author: VOORHEES, J.

text:
    CONSTITUTIONAL LAW— MANDAMUS —OFFICE AND OFFI= CERS — STATUTES—MUNICIPAL CORPORATIONS.
    [Fairfield (5th) Circuit Court,
    September Term, 1903.]
    Voorhees, Donahue and'McCarty, JJ.

      State ex rel. Lancaster v. Frank E. Bowers (City Treas.)

      Í. City Solicitor may Commence Proceedings Under Sec. 1777 Rev. Stat. and Sec. 137 of Act oe Octobee 22, 1902.
    Under Sec. 1777 Rev. Stat. as amended April 1, 1890 (87 O. L. 122), and Sec. 137 oí the act of October 22, 1902 (96 O. L. 66), known as the municipal code,” no action of the council of a municipality is necessary or required to empower or authorize the solicitor thereof to commence proceedings in mandamus to compel an officer or board of the municipality to perform any duty expressly enjoined by law or ordinance, when such officer or board refuses to perform such duty.
    2. Municipality Would not Have Adequate Remedy at Law, When.
    A municipality would not have an adequate remedy at law if the treasurer thereof disobeyed its valid ordinance and refuses to deposit the public funds in his hands as such treasurer in -a depositary lawfully selected by its council, under Sec. 135 of said act of October 22, 1902.
    3. Section 135 of Said Act of October 22, 1902, Constitutional.
    ' Section 135 of said act of October 22, 1902, providing that council shall have authority to provide by ordinance for the deposit of all public moneys coming into the hands of the treasurer in such bank or banks situated within the city which may offer, at competitive bidding, the highest rate of interest, etc., is constitutional and valid.
    4. Ordinance Passed at Special Meeting of Council, Valid — Effect of Failuee to Notify Member of Special Meeting.
    An ordinance selecting such depositary .passed at a special meeting of the council when one member of th'e council was absent and had not been notified of the meeting is not for that reason invalid or void.
    5.. Treasurer has no Discretion Under Secs. 135 and 136 of Said Act.
    The treasurer of a municipality has no discretion as to whether he will or will not obey an ordinance legally passed by council, providing for a depositary for all public funds, including school funds, coming into his hands as such treasurer, under Secs. 135 and 136 of the act of October 22, 1902 (Sec. 1536-655, 4 ed., Rev. Stat., amended 97 O. L. 270), and upon his refusal to obey such ordinance mandamus will lie to compel him to do so.
    .6. As to Sufficiency of Bond of Depositary.
    When it appears at the time an ordinance was passed by a municipality selecting a depositary, under said Sec. 135, a bond* was given in double the amount of the funds then in the treasurer’s hands, including school funds, and, afterwards, additional funds come into his hands, the depositary, with the approval of the council, may give an additional bond to cover the increase, so as to keep the security double the amount to be deposited.
    In Mandamus.
    This is an action or proceeding in mandamus to compel the city treasurer of the city of Lancaster, Ohio, to deposit the public moneys of which he has charge in a bank selected as depositary pursuant to an ordinance of the city council, under Secs. 135 and 136 of the municipal code (96 O. L. 64, 65).
    The plaintiff filed in this court August 29, 1903, the following-petition (omitting caption, signatures and verification) :
    “The relator, August W. Mithoff, says, that he is and for several years last past has been the duly elected, qualified and acting solicitor of the city of Lancaster, Ohio, and a taxpayer, resident and citizen thereof, and he files this petition as relator as such solicitor and on behalf of said city.
    “That the city of Lancaster is a municipal corporation situated in Fairfield county, Ohio, classed as a city under the laws of Ohio.
    . “That defendant, Frank E. Bowers,' is and since April 13, 1903, has been the duly elected, qualified and acting treasurer of said city of Lancaster, Ohio.
    “That on June 29, 1903, the city council of said city duly enacted an ordinance, entitled, ‘An ordinance, No. 10, providing for the deposit of all public moneys coming into the hands of the treasurer of the city, in such bank or banks, situated within the city,, which may offer at competitive bidding the highest rate of interest therefor and give bond as ■required by law,’ which said ordinance was duly approved, signed and returned by the mayor of said city, on June 30, 1903, and was thereupon published in two newspapers of opposite polities printed, published and of general circulation in said city, for two consecutive weeks, all as required by statute.
    “In and by said ordinance it was provided by said city council that all public moneys coming into the hands of the treasurer of said city should be deposited in such bank, situated within said city, as might offer at competitive bidding the highest rate of interest therefor and give sufficient bond therefor of some approved guaranty company in a sum at least double the amount to be deposited; and in and by said •ordinance it was provided that the clerk of said council should publish in two newspapers printed and of general circulation in said city, once a week for four consecutive weeks, a notice inviting sealed proposals from all banks situated within said city, stipulating the rate of interest that shall be paid for the use of the money aforesaid for the period of two years, and that on the day named in said notice the clerk of council should, in the presence of the finance committee of the council and the mayor, open said proposals and transmit the same to the city council at its next meeting thereafter, and the council should award the same to the bank offering the highest rate of interest therefor and giving bond as required by law, and that such bank should thereupon become the depositary of the public moneys of said city for the period of two years, next thereafter ensuing.
    “It was also provided by said ordinance that the treasurer, upon receipt of a written notice signed by the president and clerk of council stating that a depositary had been selected and the name of such bank so selected, should deposit in such bank .all public moneys in Ms custody subject to said terms and conditions aforesaid.
    “And that pursuant to said ordinance the clerk of council duly published in the Lancaster Gazette and Ohio Eagle, two newspapers printed, published and of general circulation in said city and of opposite polities, once a week for four- consecutive weeks, a notice inviting sealed proposals from said banks as aforesaid, stipulating the rate of interest they offered to pay for such deposit, and named August 13, 1903, at 12 o’clock, noon, as the time for opening such bids; and pursuant to said notice and ordinance, the Hocking Valley National Bank, of Lancaster, Ohio, duly filed its sealed bid with said clerk of council and therein offered to pay the sum of 2 55-100 per cent per annum interest upon daily balances, for the use of said moneys for the period of two years as aforesaid, and on August 13, 1903, after 12 o’clock, noon, the clerk of council in presence of the finance committee of the” council and mayor opened all bids and publicly read the same and transmitted the same to the city council at its next meeting, and said bid of said The Hocking Valley National Bank of Lancaster, .Ohio, offered the highest rate of interest and was the highest and best bid therefor; and at their said meeting the city council duly received said bid and approved and accepted the same and ordered said bank to file its depositary bond as required by law and said ordinance; and on August 20, 1903, said bank duly filed with said council a good and sufficient bond as its depositary bond as aforesaid, being in the sum of $100,000, which was double the amount to be deposited, conditioned that it would receive and safely keep said public moneys and pay the same upon the lawful orders and vouchers of said city and its authorized officers, which said bond was duly executed by said bank and the United States Fidelity & Guaranty Company, of Baltimore, Md., as its surety; and said The United States Fidelity & Guaranty Company, of Baltimore, Md., was and is an approved guaranty company duly authorized by law to do business in this state, and on August 20, 1903, the city council duly accepted said bond and approved the same and named said The Hocking Valley National Bank, of Lancaster, Ohio, as the depositary of the public moneys aforesaid, and on August 27, 1903, the defendant was personally served with a written -notice signed by the president and clerk of council stating that said bank had been selected as said depositary for all publie moneys coming into his possession as such treasurer.
    “And that said The Hocking Valley National Bank, of Lancaster, Ohio, was and is a national bank under the statutes of the United States of America, doing a bánking business and situated within the city of Lancaster, Ohio, and is ready and able to receive said public moneys as aforesaid.
    “And all said proceedings in connection with such competitive bidding and deposit of such moneys were conducted in such manner as to insure full publicity and were open at all times to the inspection of any citizen. .
    “And that on said August 27, 1903, and continuously since, the defendant has had in his custody, as treasurer of said city, a large sum of money, viz., the sum of $45,000 public moneys in his hands.
    “And on August 27, 1903, it became and was the official duty of defendant, as treasurer as aforesaid, to deposit said public moneys in said depositary, The Hocking Valley National Bank, of Lancaster, Ohio, as shown by the premises, but said treasurer has without cause failed and refused so to do, and has not deposited said funds or any part thereof in said depositary but yet refuses so to do.
    “That the relator has no complete or adequate remedy at law in the premises to enforce the provisions of said ordinance.
    “Wherefore relator prays that a writ of mandamus issue commanding defendant, as treasurer as aforesaid, to forthwith deposit said public moneys aforesaid in said The Hocking Valley National Bank, of Lancaster, Ohio, being said depositary, and for all other proper relief.”
    At the September term, to wit, September 1, 1903, of this court for said county, it was ordered that an alternative writ of mandamus issue to the defendant, Frank E. Bowers, treasurer of the city of Lancaster, Ohio, commanding him that he forthwith deposit all public moneys now in his hands, or hereafter coming into his hands, as treasurer of the city of Lancaster, Ohio, in and with the Hocking Valley National Bank, of Lancaster, Ohio, as the designated depositary thereof as provided by ordinance of said city, as set out in the petition, or else that he, the said respondent, answer or otherwise plead to said petition by October 15, 1903, and show cause why he has not done or should not do said act, and the clerk shall forthwith issue such writ and attach thereto a true copy of tbe petition that the same may be served upon the defendant by the. sheriff.
    By agreement of both parties this cause was assigned for trial upon October 21, 1903, and said term of this court was ordered to remain open and unadjourned for such purpose.
    September 5, 1903, the alternative writ was issued pursuant to said order, which came into the hands of the sheriff of said county September 8, 1903, and on the same day the writ was served upon the defendant, Frank E. Bowers, treasurer' of the city of Lancaster, Ohio, personally, by delivering to him a duly certified copy of the writ including the petition, verification and order.
    On October 15, 1903, the defendant filed his answer, which is as follows (omitting caption, signatures and verification) :
    “And now comes the defendant, and for answer to the alternative mandamus says, that plaintiff ought not to have its said writ of pre-emptory mandamus because he saith:
    “First defense. The city council of said city did not by any resolution or ordinance, or in any other manner, ever direct or authorize the institution or prosecution of the said proceeding in mandamus or any other action against said defendant; and the said proceeding was begun and is carried on by the said city solicitor of his own volition and without any lawful authority whatsoever.
    “Second defense. The statute under which the city council of said city (being Sec. 135 of the act of the general assembly passed October 22, 1902), professed to exercise the power of creating a depositary of said public moneys by said alleged ordinance, is unconstitutional, null and void.
    ‘ ‘ Third defense. The defendant denies that said alleged ordinance No. 10, of date June 29, 1903, providing for the deposit of said public moneys was duly enacted, as is averred in the petition.
    “He also denies that the said city council ever duly accepted the bid of the said The Hocking Valley National Bank as such depositary and he avers that the action of the council professing to accept said bond ■of said Hocking Valley National Bank was illegal and void, because the same was not had at any regular or adjourned meeting of that body, but at a so-called special meeting on August 20, 1903, notice of which was not given to all the members of the council, served personally, or left at their usual place of abode, and all of them were not present at such special meeting and did not participate in such proceedings.
    “And the bond of said bank' as such depositary was therefore never accepted by tbe said council, nor any contract ever made or entered into between said bank and council for tbe deposit of said public moneys.
    '‘Fourth defense. Tbe defendant is not only treasurer of said ■city, but also ex officio treasurer of the school funds of said city, which is a city school district of the second class and includes a large territory outside of the corporate limits of said city, attached thereto for school purposes, and the school funds of said district in the custody and possession of the defendant as such treasurer, are made up largely of taxes collected for school purposes from persons and property not residing or lying within the boundaries of said city.
    “In and by the terms and provisions of said alleged ordinance the defendant is required to deposit in said bank not only the public moneys of and belonging to said city, but also the school funds-of said school district, and said alleged ordinance and the proceedings of said city council in respect thereto are all illegal and void for the reason that the said school funds are so included therein.
    “The defendant has in his possession about $45,000 of the moneys ••of said city, and also about $18,000 of the money of and belonging to said school district, and the bonds of said school district have been issued and sold for the sum of $75,000 additional, which is now ready to be turned over to the defendant as treasurer of said district, while the bond made and delivered by said bank as such depositary to said city is in the penal sum of $100,000 only, and no bond was ever given by said ■depositary to the board of education. The written notice served upon the defendant signed by the clerk and president of the council, as set ■out in the petition, directed and required him to deposit in said bank not only the city moneys but the funds of said school district as well. The •defendant has given bond, as required by law, to the said city which has been duly approved and accepted, as treasurer of said city, and also a bond to the board of education of said school district, as treasurer of the school funds of said district, to the acceptance and approval of said board of education, as required by law. 1
    ‘ ‘ For the reasons aforesaid set out in his several defenses and exercising the discretion and due care confided in and imposed upon him by law, the defendant refuses to deposit said city and school moneys or •either thereof in said bank.
    “Wherefore the defendant prays the said petition of the relator and alternative mandamus issued in this case be dismissed at its costs and for all proper relief.”

