text:
    CONTEMPT — PREJUDICE—SCHOOLS.
    [Cuyahoga (8th) Court of Appeals,
    June —, 1915.]
    Richards, Chittenden and Kinkade, JJ.
    (Sitting by designation.)

      J. M. H. Frederick v. John G. Owens.
    1. Management of Schools not to be interfered With by Courts !n Absence of Fraud or Abuse of Discretion.
    The management ci the public schools of a city is vested by law in the superintendent and board of education, and their decision as to the policy to be pursued in the employment of teachers will not be interfered with by the courts in the absence of fraud or an abuse of discretion.
    2. Authority of Board of Education to Resolve Against Appointment of Teachers Affiliated With Labor Organization.
    The superintendent and board of education in city school districts are vested with authority to employ as teachers whomsoever they will, providing they have the necessary .certificate, giving preference, however, to those already employed, and such freedom of contract is guaranteed by the constitution, and if, in the exercise of this authority, the board adopts a resolution providing, among other things, that neither it nor the superintendent will appoint, reappoint or confirm any applicant for the position of teacher in the schools, who is affiliated with a labor organization, such resolution is a valid exercise of the authority vested in the board.

      3. .Court Cannot Punish as for Contempt Superintendent of Schools Enjoined From Refusing to Reappoint Teacher Affiliated With Labor Organization.
    An order of court attempting to control the discretion of the superintendent and board of education in the appointment of teachers, and enjoining them from refusing to appoint applicants for the position of teacher because such applicant is affiliated with a labor organization, or intends . to become affiliated with such organization, or has participated, or intends to participate, in forming a union of the teachers of the schools, is beyond the power of the court and is a nullity, and the court is without power to punish a violation of such order in a proceeding for contempt.
    4. Finding Superintendent Violated Injunction not Supported by Evidence and Contrary to Law.
    The judgment and finding of the trial court that the superintendent of schools had violated the order of injunction is in this case not supported by the evidence, and is contrary to law.
    5. Judgment Set Aside for Prejudice on the Part of Trial Judge, against Whom ^an Affidavit of Prejudice had been Filed and Overruled.
    An affidavit of prejudice, charging the existence of bias and prejudice, filed in due time, definite and positive in its statements, disqualifies the trial judge under See. 1687 G. C. as amended by act 103 O. R. 417. The evidence of bias and prejudice on the part of the trial judge is so clearly manifest by the record and opinion in this case that this court would set aside the judgment and finding in this case on this ground alone if none other existed.
    6. Void Judgment Involving Liberty of Individual Reversed'.
    The fact that a judgment involving the liberty of an individual is void will, when shown, constitute a good defense in his behalf even though the judgment be one which cannot be reversed by proceedings in error, and it is immaterial whether the judgment be void for want of jurisdiction to hear the ease or because of want of power to enter the judgment.
    7. Teachers Have no Vested Rights in Positions.
    Teachers have no vested rights in positions held by them in the public schools and their rights terminate at the end of the period for which they were employed.
    [Syllabus approved by the court.]
    Error.

      J. N. Stockwell, city solicitor, and D. C. Westenhaver for plaintiff in error.

      John A. Cline and J. E. Mathews, for defendant in error.

      Reversing, Owens v. Cleveland, 25 Dec. 161; Fredfferick,. In re (Contempt), 60 Bull. 81.

   KINKADE, J.

A few years ago some of the teachers of the public schools of Cleveland formed an organization known as the Grade Teachers’ Club. The club was formed to promote the interests of the members as teachers, and for the betterment of the system of teaching in general. One of the main purposes of the club was to secure higher wages for the teachers, another was to correct certain methods pertaining to the school system that were claimed to be erroneous and unnecessarily burdensome to both pupils and teachers. The club selected from its members the usual officers and committees, including an executive committee and a press committee, the plan being to direct the attention of the public to the claims of the teachers.

For the purposes of this opinion we need refer only to the two objects of the club mentioned, and chiefly to the matter of increase of salaries for the teachers.

After the club had given the question of salary consideration and attention for a few years, without securing satisfactory results, the club considered, the question of affiliating with the Federation of Labor of Cleveland and through that body with the American Federation of Labor, to the end that the club might thereby bring to its assistance the influence of these powerful union labor organizations and; with the power of the club thus supplemented, thereby be able to secure from the board of education higher salaries for the teachers.

This plan of affiliating with union labor, for the purposes mentioned, was discussed in the club and in various committee meetings. Distinguished leaders of union labor were invited to and did address the club, advising the carrying forward of the plan proposed. Full and free discussion was engaged in by members of the club, many favoring and others opposing the plan. Full publicity was given in the newspapers of all that was taking place. By a very large majority of the members, the club voted to approve the plan.

The board of education thereupon determined that the plan adopted by the club, as stated, would, if carried out, be detrimental, instead of beneficial, to the schools of Cleveland, and pursuant to this decision the board passed a resolution disapproving of the action of the club and calling upon all teachers who were members of the club, who desired to remain as teachers in the schools, to abandon the plan. The board decided, and so resolved, that participation, by teachers in the plan of affiliating with union labor, as stated, at any time while teachers would be treated as equivalent to a resignation by the teachers; that all future contracts or appointments to teach should contain a stipulation to this effect; and that no teacher should be appointed or reappointed who did not freely first assent to these requirements of the board.

The superintendent of schools, J. M. H. Frederick, was directed by the board of education to notify all teachers of this decision of the board and to act in accordance with the resolution in making appointments or reappointments of teachers. The teachers were so notified by the superintendent. All these facts were fully discussed in the teachers’ club and in the newspapers of the city. At this stage of events John G-. Owens, a taxpayer of the city of Cleveland, filed a petition in the court of common pleas, setting forth the foregoing facts and averring, among other things, that said resolution adopted by the board of education was null and void and an abuse of discretion on the part of the members of the-board, and that the carrying out of the resolution would accomplish a great wrong against the teachers, pupils, taxpayers and citizens of Cleveland in general, by needlessly throwing out of employment a large number of experienced and competent teachers whose places could not be filled by others equally competent, all of which, Owens averred, would result in throwing the whole school system into a confused and chaotic condition and incur an unwarranted increase in the expenditure of public money made necessary to meet these unusual conditions, all to the great and irreparable damage of Owens and the other taxpayers of Cleveland for which no adequate remedy at law existed. An injunction was prayed for against the board of education and the superintendent of schools to prevent the carrying into effect of the resolution.

The board of education and the superintendent filed an answer to the petition, admitting the passage of the resolution and denying that the enforcement of the resolution would in any wise produce the results set forth in the petition. The answer denied that the board was abusing its discretion or was in any wise acting in an unlawful manner.

The common pleas judge, Honorable W. B. Neff, who had heard the application for an injunction shortly prior to the close of the school year 1914, found, on June 22, 1914, that the allegations of the petition were true; that the resolution adopted by the board of education was null and void; and, so finding, granted the prayer of the petition and issued an injunction in these words:

“The board of education of the city school district of the city of Cleveland, and J. M. H. Frederick, are perpetually enjoined from enforcing said resolution and carrying the same into effect; that said defendants are enjoined from refusing to appoint, reappoint or confirm any applicant for a position of teacher in the schools of said school district, because such person is affiliated with any labor organization, or intends to become affiliated with any labor organization, or because any such applicant has participated in or intends to participate in any effort to form a union of the teachers of the schools of the said district.’’

The board of education thereupon gave notice of an intention to appeal the case to the court of appeals, and attempted to perfect the appeal. The omission to file- an appeal bond resulted in the appeal being dismissed by the court of appeals, and this action by the court of appeals was affirmed by the Supreme Court.

Thereafter six, and only six, out of several hundred teachers, members of the Grade Teachers’ Club, a very large majority of whom had, as stated, been active in urging affiliation by the club with union labor organization, failed of reappointment as teachers for the next ensuing year.

The superintendent or his assistants interviewed these six teachers, respectively, prior to the final closing and making public of the full list of teachers for the coming year.

The evidence found in the record discloses some conflict' between these teachers and the superintendent and his assistants as to what was said by each at these interviews. Following the interviews, these teachers, assuming, as they say, that the door had been closed against them, gave interviews to a newspaper in which the conduct of the superintendent and his assistants, as well as the school teaching system in general, under their management, was freely discussed and sharply criticised.

The superintendent claims that prior to the time these teachers gave these interviews to the newspapers, he had not finally determined against their reappointment. The superintendent and his assistants claim these six teachers were told at these interviews that they were out of harmony with their superiors in the management of the schools, and that unless their attitude in this respect was altered they would not be reappointed.

