author: Middleton, J.

text:
    FEES EARNED IN POLICE COURT IN STATE CASES.
    Court of Appeals for Cuyahoga County.
    (Before Judges Middleton, Walters and Sayre, of the Fourth District, sitting in place of Judges Grant, Carpenter' and Lieghley, of the Eighth District.)
    Edmund B. Haserodt, Clerk of Court of Common Pleas, et al v. State of Ohio, ex rel E. R. Wilcox, City Solicitor.
    Decided, May 8, 1917.

      Chief of Police Not flntitled to Fees Famed in State Oases in Police Court—Nor is the Municipality or Police Relief Fund flntitled Thereto—Interest of the State Therein.

    Sections 4581 and 3016, General Code, do not fix definitely the amount of compensation that may he allowed a chief of police for services in state criminal eases in a police court, and no fees may he allowed said officer for such services under favor of these sections.

      Cyrus Looker, Prosecuting Attorney, and F. W. Green, Assistant Prosecuting Attorney, for plaintiffs in error, county clerk, auditor and treasurer.

      Mathews, Orgill & Masche, for Frederick Kohler.
   Middleton, J.

This case involves the disposition of certain costs taxed in the name of Frederick Kohler, as chief of police of the city of Cleveland, in state criminal eases originating in the police court and municipal court of that city, in which convictions were had and said costs. allowed by the state and paid into the county treasury of Cuyahoga county to the credit of said chief of police.

The original action was instituted by S. K. Wilcox, as city solicitor, for the city of Cleveland, who asked for a mandatory order against the clerk of courts of Cuyahoga county, and the auditor and treasurer thereof, directing the payment of said costs to the city of Cleveland, The chief of police, Frederick Kohler, by cross-petition, claimed said costs because they were taxed in the various cases involved as his fees; and the trustees of the police relief fund, by cross-petition, claimed them upon the ground that the chief of police did not personally perform the services for which they were taxed and allowed, but that said services were performed by subordinate members of the police force of said city and that such members, by a written agreement, had assigned, and transferred their interest therein to the police relief fund, which is administered by said trustees.

In the court of common pleas demurrers were sustained to all the pleadings filed in the'original action except the petition of the relator, and judgment was. rendered for the city upon this petition and a mandatory order was allowed, directing the payment of all of said costs to the city. This judgment appeárs to have been based upon the provisions of Section 4213, General Code, which provides:

“The salary of an officer, clerk or employee shall not be increased or diminished during the term for which he was elected or appointed, and, except as otherwise provided in this title', all fees pertaining to any office shall be paid into the city treasury.”

In view of the case of Portsmouth v. Milstead, and Portsmouth v. Baucus, reported in 8 C.C.(N.S.), 114, and subsequently affirmed by the Supreme Court, without report, 76 O. S., 597, the action of the trial court clearly was erroneous. These cases settle conclusively the proposition that the only fees to which the provisions of said Section 4213 apply are fees earned under municipal ordinances and regulations, and that the provisions of this section do not apply to the fees of municipal officers earned in state criminal cases. We are constrained to hold, therefore, that the learned trial Court erred in rendering judgment for the city of Cleveland, and that said city is without any legal right to the fees in question. We do not, however, hold that the trial court erred in sustaining demurrers to the cross-petitions of the chief of police and trustees of the police relief' fund.

It is contended by the defendant county officials that there is no statutory authority for taxing fees to a chief of police for services in a police court or in a municipal court and, .therefore,' that none of the present claimants to these costs have any legal right thereto.

The chief of police, Frederick Kohler, contends -that he is entitled to said costs under the provisions of Sections 3016 and 4581, General Code, and relies upon these sections as authority for fixing and allowing fees to a chief of police for services in a police court. The contention’ of the chief of police in this respect appears to be supported by at least some slight judicial sanction; In the case- of. City of Delaware v. Matthews, 13 C.C. (N.S.), 539, affirmed, without report, in 82 O. S., 423, the court had under consideration the right of a chief of police to fees in a mayor’s court, but was not called upon to determine and did not decide the right of such officer to fees for services in a police court. However, in this case the court made the observation that

“The chiefs of police, in cities having a police court, were to receive like fees as constables and sheriffs in the probate court and before justices of the peace.”

Apparently this observation was based upon the provisions of said Section 4581. That section provides:

“Other fees in the police court shall be the same in state cases as are allowed in the probate court, or before justices of the peace, in like cases, and in eases for violation of ordinances such fees as the council, by ordinance, prescribes, not exceeding the fees for like services in state cases.”

This observation of the court, under the circumstances, should not be considered more than a mere obiter dictum. However, it has been seized upon by those interested as a judicial interpre-tation of said section and has been claimed as authority for the allowance of fees to chiefs of police for services in a police court.

Keeping in mind the principle that the compensation of public officers must be fixed by statute, the construction thus claimed for this section will not stand an analysis. Assuming that the fees named therein include fees which may be earned by a chief of. police, by what rule are such fees to be determined under its provisions? First it provides that fees in the police court in. state cases shall be the same as are allowed in the probate court or before justices of the peace. Here are two distinct and separate provisions; one is that the fees shall be the same as are allowed in the probate court, and the other is that the fees shall be the same as allowed before justices of the peace. Which provision, therefore, controls ? The only officers who render services in the probate court and before justices of the peace similar to those performed by a chief of police in a police court are sheriffs and constables. Therefore, if the foregoing provisions of this section are to be given any operative force they must be held to provide that the fees of a chief of police shall be the same as those of a sheriff or a constable in the probate court or before justices of the peace. Now the fees allowed in the probate court are fixed by the provisions of Section 11204, which provides that said fees shall be the same as those allowed in the court of common pleas “for like services.” The fees of a sheriff, therefore, in the probate court are fixed by the provisions of Section 2845, and we presume that this section also would control his fees for any services rendered before a justice of the peace. But the fees of a constable before a justice of the peace are fixed by the provisions of Section 3347, General Code, and the fees of this section are different from the fees of a sheriff under Section 2845 aforesaid. Therefore, if we are to take Section 4581 as the statutory authority for fixing the fees of a chief of police for services in a police court, which of the two provisions of said section shall we consider as controlling? It seems that in the taxing of fees of a chief of police for such services it has been the practice, in some jurisdictions at least, to fix his fees under the section relating to constables if this section provided a fee for the service to be taxed. This was done because the latter section provides a lower fee than that named in the section relating to sheriffs. But if the services rendered wer* those for which no fee was provided in the case of constables, then the fee as provided in the case of sheriff was allowed. It is apparent, without further discussion, that such procedure is without any statutory authority.

In the case of State, ex rel, v. Kleinhoffer, 92 O. S., 163, the Supreme Court had before it for consideration the right of a humane officer to fees for services rendered by him in cases prosecuted before a justice of the peace, and the court had under consideration the provisions of Section 10076, General Code. In discussing the provisions of this section, on page 166 of the opinion the court say:

“* * * if the pronoun ‘they,’ as used in Section 10076, could be held to refer to officers other than humane officers—for example, to a sheriff or constable—it would be impossible to determine to which it does refer. And it is important and necessary that this be known, for the fees of a sheriff and those of a constable as fixed’by Sections 2845 and 3347, respectively, are different.”

We think this language of the court is equivalent to a holding that if the section there under consideration could be construed as providing that humane officers should receive the same fees as a sheriff or constable for like services, it would be inoperative ■because of its indefiniteness. Now the provisions of Section 4581 aforesaid present precisely this situation, for the most that may be claimed for this section as authority for the fixing and allowance of fees to a chief of police is that it provides that such fees shall be the same as those of a sheriff or constable in the probate court or before a justice of the peace. We regard the reasoning of the court in the case last cited as conclusive against any claim that said Section 4581 is effective in furnishing statutory authority for the fixing of fees in state criminal eases in a police court to the chief of police for services rendered therein.

It is apparent that the provisions of Section 3016 do not furnish such authority, for its provisions are intended only to authorize the payment of such fees from the county treasury and implies that under some other statute may be found the authority for fixing said fees. While it is not contended here that any authority may be found in the provisions of Section 4534 for the allowance of the fees in question, yet it is well to observe that this section is subject to the same infirmity and nothing may be claimed for a chief of police under its favor because of the indefiniteness and uncertainty of its provisions in respect to the amount that may be allowed said officer in state cases.

It follows, therefore, that much as we might desire to sustain the legality of such allowance we must hold that the money now in the treasury of this county to the credit of the chief of police for fees earned in the police court in the cases aforesaid is there without warrant. of law and should be returned to the state treasury.

It appears from the pleadings that the fees in controversy were taxed for services rendered by said chief of police between the 2d day of May, 1903, and the 24th day of February, 1913. It follows, therefore, that from the 1st day of January, 1912, until the 24th of February, 1913, the fees so taxed were for services rendered in the municipal court of said city, and it therefore becomes necessary to consider whether the laws pertaining to this court furnish any authority for the taxing of such fees.

The law under which said services were rendered in the municipal court is found at page 166, O. L., 102, in the provisions of an act passed May 10, 1911. By the provisions of Section 36 of that act it is provided that—

' ‘ In criminal cases all fees and costs shall be the same as now fixed in the police court of said city.”

Without considering the constitutionality of this enactment because of the fact that it incorporates by reference provisions of a law which it at the same time repeals, it is sufficient to say that if there was no provision of law for the fixing of such fees in the police court of said city the aforesaid provision of Section 36 of said act could have no force. Tbis act was repealed by an act found in 103 O. L., 682, passed April 18, 1913, and this act also carries the same provision with an amendment, however, that the “court * * * by rule may establish a schedule of fees and costs to be taxed in all actions and proceedings, in no case to exceed fees and costs provided for like actions and proceedings by general law.”

