author: HAYNES, J.

text:
    MUNICIPAL CORPORATIONS — EDUCATIONAL INSTITUTIONS — TRUSTS.
    [Lucas Circuit Court,
    February 1, 1902.]
    Haynes, Parker and Hull, JJ.
    State ex rel. Attorney General v. Toledo.
    1. Restrictions and Conditions upon Trusts eor Educational Purposes
    A person establishing an institution of learning of such a character and for such purposes as he deems proper, and such as he deems useful and beneficial to his fellow men, has a right to place such restrictions or conditions upon the trust which he creates as he sees fit; and the act of incorporation, while made under general laws, for the purpose of carrying out the trust, is subordinate and subsidiary to such trust. The purposes and objects of the donation must govern the institution, unless by some act of those who have powér over the fund, some change is made. The legislature has no independent power to change or alter the trust.
    2. English Statutes of Mortmain Never in Force in Ohio.
    The English statutes of mortmain were never in force in the English colonies and if they were ever considered to be so in the state of Ohio, it must have been from resolution by governors and judges in her territorial condition; and if so, they were repealed by the act of 1306.
    3. Municipal Corporation May Receive Property in Trust.
    Where a corporation has a legal capacity to take real or personal estate, it may take and hold it upon trust in the same manner and to the same extent as private persons may do, unless repugnant to the purposes for which it was created. Thus a municipal corporation has power to receive property in trust for educational purposes or for other purposes beneficial to its inhabitants, although such authority is not expressly conferred.
    4. Act Authorizing Acceptance not Unconstitutional.
    Under these rules Sec. 4105, Rev. Stat., as amended, 94 Ohio 241, extending Secs. 4095 to 4104, Rev. Stat., providing for the management and control of the universities of Cincinnati, to cities of the grade of Toledo, and providing for the acceptance by that city of a trust fund for educational purposes, is not unconstitutional for want of corporate power to receive and execute the trust, nor upon the ground that the act applies to no other city. Such a trust is for a specific, definite purpose, and is of a private rather than a general nature.
    5. Trustees of Toledo University not a Corporation.
    The board of trustees of the Toledo University, the powers and duties of which are prescribed by Sec. 4099, Rev. Stat., and made applicable to Toledo by Sec. 4105, Rev. Stat. is a legal board vested with certain powers, and is not a corporation. The objection that the laws conferring such powers are unconstitutional as conferring corporate powers is not tenable.
    6. Conveyance to City — Trustees not Deprived of Power.
    Sections 4099 to 4105, Rev. Stat, authorizing the trustees of Toledo University to convey to the city of Toledo, the trust property thereof and the execution of the trust for the purposes for which it was originally dedicated, do not deprive the trustees of their power under the original donation.

      1. Word “ Arts ” in Purposes of Institution Construed.
    The word “ arts ” as used in connection with the purposes of the University of Toledo “ to establish an institution for the promotion of knowledge in the arts and trades,” etc., has a broad signification and applies to whatever will qualify men artisans or artificers for the work which they desire to do, and it is immaterial whether this end be accomplished under an institution called a university or a polytechnic school provided the curriculum of study conforms to the objects and purposes for which the institution was founded.
    8. Tax Levy to Aid, is not Unconstitutional.
    Such an institution, founded upon private donation, remains a private school, though receiving money from the city upon levy made by the board of education. The aid thus given by taxation is simply feeding the uses and purposes of the trust in return for which a beneficial course of public instruction is given. Therefore, Secs. 4099 to 4105, Rev. Stat., providing a levy of taxes for such a purpose is not unconstitutional or in conflict with Art. 1, Sec. 19 of the bill of rights, providing that private property shall ever be held inviolate, but subservient to public welfare, etc.
    9. Quo Warranto Does not Lie Against Exceeding Tower.
    Quo warranto is a legal remedy and will not lie to oust the trustees of an educational institution, limited by the donor’s deed and its articles of incorporation to certain instruction, because they exceed their powers and extend the course of instruction beyond that originally intended. Injunction to restrain the pursuit of such studies is the only remedy.
    S®. Trustees are Necessary Parties.
    The trustees under the original grant from donor of the Toledo University are proper and necessary parties to a proceeding to enjoin instruction in certain branches of study.
    11. Courts oe Equity Have Jurisdiction in Such Cases.
    The doctrines founded upon 43 Elizabeth, c 4, in relation to charitable trusts to corporations, either municipal or private, have been adopted by courts of equity in Ohio, though not by express legislation; nor is that necessary to give courts of equity in Ohio jurisdiction.
    Quo Warranto Demurrer to Petition.
    W. H. A. Read, for relator.
    M. R. Brailey and C. A. Friedman, for defendant.,
   HAYNES, J.