These six teachers at the same time wrote six letters, one each, all substantially alike in terms, to the superintendent, promising harmonious co-operation with their superiors if reappointed for the coming year. It is admitted by one of the counsel for Owens that these six letters were prepared under his instruction and were all sent at one time and in one package from his office to the office of the superintendent of schools, Mr. Frederick. It was stated by the counsel under whose direction these letters were written and sent, that they were so prepared and sent to test the good faith of the claim on the part of the superintendent that he was insisting only upon harmonious cooperation by teachers with their superiors.

These six teachers were claiming and giving it out to the public through the newspapers that they had been, or were about to be, denied reappointment on the ground that they had been active in urging affiliation of the members of the teachers’ club with union labor organizations as stated.

•The claim of the superintendent was and is that these six duplicate letters, coming in one package from the attorney representing the teachers, were no evidence of good faith and a harmonious spirit on the part of the teachers, but were a mere subterfuge put forward to secure reappointments.

"When it became definitely and finally known that these six teachers had failed of reappointment, Owens, who secured the injunction, filed in court on September 9, 1914, a charge against superintendent Frederick, alleging the following:

“That the defendant, J. M. H. Frederick, is guilty of disobedience of, and resistance to, a lawful order, judgment and command of this court, to-wit, the judgment rendered by this court in this cause on the 22nd day of June, 1914. Said disobedience of and resistance to said judgment consists in this, to-wit, that on or about the 21st day of June, 1914, * * * said defendant, J. M. H. Frederick, * * * did refuse to appoint, reappoint or confirm the following persons, who, at that time and prior thereto, were and had been applicants for the position of teacher in schools of said school district, to-wit: (naming said six teachers) that each of said teachers had served creditably in the schools of said school district for long periods of time, varying from ten to twenty-five years, and had been commended for their fidelity and competency not only by the incumbents of the superintendent’s office preceding the defendant Frederick but by said defendant Frederick himself; that no reason exists or has been assigned for the dismissal and non-appointment of said teachers, and this plaintiff avers that the sole and only reason actuating the said defendant Frederick in refusing to reappoint said teachers is that said applicants are affiliated with a labor oragnization known as the Grade Teachers Association, or intend to become affiliated or to continue their affiliations with said organization, and to become affiliated with the Cleveland Federation of Labor, a labor organization, and because they, and each of them, in varying degrees have participated in efforts to form and maintain a union of the teachers of the schools of said school district. ’ ’

Thereupon, on September 9, 1914, Judge W. B. Neff, made the following order:

“It is therefore ordered that said defendant, J. M. H. Frederick, appear in this court on -the 14th day of September, 191.4, in court room No. 10 thereof at the hour of 10 o’clock A. M. to answer said charge, and show cause, if any he has, why he should not be punished as for contempt because, of said,, violation of said decree. ”

The foregoing citation was duly served on Mr. Frederick,, with copies of the charge, on September 10, 1914.

On the same day, September 10, 1914, Mr. Frederick duly filed in the office of the clerk of the court of common pleas an affidavit alleging that Judge Neff was biased and prejudiced against him and thereby was disqualified to sit in the hearing of the charge of contempt.

The question of the existence of the alleged bias and' prejudice on the part of Judge Neff, was later passed on by Chief Justice Nichols of the Supreme Court who found that no bias or prejudice sufficient to disqualify existed.

Without entering his appearance, motions to quash the citation and to dismiss the defendant, based on several grounds, including want of jurisdiction to hear the original action and want of power to make the original order claimed to have been violated, were duly made by Frederick and were overruled with exceptions saved.

When counsel for Frederick were directed by Judge Neff to proceed with the trial before him, on September 30, 1914, and before the commencement of the trial, the city solicitor, Mr. J. N. Stockwell, one of the counsel for the defendant, Frederick, made the following statement to Judge Neff:

“Before we proceed to the hearing in this ease, I would like to say a word with reference to the situation here. This case has been a source of embarrassment to a good many of us and perhaps to the court, certainly to me, and I feel that what I have to say is said under that embarrassment. The court well knows what the procedure was when the motion to cite Mr.' Frederick for contempt here was made; Mr. Frederick filing an affidavit of bias and prejudice. That motion was heard by Chief Justice Nichols, and in the course of that proceeding, certain testimony was introduced which was passed on by the court, and this court, then, after Judge Nichols had said that he would dismiss it because no evidence had been introduced of bias and prejudice, unless Tour Honor felt that he ought to remand it; and Your Honor then after consultation, said that you felt no bias and prejudice in the case. In behalf of Mr. Frederick, who is here, and is here under circumstances which may deprive him of his property and liberty, I feel it my duty to Mr. Frederick, and my duty as an officer of this court, to Your Honor, to say what I have to say, and that is that Mr. Frederick now feels here in this court that he will not be able to secure a fair trial under all the circumstances. Of course this is a criminal proceeding, a quasi criminal proceeding, and a proceeding in which Mr. Frederick may, through Your Honor’s action, be deprived of his liberty. It seems to me that it is due to Mr. Frederick, and to the interests of justice generally, that if a man is cited here, with the penalties which may attach to any conduct which has been his, that every possible opportunity ought to be given to Mr. Frederick to see that he has a fair trial, not only to see that he has a fair trial, but to satisfy him that he is to have a fair trial. He does not now have a feeling that he is going to have a fair trial. That is his feeling. We, therefore, suggest that under all these circumstances Your Honor ought not to hear this motion, and I therefore make application, as an officer of this court, to send it to some other judge. I feel that if I were sitting on the bench, and a person to be tried by me as court and jury, to pass upon the law and the facts, that if such a feeling existed on the part of the defendant, counsel should call that fact to my attention. With that in mind, and with the statement that that is his feeling here, we ask Your Honor to send this case back to the assignment room, because this is a citation for contempt of the order of the court, not a citation for contempt of this particular branch of the court — that Mr. Frederick may have an opportunity to be tried .by a branch of this court where he feels that he will have every possible opportunity. He does not now feel that before this branch of the court. It is a reasonable request. He has said certain things in the presence of this court. He feels that there is a bias and prejudice; and with that in mind, I make this application. I know of no case in the whole history of the court, at least in the relations which I have had with this court, where the suggestion has been made, if the litigant does not feel that he wants to try that case before that particular judge to whose room it happens to be sent — I know of no case where even a suggestion of this kind has not prevailed. With that in mind, we make this application.

The court forthwith overruled the application so made by Mr. Stockwell.

Thereupon the defendant Frederick filed his answer, denying all the allegations charging him with having violated the order of injunction, and averring that at all times since the issuing of that order he had acted in full compliance therewith in every respect and had at no time taken any step toward carrying into effect the resolution of the board of education, and that at no time had he any intention to in any way violate the order of the court. Thereupon the trial before Judge Neff upon the charge of contempt proceeded. Many witnesses were examined upon both sides. The following journal entry made on October 30, 1914, shows the decision of the court, to-wit:

“Now comes the defendant, and the complainants, and this cause comes on to be heard on the evidence touching the defendant’s alleged disobedience of the order of the court made heretofore herein; and upon due consideration the court finds that said defendant is guilty as charged, and is thereby guilty of contempt. It is therefore adjudged that said defendant pay a fine of $500, and the costs of this proceeding and execution is awarded therefore and it is further ordered that said defendant be committed to the jail of this county for a period of ten days. To which judgment the said defendant excepts. The motion for a new trial of this case is overruled, to which ruling the defendant excepts.”

The record contains over 1300 typewritten pages of the oral testimony taken, and in- addition thereto a very large number of exhibits. This is a preeeeding in error to reverse the judgment of the court of common pleas and final judgment by this court, discharging the defendant, is asked here.

Many errors are assigned by counsel for Frederick which they insist necessitate not only a reversal of this judgment of conviction and sentence, but also final judgment in his favor here. We think it unnecessary to state all the alleged grounds of error with the detail in which they are presented by counsel. The principal grounds, summarized, are: That the trial judge, Honorable W. B. Neff, was wholly disqualified, by reason of bias and prejudice, to hear the case; that the court had no jurisdiction to hear the original ease in which the order of injunction was granted; that the plaintiff in that action, Owens, the taxpayer, had no right to commence or maintain the action; that even, conceding the right of Owens the taxpayer to thus bring this subject-matter to the attention of the court and the power of the court to consider his petition thus presented, nevertheless, the court was wholly without power to issue the order of injunction that it did issue, and that for this reason alone, as well as on other grounds, the order was a mere nullity, and, being so, could not form a sufficient basis to sustain a charge of contempt arising by reason of an alleged violation of such void order; that incompetent evidence, prejudicial to the accused, was admitted over objection and exception; and that the judgment of conviction and sentence is contrary to law and is not sustained by sufficient evidence.