      To tbis answer the plaintiff on October 20, 1903, filed tbe following reply (omitting caption, signature and verification) :
    “Replying to the several defenses of the answer, plaintiff says:
    “As to the third defense. At the special meeting of the city council of August 20, 1903, sis of the seven members had been duly notified and were present and voted to approve said bond; the seventh member was continuously absent from the city for a number of days preceding said call and until after said meeting was held and his place of abode was closed, and service of said notice could not be made upon him within said city. And the said action of the city council at said special meeting’ was ratified at the next regular meeting thereof.
    “As to the fourth defense: 1. The limit of the city of Lancaster and the Lancaster school district are identical. 2. Since the giving of said bond and since the commencement of this case, the defendant has received large sums of public moneys as treasurer, so that he has now in his possession $63,000; and the original bond of $100,000 is no longer doubles the amount of such funds; and on October 19, 1903, said depositary, the Hocking Yalley National Bank, of Lancaster, Ohio, duly-filed' with said city council an additional bond duly conditioned for the securing of said deposits in the further sum of $100,000, being a good and sufficient bond with an approved guaranty company as surety; and said bond was duly accepted and approved by said city council on October 19, 1903; and said bonds are more than twice the sum of public moneys now in the hands of said treasurer, to be deposited.”
    On the same day, to wit, October 20, 1903, the defendant filed his motion to strike out the second subdivision of the reply to the fourth defense on the grounds that the facts therein alleged are immaterial and irrelevant.
    The cause was submitted to the court upon the pleadings, evidence and agreed statement of facts.
    A. W. Mithoff, C. W. McCleery, G. E. Martin, for plaintiff in error:
    Constitutionality of Sec. 135 of the municipal code. Walker V. Cincinnati, 21 Ohio St. 14, 53, 54 [8 Am. Rep. 24]; State v. Ellet, 47 Ohio St. 90 [23 N. E. Rep. 931; 21 Am. St. Rep. 772]; First Nat. Bank v. Shepard, 22 Minn. 196; Allibone v. Ames, 9 S. Dak. 74 [68 N. W. Rep. 165; 33 L. R. A. 585]; 16 Cent. Dig. 915, 922; 13 Cent. Dig. 1551, See. 223.
    A majority of all the members of the city council is a quorum to-do business. Cupp v. Seneca Co. (Comrs.) 19 Ohio St. 173, 180; State v. Wilkesville Tp. (Tr.) 20 Obio St. 288, 293; Place v. Taylor, 22 Ohio St. 317, 319.
    • When the statute says that the treasurer of the city funds shall be sx officio treasurer of the school funds, it does not make one man fill two offices; it only annexes to the office of city treasurer the charge of both funds. Each charge is alike and one just as much as the other, a function of that office. Knorr v. Board of Ed. 8 Be. 672 (9 Bull. 182) ; State v. Kennon, 7 Ohio St. 546, 572; Walker v. Cincinnati, 21 Ohio St. 14 [8 Am. Eep. 24]; Dawson v. State, 38 Ohio St. 1.
    Mandamus is the proper remedy. Noble Co. (Comrs.) v. Hunt, 33 Ohio St. 169; State v. Moore, 42 Ohio St. 103; State v. Staley, 38 Ohio St. 259, 264; State v. Hoglan, 64 Ohio St. 532 [60 N. E. Bep. 627]; State v. Darke Co. (Aud.) 43 Ohio St. 311, 312 [1 N. E. Bep. 209],
    J. W. Miller, C. D. Martin, M. A. Daugherty, for defendant in error:
    The depository provisions of the state are unconstitutional. Section 6, Art. 8, Const.; Walker v. Cincinnati, 21 Ohio St. 14, 54, 55 [8 Am. Bep. 24]; Wyscaver v. Atkinson, 37 Ohio St. 80.
    The court will not control the discretion of a public officer by mandamus; in case of doubt the doubt is resolved in favor of the officer. High, Extra. Leg. Bern. See. 42; Merrill, Mandamus Sec. 57; Spelling, Injunctions See. 1384; Black, Ex parte, 1 Ohio St. *30; State v. Shelby Co. (Comrs.) 36 Ohio St. 326, 331; State v. Todd, 4 Ohio 351; Bollers-ville & P. F. Tpk. Co. v. Sandusky Co. (Comrs.) 1 Ohio St. 149.
    It was not the purpose of the legislature to subject the school funds to the control of the council.
    Although the court might be of opinion that the depository act is constitutional yet the ordinance is void because the school funds are included; the council has no power to control the school funds. Pollock v. Loan & Tr. Co. 158 U. S. 601 [15 Sup. Ct. Eep. 912; 39 L. Ed. 1108]; Monroe v. Collins, 17 Ohio St. 665, 666; Gager v. Prout, 48 Ohio St. 89, 108,109 [26 N. E. Bep. 1013].
    Special meetings, and notice. Dillon, Mun. Corp. (3 ed.) Sec. 286; Cook, Stock & Stockholders Secs. 595, 596, 597.
    Mandamus is not the remedy.
    The amount of the damages is easily determined.
    Action improperly brought. Sections 1777, 1774, 6743 Eev. Stat.

       Affirmed by Supreme Court without report, Bowers v. State, 70 Ohio St. 423. ’

   VOORHEES, J.

The questions presented in this case are questions of law rather than of fact, andvmay be summarized as follows:-

1. Can the city solicitor institute this proceeding as relator upon his own volition and without direction by resolution or otherwise from the city council?

2. Is there an adequate remedy at law?

3. Is Sec. 35 of the municipal code (96 O. L. 64) a constitutional enactment ?

4. Is this depositary ordinance valid and lawful?

5. Has the city treasurer discretion as to whether he will or will not obey the ordinance passed by the city council under Sees. 135 and 136 of the municipal code ?

6. Can the school funds be controlled by the city council as to selecting the depositary?

7. Are the bonds of the depositary sufficient?

1. Considering these questions in their order attention will be directed to the legal capacity of the city solicitor to bring and maintain this action.

Section 1777 (1536-667, 4 ed.) Rev. Stat. provides:

“He (city solicitor) shall apply in the name of the corporation, to a court of competent jurisdiction for an order of injunction to restrain the misapplication of funds of the corporation, or the abuse of its corporate powers, or the execution or performance of any contract made in behalf of the corporation in contravention of the laws or ordinances governing the same, or which was procured by fraud or corruption. And he shall likewise, whenever an obligation or contract made on behalf of the corporation granting a right or easement, or creating a public duty, is being evaded or violated, apply for the forfeiture or the specific performance of the same as the nature of the case may require. And in case any officer or board fails to perforht any duty expressly enjoined by law or ordinance, he shall apply to a court of competent jurisdiction for a writ of mandamus to compel the performance of such duty.”,,

Section 137 of the act of the general assembly, of October 22, 1902 (96 O. L. 65), known as the municipal code, provides that:

“The powers and duties of the solicitor shall be such as are provided in Secs. 1776, 1777, 1778, 1779 and'1780 Rev. Stat. of Ohio; such as are provided in this act, and all other acts or parts of acts having uniform operation throughout the state and not inconsistent with this act,” etc.

This section of the municipal code leaves in force See. 1777 Rev. Stat., under which no action of the council is required for his authority to take legal steps to enforce the specific performance of a contract made by the corporation as the nature of the case may require.

This action we think falls within the meaning and language of this statute. The defendant as treasurer of the corporation refused and still refuses to perform an official act in relation to the contract made by the corporation through its council in pursuance of an ordinance passed by that body. The contention of the defendant is that because the name of the city appears in the caption the authority of the city council therefor must first be had. The statute expressly provides how,the solicitor shall apply for these extraordinary remedies, namely, in the name of the corporation. If it were unnecessary for the solicitor to bring the suit in the name of the city, then it would be very clear that authority from the city council would not be a condition precedent to bringing the action, and in naming the city would be mere surplusage. On the other hand, if the action is to be prosecuted in the name of the corporation the authority to bring such an action is expressly given by the statute, Sec. 1777, above referred to.