These provisions, however, can have no application to the fees earned prior to their enactment.

The claim of the trustees of the police relief fund to the fees in question upon the ground that the defendant, Kohler, did not personally perform the services for which said fees were taxed, but that said services were rendered by subordinate police officers and have been assigned by the latter to said trustees, must also fail, because what has been said here in respect to the lack of authority for the allowance of said fees to a chief of police applies also to all police officers. There is no statute fixing the fees in a police court of any police officer in state criminal cases. We are inclined to the opinion that under Section 13500 a warrant should be issued to the officer who is expected to serve the same, and such officer must personally perform that service to be entitled to any fees. But this matter is not material in the case of a chief of police or police officer in state criminal cases, for there is no right to fees in the first instance in a police court. ,

In view of the foregoing observations, we are of the opinion that none of the pleadings in the original action state a cause of action and that the learned trial court should have sustained demurrers as to all pleadings before it. And we would now render the judgment that court should have rendered were it not for the fact that we believe this case should be remanded to the court of common pleas for the purpose of allowing the state of Ohio to intervene by a cross-petition setting up its right to the money now in the treasury of this county to the credit of said chief of police in the cases here in controversy.

Judgment reversed, and cause remanded for further proceedings according to law.

Walters, J., and Sayre, J., concur.


source: Caselaw Access Project

author: Kunkle, J.

license: Public Domain

text:
    LIEN ESTABLISHED FOR ATTORNEY’S FEES.
    Court of Appeals for Franklin County.
    Walcutt v. Huling, etc., et al.

    Decided, March 24, 1913.

      Equity—Attorney and Client—Action for Allowance of Fees—Neither Forty Entitled to a Jury as a Matter of Right.

    1. A suit may he brought in equity by an attorney to establish a lien for attorney’s fees upon a fund in court and which has been produced by the efforts of such attorney.
    2. In such an action neither party is entitled, as a matter of right, • to a trial by jury.

      G. M. Addison, for plaintiff in error.

      J. M. Todd, Charles P. Outhwaite, J. H. Dyer, Cyrus Huling and Frank C. Hulmg, for defendants in error.

       Affirmed without opinion, Waloutt v. Buling, 92 Ohio State, 518.

   Kunkle, J.

In the trial of this ease the lower court, after ordering the payment of costs, distributed the remainder of a certain fund among the following attorneys, namely: Cyrus Huling, Cyrus Huling, as assignee of Frank Davis; Joseph H. Dyer, as executor, and Gilbert H. Stewart.

The entry, after fixing the amounts to be paid to each of said persons, provided that such amounts should be paid “Or such proportion of such amounts as the respective claims bear to the total fund herein ordered to be paid to the clerk of this court, after the payment of the costs and expenses herein ordered, and if, after the payment of said costs and expenses and the claims of said plaintiff, Cyrus Huling and the defendants, Gilbert H. Stewart and Jos. H. Dyer, executor, as herein ordered, there remains any balance in said fund, the same shall be paid to the defendant, John M. Walcutt.”

The court found that the legal services rendered by the above-named attorneys were reasonably worth the amounts so found due such attorneys, and such sums were declared a lien upon the said fund then in the hands of the court, which fund was realized from the collection of a judgment against the city df Columbus in favor of John M. Walcutt, plaintiff in error. This judgment was obtained through the efforts of the above-named attorneys.

Plaintiff in error seeks a reversal of the findings and order of the lower court. Various errors are assigned. Counsel for plaintiff in error, among other things, claims that the allowances made for attorneys’ fees are excessive; that the lower court had no authority to refer the ease to a master commissioner; that the plaintiff in error was entitled to a trial by jury, and that Gilbert H. Stewart and the estate of Judge Eli P. Evans were neither necessary nor proper parties to the proceeding.

When the case was referred to the master Mr. Walcutt did not appear, either in person or by attorney, for the purpose of introducing evidence or cross-examining the witnesses. .

We have examined the bill of exceptions, but shall not attempt to discuss the evidence in detail. It is sufficient to say that whatever view we might entertain as to the total amount of attorneys’ fees which should have been allowed, we could not make any modification of such allowances which would be based upon the evidence. The evidence justifies the allowances made by. the lower court. As above suggested, if we should make any modification in such allowances the same would not be based upon the evidence, but would merely represent our notion of the total allowance which should have been made in such case. We would not be justified in so doing.

Was the plaintiff in error entitled to a trial by jury? If so, then the case should not have been referred to a master; if not, then the court had authority to refer the case to a master.

The original petition of the plaintiff below, filed July 12, 1911, sought to recover a personal judgment against Mr. Walcutt in the sum of $10,000 for legal services, and also asked that the city of Columbus be enjoined from paying the amount due on the judgment in question to defendant Walcutt.

Under the original petition either party would have been entitled to a trial by jury.

On September 11 plaintiff below filed an amended petition, in which he changed his cause of action against the defendant Walcutt. 'The prayer of the amended petition is as follows:

“Wherefore, plaintiff prays that the court on final hearing hereof hx and determine the amount of the reasonable compensation of plaintiff for his services as set forth in his nrst cause of action Herein at the sum of ten thousand dollars ($10,000), or such other sum as to the court may seem just and proper, with interest from the 12th day of July, 1911, and decree and order that such sum so found by the court be and operate as a lien upon the fund and proceeds of said judgment, and order the same to be paid to plaintiff out of said fund. And that the court fix and determine the amount of the reasonable compensation of the said Frank A. Davis for his services as attorney in said cause as set forth in the said second cause of action herein at the sum of five thousand dollars ($5,000), or such other sum as to this court seems to be just and proper, with interest from the 19th day of July, 1911; and decree and order such sum so found by the court to be and operate as a lien upon the fund and proceeds of said judgment; and that the court order the same to be paid to plaintiff out of said fund. And that a temporary restraining order issue, restraining said city of Columbus from paying the proceeds of said judgment to said John M. Walcutt, and restraining said John M. Walcutt from receiving the proceeds of said judgment pending proceedings herein; and for all further relief to which in equity plaintiff is entitled.”

On September 30 defendant Walcutt filed an answer to the amended petition. On December 5 Gilbert H. Stewart filed an amended cross-petition, and on December 6 Joseph Ii. Dyer, executor, filed a cross-petition. These cross-petitions sought the same form of relief as was asked in the amended petition of Mr. Huiing. The case below was, therefore, tried upon the amended petition of Mr. Huiing, the amended cross-petition of Gilbert H. Stewart, the cross-petition of Mr. Dyer, executor, and the answers thereto of the defendant Walcutt.

The plaintiff below in an action at law could recover a money judgment against Walcutt for the value of his services or he could bring an action in equity to enforce his lien against the judgment in question.

Under the amended petition and the answer thereto we think the issues raised and presented to the court were of an equitable nature. The issues so raised related to the right of the plaintiff below to engraft a lien on the judgment in question for such amount as the court found was equal to the reasonable value of his services. If we are correct in this conclusion then the case was triable to a court and not to a jury.

The decisions of our Supreme Court do not in words hold that an attorney has a lien upon a judgment which was secured through his efforts, but we are unable to reconcile certain decisions of our Supreme Court except upon the theory that that court recognizes the existence of such a lien. See Reece v. Kyle, 49 Ohio St., 475, at page 480:

“Reece had an unsatisfied claim for fees in obtaining a judgment for McMillan. His relation as attorney, as to that judgment, had not terminated. His claim gave him an equitable interest in the judgment, and a lien upon it.” See also Diehl v. Friester, 37 Ohio St., 473.

A very complete statement of the interest which an attorney has in a judgment which was secured through his efforts is found in the notes to the case of Manna v. Island Coal Company, reported in 51 American State Reports, pages 257 and 258:

“Besides the general or retaining lien which an attorney has upon papers, books, documents, money and other property in his possession, to secure his professional compensation he has what is called, for want of a better name, a particular or charging, lien upon a judgment procured by him for his client. This right to recover for his services in obtaining a judgment for his client is called a lien, in the broad sense of the term, although it does not depend upon possession, but rests merely on the equity of the attorney to be paid his fees and disbursements out of the judgment which he has obtained. It is considered reasonable and proper that an attorney, by whose labor and at whose expense a judgment has been obtained for his client, should have an interest in that judgment which the law will regard and protect. An eminent judge once said ‘that the convenience, good sense and justice .of the thing required it.’ So, while we talk of an attorney having a lien upon a judgment, it is, in fact, only a claim or right to ask for the intervention of the court for his protection, when, having obtained a judgment for his client, he finds that there is a probabality of the client depriving him of his interest in the fruits of that judgment. The lien of an attorney upon a judgment is an equitable lien, and is upheld simply upon the theory that his services and skill produced it. This seems to be the only ground upon which this lien has ever been put. Little is known of its origin, but the principle has long been recognized that a ‘party should not run away with the fruits of the cause without satisfying the legal demands of his attorney by whose industry, and, and in many instances, at whose expense, those fruits are obtained.’ ”

The syllabus in the case of McKelvy’s and Sterrett’s Appeals, 108 Pa. St., 615, is as follows:

“1. An attorney has a lien for his services only upon a fund or upon papers which he actually has in his possession. But where a fund is brought into a court of equity hy the services of an attorney, who looks to that alone for compensation, though his interest is not of the nature of a lien, he is the equitable owner thereof to the extent of the value of his services, and the court administering the fund will intervene for his protection, and award him a reasonable compensation therefrom.

“2. The court may in such case determine itself, or through an auditor, what is a reasonable fee, without referring the matter to a jury.”

See also 4 Cye., 1005:

“The charging lien of an attorney is an equitable right to be paid for his services out of the proceeds of the judgment obtained by his labor and skill. ’To the extent of such services he is regarded as an equitable assignee of the judgment.”