The defendant in error, Owens, claims that the question of jurisdiction and the question of Owens’ capacity to bring and maintain the action were necessarily involved in and were passed upon in the original action, and that the judgment of the trial court entered therein cannot now be attacked collaterally in this contempt proceeding.

In view of the conclusion we have reached upon the other grounds of error assigned, we deem it unnecessary to spend any time discussing this question of jurisdiction and capacity to sue. We go directly to the controlling legal question in this case, to wit: Had the court the power to make the order that it did make? Manifestly, if the court was without power to make the order, then the order was utterly void and being void it affords no ground upon which to base a prosecution for contempt arising by reason of an alleged violation of the order. In any case involving the liberty of an individual, the fact that the judgment, by virtue of which he is denied his liberty, is void will, when shown, constitute a good defense in his behalf even though the judgment be one which can not be reversed by proceedings in error. It is quite immaterial whether the judgment be void for want of jurisdiction to hear the case or because of want of power to enter the judgment. The fact that it is void, - for any reason, and not merely voidable, is sufficient.

In the case of Siebold, Ex parte. 100 U. S. 371 [25 L. Bd. 717], this language appears in the opinion of Mr. Justice Bradley on pages 376 and 377:

“The validity of the judgment is assailed on the ground that the acts of congress under which the indictments were found are unconstitutional. If this position is well taken, it affects the foundation of the whole proceedings. An unconstitutional law is void, and is as no law. An offense created by it is not a crime. A conviction under it is not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment. It is true, if no writ of error lies, the judgment may be final, in the sense that there may be no means of reversing it. But personal liberty is of so great moment iii the eye of the law that the judgment of an inferior court affecting it is not deemed so conclusive but that, as we have seen, the question of the court’s authority to try and imprison the party may be reviewed on habeas corpus by a superior court or judge having authority to award the writ. We are satisfied that the present is one of the cases in which this court is authorized to take such jurisdiction. We think so, because, if the laws are unconstitutional and void, the circuit court acquired no jurisdiction of the causes. Its authority to indict and try the petitioners arose solely upon these laws.”

Many other decisions of the Supreme Court of the United States sustain the same proposition.

By the law of Ohio it was the duty of Frederick, the superintendent of schools, to appoint the teachers subject to approval by the board of education. .The law prescribes the qualifications of teachers and provides that teachers already in 'the schools shall be given preference in the matter of appointment as against persons who have not been appointed to teach. Aside from these conditions imposed, the statute makes no attempt to control Or regulate the discretion of the superintendent and of the board of education In the selection of teachers, the whole subject being committed to their sound discretion

We have nothing to do in this ease with the question of the dismissal of teachers during the term of their employment as none were dismissed. Neither thé superintendent nor any of his assistants nor any of the teachers have any vested right in the positions that they hold. The right to longer occupy those positions terminates at the end of the period for which the appointment has been made, and thereafter the right to ' continue therein depends upon the judgment of the superintendent and the board in so far as assistants and teachers are concerned, and of the board alone in so far as the superintendent is concerned. It was necessary that this power of selection, — appointment and reappointment, — should be vested somewhere; and the legislature saw fit to vest it in the superintendent and in the board of education. The statutes will be searched in vain to find any provision to the effect that the superintendent and the board may only make selections and appointments when they are able to give reasons therefor that are satisfactory to the courts, and the record in this case will be searched in vain for evidence tending to show that any teacher has been appointed who was not qualified to fill the position to which she was appointed. It might well be contended that the superintendent and the board of education were abusing the discretion reposed in them by the legislature in the selection of teachers if it were shown to be true that they had intentionally and wilfully selected incompetent teachers when competent teachers were available. No such question is presented here. The question here is — there being no showing that any teacher appointed is incompetent to perform the duties of the position, can the superintendent and the board of education be held to have abused their discretion in making selections, because they selected the ones they did instead of others who might have been chosen? It being true that neither the superintendent nor the board is required by law to state the reasons to aoy one for the selections made, can the court enumerate certain reasons as insufficient and then command the superintendent and the board of education not to omit to appoint for those stated reasons, and then punish them for contempt if they do so?

The Supreme Court of the United States, in the case of Coppage v. Kansas, 236 U. S. 1, announced again, on January 25, 1915, the doctrine that any law which abridges the freedom of contract is in -violation of the constitution of the United States. Since that decision, the Supreme Court of Ohio, in the case of Jackson v. Berger, 91 Ohio St. 000; 60 Bull. 199, decided May 4, 1915, has held that Sec. 12943 G. C. which reads as follows:

“Whoever, being a member of a firm, or agent, officer or employe of a company, corporation or person, prevents employes from forming, joining or belonging to a lawful labor organization, or coerces or attempts to coerce employes by discharging or threatening to discharge them from their employ, or the employ of a firm, company or corporation because of their connection with such labor organization, shall be fined not more than one hundred dollars or imprisoned not more than six months, or both, ’ ’

is unconstitutional and void. In the ease mentioned, decided by the Supreme Court of the United States, that court was considering the validity of a Kansas statute substantially the same as the section of the General Code of Ohio above quoted. A large number of decisions were reviewed by the United States Supreme Court in the ease cited, and the law pertaining to legislation of this character is there very .clearly and definitely stated, and, as I have said, that decision has been followed by the Supreme Court of Ohio in the case mentioned.

We heartily concur in these decisions and we will not attempt any restatement here of the principles so clearly and comprehensively announced by the Supreme Court of the United States and followed by our own Supreme Court. These two decisions state the law as applied to the rights of an employer to be precisely the same as it has long been understood to be with respect to employes, — that is to say, that neither may compel the other to continue the relation of employer and employe beyond the term of service agreed upon nor can either compel the other to enter into any new contract for service except by-mutual consent of the parties. The law thus stated as applicable to individuals, 'partnerships, corporations and other associations of individuals handling their own money, should surely apply with equal force to public officials who are not spending their own money, but who are trustees of a public fund raised by taxation, and whose duty it is to make these expenditures according to their best judgment for the common benefit of all. Individuals may be very liberal, if they so elect, with their own money. Public servants may not have the funds in hand with which to do as they would like in the matter of increasing the salaries of persons employed by them. They act, as is well known, under many limitations, including, often, an insufficient tax levy.

It is difficult to conceive of anything that would be more certainty productive of confusion in practical application than the proposition that the courts may state to public officers the •various grounds upon which they shall not determine against appointing an applicant for a position under the control of such officers. This doctrine extended to its logical result necessarily ■takes from the public officer very much of the authority given him by law to. make the selections in question, and to that extent, and without the slightest warrant of law, passes this power over to the courts. ■ We are very clearly of opinion that nothing exists in the statutes giving the courts any such power. We think it would be quite as justifiable for the courts to undertake to regulate all political appointments in the state by prescribing that different political affiliations should not furnish sufficient ground for denying appointments, and then proceed to punish the public officer who violated the ■ order by denying appointments- on political grounds.

The members of the board of education are elected by the people. If the people make mistakes in their selection of men to fill these important positions, the ballot box, and not the courts, is the place to correct these errors.

We hold that the trial judge in this ease was wholly without power to issue the order of injunction which he did issue against the board of education and the superintendent. Having reached this conclusion, it follows of necessity that the judgment must not only be reversed, but final judgment entered here discharging the defendant, and we might stop here in our consideration of this case. However, certain other matters of importance have been argued by counsel and we will consider some of them.

We have examined, with great care, the evidence submitted in this ease. It would serve no useful purpose to attempt a discussion, in detail, of the 1300 pages of testimony and the very large number of exhibits, nor would it be practicable within the reasonable limits of an opinion. Therefore, I will state only the conclusions that we have reached with respect to the evidence. It is this: That the evidence falls very far short of being sufficient to justify the judgment of conviction and sentence in this case. We hold the judgment is contrary to law and contrary to the evidence.

I now go to a question presented in this case that is by no means free from doubt so far as the provisions of the statutes are concerned, and concerning which counsel for plaintiff in error remarked, in presenting it, that they were not very particular which way it was decided, but only that it be decided, to the end that they might not be met with the claim in the Supreme Court that it had not been presented to this court and consequently could not be reviewed there. I refer to the question of claimed bias and prejudice on the part of the trial judge. The affidavit of the defendant, Frederick, charging the existence of bias and prejudieé, was filed in due time and was definite and positive in its statements. This affidavit was called to the attention of the Chief Justice of the Supreme Court who heard the evidence upon the question presented by the affidavit and reached a conclusion adverse to Mr. Frederick and, consequently, the trial proceeded before Judge Neff. A majority of this court are of opinion that the filing of this affidavit disqualified the trial judge, under 1687 G. C., as amended 103 O. L. 417, notwithstanding the other provisions in the code with respect to the Chief Justice of the Supreme Court hearing and deciding the question of the existence of prejudice when charged against a judge of the court of appeals. One member of this court is of opinion that the provisions of Sec. 1687 G. C., amended as stated, only apply when there is in fact an interest, bias or prejudice, and that the section requires a hearing to determine the fact before the Chief Justice of the Supreme Court, in accord with the provisions of Art. 4, Sec. 3 of the constitution.

