text:
    AN UNCONSTITUTIONAL PROVISION IN THE MUNICIPAL CODE.
    [Circuit Court of Cuyahoga County.]
    Henry G. Slatmyer, John Goetz and Albert G. Daykin, as the Market House Commission of the City of Cleveland, Ohio, v. W. J. Springborn, Daniel E. Leslie and Harris R. Cooley, Board of Public Service of the City of Cleveland.
    Decided, December 24, 1903.

      Constitutional Law — Municipal Code — The Provision Limiting its Operation — With Reference to Market House Commissioners in the City of Cleveland.

    It is impossible that a law of a general nature having a uniform operation throughout the state should contain a legal provision suspending its operation in a single city of the state for an indefinite time. The provision, therefore, found in Section 216 of the Municipal Code, “that any person or persons hereafter appointed pursuant to the provision of an act entitled, ‘an act relating to market houses in cities of the second grade of the first class,’ passed April 26, 1898, or by whatever authority for the purpose provided herein, shall continue to act for the purposes for which he or they were appointed, with the powers herein granted and no others, until the completion of the improvement in connection with which they were appointed,” is in contravention of the Constitution of the state and invalid.
    Marvin, J.; Hale, J., and Winch, J., concur.
    Appeal by defendants.
   Tbe plaintiffs in their petition set out that they were severally appointed members of the Market House Commission of the City of Cleveland on the 12th day of August, 1901, by the mayor of said city, and together they constitute such commission by virtue of such appointment.

They severally subscribed to- a prescribed oath of office to honestly and faithfully perform their duties as members of such commission, and they gave bonds as required by law, which bonds were duly approved by said mayor, and they thereafter entered upon the performance of their duties as said commission, and since said time have been acting as said market house commission.

The defendants, W. J. Springborn, Daniel E. Leslie and Harris R. Oooley, are the duly elected, qualified and acting board of public service of said city of Cleveland. The defendants claim as such board of public service to have the right to interfere with the performance- of -any duties by said plaintiffs as such market house commission, and unless restrained by the order of the court, will take possession of all the property, books, papers, documents, muniments of title, money and property of every kind, sort and description in the hands of the plaintiffs relating to the erection of *a market house in said city of Cleveland, and will wholly prevent the plaintiffs from performing any duties as such commission.

To this .petition the defendants filed a general demurrer. By leave of the court the plaintiffs, after the case was appealed to this court, filed an amendment to their petition, in which they set up a certain resolution adopted by the defendants as such board of public service, and the demurrer mentioned is here treated as a demurrer to the petition as amended, the ease being submitted upon the petition as amended, and the demurrer.

The plaintiffs were appointed as members of this commission by virtue of Revised Statutes, Section 2581-8, passed on the 26th day of April, 1898. This section provided for the appointment by the mayor of a market house commission consisting of three members, who shall • serve for the period of five years and until their successors are appointed and qualified. This statute was repealed by the new Municipal Code, passed October 22, 1902. The enactment of the present Municipal Code, which was done at an extraordinary session of the Legislature called together expressly for the purpose of passing such a code for the organization and government of municipalities as should have a uniform operation throughout the state, and avoid that classification which had before existed and ■wbicb had been recently declared by the Supreme Court to be obnoxious to the Constitution. By the terms of the act itself, the new code, so far as it repealed existing laws, and for all purposes having any bearing on the case under consideration, took effect on the first Monday in May, 1903. Unless then by reason of some other provision of the act, or some other fact to be hereafter considered the plaintiffs still hold their positions, they ceased to be members of the market house commission on that date.

Whatever rights the plaintiffs have to hold the positions claimed by them as members of the market house commission, and as constituting such commission,- they have by virtue of Section 216 of the Municipal Code, passed October 22, 1902, or by virtue of a resolution adopted by the board of public service of the city adopted on the 4th day of May, 1903.

By Section 138 of the act, a department of public service for all cities is created, to be administered by either three or five directors, as may be determined by the council, these directors to organize as a board to be known as the “board of public service.”

By Section 139 it is provided that—

“The directors of public service shall be the chief administrative authority of the city, and shall manage and supervise all public works and all public institutions, except where otherwise provided in this act.”

Section 140 provides that—

“The directors of public service shall supervise the improvement and repair of * * * market houses, and the construction of all public improvements and public works, except as otherwise provided in that act.”

Section 141 gives the management of all market houses to the directors of public service.

Section 145 provides that:

“The directors of public service may employ such * * * persons as may be necessary for the execution of the powers and duties of this department, and may establish such sub-departments for the administration of affairs under sub-directors as may be deemed proper.”

One of the provisions of Section 216 is in these words:

“Provided, further, that whenever any city has in contemplation or in process of' construction any market house or houses, or public hall in connection therewith, the directors of public service may provide for the employment of three citizens of such city, to be named by them, who shall constitute a commission, which shall have power, subject to the approval of the directors of public service, to contract, in the name of such city, for and supervise the building and furnishing of, any market house or houses or public hall in connection therewith, for such city.”

A further provision of said Section 216 — and this is the provision under which the plaintiffs claim their right to maintain this action — is in these words:

“Provided, further, that any person or persons heretofore appointed pursuant to the provisions of an act entitled * * * ‘an act relating to market houses in cities of the second grade of the first class,’ passed April 26, 1898, or by whatever authority for the purpose provided herein, shall continue to act for the purposes for which he or they were appointed, with the power herein granted and no others, until the completion of the improvement in connection with which they were appointed.”

The- statute under consideration is entitled “An act to provide for the organization of cities and incorporated villages,” etc.

Section 6 of Article XIII of the Constitution provides that “the General Assembly shall provide for' the organization of cities and incorporated villages by general laws,” etc.

It seems clear, then, that this statute is an act of a general nature. The section of the Constitution just quoted shows that it must be, and the provisions of the act hereinbefore quoted or referred to are such that, even’ in the absence of the constitutional provision that acts for the organization of cities and villages shall be provided for by general laws are clearly of a general nature, except the last quotation made from Section 216.

In the case of Silberman et al v. Hay, 59 O. S., 582, in the opinion, on page 587, Judge Minshall says:

“It is well settled that the ‘general nature’ of a law must be determined by its subject matter; if this be general, the law must be general.”

We have, then, to consider an act of a general nature, and it being such an act, it must, by virtue of Section 26 of Article II of the Constitution, have a uniform operation throughout the state. Unless it has such uniform operation it is obnoxious to this provision of the Constitution.

The last quotation hereinbefore made from Section 216 of the act seems a plain declaration that the act shall not have uniform operation throughout the state. It is there provided that, notwithstanding the earlier provisions of the act, that the board of public service shall have control of market houses and the construction of all public works, and may appoint a board for the construction of market houses. Still, this shall not be the case in- any city in which, by virtue of an appointment under Revised Statutes, Section 2581-1, there has heretofore been a market house commission. There can be no such commission under such appointment in any city but the city of Cleveland.

In the case of Silberman et al v. Hay, supra, in speaking of an act general in its terms, but which can apply to no part of the state except Cuyahoga county, Judge Minshall says this:

“But, if its subject matter is not a proper subject of local legislation, this attempt to give it the form of a general law can be of no avail, as has been frequently decided by this court. It is manifestly a local law, intended to apply to Cuyahoga county, and can apply to no other.”