(Orally.)

In this case a petition in the nature of an information in quo war-ranto has been filed in the name of • the state by the attorney general against the city of Toledo, setting forth at great and at proper length the history of what is called the University of Toledo, and at the conclusion plaintiff prays “ for the. advice of this court in the premises, and that the defendant be compelled to answer to the state of Ohio by what purport it claims to have, use and enjoy the liberty, privilege and franchises of conducting a university in the city of Toledo, and of devoting the proceeds of the several trusts herein set forth, and of the funds derived from taxation, to such purpose, and that the defendant be ousted and excluded from any and all authority to conduct and maintain said Toledo University under and in. pursuance of the several acts and sections of the. Revised Statutes of Ohio hereinbefore set forth, and that the said defendant be compelled to answer to the state of Ohio by what purport it claims to have, use and enjoy the liberty and franchises of conducting the so-called polytechnic school as a department of the said Toledo university, with the curriculum herein set forth, and of devoting the proceeds of the said respective trusts, and of the levies hereinbefore mentioned, upon the property, real and personal, in said city of Toledo for the said purpose; that the said defendant be ousted and excluded from any and all authority to use said fund, or any portion thereof, whether the same be derived from said trust, or from the proceeds of said taxation for the purpose of operating, maintaining and conducting said polytechnic school with said curriculum.”

Counsel for the relator have, with commendable industry, set forth at length the various deeds, acts of incorporation, and statutes under which the present so-called university is conducted. A demurrer has been interposed by the city of Toledo to the petition, which raises substantially all the questions, I think, that can be raised, in regard to the matters in controversy.

We realize the importance of the questions involved to the institution and to the city of Toledo, and we have endeavored to give to them a very full, careful, and thorough examination, I shall not be able, however, to review at any very great length the various authorities cited, or, perhaps, the various questions that have been raised. I shall content myself with stating as briefly as possible the points upon which we think the case turns, and cite a very few authorities upon those points. I shall necessarily be rather long. It may tire your patience, but there are so many matters involved it is impossible to state them clearly unless at some length.

The petition sets forth that the defendant has heretofore misused and abused, and is now misusing and abusing, its franchises, privileges, and rights conferred upon it by law, and claims to have, hold and exercise franchises, rights and privileges in contravention of law, as hereinafter more thoroughly and completely set forth. That on October 12, 1872, there was incorporated under the general laws of the state of Ohio, a corporation known as the Toledo University of Arts and Trades, the incorporators thereof being Jesup W. Scott, Frank J. Scott, William H. Raymond, Sarah R. L,. Williams, Charles W. Hill, and Albert E. Macomber. That under said articles of incorporation there was then and there created for the purpose of receiving and executing certain trusts hereinafter mentioned and described, the following trustees: William H. Scott, Frank J. Scott, Maurice A. Scott, Richard Mott, Sarah R. E. Williams, William H. Raymond, Albert E. Macomber, Charles W. Hill, and the following ex officio members to-wit: the superintendent of the public schools of Toledo, the mayor of the city of Toledo, and the governor of the state of Ohio.”

It states that the third paragraph of the articles of incorporation declared the fund to accept the trust for which this corporation has been formed, consists of 160 acres of land (describing it), the same being valued at $80,000 and being the gift of Jesup W. Scott; also such other funds or property as from time to time be given or acquired for the purpose of this trust. The sole object of said incorporation and of the trust set forth in the fourth of said articles of incorporation is as follows, to-wit:

“ The object of this trust is to establish an institution for the promotion of knowledge in the arts and trades and their related sciences by means of lectures and schools; by extensive collections of models and representative works of art; by geological and mineralogical or other cabinets and museums that relate to the mechanic arts, and whatever else will serve to furnish, artists and artisans with the best facilities for a high culture in their professions; also to furnish instruction in the use of phonographic characters and to aid their introduction into more general use.”

Then follows this paragraph to which I call attention, because we may have to refer to it hereafter:

“ Other branches of learning not included in the above specifications may become a part of the institution when endowed so as to be sustained without the use of the trust funds hereinafter provided. All the advantages offered by this institution are to be free of cost to all pupils, who have not the means to pay for the same, and all others are to pay such tuition and other fees as the trustee may require. The’ institution shall be open to pupils of both sexes alike.”

