text:
    CONSTRUCTION OF THE WORDS “ OPPOSITE POLITICS.”
    Court of Appeals for Lorain County.
    R. T. Reefy, a Taxpayer, v. The City of Elyria et al.
    Decided, October 14, 1913.

      Newspapers — Qualifications of, for Publication of Municipal Advertising — W7iere the Statute Requires Papers of “Opposite Politics.”

    Whether two newspapers are of "opposite politics,” within the meaning of the statute relating to municiipal advertising, will be determined by their conduct and policy at a time when partizanship has sway and party organization and discipline finds expression in party platforms and declarations, rather than during a period when party feeling is quiescent and there is little or no political activity; and where a municipality enters into a contract for such advertising during the year following a presidential campaign, the question whether the two papers chosen are opposite or antagonistic in polities will be judged by their record during the campaign of the preceding year.
   Grant, J.

This is an appeal from the judgment of the court of common pleas.

The petition alleges that the city of Elyria attempted to contract with the defendants, the Republican Printing Company and the Chronicle Printing Company, respectively, for the printing by them of such matters and things as are by law required to be published in newspapers, pertaining to the affairs of said city, exclusively. These purported contracts are said to be illegal and void, and the prayer of the petition is that the execution of them and all payments under them be forbidden and enjoined.

This claimed illegality in the contracts awarded arises — so it is said — from the fact that the newspapers published by the defendants named, namely, the Evening Telegram, published by the first named, and the Elyria Chronicle, published by the latter of the two, are not newspapers of “opposite politics,” as they are required to be by the law permitting the contracts in question to be made. This is the sole issue appearing in this appeal, and it is the only question that will be discussed in this opinion. It is a matter of fact, to be determined upon all the circumstances of the ease.

We say now, as we said at the argument, that the standard of political orthodoxy by which we shall measure the quality of these two newspapers as to whether they are “opposite” within the contemplation of the statute, will be their conduct and affiliations in the political campaign of 1912, and not their claims and asseverations now. We are not here to conduct a post mortem examination nor to administer ‘ ‘ crowner’s quest law. ’ ’ The time when those who seek the benefits of a course of conduct should speak or keep silent is when speech or silence is called for, and not when either will be inert. With newspapers as with men, ‘ ‘ By their fruits ye shall know them, ’ ’ and ‘ ‘ In the place where a tree falleth, there it shall lie.”

It is not pretended that “politics,” as used in the statute under which the contracts attempted to be awarded are allowed, is the word in its broad sense of comprehending the whole scope and office of government. It is used, all will agreé, in its restricted sense of partisanship. Thus considered, the word signifies party preference and connection. It lives and exercises its force and brings its power to bear, through party organization and discipline and finds expression in party platforms and declarations of principles and in the utterances of candidates and leaders. In 1864 General McClellan openly repudiated the platform on which his party had placed him as its candidate; nevertheless, he claimed and had the allegiance of his party and was the incarnate exponent of its politics at the polls.

The word “opposite,” when employed as the statute in question employs it, means antagonistic, having a different tendency, quality or character. Contrary is, perhaps, the most expressive as well as the most correct verbal equivalent by which the underlying concept of opposition can be voiced; it is, at least, sufficient for the purpose of this case. It does not permit a twilight zone in which, or under the shadow of which, neighbor Garford, or townsman $hg,rp may be supported by a paper masquerading as a political enemy to their party. It is not allowable, under this definition of the vital word, to make merchandise of journalistic agencies by selling space to the minor candidates of one side while posing as the party exponent of the other side, in good and regular standing. What the statute clearly means is — -“He that is not for me is against me; and he that gathereth not with me scattereth abroad. ”

Brought to this plain and easy test, and measured by its requirements, how stands the case at bar V

In the campaign of 1912 there were — among all — at least two political parties before the people of this nation and of Ohio and in every county in it. These two parties were known and designated as the Republican and Reform parties, respectively. Each had its candidates, state and national, each had fulminated its declaration of principles, and each was fighting for votes against, the other. Not only were they antagonistic — contrary—to each ether on paper and in the abstract, but it is too well known for dispute that in the concrete and in the persons of the candidates and down to the lowest stratum of their followers, they were at deadly enmity with one another. The feud was extremely bitter all down the line, from Taft and Roosevelt to the humblest job-hunter in Pooreuss county and the battler for constabulary honors in a wharf-rat precinct of the East Side. No better evidence of this ultra spirit of strife can be had than the admission of the publisher of the Chronicle, found in the record in this case, as to how he hated Taft, the head of the ticket which he now says he supported. It is impossible that the campaign should have been otherwise. The head of the Reform ticket — pre-eminently one of Homer’s leaders of men — had, above all things, what John Randolph used to call ‘ ‘ a talent for turbulence. ’ ’ And he is one of that kind of persons who manage to embroil pretty much everybody in his contagious quarrelsomeness. As between Republicans and .the so-called Reformers, no one of either could keep out of the internecine fight of last year, nor could one dodge taking sides; Mr. John Dawkins, if he had been alive again, simply would not have been in it.

And yet, the publisher of the Chronicle maintains in this record and at the bar, that he did this impossible thing.

What he says is that, finding the good old republican ship in the hands of pirates, with William H. Taft as the Jolly Roger, to avoid seeing his party walk the plank he concluded to lend a hand at scuttling the craft. Accordingly, he denounced the regular nominee of the party to which he now says he then owed political allegiance. He counseled the readers of his paper to put a cross-mark over the state and national ticket of the party to which he now claims he was then ‘ ‘ opposite. ” It is true, as he says, that he advised also a cross at the head of the Republican county ticket, but when he adds that there was no Reform county ticket in the field, the merit of his advice in this respect, considered from a partisan point of view, becomes elusive. - The explanation that a part of this advocacy of candidates was paid for does not improve the matter at the bar of political morals, nor does it change the requirements of the statute. At best, it only undertakes to shift the transaction from the category of political treason to that of party prostitution; the subject was either in the enemy’s camp or “on the street” — a political nymph du pave.

It is true that on the trial it is denied that the platform — ■ which is only the form of declared principles — of the party which the Chronicle now professes loyally to have served last-year, was in any way assailed last year. We shall let the record speak on this point. In an editorial article published in the Chronicle of August 9th, 1912, the following language appeared :

“It is apparent that the Republican party is no longer Republican in the sense that it stands as the representative party of the people-at-large. Since Taft and the representatives of special privilege have committed the theft of the Republican party, there is no longer any hope for the common people from that source.
“Roosevelt and the Progressive' party, by their confession of faith and their party platform offer the relief that the masses demand. The platform is clear, progressive and does not waver nor evade the issues of the present day. The declarations stand out clear and ring with true patriotism. If the progressive party should win at the election the country will be safe in Mr. Roosevelt’s hands.”

It is true that in the same article something is said commendatory of Mr. Candidate Wilson, also. But neither Mr. Wilson nor his party is in this case, and neither need be mentioned here; the fight is between Mr. Taft’s party and the party of Mr. Roosevelt, and in that fight the Chronicle says it was for the former, — that is, it claims to have been of “opposite politics” to the latter. If this is so, — if the Chronicle was indeed Mr. Roosevelt’s friend— and he surely was, in fact he says so, — • then if Mr. Roosevelt were the prophet Job in all things — patience included — which he was not, by a long shot — why, then he might with the afflicted man of old have exclaimed: “Behold my desire is * * * that mine adversary had written a book, ’ ’ — or rather, a newspaper.

This friendly enmity might be pursued a good deal further without travelling outside the record, but the quality of it may be found from the samples already given. Mr. Lincoln said the war could not be fought with squirtguns made out of elder-stalks charged with rose-water, and enemies of the Roosevelt type do not usually assail each other with palm branches.

These being the facts, what was the status, in a party way, of the Chronicle in the momentous and highly quarrelsome campaign of 1912 ? Foraker was once defeated for Governor of Ohio because he maintained that he was “neither for nor against” prohibition in this state. Assuming, as surely we may, from its own confessions in this case, that the Chronicle was substantially in Foraker’s plight, might it take that position and still claim benefit of clergy — or, rather, of the publication law that we are considering? What is the political status of a “neither for nor against” newspaper, in the eye of the statute in question? Some research here might be employed, usefully, perhaps, but ours can be but brief.

The late Mr. Barnum exploited Joice ITeth, the Feejee mermaid, the Woolly Horse, the what-is-it, and other things of doubtful origin and function. We shall not undertake to assimilate any of these to the character assumed by the Chronicle last year. Our desire would be to place the Chronicle, in respect of the matter now under consideration, where the Chronicle has evidently placed itself, and we shall try to leave the Chronicle where the Chronicle has left itself — if we can find out where that it.