. It will be noted that Sec. 1527 G. C. found in the same amendatory act, 103 O. L. 413, makes provision, with respect to the disposition of similar affidavits filed against judges of the court of appeals, markedly different from the provisions of Sec. 1687 G. C.

It has long been the contention of a very large majority of the practicing lawyers in the state that when an affidavit is filed charging the trial judge with bias and prejudice, that affidavit thus filed should operate to disqualify that judge. We think a great majority of the practicing lawyers have felt the embarrassment and the impracticability of trying to prove that bias and prejudice exist in the mind of a trial judge. The conviction in the mind of the lawyer or the litigant that it does so exist arises out of a multitude of minute circumstances not easy to bring -to the attention of any tribunal trying the question. It is very easy to prove relationship or interest or to disprove these charges if averred in an affidavit. Not so with the question of bias and prejudice. This court would have preferred that this question might first have been settled by the Supreme Court, and we appreciate keenly the delicacy of any decision upon it by this court in this action. However, we are asked to rule upon the question and we think we should rule upon it, and, pending further light from the Supreme Court directly on the subject, we hold that under Sec. 1687 G. C. on the filing of this affidavit the trial judge was without power to hear the case. We have not before us the evidence that was submitted to the chief justice on this question, and the chief justice did not then have for consideration the evidence in the contempt case or the opinion of the trial judge in finding the defendant guilty and imposing sentence. After a thorough review of this case we are firmly of the opinion that if the chief justice had been able to look, into the mind of the trial judge and see there what is disclosed to us by the evidence in this case and the opinion of Judge Neff, the chief justice would very promptly have rendered a decision the very opposite of what he did render on the question of the existence of bias and prejudice. We heartily commend to the chief justice, if this case shall reach the Supreme Court, an examination of the evidence and the opinion of the trial judge, on this question of prejudice, and in this connection we call special attention to the statement of the city solicitor, Mr. Stoekwell, made to Judge Neff at the commencement of the trial. Every member of this court served for a number of years on the court of common pleas. None of us recall any ease in which a trial judge insisted upon hearing a case under circumstances like these attending the trial of this case. It is self-evident and not contended by counsel to the contrary, that there were many other common pleas judges in the city of Cleveland anyone of whom would have been entirely satisfactory to both parties. The defendant was not asking that the case should be heard by some particular judge. He only asked that he be not judged by that particular judge. It is almost as important, and particularly so in a case where individual liberty is involved, that a litigant shall believe that he will have a fair trial, as it is that he have a fair trial. It is neither becoming nor in furtherance of the ends of justice that a trial judge insist that he and nobody else shall try a given case, notwithstanding the fact that many other equally competent judges are available and notwithstanding the fact that he is thoroughly convinced, as he must have been in this case, that ■both the defendant and his counsel honestly believed the trial .judge to be biased and prejudiced. It is not uncommon for .reviewing courts to reverse judgments, even in civil actions, ■on account of the misconduct of juries. It is somewhat rare to find the claim honestly made by reputable counsel that a judgment should be reversed on account' of the intentional misconduct of the court. We are unanimously of the opinion that the evidence of an existing bias and prejudice against the defendant, Frederick, upon the part of the trial judge in this case is so manifest from the evidence and the opinion that the judgment ought to be set aside, as contrary to law, on that ground alone, if no other existed.

The freedom of contract guaranteed by the constitution to' all men and the free exercise of the discretion reposed in the board of education and the superintendent of the public schools, by the statutes of Ohio, are not to be abridged or destroyed by a judicial injunction.

We have not here for consideration and determination the question of whether it was wise or unwise for the teachers club' of Cleveland to affiliate with union labor organizations, and we have no opinion to express upon that subject. That they had a perfect right to affiliate with these organizations and the organizations with them, if they saw fit, everybody must concede. That right is guaranteed to both by the constitution. Neither are we concerned with the question whether the resolution passed by the board of education was wise or unwise, and we have no opinion to express concerning that. If the board honestly believed that the contemplated affiliation would for any reason be detrimental to the schools, it had a legal right to discourage the completing of this affiliation by the teachers. The resolution of the board coerced nobody, not even the board of education itself. It could have been rescinded at any time by the board when it saw fit to do so.

Whether the best and most modern methods of teaching are employed in the schools of Cleveland; whether, as claimed by some teachers, the schools are over-supervised by too many assistant superintendents and special teachers; whether the superintendent is a suitable man for the position which he holds; whether the grade teachers are in fact underpaid, as they claim, for the work they perform and whether the board of education could pay higher salaries to teachers out of the funds at their disposal for this purpose, are all important questions for the consideration of the board of education of Cleveland, but they are not questions to be decided by this court, and we express no opinion upon any of these matters.

The questions as to whether a refusal alone to appoint an applicant to a position or the discharge alone of one in a position could ever be held to be coercion and therefore unlawful, where the term of service was at will, or had terminated ' by lapse of time, was directly decided in the case of State v. Bateman, 10 Dec. 68 (7 N. P. 487), in a very able opinion rendered by Judge Isaac P. Pugsley, then sitting as a common pleas judge in Lucas county. Able counsel appeared in that case on both sides and after the fullest investigation of authorities, Judge Pugsley wrote an opinion in the case so thoroughly satisfactory to counsel that the case was prosecuted no further. It was there decided that the exercise of a legal right, to wit, the right to terminate an employment when the employment was at will, or at the close of the term of employment when a fixed term was agreed upon, would not support the claim that the exercise of this legal right amounted to an unlawful coercion of the employe whose term of service was thus terminated. The Supreme Court of the United States in the case mentioned cite this decision of Judge Pugsley with approval.

For the reasons stated the judgment of the court of common pleas will be reversed, and final judgment will be entered here discharging the defendant, Frederick.

Richards and Chittenden, JJ., concur.


source: Caselaw Access Project

author: GRANT, J.

license: Public Domain

text:
    SCHOOLS.
    [Holmes (5th) Court of Appeals,
    October Term, 1914.]
    Grant, Shields and Powell, JJ.
    Albert E. Cline v. Oath Martin, et al.
    Incorporation of Village in Effect Makes Included Territory School District.
    A petition, signed by the requisite number of male citizen electors, having been filed in the proper probate court, praying that a special school district be created; and the fact being that the territory- described in the petition embraces an entire incorporated village, together with other contiguous territory outside of such village; and it further appearing that such village never had been organized as a village school district by the election of a board of education therein:
    Held: That by the creation of such village the territory within
    its limits was withdrawn from the operation of the statute providing for the establishment of special school districts, and that the probate court in the proceeding was without jurisdiction of the subject of the petition, and its order purporting to create a special school district composed in part of such village territory was inoperative and void.
    [Syllabus by the court.]
    Appeal.
   GRANT, J.

This cause is before us by appeal from the judgment of the court of common pleas. The facts necessary to an understanding of the issues involved are in substance these:

The village of Nashville became such by legal incorporation in 1881 and has so remained ever since. The territory included within its limits was taken from several townships. Nashville, as such, was never formally organized into a village school district by an election of a board of education, or by other visible exercise of whatever powers it may have possessed for that purpose, but the administration of its schools continued after its incorporation, as they had done before, under the auspices of the townships out of which the village was made up.

In May, 1913, a petition was filed in the probate court of this county, in due form of law, the object and prayer of which was the establishment of a special school district, to be composed of the territory included within the village of Nashville and the territory then attached to it for school purposes, and also other contiguous territory, properly described. The petition was signed by the requisite number of persons and contained apt allegations necessary to bring it within the statute, the aid of which was invoked in the proceeding to grant the relief sought.

The probate court took jurisdiction of the petition, and thereupon such proceedings were had in the cause as resulted in granting the prayer of the petition and the establishment of the special school district asked for, if that court had the legal power to do what it undertook to do in the premises.

After the organization of the purported special school district, and assuming that the probate court had jurisdiction to entertain and prosecute the proceedings resulting in its establishment, an election was attempted to be held in a part of the territory embraced within its limits, the object of which was to cause bonds to be issued, the avails of which were to be used in the alleged special district. The result of this purported election was declared to be in favor of the bond issue in question.

Matters standing thus, the present action was begun in the court of common pleas.

The plaintiff is a taxpayer of the territory sought to be taxed and affected for payment of the bonds voted, and sues in that capacity.

The defendants are those who claim to be the members of the board of education of the purported special school district, and one of them is the ostensible clerk of that body, and they are sued as such.