And he says, speaking of this statute:

“We entertain no doubt of the invalidity of this law.”

What has already been quoted from the same opinion gives the reason why no such doubt was entertained by the court. The same reasoning applied to the clause of the statute now under consideration, and under which the plaintiffs claim their right to act as a market house commission, results in leaving no doubt of the invalidity of that clause of the statute. To hold otherwise would be to say that a law which goes into effect in all parts of the state except the city of Cleveland in May, 1903, and shall not go into effect in that city until an indefinite time in the future, has a uniform operation throughout the state. In all other cities, by virtue of this statute, if a market house is to be built, the entire subject of such building is under the supervision of the board of public service and its appointees, and that from the day the statute went into effect. In the city of Cleveland it may be one year, it may be five years, before the erection of a market house, will be under control of the same board as is provided for all the other cities of the state. This seems to us to completely settle the proposition that this provision is obnoxious to Section 26 of Article II of the Constitution.

Another reason why it seems clear that the plaintiffs are not entitled to continue in the performance of the duties of a market house commission is that the statute under which they were appointed is clearly an act of a general nature relating to a subject, which, in the nature of things, is general in the cities of the state, -and yet that act confines its operations to cities of the second grade of the first class, of which there was but one at the time the statute was enacted, and therefore that act was invalid as being in contravention of the constitutional provision, that all acts of a general nature shall have a uniform operation throughout the state. This being true, the only possible ground on which the plaintiffs could be entitled to continue in the performance of the duties of a commission must be that, though they were appointed under an unconstitutional statute, such statute can be made valid and legal by the enactment of another unconstitutional statute. If the statute under which these plaintiffs were appointed was unconstitutional, then they were not at the time of the enactment of the Municipal Code members of and 'did not constitute a market house commission. That being true, we have this situation:' That in all cities of the state except one the board of public service, from and after the first Monday in May, 1903, had full control of the erection of market houses, either by themselves or through persons appointed by them, yet in the city of Cleveland certain men not at the time the code was enacted having any legal right to act as a market house commission, are, by virtue of that code, made a market house commission for the city of Cleveland alone. Surely it would seem as though there can be no doubt that this would be in violation of the provision of the Constitution already quoted.

It is possible that but for the recent decisions of the Supreme Court of the state a different conclusion might have been reached, and it might have been held that, owing to the peculiar circumstances existing in the city of Cleveland at the time of the enactment of the statute of April 26, 1898, it was necessary that a commission should be appointed for that city which would not justify such appointment in the same way in any other city; but however that may be, the Supreme Court has decided in unmistakable terms that the efforts which have been made and to a greater or less extent permitted to prevail to avoid the provision of the Constitution referred to will no longer be tolerated.

The only other authority under which the plaintiffs claim the right to continue as such market house commission is by reason of the adoption of a resolution by the board of public service on the 4th day of May, 1903, in these words:

“Be it resolved by the board of public service that until further order of this board, all officers and employes heretofore appointed in connection with a department or division of the government of the city of Cleveland, and performing any functions which by the act of October 22, 1902, taking effect this 4th day of May, 1903, is placed under the authority, supervision and control of this board, shall continue in the employ of the city of Cleveland without further order under the designation heretofore attaching to said employment and at the salary heretofore paid therefor, and that the division and organization heretofore existing in all such work shall be maintained and shall continue until the same shall be changed in accordance with law. The object and purpose of this resolution being to legalize the employment of all persons now in the city’s employ heretofore operating under any other authority as predecessor to this board, and to preserve the orderly conduct of the affairs of this city and the performance of all such public work as is under the care and maintenance and control of this board.”

The only claim that can be made under this resolution is that the board of public service has appointed the plaintiffs to perform their duties as a market house commission by virtue of a provision of Section 216, hereinbefore quoted, which reads:

J. G. Hutchins, Goulder, Holding & Hasten, for plaintiffs.

Newton D. Baker et al, for defendants.

“Provided, further, that whenever any city has in contemplation or in process of construction any market house or houses, or public hall in connection therewith, the directors of public service may provide for the employment of three citizens of such city, to be named by them, which shall constitute a commission,” etc.

Clearly this resolution was not adopted by the board of public service with a view of making any appointments under this provision of the statute, but only that the affairs of the city in connection with their department should not fall into confusion until such time as they might, in pursuance of the authority vested in them by the statute, take control of the various matters entrusted to them, and the resolution itself provided that those employes of the city referred to in the resolution were only to continue in their employment until the further order of the board; and the petition in this ease shows that on the 19th day of June, 1903, a resolution was adopted by the board of public service discontinuing all action of the market house commission, and requiring them to turn over to the board of public service all matters and property in their hands pertaining to the market house, and on the 20th of June, 1903, the plaintiffs received notice from the board of public service of this action, so that, whatever authority they derived from the resolution of May 4 was ended by the resolution of June 19.

A peculiarity of the statute under consideration, which probably would not exist but for the want of time on the part of the Legislature in preparing its several sections, .is, that whereas, by Section 138 it is provided that the directors of public service shall organize a board of public service, yet in each of the sections following in which provision is made for the duties of such officers, instead of the term “board of public service” being used, the language in each section is “the directors of public service.” As has been said, this has no bearing on the case before us, but is noticeable in the consideration of the statute.

Entertaining these views, the demurrer to the petition is sustained.

      Reversing Slatmyer et al v. Springborn et al, 1 N. P. — N. S., 157, as to the constitutionality of the provision in question.


source: Caselaw Access Project

license: Public Domain

text:
    LIABILITY OF COUNTY COMMISSIONERS FOR. WRONGFUL DEATH.
    [Circuit Court of Cuyahoga County.]
    Henry T. Rahe, Administrator, v. The Board of Commissioners of Cuyahoga County.
    Decided, June 25, 1904.

      County Commissioners — Liability of — For Failure to Keep County Bridge in Repair.

    Under favor of Sections 845 and 6134, Revised Statutes of Ohio, an action may be maintained against the county commissioners in their official capacity, by the administrator of one whose death is the result of the negligence of the commissioners in failing to keep a county bridge in repair.
    Winch, J.; Hale, J., and Marvin, J., concur.
    Error to the court of common pleas.
   Plaintiff, as administrator of Charles Gessner, deceased, filed his petition in the Common Pleas Court of Cuyahoga County against the board of commissioners of said county in their official capacity, alleging that his decedent came to his death in crossing a bridge on one of the county roads of said county, by reason of the negligence of said commissioners in failing to keep said bridge in repair. Damages in the sum of ten thousand dollars was claimed for the benefit of the widow and surviving children of said decedent.

A general demurrer to the petition was filed by the defendants and sustained by the court below, and judgment rendered against the plaintiff. Thereupon petition in error was filed in this court which brings before us for consideration and review a question raised by the demurrer, and argued to us, to-wit, Will an action for wrongful death lie against the commissioners of a county ?

This question was before this court in the unreported ease of Rose v. Board of County Commissioners, several years ago, and then answered in the negative, the court affirming the decision of the common pleas court for the reasons stated in the opinion by Judge Phillips of that court.