Hermes was the Greek Mercury, and the ancients all agree that he was what Fielding says Mr. Partridge, the schoolmaster, was —‘ ‘ a jolly brisk young man. ’ ’ Aphrodite, as is well known, was the Grecian Venus, and what her qualities were is matter of tolerably common knowledge among men today. Out of the two ñames the wealthy English tongue has coined another — “Hermaphrodite, ’ ’ — a name which, outside of politics survives chiefly and usefully in the rig of a craft known as an hermaphrodite brig. It does not signify a sexless being, but quite the reverse. It is bi-sexed, — so highly endowed is it with powers that make for increase of voters. If we go into the realm of sex-poverty— and certainly in these piping times of eugenic reform and all-around uplift we may do so — we shall find a product, sometimes incarnate in newspapers, which is not favored in the estimation of some men of the party to which the Chronicle upon the record here says it belongs. We may appeal with some degree of confidence to the words of a Eepubliean of pristine days, — before Taft robbed the party of its ancient virtue, — and we shall expect every true and traditionally loyal member of the party, including the Chronicle, to agree and abide. It is the language of a Eepubliean saint now in glory — if there is such a thing. We shall take no liberty with the words used, except such a necessary change of names and dates as shall serve to bring it up to the supreme occasion of 1912. He said:

“Mr. President, the neuter gender is not popular, either in nature or society. ‘Male and female created He them.’ But there is a third sex, if sex that can be called which sex has none; resulting sometimes from a cruel caprice of nature, at others from accident or malevolent design, possessing the vices of both and the virtues of neither; effeminate without being masculine or feminine; unable either to beget or to bear; possessing neither fecundity nor virility; endowed with the contempt of men and the derision of women, and doomed to sterility, isolation and extinction. But they have two recognized functions. They sing falsetto, and they are usually selected as the guardians of the seraglios of oriental despots. Geology, teaches us that in the process of being, upward from th'e protoplasmic cell, through one form of existence to another, there are intermediary and connecting-stages, in which the creature bears some resemblance to the state from which it has emerged and some to the state to which he is proceeding. History is stratified politics; every stratum is fossiliferous; and I .am inclined to think that the political geologist of the future in his antiquarian researches between the triassie series of 1908 and the cretaceous series of 1912, as he inspects the jurassic Bull-Moose strata intervening, will find some curious illustrations of the doctrine of political evolution.
‘ In the transition from the fish to the bird there is an anomalous animal, long since extinct, named by the geologist the pterodactyl, or winged reptile, a lizard with feathers upon its paws and plumes upon its tail. A political system which illustrates in its practical operations the choice by the same leader, as twin door-keepers of his party’s conscience, of Walter Brown and Jim G-arfield, can properly be regarded as in the transition epoch and characterized as the pterodactyl of politics. It is, like that animal, equally adapted to waddling and dabbling in the slime and mud of partisan politics, and soaring aloft with discordant cries into the glittering and opaseseent empyrean of reform.”

If, on the other- hand, we resort to Democratic authority for Wilson, it must be remembered, was commended by the Chronicle, and it was urged at the bar in this case as an evidence of impartial political sexlessness last year, we shall run upon what on another occasion a western Milton — “inglorous,” to be sure, but alas! by no means “mute” — let loose with, as follows:

“A Democrat fool who serves as a tool
The men of his party to beat,
Deserves to be thrashed and have his head mashed,
And kicked out into the street.
’Tis better to vote for some billy goat,
That butts for his corn and his hay,
Than to vote for a man that has not. the sand
To stand by his party a day.”

The unhappy condition of the political enuch in this country was more tersely but quite accurately likened by Randolph to that of the mule — “having neither pride of ancestry nor hope of posterity.”

Not the least satisfactory evidence that the politically sexless status of the Chronicle must have existed in the heroic age of reform in 1912, and that it and the Telegram, its now enemy, according to the attempted contract of the Elyria council, were not of “opposite” but of the same, or substantially the same, politics, last year, we find in the attitude of the Telegram at the trial before us. The Telegram knew, it was more than once informed from the bench, that its own political standing was not in dispute and that the court was with it in its contention that its contract with the council was not obnoxious to just legal criticism. Nevertheless, the Telegram attempted to say a word— yes, several words — to help out its co-defendant, the Chronicle, in its assertion of a right to participate in the .publishing contract to the exclusion of a real, and not simulated opposition newspaper. "When John Alden, as proxy for Miles Standish, went to court Priscilla, the girl asked him why he didn’t say something for himself. This concatenation of good offices between two supposedly virulent foes, suggested an excellent mutual understanding as to the hoped-for distributees of the loaves and fishes embodied in the printing contracts. Plainly, the two are not political enemies, but in the substantial matters of practical partisanship are friends, just as in the like matters they were not enemies but friends in 1912, — working to the same ends, through a real community of political interests.

By its own confession in this case, the motives which impelled and shaped the political action and omissions of the Chronicle in the campaign of 1912, were in part a vindictive hatred of the head of the ticket to which it now claims it owed fidelity and entire service, and in part the pay it got for its support of state and local candidates. Neither one, nor both together, rose to the dignity of politics in the sense that the statute uses the word. Arid so far were either or both sets of motives from being ‘‘opposite politics, ’ ’ as we have seen already, they were in substance and iu fact of the same politics with the only paper to which the council of Elyria has thought fit to let its printing contract, — if indeed it can be said to have had any politics at all — Which we as matter of fact find was not the case.

The Chronicle, by its conduct in the campaign of 1912, voluntarily emasculated itself, politically. It, deliberately and of its free-will, unsexed itself, politically. It became, of its own accord, not of doubtful gender, but of no gender, politically. It is, we are certain, more charitable as well as more accurate, to take this view of the matter than to fly in the face of the notorious facts and the history of the Chronicle, and say that it was in 1912, a Republican newspaper, in full faith and fellowship with the Republican party, its organization, its discipline, its platform and its admitted leaders. And we regard this conclusion as more honorable also to the Chronicle, in spite of its desire to hold on to its contract, at a very large expense, we think, to its reputation for consistency and for truth. We can not consent to the view that because matter printed in a newspaper is boilerplate matter, the publisher is relieved from the responsibility of giving it out to his readers as the opinion of his paper, or that commendatory mention of candidates shall not because paid for be exempt from a like responsibility; to take pay and then dodge the consequences only adds meanness to venality.

We find and hold that the Telegram, was last year an opposition paper to another paper which is not a party to this action and whose status and fortunes are therefore of no concern to the court. But it was not in opposition to a paper battling manfully on its own side. To be “opposite” implies something to be opposite to. There was nothing in the political conduct of the Chronicle to which the Telegram could possibly be opposite,— unless, perhaps, it was to the confessedly merchandising support the former gave to local, and even non-partisan judicial, candidates, and on this point the record is silent.

One of two things, under the admitted facts of this case, must be true: In the campaign of 1912 the Chronicle either had no “polities,” in the sense contemplated by the law we are to enforce here, or its “politics” at that time was of the Roosevelt or Reform brand. In the latter case its polities was “friendly politics.” In neither case was it of “opposite politics” to the Tele.gram. “Politics” which in controlling matters is placed at the service of the other side and as to the rest is for sale to candidates for judges and understrappers, with a few crumbs donated to wealthy townsmen and neighbors, — such “politics,” we say, is no “polities”; much less it is “opposite politics.”

We leave the Chronicle in this respect where it has left itself, without any political status to support the contract which the council of Elyria undertook to make with the defendant, its publisher. It has disabled itself from making that contract and will not be allowed to have the benefit of a service which it can not render — that of a newspaper “of opposite polities” to another newspaper which had “politics.” . .

We shall not accede to the alternative request of the defendant, the Chronicle Printing Company, that in the event of our reaching the conclusion we have reached, then we shall declare both contracts void and thus send the matter back to the council for entire action de novo. There is no reason in law why this should be done. The two contracts do not fall under the same condemnation. There is admittedly no infirmity in the contract made with the defendant, the Republican Printing Company, and it is entitled to the avails of its bargain.

There is another and in our opinion a cogent reason for this determination. Where a body charged with a plain duty has shown a manifest disposition to ignore its obligation and to defeat the purpose of the law which imposes it, it is right, it is proper, for the courts to be epually astute in beating the game,if they can do so within the rules which control them. We think this can be done in this case by simply declaring void the purported contract between the City of Elyria and the Chronicle Publishing Company, without more. This we shall do. There will then be a valid and subsisting contract between the city and one of the two newspapers “of opposite politics” required by the statute. The city council of Elyria can do the rest., We abstain from further suggestion on the subject.

Thé drift of public opinion in this country now is towards moré non-partisanship in politics. The tendency is wholesome,— unquestionably. At any rate, the new policy has got to have its fling.

'But it will not long remain so if we abandon the discipline and a certain sense of honor hitherto exerted by party organizations, and replace these with a lot of journalistic janizaries; who, confessedly having no principle^ are to charge a high' rate of interest on the vacuum thus capitalized into a mercantile asset. And an abdication of this power to the press, — which should be as Caesar’s wife, — without all the checks and safeguards of a jealous sense of public propriety, would be full of peril. It is a question whether it was not a newspaper office instead of the Temple, out of which the Master with a scourge chased the moneychangers and the merchandisers.

On the other hand, there is a danger that — riding on the crest of the uplift wave — the best-intentioned reforms in the world may suffer from falling into the hands of irresponsible champions in the shape of visionaries and impracticables. ,

Full many a whim of purest ray serene,
The dark, unfathomed brains of uplift bear;
Full many, a wheel was formed to whirr unseen
And waste its fleetness ’neath the Bull Moose hair.

The defendant, the city of Elyria, will be perpetually enjoined from proceeding further under its alleged contract with its có-defendants, the Chronicle Publishing Company. A decree may be drawn accordingly.


source: Caselaw Access Project

author: Powell, J.

license: Public Domain

text:
    RIGHTS UNDER AN EXPIRED GAS FRANCHISE.
    Court of Appeals for Tuscarawas County.
    Village of Newcomerstown v. The Consolidated Gas Company and H. B. Walker & Company.