The prayer of the petition is that the defendant be perpetually enjoined from proceeding further in the selling of the bonds claimed ta have been authorized by the alleged election referred to, upon the ground that the election was wholly irregular and void. It goes further than that, and asks that the so-called school authorities be permanently prohibited from raising any money to taxation, from expending any money as such board, and from doing any act or thing under a claim of right in their assumed official capacity, for the reason, as'is said, that the probate court was without jurisdiction to act upon the petition for the creation of a special school district, and that its judgment and proceedings in that behalf were altogether null and conferred no right.

The jurisdiction which lies at the root of the existence of the special school district if it exists, being thus directly called in question, it is clear that if that contention prevails the entire proceeding in the probate court will have been void from the beginning, and the secondary question of the invalidity of the bond election will fall with it and therefore becomes relatively unimportant here.

We are therefore to address our consideration to this controlling issue in the case. It is somewhat complex and the solution of the matter is not without its difficulties. The case has been ably argued at the bar, and in the briefs of counsel the statutes and authorities deemed to be material have been marshalled with commendable industry and discrimination.

We have reached, with some diffidence, a conclusion in the ease which, while not in all respects free from doubt in our own minds, will have to stand as the judgment of the court.

By the act of 1853 and the acts amending and supplementing it, it was entirely competent for the village of Nashville, when it emerged from its theretofore township existence and became a corporate entity, to become a village school district. All that was necessary to that end was the election of a board of education, which Nashville village did not do.

The act of 1853 declared it. to be such a district. ■ But the Supreme Court, in Cist v. State, 21 Ohio St. 339, by construction held that the act was not self-executing. In that case it was further held that if an incorporated village was formed within a subdistrict, or included. a material portion thereof, no portion of such subdistrict was by reason of such incorporation withdrawn from the school jurisdiction of the township, but that the whole continued to be a subdistriet until the actual election or appointment of a separate school board, and that the. part of the subdistrict not included within the limits of such incorporated village was “territory annexed thereto for school purposes, ’ ’ within the meaning of the statute.

This, seems to fix the status of the Nashville territory and to f>ut it for the time being out of the class of village districts, no board of education having at any time been elected or appointed.' The act thus construed and as construed, keeping Nashville after its incorporation as a village where it was before in regard to its standing as a school district, was repealed in 1904 (97 O. L. 379).

The part of the repealing act which became Sec. 3889 It. S. provided that:

“ * * * Upon the creation and incorporation of a village, the same shall thereby become a village school district; and if said village ivas, previous to its creation and incorporation, included within the boundaries of a special school district but said special school district included more territory than is included within the village limits, said territory shall be, and thereby is, attached to said village school district for school purposes. ’ ’

It is not necessary now to determine whether this act by its own force made Nashville a village school district, or not. But it is to be observed as a significant fact, we think, that although territory which became a village district upon the mere incorporation of the village, ipso facto, although part of a special school district before, was not allowed to preserve that status-thereafter; the territory outside the village limits, although up to that time a part of the special district, was permitted to remain only as attached territory. It passed into, and became merged in the village district and lost its standing as well as its name of a special district. The policy of the law in Ohio for more than a half century consistently has been to make school districts coincide territorially with the political units within which they have been formed, as township, village and city districts, and to have them, as they have passed out of one status, at once emerge into the one next higher. Exceptions to this rule, such as special districts and joint districts, have been allowed only upon controlling considerations of public convenience and welfare. So that, in this case we are dealing, with what must be a departure from the line of public policy, if it is allowed.

In addition to the provisions of Sec 3889 R. S., just quoted, ' the purpose of which seems to have been to take care of the exceptional cases of territory forming a special district becoming by force of the act village districts, the next preceding Sec. 3888, declared that “Each incorporated village now existing or hereafter created, together with the territory attached to it for school purposes and excluding the territory within the corporate limits detached for school purposes, shall constitute, a village school district.” When at last our legislation on this subject passed into and became a part of the present Sec. 4687 Gr. C., thereof provided that:

“Upon the creation of a village, it shall thereby become a village school district, as herein provided; and if the territory of such village, previous to its creation, was included within the boundaries of a special school district, and such special school district included more territory than is included within the village, such territory shall thereby be attached to such village school district for school purposes.”

And by Sec. 4681 GC. 0., it was further provided that:

“Each village, together with the territory attached to it for school purposes, and excluding the territory within its corporate limits detached for school purposes, and having in the district thus formed a total tax valuation of not less than one hundred thousand dollars, shall constitute a village school district. ’ ’

By Sec. 4679, there was a still further provision that “the school districts of the state shall be styled respectively ‘city school districts,’ ‘village school districts,’ township school districts,’ and ‘special school districts.’ ”

We have now traced the rise and progress of the legislation of Ohio, so far as it seems to appertain to the status of school territory co-extensive with village territory, when the latter has passed into the village condition from the lower forms of political existence. We are to consider these latest enactments as expressing the matured legislative thought, and the purpose of the state in respect of the subject-matter. What' we conclude the legal effect of them is, as applied to the case in hand, will be remarked upon presently. We need not observe that the statutes last quoted were in force when the proceedings which are attacked in this action were begun.

Some of them were under review by the Supreme Court in the case of Buckman v. State, 81 Ohio St. 171 [90 N. E. Rep, 158].

Construeing the decisive section, the court fixes its intendment as ■ follows:

‘ ‘ By force of the provisions of Sec. 3888 R. S. as amended April 2, 1906, and in effect April 16, 1906, 98 O. L. 217, each incorporated village then existing, April 16, 1906, or since created, together with the territory attached to it for school purposes and excluding the territory within its corporate limits detached for school purposes, and having in the district thus formed a total tax valuation of not less than one hundred thousand dollars, constitutes, and is a village school district, no vote of the electors of such village being necessary to the creation or establishment of such district.”

In the course of the opinion in that case, it was said:

‘ ‘ It is the contention of counsel for defendant in error that the village of Kenmore upon its incorporation did not thereby by force of the provisions of the above statute become at once or at all, a village school district, but that in order to create or establish such district, of the territory within the municipality, it is necessary that the proposition to organize such village school district be first submitted to the electors of the village and be favorably determined by a majority vote of such electors. We are of opinion that neither the grammatical construction, nor proper interpretation of the language employed in the above statute, leads to the conclusion for which counsel for defendant in error contend. A consideration of the history a previous legislation upon the subject of the reorganization and maintenance of our common schools, discloses that from 1880 to 1906 it was the policy of the state, so declared to be by express statutory enactment, that every incorporated village within the state, together with the territory thereto attached for school purposes, should constitute a village school district, without regard to the tax valuation of the property within the district so formed, and without submitting to a vote of the electors of such village the question of establishing such village district.”

The writer of this opinion argued that case, for the losing side, in the Supreme Court, and is entirely familiar with the scope of the discussion and how far the intention at least was manifest to leave no ambiguity on the record as to any point essential to the issues involved; he personally has no doubt upon the subject. The language we have quoted from the opinion makes the meaning tolerably clear, as we think. We shall not, therefore, comment more particularly upon it.

Over against this mass of statutes We now proceed to place the one, under favor of which, if at all, the proceedings had in the probate court acquired their validity and that court its jurisdiction of the subject-matter. It is the enabling act by which the proceedings assailed here must stand or fail, according as it shall be allowed to prevail over, or yield to, the force of the statutes already quoted, taken as an entirety. It is Sec. 4728 G-. C., and it reads as follows:

“A special school district may be formed of any contiguous territory, not included within the limits of a city or village, which has a total tax valuation of not less than one hundred thousand dollars.”

As the law. at last stood when the case in the probate court was begun, as it was construed in Buckman v. State, supra, we think it would perhaps be safe to infer that the corporate existence of the village of Nashville, ipso facto and without more, constituted that territorial entity a village' school district. But, lest it be thought perilous to go so far as that, in view of the decision in Cist v. State, supra, we need not go to the length of-so holding in terms.'

But from a careful comparative reading of all the statutes referred to, we are entirely satisfied that if the village of Nashville was not at the time stated, technically and visibly a village district, it nevertheless was such district in esse. All that by possibility could have been lacking was the election of a school board. Now a trust is never allowed to fail for want of a trustee, and especially ought this to be true in the solemn trust of administering a school system in accordance with the known public policy of the state. The village district may have been still a district in gremio legis, in the bosom of the law only, but it was none the less a potential district for all that. It was, and we so hold, so far a district that its territory was no longer the subject of being formed into a special district. It was sequestered territory, territory set apart and withdrawn from appropriation to any other use than that to which the fact that Nashville was already a village had by operation of law devoted it. The policy of the state to have its school units coincide with its political units, should not permit, the mere default of villagers to elect a board of education, to defeat that policy.