That opinion held that Section 845, Revised Statutes of Ohio, which provides that county commissioners shall be capable of suing and being sued in eases involving injuries to public, state and county roads, bridges, ditches, drains and watercourses established by such boards in their counties, and that “any such board of county commissioners shall be liable in their official capacity for any damages received by reason of the negligence of said commissioners in keeping any such road or bridge in repair,” did not by its terms create a liability in favor .of anybody arising out of the death of a person resulting from such negligence; that Section 6134, which provides that in case of the wrongful death of any person, an action may be maintained by the administrator or executor of the ;stat • of such person against the corporation which or the person whc would have been liable if death had not ensued, did not by its terms authorize the action against the county or its commissioners, because the county is not a corporation, and that both of said statutes being in derogation of common law, must be strictly construed.

An able brief has been presented by counsel for plaintiff in error, suggesting strong reasons why the court should reverse itself and this case, and we have thoroughly reviewed the reasons and authorities supporting his claim.

It is not suggested that Section 845 itself specifically provides a remedy in case of wrongful death by reason of the negligence of the commissioners, but that when read in connection with Section 6134, a liberal construction of the two statutes would authorize the bringing of an action therefor against the county commissioners in a proper case, although it is admitted that at common law an action for wrongful death would not lie.

It is claimed the decision in the Rose ease, while logical, reaches a wrong conclusion because its premise is wrong. The argument in that case was: Statutes in derogation of the common law must be strictly construed; Sections 845 and 6134 are in derogation of the common law, therefore they must be strictly construed.

It is suggested that the proposition should be stated as follows: Remedial statutes are to be liberally construed; Sections 845 and 6134 are remedial statutes; therefore they are to be liberally construed.

The wrong premise is evidently in the latter statement. These statutes, while in one sense they provide remedies for existing evils, do more than that; they create rights and liabilities; they make causes of action where before none existed. Such was the holding in the case of P., C. & St. L. R. R. Co. v. Hene, Admx., 25 O. S., 629; on page 634 of the opinion, Judge Gilmore, speaking of the act of 1851, which is now Section 6134, says:

“The right of action given by the statute of 1851 is in the nature of property in action. * * * The right was not known to the common law-. * # # Hence, the right of action in such cases could only be conferred by statute. * * * The act being in derogation of the common law, any restrictive language used in it (speaking of the proviso that such actions must be brought within two years of the death) must be construed against the right created by it. It would be different if the act was merely remedial as to existing rights; such statutes are to be liberally construed.”

So, with regard to Section 845, it is an innovation upon the common law; before its enactment no action would lie against the county for damages resulting from the negligence of its commissioners, whether death ensued or not. At the time the Legislature provided a liability for such negligence it knew the extent of Section 6134. In a case involving a similar statute, the act of April 18,1870, under which a wife or child who should be injured in person or property or means of support by an intoxicated person might have a right of action against the person causing the intoxication, the Supreme Court makes the following observations:

‘ ‘ The seventh section of the liquor act, above quoted, was also an innovation upon the common law; as, before its enactment, there was no action for an injury caused by an intoxicated person, or in consequence of the intoxication against the person who caused the intoxication. But since the action is thus given by the statute, the question is, whether, in view of the state of the law as it existed at the date of its passage, the terms of the section should be so construed as to extend the remedy to damages resulting from the death of the person intoxicated? Injuries ‘by any intoxicated person, or in consequence of the intoxication’ are the terms of the statute; and it is contended that if intoxication causes death, and death causes injury, the latter is within the meaning of the act. On the other hand, it is contended, that as the Legislature must be presumed to have known the state of the common law, and the extent of the innovation by the act of 1851 (Section 6134), if a further innovation had been intended, such intention would have been expressed in unmistakable terms. We incline to the latter adew.” Davis v. Justice, 31 O. S., 359, 363.

It was evidently with this conception of the law that in 1896 and again by amendment of the same act in 1898, the Legislature, in providing that counties should be liable to a person injured by a riot, also provided that they should likewise be liable to his administrator if the victim of the riot should be killed. Section 4426-6-7-8, Revised Statutes of Ohio.

In Anew of these decisions, neither section of the statutes, separately construed, would seem to authorize the action here brought.

It can hardly be said that the board of county commissioners or the county is a corporation, in the sense that said word is used in the statutes, for there are many decisions in this state to the contrary, if they are applicable to this case. Commissioners of Hamilton Co. v. Mighels, 7 O. S., 110; Treadwell v. The Commissioners, 11 O. S., 183; Finch v. Board of Education, 30 O. S., 37; Dunn v. Agricultural Society, 46 O. S., 93; Overholser v. National Home for Disabled Soldiers, 68 O. S., 236.

From the foregoing considerations we would be disposed to affirm the judgment in this case and adhere to our former ruling, were it not for the ease of Commissioners v. Coffman, Admx., 60 O. S., 527, where the question here raised was necessarily involved, but does not appear to have been argued to the court. Whether the Supreme Court would have reversed and remanded that case, or reversed and entered judgment for plaintiff in error, if it had fully considered the proposition here made, we are unable to say. Perhaps, upon a full presentation of the matter, the Supreme Court may come to a different conclusion, but it is not for us to assume that it will.

The action was against a board of county commissioners to recover damages for the death of a person caused by the breaking down of a bridge by a traction engine drawing a water tank on which the deceased was riding. Judgment had been rendered for plaintiff in the common pleas court and circuit court; these judgments were reversed by the Supreme Court for error in the charge and for refusal to charge as requested, in that the trial judge did not submit to the jury whether the use being made of the bridge when the deceased received the injury which caused his death was such usual and ordinary use of it as-reasonably prudent persons in the situation of the commissioners, and charged with their duties, would, in the exercise of ordinary care, in view of -all the facts have anticipated would be made of the bridge and would be attended with danger of injury resulting to persons or property.

It appears, however, that a demurrer had been filed in the case. The argument on the demurrer, doubtless, did not raise the precise question here presented, for we find the following language used on page 530 of the opinion:

“Another claim of plaintiff in error — one made on demurrer to the petition — is that, because the liability created by the statute is that of the commissioners, in their official capacity, for their official neglect, redress must be sought by action on their official bonds, which are required in order to secure a faithful and diligent performance of their official duties; and, furthermore, that as the negligence charged includes the defective construction of the bridge, which was built before the act was passed, the action is not maintainable against the board of commissioners as constituted when the injury complained of was sustained. The material fact, however, from which the liability for a defective bridge arises is the negligence of the commissioners in not keeping it in repair when the injury occurred; and the length of time the defect had continued before, or how it originated, are unimportant except as tending to show knowledge of its existence. The negligent omission to make needed repairs on a bridge known to be out of repair is, within the purview of the statute, a negligent failure to keep it in repair. And the liability of the commissioners in their -official capacity is the liability of the county they represent to the person injured by their -culpable neglect. Whether, in the first instance, recovery might be had on their bonds, or whether the county may have recourse to them for reimbursement of the damages paid by it, are questions not now before us, and upon which we express no opinion. We are satisfied that, in a proper case, the action may be maintained as this one was brought, directly against the board of commissioners in their official capacity.”