    Decided, February 6, 1919.

      Gas Company — May Not be Compelled to Continue Service — Under a New Franchise which it has not Accepted — Second Ordinance Does Not Repeal a Former One ~by Implication — Injunction.
    1. A franchise, whereunder a gas company furnished gas to a village and its inhabitants for a specified number of years, becomes at the expiration of the term named an indeterminate franchise, under which the company is not bound to continue to supply gas, but if it elects so to do the rate charged must he the same as during the period in which the franchise was in force.
    2. The adoption by the village of a second or third ordinance, granting a renewal of the first ordinance but on different terms, does not repeal the first ordinance by implication and does not become binding upon the company until accepted by it.
    3. It follows that where the gas company has not accepted the terms provided in the second franchise, it is at liberty to terminate its connection with the village ’at any time it sees fit to remove its property therefrom, and an action does not lie to enjoin the discontinuance or an impairment of the service.

       Affirmed by the Supreme Court, May 13, 1919.

   Powell, J.

This action is in this court by appeal from the judgment of the court of common pleas of this county. The plaintiff is the village of Newcomerstown, Ohio, a municipal corporation, and the defendant, The Consolidated Gas Company, is a corporation which has been and now is furnishing gas to consumers in that village. It is alleged that the defendant, Walker & Company, have some interest in the property of the other defendant, the gas company.

Plaintiff seeks by this action to enjoin the defendant gas company from discontinuing or in any way impairing its service of gas to' the said village and the inhabitants thereof. The gas company claims the right to discontinue its service to said village and to withdraw and remove its property therefrom. The legal rights of the parties, so far as this case is concerned, and their relations to each other are fixed and determined by four separate ordinances passed by the council of said village. The first of said ordinances was passed August 15, 1904, and granted to The Consolidated Gas Company the right or franchise to use the streets of said village in the operation of its gas plant. No question is made as to the legal effect of its terms or as to the service rendered by the defendant gas company under its provisions and terms. This ordinance was accepted in writing by the plaintiff. It is admitted that under the provisions of this ordinance the defendant gas company installed its plant in the village and performed the service re-' quired of it by said ordinance until the termination of the time fixed by it for service, at the specified rate provided by such ordinance, namely, ten years. It is claimed on the part of the gas company that it continues in the streets of said village, and renders the service that it has rendered to the present time, under the provisions of this ordinance.

The second ordinance was passed by the council of said village in April, 190|5, and provided a modification for some of the provisions in the first ordinance mentioned. It also extended the term for which service might be rendered under the rate fixed to ten years after the passage of said second ordinance. This was also accepted in writing by said plaintiff. No question is made that the gas company performed the conditions and carried out the terms imposed by said second ordinance in said village. The ten year period, for which rates were fixed, expired in April, 1915, and the defendant gas company continued in the operation of its gas plant in furnishing gas to said village and other consumers, under said ordinance, until a new ordinance was passed in October, 1915. This ordinance was passed by the council of said village on the 4th of October, 1915, but the same was never accepted in writing by the defendant gas company; and it is contended on the part of the jplaintiff that, by the conduct of the gas company relative to said ordinance, an implied contract arises thereunder in favor of the village, by which the gas company was bound to continue to furnish gas to said village and residents thereof on the terms proposed in said third ordinance, while it is contended on the part of the defendant gas company that said ordinance is without any legal effect; that its terms and provisions were never accepted by it, and no contract arose by reason thereof between it and the said village.

The fourth ordinance mentioned was passed by the council of the village of Newcomerstown in August, 1918. There is no contention but that the gas company entered the village of Newcomerstown under the terms and provisions of the ordinance of August, 1904, and continued under the second ordinance passed in April, 1905, as modified, until the end of the ten year period, for which rates had been fixed. It is contended on the part of the gas company that its tenure continued under said ordinances after the ten year period for which rates were fixed, had expired, and that it had never consented or agreed to the terms and conditions of any other ordinance passed by the council of said village and that, so far as its legal rights in said village were concerned, it is governed by the provisions of said two ordinances only.

The court is of opinion that this contention is well taken; that the franchise granted by the first ordinance mentioned is not limited as to time but is indeterminate in duration and con-, stitutes an express contract when accepted, for ten years, the rate or price of gas having been fixed and agreed to for that period; that the ordinance passed in October, 1915, was only in the nature’ of a proposal to a contract yet to be made, which would necessarily have to be accepted by the party to whom the proposal was made, in order to constitute a valid and binding contract. This acceptance never took place either actually or by implication. The record discloses that the officers of the gas company appeared before the council in session and notified them that the terms and conditions of such ordinance would not be accepted by said company, and it is admitted that they were never accepted in writing by the gas company. Said village, 'however, contends that the ordinances of 1904 and 1905, were repealed by implication, by the ordinance of October, 1915. It is a universal rule that repeals by implication are not favored, and only occur in case of' direct conflict, or repugnancy, existing between two ordinances or statutes, in which case the first ordinance is repealed to the extent of such conflict or repugnancy. No such conflict or repugnancy is found in the ordinance mentioned.

The gas company, however, filed a schedule of rates, as required by the Public Utilities act, with the Public Utilities Commission, and service was continued by it at the new rate without reference to any of the terms, conditions or provisions of said ordinance of October, 1915, and the company continued to operate under this arrangement until the fourth ordinance 'was p.assed in August, 1918. This ordinance' was not intended to establish a contract between the village and the gas company, but simply provided a regulation on the part of the village by which any person might supply gas to said village or to the inhabitants or other consumers thereof, at the rate of 47c per thousand cubic feet, which was largely in excess of any rate that had before that time been in use in said village. After this ordinance was passed, the gas company again filed a schedule of rates, fixing the same rate that the ordinance had fixed, at which it would supply gas to said village and such others as might desire its use.

It is contended on the part of the village that the ordinance of October, 1915, repealed the ordinances of 1904 and 1905, and that by reason of the continuance of the gas company in supplying gas to said village, it in effect or by implication adopted the ordinance of 1915, and that it thereby became and is now the basis of the legal rights of the parties to this action.

The majority of the court is of opinion that the village could not enter into a contract by implication under the circumstances shown by this record; that the gas company’s entry into said village was under the ordinances of 1904 and 1905; that no direct repeal of said ordinances has ever been made; that the franchise granted by said ordinances of 1904 and 1905, became, after the expiration of the ten year period, a contráct at will, that might be terminated by either party to the contract at any time that such party saw fit to withdraw therefrom; and that such rights as the gas company has in the streets of said village and under said contract are referable solely to the ordinances of 1904 and 1905.

It is further contended on the part of plaintiff that the action of the gas company in filing its schedule of rates after the passage of the last two ordinances named, constituted an acceptance of the terms of said ordinances on the part of said gas company, under the provisions of Section 614-44, which provides that the filing of a complaint by a public utility under the provisions of said Section 614-44 would constitute in effect an acceptance of the terms of said ordinances; that by reason of having filed a schedule of rates after the passage of the third and fourth ordinances mentioned, it would be bound by their terms for the period, at least, provided by said ordinances.

The court is of opinion that the filing of the schedule of rates under said two ordinances was not in the nature of a complaint, as contemplated by said Section 614-44, but was rather the filing of a rate as provided by other sections of said Public Utilities act, and that it did not, in the circumstances, constitute an acceptance of the terms and conditions of said ordinances of October, 1915, and August, 1918; but that the gas company, from the time it entered said village until the commencement of this action, was there solely under the terms and conditions of the ordinances of 1904 and 1905; and that, as held in the 81 O. S., 33, it became and was an indeterminate franchise after April, 1915, when the ten year period, during which rates were fixed by said two ordinances, was terminated.

We are of opinion that on the record shown in this case the defendant gas company has the right to terminate its connection with said village and remove its property therefrom at any time it may see fit to do so; that it is bound, however, while it remains in said village, to supply gas according to the terms of the original contract or by the terms and conditions of the ordinances of 1904 and 1905.

It follows from this finding that the plaintiff is without legal standing in this court and is not entitled to the relief prayed for in its petition.

It further follows that the petition should be dismissed at the costs of the said plaintiff and such order may be entered.

Houck, J., concurs; Shields, J., dissents.


author: Jones, P. J.

text:
    DUTIES OF A DISTRICT ASSESSOR.
    Court of Appeals for Hamilton County.
    Crane, Exr., v. McCarthy et al.
    Decided, February 26, 1917.

      Taxation — Duties of District Assessors — Authority to Correet Eroneous Tax Return — Appeal from Valuations as Made by District Assessor —Construction of Warnes Law.

    1. Under the act known as the Warnes law (103 O. L., 786) it is the duty of the district assessor to list and value for taxation all personal property subject to taxation in the county constituting his assessment district, and if he finds any statement or return to be erroneous either in the amount of property listed or in the valuation of any item or items to correct such statement or return.
    2. Under the Warnes law no particular method is pointed out as to how the district assessor arrives at the amount of the property or its value, and no provision is made as to taking evidence by the district assessor in regard thereto, or as to making any record of such evidence. He acts as an assessing officer, and if he assesses property that is not owned by the person against whom it is listed, or if the valuation made by the assessor is in excess of its true value, relief is provided by an appeal to the board of complaints, and from that board to the state tax commission, and an appeal can ultimately be had to the courts.