Inded it would perhaps be safe to say, without this consideration, that the village territory in question is immune from appropriation as a special district by force of the words of negation found in Sec. 4728, under which, if at all, the proceedings in the probate court could be upheld. Whether a vote of the electors was necessary upon the subject, according as the valuation should pass beyond or fall short of the hundred thousand dollar mark, we do not regard as material. That question could only affect the passing of the territory from its old condition as a township district into its new status as a village district. It would not subject the territory in any event to invasion or entry by special district seekers; it was not open or unappropriated territory. It was foreclosed by what we consider the force of the statue, against entry in any form except that into which it would pass as it should emerge into- the village state. We are sure the statute contemplates no such thing as that a village, complete in all its parts, and wanting only the movement of its electors, towards forming a school board, may be seized, judicially, and thrust back, hopelessly, into a township or special district condition.

The probate court, besides being a statutory court, in the-first place, was acting in the proceeding under review specially only. Its jurisdiction, therefore, was a limited jurisdiction, and it is not'to be aided by presumption. Harrington v. Heath, 15 Ohio 483; Fee v. Iron Co. 13 Ohio St. 563; Handy v. Iron Co. 37 Ohio St. 366.

We also reach the same conclusion on another ground. We are not satisfied from the proof before us that the territory in question had a tax valuation of not less than $100,000, when the petition was filed in the probate court. The record in this respect is not satisfactory and we must require full proof on a jurisdictional fact like this. The addition claimed to have been made to the duplicate in order to reach the $100,000 mark, was of doubtful regularity and was designed to be only temporary in its effect.

We conclude and hold that the probate court, in the proceeding here challenged, was without jurisdiction of the subject thereof, and that whatever it did in that respect was inoperative and void.

This being our judgment, the election, also called in question in this action, falls under the same condemnation, and no discussion of its alleged invalidity on other and independent grounds, is deemed necessary.

The plaintiff is entitled to the relief prayed for and a perpetual injunction is awarded.

A decree may be drawn accordingly.

Shields and Powell, JJ., concur.


author: HENRY, J.

text:
    GAME LAWS.
    [Cuyahoga (8th) Circuit Court,
    February 27, 1905.]
    Marvin, Winch and Henry, JJ.
    Martin Walter v. State of Ohio.
    1. Hunting or Having in the Open Air Hunting Implements to Kill Birds and Animals Destroying Crops Violates Sunday Game Laws.
    One is guilty of violating Par. 4 of Sec. 15 of the game lav? (97 O. L. 463, 470), where he has in the open air on Sunday, implements for hunting or shooting, even though he is on his own land and seeking unprotected birds or animals which have been injuring his crops.
    2. Sunday Game Law not Unconstitutional.
    Game act 97 O. L. 463, 470, prescribing regulations to prohibit hunting on Sunday is not unconstitutional as depriving one of the right to tear arms and protect property, but is a valid exercise of the police power.
    Error.
    W. C. Rogers, for plaintiff in error.

      S. R. Keeler, for defendant in error.
   HENRY, J.

The plaintiff in error was convicted in a justice court of having violated Par. 4 of Sec. 15 of the game law, 97 O. L. 463, 470, in that he had, on Sunday in the open air, implements for hunting or shooting, to wit, a shot-gun and cartridges. He proved that the offense, if any was committed, was committed on his own land and that certain animals and birds not protected by law had been injuring his crops; but it was not expressly shown that he was then engaged in hunting the animals .and birds aforesaid. The law provides that:

“No person shall hunt or shoot,'or have in the open air for such purposes, any of the implements for hunting, or shooting •on any Sunday.”

The accused claims, first, that “such purposes” refers not to “hunting or shooting” generally but to the unlawful hunting or shooting of protected game. We do not think so. True, prior sections of the game law prohibit the hunting or shooting or protected game; but this section prohibits' any hunting or shooting whatever on Sunday, and it likewise prohibits the having in the open air on that day any implements for such purpose.

The accused claims, secondly, that these provisions should not be so construed as to prohibit hunting unprotected birds or animals that are damaging crops on one’s own land on Sunday. We think, however, that the general assembly plainly so intended. For it has in Secs. 12, and 16, expressly permitted the killing of certain protected game by any one who finds it damage feasant on his own premises, at any time, “except on Sunday.” In the face of such manifest intention we can not read into the statute a contrary intent. Martin v. State, 70 Ohio St. 219 [71 N. E. Rep. 640], is not in point, for the question there decided was simply the grammatical construction of a statute.

It is claimed, thirdly, that if the construction of the game law be such as we have just held it to be, it infringes the constitutional rights to bear arms and to protect one’s own property. The right to bear arms is reserved to the people in our federal and state constitutions as a means of self-protection against tyranny or oppression and as a defense against certain forms of private aggression. This right is not infringed by reasonabe police regulations designed to promote the peace and well-being of society, such for example as those that prohibit carrying fire arms into churches, courthouses, theaters and polling places. . Neither is it infringed by similar regulations prohibiting the use of such implements for purposes other than those necessary to the enjoyment of this constitutional right of self-protection. The huntsman’s avocation is not within the purview of Sec. 4 of the bill of rights.

The right of acquiring, possessing and protecting property guaranteed by ,Sec. 1 of the bill of rights is not an absolute right maintainable by every means and under all circumstances; for Sec. 19, of the same article provides that private property, though it shall ever be held inviolate, is nevertheless subservient to the public welfare. The general assembly possesses and has frequently exercised the power of regulating the enjoyment of the right of private property. Where such regulations are reasonably promotive of public peace, health or welfare, they have been upheld. It follows then that if Sunday quietude and rest, free from the noise and tumult of .the hunt, constitute a lawful object for the exercise of the police power, a regulation so admirably adapted to that end as is the prevention of hunting and shooting on that day, must necessarily be held to be both reasonable and valid. The general assembly having determined that this end is paramount, the right to protect crops from the depredations of birds and animals on that day must yield thereto, so far as the exercise of such right is prohibited.

The validity of Sunday laws in general is fully established by State v. Powell, 58 Ohio St. 324 [50 N. E. Rep. 900; 41 L. R. A. 854]. It is urged, however, that Sunday laws are invalid unless they except from their operation eases of necessity and charity and those of persons who conscientiously observe the seventh day of the week as the Sabbath. Canton v. Nist, 9 Ohio St. 439. This decision does not support that contention. All that was there decided is that a municipal corporation to which is delegated the power to pass ordinances of this character must exercise such power subject to the conditions upon which it is given. One of the conditions in that case was that such ordinances should conform to the state laws. The state laws contained the recited exceptions but the ordinance in question did not, and it was therefore held void.

If the law here in question shall in practice be found to be oppressive, the remedy is a resort to the authority by which it was enacted. In the present case the accused failed to prove that he was actually engaged in protecting his property. We have, however, examined the objections urged to the constitutionality of the law under which he was convicted and we hold that it does not violate either Sec. 1 or See. 4 of the bill of rights, and that it is a valid enactment. We see no error in the record here, and the judgments below are affirmed.

Marvin and Winch, JJ., concur.


text:
    PRINCIPAL AND AGENT.
    [Cuyahoga (8th) Circuit Court,
    March 6, 1905.]
    Marvin, Winch and Henry, JJ. •
    Emanuel Treuhaft, et al., v. Frederick L. Dambach.
    Vendor’s Contract Indemnifying Vendee Against Claim for Commissions not Admission of Earning of Commissions.
    ■ In an action by a real estate agent, for commissions earned, a contract by which the vendor indemnified the vendee against any claim for commission is not admissible in evidence as an admission on his part that such commissions had been earned.
    Error. .
   HENRY, J.

In the court below Dambach recovered a judgment against the defendants, Treuhafts, for agent’s commission on the sale of certain land by Treuhafts to a corporation known as the Girard Company. Of the various errors which the Treuhafts allege are shown by their bill of exceptions, we find but one that is deserving of serious consideration. Dambach had been concerned in the transaction, and at the time it was consummated it was known to both vendor and vendee that he claimed the agent’s commission thereon. This claim was repudiated by both parties to the sale, but inasmuch as it menaced the conclusion thereof the vendee, for the consideration of one dollar, was induced to indemnify the vendor against it, by an agreement in writing, which was offered and received in evidence for the avowed purpose of disclosing the interest of the Girard Company in the outcome of the action and thereby affecting the credibility of the testimony of that company’s officers. The admissibility of the agreement upon this theory is not questioned. The court below, however, in charging the jury, shifted from this ground to another and said:

It will not be within your province to render a verdict against the defendant Treuhaft simply on the grounds that they had taken an indemnity against any verdict that might be Tendered, but as bearing upon the frame of mind in which they were at the time, and how they regarded the claims of this plaintiff, and for no other purposes.”