This section (1777) is a remedial statute and is to receive a liberal, construction. Its object and meaning is to preserve to the municipal corporation its right. It is not to protect any right peculiar to a taxpayer, but to protect a right that belongs to the city; and if it is a right for the corporation to select a depositary for the public funds of the corporation, and it has taken legal steps to select such depositary and made a contract therefor, and that contract is not complied with by any party who is liable to be so controlled, in such case the solicitor in the name of the corporation, may bring such legal proceedings as are necessary for the specific performance of the contract. In other words, in any case where any officer or board fails to perform any duty expressly enjoined by law or ordinance, the solicitor shall apply to a court of competent jurisdiction for a writ of mandamus to compel the performance of such duty. Section 1777 Rev. Stat.; Johnson v. Farley, 11 Dec. 639 (8 N. P. 498).

The subject-matter of this action and what is sought thereby is to ¡require the Treasurer of the city of Lancaster to perform a duty required by an ordinance duly passed by the city council under Sec. 135 of the municipal code, and the purpose of Sec. 1777 Rev. Stat. is to provide means to secure to the municipal corporation its rights under said ordinance. We think this construction- is consonant with the principles recognized in Elyria Gas & Water Co. v. Elyria, 57 Ohio St. 374, 383 [49 N. E. Rep. 335]; State v. Boyce, 43 Ohio St. 46, 52 [1 N. E. Rep. 217]; Knorr v. Miller, 3 Circ. Dec. 297 (5 R. 609, 614) ; Gaslight Co v. Zanesville, 47 Ohio St. 35, 50 [23 N. E. Rep. 60].

Onr conclusion, therefore, is that this proceeding is properly commenced by the city solicitor in the name and on behalf of the corporation, and it was not necessary for the council of the corporation to expressly authorize the proceeding by ordinance or otherwise. ’

2. It is contended by the defendant that the relator should not maintain this proceeding, as the city or municipal corporation would have an adequate remedy at law upon the bond of the treasurer; that his refusing to obey the direction of the city council to deposit these funds in a depositary selected by such council is not ground for mandamus, and that a suit for damages would afford an adequate remedy; and that the plaintiff, therefore, is not entitled to the writ of mandamus for the reason that there is a plain and adequate remedy for the grievance complained of in the ordinary course of the law.

An action upon the treasurer’s bond or the impeachment or removal of the officer may not be, and in fact are not always adequate remedies for failure to discharge an official duty; and it would not be,'in our judgment, in this case, for the reason that if the council have a right to select the place of deposit of the public funds and to make a contract for the same at competitive bidding and thereby secure not only an income from the funds but additional security for their safe-keeping, these advantages could not be secured in a suit for damages upon the treasurer’s bond or by proceedings in impeachment of the officer. We think the principle is recognized in State v. Staley, 38 Ohio St. 259, 264; State v. Hoglan, 64 Ohio St. 532 [60 N. E. Rep. 627]; Elyria v. Railway, 12 Dec. 609.

It is quite manifest from the pleadings and contention of counsel in this case, that the refusal of the treasurer to turn the funds into the depositary selected by the city council was by reason of the different construction placed upon See. 135 of the municipal code, about which there may be an honest difference of opinion. In such case this would not be such evidence of incompeteney or misconduct in the officer as to warrant his removal on these grounds. The proper remedy in such ease is a proceeding in mandamus to compel him. to act in accordance with the proper construction of the statute, or show cause why he does not. State v. Hoglan, 64 Ohio St. 532 [60 N. E. Rep. 627].

3. As to the constitutionality of Sec. 135 of the municipal code, it is contended by counsel that this section is unconstitutional because it is in violation of Sec. 6, Art. 8 of the constitution of tbe state of Ohio, which reads as follows:

“The general assembly shall never authorize any county, city, town, or township, by vote of its citizens, or otherwise, to become a stockholder in any joint stock company, corporation, or association whatever; or to raise money for, or loan its credit to, or in aid of, any such company, corporation, or association.”

An examination of this statute in question discloses that it does not provide for raising money or loaning credit to or in aid of any bank or other depositary named or contemplated in the statute. The city or corporation does not lend its credit to the bank or become liable for any of the bank’s obligations.

“A general deposit by a county treasurer, of county funds, subject to check, is not a ‘loan,’ within the statutory or constitutional inhibition against the loaning of county funds with or without interest.” Allibone v. Ames, 9 S. Dak. 74 [68 N. W. Rep. 165; 33 L. R. A. 585].

In First Nat. Bank v. Shepard, 22 Minn. 196, the supreme court of Minnesota held:

“That part of the act of March 10, 1873, entitled ‘An act to amend Glen. Stat. Chap. 8, Sec. 131, relating to the duties of county treasurers and the care of the public funds, ’ which provides for a deposit in banks by the county treasurer of the funds in the county treasury, is constitutional and valid and applies to all the funds in such treasuries.”

It may aid in the construction of Sec. 135 of the municipal code, that many other states with constitutional provisions similar to Sec. 6, Art. 8 of the constitution, have adopted and sustained depositary laws for the depositing of public funds. Among them are Kansas, Michigan, Nebraska, Georgia, Iowa, Minnesota, Wisconsin, Colorado, South Dakota, New York and Pennsylvania. These enactments by so many of the states favor the wisdom or policy of such statutes. They are adopted to provide for the safe-keeping and disbursement of the public money of municipal bodies and at the same time to enable such bodies to receive a reasonable compensation for the funds when not demanded for public use. They are not against public policy or in violation of constitutional provisions, such as we have in See. 6, Art. 8 of our constitution. No other reason is urged against its constitutionality, excepting as being in violation of Sec. 6, Art. 8 of the constitution and we are of the opinion that that section does not contemplate or inhibit the enactment of a statute having the object and purpose contemplated by Sec. 135 of the municipal code.

4. Is tbis depositary ordinance valid and lawful? It is assailed on two grounds: First, that the ordinance had a blank space left in it for the figures fixing the minimum amount of the bond to be given by the depositary, and that this blank was not filled in until after the-ordinance was passed; second, that the meeting of council at which the bond of the depositary was approved, was a special meeting, notice of which was not given to all the members of the council. The first objection is not sustained by the facts and it will not be necessary to consume time in its further consideration. The second objection is one of a more serious nature and will require moré extended review.

The meeting of the city council of August 10, 1903, at which the first depositary bond was approved, was a special meeting. Six of the seven members of council were present and unanimously approved the bond. One member was absent. The contention is that the action of the council at the special meeting is void because one member was not notified and failed to attend. It is conceded that there is no statute now in force relating specifically to the time, place or number of council meetings. Section 1677 Rev. Stat. which formerly provided for special meetings was repealed by the act of October 22, 1902 (96 O. L. 96, 97). This question then is to be determined upon general principles and from the decision of courts touching the action of such bodies, as a municipal council at special or called meetings. Section 119 of the municipal code (96 O. L. 59) provides that “a majority of all the members elected shall be a quorum to do business.*’ Section 121 provides, that “council shall determine its own rules,” and See. 122 provides that “no ordinance shall be passed by council without the concurrence of a majority of all members elected thereto.” Since the repeal of Sec. 1677 Rev. Stat. the legislature has not specifically fixed the times nor the place for the meetings of the council. Nor do the statutes make any provision for notice to members either of regular or special meetings. A special meeting in question in this case was held at the council chamber, six members and all the officers were present; the meeting was organized in form as a council, and the proceedings were entered by the clerk: upon the minute book and there attested by the signature of the clerk and president of the body. The only business transacted at the meeting was the adoption of a resolution approving the bond which was in conformity with the ordinance and former resolution of the council made in regular session. At the next regular meeting of the city council the minutes of the special meeting were read and approved. Ne charge of fraud or bad faith or concealment is made. The only question is whether the whole meeting was and is absolutely void.

It appears from the facts submitted to the court that the absent member of council at the time of the special meeting, was absent from the city, and no notice was served upon him. From these facts, what is the rule of law? In the case Cupp v. Seneca Co. (Comrs.) 19 Ohio St. 173, 180, the Supreme Court held that two of the three of the board of county commissioners may hold a special meeting as such board and transact official business, because by the statute the two are a quorum and therefore competent to organize, as the board. No mention is made of notice to the absent member. In the case of State v. Wilkesville Tp. (Tr.) 20 Ohio St. 288, the Supreme Court held that:

“2. Special meetings of boards of township trustees may be held at any time and place within the township, and without previous notice to all the trustees.
“3. Under the statute a majority of the board of township trustees constitute a quorum to do business at special meetings.”

In the case of State v. Herbert Atherton et al. (unreported), this court, in Licking county, held that the action of the board of health at a special meeting was valid, although two of the members were absent and one of them had received no notice of the meeting. In support of the conclusions in that case the following authorities were cited: State v. Wilkesville Tp. (Tr.) supra; Place v. Taylor, 22 Ohio St. 317; Merchant v. North, 10 Ohio St. 251, 252, 257; Merchant’s Nat. Bank v. Flour Co. 41 Ohio St. 552, 558.

These decisions seem to the court as controlling in this case as to the legality of the special meeting at which the bond of the depositary was approved, and of which complaint is made in this proceeding. We therefore hold that the objections urged against the proceedings of council at its special meeting are not valid.

5. It is contended by defendant, that under Secs. 135 and 136 of the municipal code, he, as treasurer, is vested with a discretion as to the deposit of the public funds in his hands, and therefore cannot be compelled by proceedings in mandamus to exercise this discretion. Section 135 of the municipal code, among other things, provides that:

“The treasurer, upon giving bond as required by council, may, by and with the consent of his bondsmen, deposit all funds and public moneys of which he has charge in such bank or banks, situated within the city, which may seem best for the protection of said funds, which said deposit shall be subject at all times to the warrants and orders of the treasurer required by law to be drawn, and all profits arising from said deposit or deposits shall inure to the benefit of said funds; provided, that such deposit shall in no wise release the treasurer from liability for any loss which may occur thereby.”