      Wm. F. Fox, for plaintiff.
    J. V. Campbell, prosecuting attorney, contra.
   Jones, P. J.

Plaintiff as the executor of the estate of William J. Grew seeks to enjoin the collection of taxes on the personal property of said estate as listed on the 1914 tax duplicate of Hamilton county by the district assessors. It is admitted that Mr. Grew, who died August 30, T914, was a resident of Cincinnati, and had made no return of his personal property for taxation for the year 1914, although he had at the time of his death personal property as detailed in an inventory filed by his executor in the probate court, a copy of which was certified to the district assessors.

After notice to the executor, and conferences with his attorney, the district assessors on January 22, 1915, placed upon the tax list for the year 1914, in the name of said executor, as the value of the personal property of said estate subject to taxation, the amount of $44,250.

Plaintiff claims this action was illegal and void on two grounds:

1. Because the district assessors acted without any evidence.

2. That they failed to comply with Section 5401, General Code, and file a statement of the facts or evidence upon which such correction was made.

The petition contains an allegation that said W. J. Grew had no such an amount of personal property subject to taxation on February 1, 1914. The proofs show that 150 shares of United States Steel common stock was acquired by Mr. Grew February 14, 1914, and therefore was not owned by him on tax-listing day; but no evidence was produced to show that he was not the owner of any other part of his said personalty covered by the inventory. It did appear, however, that he was not in active business, having been retired about three years, and spending his time in travel and in efforts to improve his failing health. One of the district assessors of taxes testified that he was personally acquainted with Mr. Grew and knew him as a man of reputed means; but that he was largely guided by the list of property shown in the inventory in the action of the assessors in making this correction in the tax list.

Under Sections 4 and 9 of the act known as the Warnes law, 103 O. L., 787, 789 (Sections 5582 and 5587, General Code), it is the duty of the district assessor to list and value for taxation all personal property subject to taxation in the county constituting his assessment district, and if he finds any statement or return to be erroneous either in the amount of property listed or in the valuation of any item or items to correct such statement or return.

Under this law it was undoubtedly the duty of the district assessors of Hamilton county to list the property of the estate of William J. Grew for taxation. No particular method is pointed out in the statute as to how the district assessor arrives at the amount of the property or its value, and no provision is made as to taking evidence by the district assessor in regard thereto, or as to making any record of such evidence. He acts as an assessing officer, and if he assesses property that is not owned by the person against whom it is listed, or if the valuation made by the assessor is in excess of its true value, relief is provided by an appeal to the board of complaints, and from that board to the state tax commission, and an appeal can ultimately be had to the courts, under Section 12075, General Code. No appeal to the board of complaints was made or attempted in this case, for the reason, as stated, that it was not in session at ór after the time of the correction complained of.

Counsel for plaintiff assumes that the action of the district assessors was taken under authority of Section 5 of the Warnes Law (Section 5583, General Code), such district assessors acting as the county auditor acted under the terms of Section 5401, General Code, which requires the filing of a statement of facts and evidence on which the correction is made. It is a serious question whether, notwithstanding the terms of the law, an appointed officer such as a district assessor could assume and take over the duties of an elected county official such as the county auditor. If, however, it - is conceded that the district assessors could act as the county auditor did, they would act under the terms of Section 5399 rather than 5401, as the first-named section applies strictly to omitted property, while the latter applies to corrections where a return has actually been made. In this case no return was made.

The case relied upon by plaintiff Fratz v. Mueller, 35 Ohio St., 397, and Ratterman, Treas., v. Niehaus & Klinkham, 4 C. C., 502, do not therefore apply. Both of these cases relate to the action of a board of equalization whose functions were somewhat the same as those provided for a board of complaints in the act under consideration.

Evidence was also introduced in this ease showing that the same property had been listed for taxation by the county auditor for the years 1911, 1912 and 1913, and that taxes upon it had been paid for those years. These facts taken in connection with the fact that there is no evidence to show that the district assessors acted without authority in making this charge upon the tax list, except so far as the U. S. Steel stock was concerned, require the court to find against the plaintiff as to the other property.

A decree may be taken enjoining the collection of so much of the tax as relates to the United States Steel stock, which will require a reduction of $7,500 from the total valuation listed and the corresponding reduction in the tax charge, and refusing further relief.

Judgment accordingly.

Gorman and Hamilton, JJ., concur.


author: Houck, J.

text:
    CONCLUSIVENESS OF A FORMER JUDGMENT.
    Court of Appeals for Licking County.
    Eli Hull v. Henry O. Norris, as Executor of the Last Will and Testament of Jerome Buckingham, Deceased, et al.

    Decided, April 1, 1918.

      Application of Doctrine of Res Adjudicata — Statute of Limitations Having Been Held to Have Run the Litigation Gan Hot be Renewed on the Same Ancient Paper on the New Claim of a Continuing and Subsisting Trust.

    When a matter has been finally determined by a competent tribunal in an action on the same claim and between the same parties, the judgment becomes conclusive and is a bar to the litigation of new questions which might have been presented in the first instance.

      McDonald Slabaugh, Kibler & Kibler, attorneys for plaintiff.

      Jones & Jones, Carl Norpell and A. T. Seymour, contra.

      Motion to certify the record in this case overruled by the Supreme Court, October 8, 1918.

   Houck, J.

This case is in this court on appeal from the common pleas court of Licking county, Ohio.

The pleadings are quite lengthy, and present a number of questions of fact and law for determination, but counsel in oral argument agreed that the case be submitted upon two questions only, namely:

First, upon the claim relied upon by plaintiff, that the paper writing in question and the allegations of the petition state a cause of action upon a continuing and subsisting trust:

Second, that the defendants deny the claim of plaintiff, and as affirmative defenses say that the cause of action of plaintiff, if he ever had one, is barred by the statute of limitations; ana they further plead res adjudicada.

We have given the case careful consideration, and have been interested in reading the pleadings, the testimony as contained in the typewritten transcript, and in examining the able briefs submitted by learned counsel.

The questions before us are new and somewhat novel when applied to the writing in question and the peculiar facts involved in this controversy.

The basis of the action is the following paper writing:

“Received of Eli Hull, Esq., on the 7th day of August, A. D. 1873, three thousand dollars, to be returned to him, with interest from that date at the rate of twelve per cent, per annum out of the first receipts from sale of lands bought by us from Messrs. Coe, Pherson and others, in Athens county, Ohio, after we are reimbursed for advances in its payment.
$3000. (signed) Buckingham '& Wright. ’ ’

The following endorsement appears upon the back of said paper writing:

“One thousand dollars of the within three thousand dollars I owe to James L. Birkley for that sum belonging to him.
Sept. 5, 1873. (Signed) Eli Hull.”

The plaintiff here on June 14th, 1904, brought suit in the common pleas court of Licking county against the same parties as in this case, founded upon the same paper writing. The suit finally reached the Supreme Court, where judgment was rendered against said Eli Hull. (See 83 O. S., page 385.) As we construe this paper writing, being the foundation upon which plaintiff seeks to recover, and the allegations of fact as set forth in the petition relative to same, we must and do find that they are not sufficient in fact and law to constitute a cause of action based upon a continuing and subsisting trust. We therefore find that the plaintiff’s claim in this regard is not well taken.

We are next led to inquire as to the force and effect in law of the alleged defenses of the defendants. We are fully convinced that the judgment in the case of Wright et al v. Hull, supra, is decisive of all the issues raised in the present action; In that case, at page 399, Judge Davis, speaking for the court says:

“We therefore are warranted in holding that this paper writing purports to be an agreement to pay within a reasonable time. It has no date, but from what appears on its face and in the indorsement on the back thereof,.its date may be assumed to be some time prior to September 5, 1873; and in the absence of any evidence of rebutting circumstances, we may safely say that ten years, and even less, was a reasonable time within which the obligors should pay this claim of three thousand dollars and interest. Hence, the statute of limitations, as well as the presumption of payment in twenty years, would begin to run ten years from the time of the execution of the instrument. That is to say, that this paper, the foundation of the plaintiff’s action, would be actually barred by the statute of limitations in twenty-five years from its execution, and the presumption of payment at common law and in equity would be complete in thirty yeárs from its execution, unless it be shown by evidence that a reasonable time for payment would be much longer than we have fixed it.”

We hold that the plaintiff has already had his day in court as to all of the issues raised or that might have been raised in the instant case, and if he neglected and failed to present them in his former suit growing out of the same subject matter as in this ease, it is now too late for him to complain. The rule of law in Ohio is well settled that when a matter has been finally determined in an action between the same parties, by a competent tribunal, the judgment is conclusive, not only as to what was determined but also as to further questions which might properly have been litigated in the ease. •

We do not deem it necessary to discuss the facts or law in this ease at further length, and it necessarily follows from what we have already said that we are of the opinion that the plaintiff is not entitled to the relief prayed for in his petition, and judgment is here entered for the defendants, and the plaintiff’s petition is dismissed, at his costs.

Powell, J., and Shields, J., concur.


author: Gorman, J.

text:
    SEPARATION OF HUSBAND AND WIFE WHICH DOES NOT CONSTITUTE WILFUL ABSENCE.
    Court of Appeals for Hamilton County.
    Condon v. Condon.
    Decided, May 7, 1917.