The Treuhafts allege that this is ground for reversal, claiming that it erroneously allowed the jury to consider and construe the indemnity agreement as in the nature of an admission that perhaps they owed Dambach what he claimed. Counsel for plaintiff in error have failed to aid us by any citation of authority in this behalf. On principle, however, wé think that the procurement of indemnity against loss from the threatened enforcement of a claim can not of itself be considered as an admission, or in the nature of an admission of liability on such claim. A case directly in point is Lucas v. Nichols, 52 N. C. 32. Lawful efforts to buy one’s peace, whether by compromise or the procurement of indemnity or otherwise, if they do nor. amount to an express admission of a definite fact, ought in general to be privileged. In view of the proverbial vexations and uncertainties of litigation, any man may well dread being sued, even in a groundless action. May he not, therefore, without prejudice avail himself of any justifiable means to avert such jeopardy of his estate? It has been well said in an analogous case that “parties in danger of falling into ligitation often do this with great propriety and prudence.” Wallen v. Rossman, 45 Mich. 333 [7 N. W. Rep. 901].

No other theory is suggested by which the bearing of this indemnity agreement upon the frame of mind of the Treuhafts could be material, and we must conclude that the court below was understood by the jury to permit a finding that the procurement of the agreement by the Treuhafts was an admission of the latter’s liability to Dambach. This, we think, was error prejudicial to the defendants below, and for this error, and this only, the judgment of the court of common pleas is reversed.

Marvin and Winch, JJ., concur.


author: JONES, O. B., J.

text:
    MASTER AND SERVANT.
    [Hamilton (1st) Court of Appeals,
    January 23, 1915.]
    Swing, Jones and Jones, JJ.
    Industrial Commission of Ohio and Wallace D. Yaple, et al. v. David Brown.
    Word “Injuries” Includes Occupational Diseases.
    The language employed in the workmen’s compensation act is sufficiently broad to include occupational diseases, and inasmuch as the diseases sometimes contracted by industrial workers, due to the nature of their employment, are of a grave character, and are known to have been under consideration by the legislature which enacted the law, it must be concluded that it was the intention such diseases should be included in the provisions for disabled workmen.
    Error.

      Timothy 8. Kogan, Atty. Gen., Jas. L. Boulger, Asst., Thomas L. Pogue, Pros. Atty., John V. Campbell and Carl M. Jacobs, for plaintiffs in error.

      Kelley, Kuseman & Remhe, for defendant in error.
   JONES, O. B., J.

The question to be determined in this case is whether the '“injuries” provided for in the workmen’s compensation act of Ohio includes occupational diseases contracted in the course of employment.

The original workmen’s compensation act is entitled “An act to create a state insurance fund for the benefit of injured, and the dependents of killed employees, and to provide for the administration of such fund by a state liability board of awards.” It was passed and approved by the governor, June 15, 1911, and is found in 102 O. L. 524, including Sees. 1465-37 to 1465-79 G. C. This law made the creation of the state insurance fund voluntary with both the employers and the employees. It was amended by the act passed in 1913, filed in the office of the secretary of state March 17, 1913, and is found in 103 O.. L. 72, amending certain sections of the original law and adding thereto, including Sees. 1465-42 and 1465-106. This made the law compulsory for all employers employing five or more workmen or operatives, and included also persons in the service of the state, counties, municipalities or school districts.

Intervening between the two laws the constitution of Ohio was amended by the people at the election held September 3, 1912, by providing Sec. 35, Art. II, which authorized legislation to provide for compulsory workmen’s compensation.

It is proper to consider this constitutional amendment and these acts together in the determination of the legislative intent; and it is also allowable to consider the legisative history of the statute as an important element in construing it,' where any ambiguity is found. Lewis, Sutherland Stat. Constr. Sec. 470, p. 879; McLean v. United States, 226 U. S. 374, 380 [33 Sup. Ct. Rep. 122; 57 L. Ed. 260] ; Northern Pac. Ry. v. Washington, 222 U. S. 370, 380 [32 Sup. Ct. Rep. 160; 56 L. Ed. 237] ; Oceanic Steam Nav. Co. v. Stranahan, 214 U. S. 320, 333 [20 Sup. Ct. Rep. 671; 53 L. Ed. 1013].

Under the act passed May 10, 1910 (101 O. L. 231), commission was appointed consisting of “five electors of the state known to possess knowledge and training in the subject of employers’ liability laws and compensation of employees for injuries received in the course of employment * * * to make an inquiry, examination and investigation into the subject of a direct compensation law or a law affecting the liability of employers to employees for industrial accidents.”

This commission made a full, detailed report to the legislature, which has been printed, and which has collected a great mass of evidence and facts, and interesting matter in relation to the subject. On page Iviii Mr. Emile E. Watson, director of investigation, in connection with this work, used the following language in regard to occupational diseases:

“It is difficult to make any clear distinction between industrial accidents and occupational diseases. Often the latter are nesponsible for the former.”

Many plans were discussed by the commission, and the ■draft of a bill was submitted. The act, however, as finally passed was not identical with that recommended. Among the other recommendations made by the commission is the one found on page lxii containing the following language:

“Mr E. E. Watson, the investigator in chief of the commission, has called our attention in his report on the fatal accidents in Cuyahoga county, Ohio, to the' great need of investigation of occupational diseases which undermine the health of' working men and put the state to great expense in maintaining hospitals and caring for the little ones.
“Inasmuch as European countries recognize occupational diseases as an important factor in their industrial problem, and many of our own industries develop the same without any systematic provision for their care and prevention.
“The commission recommends that the general assembly take such action as is most wise to correct the dangerous conditions which have long existed and which injure the health and safety of industrial workers of this state. ’ ’

It is argued that because joint resolutions of the general assembly were adopted in 1911 and 1913, authorizing and directing the state board of health to make an investigation of occupational diseases, which resolutions are found in 102 O. L. 749, and 103 O. L. 975, therefore it might be concluded that no legislation had yet been had upon the subject. There is, however, an act for the prevention of occupational diseases with special reference to lead poisoning, passed April 18, 1913, found in 1.03 O. L. 819. This act, however, is for the prevention of occupational diseases and not for the payment of compensation to the victims thereof. It must be understood that these matters of ■ prevention and compensation are two entirely distinct subjects, and may be legislated for by entirely distinct and separate laws.

Section 35, Art. II of the Cons, as amended, is in the following language:

“For the purpose of providing compensation to workmen and their dependents, for death, injuries or occupational disease, occasioned in the course of such workmen’s employment, laws may be passed establishing a state fund to be created by compulsory contribution thereto by employers, and administered by the state, determining the terms and conditions upon which payment shall be made therefrom, and taking away any and all rights of action or defenses from employees and employers; but no right of action shall be taken away from any employee when the injury, disease or death arises from failure of the employer to comply with any lawful requirement for the protection of the lives, health and safety of the employees. Laws may be passed establishing a board which may be empowered to classify all occupations, according to their degree of hazard, to fix rates of contribution to such fund according to such classification, and to collect, administer and distribute such fund, and to determine all rights of claimants thereto.”

It is argued that the words in this section provide for at least two separate classes: “injuries,” which plaintiffs in error contend means accidental injuries, and “occupational diseases,” which is entirely distinct. It might as well be argued that compensation for death must likewise be entirely separate. The words used “providing compensation # * * for death, injuries or occupational diseases occasioned in the course of such workmen’s employment” do not necessarily mean separate prolusions. An injury, whether resulting from an accident or from disease, may result in death, so that the term “death” would cover both. The word “injury” in its etymological signification is sufficiently broad and inclusive to cover both an accidental injury and also an injury because of an occupational disease, and the use of the disjunctive “or” indicates that the two are in the alternative or used in an explanatory sense rather than that they are used as constituting two distinct classes. And this argument is strengthened by the further wording of the clause, as provision is made for “laws establishing a state fund,” not two distinct funds, but a single “state fund.” And the section further provides for the passage of laws establishing a board, not a board for accidental injuries and another board for occupational diseases, but one board “to classify all occupations according to their degree of hazard.” This language provides for the hazard of accident as well as the hazard of occupational disease; “to fix rates of contribution to such fund” (still providing for a single fund) “and to collect, administer and distribute such fund, and to determine all rights of claimants thereto.” While the language used in this section does not absolutely preclude the separation of these subjects into two matters of legislation providing for two or more boards and two or more funds, yet it indicates that,the whole subject, including all of the evils provided for, should be legislated for by the creation of a single board and a single fund to cover compensation for all “injuries.”