We also think Mr. Stewart and Mr. Dyer, as executor, were proper parties. They claimed an interest in and a lien upon this fund. The amounts claimed by Mr. Huling, individually and as assignee of Mr. Davis, Judge Stewart and Mr. Dyer, as executor, exceeded the total amount of the fund in the hands of the court. Each of the parties claimed a lien upon this fund on account of legal services rendered in creating the fund. We think they were proper parties, not only for the purpose of de» termining the amount of their respective claims but also the priorities thereof, if any priorities existed, and the ratio of distribution in the event the claims as allowed exceeded the fund and were found valid liens thereon.

We think the distribution made by the lower court was correct, namely, that there should be paid “Such proportion of said amounts to the said Huling, Stewart, and Dyer, executor, as their respective claims bear to the total fund herein ordered to be paid to the clerk of the court.”

We find no prejudicial error in the record, and the judgment of the lower court will be affirmed.

Judgment affirmed.

Allread, J., and Ferneding, J., concur.


author: Powell, J.

text:
    DESCENT OF INTEREST IN LAND.
    Court of Appeals for Licking County.
    Edward T. Koch et al v. Lindsay H. Bounds et al.
    Decided, October Term, 1916.

      Partition—Determination as . to Whether Interest in Land Game hy Descent or Purchase.

    Under the holding in 1 Ohio State, 107, the title of William Bounds to the lands there in issue was a title which could be redeemed by his heirs at law by virtue of-the statute of descent and distribution, and such redemption having been effected the title to a one-fifth interest in said lands which passed to the son, Robert Bounds, was an ancestral title and not one by purchase, and said one-fifth interest has descended to the heirs at law of said Robert Bounds, and not under the will of his widow, wherein it was attempted by her to pass the said title to her second husband whose heirs at law are plaintiffs herein.

      Stasel & Cornell, for plaintiffs in error.

      Kibler & Kibler, contra.
   Powell, J.

This is a suit in partition, and the lands to be partitioned are described specifically in tbe answer and cross-petition of tbe defendant, Lindsay H. Bounds. The single question presented' for adjudication is whether or not the one undivided fifth part of said lands that belonged to Robert Bounds, deceased, came to the possession and ownership of the said Robert Bounds by descent or by purchase.

It is claimed on the part of the plaintiffs in error that Robert Bounds’ original title to the undivided fifth part of said lands was a title by purchase, while it is claimed by defendants in error that said undivided fifth owned by Robert Bounds was a title by descent from William Bounds, his father.

William Bounds became the owner of the certificate of entry of said lards in about 1820, the"said certificate having been issued in 1836. William Bounds assigned the certificate of entry to one Edwards as security for a debt owing by him to the said Edwards. Afterward the certificate was assigned by Edwards and came into the hands of one Samuel Stover. At the time of the assignment by Bounds to Edwards, a contract was entered into between them, by which Bounds reserved to himself the right to redeem said lands within a time named and upon condition that the debt due to Edwards should be paid.

Stover, when ho became the owner of said certificate, paid the balance of the purchase price due upon the same, and also paid the claim for which said certificate had been assigned. He then procured a patent to issue from the general government to him for said lands. After obtaining the patent in 1824 or 1825, he brought an action of ejectment and recovered possession of said lands from Bounds.

Bounds remained in the neighborhood for about a year after Stover had recovered possession and then disappeared, and, so far as the record discloses, was never afterward heard from.

Stover continued in possession of the -lands covered by said patent until his own death in 1835. Shortly afterward the heirs at law of William Bounds began suit against the heirs at law of Samuel Stover to redeem said lands. Afterward, by judgment of the Supreme Court of the state of Ohio, a decree was entered, authorizing such redemption and ordering conveyance of said lands by the heirs of Samuel Stover, deceased, to the heirs of William Bounds, deceased, of whom the said Robert Bounds was one. Bounds v. Stover, 1 Ohio St., 107.

Robert Bounds, some time after said decree was entered, went to the state of California and remained there until about the year 1856, when he returned and bought the interests in said lands of his brothers and sisters, so that there is no question that his title to four-fifths of the land sought to be partitioned is a title by purchase; the other one-fifth is claimed to have come to him by descent from his father, William Bounds.

• Some years afterward Robert Bounds married and on his death without issue surviving him, his widow, Margaret Bounds, became the owner in fee by virtue of the statutes of descent .then in force, of four-fifths of said lands, with a life estate in the other fifth that had originally belonged to her said husband, if it was an estate by inheritance; and if it was an estate by purchase, she was also the owner of said one-fifth, and this is the question presented to us for solution.

It arises in this way: Margaret Bounds, after the death of Robert Bounds, was remarried to William II. Koch, who survived her. She left a will devising all her interest in said lands to her said husband, who was the original plaintiff in this action, and who died during the pendency of the same. The action was revived in the name of his legal representatives, and they are the plaintiffs in error in this court. The defendants in error are the heirs at law of Ribert Bounds, so that the contention here is between the respective heirs at law of the two husbands of Margaret Bounds, deceased.

The original action between the heirs of William Bounds and the heirs of Samuel Stover is reported in 1 Ohio St., page 107. It is there held that the assignment of the certificate to Edwards with a contract reserving the right to redeem said lands on the‘payment of the amount due to Edwards, constituted a mortgage on the part of Bounds to Edwards, and the court there say that “once a mortgage, always1 a mortgage.” The court also held that the' interest or title of William Bounds in said lands was a superior title to that of Samuel Stover, although Stover had obtained the patent for the same from the United' States Government; and the court entered a decree authorizing the heirs of Bounds to redeem said lands from the heirs of Stover.

It is also there held that because Stover took the assignment of said certificate of entry with full knowledge of the rights of Bounds in said lands under his contract with Edwards, he took such title as he could obtain with a right of redemption remaining in Bounds, that could be exercised any time within the bar of the statute of limitations; or, in other words, the certificate of entry carried with it to Bounds a title to said lands, though not a complete title; and the court recognizes that such title would descend according to law by entering a decree in favor of the heirs of Bounds against the heirs of Stover. Such title, then, as William Bounds possessed, was a title that could be redeemed by his heirs at law by virtue of the statute of descent and distribution.

It was further held that Stover did not obtain a clear and indefeasible title through Edwards by the assignment of said certificate and the procuring of said patent for said lands.

The court held, in the case cited, that the certificate of entry, while it carried incomplete title to the owner of the same, gave the party to whom it belonged the right to enter and hold the land covered by such certificate; it also gave him the right to obtain a complete legal title to the exclusion of all other persons, by the payment of the balance of the purchase price; and that the same was a title to the lands, although not a perfect one.

It follows that the heirs of Bounds obtained title by descent from William Bounds, with a right to make their title complete by the performance of the conditions of such certificate of entry and the payment of any obligations for which said certificate had been assigned, and that when their title became perfected, it became a perfect title by descent and not by purchase.

The court has arrived at the conclusion that Robert Bounds' inherited one-fifth of the lands described in the answer and'cross-petition from his father, William Bounds, deceased, and that his title to said one-fifth is an ancestral title, and not one by purchase. This having been the holding of the court below, it follows that the judgment of that court must be affirmed.

Judgment "affirmed.

Shields, J., and Houck, J., concur.


text:
    PROVISION FOR AVOIDING LEASE FOR SALOON PURPOSES.
    Court of Appeals for Franklin County.
    The Gambrinus Brewing Co. v. Beall.
    Decided, February 29, 1916.

      Lease—Property Taken for Saloon Purposes—With Provision that Lease May be Avoided—If Sale of Liquor on Said Premises is Prohibited.

    A lease of real estate containing a provision that the same may be terminated, at the option of. the lessee, if the sale’ of intoxicating liquors upon such premises is prohibited by township, municipality, state or other legal authority or action under and by virtue of existing or future laws, may be avoided by the lessee when it appears that a license for the sale of intoxicating liquors, upon the premises so leased, has been refused by the county liquor licensing board upon the ground that the full quota of saloon licenses in such municipality has been exhausted.

      Addison, Taylor, Williams & Cole, for plaintiff in error.

      Pugh cb Pugh, contra.
   Kunkle, J.

Bruce Beall, plaintiff below, brought suit against the G-ambrinus .Brewing Company, defendant below, to recover judgment in the sum of $130 with interest, as rent for premises No. 50 Greenlawn avenue, Columbus, Ohio, for the months of Janu&vj, Februarjr, March and April, 1914, under a lease beginning on the first day of March, 1910, and extending for a period of five years thereafter.

Defendant below for amended answer and for a first defense, after making certain formal admissions as to its corporate capacity, the' execution of the lease, the occupation of the premises and the payment of certain rent, denied the other allegations of the petition.

In the second, defense of the amended answer defendant belo.w in substance alleged that under a notice’ given in pursuance to the provisions of tlie said lease it was released from the payment of further rent after November, 1913.

In the third defense of the amended answer, in addition to repeating the averments of the second defense, defendant below alleged that in pursuance to said notice it surrendered the possession of the said premises to plaintiff below and that he accepted the surrender of the possession of said property.

The reply, after admitting the stipulation in the lease as set forth in the second and third defenses, denied each and every other allegation thereof.

A jury was waived and the case was submitted to the court.

The court rendered a judgment in favor of plaintiff for the amount claimed.

Motion for a new trial having been overruled, error is prosecuted to this court.