      Divorce and Alimony — Speparation Which is Justified Does Not Constitute Ground for Divorce — Dismissal of Suit Without Full Hearing Subject to Review.

    1. A judgment of dismissal of an action for divorce without a full hearing is subject to review.
    2. No divorce can be had for wilful absence or separation where the separation on the part of the accused person is justified, and a wife is justified in living apart from her husband, where she has established a right to do so by obtaining a decree for separate support and maintenance.
    3. As long as a wife is living apart from her husband and receiving alimony from him as awarded by a decree of court of competent jurisdiction, finding the husband guilty of wilful abandonment and desertion which decree is unreversed and unmodified, the wife can not be said to be wilfully absent from her husband as she is acting in accordance with her rights under the decree.
    Heard on error.

      Hulswitt & Lillie for plaintiff in error.

      Dempsey & Nieberding, eontra.
   Gorman, J.

In the court of common pleas, division of domestic relations, the plaintiff, Maurice M. Condon,' brought an action against the defendant, Margaret M. Condon,' for divorce, alleging as a ground therefor that the defendant had been guilty of wilful absence for more than three years; that she had been guilty of gross neglect of duty in that she failed to perform the duties of a wife in preparing his meals and keeping his residence in a cleanly and habitable condition; and that she constantly nagged and found fault with him, and obstructed and hindered him in his business.

To. this petition the defendant filed an answer admitting the marriage, that plaintiff is a bona fide resident of Hamilton county, Ohio, and that there were no children born of the marriage. But she denied that she was guilty of gross neglect of duty towards the plaintiff, and denied that she had been wilfully absent as alleged in the petition. For a second defense against the charge of gross neglect of duty set out in the petition the defendant averred that in a certain action for alimony brought by her in the insolvency court of Hamilton county, Ohio, numbered 3075 on the docket, the plaintiff filed his cross-petition against her charging her with the same gross neglect of duty that he charges in the petition in this case, and praying to be divorced from defendant on account thereof. She ■further set out that she filed her answer to said cross-petition in said case in the insolvency- court, denying said charge of gross neglect, and praying on her own behalf that the cross-petition be dismissed; that upon the issues so made by said cross-petition and answer a hearing was had. in said insolvency court, and upon said hearing upon the 13th day of April, 1911, the said insolvency court did enter its final judgment and decree in said cause, finding among other things, upon the issues joined upon said charge of gross neglect of duty, in favor of this defendant, and that she was not guilty thereof as charged by plaintiff, and ordering and adjudging that said-cross-petition for divorce in said cause in said insolvency court be dismissed. The defendant further averred that said case No. 3075 in said court is res ad judicata as to the charges of gross neglect of duty made by plaintiff in this case, and that said plaintiff is estopped and barred by said final judgment and decree from relitigating said charges in this case. For a third defense to the charge of wilful absence the defendant set out that the plaintiff wilfully abandoned and deserted her and left her penniless and in great financial straits on the 9th day of August, 1910; and further averred that the insolvency, court of Hamilton county in its final judgment and decree, referred to in the second defense herein, found as a fact that plaintiff did on August 9, 1910, wilfully abandon and desert defendant, and as a consequence thereof did order, adjudge and decree that plaintiff should pay this defendant, as and for alimony, during the continuance of the judgment and decree, the sum of fifteen dollars per week on Monday of each and every week; that since the rendition of said judgment, and, as defendant believes, for the purpose of evading payment of the same, the plaintiff has twice through intermediaries and not in his own proper person requested the defendant to return to him and to resume marital life with him; and that the defendant declined and refused, and still declines and refuses, for the reasons, first, that the plaintiff is now and has been for a long time prior to the date of the separation a continual and habitual drunkard; second, that the plaintiff is now and was at the time of their said separation and has ever since been consorting with another woman to the great scandal and disrespect of this defendant. And for a fourth defense, the defendant alleged that the plaintiff did not bring this action in good faith, but for the purpose of getting rid of the judgment of alimony awarded against him by said insolvency court; that the judgment of the insolvency court awarding her fifteen dollars was made a lien upon the real estate of plaintiff, which is set out and described by him in the petition, and that after said judgment was rendered the plaintiff herein appealed to the Circuit Court of Hamilton County from the judgment entered by the insolvency court in her favor for alimony of fifteen dollars per week, and on appeal in said court, cause No. 5387, on Ñovember 26, 1913, said Circuit Court of Hamilton County entered as its judgment and decree the same judgment and decree entered by the insolvency court and also made an allowance of fifteen dollars per week alimony a lien and charge upon plaintiff’s real estate. The defendant further set out in her answer that the said judgments and decrees of the Insolvency Court of Hamilton County and the Circuit Court of Hamilton County are in full force and effect, unreversed and unmodified. Defendant therefore prays that plaintiff’s petition for divorce be dismissed and that she may be protected in all her rights.

To this answer the plaintiff filed a reply in which he denies that he is estopped or barred from setting up in the petition the allegation of gross neglect of duty, and he denies that he does not bring this action in good faith, and he denies that there was any mercenary motive in his attempts to effect a reconciliation, denies that he is a continual and habitual drunkard, denies that he has been consorting with another woman, denies that he has threatened defendant with personal violence and that she is in mortal fear of him, asserting that the claim that she is in mortal fear of him is a fabrication stated only for the purpose of eliciting sympathy. He denies that he at any time refused to provide suitable apartments for himself and defendant, such as those that ought to be provided by a man of his means.

It will be noticed that the reply fails to deny the decrees entered in the insolvency and the circuit courts of Hamilton county, and fails to deny that the decrees were found against him upon the issue of gross neglect of duty and abandonment.

Upon the trial of this ease in the common pleas court before his honor Charles W. Hoffman, judge of the division of domestie relations, the defendant offered in evidence the pleadings in the former alimony and divorce case in the Insolvency Court of Hamilton County, and also the decree entered by that court in said cause, and the decree entered by the Circuit Court of Hamilton County when said cause was appealed to that court. The court of common pleas refused to- hear any further testimony with regard to the charge of gross neglect of duty or wilful absence, as set up in the petition, and claimed to have occurred' since the entry of said judgments of the Insolvency Court and the Circuit Court of Hamilton County. The court further adjudged and decreed that the petition of plaintiff herein be dismissed and that the defendant Margaret M. Condon recover from the plaintiff her costs and counsel fees. To all of the foregoing rulings of the court, the judgment, and order and decree, the plaintiff Maurice M. Condon excepted, and is in this court asking for a reversal of the judgment dismissing his petition.

At the outset of the ease it is claimed that there is no bill of exceptions filed in this case. It appears from the record that the judgment entry was made by the court of domestic relations on August 11, 1916, and a bill of exceptions was duly filed in the court of common pleas on September 20, 1916, and transmitted by the clerk of that court to Judge Hoffman on October 2, 1916. Judge Hoffman, on the same day, October 2, 1916, returned the bill to the clerk of the court of common pleas with his acknowledgment of the receipt thereof and his signature.

The petition in error together with a transcript of the docket and journal entries of the court of common pleas and the original pleadings were filed in this court on October 16, 1916, but no bill of exceptions appears to have been filed on that date. A bill of exceptions duly signed by Judge Hoffman, and purporting to contain all the evidence offered below, was filed in this court on November 24, 1916, one hundred and five days after the judgment was rendered in the common pleas court. The petition in error in this court was filed October 16, 1916, within the seventy-day period fixed by the statute for the filing of a petition in error, bnt the requirements of the statute that the bill of exceptions shall be filed with the petition in error within the statutory time of seventy days was not complied with. As an excuse for this, counsel for plaintiff in error claims that he left the bill of exceptions with the.clerk of the court and that by inadvertence or oversight the clerk of the court neglected to file it in the court of appeals on October 16, 1916, when the transcript, the petition in error and the original papers were filed. The bill of exceptions was found in the safe of the clerk on or about November 2i, 1916, the date of the filing in this court. The deputy clerk who attends to the filing of papers in the court of appeals had no independent recollection of a bill of exceptions being presented to him, •but counsel for plaintiff in error claims that he did present it to this clerk for filing. Under these circumstances we are not prepared to say that counsel for plaintiff in error did not perform his full duty in presenting the bill of exceptions to be filed, with the proper deputy clerk, and the failure of the clerk to file the bill of exceptions could not be charged to plaintiff in error or his counsel. We are disposed to give the plaintiff in error the benefit of the doubt and hold that under the circumstances the bill of exceptions should be considered by this court.

But, considering the bill of exceptions and all the evidence adduced, together with the rulings of the court in failing to hear other evidence, we are of the opinion that the court of common pleas did not err in dismissing the petition of plaintiff.

Ordinarily a judgment of the court of common pleas in a divorce matter is not reviewable by this court, on the grounds of public policy. It may be claimed under Section 12002, General Code, that where the court of common pleas dismisses the petition without a final hearing, error may be prosecuted to this court. That section provides:

“No appeal shall be allowed from a judgment or order of the common pleas court under this chapter (the chapter relating to divorce and alimony) except from an order dismissing the petition without final hearing, or from a final order or judgment granting or refusing alimony.”