"Where statutes are couched in words of permission, or declare that it shall be lawful to do certain things, or provide that they may be done, their literal signification is that the persons, official or otherwise, to whom they are addressed are at liberty or have the option to do those things or refrain at their election. Sutherland, Stat. Constr. Sec. 460. This rule is peculiarly applicable to the treasurer of a municipality as to depositing the public funds, under See. 135 of the municipal code for the reason he cannot act without first obtaining the consent of his bondsmen. If they refuse the purposes of the law would be athwarted and rendered nugatory. Hence the wisdom of conferring authority on the council to provide for a depositary at competitive bidding.

Section 135 (96 O. L. 64) permissively makes provision for the treasurer of a city or municipality to deposit, with consent of his bondsmen, all funds and public moneys of which he has charge in such bank or banks, situated within the city, which m'ay seem best for the protection of said funds. It does not require him, only inferentially, to deposit it at a profit, but if a profit is received it shall inure to the benefit of the fund. This evinces the legislative intent to secure a profit by providing for the council of a city or municipality by ordinance to select a depositary for the public funds at competitive bidding. If the treasurer does not see proper to exercise such discretion, or make an election to’ so deposit the funds, it would seem that he could not be compelled to do so. The purpose- or legislative intent in providing for a depositary may be presumed to be twofold; (1) security for the public funds of a city or municipality; (2) to secure revenue for their funds while awaiting distribution. These purposes so far as receiving revenue is concerned, may be defeated by the treasurer depositing the funds in a bank without any benefit or profit to arise from the deposit. The treasurer is not imperatively required to deposit the fund at all, and if deposited, it is not required of him to be at a profit; it is only when a profit is received it shall inure to the benefit of the funds.

In the same section (135) it is provided that the “Council shall have authority to provide by ordinance for the deposit of all public moneys coming into the hands of the treasurer in such bank or banks situated within the city which may offer, at competitive bidding, the highest rate of interest, and give good and sufficient bond, of some approved guaranty company, in a sum at least double the amount to be deposited, and to determine in such ordinance the method by which such bids shall be received, the authority which shall receive them, the. time for the contracts for which deposits of public moneys may be made;,, and all details for carrying into effect the authority here given; provided, that all such proceedings in connection with such competitive* bidding and deposit of such moneys shall be conducted in such manner* as to insure full publicity, and shall be open at all times to the inspection; of any citizen,” etc. The discretion thus given council, if it be a discretion, cannot consistently with the rules of law be resolved in the negative, but' is imperative; and mandamus would lie to compel action by the council. Sutherland, Stat. Constr. Sec.- 462, page 597 and authoritiés cited in note 1.

The rule is, that where power is given to public officers, as is given the council in Sec. 135 of the municipal code or in equivalent language, whenever the public interest calls for its exercise, the duty to so exercise the power is peremptory. In all such eases the intent of the legislature, which is the test, is not to devolve a mere discretion, but to impose a positive and absolute duty. Rock Island Co. (Supvrs.) v. United States, 71 U. S. (4 Wall.) 435, 446, 447 [18 L. Ed. 419]. A public duty, plain and specific, and positively required by law, ministerial in its nature, and not calling for the use of discretion, will be enforced by mandamus in the absence of other means of relief. State v. Moore, 42 Ohio St. 103; Noble Co. (Comrs.) v. Hunt, 33 Ohio St. 169.

Section 135 of the municipal code provides that council shall have authority to provide by ordinance for the deposit of all public moneys coming into the hands of the treasurer in sueh bank or banks, etc. The council of the city of Lancaster has acted under this authority, and have passed such ordinance and have notified the treasurer of their selection of a bank. He refused and still refuses to comply therewith. It does not appear from any pleading in the case, that the treasurer has made any selection of a depositary for the funds in his hands as treasurer. So the question as to his being prior in time and therefore superior in right, does not arise in this ease. But suppose he had exercised the right given in this section, is his right paramount or equal to the rights of the council to select a depositary by ordinance ? Public policy would favor the claim of the council for this if no stronger reason. The council are to make their selection at competitive bidding and the law fávors, everything else being equal, public sales to private sales.

It may be urged that See. 135 of the municipal code provides firsts for the treasurer making the selection of a bank or depositary for the public funds, and should he do so and make a contract with the bank so selected, then to permit the council as the legislative body of the city to pass an ordinance impairing the contract so made by the treasurer would be a violation of a constitutional right. This contention is not sound for this reason: The contract would necessarily embrace within its terms the statute, and the right of council to pass an ordinance selecting a depositary at competitive bidding, which is paramount to the treasurer’s right to do so, and if he does make such contract it must be and remain subject to be annulled by the action of council in the exercise of its superior rights under the law.

It is urged that the proviso which provides “that as to any deposits made under authority of an ordinance of council pursuant hereto, neither the treasurer nor his bondsmen, if the treasurer has exercised due care, shall be liable for any loss occasioned thereby,” destroys the act as being unreasonable in holding the treasurer responsible for losses when his discretion to select a place of deposit is taken from him. This contention is to be tested by the meaning to be given to the phrase or words “if the treasurer has exercise due care.” What does the clause mean?

If the treasurer deposits the public funds according to the ordinance of council, and they are lost, he is not to be held liable unless his carelessness has contributed thereto; the carelessness contemplated is not related to the propriety of the ordinance or the character of the bank selected, or its bond, but the manner of dealing with the deposits after they are so made. If the treasurer should by carelessness give an order on the bank to the wrong person or for the wrong amount and the order is paid, in such case he is to be held responsible. Certainly this is only a reasonable provision and does not militate against the wisdom of the legislature in drawing this additional safeguard around the public funds of a municipality.

6. It is urged that the provisions of Sec. 135 (96 O. L. 64) cannot apply to the school funds.

The depositary act says (Sec. 135 of the municipal code), “Council shall have authority to provide by ordinance for the deposit of all public moneys coming into the hands of the treasurer,” etc.

Section 136 of the municipal code provides, that “the treasurer shall receive and disburse all funds of the city including the school funds, and such other funds as arise in or belong to any department or part of the city government.”

Without further discussiou we are of opinion that the school funds are subject to the same control as other public funds in the hands of the treasurer.

7. Are the bank’s bonds sufficient?

It appears, and the court find, that when the ordinance was passed “the treasurer had less than $50,000 of public funds in his hands, including school funds. The first bond was fixed at $100,000. The treasurer refused to comply with the ordinance, and on August 29, 1903, the city solicitor commenced this proceeding. He filed the petition on that day. The treasurer on that day had less than $50,000 in his hands. On September 1, 1903, this court held its term in Fairfield county, commencing on that day. The parties appeared in open court and agreed that the trial of this case should be had October 21, 1903. The defendant was present in person and by counsel consented to said arrangement. On September 1, 1903, the treasurer received a payment of money from the county treasurer increasing the fund in his hands to $63,000. On October 15, 1903, he filed his answer in this proceeding wherein it was alleged that he had this amount of money in his hands. Thereupon the depositary bank filed with the city council a second and additional depositary bond in the sum of $100,000 making the amount of the bonds more than double the amount of funds in the treasurer’s hands. This last bond was approved by council at a special meeting, all members being present.

The court find as a fact that when the first bond was given and when the treasurer first refused to obey the ordinance up to the day the petition was filed and the defendant appeared in open court, as above found, the bond was in double the amount of public funds then in his hands, and after the fund was increased as before found, the second bond was given in the sum of $100,000 making the bonds taken together more than double the amount of all the funds in the hands of the treasurer up to the time of this hearing. This raises the question whether by the giving of the second bond the provisions or the spirit of the law is complied with. If the act is constitutional and legal, and we hold that it is, there must be some reasonable and just method of carrying it into execution, and if the bond at any time becomes insufficient in amount, a reasonable opportunity should be given to increase the bond, and we therefore hold that it was lawful and proper to give the second bond in this case.

The answer sets forth the fact, that $75,000, the proceeds of bonds, is about to come into his, the treasurer’s, hands. The council should require aa additional bond to cover this sum as well as all other sums in his hands, but it is only reasonable to assume that the required security-will be given and required as changed conditions may arise. The council, cannot, in advance, determine what the fluctuating conditions, arising from the sale of bonds that may be required as improvements or indebtedness, created by the city through its council, are, and therefore the statute, Sec. 135 (96 O. L. 64), gives authority to the council to arrange by ordinance all details for carrying into effect the authorities, given the council by this section. But we think this question is really to-be tested as to the situation at the commencement of these proceedings. The mandamus proceedings are legally commenced when the petition is filed, and not when the alternative writ is issued or served, for such a writ is not indispensable. The court takes jurisdiction and may issue the peremptory writ upon the petition alone, without the alternative writ or notice to the defendant. Sections 6743 and 6745 Rev. Stat. The-fights of these parties must be determined as they existed at the time of the bringing of the suit and not at this date. Tucker v. Newark (City), 10 Circ. Dec. 437 (19 R. 1). The petition in this proceeding being filed August 29, 1903, and proceedings thus, begun, the depositary bond then given was sufficient and the defendant was in default in refusing to obey the ordinance and notice upon him to deposit the funds in the bank, namely, the Hocking Valley National Bank of Lancaster, Ohio.

We therefore hold that the relator is entitled to the peremptory-' writ prayed for in his petition, and it is accordingly ordered. The conclusion of the court necessarily implies the overruling of defendant’s motion to strike out portions of the reply, and to save the question of the defendant, we here expressly overrule said motion, exceptions to be noted. Thereupon the defendant filed his motion for a new trial which was overruled. Exceptions. Ten days allowed .for finding of fact and statutory time for bill of exceptions.

Donahue and McCarty, JJ., concur.


source: Caselaw Access Project

author: WILSON, J.

license: Public Domain

text:
    MARSHALING LIENS — SUBROGATION—EXECUTORS AND ADMINISTRATORS.
    [Greene (2nd) Circuit Court,
    October 31, 1901.]
    Wilson, Sullivan and Summers, JJ.