G. W. Stage, County Solicitor, for defendant in error.

Personally, I am of the opinion that this last sentence means only that the Supreme Court considers that an action under favor of Section 845 is rightly brought against the board of commissioners in their official capacity, whatever the personal liability of the commissioners or their bondsmen to ihe county may be, growing out of the negligence of the commissioners, and nothing more. I can not believe that the Supreme Court, having stated specifically two questions which it says were raised by the demurrer, undertook to decide a third question thereby raised, but in no manner discussed by counsel, or considered in the opinion. •

However, a majority of the court is of the opinion that the language used in the last sentence quoted is broad enough to be decisive of this case. Such being the case, further discussion of the matter is precluded and it is proper, and the law requires, that the judgment of the court below be reversed for error in sustaining the demurrer.

Judgment reversed.


text:
    LEGISLATIVE DESIGNATION OF THE TOLEDO UNIVERSITY.
    [Circuit Court of Lucas County.]
    James M. Waddick, as a Tax-Payer, etc., v. John B. Merrill et al.
    Decided, May 28, 1904.

      Softools — Universities and Softools for Higher Education — Loose Use of the Word “University” — Manifest Intention of the Legislature Rather than Technical Meaning of the Word Should he Adopted— Application of the New School Code — Injunction—Mandamus—■ Section 217 of the New Code and 4105, Revised Statutes.

    1. Where it is apparent that the Legislature has enacted laws with reference to a particular city and a particular institution within that city denominated a “university,” these laws will be construed as applying to the institution manifestly referred to, notwithstanding it is not technically speaking a university, but is a school of a lower grade.
    2. It is not incumbent upon a court, in the exercise of sound discretion, to assume the risk of demoralizing schools near the end of the school year by decreeing that there shall be an immediate change of management in accordance with a law which has been ■ enacted since the suit was filed, and which, if applicable, contains no imperative requirement of such immediate change.
    Parker, J.; Hull, J., and Haynes, J., concur.
    This action is in tbis court by way of appeal. It is in its nature and upon its face an action of injunction to restrain the directors of the so-called Toledo University from exercising certain franchises, from holding and controlling certain property, and from expending for the purposes of the university funds raised hy taxation, and is also to require the board of education of the city of Toledo to do what it is charged the directors of the so-called university are doing in that behalf. It is charged, in short, that the statute providing for this directory which is appointed by the mayor of Toledo is invalid, and also that it does not apply to the city of Toledo, and is therefore ineffective; that the appointment made under it is nugatory, because, as it is said, it applies only to cities where there is in fact a university, and that the city of Toledo has not, in fact, a university — that the so-called Toledo University is not a university, within the purview of the act. It is also charged in the petition that the act under which the levy is made to provide for funds to be raised by taxation for the support of this institution is invalid on various grounds, especially on the ground that the legislation is special — that it provides for an unauthorized classification.
   There are answers filed on behalf of the various defendants, but the issues of fact made are very narrow, and perhaps not very important in certain aspects of the case, unless in one particular. There is an issue made as to the hind and grade of studies taught by the Toledo University and by the Toledo High School, and we have heard some evidence on that issue.

The petition was filed on July 6, 1903. It appears that prior to the enactment of the statute providing for this board of directors which is now in control, to-wit, Section 217 of the new code, the property and the management of the so-called university was under the control of the board of .education of the city of Toledo school district, and that by virtue of an act so providing theretofore in force. It is charged in the petition that this pretended board of directors of the “university” as it is therein designated, “has demanded that the board of education turn over to it all of said property and funds, and that said board of education shall hereafter cease to maintain instruction in said manual training work, leaving such instruction to be provided by such pretended board of directors,” and that unless restrained from so doing the board of education will accordingly turn over the property and affairs to the board of directors of the university. It appears by a supplemental petition filed in the case, and by the records and evidence in the case, that no restraining order was issued, and that subsequently the property was turned over to the board of directors of the university, and the university took charge of it, and has since been in control of the school or the department of education which is designated as “the Toledo University.” It is also stated in the petition that a levy of .3 of a mill on the dollar of valuation has been made on the taxable property of the city for the purposes of the Toledo University; that this was done on June 15, 1903; and that the board of directors of the university has requested the defendant, William M. Godfrey, as county auditor, to place the same upon the tax duplicate of the county, the funds to be realized from such levy to be used by said pretended board of directors. With respect to that it appears that no restraining order was issued; that this levy was subsequently made; that the December half of this levy has been collected, and the funds turned over to the board of directors of the university. The June half is upon the tax duplicate, and is about due for collection. So that the aspect of affairs has changed somewhat — we may say, in our judgment, has changed materially, as the case presents itself to the court for disposition, since the action was commenced.

As to the constitutional questions involved. In the case of State, ex rel Attorney-General, v. City of Toledo, found in 3 C. C. — N. S., 468, these constitutional questions and various other questions pertaining to this institution, were very fully considered by this court, as will be seen by reading the opinion by Judge Haynes in that case. A great many of the questions considered in that case are not involved here, but we think that these constitutional questions were necessarily involved there. It is urged that the particular question of the taxing power which is conferred, or undertaken to be conferred, upon the city or upon the board of education, under the statute' in question, was not passed upon by the court there. We think however, that the whole act was necessarily involved, in all its provisions. Even if that were not so, in the situation of this case as I have described it, the tax having gone upon the duplicate, being due for collection and partly collected, the treasurer not being made a party defendant, nor sought to be restrained from making any collection, the case seems to have shifted into one where we are asked to require one board to take control of the property and affairs of the Toledo University, including the amount to be collected as taxes, and to restrain the other board from exercising such control, and that its aspect of a proceeding to restrain the levy of taxes has passed away. We therefore do not believe that it is necessary for us to go any further into a consideration of the constitutional questions involved. They are sufficiently discussed and are necessarily disposed of in the ease of State, ex rel, v. Toledo, supra.

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

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

It then gives their terms of office.

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

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

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

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

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

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

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

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

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

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

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

It contains an amendment of Section 4105:

“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.”

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

J. Y. Todd, for plaintiff.

C. S. Norihnp, for defendants.

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


text:
    LEASE.
    [Hamilton County Circuit Court.]
    Keppler Bros. v. Otto Heinrichsdorf.
    Decided, April, 1904.

      Lease — Privileges of Renewal upon Giving Six; Months Notice — Failure to Give Notice Avoids the Privilege.

    A privilege in a lease of an additional term upon the giving of notice six months before expiration is not enforceable where there was a failure to give notice within the prescribed time.
    Giffen, J.; Swing, J., and Jelke, J., concur.
    Appeal from Court of Common Pleas of Hamilton County.

      Theodore Kemper and Matthews & Merrell, for plaintiff.

      A. H. Bode, for defendant.
   This action was brought to enforce specific performance of the following covenant of a lease:

“Lessor agrees at the expiration of the present lease to give lessee an additional five years upon the same terms and condition mentioned in this lease, lessee agreeing to give lessor, six months before the expiration of the present lease, a written notice of his intention to accept or decline the additional five years’ lease.”

The notice was given less than five months before the expiration of present lease. The covenant to give notice was a condition precedent to the granting of an additional term of five years, and not being performed within the time prescribed, equity will not aid the lessee to avoid the consequences of his own negligence or ignorance, to which the lessor in no way contributed.