This is not an appeal proceeding, and, furthermore, under the new constitution, as adopted in 1912, there is no longer any appeal from a judgment of divorce or alimony to the court of appeals. But, in view of the fact that this section remains unrepealed, we think, as has been said by this court in the Schmid case decided today, by analogy it appears to be the policy of the legislature to allow a review of a divorce case when there is a judgment of dismissal without a hearing. It appears to us that this judgment of dismissal of the action without a full hearing is subject to review. But so long as the decree of alimony in the former case, in favor of the defendant in error against the plaintiff in error, which was entered by the Circuit Court of Hamilton County in 1913, remains in full force, unreversed and unmodified, the plaintiff in error in this case is bound by all the findings set out in that decree touching the matter of gross neglect of duty and abandonment. In the decree the circuit court did find that the plaintiff in error had abandoned the defendant in error and that she was not guilty of any neglect of duty toward plaintiff in error, and awarded her alimony of fifteen dollars per week. The plaintiff in error in the petition below set out no new cause of action, and as long as defendant in error in this case is living apart from plaintiff in error and receiving alimony from him as awarded by the circuit court of Hamilton county in the former casé, she can not be said to be wilfully absent from the plaintiff, as she is acting in accordance with her rights under the decree of the circuit court.

These questions in fact, having been determined against the plaintiff in error, can not be reopened and relitigated in a subsequent action between the same parties. We think this doctrine is fully supported by the following authorities: Miller v. Miller, 150 Mass., 111; Harrington v. Harrington, 189 Mass., 281; Weld v. Weld, 27 Minn., 330, and I Nelson on Divorce and Separation, Section 92.

The author of the last-named authority says in the section cited that no divorce can be had for wilful absence or separation where the separation on the part of the accused persons is justified, and that a wife is justified in living apart from her husband where she has established a right to do so by obtaining a decree for separate support and 'maintenance.

If the plaintiff in error in this case has any new grounds for divorce against his wife, which have arisen since the rendition of the judgment in the circuit court, or if the decree of the circuit court of Hamilton county had been set aside or modified, he would have a right to maintain an action for divorce against the defendant in error. But so long as the status of the parties remains as it has been fixed by the decree entered by the circuit court of Hamilton county, and so long as that judgment continues unreversed and unmodified, we hold the plaintiff in error can not maintain an action for divorce on the ground of wilful absence against the defendant in error.

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

Judgment affirmed.

Jones, P. J., and Hamilton, J., concur.


text:
    THE OLD SUB-DISTRICT SCHOOL NO LONGER EXISTENT.
    Court of Appeals for Tuscarawas County.
    Joseph Patton et al, Members of the Board of Education of Dover Township et al, v. State of Ohio ex rel Frederick E. Hershey et al.
    Decided, June 11, 1919.

      Schools — Sub-districts no Longer Recognized by the Ohio Code — Transportation of Pupils in a Suspended District.

    1. Under the present school code of Ohio there is no provision for what were known in the past as sub-districts, and the sub-district school is, therefore, now without authority or legal existence.
    2. Provisions must be made for the transportation of all pupils of legal school age who reside in the territory of a suspended school and live more than two miles by the nearest traveled highway from the nearest school or the school to which they have been assigned.

      E. E. Lindsay, Prosecuting Attorney, and Ed. C.- Seikel, for the plaintiffs.

      G. L. Gronebaugh, contra.
   Houck, J.

The defendants in error were the relators in the court below. Two questions are presented by the record in this case—

. First: Does the present school code of Ohio authorize or does what was formerly known as the “sub-district school” have any legal existence? We answer this in the negative. Section 4579, General Code, reads:

“The school districts of the state shall be styled, respectively, city school districts, village school districts, rural school districts and county school districts.”

It was undoubtedly the purpose of the General Assembly of Ohio, by the adoption of this section, to clearly and definitely designate the names of the school districts -that could have a legal existence; and the language it used is clear and certain of meaning and no doubt, it seems to us, can possibly exist that the four school districts named in the above section are the only ones that are authorized by law. Sub-districts not being provided for, in said enactment, do not now exist in fact nor in law.

Some of us may and many of us do cherish the sweet memories of the old “sub-district schools,” but now they are only with us as we look backward, having been consigned by the law makers of our state into the archives of the past.

Second: When the board of education of a rural school district suspends a school therein, what children of school age residing in the territory of the suspended district shall be transported to another school?

This question must be answered from a correct and proper interpretation placed upon Sections 7730 and 7731, General Code of Ohio. And in doing so we hold that these two sections must be read, interpreted and construed together.

Section 7730, G. C.:

“* * * Upon such suspension the board * * * in such rural school districts shall provide for the conveyance of all pupils of legal school age, who reside in the territory of the suspended district, to a public school in the rural * * * district.”

Section 7731, G. C.:

"In all rural and village school districts where pupils live more than two miles from the nearest school the board of education shall provide transportation for such pupils to and from such school. The transportation for pupils living less than two miles from the school house by the nearest practicable route for travel accessible to such pupils shall be optional with the board of education.”

We hold that all pupils of legal school age, who reside in the territory of the suspended school, and who live more than two miles from the nearest school must and shall be transported to such nearest school or the school to which they have been assigned, if the same be more than two miles from where such pupil or pupils live in said rural school district. The said distance to be measured from the school house to where such pupils live over the nearest traveled public highway.

It thus follows from what we have already said that the injunction allowed by the common pleas court must be dissolved; that said judgment below should be further modified as indi.cated by the findings herein, and that the judgment of the common pleas court be and the same is affirmed as modified herein.

Judgment modified and affirmed as modified.

Shields, J., and Patterson, J., concur.


author: Liegheey, J.

text:
    POWERS OF COUNTY BOARDS OF EDUCATION.
    Court of Appeals for Cuyahoga County.
    Mathews, etc., v. Board of Education of Cuyahoga County et al.
    Decided, November, 1917.

      Schools — Statutory Limitations on the Power of County Boards of Education — Authority to Transfer Property Limited to Such as is Inhabited.

    1. A county board of education is a creature of statute, and the exercise of the powers granted to it is limited to those expressly given and those contained 'by reasonable intendment in the act creating it.
    2. A county board of education is not authorized to transfer vacant property, its power in that respect being limited to inhabited property.

      William O. Mathews and Ben B. Wickham, for plaintiff.

      Samuel Doerfler, Prosecuting Attorney and Locher, Oreen & Woods, contra.
   Liegheey, J.

Appeal from the Court of Appeals for Cuyahoga County.

The parties stood in the same order below.

At one time the territory now included within the village of Bay and within the village of Dover constituted one unit of territory. Thereafter the village of Bay withdrew under proper proceedings, and within its limits was included all of the territory north of the southerly line of the right of way of The New York, Chicago & St Louis Railroad Company, which was the northerly part of what was formerly Dover. The Bay village school district lines were coterminus with the boundaries of Bay village. Assuming to act under authority of Section 4692, General Code, the board of education of Dover district, on November 11, 1916, petitioned the county board of education of Cuyahoga county to detach said railway right of way from Bay district and attach the same to Dover district. This petition came np for hearing before the county board on December 9, 1916, and action thereon was favorable. Three notices of the proposed transfer were posted in the territory proposed to be transferred, notice thereof published in the Cleveland Leader, and a map showing the boundaries of the transferred territory duly filed with the auditor. Within thirty days after the adoption of the resolution granting the prayer of the petition by the county board, the railroad company and a majority of the qualified electors of Bay district filed a written remonstance to the transfer with the county board.

The plaintiff, as a taxpayer, brought suit against the county board of education, county auditor 'and county treasurer to restrain the consummation of said transfer, grounding his claim for relief upon illegality of the proceedings, financial injury, and loss to plaintiff and other taxpayers in the village of Bay, by reason of a reduction in the tax duplicate to the extent of the value of said right of way, amounting to about four hundred thousand dollars ($400,000.00), etc.

The defendants filed an answer, in which is set up the proceedings. of the county board substantially as above recited, and in addition thereto the extreme inequality in the burdens borne by the taxpayers in the two districts by reason of the diff erence in number of schools, pupils and teachers, and the great difference in the taxable value of the property within the territory of each. Defendants admit that the transfer will be consummated unless restrained by the court.

A demurrer was filed by plaintiff to the answer of defendants, which was sustained by the court below, and the defendants stating ,in open court that they did not desire to plead further thé relief prayed for in plaintiff’s petition was granted. From this judgment or decree appeal was perfected.

Defendants rely for authority for the proceedings of the county board to transfer said right of way upon Section 4692, General Code. Plaintiff claims that said section should be read with Section 4736, General Code, and that Section 4692 is limited in the purposes for which the county board may transfer territory to those expressed in Section 4736.