These articles were duly executed, and recorded upon October 22, 1872. Seven days thereafter Jesup W. Scott and Susan Scott, his wife, executed and delivered to the trustees a certain conveyance, as follows, the material part, after giving a description of the lands conveyed, being the following:

This conveyance is made to the said trustees in trust for the following objects and purposes, and subject to the following conditions, to-wit: To establish, an institution for the promotion of knowledge in the arts and trades and the related sciences, by means of lectures and oral instruction; of models and representative works of art; of cabinets of minerals; of museum instructive of the mechanical arts; and of whatever else may serve to furnish artists and artisans with the best facilities for a high culture in their respective occupations, in addition to what are furnished the public schools of the city; also to furnish instruction in the use of phonographic characters and to aid their introduction into more general use, by writing and printing, and also to encourage health-giving, invigorating recreations. All the advantages of the institution shall be free of cost to all pupils, who have not the means to pay, and all others are to pay such tuition and other fees and charges as the trustees may require, and be open alike to pupils of both sexes. All incomes from leases of lands herein conveyed shall after paying necessary charges and improvements, be expended by said trustees to accomplish the objects herein stated.”

Then it provides for platting and dividing the lands, and for rent, ing the same.

The allegation of the petition follows “ that said conveyance was made solely and only for the purpose as set forth therein, as follows, to-witand repeats the declarations in regard to the parts that I have already read. The deed was duly recorded.

Afterwards, to-wit, on November 39, 1872, said Jesup W. Scott and Susan Scott, his wife, duly executed and delivered to the said trustees a conveyance referring to said conveyance of October 21, 1872, in the following words — and here follows the statement of the deed:

“Whereas, in our deed of trust to found the Toledo University of Arts and Trades, bearing date October 21,1872. * * * We have limited the employment of income to furnish facilities for technical education in addition to those furnished by the public schools * * * Now we do hereby qualify said limitation so that these funds may be used in conjunction with and as a part of any educational fund for the promotion of the kind of education embraced in the deed of trust which may hereafter be furnished by state or city, or by the general government of the United States, subject to such conditions and agreements as the trustees of the' university and the authorities having the disbursement of the fund may unite in making.”

Note this: “We * * * hereby qualify said limitation so that these funds may be used in conjunction with and as a part of any educational fund for the promotion of the kind of education embraced in the deed of trust which may hereafter be furnished by state or city, or by the general government of the United States,” etc. And the allegation of the petition is that this deed “ was made for the purpose as therein set forth, of modifying the conditions by the following words,” being the words I have read.

“That shortly subsequent thereto William H. Raymond gave in trust to said University of Arts and Trades, for the purpose of carrying out the trust in accordance with the aforesaid articles of incorporation, the sum of $15,000. That afterwards, to-wit, on the 5th day of February, 1874, Susan W. Scott, widow of said Jesup W. Scott, William H. Scott, Frank J. Scott, and Maurice A. Scott, heirs at law of said Jesup W. Scott, executed and delivered their certain warranty deed, whereby they conveyed certain property to the said trustees of the University of Arts and Trades, in words and figures as follows : ”

This was a warranty deed without any qualifications.

“That on April 1, 1873, Albert E. Macomber and wife conveyed certain real estate in said conveyance contained to said trustees of the University of Arts and Trades in a duly executed and delivered conveyance in the following words and figures, to-wit: ”

Then follows the deed, describing the premises, and is also a warranty deed made to the trustees, without any other qualification.

“ That by the said several conveyances there was transferred to the said University of Arts and Trades the several pieces and parcels of land in said conveyances described, the same to be used solely and only for the purposes set forth in the said articles of incorporation and in the said deed of Jesup W. Scott and Susan W. Scott, dated October 21, 1872, and the qualifications thereof set forth in the deed dated December 19,1872; said restrictions and qualifications being identical with those set forth in the articles of incorporation of said Toledo University of Arts and Trades.”

Up to that time we have a corporation formed, called the Toledo University of Arts and Trades, for certain specific purposes. The contention of counsel for the relator is that these articles of incorporation and these deeds stamp their character not only upon the whole of the subsequent acts that have been passed, but upon all that has been done for the purpose of maintaining and continuing this university; that their limitations and restrictions are still binding and obligatory upon the institution which is called the Toledo University.

