crime. * * * There was nothing on his person or in his appearance that' in any way connected him with the crime, or furnished any evidence whatever of his guilt. Suppose he had come into the court with his face veiled, could not the recorder compel him to remove the veil that his face might be seen? Could he not compel him to remove his hat; to stand or sit in the prisoner’s dock? In the examination of the witness could not the district attorney have pointed to the defendant and asked the witness whether he was the person he had seen with Mrs. Amos ? Instead of compelling the defendant to stand up, could not the recorder have directed the witness to go to the place where he was and look at him with the view of identifying him? If all these things could be done without violating the rights of the prisoner, how is it possible to say that he was harmed, or that his constitutional right was invaded by compelling him to stand up for the purpose of identification? For the orderly conduct of a criminal court it is requisite that the trial judge should have the power to say what place the prisoner shall occupy in the court room, whether at any time he shall stand or sit, and be covered or uncovered; and he must have the power at all times to keep the prisoner within sight of the court, the jury, the counsel and the witnesses. ’ ’

Erskine & Erskine and Dio Rogers, for plaintiff in error.

A. C. Lewis, for defendant in error.

In this ease the accused was required to do nothing further than he ordinarily would do in coming into and returning from the court room during the trial, and the prosecuting witness would have had the same opportunity to observe him as. she did when he was required to stand up and turn around while she was testifying upon the stand.

This exception will, therefore, be overruled.

We have examined the entire record carefully and find no error.

The judgment will be affirmed and the cause remanded.