Section 4692 and 4736, as amended in 1915 (106 O. L., 397), read as follows:

Section 4692. The county board of education may transfer a part or all of a school district of the county school district to an adjoining district or districts of the county school district. Such transfer shall not take effect until a map is filed with the auditor of the county in which the transferred territory is situated, showing the boundaries of the territory transferred, and a notice of such proposed transfer has been posted in three conspicuous places in the district or districts proposed to be transferred, or printed in a paper of general circulation in said county, for ten days; nor shall such transfer take effect if a majority of the qualified electors residing in the territory to be transferred, shall, within thirty days after the filing of such map, file with the county board of education a written remonstrance against such proposed transfer. If an entire district be transferred the board of education of such district is thereby abolished or if a member of the board of education lives in a part of a school district transferred the member becomes a non-resident of the school district from which he was transferred and ceases to be a member of such board of education. The legal title of the property of the board of education shall become vested in the board of education of the school district to which such territory is transferred. The county board of education is authorized to make an equitable division of the school funds of the transferred territory either in the treasury or in the course of collection. And also an equitable division of the indebtedness of the transferred territory.”
“Section 4736. The county board of education shall arrange the school districts according to topography and pouplation in order that the schools may be most easily accessible to the pupils, and shall file with the board or boards of education in the territory affected, a written notice of such proposed arrangement; which said arrangement shall be carried into effect as proposed unless, within thirty days after the filing of such notice with the board or boards of education, a majority of the qualified electors of the territory affected by such order of the county board, file a written remonstrance with the county board against the arrangement of school districts so proposed. The county board of education is hereby authorized to create a school district from one or more school districts or parts thereof. The county board of education is authorized to appoint a board of education for such newly created school district and direct an equitable division of the funds or indebtedness belonging to the newly created district. Members of the boards of education of the newly created district shall thereafter be elected at the same time and in the same manner as the boards of education of the village and rural districts. ’ ’

Neither of said sections contains an express grant of power to transfer territory for the purpose of adjusting values. It was conceded by counsel in argument that this was the purpose of this transfer. It is an attempt to transfer vacant property in the sense that the property proposed to be transferred is not inhabited. Plaintiff claims there is no authority for this attempt. An examination of the language of said Sections 4692 and 4736 as enacted in 1914 (104 Q. L., 135 and 138), of which the above are 1915 amendments, may help us. They read as follows:

“Section 4692. Part of any county school district may be transferred to an adjoining county school district or city or village school districts by the mutual consent of the boards of education having control of such districts. To secure such consent, it shall be necessary for each of the boards to pass a resolution indicating the action taken and definitely describing the territory to be transferred. The passage of such a resolution shall require a majority vote of-the full membership of each board by a yea and nay vote, and the vote of each member shall be entered on.the records of such boards. Such transfer shall not take effect until a map, showing the boundaries of the territory transferred, is placed upon the records of such boards and copies of the resolution certified to the president and clerk of each board together with a copy of such map are filed with the auditors of the counties in which shch transferred territory is situated. ’ ’
“Section 4736. The county board of education shall as soon as possible after organizing make a survey of its district. The board shall arrange the schools according to topography and population in order that they may be most easily accessible to pupils. To this end the county board shall have power by resolution at any regular or special meeting to change school district lines and transfer territory from one rural or village school district to another. A map designating such changes shall be entered on the records of the board and a copy of the resolution and map ¡shall b$ filed with the county auditor. In changing boundary lines the board may proceed without regard to township lines and shall provide that adjoining rural districts are as nearly equal as possible in property valuation. In no case shall any rural district be created containing less than fifteen square miles. In changing boundary lines and other work of a like nature the county board shall ask the assistance of the county surveyor and the latter is hereby required to give the services of his office at the formal request of the county board. ’ ’

A comparison of these sections readily reveals material changes in the language employed and the subject-matters covered. A provision in one is omitted, or is transposed to another section with additions and omissions. The following provision contained in Section-4736 of the act of 1914 is entirely omitted in substance and in fact from Section 4736 of the act of 1915, and was not re-enacted in any other section:

“In changing boundary lines the board may proceed without regard to township lines and shall provide that adjoining rural districts are as nearly equal as possible in property valuation.”

It was contended by plaintiff that this provision was originally in the act for the express purpose of giving to county boards the power to make an initial division of districts and adjustments of valuations, but that, when once done, the- Legislature intended to deprive county boards of further authority to manipulate tax duplicates. It is claimed by defendants that, notwithstanding the fact that said provision was omitted in the subsequent amendment, the power to make this transfer is included in the general powers granted in Section 4692.

We think some manifest intent and purpose must be conceded to legislative action.

If, as claimed by plaintiff, the omission by the Legislature of this sentence relating to property valuation was deliberate and intentional, with the object in view of ending the powers of the county board in this respect, then, of course, the relief prayed for by the plaintiff should be granted.

The purposes for which transfers may be made by the county board, under authority of Section 4736, General Code, as now in force, are limited to questions of accessibility of pupils and schools, or vice versa. If, as claimed by plaintiff, the general powers.conferred in Section 4692 are restricted to the purposes expressed in Section 4736, and that a proper construction of the two acts requires that the same be read together, then we necessarily conclude that the relief prayed for by plaintiff should be awarded to him.

But it is claimed by defendants that the general grant of power contained in the first sentence of Section 4692, as now in force, gives to the county board the right to transfer territory for any purpose that in their discretion and judgmeent is for the betterment of the schools and to the best interests of the school system. It is claimed that Section 4692 should be read and construed alone. Suppose we do. The first sentence- grants power generally. Immediately following it the act provides that said transfer shall not become effective unless three things are done; first, a map of the territory proposed to be transferred shall be prepared and filed with the auditor of the county; second, a notice of said proposed- transfer shall be posted in the district to be transferred; third, the same shall not be effective if a majority of the qualified electors residing in the territory tobe transferred shall remonstrate within thirty days after the filing of the map. The transfer shall not be effective unless notice is given and opportunity to remonstrate is afforded. In this case nobody inhabits the right of way. Notice published thereon is notice to no one. Time to remonstrate avails nothing, for no one lives in the territory to file a remonstrance.

It seems to. us very clear not only from the language of this section but also from that of Sections 4696 and 4736 that the Legislature in enacting the amendments in 1915 intended to confine the powers of the county board to dealing with persons and pupils, with the sole object in view of the more efficient administration of the schools, and did not intend that the county board should have supervision over property valuations and tax duplicates, or the right to manipulate and readjust the same.

True it is that the railroad company and the majority of the electors of Bay district filed a remonstrance with the county board within the statutory time, but it will be observed that the controlling right to file a remonstrance is limited to the qualfified electors residing in the territory to be transferred. The electors of Bay do not reside therein, nor is the railroad company an elector. These remonstrances were filed in an apparent effort to comply with Section 4736. These can not hinder the transfer for the evident reason that such are provided for only in case of transfer for the purpose of accessibility of schools. It is admittedly another purpose that pervades this case, authority for which must be found in Section 4692, as likewise the instrument for defeating the same. And this is notice to, and a remonstrance by, the majority of the electors residing in the district to be transferred.

The county board of education is a creature of statute, and the exercise of the powers, granted to it should be limited to those expressly given and those contained in the act by reasonable intendment. The requirements, by the language of Section 4692, to make a transfer effective, seem to us to make' it very certain that the Legislature did not intend that power should reside in the county board to transfer vacant property; nor from the language can it be claimed. It seems clear to us that power is granted only to transfer inhabited property, in which transfer the electors shall have a voice. By the provisions of Section 4696 the electors have a voice by the grant of the right to petition for a transfer. By Section 4736 the electors may file a written remonstrance even in the case where the board makes a transfer for the purpose of accessibility to the schools. "We decide that the county board in this ease is about to transcend its power and will do so unless restrained.

The defendants are perpetually enjoined as prayed for in the petition.

Judgment is rendered against the defendants for costs.

Injunction granted.

Grant and Carpenter, JJ., concur.


text:
    WHAT CONSTITUTES A COMPLETE GIFT.
    Court of Appeals for Coshocton County.
    McCoy, Executor, v. Gosser et al.
    Decided, July 13, 1917.

      Gifts — Requisites to Complete Gift Inter Vivos — Intention of Donor— Delivery — Acceptance by Donee — Burden of Impeaching a Completed Gift.

    1. To constitute a gift inter vivos, the donor must have the intention of making the gift, and must deliver the thing intended to be given to the donee in praesenti, parting with all dominion and control over it. This, to constitute a perfect and complete gift, must be followed by acceptance by the donee of the thing given.
    2. If a completed gift he shown, the burden of impeaching it is on him who asserts that there is no gift.

      C. B. Hunt, for plaintiff.
    W. S. Merrell, George B. Harris and G. A. Neff, for defendant, Fannie N. Burns.

      Kibler -c& Kibler, Frank É. Pomerene and George D. Klein for other defendants.
   Powell, J.

Appeal from the Court of Appeals for Coshocton County.

This action is in this court by appeal, and is submitted on a transcript of the evidence offered in the court of common pleas, supplemented by some additional testimony. It is an action under favor of Section 10857, General Code, brought by C. B. McCoy, as executor of the will of Charles F. Gosser, deceased, asking the direction of the court in the administration of the estate of said decedent. A number of questions are presented by the petition, relative to which plaintiff is in doubt as to his duties. All parties in interest are made parties to the suit, and their respective claims are presented by proper plead'ings for that purpose; and while, several questions are raised by the petition, but one is presented to the court- by briefs and the arguments of counsel. The facts necessary to an understanding of this particular question are as follows:

The decedent, C. F. Gosser, was at the time of his death a director in The Pope-Gosser China Company, a corporation engaged in business in Coshocton, Ohio. Prior to October, 1912, he had become the owner of a majority of its common stock, being 502 shares, represented by some six or seven stock certificates. These certificates had all been endorsed by him in blank, and given to the defendant Fannie N. Burns, in whose possession they were until November, 1912. October 24, 1912, at the request of said C. F. Gosser, three new certificates, aggregating 502 shares, were issued and delivered to him. Sometime in November, 1912, these three certificates, with a letter accompanying the same, were endorsed by him in blank and enclosed in an envelope and sent to said Fannie N. Burns, who then resided in Cleveland, Ohio, with a request that the other certificates, then in her possession, should be returned to him, which request was complied with by Mrs. Burns. The certificates so returned were handed to the secretary of said company, after the name of said decedent, which had been endorsed thereon in pencil, had been erased. The three certificates so sent to Fannie N. Burns were also endorsed by said decedent, in blank, by writing his name on the back of the same with pencil. These certificates were in the ordinary form of common stock certificates of an Ohio corporation, with a printed form of assignment on the back, to which his signature in pencil was appended. Said certificates of said corporation were offered in evidence and are the capital stock certificates Nos. 42, 43 and 44.