The argument is made that the use of the word “killed” in the title of the original act carries with it an indication that it means killed by accident. The definition given by Funk & Wagnall’s Standard Dictionary of the verb “kill” is: “to put an end to the animal existence of; put to death, as a human being.” And in a discussion of- the synonyms of the word, it is stated: “to kill, is simply to deprive of life, human, animal or' vegetable, with no suggestion of how or why.” In the ordinary use-of language it certainly is as proper to say that a man is killed by one of a number of repulsive and deadly so-called “occupational diseases” as by accident.

The word “injury” is defined by the Century Dictionary as “harm inflicted or suffered; mischief; damage; hurt.” It is defined by Judge Shelton of the supreme court of Massachusetts, Burns, in re, 105 N. E. Rep. 601, 603.

“In common speech the word ‘injury’ as applied to a personal injury to a human being, includes whatever lesion or change in any part of the system produces harm or pain, or a lessened facility of the natural use of any bodily activity or capability. ’ ’

There can be no question but that the word is broad enough in its usual and accepted meaning to cover not only an injury by accident, but also an injury caused by an occupational disease such as lead poisoning.

' It is hardly necessary to go through the different sections of the two Ohio laws to discuss the words used therein, but a careful examination will show that the word “injury” is used alone and not in connection with the term “accident” or “accidental.” In Section 36 (G. C. 1465-75.) of the original act and Sec. 43 of the later act (G. C. 1465-90) where an appeal is provided for, the word “accident” is used, but it is used only in one of three several clauses which read together do not exclude the ease of an occupational disease. It is urged that the word “inflicted” in this connection — “that the injury was self-inflicted” — indicates something too positive and active to apply to a disease. But recourse to the dictionary shows a definition given by the Century of the word “inflict”: “to lay on, or impose, as something that must be borne or suffered; caused to be suffered; as to inflict punishment on offenders.” The word is unusual in connection with disease, but is equally unusual in connection with an accident, and can undoubtedly be applied to one as well as to the other.

The first act under consideration here was before the Supreme Court in the case of State v. Creamer, 85 Ohio St. 349 [97 N. E. Rep. 602; 39 L. R. A. (N. S.) 694]. The only question before the court in that case was whether or not the act was constitutional, and it was held by the court to be constitutional. Nothing else was considered by the court. There was no question before it as to the extent of the act, whether it covered occupational diseases as well. Counsel in this case have, however, quoted the language used by Judge Johnson in two places in the opinion. On page 386:

“It provides a plan of compensation for injuries not wilfully self-inflicted, resulting from accidents to employes of employers, both of whom have voluntarily contributed to the fund.”

And on page 389, referring to the report of the commission before referred to, the following language:

“Substantially its conclusions are, that the system which has been followed in this country, of dealing with accidents in industrial pursuits, is wholly unsound.”

The matter under discussion by the court in that case, as was stated before, was the legislative power to deal with the matter, and not the extent of the provisions they had made by the law under consideration, and the words used were not intended to limit the operation of the law, but are perfectly consistent with the view we have adopted.

The difficulties that meet us in considering this question arise largely from the form of the English workmen’s compensation act, which was largely used as a guide in framing legislation by several states in this country including our own general assembly. Under the English law the claimant must have suffered an injury by accident. In Turvey v. Brintons, 1 K. B. 328, it was held that a workman who had become infected with anthrax, a disease from wool by means of the bacillus from the wool entering his system through the eye, had received an injury by accident and came within the terms of the act. But in Steel v. Cammell, 2 K. B. 232, a workman who had handled white and red lead, and became affected with lead poisoning, was held not to have received an injury within the terms of the act. The act was afterwards amended so as to specifically include certain occupational diseases, among which was lead poisoning, all set out and contained in a schedule. It did not attempt to declare any such occupational disease an accident, but without changing the general terms of the act, provided compensation therefor “as if the disease * * * were a personal injury by accident arising out of and in the course of that employment.”

A number of our states have adopted the English act as the basis of their workmen’s compensation laws, and have carried into the terms of the act words requiring the injury to be accidental. This is true in Michigan, where the title of the act. which under the terms of the Michigan law is an essential part provides “compensation for the accidental injury or death of employees.” The supreme court of Michigan in the case of Adams v. Color Works, 148 N. W. Rep. 485, which is relied upon by counsel for plaintiffs in error, discuss this subject fully, and come to the conclusion because of the terms of the Michigan act, that a case of lead poisoning does not come within its benefits.

The same is true as to the laws of New Jersey, where the term “injury by accident” is used in the law. In Liondale Bleach, D. & P. Works v. Riker, 85 N. J. Law 426 [89 Atl. Rep. 929], where the claimant was affected by a rash caused by contact with dampened goods being dyed, it was held that the petitioner was not injured by an accident and was therefore not within the terms of the act.

The Massachusetts law, however, is similar to that of Ohio in providing damages for a personal injury sustained by an employee in the course of his employment. The case of Hurle, In re, 104 N. E. Rep. 336 [217 Mass. 223] is directly in point. It authorized the payment, under the act, for loss of vision in both eyes, which resulted from an acute attack of optic neuritis caused by coal tar gases. In the opinion, Rugg, C. J., enters into a full discussion of the subject. At the close of his opinion he uses the following language, page 338:

“The difference between the English and Massachusetts acts in the omission of the words ‘by accident’ from our act, which occur in the English act as characterizing personal injuries, is significant that the element of accident was not intended to be imported into our act. The noxious vapors which caused the bodily harm in this ease were the direct production of the employer. The nature of the workman’s labor was such that they were bound to be thrust in his face. The resulting injury is direct. If the gas had exploded within the furnace and thrown pieces of cherry hot coal through the holes into the workman’s eye, without question he would have been entitled to compensation. Indeed there probably would have been common law liability in such case. There appears to be no sound distinction in principle between such case and gas escaping through the holes and striking him in the face whereby through inhalation the vision is destroyed. The learned counsel for the insurer in his brief has made an exhaustive and ingenious analysis of the entire act touching the words ‘injury’ or ‘injuries’ and has sought to demonstrate that it can not apply to an injury such as that sustained in the ease at bar. But the argument is not convincing. It might be decisive if accident had been the statutory word. It is true that in interpreting a statute words should be construed in their ordinary sense. Injury, however, is usually employed as an inclusive word. The fact remains that the word ‘injury’ and not ‘accident’ was employed by the legislature throughout this act. It would not be accurate but lax to treat the act as if it referred merely to accidents.”

This case also decides that— -

“At common law the omirring of a disease or harm to health is such a personal injury as to warrant a recovery, if the other elements of liability for tort are present.”

Another recent case decided by the supreme court of Massachusetts is directly in point: Johnson v. Accident Co. 104 N. E. Rep. 735 [217 Mass. 388]. The syllabus is as follows:

“ ‘Personal injury’ within the workmen’s compensation act, includes any injury or disease, as lead poisoning, arising out of or in the course of the employment, causing incapacity for work, and thereby impairing ability for earning wages.
“Though prior to, as well as after, the time the workmen’s compensation act went into effect, an employee, engaged as a lead .-grinder, absorbed lead into his system, he received a personal injury, within the act, only when the accumulated effect thereof •manifested itself and he became sick, therefrom and unable to work.
‘ ‘ The personal injury of a lead grinder, sickness incapacitating him from work, resulting from the accumulated effect of gradual absorption of lead into his system, arises ‘out of and in the course of his employment .within the workmen’s compensation act.’ ”

This case fixes the time of the injury as the time that he became sick from such disease and unable to work. This removes an objection made by counsel that the date of the injury would be uncertain, and it must be fixed under certain sections (among others, Secs. '25 and 26 of the first act, and 31 and 32 of the second act).

In the opinion of the court, therefore, in the light of its acts and proceedings the legislature must be deemed to either have included occupational diseases in the legislation already had, or to have postponed legislation in regard thereto until further light can be had upon the subject. As' we have found that the language employed in the acts under consideration is so broad in its terms as to include occupational diseases, and as the matter was under consideration by the legislature, and the evils arising from these diseases are of as grave a character and as worthy of prompt legislation as different forms of industrial accidents, and are as much entitled to be made a charge upon, the industry in every respect, we can but conclude that it was; the intention that compensation should be provided for such, occupational diseases by the present law. If such conclusion, should lie incorrect, the law can be amended so as to clearly exclude occupational diseases and to confine the compensation purely to industrial accidents. Even if the language of the1 act should be deemed susceptible to either construction, it is1 clear that that construction should be accepted which would provide compensation for those who have contracted occupational diseases in the course of their employment, rather than that which would permit them to be without remedy for the period required to provide such further legislation as might be deemed necessary to include them beyond all question.

The conclusion of the court therefore is that the court of common pleas was correct in finding that the plaintiff below is entitled to compensation under the act, and the judgment is affirmed.

Jones. E. H., J. concurs.

Swing, J., dissents.