We agree with counsel in that contention. The corporation that is here formed, is a corporation formed for the purpose of carrying out the wishes and trust of its founder, Jesup W. Scott. He sought to establish an institution of learning of such a character and for such purposes as he deemed proper, and which he deemed to be useful and beneficial to his fellow men. He had a right to place such conditions upon the trust which he created as he saw fit. The act of incorporating the university while made under the general laws of the state of Ohio, was made for the purpose of carrying out and facilitating and protecting in perpetuity the objects of this trust fund, and is subsidiary to that trust.

This question has been argued and decided in the very celebrated case, Dartmouth College v. Woodward, 17 U. S. (4 Wheat.) 518. It will be remembered that Dartmouth college was originally founded for the purpose of educating Indian children in Christianity, and also for some further purposes of education therein specified. It was subsequently sought by the legislature of the state to take control of that school and appoint new trustees. The case came up and was argued, and was finally appealed to the Supreme Court of the United States. The argument of Mr. Webster in the case was very full and complete upon this point; that the donor of the fund and the founder of the trust could not only stamp upon that trust the characteristics which he desired, but that no person had a right to change or alter them, that no state authority had a right to change or alter them. Although a corporation was formed under the authority of the king of England, still the position seemed to be well sustained, that the act of incorporation was simply an incident to the character and use of the trust, and was made not to control the trust, but for the purpose of perpetuating and protecting the trust itself, and was subservient to the objects and purposes of the trust, as declared by the founder of the trust, or donation. That view was taken in the very able opinion of Chief Justice Marshall.

So that the purpose of Mr. Scott, the purposes and objects of this donation, as stated in his deed of trust, the purposes of the donation, as perpetuated and carried out by the articles of incorporation, which were in accordance with the deed of trust, must govern this institution all the way through, unless by some act of those who have power over the fund, — the heirs at law, for instance, of Jesup W. Scott, or by the trustees, acting within their corporate power, — some change is made.

The legislature had no power to change or alter this trust without the consent of the trustees, nor did they do so, or profess to do so.

The petition sets forth that there was passed for the government of the city of Cincinnati on April 16, 1870, a certain act of the legislature, whereby the common council of the city of Cincinnati, described as a “ city of the first class, now having a population of 160,000 or more,” was authorized and empowered to receive donations of land that might have been conveyed in trust, or should thereafter be conveyed in trust, for the purpose of establishing schools and universities. I shall not go through the reading of the law; it is too lengthy. Subsequently, on April 16, 1878, an act was passed (being Sec. 4105, Tit. Ill, Chap. 14 Rev. Stat.), by which the Cincinnati act was made applicable to the city of Toledo, except that the board of directors shall consist of thirteen members and the rate of taxation to be assessed and levied shall not exceed one-half of one mill on the dollar of the taxable property of said city.” In brief and in substance that act is, that in this city and as to it, “ The common council of the city of Toledo, in the name and behalf of the said city, may accept and take any property or fund heretofore or hereafter given to the city, for the purpose of founding, maintaining or aiding a university, college or other institution for the promotion of free education, and upon such terms, conditions or trusts not inconsistent with law, as the common council may deem expedient and proper for that end.”

This statute enables the trustees of the trust fund to make a conveyance ; and that is true, as we understand it, in regard to the trustees of this university; the trustees were authorized to make a conveyance of the property that had been deeded to them by Jesup W. Scott to the city of Toledo for the purpose of carrying out the trust. They were not deprived of the trust in that the city undertook to take it away from them or deprive them of it without their consent, but they were authorized to take this step. (And I may say in passing that that was finally done by a resolution of the board, in which board the heirs at law of Jesup W. Scott were members, and in which they were, it seems, consenting.)

Briefly, then, this property was authorized to be conveyed to the common council of the city of Toledo in trust for the uses and purposes to which it had originally been dedicated; and it was provided that there should be a board of trustees, originally thirteen in number, afterwards reduced to five. Section 4099, Rev. Stat., provides :

“As to all matters not herein or otherwise provided by law, the directors shall have all the authority, powers, and control vested in or belonging to said city, as to the management and control of the estate, property, and funds given, transferred, covenanted or pledged to the city for the trusts and purposes aforesaid, and the government, conduct, and control of the university, college or institution so founded; they may appoint a clerk, and all agents proper and necessary for the care and administration of the trust property, and the collection of the income, rents,' and profits thereof, may appoint the president, professors, tutors, instructors,-agents, and servants necessary and proper for such university, college or institution, and determine their compensation, may provide all the necessary buildings, books, apparatus, and means and appliances, and pass all such by-laws, rules, and regulations concerning the president, professors, tutors, instructors, agents, and servants, and the admission, government, and tuition of students, as they deem wise and proper; but they may, by suitable by-laws, delegate and commit the admission, government, management, and control of the students, course of studies, discipline, and other internal affairs of such university, college, or institution, to the faculty which the directors may appoint from among the professors.”