The defendant Fannie N. Burns claims to own said three certificates and the capital stock of said corporation represented by them, and filed an answer and cross-petition in this action setting forth with particularity her claims in the premises. She bases her claims upon three grounds: 1. That they were given to her by decedent in his lifetime. 2. That they were specifically bequeathed to her by the express terms of the will of said decedent. 3. That if they are not expressly given to her by said will, they are given to her by implication.

The defendants William E. Gosser and Frank Gosser are brothers of said decedent, and with the four minor children of a deceased brother are the next of kin and heirs at law of said Charles F. Gosser, deceased. They deny that there was a gift of said stock to said Fannie N. Burns and deny that the same was given to her by the will of decedent, either expressly or by implication. The contention of William E. Gosser and Frank Gosser is that Charles F. Gosser died intestate as to these 502 shares of stock, and that they descend as. intestate property under the laws of descend and distribution, to his heirs at law.

These are the two principal contentions in the case. There is still another claim made, which was mentioned at the trial, but in support of which no brief was filed.

The minor children of the deceased brother of said Charles F. Gosser are residuary legatees under his will. If the claim of gift or -bequest in favor of Fannie N. Bums should fail, and it should be held that said decedent did not die intestate as to these shares, they would then become a part of the résiduum of his estate and pass to said minor children by the express terms of his will.

The defendants William E. Gosser and Frank Gosser contend that a gift to said Fannie N. Burns, if one were intended, failed because said decedent never parted with his control and dominion over the stock, even after it had been indorsed and delivered to her. He continued to vote the stock at the annual meetings of the stockholders, drew all the dividends declared thereon and deposited the same to his own bank account, and to all appearances acted as the owner of said stock, which was never transferred out of his name on the stock books of said corporation, but was in his name on said books at the time of his death.

To constitute a gift inter vivos, two things must concur on the part of the donor:

- First, he must have the intention of making the gift; and, second, he must deliver the thing intended to be given to the donee, in praesenti, parting with all dominion and control over it. This must be followed by acceptance of the thing given, by the donee. When these elements concur, the transaction becomes a perfect or complete gift.

Did decedent intend to make a gift of this stock to Fannie N. Burns?

We think he did. His letter to her enclosing the stock certificates, his declarations to Mary W. Burns and to Eleanor Mitchell, and the recitations of his will, all show such intention. They all stand uncontradieted, and they can not be construed consistently with any other intention.

There was also a delivery of the thing intended to be delivered, so far as the same could be made. The stock itself is an incorporeal thing, incapable of being delivered except by that which represents it, the stock certificates. Stock certificates aggregating 502 shares, issued to said Charles F. Gosser in his lifetime, were delivered by him, indorsed in blank, to the said Fannie N. Burns, and the same were kept and retained by her, in her possession, and under her control until his death. The legal effect of such delivery is defined by statute as follows:

“Sec. 8673-1. Title to a certificate and to the shares represented thereby can be transferred only,
“ (a) By delivery of the certificate indorsed either in blank or to a specified person by the person appearing by the certificate to be the owner of the shares represented thereby. * * *
“Sec.. 8673-6. .The endorsement of a certificate by the person appearing by the certificate to be the owner of the shares represented thereby is effectual, except as provided in Section 7 (Section 8673-7), though the indorser or transferer, * * *
“(d) Has received no. consideration.”

These sections are part of an act entitled, “An act to make uniform the law of transfer of shares of stock in corporation.” (102 O. L., 500.)

The indorsement and delivery of said certificates by the said decedent passed the legal title thereto to Fannie N. Burns. Of this, we think, there can be no doubt.

Did such title pass to her as donee of said stock, or as trustee of the same for the benefit of said decedent? It must have been in one of these two ways. There was no consideration for the transfer and the record does not disclose any declaration of trust on the part of decedent or of Mrs. Burns for his benefit. In legal effect such transfer must therefore have been a gift to her, unless such transfer can be impeached under the provisions of Section 8673-7, General Code.

There is nothing in the answer of William E. Gosser and Frank Gosser that states a cause of action in their favor or a defense to the claim of Fannie N. Burns to said stock, under the provisions of Section 8673-7.

Did the said decedent exercise such control over said shares as to defeat any intended gift of the same to said Fannie N. Burns ?

We have seen that he had the intention to make such gift and that an unconditional delivery of the stocks to her had been made. This would constitute a perfect and completed gift. After such gift had been made and the property passed thereby to the donee, the parties to such transaction could deal with each other in relation thereto just as though the transfer had been made by a sale or any other way than by gift. The record shows his control and dominion over the shares, but it does not show his authority to exercise such control and dominion, or whether he had any such authority. It does not show anything in relation to it, and his acts in the exercise of such control and dominion may have been with the fullest authority from her. At least there is nothing shown to the contrary. And besides, he exercised the same control and dominion over her other property as he did over these 502 shares of stock. This is shown by the record. There was a sectrecy about the whole transaction that covered up everything that was not absolutely necessary to be made known. She never asked the officers of the corporation to transfer the shares to her own name, nor did she demand the dividends, nor in any other way did either of them disclose to the corporation that said certificates had been transferred to her. He continued to hold himself out to the world as the owner of the stocks and at the same time was sending her large sums of money. Who knows what accountings were had, or were intended to be had between them? We do not say there were any. We do not know, and the record does not disclose anything in relation to it. It neither sustains nor impeaches the claim of either of the parties in this particular. If a completed gift be shown, the burden of impeaching it is on him who asserts that there is no gift.

Without discussing this phase of the subject further, it will be sufficient to say that we hold there was a completed gift inter vivos of. the stock in question from the said Charles F. Gosser to the defendant Fannie N. Burns, in November, 1912, if not prior to that time, and that she had possession and was the owner of the same at his death in September, 1916.

This conclusion in itself disposes of the claims made under the will of decedent with reference to said shares of stock. If Fannie N. Bums was the owner of said stocks, at the date of testator’s death, there was no title remaining in him, at least none shown by the record, on which his will could operate. There is but one contingency, as we view it, in which it would make any material difference whether the language of the will with reference to these shares is dispositive or not, and that is in the event that the defendant Fánnie N. Burns took the title to said shares, by delivery of the certificates, in trust for the benefit of .said testator. In such case he would still be the beneficial owner of such shares, with the consequent right to dispose of them by will. There is no such case made by this record, and we find upon the principal contention for the defendant Fannie N. Burns — that she is the owner of said stock certificates Nos. 42, 43 and 44, aggregating 502 shares of the common capital stock of the said The Pope-Gosser China Company, with all the incidents of such ownership, and entitled to have such shares transferred to her on the stock books of said corporation.

Referring again to the claims of William E. Gosser and Frank Gosser, it is not to be believed that Charles F. Gosser, the decedent, would segregate the larger part of his estate for the sole purpose of dying intestate as to the part so segregated. Such in legal effect is the claim of the said defendants. They say (1) there was no completed gift to Fannie N. Burns, (2) there is no bequest to her of the 502 shares by the will of said testator, and (3) said shares are expressly exempted from passing to the residuary legatees, as a part of the residuum of his estate, by the plain and explicit language of the will itself; that therefore testator died intestate as to these shares.

The presumption of law is otherwise. If a man takes the pains to make a formal will, disposing of his estate, the presumption is that by such will he meant to dispose of all of his estate, and to overcome such presumption it must appear clear that he did not dispose of it or of some part of it. So far as any pronounced intendment of the testator appeals by his will, Fannie N. Burns, Mrs. Chester A. Smith, Ruth Gossér, and the widow and children of Clárence Gosser, deceased, are the beneficiaries and the only beneficiaries entitled to share in the distribution of his estate. He had his whole estate in-mind when he wrote his will. Nothing was omitted, so that if he died intestate as to any part of his property it is because he failed to use apt terms to dispose of the same, and to carry out the intention that seems so plainly apparent. It seems to be conceded by all parties that the intention of the testator is clearly ascertainable, and that if there is to be any failure in carrying this intention into effect it is because there is no authority on the part of the courts, under the settled rules of law, to declare and enforce such apparent intention.

To recapitulate, without further discussion, we find and hold :

1. There was a completed gift of said 502 shares of stock to the defendant Fannie N. Bhrns, by indorsement and delivery to her'of the stock certificates representing the same.

2. That the language of the will of said decedent relative to such shares, if not expressly dispositive, clearly shows the intention of the testator that the same would be the property of said Fannie N. Burns, and is sufficient to convey title to said Fannie N. Burns, if for any reason the prior gift should fail in the lifetimes of the donor. Moon, Admr., v. Stewart et al, 87 Ohio St., 349.

3. That the testator did not die intestate as to any of the property owned by him at his decease.

Decree accordingly.

Houck and Shields, JJ., concur.