The case turns upon the following provision found in the lease, viz.:

“It is further’agreed and understood by the parties hereto, that if the sale of intoxicating liquors upon the premises herein described is prohibited during the term of this lease by township, municipality or state or any other legal authority or action under and by virtue of existing or future laws or actions providing and authorizing the same, then the lessee may at its option terminate this lease by giving thirty days written notice to the lessor of its intention to so terminate this lease. ’ ’

As above stated the lease "was executed in 1910—that is, prior to the adoption of the new constitution and the passage of the license act regulating the trafficking in intoxicating liquors.

Plaintiff in error under the lease was authorized to, and did, sublet the premises to- one Cook who conducted a saloon thereon.

Under the constitution as well as under the’license act the number of saloons in any municipality is limited to one for every five hundred of population.

On the fifth day of November, 1913, the county liquor licensing board of Franklin county issued the following notice to Cook:

“Note: 'This notice is to be used only when full quota has been granted.

“Notice oe Rejection.

“Mr. Thomas Cook,

“50 Greenlawn Avenue, Columbus, Ohio.

“Sir: You are hereby notified that your application No. 305 to traffic in intoxicating liquors has this day been rejected, - for the reason that the full quota of saloon licenses which under the constitution and law may be granted in the city of Columbus has after due consideration of all applications filed, been granted and will be delivered in accordance with law to other qualified and fit applicants. The constitutional limitation will not permit, therefore, the issuing of a license to you.

“Dated this fifth day of November, 1913.

“The Franklin County Liquor Licensing Board,

“L. W. Buckmaster,

“F. R. Vance,

“Members.”

Upon the basis of the above notice plaintiff in error gave written notice to defendant in error as follows:

“Columbus, Ohio, November 21, 1913.

‘ ‘ Registered.

“Mr. Bruce Beall,

“Columbus, Ohio.

“Dear Sir: No license being given on the premises under lease at No. 50 Greenlawni avenue, we hereby give you notice that we will terminate this lease in thirty (30) days from this date.

“Yours very truly,

“Gambrinus Brewing Company,

“By Paul Feinknope.”

Plaintiff in error thereupon vacated the leased premises.

It becomes a question of law under the above statement of facts as to whether plaintiff in error was entitled to surrender the lease and escape liability thereunder for future rents. .

It is claimed by counsel for plaintiff in error that the' constitutional amendment and the license act limiting the number of saloons, when taken in connection with the action of the county liquor licensing board in granting to other persons and places the full quota of licenses to which this city was entitled and in refusing a license to Cook to conduct a saloon on the premises in question, because the full quota had been granted to other persons, bring the case within the stipulation of the lease above quoted. ■

Counsel for defendant in error contend that the license act applies only to the person making application to be licensed, and does not either directly or indirectly apply to the place or prohibit the sale of intoxicating liquors upon any particular premises.

Section 21 of thé license act (Section 1261-36, General Code) among other things provides that each applicant shall state:

“(b) ' The-premises where the business of selling is to be carried on, including the- street and number where there is such street or number.”

Section 19 of the license act (Section 1261-34, General Code) prohibits the granting of licenses to certain persons and also the granting of licenses to operate a saloon in certain localities.

The' granting of a license is a determination not only of the fitness of the applicant, but also of the suitableness of the place.

Section 23 of the license act (Section 1261-38, General Code) .among other things provides that the license certificates shall be uniform for all counties, and shall specify the county and city or township, and the street and number wherein the license shall be good.

Section 36 of the license act (Section 1261-51, General Code) in brief provides that' no licensee shall remove his place of business during the license year to any other location than that named in the application without an endorsement of the said ■board.

From these provisions we think it follows that each licensee is required to conduct- the trafficking in intoxicating liquors upon the premises described in the application, and -that when the full quota of. licenses is issued the sale of intoxicating liquors in all premises not included in the various licenses is prohibited.

The prohibition would follow as a legal result from the provisions of the license act and the action of the county liquor licensing board in refusing a license.

When' applied to the ease, at bar we think it would-follow that the sale of intoxicating liquors upon the said premises, after the action of the county licensing board became effective was prohibited within the meaning of the stipulation of the lease above quoted.

Counsel for defendant in error rely upon the case of Lynch v. Val Baltz Brewing Co., 179 Mich., 355.

In the Michigan case the license of the sub-tenant - was revoked for misconduct, and the other applicants for a license were refused in part, if not wholly, because of the reputation of the place.

In the Michigan case it seems the license board had authority to grant the application for a license to sell liquor upon the premises in question, but declined-to do so for reasons sufficient to themselves.

In the case at bar the board had no authority to issue a license after the quota was exhausted, and based their refusal to issue a license to Cook-solely upon the ground that their power was exhausted. ........

It is also contended that the character of the applicant, is presumed to have been considered by the-board in issuing, the quota of licenses to other persons, and that the character of Cook may have been the real reason for the selection of other applicants and the rejection of Cook.

We think the presumption is just as strong that the proper distribution of saloons throughout the city may have influenced the board in rejecting this particular application.

However that may be, there is nothing in the record which would warrant us in finding .that the license was refused because of the unfitness of Cook, and in the absence of any facts in the record warranting such finding we must rely upon the statement of the board, which is that the license was refused Cook because the full quota had been exhausted.

The letter of defendant in error to plaintiff in error, of date December 1, 1913, states that the refusal to grant a license was due to the unfitness of Cook; but such statement being a self-serving declaration, and not being supported by any evidence, could not be permitted to overthrow the reason assigned by the board.

We .think it was the intention of the parties when the lease was executed that the lessee should have the option of terminating the lease whenever the public authorities made it unlawful to traffic in intoxicating liquors on tlie premises in question.

Counsel for defendant in error also suggest that there is no proof that Cook was a sub-tenant of plaintiff in error.

Counsel for defendant in error contend that while there is no reply to the first defense of the amended answer, the averment that Cook was a sub-tenant of plaintiff in error is denied in the reply to the second and third defenses, and should therefore be considered as a fact which has been put in issue. We do not think it necessary to pass upon the question of. pleading; as the fact that Cook was a sub-tenant of plaintiff in error is found as an admission in the letter written by defendant in error to plaintiff in error and attached to the bill of exceptions as an exhibit.

In view of the conclusion at which we have arrived as to the legal effect of the provision in question in the lease, it is not necessary to consider whether or not defendant in error voluntarily accepted the surrender of the lease.

We express no opinion as to the result should it be made to appear from the evidence that the license was refused because of the unfitness of Cook, or because of his failure to apply for a license within a reasonable time.

For the reasons above stated, the judgment of the lower court will be reversed and cause remanded.

Ferneding, J., and Ablread, J., concur.


author: Houck, J.

text:
    DEFENSE OF SETTLEMENT IN AN ACTION FOR. INJURIES.
    Court of Appeals for Licking County.
    Edward M. O’Grady v. City of Newark, Ohio.

    Decided, March Term, 1917.

      Evidence—Receipt Showing Settlement for the Injury Complained of hy Plaintiff Competent, When—Determination as to Whether the Alleged Settlement Was a Bar to the Action.

    1. A receipt purporting to be a release from the claim sued on, when properly identified, is competent as evidence under the circumstances presented by this case, but its sufficiency and weight are matters for determination by the jury.
    2. A reviewing court will not disturb the finding of a jury as to whether the purported settlement is a bar to the plaintiff’s action, where they had been instructed that if the settlement was made at a time when the plaintiff was in such a mental condition, either by reason of his injuries or from opiates, that he did not understand the nature and effect of the alleged' settlement, the payment made to him or to some one for him does not constitute a defense to the action.

      Fragile A. Bolton, for plaintiff in error.

      Ralph Norpell, City Solicitor, contra.

       For previous decision in same case, see 26 C.C. (N.S.), 47.

   Houck, J.

The parties in this proceeding stand here in the same position as they stood in the court below. The action below was one to recover damages for alleged injuries received by the plaintiff by reason of the explosion of a small boiler used in a peanut roaster, which plaintiff claims was permitted to be operated on a certain street in the city of Newark, Ohio, and that by the carelessness and negligence of said city, through its agents and officers, said boiler exploded, and a part thereof struck said plaintiff on the right leg and violently threw him to the ground cutting his leg and injuring his head, to his damage in the sum of $5,000. The plaintiff avers that said injuries were in no way caused by any negligence on his part.

The city filed its answer, setting up two defenses, first, a general denial ¡'second, that it had fully settled with plaintiff and paid to him the full .amount that they agreed to pay as per the terms and conditions of said contract of settlement, and prayed that the petition of plaintiff be dismissed.

The plaintiff filed a reply in the nature of a general denial to said second defense, and affirmatively averred that at the time of the alleged settlement the plaintiff was mentally incapacitated from making a valid and binding settlement, or contract of release.

Upon the issues thus raised by these pleadings, the cause was submitted to a jury upon the evidence, and after due deliberation the jury returned a verdict for the defendant. A motion for new trial being overruled, judgment was entered on the verdict. Plaintiff in error now seeks a reversal of the judgment so entered for the following reasons:

First. That the trial judge erred in admitting certain evidence.

Second. In not submitting special request number four to the jury.

We have made a careful examination of the record in this case and have read the evidence as presented in the bill of exceptions for the purpose of satisfying ourselves as to the claims of plaintiff in error. Counsel for plaintiff in error earnestly urges that the trial court erred in permitting a certain receipt, alleged to have been signed by the plaintiff in error, which receipt purported to be a release of all of his claims for damages against said city, to be offered in evidence, and which receipt tended to prove the settlement relied upon by the defendant.

From our examination of the bill of exceptions, we are fully satisfied that the receipt was sufficiently identified to warrant the court in admitting it in evidence, as .an exhibit to go to the jury,' in connection" with certain oral testimony, as tending to prove the claim as to the settlement alleged to have been made between plaintiff and defendant, as set out in tbe second defense of the answer of said defendant. We feel that, from all the circumstances and surroundings of the case, and the testimony offered by plaintiff and defendant as to what occurred at the time of the claimed settlement and the execution and delivery of the receipt in question, it was proper evidence to go to the jury, but .as to its sufficiency and the weight to be given to it—these were questions for the jury to determine.