      Ellen M. Knox v. W. W. Carr et al.
    1. Judgment Lienor mat Marshal Liens Though Prior Liens win, Exhaust the Fund.
    An action to marshal liens against real estate may be prosecuted by a judgment lienor, notwithstanding other prior liens will exhaust the fund derived from a sale of the land.
    2. Creditor Paying Mortgage Debt not a Volunteer — Entitled to Subrogation, When.
    A person discharging a mortgage debt to the administratrix of the mortgagee is not a volunteer but is entitled to subrogation, where, at the time of the transaction, she was a member of mortgagor’s household and held a mortgage upon his other lands, which, if insufficient to satisfy her elaim, might also become a charge upon the premises covered by the mortgage held by the administratrix; and it further appears that she (acting under advice of counsel) and the administratrix believed she was making an investment and was receiving, as a security therefor, assignments of the notes and mortgage and an order of sale from the administrator.
    George Arthur, Horace L. Smith and John B. Knox, for plaintiff.
    Little & Spencer and Charles H. Kyle, for defendants;
    Appear from court of common pleas of Greene county.
    A decree of foreclosure does not become dormant as does a personal judgment. Beaumont v. Herrick, 24 Ohio St. 445, 456, 457.
    The assignment and transfer of the decree of foreclosure and order of sale made in 1888, was valid as the statutes then stood, because at common law the executor had power to sell the assets of the estate, including notes and mortgages, without an order of court, and until the amendment of February 18, 1891, Sec. 6162 Rev. Stat., the common law was in force as to the sale of securities taken or acquired by the administrator for lands of the estate sold by him. Jelke v. Goldsmith, 52 Ohio St. 499, 517 [40 N. E. Rep. 167; 49 Am. St. Rep. 730].
    Mrs. Totten was not a mere volunteer and is entitled to subrogation.-Miller v. Stark, 61 Ohio St. 413 [56 N. E. Rep. 11]; Mosier’s Appeal, 56 Pa. St. 76 [93 Am. Dec. 783].
    The case of Amick v. Woodworth 58 Ohio St. 86 [50 N. E. Rep. 437] (citing Pomeroy, Eq. Jurisp. Sec.1212 and note; Home Sav. Bank v. Bierstadt, 168 Ill. 618 [48 N. E. Rep. 161; 61 Am. St. Rep. 146]; George v. Butler, 16 Utah 111 [50 Pac. Rep. 1032]), relied on by plaintiff in error, is to the effect that the right of subrogation does not belong to a mere stranger or volunteer.

       Affirmed by Supreme Court without report, Knox v. Carr, 68 Ohio St. 575.

   WILSON, J.

This case comes into this court on appeal. We will simply state our conclusions without reviewing at length the evidence in the case, or arguments of counsel.

Ellen M. Knox brings an action to marshal the liens against the real estate of Wallace W. Carr, and sets out in her petition that she has a judgment which is a lien upon his real estate. This is not controverted. There was a contention in the early stages of the case that she had no right to prosecute this action, for the reason that there were other and prior liens which would exhaust the funds derivable from the sale of the lands.

We think she had the right to prosecute the action, and for an order of sale of the premises described in the petition. That decree may be entered in her favor.

The main contentions in the case grow out of the cross-petitions as filed by the different defendants.

The first one in cjrder is upon the cross-petition filed by Emma Run-yan, now represented by the supplemental cross-petition of Charles L. Spencer, setting out a mortgage executed in 1876, by Wallace W. Carr, upon the real estate in the petition described. The mortgage is admitted. The question is whether it is barred by the statute of limitations; and whether or not it is barred, depends upon an alleged payment on the two notes secured by the mortgage, in 1894. If that payment was made, it is not barred; if it was not made, it is.

We conclude from the testimony of Emma Runyan, that that payment was made; therefore the claim upon the mortgage is not barred, and the party representing the mortgage in this action is entitled to recover upon the mortgage to the extent of $500, the amount paid by him for the claim; he not claiming a right to recover more than that against the principal defendant, Wallace W. Carr, who was his client.

A decree may be entered in his favor for the sum of $500, with interest from the date of the payment of the money.

It is not necessary, in that view of the case, to determine whether or not the plaintiff has the right to interpose the plea of the statute of limitations, or whether or not Wallace W. Carr has, at this time, the right to withdraw his plea of the statute of limitations.

The next claim in order is under what is known as the Jobe mortgage.

The claim under this mortgage is made by Alice S. Totten, and the defendant Charles K. Spencer.

We are of the opinion that Mrs. Totten is entitled to be subrogated under this mortgage to the rights of the administratrix. She at the time of the transaction, which is disclosed in the evidence, was a part ■of the household of the mortgagor, she and her daughter living with him. She had a mortgage claim against the defendant, Carr, secured upon other real estate. It might become a claim against the real estate which was included in this mortgage, if her security was not sufficient to satisfy it. She paid this money, understanding she was investing it; she did it under the advice of counsel; she thought she took security for it; the administratrix thought she was giving her security for the payment. Under this state of facts she is not a volunteer. She brings herself clearly within the doctrine of the case of Miller v. Stark, 61 Ohio St. 413 [56 N. E. Rep. 11]. Indeed, her case is stronger than was the case of Miller as there reported. And she is entitled to be protected under this mortgage, not by virtue of the assignment of the order of sale to her, or by virtue of the assignment of the mortgage and the notes to her, but by reason of the fact that she paid the money under the circumstances that she did; so that her rights are entitled to be protected under that mortgage.

This includes the right of Mr. Spencer to recover upon the $241 note, which is, in fact, payment by her, under the circumstances of the case, upon this mortgage.

The next claim is that of Alice S. Totten against Wallace W. Carr, upon her mortgage.

The defense to this is payment. The court is not impressed that the circumstances and'facts disclosed with reference to the family arrangement between these parties amounted in equity to a payment of any part of her claim. We think she is entitled to recover upon her mortgage.

Antedating all these claims is the claim of Charles L. Spencer for taxes. That claim is conceded, so that in the decree the claims of the parties will stand in this order:

First, the right of Mr. Spencer to recover his taxes; second, the right of Mr. Spencer to recover under his supplemental cross-petition, $500 and interest; third, the right of Alice S. Totten and Mr. Spencer to recover what they paid out under the Jobe mortgage; fourth, the right of Alice S. Totten to recover the amount still due upon her mortgage against Wallace W. Carr; and, fifth, the right of Ellen M. Knox to recover upon her judgment against the property.

The costs will be paid out of the proceeds of the sale of the real estate.

Summers and Sullivan, JJ., concurring.


text:
    CONSTITUTIONAL LAW — RAILROADS.
    [Franklin (2nd) Circuit Court,
    1903.]
    Sullivan, Summers and Wilson, JJ.
    Cleveland, C. C. & St. L. Ry. Co. v. State of Ohio.
    1, Section 3365-11 Rev. Stat., Regulating Employment of Railroad Conductors, etc., Unconstitutional.
    Section 3365-11 Rev. Stat. (act of January 31, 1893; 93 O. L. 20) regulating the employment of conductors, engineers and flagmen by certain railroad companies operating a steam railroad thirty miles or mope in length, ana which permits the employment of a person as conductor who has had two years’ experience as such on either a passenger, freight or construction train within the' last six years before the employment, without examination as to his competency; which prohibits the employment of a person, however skillful or competent, who has been employed for any period less than said two years’ term, which allows the retention of an employe, however incompetent and inexperienced, who is in the employ of the company at the time of the passage of the act, and which prescribes no standard, or test of efficiency, is unconstitutional in that it arbitrarily creates two favored classes; arbitrarily says who may, and who may not, labor at a given employment; discriminates without reason, between different railroads, thereby affecting unequally property not different in kind or use, as well as employes in the same class of service.
    2. Law Must Provide for Public Safety to be Sustained as Police Measure.
    As said act fails to provide for the safety of the public, it cannot, therefore, be sustained as a valid exercise of the police power.
    EeRór to Franklin common pleas court.
    J. T. Dye, S. O. Bayless and J. F. Wilson, for plaintiff in error:
    The act in question is not a valid exercise of the police power, but a regulation of interstate commerce, and is wholly without the scope of the legislative power of the state. Clev. C. C. & St. L. Ry. v. Illinois, 177 U. S..514 [20 Sup. Ct. Rep. 722; 44 L. Ed. 868] ; Hall v. De Cuir, 95 U. S. 465, 468 [24 L. Ed. 547] ; Wabash, St. L. & P. Ry. v. Illinois, 118 U. S. 557 [7 Sup. Ct. Rep. 4; 30 L. Ed. 244]; Western Union Tel. Co. v. Pendleton, 122 U. S. 347 [7 Sup. Ct. Rep. 126; 30 L. Ed. 1187]; Leisy v. Hardin, 135 U. S. 100 [10 Sup. Ct. Rep. 681; 34 L. Ed. 128].
    This act of January 31, 1893 (93 O. L. 20), is in violation of the constitution of the United States, because it denies the just freedom of contract between railroads engaged in interstate commerce and persons whom they seek to employ as conductors and train men, without reference to the convenience or safety of the public, by preventing them from employing competent persons to act as conductors unless they belong to> a particular class. Allgeyer v. Louisiana, 165 U. S. 578 [Sup. Ct. Rep. 427; 41 L. Ed. 832],_