On January 18, 1884, the trustees of the Toledo University of Arts and Trades passed a resolution as follows:

“ Resolved, that the entire property included in the trust under which the corporation is organized and the subsequent donations in trust received from William H. Raymond, Susan Scott, William H. Scott, Frank J. Scott and Maurice A. Scott be tendered to the city of Toledo on condition that the city will assume the trust under and by virtue of the power conferred in sections 4095 to 4105 inclusive of the Revised Statutes of Ohio.”

Subsequently the common council of the city of Toledo passed the following resolution:

“ Resolved, that the proposition made by the trustees of the University of Arts and Trades be, and the same is hereby, accepted.”

On February 28,1884, the president of the trustees of the University of Arts and Trades was authorized to make a deed of conveyance of all the trust property belonging to the said University of Arts and-Trades to the city of Toledo, and on July 3,1884, the said trustees of the Toledo University of Arts and Trades, by its president, Richard Mott, cluly conveyed all its real estate and other property to the city of Toledo, and that deed of conveyance is set out in the petition. The concluding part is as follows:

“ All of the said lots and parts of lots being in the city of Toledo, in the county of Rucas and state of Ohio. Said real estate is hereby conveyed to the city of Toledo subject to the conditions upon which the same was received by the University of Arts and Trades, namely, the promotion of industrial education.”

The petition then recites that “ on March 18,1884, the common council of the city of Toledo established a university under an ordinance duly passed therefor in words and figures as follows : ”

Section 678 reads as follows:

“ There is hereby established a university for the promotion of free education of the youth of both sexes within the city under and by virtue of Chapter 14, Title III, Revised Statutes of Ohio, to be styled and known as The Toledo University.”

This is followed by several other sections, and Sec. 683 reads:

“ The first department of such .university to be opened shall be designated and known as the Manual Training School, and shall be devoted to instruction in the practical arts and trades.”

The petition then states that immediately after the passage of the said ordinance, the said city, in accordance with the provisions of Sec. 4098, Rev. Stat., appointed certain directors of the university, and the said directors organized under said appointment, and proceeded to administer the trust, etc. It then recites the fact that a lease was made with the city board of education by the directors for a site for the manual training school, upon which a building was erected. The preamble of that lease is as follows:

“ Whereas, it is considered desirable that manual instruction should be furnished to the pupils of the Toledo high school in addition to the studies now pursued, and the Toledo University having made a tender to the board of education of the city of Toledo, Ohio, to furnish said instruction in manual training, and to construct and equip a suitable building for such purpose, providing a site for the erection of such building can be obtained convenient to the Central high school, and it being considered that the most desirable site for such manual training school building is a point immediately adjacent to said high school building, on the northeast side.”

They therefore proceeded to make a lease, and upon that a building was erected, in which a manual training school has been conducted for a great many years.

The petition states that there was also passed an act, by the general assembly, on April 11, 1885, amending Sec. 4108, Rev. Stat., reading as follows:

“ The common council of the said city may set apart and appropriate as a site for the buildings and grounds of the university, college or institution so founded, any public grounds of the city not especially appropriated or dedicated by ordinance to any other use or purpose, any law to the contrary not withstanding; and the board of education of said city may also for a like purpose set apart, convey, or lease for a term of years any ground owned by such board.”

The petition avers that the grounds were set apart and used, and were a part of the grounds owned by the board of education. It then sets up a decree of the court of common pleas in regard to the platting of the land, which in our judgment is immaterial at this point, and which I shall pass. It went to the platting of the one hundred and sixty acres, and the manner in which it should be platted.