The second error which counsel for plaintiff in error alleges as a ground for reversing the judgment of the court of common pleas is the refusal of the trial judge to submit to the jury a certain special request designated as number four, which reads as follows: •

1 ‘ The court charges you that the defendant has pleaded as a second defense a settlement or satisfaction of the claim of the plaintiff for damages, and that the defendant must show not only that there was an agreement between the parties, but that the satisfaction of the same has been full, perfect and complete. If the jury should find that there is still due the defendant from Sam Kantress some money under the agreement alleged to have been entered into, and that the agreement has been but partially satisfied, said settlement is no defense to the action of this plaintiff, blit the amount paid may be credited on any amount that may be found due the plaintiff.”

We have examined this proposition of law in the light of the issue raised by the second defense and the reply thereto, and the facts as established by the evidence, and we hold that the court was not in error when it refused to submit the above proposition of law to the jury.

Abstract propositions of law, requested to be given to a jury before the argument, must be given by the trial judge if they are pertinent to the issue, or issues, raised by the pleadings, and applicable to the established facts in the case. Otherwise they should be refused. It is apparent from an examination of the request by the defendant, if we apply the rule herein laid down as to what, special requests in writing before argument shall be submitted to the jury, that request number four was properly refused. 'The question as to whether or not there was a settlement between the parties to this law suit which would bar the plaintiff from maintaining his action, and the question as to whether or not at the time of the alleged settlement the plaintiff was mentally incapacitated from making such agreement, were questions of fact which were submitted to the jury, and were passed upon and determined by it; and in face of the finding of the jury, and in the light of the law which was given to the jury by the court, as contained in special request number three, and given before argument at the instance of counsel for the plaintiff below, we do not see how he can now properly complain. We ■believe this request to be the law, and clearly pertains to the issues raised and the facts to be determined in the case under review. ...

Special request number three reads as follows:

' ‘ The defendant’ in this action has pleaded as a second defense a' settlement of the damages suffered by the plaintiff resulting from the explosion of said peanut roaster or warmer; and the court charges you that if you should find that at the time said receipt was signed and said alleged settlement was made, the plaintiff was in such á mental condition either by reason, of the injuries inflicted upon him, or the administration of opiates, or both, or any other reason, that he could not understand and did not understand the nature or effect of an ordinary business transaction, the payment alleged to have been made to the plaintiff, or to any one for him, is not a defense to the action of the plaintiff herein.”

In passing, we might suggest that but two issues were raised by the pleadings in this case, and upon them the cause was submitted to the jury upon the evidence and the law as given to the jury by the trial judge. 'The verdict of the jury was a general one, in favor of the defendant, and it is not within the province of a reviewing court to determine upon which one of these defenses, or whether upon both of them, the.jury based its verdict.

We think, upon this theory alone, the judgment of the common pleas court in this ease might properly be affirmed. The rule of law herein announced is elearly laid down in the ease of McAllister v. Hartzell, 60 O. S., at page 69, second paragraph of the syllabus, which reads as follows:

‘ ‘ 2. "Where two issues are presented in the pleadings for the determination of the jury, and there is a verdict finding the issues for the defendant, and such finding on either issue entitles him to a general judgment in his favor, and a judgment is rendered on the verdict, such judgment will not be reversed for error in the instructions of the court to the jury relating exclusively to one of the issues. ’ ’

Viewing the record before us as we do, and finding no error therein which would in any way prejudice the substantial rights of the plaintiff in error, we hold that the judgment of the common pleas court should be affirmed.

Powell, J., concurs; Shields, J., not participating.


author: Aldkead, J.

text:
    DEFENSE OF USURY.
    Court of Appeals for Franklin County.
    Clutch v. Ebright et al.
    Decided, October 10, 1916.

      Usury—Defense of, in Action on a Note—Evidence Necessary to Establish Usury—Verdict for Defendant for More Than the Principal May be Ignored—Negotiable Instruments.

    1. In an action on a promissory note tbe defense of usury may be established by a preponderance of the evidence.

      2. Where, in such an action, the jury returns a verdict for defendant upon his cross-petition for t'he recovery of usurious interest in an amount in excess of extinguishment of the principal, the court may ignore such finding and render a simple judgment for the defendant.

      A. Ward Clutch, P. P., for plaintiff in error.

      Belcher & Connor, contra.
   Aldkead, J.

The parties stand in this court as they did in the court below. Plaintiff, A. Ward Clutch, brought suit against the defendants, L. P. Ebright and others, upon a promissory note. Defendants answered with a plea of payment. During the trial leave was obtained to file an amended answer, adding a plea of usury.

The trial resulted in a verdict in favor of the defendants in the sum of $22.48. A motion for a new trial was overruled, the affirmative finding of $22.48 was ignored, and a judgment rendered simply in favor of the defendants.

The case is here upon petition in error. 'The chief assignments of error relied upon by counsel are, first, the granting of leave during the trial to file an amended answer tendering an issue as to usury; second, the charge of the trial court that .the deense of usury might be established by a preponderance of evidence ; third, that the trial court erred in not setting aside the verdict entirely, because of the erroneous finding of $22.48 in favor of defendants, and in rendering a judgment upon' the verdict after eliminating such finding; and, fourth, that the verdict is not sustained by sufficient evidence.

We think it was discretionary with the trial court to allow the amended answer to be filed and that there was no such abuse of discretion in respect thereto, under the circumstances disclosed in the record, as would justify the granting of a new trial.

Upon the contention that the defense of usury must be established by clear and convincing evidence, cases .have been cited from the states of New York, New Jersey, Virginia and Georgia. In these states, however, it will be observed that usury involves a penalty or forfeiture, and the decisions requiring clear and convincing evidence are based upon the proposition that a penalty or forfeiture is involved.

There are many cases from other states holding that the defense of usury may be established as in other civil eases, by a preponderance of evidence.

In 39 Cye., page 1055, the author, after reviewing eases holding that the defense of usury must be established by clear and convincing evidence, says:

“This, however, is a higher degree of proof than is required by the great majority of eases in which the question of usury is involved. The rule is that the degree of proof required is the same as in other civil cases, and that the usury need not be proved with that strictness required to support a criminal charge. In other words, as in other civil eases, usury must be established by a preponderance of evidence, but this is all that is required.”

Section 8306, General Code, provides that payment of money or property by way of usurious interest shall, as to the excess of interest above the rate allowed by law, be taken to be payment on account of the principal. In other words, páymets of usurious interest are declared by our statute to be payments upon the principal. There is no forfeiture of the principal, nor is there any forfeiture of legal interest. The statute is remedial and not penal. See Wheatley v. Waldo, 36 Vt., 237; Nichols v. Stewart, 21 Ill., 106, and Musselman v. McElhenny, 23 Ind., 4.

.Counsel for plaintiff in error, however, relies upon the case of Boone v. Andrews et al, 10 C.C.(N.S.), 377. In the syllabus of this ease it is held:

“Where usury is pleaded as a defense to a written instrument in contradiction to the terms of such instrument, the burden is on the party so asserting it, and the plea must be supported by clear and satisfactory evidence.”

The case was not an action upon a promissory note where the usurious payments were asked to be credited on the principal under our statute. The case involved the setting aside of a written contract of a more or less intricate nature. We do not controvert the correctness of this decision and of the syllabus above quoted, but we have reached the conclusion, after full and careful consideration, that in an action upon a promissory note, where the usurious payments of interest are set up and asked to be applied as credits upon the principal, such defense1 may be established by a preponderance of the evidence.

The next objection relates to the affirmative verdict upon the cross-petition in favor of the defendants.

It is clear that, the defendants were not entitled under our statute to recover the excess of the usury after liquidating the principal. To that extent the verdict was erroneous.

Still we think the trial court was authorized to reject the erroneous part of the verdict and render a simple judgment for the-defendants. This the court did.

We have carefully considered the other objection, relating to the sufficiency of the evidence. As to the amounts of payments upon the principal and interest, and as to the amounts of commissions paid by the plaintiff, there is some conflict, but we are clearly of the opinon that the verdict and judgment in respect thereto are not against the manifest Aveight of evidence.

Counsel for plaintiff in error insists, however, that the plaintiff had a legal right to charge commissions in the making of a renewal of this loan, because he claims that the evidence shows that the loan Avas really for his brother and that plaintiff was acting as agent.

The controversy here is as to the fact. The notes were made to the plaintiff and the suit was • brought in plaintiff’s name. There is also evidence to the effect that the loan was made by plaintiff. There is evidence of some force to the effect that as between the plaintiff and his brother the loan was regarded as that of the brother. The trial court submitted this as a question of fact to the jury and their verdict implies a finding upon their part that the loan AA'as that of the plaintiff. While different juries might have arrived at different conclusions upon this question of fact, yet Ave are of opinion that a reviewing court would not be justified in disturbing the verdict upon this issue.

Finding no prejudicial error, the judgment will be affirmed.

Judgment affirmed.

Ferneding, J., and Kunkle, J., concur.


author: Kinkade, J.

text:
    INJUNCTION AGAINST PLACING CERTAIN TAXES ON THE DUPLICATE.
    Court of Appeals for Wood County.
    Isaac Shuler v. C. E. Stinebaugh, Auditor of Wood County.
    Decided, October 22, 1913.

      Action by Plaintiff and on Behalf of Others Similarly Situated,—To En~ join Placing Certain Taxes on the Duplicate—Not Open to Motion to Strike Out, When.