The lease was in the possession of the plaintiff and if consulted would have disclosed that a written notice was required. The evidence fails to show that the defendant or his agent misled the plaintiff, or waived the provision of notice.

The petition will be dismissed.


text:
    CHANGES OF JUDGES DURING TRIAL.
    [Circuit Court of Ashtabula County.]
    Thomas Mason v. State of Ohio.
    Decided, September Term, 1904.

      Trial — Change of Judge During — In a Trial for Felony Constitutes Reversible Error, When.

    Where upon a trial for murder in the second degree, after the evidence is all introduced, the trial judge becomes incapacitated to further continue in the case, and the prosecution is adjourned for eighteen days, part of the time from day to day by the sheriff, and at other times by another judge of the same subdivision; during which adjournment the jury is permitted to separate, going to different parts of the county; at the end of the eighteen days another judge of the same district hears the arguments, prepares the charge and delivers it to the jury; passes upon the motion for a new trial, and sentences the prisoner; and it does not affirmatively appear by the record.that the new judge read any portion of the evidence, neither that the jury had been in any manner tampered with. •

      Held: That there was irregularity in the proceedings of the court and jury, and that the judgment should be reversed, and a new trial granted.
    Cook, J.; Laubie, J., and Burrows, J., concur.
    Heard on error to the common pleas.
   Thomas Mason, plaintiff in error, was indicted for the crime of murder in the second degree, was tried, and convicted of manslaughter.

Two principal grounds of error are relied upon. First, That the verdict was against the evidence; and, second, Irregularity in the proceedings of the court and jury.

As to the first ground it is sufficient to say that it is not well taken; but the second presents questions of a serious nature.

It appears from the record that Mason was placed on trial February 3d, 1904, and upon the third, fourth and fifth of February the jury was impanneled, ease stated, and all the evidence on both sides introduced. At the adjournment of the court on the fifth, the jury — not having been ordered kept together — was duly cautioned not to converse with any one or read anything about the case during their separation. On the morning of the sixth the trial judge in coming to court slipped upon the pavement, was seriously injured, and wholly incapacitated from taking any further part in the trial. Prom the sixth to the eighth inclusive the jury assembled each morning, when the case was adjourned to the following morning by the sheriff, the jury separating and mingling with the people of the village. On the morning of the ninth, the jury being present, another judge of the subdivision adjourned the court until the sixteenth, the jury going to their homes; upon which day, the jury being present, the court was adjourned by the same judge until the twentieth, and the jury again went to their homes throughout the county. On the twentieth the jury again was present, the second judge not being present on account of sickness, the court was- again adjourned by the sheriff from day to day until the morning of the twenty-third, the jury dispersing each day, and going around through the village. On the morning of the twenty-third a judge from another subdivision of the district having been procured, was present and ordered the trial to proceed, over the objection of counsel for the accused, on the ground that the trial, under the circumstances, could not further proceed, as it would be entirely irregular for another judge to take up the trial at that stage; and that the jury having been so permitted to separate and mingle with the people was presumably not a fair and impartial jury. The objection of the counsel for the accused was overruled and exception taken. The argument of counsel was made, the jury charged, a motion for a new trial overruled, and sentence passed by the judge sitting in the place of the original judge.

Was this irregularity in the proceedings of the court to the prejudice of the accused? Although it is claimed upon argument that the evidence was typewritten and delivered to the judge who presided at the conclusion of the trial, this does not affirmatively appear, and from all that is known from the record the judge who was substituted had no knowledge of the evidence whatever. <■

It seems to us that this was an irregularity in the proceedings of the court for which the judgment below must be reversed.

How could the trial judge who came into the case after the evidence was submitted preside during the argument? The argument is an important part of the trial. Arguments of counsel to the jury should be based upon the evidence, and be restricted to what was proven. Counsel should not be permitted to distort and misstate the evidence, and yet the presiding judge from the record had no knowledge of what the evidence was whatever. But if we were to assume that the trial judge had read the evidence the result would be the same. The appearance and demeanor of the witnesses upon the stand are very important factors in weighing evidence and gives counsel not only a great field for argument but in many cases for misrepresentation and improper denunciation. Did counsel fairly and properly represent the appearance and demeanor of the witnesses upon the stand in their arguments?

He also charged the jury. The charge of the court should be directed to the facts of the ease on trial. Abstract propositions of law are of little value to the jury and in many cases misleading. How could the presiding judge direct his charge to the facts when he heard none of the evidence. His charge must necessarily be determined by the facts as he learned them from counsel in their argument, which would be unreliable. He further heard and passed upon the motion for a new trial, one ground of which, and no doubt, from the hearing before us upon error, the principal one, being that the verdict was not sustained by the evidence. How could he pass upon the weight of the evidence; some of the witnesses were detectives, others ■officers interested in the conviction of the accused? A trial judge from experience derives much benefit from seeing the witnesses. He can pretty accurately determine whether the witness is truthful or not from the manner in which he gives his testimony, which would be all important upon the hearing of a motion for a new trial. He sentenced the prisoner and the sentence was an exceedingly severe one for the grade of the .offense well up to the maxium. Did the evidence justify it? .Possibly so, but how could the trial judge so determine.

The duties of the judge who took the place of the previous one required judgment in all these matters, and it seems to us that where judgment is required in the performance of the duties of the trial judge in reference to the facts, one judge can not be substituted for another during the trial, although under the law the judge so acting under such change may have the same jurisdiction and power as the disabled judge.

In the ease of Durban v. People, Lawyer’s Reports Annotated, Book 55, page 241 (192 Ill., 493), Magruder, J., of the Supreme .Court, says: ■

“It is well settled that the argument of a cause is as much a part of the trial as the hearing of the evidence (Meredeth v. People, 84 Ill., 479).
“It is also a general rule established by the weight of authority that in prosecutions for felonies the continual presence 'of the judge during the entire course of the trial is essential; and it is expressly held in many decisions that in the trial of capital cases the judge should not retire from the bench even for a brief absence without ordering a suspension of business until his return (21 Ency. Pl. & Pr., pp. 978, 979, and cases referred to in notes).
“It is claimed here, however, on the part of the state, that during the trial of this case the bench was at no time vacant because as soon as one circuit judge left the bench another circuit judge having equal power and belonging to the same circuit took his place. The court, it is said, was the same during the whole of the trial, although two different persons presided during the trial at different times. In justification of the proceedings here under consideration Section 62 of Chapter 37 of our statutes entitled ‘courts’ is referred to; that Section provides that judges of several circuit courts of this state may interchange with each other and may hold court, or any branch of the court for each other, and perform each other’s duties where they find it’necessary or convenient. The vacation and substitution which took place in this case find no justification in the section thus referred.to. A prisoner on trial for his life is entitled to the judgment of the judge who has heard the evidence in the case and conducted the trial thereof. The instructions •given by a judge must be based upon the facts and necessarily ,involve an application of the law to the particular facts of the case. Here the instructions given for the state were given by a judge who had heard none of the evidence; two instructions asked by the defendant were refused by a judge who heard none of the evidence. It is true that the absence of one judge from the bench before the close of the trial was followed by the presence of another judge of equal power and jurisdiction. It is also true that circuit judges may hold court for each other, and perform each other’s duties where they find it necessary or convenient, but this does not involve the right or power of one judge to finish for another the performance of a duty already entered upon by the latter, when that duty involves the exercise of judgment, and the application of legal knowledge and judicial deliberation to facts known to the latter and not known to the former.”