      This act is unconstitutional in that it deprives persons competent ■and skillful from obtaining employment which would otherwise be ■open to them. It denies to them the liberty of pursuit. Allgeyer v. Louisiana, 165 U. S. 578 [17 Sup. Ct. Rep. 427; 41 L. Ed. 832]. .
    This act denies the equal protection of the laws. Smyth v. Ames, 169 U. S. 466, 496 [18 Sup. Ct. Rep. 418; 42 L. Ed. 819] ; Gulf C. Ry. v. Ellis, 165 U. S. 150 [17 Sup. Ct. Rep. 255; 41 L. Ed. 666]; Atchison, T. & S. F. Ry. v. Matthews, 174 U. S. 96 [19 Sup. Ct. Rep. 609; 43 L. Ed. 909] ; Soon Hing v. Crowley, 113 U. S. 703 [5 Sup. Ct. Rep. 730; 28 L. Ed. 1145]; Barbier v. Connolly, 113 U. S. 27 [5 Sup. Ct. Rep. 357; 28 L. Ed. 923].
    This act is repugnant to the constitution of the state of Ohio because it grants privileges to one class of persons which are denied to others equally fit and competent, without any examination or test as to competency. State v. Gardner, 58 Ohio St. 599 [51 N. E. Rep. 136; 41 L. R. A. 689; 65 Am. St. Rep. 785] ; State v. Ashbrook,'154 Mo. 375 [55 S. W. Rep. 627; 48 L. R. A. 265; 77 Am. St. Rep. 765] ; State v. Dalton, •22 R. I. 77 [46 Atl. Rep. 234 ; 48 L. R. A. 775; 84 Am. St. Rep. 818]; Lawton v. Steele, 152 U. S. 133,136 [14 Sup. Ct. Rep. 499; 38 L. Ed. ■385]; Noel v. People, 187 Ill. 587 [58 N. E. Rep. 616; 52 L. R. A. 287; 79 Am. St. Rep. 238]; Fiske v. People, 188 Ill. 206^ [58 N. E. Rep. 985; 52 L. R. A. 291]; see also, Clev. C. C. & St. L. Ry. v. Illinois, 177 U. S. 514 [20 Sup. Ct. Rep. 722; 44 L. Ed. 868]; Wabash, St. L. & P. Ry. v. Illinois, 118 U. S. 557 [7 Sup. Ct. Rep. 4; 30 L. Ed. 244]; Lake Shore & M. S. Ry. v. State, 173 U. S. 285 [19 Sup. Ct. Rep. 465; 43 L. Ed. 702]; Allgeyer v. Louisiana, 165 U. S. 578 [17 Sup. Ct. Rep. 427 ; 41 L. Ed. 832]; Gulf C. Ry. v. Ellis, 165 U. S. 150 [17 Sup. Ct. Rep. 255; 41 L. Ed. 666] ; Soon Hing v. Crowley, 113 U. S. 703 [5 Sup. Ct. Rep. 730; 28 L. Ed. 1145] Barbier v. Connolly, 113 U. S. 27 [5 Sup. Ct. Rep. 357; 28 L. Ed. 323] ; Chicago v. Netcher, .183 Ill. 104 [55 N. E. Rep. 707; 48 L. R. A. 261; 75 Am. St. Rep. 93]; Bessette v. People, 193 Ill. 334 [62 N. E. Rep. 215, 218; 56 L. R. A. 558]; State v. Bateman, 44 Bull. 83; Nash. C. & St. L. Ry. v. Alabama, 128 U. S. 96 [19 Sup. Ct. Rep. 28; 32 L. Ed. 352] ; New York, N. H. & H. Ry. v. New York, 165 U. S. 628 [17 Sup. Ct. Rep. 418; 41 L. Ed. 853].
    J. M. Sheets, S. W. Bennett and J. E. Todd, for defendant in error:
    The act in question is nothing more nor less than a police regulation, and is not, in the sense of the constitution, in any wise a regulation of commerce. Gibbons v. Ogden, 22 U. S. (9 Wheat.) 1- [6 L. Ed. 23]; Chicago & N. W. Ry. v. Fuller, 84 ü. S. (17 Wall.) 560, 567 [21 L. Ed. 710] ; Lord Chief Justice Hale De Portibus Maris, First Hargrave’» Law Tracts 78; New Jersey S. Nav. Co. v. Bank, 47 U. S. (6 How.) 344, 382 [12 L. Ed. 465] ; Sherlock v. Ailing, 93 U. S. 99 [23 L. Ed. 819] Lake Shore & M. S. Ry. v. State, 4 Circ. Dee. 406 (8 R. 220) ; affirmed by Supreme Court, without report, Lake Shore & M. S. Ry. v. State, 1 O. S. C. D. 285 (37 Bull. ,196); Gladson v. Minnesota, 166 U. S. 427, 43» [17 Sup. Ct. Rep. 627; 41 L. Ed. 1064] ; Illinois C. Ry. v. People, 143 Ill. 434, 456 [33 N. E. Rep. 173; 19 L. R. A. 119] ; Lake Shore & M. S. Ry. v. State, 173 U. S. 285, 298 [19 Sup. Ct. Rep. 465; 43 L. Ed. 702] ; Western Union Tel. Co. v. Mayer, 28 Ohio St. 521; Ratterman v. Express Co. 49 Ohio St. 608 [32 N. E. Rep. 754]; Adams Express Co. v. State, 55 Ohio St. 59 [44 N. E. Rep. 506] ; affirmed by United States Supreme Court, Adams Express Co. v. State, 10 O. F. D. 426 [166 U. S. 185; IT Sup. Ct. Rep. 604; 41 L. Ed. 965]; State v.. Railway, 133 Ind. 69 [32 N. E. Rep. 817; 18 L. R. A. 508]; Cin. H. & D. Ry. v. Sullivan, 32 Ohio St. 152; Clev. P. Ry. v. McConnell, 26 Ohio St. 57; Thorpe v. Railway, 27 Yt. 140 [62 Am. Dec. 625]; Corwin v. Railway, 13 N. Y. 42; People v. Railway, 55 Hun 409 [8 N. Y. Supp. 672]; Texas & P. Ry. v. Mayes, 15 S. W. Rep. 43 (Tex. App.) ; Mo. Pac. Ry. Co. v. Mackey, 127 U. S. 205 [8 Sup. Ct. Rep. 1161; 32 L. Ed. 107]; Illinois C.' Ry. v. Willenborg, 117 Ill. 203 [7 N. E. Rep. 698; 57 Am. Rep. 862] ,- Gratiot v. Railway, 116 Mo. 450 [21 S. W. Rep. 1094; 16 L.. R. A. 189]; Clev. C. C. & I. Ry. v. Harrington, 131 Ind. 426 [30 N. E.. Rep. 37] ; Diamond v. Railway, 6 Mont. 580 113 Pac. Rep. 367] ; Smith v. Alabama, 124 U. S. 465 [8 Sup. Ct. Rep. 564; 31 L. Ed. 508] ; Nash. C. & St. L. Ry. v. Alabama, 128 U. S. 96 [9 Sup. Ct. Rep. 28; 32 L. Ed. 352]; Plumley v. Massachusetts, 155 U. S. 461, 472 [15 Sup. Ct. Rep. 54; '39 L. Ed. 223]; New York, N. H. & H. Ry. v. New York, 165 U. S. 628 [IT Sup. Ct. Rep. 418; 41 L. Ed. 853]; Dent v. West Virginia, 129 U. S. 114 [9 Sup. Ct. Rep. 231; 32 L. Ed. 623]; Singer v. State, 72 Md. 464 [1» Atl. Rep. 1044; 8 L. R. A. 551]; State v. Gardner, 58 Ohio St. 599 [51 N. E. Rep. 136; 41 L. R. A. 689; 65 Am. St. Rep. 785]; 2 Tiedeman, State & Federal Control of Persons & Property 242.
   WILSON, J.

This proceeding questions the constitutionality of the act passed January 31, 1893 (90 O. L. 20), regulating the appointment of conductors, engineers and flagmen on certain steam railroads in the state.

The action below was one to recover the stipulated penalty for a .violation of the statute, tbe defendant company having employed a person as" conductor not in the class prescribed by its terms.

A demurrer was interposed to the answer, admitting the employment, but filed for the purpose of pleading the facts in the case, so as to make appear with more particularity the inequalities and unreasonableness of the statute. This demurrer was sustained and the plaintiff had judgment, thus raising the question. Since the cause was submitted in this court, the Supreme Court has handed down an opinion in the case of Harmon v. State, 66 Ohio St. 249 [64 N. E. Rep. 117; 58 L. R. A. 618], which is decisive of the question here, and renders unnecessary any extended review of the authorities or discussion of the subject. The case referred to was a suit to test the constitutionality of the act of March 1, 1900 (94 O. L. 33), regulating the appointment of stationary engineers. The act provided among other things as follows:

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

Of this the Supreme Court says, page 254:

“It is arbitrarily forming a favored class and is in conflict with See. 2 of the bill of rights which guarantees equal protection and benefit; and it is also in conflict with the purpose for which the constitution was established, which was to promote our common welfare. This section of the act is to promote the welfare of a particular three-year class, instead of the common welfare of all.”

The act (90 O. L. 20, Sec. 1) under review in the case at bar provides among other things:

‘ ‘ It shall be unlawful * * to employ any person in the capacity of conductor of a passenger train or trains unless such person has had at least two years’ experience in the position of conductor of either passenger, freight or construction train within six years next preceding the time of such employment. * * * But nothing in this act shall be so construed as to prevent any such railroad company or corporation from retaining conductors * * * in its employ at the time of the passage of this act.”

That is to say, a person who has been a conductor of passenger, freight or construction train for two years within the last six before the employment, may be employed without examination as to his competency ; but a person so employed for a term one day less than two years, shall not be employed, however skillful and competent he may be; and a person who has been in the employ of the company for one day previous to the passage of the act may be retained, however incompetent and inexperienced he may be. The act creates arbitrarily two favored classes: Those who have had two years’ experience in the last six before employment, and those who happened to be in the employ of the company at the time of the passage of the act. Similar and even more glaring inequalities might be pointed out governing the employment of engineers and others. The act prescribes no standard, and no test of efficiency; arbitrarily says who may labor at a given employment, and who may not, and fails to provide for the safety of the public, which must have been the purpose of any lawful exercise of the police power of the state.

So, too,,the limitation of the act to “any railroad company or companies running or operating a steam railroad in the state of Ohio, thirty miles in length or more, and the same having been operated for three years or more” is a discrimination without reason, affecting unequally property not differing in kind or use, as well as employes in the same class of service. The act must be held unconstitutional. The judgment of the court of common pleas is reversed, the demurrer overruled as to the answer, sustained to the petition, and-the petition dismissed.

Sullivan and Summers, JJ., concur.

       Affirmed by Supreme Court without report, June 14, 1904.


author: WINCH, J.

text:
    USURY — BUILDING AND LOAN ASSOCIATIONS — CONSTITUTIONAL LAW.
    [Cuyahoga (8th) Circuit Court,
    June 20, 1904.]
    Hale, Marvin and Winch, JJ.
    Brooklyn Bldg. & L. Assn. Co. v. Damas Desnoyers et al.
    1. Usuey Laws Subjects of Legislative Conteol.
    Usury laws are statutory, and their application may be extended or limited at the pleasure of the legislature.
    2. Section 3836-3 Rev. Stat. Exempting Building and Loan Associations feom^ Usuey Laws is Constitutional.
    Section 3836-3 Rev. Stat. exempting building and loan associations from the operation of the usury laws of the state, with respect to loans made to members and depositors, is neither violative of Sec. 26, Art. 2 of the constitution which requires all laws of a general nature to have uniform operation throughout the state, nor Sec. 1, Art. 13, which provides that the general assembly shall pass no special act conferring corporate powers, nor of Secs. 1 and 2, Art. 1 of the constitution.

      Appeal from Cuyahoga common pleas court.
    Smith & Taft, for plaintiff.
    Thomas Robinson, for defendant.
   WINCH, J.