    Suit to enjoin the county auditor from placing on the duplicate taxes against the lands of the plaintiff and others similarly situated who are named in the petition, is not open to a motion to strike out all parts relative to parties other than the plaintiff, where the proposed action of the auditor would affect the plaintiff in the same manner as each of the classes of owners for whom he is assuming to act.

      F. P. Reigle, for plaintiff.

      C. S. IIatfield and F. M. Pries, contra.
   Kinkade, J.

This action was brought in the court of common pleas to restrain the defendant, the auditor of Wood county, by injunction from placing upon the tax duplicate of Wood county certain taxes against the lands of plaintiff and some two hundred and eight other parties represented by plaintiff, and similarly situated, as the result of an alleged illegal order made by the board of equalization.

The defendant moved the court to strike out all parts of the petition relative to parties other than the plaintiff. This motion was overruled by the common pleas judge and, thereupon, in order that a final judgment might be entered in the ease, a demurrer was filed by the defendant, which was overruled by the court of common pleas, and the defendant not desiring to plead further, judgment was entered accordingly and the case appealed here.

The motion to strike from the petition is renewed here and is the sole question in issue, the defendant conceding that in so far at least as the plaintiff is concerned individually the petition does state a cause of action.

It is alleged that three classes of owners are affected by the alleged illegal order complained of, and the plaintiff by the allegations of his petition shows the order to be effective as to him in each of the three classes.

It is contended on behalf of the .defendant that, even though it should be conceded the order complained of was illegal, that notwithstanding this the plaintiff and the parties whom he seeks to represent in this action could not join in one suit and avoid the effect of the order, and that hence one can not appeal for all under Section 11257 of the General Code.

It is said in behalf of this position that, inasmuch as the effect upon the different defendants is different arising' out of this alleged illegal order, therefore their rights are so distinct and separate as that they may not join in a representative suit such as this.

We are of the opinion that the cases cited by counsel for the defendant, 29 O. S., 500, and 76 O. S., 112, do not sustain the proposition.

We think the law of Ohio upon this subject is clearly stated in paragraph nine of the syllabus in the case of Upington, for Himself and Others, v. Oviatt, Treasurer, et al, 24 O. S., 232, which reads as follows:

“Two or more of the several owners of lots assessed for street improvement claiming the assessment to be for the same reason invalid as to each, may properly join in an action to restrain the collection of the assessment.

“When the parties thus similarly interested in the question are numerous, one may. sue on behalf of himself and all the others whom he is authorized to represent and who might otherwise rightfully join in the action.”

The motion to strike from the petition will be overruled, and to preserve the question presented by the demurrer, the demurrer will be overruled and the defendant will be granted leave to plead further, if he so desires.

Chittenden, J., and Bicharos. J., concur.'


author: Grant, J.

text:
    JURISDICTION IN DISBARMENT PROCEEDINGS.
    Court of Appeals for Cuyahoga County.
    In the Matter of Edward P. Strong.
    Decided, August, 1917.

      Courts of Appeals—Without Jurisdiction Except as Conferred by the Constitution of 1912—Section 1707, d. C., delating to Proceedings in Disbarment, Without Effect so far as These Courts Are Concerned—But Action, Limited in Its Application, May be Based on ' the Inherent Power of the Court—Penalty for Participating in a drafting Btrilce Settlement.

    1. No jurisdiction in disbarment proceedings has been conferred by the Constitution upon the courts of appeals, and the attempt of the General Assembly to confer such jurisdiction in Section 1707, G. C., being without authority and ineffectual, these courts must rely in such matters upon the inherent power which it is their right to exercise without the aid of formal law; but a penalty of disbarment or suspension from practice must be limited in its application to the court in which it is pronounced.
    2. An attorney at law who, with knowledge, permits a client to use his law cffide as a clearing-house for a grafting settlement of a workingmen’s strike is guilty of misconduct which warrants a penalty of suspension from practice for one year.
   Grant, J.

Our attention having been directed'to an accusation of alleged misconduct in office by Edward P. Strong, an admitted attorney at law practicing in this court, thereupon we appointed a committee to proceed in the matter of such accusation in such way as they might be advised.

Whereupon the managers so appointed exhibited in court a charge against the respondent, alleging, as they said, the misconduct mentioned, involving, as was alleged, moral turpitude, embodying four specifications, together with the evidence taken to substantiate the accusation.

Upon hearing and argument, specifications 1 and 3 were abandoned, and numbers 2 and 4 alone were relied on.

Specification two is of the following tenor and effect, viz:

One Smith was the so-called “business agent” of a labor organization called the Building Trades Council of the city of Cleveland. A strike was called on.or against the Gaylord W. Feaga Company, which Smith undertook to call off; and he demanded and received, as a consideration and condition of his service in so ending the strike—corruptly and wrongfully, as was said—the sum of $3,500. The respondent, Strong, received for himself no part of the money; but he was, and acted as, the attorney of Smith in the transaction, which was negotiated and consummated in and through his .office and with his knowledge. His law office appears to have been a sort of clearing-house for the grafting operation.

, Specification 4 is of a like, effect, except that the sum paid ' was $5,000/ was made to Smith and one Owens, and the payer was the Artificial Silk Mills Company.

The material facts, substantially as we have in brief form stated them, are not in dispute.

The respondent filed no written answer to the accusation exhibited against him, but was heard by counsel orally at the bar.

' "What he has to say, as we understand it, is that, the facts being conceded, still his conduct was- not what is claimed for it by the managers, in legal quality and effect: his defense amounts, perhaps, to what in some jurisdictions is known as a plea of noli contendere—putting the matter up to the court, to be dealt with in result.

The proceeding is prosecuted under the supposed authority of Section 1707 of the General Code, which purports to confer on this court jurisdiction to forbid the accused to practice law in all of the courts of the state, if found guilty of either misconduct in his office of an attorney, or unprofessional conduct involving moral turpitude.

In the view we have concluded to take of this case, it is not very material, we think, to find, specifically, under which of these two separate grounds the delinquency of the respondent falls. If it were thought material, my own inclination would be that the former is made out by the evidence, and not the latter.

Before proceeding to the consequent step of meting out the adequate penalty to be annexed to the respondent’s breach of duty as an officer of the courts of Ohio—including this court— we have thought it fit to examine, with some care, the basis of our power to act in the matter at all,, and the source and extent of the jurisdiction of this court in this proceeding. The question was not raised in argument, but it is in the case—to a considerable degree decisively—and we must deal with it accordingly.

Before the adoption of the amended Constitution of 1912, the General Assembly of Ohio had large discretionary powers to confer jurisdiction upon the courts of the state, including the predecessor of this court. But since that Constitution became effective, the former legislative source of jurisdiction as to this court is cut off and wholly denied. To find what tlie jurisdiction of this court is, in any case, one must go behind the statutes and' look to the Constitution itself. If he does not find warrant for'it there, conclusively it does not exist.

This is not only apparent from a reading of the amended Constitution, but that such is the construction is now expressly settled by adjudication of the Supreme Court in Cincinnati Polyclinic v. Balch, 92 O. S., 415. It is there said: "This amended section of the Constitution does not authorize the Legislature to grant any jurisdiction, original or appellate, to the courts of appeals.”

The statute, therefore, which is relied on to direct us to give judgment in this case, is altogether inert and without power to do so. That the Legislature thought it might with propriety confer the jurisdiction now sought to be exercised, is of course true; for Section 1707, in its present form, was enacted after the-present Constitution' became operative, and it' names courts of appeals in express terms as agencies for working a disbarment in any proper case. But it is equally true that reputable lawyers of long experience have constantly to be admonished to quit' looking at statutes, and to look alone to the Constitution as the source of all jurisdiction of this court, and as to how far in any case it extends, In this very proceeding a possible want of power on our part to determine the matter seems not to have occurred to the able counsel on either side; for no such infirmity is suggested.

Observing this admonition ourselves, and finding in Section 1707 no warrant for the jurisdiction invoked here, let us, too, turn to the Constitution for guidance. We shall fare no better there.

That the jurisdiction called in function is appellate, is, of course, not claimed. We are asked to act in this proceeding ■strictly as a court of first instance. ■ The grants to this court, by the Constitution of original powers in this respect are specific and enumerated. They are limited to the allowing of appropriate writs necessary to exercise a superintending control over inferior jurisdictions, namely, mandamus, quo warranto, proce- ' dendo and prohibition and the great writ of habeas corpus.

We derive no power to proceed to judgment in this case from the Constitution.

Clothed, then, with no authority to act from either Constitution or statute, have we any by unwritten law? Do we have, and may we upon proper occasion assert, an inherent power, residing at all times in gremio legis, in the breast of the cotirt as such, and ready to come forth and administer the appropriate sanction annexed to its inherent existence?

The answer to this inquiry calls for an historical examination of the subject.

At common law, courts had no power to admit practitioners at their bars. They were called to that function by the Inns of Court, which were mere associations or guilds; and the right seems to have depended a good deal- on the number of meals eaten at commons.

It was not so, however, in regard to control of attorneys after admission. It seems that from very early times the courts by common law exercised full jurisdiction over them, even before ’ there was such a thing as a roll of attorneys; for the roll was introduced by 4 Hen. IY., ch. 18; the language of the act in that respect is “that all attorneys shall be examined by the justices, and by their discretion their names shall be put upon the roll.” The fourth Harry began to reign in 1399.

Before that, by the Statute of Westminster, 3 Ed. 1, eh. 29, it was provided, “that if any sergeant, counter, or other, do any matter of deceit or collusion in the King’s Court, or consent to it, to deceive or entrap the court or one of the parties, he shall be no more heard in the court to plead for any one.”