In this case many authorities are reviewed .and the opinion is an able one. The court in the syllabus held:

“A mistrial will result from a change of judge without defendant’s consent during trial of a criminal case when the argument to the jury is in progress, the new judge being required to read the defendant’s instructions to the jury which have been approved by his predecessor, and to pass upon those presented by the state, although the judge belongs to the same circuit and the statutes permit such judges to interchange with each other, and to perform each other’s duties.”

We do not hold that there are not certain preliminary duties which a judge may perform and the case afterward be continued and completed by a different judge, but that is not the case under consideration.

Another question that is made is that the jury being separated for eighteen days during the time that the ease was not being tried, and scattered in different parts of the county, that it was error to proceed with the trial to that jury. Ordinarily it must appear affirmatively from the record that members of the jury have been approached, have heard improper remarks, or read something about the case in order to be grounds for a new trial. That prejudice will not be presumed unless it appears. Under the facts disclosed in this ease we think improper conduct upon the part of the jury should be presumed and that prejudice resulted. It is hardly possible that a jury could be at liberty for eighteen, days in all parts of the county, without being cautioned, and under no surveillance, in a case exciting so much public interest as this, without at least some of the jurors being improperly influenced. The charge in this case was murder in the second degree, involving liberty for life. Suppose the trial judge, in order to attend to some other business, had adjourned the ease for eighteen days and permitted the jury to separate and go to their homes, would it not be held that such a jury was incapacitated from further duty in the case ?

E. J. Redmond, A. G. White and Perry & Roberts, for plaintiff in error.

G. L. Taylor, Prosecuting Attorney, for defendant in error.

It seems to us that Section 7313 was enacted expressly to provide for a contingency like the one that arose in this case. That section provides:

“The court may discharge a jury without prejudice to the prosecution for the sickness of a juror, the corruption of a juror, or other accident or calamity, or because there is no probability of the jurors agreeing, and the reason for the discharge shall be entered on the journal.”

Here was an accident incapacitating the trial judge from proceeding in the case, and the jury should have been discharged.

For these reasons the judgment of the common pleas court will be reversed and the case remanded for a new trial.


text:
    TOWNSHIP ELECTION CONTESTS.
    [Circuit Court of Columbiana County.]
    State, ex rel Figley, v. George W. Conser.
    Decided, 1902.

      Township Election — Contest of — Quo Warranto the Proper Proceeding — Australian Ballot — Writing in of Names — Use of Blue Pencil ■ • — Destruction of Ballots — Character of May Be Proved hy Parol— Bight of Contest — Estoppel—Sections 2966-13 et seq.

    1. In tbe absence of any statutory provision for tbe contest of tbe election of township officers quo warranto is the proper remedy for determining the legality of an election of township trustee.
    2. A statute will not be construed as abridging or repealing the right to contest an election for fraud or mistake, unless such intention is clearly expressed.
    3. In a proceeding to contest the election of a township trustee held under the Austrian ballot law, the rejection and destruction of the ballots by the judges of the election is not final or conclusive, but the contents of the ballots thus rejected and destroyed may be shown by parol.
    4. A candidate who is present at the counting of the ballots, and declared himself satisfied with the result, is not thereby estopped from contesting the election.
    5. The provision of the Australian ballot law that “all marks upon the ballot must be made with a black lead pencil, and the further provision that “no ballot shall be rejected for any technical error which does not make it impossible to determine the voter’s choice.” does not render invalid a ballot upon which the contestant’s name was written with a blue pencil; nor a ballot upon which a black pencil line is drawn’ through the name of a candidate, and the name of an opposing candidate written near and partly over it, notwithstanding no cross mark appears opposite the latter’s name; nor a ballot containing a ticket upon which no names of candidates appear under the printed designations of the several offices, whereon a name is written beneath the line designating ■the office for which the candidate whose name thus appears is running.
    Laxjbie, J. (orally); Burrows, J., and Cook, J., concur.
    This is a proceeding in quo warranto, brought to contest the election of the defendant, Conser, as township trustee of Hanover township, in this county.
   It seems that at the election in question there were three tickets on the ballot, known as the Australian ballot. There was a republican ticket, a democratic ticket and a citizens’ ticket, each so headed, and each printed in conformity with-the laws of the state in reference to the Australian ballot. Conser was candidate for township trustee on the republican ticket, Figley on the democratic ticket, and their names, in accordance with the statute, were printed thereon as candidates, but on the citizens’ ticket there was no candidate’s name for that office printed on the ticket, or any township office; but in accordance with the statute, sufficient blanks were left under the printed designation of each office, so that the voters might write the name of such candidate as they desired to vote for.

In this case, according to the count as made by the board, Conser received one vote more than Figley, and they declared Conser elected. There were live or six “ballots rejected, and without any dispute between the judges; and these ballots, with the others, were burned in accordance with the provisions of the statute in that regard.

It is claimed upon the part of the defendant that this proceeding in quo warranto can not be maintained; that quo warranto will not lie and is not a proper proceeding to determine the validity of the election of a township officer. Reference is made to the Constitution of the state, and to decisions of the Supreme Court in regard thereto as to the manner of contesting elections. The constitutional provision (Section 21, Article II) is that the Legislature shall provide for the contest of elections; but the Legislature has not done so in regard to the election of township officers. So that there is no statute of the state which provides, or attempts to provide, for a contest of election of township officers. That being the case, we are at a loss to know why this ancient proceeding in quo warranto can not be brought. It is one which is authorized by the Constitution of the state (Sections 2 and 6, Article IV), and may be brought, therefore, in any case where it might have been brought, unless restrained by some other provision of the Constitution. Prior to the adoption of the present Constitution, it was a proper proceeding to contest the election of officers of the state, and the Supreme Court has held that it. is so now, except as modified by the provision of the Constitution that the Legislature shall provide for proceedings to contest the election of officers of the state. But where the Legislature has not done so, does that deprive the courts of jurisdiction in quo warranto in such cases?

In the case of State v. McLain, 58 Ohio St., 313, 322, this is said by the eminent judge delivering the opinion:

“It is argued, however, in behalf of the state, that quo warranto is the appropriate action for the trial of title to an office; and that by Section 2, Article IY of the Constitution, original jurisdiction in such actions is conferred on this court, of which it can not be deprived, in any degree, by legislation. But that provision of the Constitution should be construed with others in pari materia, and each so restrained as to give harmonious effect to them all; And hence, the jurisdiction conferred by that section is subject to such legislative control as is authorized by other provisions of the same instrument; and legislation enacted in obedience to such provisions has the same effect as if contained in the Constitution itself. In instance of this, by Section 21, Article II, power is conferred on the General Assembly to provide by law ‘before what authority, and in what manner the trial of contested elections shall be conducted;? and a statute enacted in the exercise .of that power was held, in State v. Marlow, 15 Ohio St., 114, to afford the exclusive remedy in such eases, and withdraw them from the jurisdiction of this court in quo warranto, notwithstanding the latter mode of in-, quiry, in the absence of such a statute, was the appropriate one in such eases.”