This case was heard on appeal from the common pleas court. The petition prays for the foreclosure of a mortgage given to secure the payment of a loan made by plaintiff to defendant, Damas Desnoyers, certain «ovenants and agreements in said mortgage being as follows:

“The condition of this deed is such, that whereas the said Damaa Desnoyers, being the owner of 4 y2 shares of stock therein, has together with said Alphonsine Desnoyers executed and delivered to the said The Brooklyn Building & Loan Association Company, a certain written obligation of even date "herewith for the sum of $900 being the amount received by him as a loan upon said shares under the terms and conditions prescribed in the constitution and by-laws of said Company, and has therein specially agreed to pay to said company for such loan, without demand, on the second Wednesday of each and every month beginning with May 8, 1895, until the said loan shall be finally paid in the manner provided in said constitution and by-laws, the following sums of money, to wit:
“First, dues. The sum of $4.50, being the monthly installment of dues on said shares.
“Second, interest. The sum of $4.50, being the interest on said sum of $900, at 6 per cent per annum, subject to annual rebatement according to the provisions of the constitution and by-laws of said company.
“Third, premiums. The sum of $2.25 per month, being the premium on said loan at 3 per cent per annum.
“Fourth, fines. All fines, assessments and penalties which the said Damas Desnoyers shall incur, or which may be levied upon him as a member of said company and in accordance with its constitution and by-laws.
“And it is further agreed that in ease of default in making any of the payments stipulated for in the above obligation, when the same shall become due and payable, or to comply with the requirements of the constitution and by-laws of said company as aforesaid, then the amount secured by the within mortgage, with all arrearages, fines, premiums, or other charges thereon of whatever nature, shall become due and payable at once, or at any time thereafter, and whether there be subsequent defaults or not, all at the option of said company, and this mortgage may be foreclosed by due process of law.”

An amended answer filed by the defendants alleges as a defense that-prior to tbe bringing of this action plaintiff agreed to a settlement ana liquidation of said loan upon the payment to it by the defendants of the balance due thereon computed as if the loan had originally been, made to draw only 6 per cent interest; that defendants had tendered to plaintiff the balance so computed and agreed upon, but plaintiff refused to accept it.

A reply denies that any agreement for settlement as alleged was-ever made.

Upon the hearing no proof of any such settlement was made, but-counsel for defendants contended that the contract sued on by plaintiff is usurious and being usurious, that plaintiff is entitled to collect thereon only 6 per cent interest, which defendants had tendered.

There is no question that the contract is an usurious one, but it must be enforced under the laws governing building and loan associations, unless said laws, so far as they authorize the collection of usurious interest, are invalid.

Thus the sole question for determination in this case is the constitutionality of the third paragraph of Sec. 3836 Rev. Stat. which reads as, follows:

“Such corporations,” (building and loan associations) “shall have power: # * * To assess and collect from members and depositors such dues, fines, interest and premium on loans made, or other assessments, as may be provided for in the constitution and by-laws. Such, dues, fines, premiums or other assessments shall not be deemed usury,, although in excess of the legal rate of interest. ’ ’

It appears that the circuit court of the fifth circuit, sitting in Ashland county, in the ease of Mykrantz v. Building & L. Assn. 10 Circ. Dec. 250 (19 R. 51), held that the legislature, by exempting building and loan associations from the operation of the usury laws, had undertaken to grant “special privileges to a certain class of people, and to a certain class of corporations” in contravention of Sees. 1 and 2 of Art. 1 of the constitution, and that therefore said exemptions are invalid.'

The circuit court of the sixth circuit, fitting in Lucas county, in the case of Spies v. Loan & Tr. Co. 24 O. C. C. 40, held that the law is not a violation of said Secs. 1 and 2, Art. 1 of the constitution.

There is no decision of the Supreme Court directly in point, but the right of building and loan associations to collect Usurious interest lias been recognized and enforced by the Supreme Court repeatedly.

The first building and loan association act in this state was passed. May 5, 1868 (85 O. L. 127), and amended three days later. 65 O. L., 173. The original act as amended provided as follows:

“Section 2. Such corporation shall be authorized and empowered', to levy, assess and collect from its members such sums of money, by rates of stated dues, fines, interest on loans advanced, and premiums bid by members or depositors for the right of precedence in taking loans, as ■ the corporation by its by-laws shall adopt; also, to acquire, hold, encumber and convey all such real estate and personal property as may be legitimately pledged to it on such loans, or may otherwise be transferred to it in the due course of its business; provided, that the dues, fines and. premiums so paid by members or depositors of such corporation, although: paid in addition to the legal rate of interest on loans taken by them, shall not be construed to make the loans so taken usurious; and provided also, that no person shall hold more than twenty shares in any such association, in his own right. ’ ’

"While this act was in force the ease of Lucas v. Building & Sav. Assn. 22 Ohio St. 339, was heard by the Supreme Court.

“This was an action by the association to recover of Lucas money which he had as a loan from it as a member of the company. Interest was reserved and paid upon this loan exceeding 8 per cent per annum, the maximum rate allowed by the general law, but not exceeding the limits allowed by the statute under which the company was organized. This matter of alleged usury was set up as a defense, to the extent of the excess of interest paid over 6 per cent.” The court held: “The interest reserved was no more than the law allowed.”

In the case of State v. Building & Sav. Assn. 29 Ohio St. 92, the court recognized the right of the association to charge a premium in addition to the legal rate of interest, but held that “the only mode by which the premium on a loan can be fixed is by the bidding of the members or depositors for the right of precedence.”

In the case of Licking Co. Sav. L. & Bldg. Assn. v. Bebout, 29 Ohio St. 252, 254, it appears that one Bebout had. received from the association the sum of $410, bidding $390 premium for precedence in taking the loan and had given the association a mortgage to secure the payment to it of the full sum of $800. He made payment of monthly installments of dues and interest for some time and then died. His administrator elected to return the $410, and tendered the amount, less amounts previously paid in dues and interest, but the association refused to accept: it. Thereupon the administrator commenced suit to cancel the mortgage, the common pleas court ruled in his favor and the district court .did the same. Judge Gilmore, in deciding the case said:

“If the loan in this ease consisted of the cash received on taking it, which was $410 exclusive of the premium bid for precedence, which was $390, the decree of the district court was correct, and must be affirmed. If, on the other hand, the loan consisted of the aggregate of these sums, i. e., $800, the decree was erroneous, and must; be reversed.” The decree was reversed.

In the ease of Bates v. Savings & L. Assn. 42 Ohio St. 655, the court defined the premium which should not be construed to make the loan usurious as one bid by a member or depositor for the right of precedence in taking a loan, at a competitive sale of such right. This case was decided in 1885 and the following year the law was amended by leaving out the requirement that the premium must be bid, leaving it to the .association to provide in its constitution and by-laws regarding the payment of premiums. 83 O. L. 116. Again, in 1891, the law was amended And the provision now known as Sec. 3836-3 Rev. Stat. and heretofore quoted, was adopted. 88 O. L. 469. In the present law such associations are authorized to charge such dues, fines, interest and premiums on loans made, or other assessments, as may be provided for in the constitution and by-laws. Since the passage of this act, the powers of such corporations and the rights and liabilities of their members thereunder, have been reviewed by the Supreme Court, and the following quotations are from an opinion by Chief Justice Minshall in the case of Eversmann v. Schmitt, 53 Ohio St. 174 [41 N. E. Rep. 139; 29 L. R. A. 184; 53 Am. St. Rep. 632], decided in 1895:

“Mutuality is the essential principle of a building association. Its business is confined to its own members; its object being to raise a fund to be loaned among themselves, or such as may desire to avail themselves of the privilege. This is done by the payment, at stated times, of small sums, in the way of dues, interest on loans and premiums for loans. Each shareholder, whether a borrower or nonborrower, participates alike in the earnings of the association, and alike assists in bearing the burden of losses sustained. * * *
“A borrower before his stock is paid up, receives from the association the par value of his shares, in the nature of an advance loan. For this, he agrees to pay the premium, if any, for the privilege, the interest on the money advanced, subject to abatements to be made at stated times, and the dues on his stock until it matures. In other words, he agrees to keep up and pay out his stock, as if he were a nonborrower, in consideration of the amount being advanced to him before that time. Hence, the borrower remains á stockholder, and participates in all the privileges and benefits of a stockholder; has a voice in the management of the association and participates in its earnings. The latter go toward discharging his obligations arising on the loan, and to shorten the time in which he will be fully discharged therefrom. For, taking all losses into account, whenever the shares of the borrower have reached their par value by the payment of dues and the apportionment of earnings, the loan is liquidated and he ceases to be a member, as he would, if he had not borrowed at all. In other words, with his shares paid up, he discharges his obligations as a borrower. And the exact test of his right to call for a cancellation of the mortgage given to secure his obligations as a borrower, is the inquiry, whether he would have been entitled to receive from the association the par value of the shares on which the loan was made, had he not become a borrower.
“In this case Mrs. Schmitt subscribed for twelve shares, and received from the association their par value, $3,000, as an advanced loan, at a premium of $240. She paid the premium, and agreed to pay the dues thereon, $6 per week, and interest at the rate of 6 per cent, subject to an annual abatement, 'until such time as the weekly dues paid and dividends declared and unpaid shall amount to the sum of $3,000/ and all ‘assessments’ that might be levied upon her as a member of the association. * * * It is wholly unlike a savings society where the borrower is not a member or otherwise interested in its business. Having no voice in the management, nor interest in the earnings of the society, the borrower and it sustain the simple relation of debtor and creditor. Here, as shown, the borrower is also interested as a creditor. The loan is for no definite period of time. It depends upon the management of the association, in which he continues as a member and has a voice. ’ ’

In that case, the court held the defendant to the payment not only of dues, interest and premium on her loan, but required her to pay in addition thereto as assessment of nearly $1,000 made by a receiver of the association after its insolvency, as her share of the losses of the association.

From the foregoing authorities it appears that the very question here involved, to wit, the constitutionality of the law authorizing building and loan associations to charge premiums in addition to the legal rate of interest, has been many times incidentally, if not directly, before the Supreme Court, and yet the law has stood upon the statute books of this state and been enforced for more than thirty-six years. Indeed, some of the reputed cases were in the nature of quo warranto cases in which the associations pleaded the statute as their warrant for charging premiums, and the Supreme Court refused to oust them from such .franchise, though it saw fit to regulate them in its exercise to conform to the strict letter of the law.