It is said of this statute by Lord Coke, 2 Inst., 213, that as the prohibited practices “were against the common law, therefore this act was made in affirmance of the common law.”

Edward I came to the throne in 1272, so that the statutory affirmance of a power declared to have been already in existence at common law must have antedated the first statutory recognition of attorneys as a class by at least a century and a quarter. Anciently it existed over counsellors as well as attorneys; it is so stated in Hawkins, Pleas of the Crown, 461, and in Reeves’s History, Vol. 2,126. And the control by the courts wherein they practiced over both was summary. Hawkins, P. ,C., 369. In Ex Parte Joseph H. Bradley, Justice Nelson says: “We do not doubt the power of the court to punish attorneys for misbehavior in the practice of the profession. This power has been exercised and recognized ever since the organization of courts.” And this he said in a case involving disbarment in the judgment awarded.

To say that the power existed at common law is to say that in those early times, at least, it was inherent in the courts of common law. It was an asserted and not a derived jurisdiction, to be invoked and exercised as to the apprehension of the courts the occasion might call it forth.

Let us now see whether it has been continued since those times and down to our own.

We have examined many authorities to find a reasonably settled answer to this inquiry. Perhaps the most satisfactory of these in exhibiting what the present state of the law is, and its continuity in unimpaired vigor from the older days, is Danforth v. Egan, 23 S. Dak., 43. The respondent in that case had been disbarred by judgment of the Supreme Court of his state; and, while that judgment was still effectual, he was elected by the people prosecuting attorney for his county. His claim- was, that he might in that capacity still appear and practice in the courts. Upon this state of facts the court observes as follows:

' ‘ Did the framers of the Constitution intend to indirectly take from the courts, in favor of a certain excepted class of person, a right which the statutes of the territory had recognized as resting in the courts; a right recognized for centuries, by all countries and states having laws based on the English common law, as the inherent right of the court; a right necessary in the very nature of courts and the duties devolving upon them; a right which, if lost, would soon bring the courts of our land into contempt; the right to say who as attorneys shall be recognized as officers of the courts, together with the right to expel such persons whenever they have been adjudged unworthy or unfit for this important trust? This right of the courts is as much the law; of our land, and of as much dignity as such, as any law found in the Constitution or statutes. It is not dependent upon either the Constitution or the statutes for its existence, but exists fully in all courts of record, unless expressly restricted or taken away by express legislation; and it is a serious question whether it lies within the power of the Legislature to do more than regulate this right of the court, whether the Legislature can more than prescribe certain qualifications for admission, leaving to the proper court to fix others if it sees fit, and whether the Legislature can more than fix certain grounds for disbarment, leaving to the court to disbar for other reasons within sound judicial discretion. 3 Am. and Eng. Eney. Law, pp. 287, 300 301; 4 Cyc., 900.”

Among the eases which sustain this view we have found the following: In re Goodrich, 79 Ill., 148; Penobscot Bar v. Kimble, 64 Me., 140; In re Martin, 6 Beav., 237; Ex parte Trippe, 66 Ind., 531; Ex parte Steinman, 95 Pa. St., 220; People v. Green, 7 Colo., 237; Serfass’ Case, 116 Pa. St., 455; Manning v. French, 149 Mass., 391; In re Davies, 93 Pa. St., 116; State v. McClaugherty, 33 W. Va., 250; Ex. parte Cole, 1 McCrary, 405; Wall’s Case, 107 U. S., 265.

Weeks on Attorneys at Law, at page 154, sums up what he conceives to be the result of the authorities on the subject, thus:

“The power to strike from the rolls is inherent in the court itself. No statute or rule is necessary to authorize the punishment in proper cases. * * * It is necessary for the protection of the court, the proper administration of justice, the dignity and purity of the profession, and for the public good and the protection of clients. ’ ’

We conclude, upon this point, that we have jurisdiction of the subject brought before us in the proceeding, inherent in our court, and not needing the aid of any written or formal law to call it forth and set it in motion towards such mode or measure of redress or remedy as may commend itself to a fit discretion in our exercise of the power so existing.

The present Constitution of Ohio, as interpreted in Polyclinic v. Balch, supra, allows the Legislature to provide by law for the procedure of the courts in pursuing the jurisdiction conferred by that instrument. And, while it is to be supposed, certainly, that any court having an offended dignity to vindicate, or a morality to safeguard, may furnish its own procedure to that end, we consider the manner adopted by the managers in this proceeding to bring the matter of it to our judicial attention as altogether proper and acceptable.

Having found, so far, that we have jurisdiction, and that its exercise is adequately challenged, we are next to consider to what it extends.

Section 1707, supra, undertakes to give us the power to prohibit the respondent from practicing as an attorney in all the courts of the state; and such is the prayer of the managers. But that is upon the theory that we are to find our jurisdiction in the statute, and not in the constitution of the court, and the inherent necessity of finding it there, which we do not.

Finding, as we do, that a jurisdiction—a power to hear and determine—-resides in the breast of our own court, we are asked to spread it over all courts, reaching upward to the Supreme Court and down to all inferior tribunals, for the purpose, and prescribing for them pains and penalties to be visited upon one who in their estimation may never have offended them or invaded their own strongholds of morality and dignity. In general it may be observed that a court will do well if it undertakes to preserve its own purity against its own officers, and protect its own litigants from being plundered by its own servants; and that its embarking in a career of general uplift, scouring other courts for the purpose, would be a mere impertinence, not to be attempted by the one or tolerated by the others.

• The exact question was before the court in State V. Kirke, 12 Florida, 278, in which the whole matter is luminously discussed.

The syllabus in that respect is:

“The county courts of this state have the power to disbar an attorney and to deny him the rights of an officer of that court, but their judgment can not extend beyond a denial of the privileges of an attorney in that court. It does not directly affect his rights in other courts.”

The power thus allowed to reside in the court was an inherent or asserted power—the same as the only power we admit this court has—and not a power created by positive law.

The same result seems 'to have been reached in a converse manner by the Supreme Court of the United States in In re Tillinghast, 4 Pet., 108. In that case the applicant for admission to practice in that court had been disbarred by the District Court of the United States in his own state (and the record so showed), as for a contempt. Nevertheless, he was admitted, Chief Justice Marshall intimating that one court shhould not interfere with another in that respect.

To an extent that has, as we think, considerable significance, this part of our inquiry has been dealt with by the Ohio courts. In the Thatcher Case (83 O. S., 246), the respondent had entered against him a judgment which had the effect of prohibiting him from practicing as an attorney in all the courts of the state. In looseness of language he was said to be “disbarred”; and so, in point of resulting fact, undoubtedly he was. ' But the question of the form of that judgment we shall deal with presently.

While this judgment amounting to a prohibition of Thatcher was in force, the Legislature undertook to interfere by passing a statute reinstating him in practice, or to that purport. The statute amounted to an attempted legislative reversal of a Supreme Court judgment. In State, ex rel Thatcher, v. Brough, 15 C.C.(N.S), 97, the circuit court for the Toledo district discussed the effect of the Supreme Court judgment upon him as a practitioner in courts of the state inferior to that court. The circuit court found, as we have found, that the power of the Supreme Court to sit in judgment on Thatcher was inherent, and not derivator^ from an outside source; and reached the conclusion that the judgment operated to exclude him from practice in all the Ohio courts. But this operative result, outside of the Supreme Court, was allowed only because of, and was deduced from, the form the judgment was made to take in the entry in the journal. The not very short opinion in the case winds up, in true Spartan brevity, with the one word “Disbarred.” But the syllabus says—followed in that respect in the record—that Thatcher’s name is “stricken from the roll” of attorneys admitted and competent to practice in the state. The circuit court remarks that there is but one such roll, and that is in the exclusive control of the Supreme Court; and adds that it, the circuit court, had no such roll. Nor have we. In the hands of the only court which did have the roll at its disposal, manifestly the effect on the attorney of striking his name from it made a private man of him, and operated to keep him outside the bar; that is, the only bar we are talking about. But a roll of attorneys is evidence of admission and of nothing else. Admission to the roll is statutory, as we have seen. The power to disbar is of common law origin and jurisdiction, as we also have seen. And, while the physical act of striking from the roll may work the effect of a disqualification to practice, that result is not inherent in the courts, because the mere possession of the roll, physically, is not of common law source or authority.

It would, we think, take more assurance. than we have on hand for us to order Mr. Strong’s name taken from a paper which is in the sole possession of the only body which had a right to put it there in the first place, or to keep it there now. We are obligated to watch the virtue of our own court. We aspire not to guard that of others.

We are led to conclude, therefore, that our power in the matter before us extends only to the status of the respondent in this court.

Having already intimated our opinion as to his guilt under the charge exhibited by the managers, the only duty that remains for us to discharge is to declare the mode and measure of redress to which litigants in this court are entitled in this case.

We have no desire to comment particularly on the circumstances. What is expected of us in this respect by the prosecuting committee, if fairly reflected by their summing up at the bar, is not very condign. It was taken, stenographically, and is before us, where it has been the subject of the proper and leisurely reflection to which, from the advantages possessed by the managers, it is entitled. There is a dearth of caloric perceivable in it—no overpowering sense of public wrong to be redressed, or of offended judicial dignity to be avenged. The payment of the money by the two corporations was fully as corrupt and corrupting as was the receipt of it by Smith and Owens, and more guilty in motive than could have been the passage of it through Strong’s office. Both corporations were above the age of consent. If they, and not the bar of Cuyahoga county, were the direct and responsible accusers of Strong, we probably should have something to say at this point.

Still, as the men who for the time being have the good name of this court in our keeping, we must be mindful of that important trust, and visit upon the admitting offender against it such punishment as shall not be mistaken by others for a compliment to him, or be regarded as an apology by ourselves.