That is, reference is made to the case of State v. Marlow, 15 Ohio St., 114, upon the question, as establishing the rule that in the absence of such a statute quo warranto is the appropriate remedy in such cases.

So we pass this matter by with the conclusion that this proceeding is properly brought, as there is no statute providing for contest of election of a township officer or township trustee.

As I have stated, the board in this instance declared the vote in favor of Conser, the republican candidate, by a majority of-one; and as 'to the ballots that were rejected, as there was no-dispute about them, or difference in the minds of the judges, they were burned.

' It is claimed on the part of the defendant, Conser, that the action of the judges was final and conclusive, and made so by the provision of the Australian ballot law itself. If this were so, it would be a singular election law; not only a singular one, but an outrageous one, to undertake in such a manner to defraud, substantially, the electors of a township by the fraud, mistake or misapprehension of the judges of the election. One of the inherent and invaluable rights of a citizen of this country is the elective franchise, and the Australian ballot law (Section 2966-13, Revised Statutes, et seq.) was passed especially to protect him in it, so that by no fraud or mistake on the part of the judges of the election, or of politicians and partisans running it, could his privilege be destroyed by taking away from him his vote, or not counting it after it was voted. If. the ballot of one citizen may be rejected by fraud or mistake, and beyond his power to question it, it may be done as to all. And in this ease the proposition is well stated, that if a candidate was declared elected by a majority of one vote, while there were four or five votes uncounted that should have been counted for his opponent, then the majority of the electors in that township were defrauded of their rights, and the judges of the election usurped their power and their right of the elective franchise and took it away from them, and conferred the office upon the man whom the majority voted against. And it is claimed that by inference — not by any direct language in the Australian ballot law, but by a mere inference — that this precious right may be invaded, and the majority of the elector's of a township, county or state (because if it applies to one it applies to all) may thus be defeated of their intention and of their rights in an election of officers of such township, county or state by the . judges through fraud or mistake.

The English language is not so devoid of words that if the Legislature intended to destroy the right of contesting an election in such a case, it could not have expressed it, and the Legislature has not expressed it in direct language. Such result is claimed only by inference from the language used; that, as there was no dispute over the rejected ballots, or differences in the minds of the judges as to them, the burning of such ballots ended the matter; that the Legislature having directed that such ballots should be burned, the inference must be that the Legislature intended that the action of the judges in their rejection should be final and conclusive. If the Legislature so intended, it had the words at command to express that intention, and would have done so, and not left such new and important provisions to mere inference.

The right to contest an election gained by fraud or mistake is one that has been always held in this state as an invaluable one as a matter of public policy, and if the Legislature intended to repeal that inestimable privilege and to establish another and a different rule, the English language is broad enough to have enabled it to express that intention beyond any question or dispute. The Legislature has not done so, and its failure to do so in express terms has convinced us that the Legislature did not have any such intention.

Another proposition of defendant’s counsel is that parol evidence is not competent in this case to prove the contents of these rejected and destroyed ballots. In eases of this kind, it has always been held that where the ballots are destroyed, or where it is impossible to produce them in court, the next best evidence is competent; following the general rule that where the best evidence is unattainable, the next best may be resorted to. The. ballots were destroyed, and admitted to be so, and hence could not be produced, and the universal rule must prevail, that parol evidence may be admitted of their contents.

The question, therefore, is, should these ballots be counted to ascertain whether or not the board of elections had arrived at a correct result in the determination of the poll? I have already said that there were two candidates for this office — two party candidates — Conser on the republican ticket, Figley on the democratic ticket.

’ The Australian ballot law, Section 2966-19, Revised Statutes, provides that the name of any candidate can not go upon the ballot twice. If there are two parties that wish to nominate the same individual for the same office, they may do so, but his name ean not go upon the ballot on the ticket of each. It ean only go upon the ballot under the head of one ticket. And so on this citizens’ ticket neither Conser’s name nor Figley’s name could be printed, and was not. But on the citizens’ ticket there was a blank space under the printed words, ‘ ‘ township trustee, ’ * so that the citizens of the village of Hanover might write the name of Conser or Figley upon the ticket if they wished 'to vote for either for township trustee.

It is admitted on the part of the state that there was one ballot rejected by the board of elections that should have been counted for Conser. His name was written on the ballot in blue pencil, contrary to the provision of the statute that it should be in black, but it is conceded on the part of the state that that vote ought to have been, and may be counted for Conser.

On the other hand, there were two ballots that were cast on the republican ticket which, it is claimed upon the part of the state, should have been counted for Figley, and were not. The evidence shows conclusively that whoever voted those tickets intended to vote for Figley for township trustee. It shows conclusively that the voter first erased Conser’s name by drawing a black pencil line through it, and then wrote the name George Figley below it. The judges concede that they rejected it because the upper part of the capital letters G and F in Figley’s name ran up above the blank over the printed name of Conser. And partly from the whole evidence it appears it was only because of that fact that they rejected those two ballots. It is almost impossible to believe that a voter ran pencil lines across the name of the printed candidate, and beneath his name, or over it, if you please, wrote the name of the opposing candidate, did not intend to vote for that opposing candidate. And we think that those two tickets should be counted for Figley irrespective, too, of the question whether there was a cross-mark made in front of Figley’s name on the tickets or not.

The statute provides that the elector may write in the name of any candidate he favors, and he may write it either in a blank space, where there is no candidate’s name, or over the name of the ticket’s candidate. And the latter part of Section 2966-35, Revised Statutes, declares that no elector’s vote shall be rejected unless it is impossible to determine who he intended to vote for. So that where he writes the name of his candidate in its proper place, who would say that the elector did not intend to vote for the individual whose name he wrote in under the proper designation of the office, whether he put the cross-mark to the left of it or not. Would it be impossible, in such a case, to determine who he intended to vote for?

W. G. Wells and W. 8. Potts, for plaintiff.

J. A. Martin, for defendant.

In regard to the citizens’ tickets, it is claimed that there were three of those where Figley’s name was written in under the appropriate printed head of township trustee, indicating that the voter intended to vote for him. While there is some conflict as to the number, there is no dispute that there were two at least of these where Figley’s name was written in its proper place,' showing that the electors intended to vote for George Figley. for township trustee. And the judges of the election honestly made a mistake in rejecting these ballots. In fact, the majority of them come here as witnesses and admit that they did make a mistake. .They were honest in their action, but that does not affect the right of the elector to have his vote properly counted; and we think, therefore, that these four votes for Figley were erroneously rejected, which would give Mr. Figley a majority of two votes.

It is claimed further that Figley can not take advantage of this error; that he is estopped because he was present and made no objection to the rejection of these votes, and declared that he was satisfied with the result, and had run better than he expected. That he made no such objection and was honestly mistaken, as we think the judges were, as to the legality of the rejection of those ballots, then the mistake of the judges would no more bar this proceeding when he discovers the true state of affairs. When he finds out the true state of affairs, what rule of law is there that would estop him from attempting to secure his rights. Certainly this is not a ease of estoppel. In this proceeding there was a mistake on the part of the judges, and Figley must be declared elected, and the relief is granted as prayed for by this relator.