Believing the decisions of this state recognize the validity of the law, we have deemed it unnecessary to consider the many authorities -cited to us from other states in which the constitutionality of similar statutes has been sustained.

It may be remarked that our usury laws are statutory. Their application may be extended or limited at the pleasure of the legislature. In recent years many of the states have repealed all laws regulating the rate of interest which may be contracted for.

In Mykrantz v. Building & L. Assn. supra, the able judge delivering the opinion concedes that the statute here in question does not violate Sec. 26, Art. 2 of the constitution, which requires that all laws of a general nature shall be uniform in operation throughout the state, nor Sec. 1, Art. 13, which prohibits special acts granting corporate powers. He says, page 253:

“This law, whatever else may be said about it, is a law of a general nature and is uniform throughout the state. It applies to all building and loan associations in whatever corner of the state they may be found. It is not granting, as we view it, a special or corporate power by special act of legislation.5 ’

He says, page 254, it “gives special privileges to a certain class of people, and to a certain class of corporations.” That is true of all corporation laws, they grant special privileges to classes of corporations by which the classes of people who are members thereof, benefit.

Railroad corporations enjoy the right to condemn private property; this is a special privilege enjoyed by no individual; and so the special privileges enjoyed by corporations and their stockholders might be enumerated at great length. We are not in harmony with the conclusion reached in Mykrantz v. Building & L. Assn, supra, and therefore affirm the constitutionality of the law.

Decree for plaintiff.

Hale and Marvin, JJ., concur.


text:
    LANDLORD AND TENÁNT — NOTICE.
    [Cuyahoga (8th) Circuit Court,
    June 20, 1904.]
    Hale, Marvin and Winch, JJ.
    Samuel Greenberg v. Timothy Murphy.
    '■Tenant Moving out Upon Notice to Vacate, not Eviction.
    Before the expiration of the term under a lease, a landlord served upon the tenant a notice in writing to vacate the demised premises within three days, or legal measures would he taken to obtain possession, and the tenant thereupon moved out without protest: Held, no eviction.
    ERROR to Cuyahoga common pleas court.
    J. F. Clark, for plaintiff in error.
    Scott & Parks, for defendant in error:
    To constitute an eviction, there must be some act of the landlord that compels an abandonment of the property; notice to vacate or demand for possession is not an eviction. Wood, Landl. & Ten. 481; 11 Enc. Law (2 ed.) 466, Par. 4; 2 McAdam, Landl. & Ten. 407, 418.
    The statutory notice to vacate is only a preliminary step, it may or may not be followed by a judgment of eviction, and till there is such judgment, the tenant is in no way disturbed in his possession. .
   WINCH, J.

The error complained of in this case is the action of the trial court in sustaining a general demurrer to the amended petition. Said amended petition reads as follows:

“Now comes the plaintiff and by leave of the court first had and obtained, files this, his amended petition herein, and for his cause of -action, says that prior to and upon September 1, 1903, and while the said plaintiff was a tenant of the said defendant and was occupying the premises hereinafter mentioned and described, the said defendant for a valuable consideration, agreed to and with the said plaintiff, that he would further lease and let to the said plaintiff, the said premises then being occupied by plaintiff, and which premises have been so occupied by the plaintiff for two years prior thereto, for a further term of one year after the expiration of the then term under which' the plaintiff was then occupying the said premises, to wit, No. 2336 Broadway, in the city of Cleveland, Ohio. That in pursuance and as a result of such promise and agreement so made by said defendant with said plaintiff as aforesaid, the plaintiff relying thereon that he would have the said premises above -described for another year, incurred expenses by way of repairs upon the said property, sueb as plumbing, paper hanging, etc., to the extent and cost of $200.
“The plaintiff further says that upon September 1, 1903, the said defendant in pursuance of the contract and agreement and promises so made as aforesaid, entered into a written lease or agreement to make a lease to the plaintiff, for the occupaney of said property above described and was to receive from the said plaintiff as rental for said property, the sum of $444 per year, which sum of $444 was to be paid in installments of $37 per month in advance, and an additional sum of $1 per month for water rent.
“That the plaintiff performed all of the obligations on his part to he performed, but that the defendant, disregarding his obligations and agreements so made as aforesaid, did upon and about September 10,1903, cut certain water pipes then connected with a certain watering trough in front of plaintiff’s place of business, which had been erected and constructed by plaintiff, and was being used in connection with the carrying on and transaction of the plaintiff’s business, thus causing a great inconvenience to plaintiff’s customers and damage to said plaintiff.
“The defendant further says upon September 28, 1903, defendant notified this plaintiff in writing, that the plaintiff’s tenancy of the premises above described and known as No. 2336 Broadway, must and would cease on September 30, 1903, at which time the said defendant would take possession of the said premises, and further served an additional notice in writing upon plaintiff, to vacate the said building and lot of land within three days, or legal measures would be taken by said defendant to obtain possession thereof.
“Wherefore, said plaintiff immediately, or as soon thereafter as was possible, secured another place and vacated the said premises, in accordance with the said notices. Plaintiff was compelled to pay additional rent for a place in which to continue and carry on his business, and by reason of the action on the part of said defendant in so refusing to carry out and perform his> part of said agreement and to execute said lease as aforesaid and allow said plaintiff to remain in peaceable possession of the s?id premises as theretofore agreed upon, said plaintiff was damaged to the extent of $1,500.
“Wherefore, the plaintiff prays judgment against defendant for damage so sustained by him in the sum of $1,500.”

It will be noticed that this pleading does not definitely state 'when the original two years lease ended and when the new term was to begin, but we take it that the old lease ended, August 31, 1903, and that plaintiff was in possession on September 10 wben the water pipes were cut and thereafter and until he moved out, under what he claims was a new ‘"written lease or agreement to make a lease.” No copy of this writing is attached to the pleading and as to the premises demised, all we know is that they were No. 2336 Broadway, in the city of Cleveland.

Whether the water pipes connected with a certain watering trough in front of plaintiff’s place of business which defendant cut, were appurtenant to said premises and whether defendant violated any of the covenants of said alleged lease by cutting them, we are unable to say.

The only other wrongful act of the defendant complained of is that he notified the plaintiff that the tenancy must cease and served three days’ written notice to quit, or legal measures would be taken to obtain possession of the premises.

If this conduct of the defendant amounted to an eviction, the amended petition states a good cause of action; if not, the demurrer was properly sustained, for if the plaintiff voluntarily complied with the plaintiff’s request and moved out without protest he has no ground of complaint.

McAdam, in his work on Landlord and Tenant gives the rules as to eviction as follows:

“The test as to eviction is whether the tenant has been deprived of the beneficial enjoyment of the estate, or a portion of it, by the wrongful act of the landlord.” 2 McAdam, Landl. & Ten. See. 418.
“The wrongful acts of a lessor do not, in law, amount to an eviction, where there is neither an actual nor a constructive expulsion of the lessee from any portion of the demised premises.” 2 McAdam, Landl. & Ten. Sec. 418, p. 1335.
“To work a suspension of the obligations of the tenant, under the lease, while his rights under it remain in full force, there must be an exclusion of the occupant from some portion of the premises demised or a substantial and effectual deprivation of the beneficial enjoyment of the property, in whole or in part. Any of the following acts will constitute an eviction, viz.: Preventing the tenant from occupying the premises by any act of the lessor or by one having paramount title; a recovery of judgment in ejectment by the owner of a paramount title; an injunction by the lessor against the use of the premises; a judgment of eviction in his favor.” 2 McAdam. Landl. & Ten. See. 407.

The text is supported by numerous authorities, and illustrations of the application of the above principles, but none of the cases cited contain the proposition that a right of action arises in favor of a tenant as for an eviction or breach of the lease contract upon a mere demand by the landlord of possession and the voluntary surrender thereof by the tenant.

Nothing more than this is alleged in the petition; the landlord demanded possession and demanded it in writing; he said he would begin legal proceedings to recover possession, if the tenant did not comply with the demand. It is not alleged that he did begin legal proceedings or do anything else showing his intention to evict the tenant. If the tenant was rightfully in possession and entitled to remain he should have awaited the legal proceedings that were threatened and made his defense thereto, rather than to have complied with the demand, as he did, and then bring his action for alleged damages which perhaps never would have resulted.

The cases cited by plaintiff to sustain the sufficiency of the petition are most of them illustrations of the rule that an action for rent will not lie in favor of the landlord where the tenant leaves the premises as the result of some action on the part of the landlord evidencing his desire to terminate the lease. They have no application to a case like this where the tenant seeks to found a right of action upon the wrongful acts of the landlord. Such cases hold that a rescission of the contract of lease is worked by the acts of the landlord showing such intention and the consent of the tenant thereto. This suggestion also disposes of the contention of plaintiff that eviction is a matter of intention and as the intention must be gathered from acts, the question of intention must be left to the jury. In this case there is no allegation of any facts which can possibly be construed as amounting to an eviction and therefore nothing to submit to a jury for its determination upon the subject.

We are cited to the case of Tarpy v. Blume, 101 Iowa 469 [70 N. W. Rep. 620], as sustaining the proposition that serving a notice to quit amounts to a wrongful eviction. The syllabus of that case reads as follows :

“Actual force is not essential to a wrongful eviction of a tenant by his landlord, but such eviction may be effected by the serving of a notice to quit within a specified time prior to the expiration of the period for which the tenant is entitled to possession, the moving of property into the buildings without the tenant’s consent, and the latter’s leaving the premises in consequence thereof. ’ ’

It is evident that the decision of this ease turned on the fact that the landlord took possession of the buildings on the demised premises without the tenant’s consent, and not on the notice to quit. On page 471 of the opinion, Judge Given distinguishes the case from the case of Wright v. Everett, 87 Iowa 697 [55 N. W. Rep. 4], and says:

“In that, the landlord entered without objection, while in this it was against the protest of the plaintiff. ’ ’

In the latter case there was only a notice to quit and entry by the landlord without protest from the tenant, who soon thereafter quit, and the court held “that the possession taken by the lessor was not wrongful and that the lessee was not entitled to damages therefor. ’ ’

The latter case, and not the former, is in point and should be followed in determining the case at bar. There is no allegation- in the petition that plaintiff protested against leaving the premises; his voluntary compliance with the notice to quit determined his rights and put them at an end.

The demurrer was properly sustained and the judgment is affirmed.

Hale and Marvin, JJ., concur.