A disbarment absolute is not asked in the argument; it is only urged that a mere reprimand would be inadequate to meet the ends of justice, a conclusion with which we are in full agreement. We think it due to our court that the redress to which it is entitled is substantial and not nominal. The record about to be made, without more, would be adequate so far as the respondent personally is concerned. But as a deterrent example is a required element in penal repression of all kinds, we must go beyond that measure.

Suspension is the favorite of courts in the administration of commutative justice in these days. Poor indeed in delinquency is the delinquent who has not to his credit at least one suspended sentence as a voucher for another.

We find, and it is the judgment of a majority of .our number, that the respondent, Edward P. Strong, be suspended from office as an attorney in this court, and debarred from practice as such therein, for the period of one year from the entry hereof.

Our brother Lieghley concurs in our findings as to the jurisdiction, and its limitations, of the court, but takes no part as to the propriety of the judgment in other respects.


text:
    COUNTY BOARDS OF EDUCATION.
    Court of Appeals for Montgomery County.
    Wogoman v. Board of Education of Perry Township et al.

    Decided, March 21, 1916.

      Constitutional Law—Validity of Act Providing for County Boards of Education—Provision for Transfer of Territory from Rural to Village School District—Only Fraud or Gross Atuse of Discretion Warrants Interference ty the Courts.

    1. The act of the General Assembly providing for the appointment of a county board of education (104 Ohio Laws, 133, et seq.) is constitutional.
    2. The county board of education has authority under said act to transfer territory from a rural to a village school district, and in the absence of fraud or gross abuse of discretion the courts can not control or interfere with the exercise of such discretion.

      A. N. Summers and John N. VanDeman, for plaintiff.

      D. B. Van Pelt and Carr, Alloman <& Better, for defendants.

       Affirmed by the Supreme Court December 12, 1916, on the authority of Cline v. Martin, 94 Ohio State, 420.

   Kunkle, J.

'This case comes into this court on appeal. The plaintiff, Josiah "Wogoman, as a citizen and tax-payer of Perry township, Montgomery county, Ohio, seeks to enjoin the transfer of certain school territory, in said Perry township (being all of school subdistricts Nos. 1, 2 and 10 and the north half of subdistrict No. 11) to the village district of Brookville, Montgomery county, such transfer having been made by the county board of education of Montgomery county.

The case has been submitted to this court upon affidavits and the oral testimony of certain witnesses, a transcript of which has ■been filed with us.

Counsel upon both sides have materially aided the court in the consideration of this case by the exhaustive briefs which they have filed.

We have carefully considered the reasoning contained in such briefs and have examined the authorities cited therein.

We shall not attempt to discuss or distinguish the authorities so cited, but will merely announce the conclusion at which we have arrived after an examination of such authorities.

The plaintiff challenges the constitutionality of Section 4728 et seq., General Code (104 O. L., 136), providing for a county board of education and prescribing the powers and duties thereof.

The objections to the constitutionality of these sections are:

First. That the law is not one of uniform operation.

Second. That the members of said county board of education are made appointive and not elective.

In regard to the first objection, we think the school system provided by the school act of 1914 is complete, that it provides for every portion of the state, and is, therefore, of uniform operation throughout the state.

It is true the county board of education does not have jurisdiction over cities and the territory annexed thereto for school purposes, and may be excluded from villages containing a population of 3,000 inhabitants and upwards by a majority vote of the board of education of the village district.

This, however, does not in our judgment affect the constitutionality of the act.

The Legislature in dealing with school districts has power to make a reasonable classification.

Cities of 5,000 population and upwards may reasonably require an independent governing board, while the rural districts may reasonably be provided for by local boards under the control of the county.

There is nothing unconstitutional or unreasonable in such separate grouping of districts. The provision making villages with a population of 3,000 inhabitants or upwards dependent upon the option of the board of education of the village is also in harmony with the general plan provided for by the said act. The local board of education of each particular village of - 3,000 inhabitants or more has a right to determine whether the interests of the village would be better subserved by remaining in the county group or becoming a separate district.

The second objection is based upon Sections 1 and 2, Article X of the Constitution, which provide that county officers and township officers shall be elected by the electors of the county, and township, respectively.

It is contended that the members of the county hoard of education provided for in Section 4728 et seq. are county officers within the meaning of Sections 1 and 2, Article X of the Constitution, and should therefore he elected.

We think it is clear that such officials are public officers. State, ex rel, v. Brennan, 49 Ohio St., 33, and other authorities cited by counsel for plaintiff.

The remaining question, therefore, is as to whether such officials are county officers.

We have considered the extensive oral and written arguments of counsel upon this proposition and have reached the conclusion that they are not county officers within the meaning of Article X of the Constitution, but • are school district officers within the purview of Article VI of the Constitution.

There has been filed with us the opinion of the Court of Appeals of the Fifth District (Cline v. Martin, ante, 90), written by Judge Houck and concurred in by the other members of that court, holding the section in question constitutional.

We are in harmony with the conclusion reached by that court.

In addition to the reasons suggested by Judge Houck, we think the suffrage decisions in respect to boards of education also throw some light upon the question here involved.

The township has always been the nucleus of the township district.

The township district was heretofore controlled by a township board of education.

This board was elective; but the qualifieaton of the electors was not governed by the suffrage provisions of the Constitution, but was subject to legislative limitations.

Our Supreme Court in 1850, in the case of State, ex rel the Directors of the Eastern and Western School Districts of Cincinnati, v. City of Cincinnati el al, 19 Ohio, 178, held that the colored patrons of separate school districts for colored children were entitled to vote at elections for and become members of boards of education controlling such schools, although such persons were not at the time qualified electors under either the state or federal law.

'This same principle• has been announced in the woman’s suffrage cases where women, not qualified electors under the state or federal law, were- given the right to vote for and hold the office of member of the board of education. State, ex rel Mills, v. Board of Elections of Columbus, 9 C. C., 134, affirmed 54 Ohio St., 631.

It is true that prior to 1914 there was no county board of education provided for, but it must be remembered that township officers are required by Article X of the Constitution to be elected, and the same principle which would authorize boards of education to -be chosen by a body other than by 'the electors of a township would also support the provision authorizing a county board of education to be chosen by an authority other than the qualified electors of the county. It is contended by counsel for plaintiff that in many counties of the state the county board of education would have jurisdiction over the entire county, because of the fact that there was no city therein, or village having a population of 3,000 inhabitants or upwards.

We do not think this fact would affect the question. For example, the right of women to vote at and hold office under township school-board elections is not affected by the fact that the township school district and the township may be and often are co-extensive.

The county in the one instance and the township in the other would be considered merely school districts for the maintenance and government of schools therein.

Counsel for plaintiff cite the county budget ease, State, ex rel Pogue, Pros. Atty., v. Groom, 91 Ohio St., 1.

We think that case is distinguishable from the case at bar for the reason that the budget commissioners were clearly county officers and performed functions relating to the county as a political subdivision.

The county forms the nucleus of the county school district, but the county school district, we think, constitutes a legislative subdivision separate and distinct from the county as a political subdivision.

Upon the question as to whether the county board of education exceeded its powers or abused its discretion in making the transfer of the territory in question, we will frankly state that upon the first hearing of this case we were impressed with- the claim of plaintiff that such transfer would work a hardship upon many of the smaller children residing in such territory and also weaken the resources of the Perry township rural school district.

‘ We therefore allowed a temporary injunction with the view of fully considering the case upon its merits before permitting the transfer to take effect.

We have given this branch of the case careful consideration.

We are forced to the .conclusion that under the broad grant of power conferred upon the county board of education by the statutes in force when this transfer was made it had authority to make the transfer in question, and that the power to make such transfer can be questioned only upon the grounds of fraud or gross abuse of discretion.

While some criticism has been made as to the conduct of certain members of the county.board of education, yet we find there is no evidence to sustain any claim of fraud.

The power of the court to review the discretion of the county board of education is somewhat limited.

The Legislature having conferred upon such board the power of making a transer of territory, this court can not substitute its judgment for the judgment of the county board of education, upon whom such power has been expressly .conferred, and overthrow the decision of such board upon a mere difference of opinion.

In the ease of Hulbert et al v. Mason, 29 Ohio St., 562, our Supreme Court say, at page 564:

“The ease made in the plaintiffs’ petition is simply, that under all the circumstances, 'it is not right and proper’ that the annexation should be made. Whether it is ‘right and proper’ that the annexation should be made is the very question which the act (Section 14) submits to the ‘discretion’ of the commissioners, without any provision for an appeal from their decision.” See also case of Moss v. Board of Education, 58 Ohio St., 354.

If this court were permitted to pass upon the propriety of the transfer of the territory in question as an original proposition, we might refuse to make such transfer, but we are unable to find from the evidence that the discretion of the county board of education has been so grossly abused as to warrant a court of equity in interfering.

This view as to the power of the county board of education and the right of a court to review the discretion has been adopted in the case of Cline v. Martin, ante, 90, and also in the unreported case of Board of Education of Bennington Township, Morrow County, v. County Board of Education by the court of appeals of the same appellate district.

The latter case was presented to the Supreme' Court upon an application for a writ of certiorari, and the writ was refused.

The same view was taken by the Court of Appeals of the Sixth District in the case of Johann v. Board of Education of Milton Township Rural School District, and also by the judges of the fourth appellate district, sitting in Fayette county, in the case of West v. County Board of Education of Fayette County.

It would therefore follow that a permanent injunction should be refused.

In order to prevent' confusion in conducting the schools of Perry township, the temporary injunction heretofore granted will be continued until the end of the present school year.

Decree accordingly.

Ferneding, J., and Allread, J., concur.