A decree may be taken accordingly.


text:
    TERM OF AN OIL LEASE.
    [Circuit Court of Wood County.]
    Florence M. Griner v. The Ohio Oil Company.
    Decided, April Term, 1904.

      Oil and Gas — Lease of Lands for the Production of — Term, of the Lease, Oil Being Still Pound in Paying Quantities.

    A lease of land granting the right to operate for oil and gas, contained among numerous other provisions of the usual character, the phrase, “the terms of this grant shall not exTceed twelve years.”

      Held: That the word “terms” as there used did not refer to the collateral matters attached to the grant, but to the grant itself, thereby limiting the period for which it is to run to twelve years.
    Haynes, J. (orally); Parker, J., and Hull,-J., concur.
    Appeal.
   The case of Florence M. Griner v. The Ohio Oil Company comes into this court upon appeal and has been heard upon the evidence. The petition filed by Florence M. Griner sets forth that at a certain time there was an oil lease made by Myron L. Case to the Ohio Oil Company of a certain tract of land in this county, 'and that by the terms of that lease — or license as it is called in the petition — the time limited for the production or extraction of the oil, the operation of the property, was limited to twelve years from the date of the making of the lease, and that period expired in June, 1903, at which time and since then the plaintiff, who is the grantee of Mr. Case of the lands, served notice upon the Ohio Oil Company of the termination of the lease, and that it should cease to drill or operate upon the lands for oil.

The defendant admits the execution of the lease, and claims that under it they took possession and have performed all of the conditions of the lease by them to be kept and performed. They drilled the wells required in the lease, which numbered eight; that they have been operating the property, and have paid the one-sixth royalty of the oil produced to the lessor, Case, and to Florence M. Griner, since she has been possessed of the property, and they state that the lease has not terminated; that they still have a right to proceed to operate the lands for oil under that lease, and to do so, so long as oil may be found upon the premises; or to operate the land so long as oil and gas is found “in paying quantities” as is the usual phrase.

The case has been very fully argued by counsel upon the part of the plaintiff, and upon the part of the defendant, and we have endeavored to give the case the consideration that the arguments merit.

It is claimed by the defendant that the lease is a grant of all the oil and gas upon the premises, or in and under the premises; that gas and oil, while in that condition under the premises, is a part of the real estate; that they take it by a grant, and that they took it in full and complete title. Then follows the habendum clause that they are to have and to hold it on the following conditions — and there are quite a number of those conditions stated, and among other things it states the number of wells that are to be sunk, the time in which they are to be sunk, and states the consequences that will follow if the parties fail to keep the terms of these conditions — that they are required to pay a certain sum per year, or to forfeit a certain portion of the land for the non-performance. Then follows the further clause: “The terms of this grant shall not exceed twelve years.” Then follows in print: “ It is understood between the parties to this agreement that all the conditions between the parties hereto shall extend to their heirs, executors and assigns.”

Now the controversy in this case turns upon the construction of the word “terms”; the meaning that is to be given to that word by the court.

It is claimed on behalf of the defendant that the grant is absolute and that the word “terms” applies only to the conditional or collateral matters attached to the grant, and not to the grant itself. On the other hand, of course, the claim on behalf of the plaintiff is that by the express terms of this clause, the grant is limited to the period of twelve years, and that all rights under this lease terminate upon the expiration of the twelve years.

There have been many cases, as is well known, in the state of Ohio decided on the question of oil leases. Some of the cases we have been referred to are The Woodland Oil Co. v. Crawford, in 55 Ohio St., 161; Detlor v. Holland, 57 Ohio St., 492; Kelly v. Ohio Oil Co., 57 Ohio St., 317, and Brown v. Ohio Oil Co., 65 Ohio St., 507. I will refer to a single one of those cases, the one in the 55th Ohio St., at page 161, a case which resembles in part the case at bar. In that particular case there was a clause in the lease which provided for the termination of the lease at the end of two years if no oil or gas was found upon the premises, and if oil or gas is found upon the premises, then the lease shall terminate upon the expiration of twenty-five years.

Judge Burket in delivering the opinion of the court, in speaking of this claim, says:

“The proper construction to bé placed upon such an agreement is, that upon failure of the lessee to drill a well, or pay rental, or both, as the case may be, the.lessor may elect to put an end to the lease and enforce payment of the promised rental, or sue for damages for failure to drill the well, or he may elect to have the lease continue in force to the end of the term, and enforce the drilling of wells and the payment of rentals, as provided in the lease. Such provisions of forfeiture are for the benefit of the lessor, and not for the benefit of the lessee. The lessee can not plead his own default or wrong in discharge of his obligation to drill or pay rental. ’ ’

There is another-clause in the lease in that case that I do not find at this instant, but the substance of it is that if no oil or gas is found within two years the lease becomes null and void, but if oil or gas is found, then, at the expiration of twenty-five years the lease terminated by virtue of that clause I have spoken of. It should be stated, however, that in the habendum clause the word “term” was used; that they were to have and to hold for the term of two years. In the case at bar the word “terms” was used, but it is claimed that the word “terms” when it is used in this form does not refer to the period of time for the lease to run, but has reference to the conditions of the grant. Now this paper is to be examined to ascertain, if possible, the understanding of the parties. The lease is drawn up between two parties, and is said to be in the handwriting of Mr. Case, a well informed business man of this place. First. He grants all the oil in the premises. It is said in some of these decisions that that is a lease; it is a right of the party to go upon the premises of another and take from it the oil underlying the same, so long as the term of the lease runs. He has that right exclusively. It is said also in one of these cases decided, that the oil, the mineral, is a part of the real estate while it exists in the ground; that it is fleeting in its nature; it is a fluid that runs according to the laws governing fluids; it may be upon the land of one to-day, and shift to the lands of another to-morrow. But so long as it remains upon the lands of one person, it is the property of that person. It is real estate until it is taken from the ground, and then it becomes personal property. Now what in sober sense was Mr. Case doing? He was giving the right to this party to go upon the premises and mine for oil, and take the oil out; and of the oil that they got out, he was to have one-sixth, and the balance the company was to have for its own use. And he provided for the manner in which the work is to be done or commenced; the number of wells that are to be drilled; he provides where they may not sink wells, either in the orchard or within a certain distance of the house; that pipes might be laid for the purpose of conveying the oil away, and that, they should be covered, and various matters of that kind are provided for, and then he comes to the clause in which he says, in the language I have read, that the terms of this grant shall not exceed twelve years. It seems to us as clear as can be, that the understanding between these parties, the intention of these parties was that this lessee might go upon this property and drill wells and operate them for a period of twelve years, and at the termination of that time, the rights of the Ohio Oil Company ceased and determined. That it applied to the terms of this grant; it applied to the whole paper. To hold otherwise, it seems to us would involve us in some inconsistencies that would result in holding that the grant of the oil itself was valid while all the various conditions under which it was held and which were to be performed by the other party would be void and terminated. Evidently that was not the intention of the parties, and we think that the whole lease should be determined at the end of the period of twelve years.

Grabiel & Shatzel, for plaintiff in error.

J. E. and E. V. Bope, for defendant in error.

It follows then, from this view of the case, that the plaintiff should have judgment here as prayed for in this petition, and it is so ordered.