On April 9, 1873, 70 O. U- 117, the legislature passed an act entitled An act supplementary to an act to enable cities of the first class to aid and promote education, passed April 16, 1870,” reading as follows ;

“ Be it enacted by the general assembly of the state of Ohio, that the above act shall be applicable to cities of the first class with less than 90,000 and more than 31,500 inhabitants by the last federal census; provided, that in such cities the number of directors shall consist of thirteen, and, provided, that the rate of'taxation to be assessed and levied on the taxable property of said city shall not exceed one-half of one mill on the dollar valuation thereof, to be applied by said board of trustees to the support of such university, college' or institution of learning.”

And that is recited in the petition.

Section 4105, Rev. Stat., as amended April 6,1900, 94 O. U. 241, was amended so as to read as follows :

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

Thereupon five directors were appointed, and the relator says they are now exercising their powers of office.

Section 4104, Rev. Stat., provides that the board of education of the city may, upon the application of said board of directors, assess and levy a tax on the taxable property of the city, and this petition avers that it has been the habit of the board of education to determine the amount that is necessary to be raised upon the request of the directors of the university, and that there has been levied from time to time, from 1884 to 1899 various sums, which are set out in detail in the petition.

It then sets forth—

“ That shortly after the appointment and qualification of the said board of directors of the Toledo university under the provisions of the act of April 16, 1900, the said directors of the said Toledo University established a school under the name of the Toledo Polytechnic School as a department of said Toledo University, in which department they propose and have since conducted a school wherein is taught secondary and academic studies, similar and like unto those ordinarily taught in high school and college preparatory departments, and courses of studies not included in or allowed by the several trusts hereinbefore set forth; and such polytechnic school is not for the promotion of knowledge in arts and trades and the related sciences, and is not designed to furnish artists and artisans with best facilities for a high culture in- their respective occupations and industrial education, and is contrary to'the trusts heretofore referred to.”

Then it sets forth their curriculum, and states that there is great doubt about the right of the board of trustees to do that, and asks that that may be inquired into. It also avers that “ at the time of the passage of said several acts the city of Toledo was the only city of the third grade of the first class in the state of Ohio, and no municipality did or could become a city of the third grade of the first class between April 16,1900, and thirty days thereafter.” And then the petition proceeds to aver that the various acts with regard to the city of Toledo and this school, and the acts of the common council under the same, are in violation of various articles of the constitution of the state of Ohio, especially Sec. 1 of Art. 13, and Sec. 6 of Art. 13, which relate to incor-porations ; and that the levying of taxes for the purpose of maintaining this school is in conflict with Sec. 19, Art. 1 of the bill of rights of the constitution. The petition sets forth that these various acts are acts of a general nature, but not of uniform operation throughout the state, and is in violation of Sec. 26, Art. 2 of the constitution of the state. It states these various propositions in various forms, and winds up with a prayer which I have already read.

We have seen that the conveyances were made by the board of trustees to the city of Toledo in regard to these trusts, were made upon the same conditions and same trusts as they had been received by the trustees or directors from Jesup W. Scott. And they were accepted by the city of Toledo upon the same trusts.

It is claimed here first that these acts are wholly unconstitutional, and that all these various acts of the legislature that permitted the city of Toledo to receive these trust funds or to act upon them are in violation of the constitution, and are void. That question is an important one, and has been very fully argued by counsel for relators, and upon the first view it seems to be a very strong point. We have discussed it at some length, and the question was raised in our consultation room as to the character of this transaction between the board of trustees and the city of Toledo, and as to the character of the powers that were sought to be conferred by these acts on the city of Toledo; and the question was raised whether or not the city was in fact receiving any corporate power by virtue of these statutes, and was exercising any corporate power in attempting to carry them out.

We therefore commenced some researches in regard to that question, and were rewarded by finding some cases that we think shed a good deal of light on this question.

In chapter 15, Sec. 437, of Dillon on Municipal Corporations (2 ed.; in a later edition, Sec. 567), the question is discussed as to the power of municipal corporations to receive property upon trust of the character of which th's was, and their right to execute those trusts and to carry out the purposes of the trust; and.the general principles were laid down there that they have the right to receive property in trust, at least along the line of the general powers of the corporation, or for purposes that would be beneficial to the inhabitants of the corporation, even if they were to extend a little beyond the ordinary powers of the corporation. More than that: We came upon Perin v. Carey, 3 O. F. D. 634; [65 U. S. (24 How.), 465], a decision of the Supreme Court of the United States in which certain parties had invoked the action of the courts in regard to the very colleges, as we understand it, that are referred to in these acts that I have cited, whereby powers were conferred upon the city of Cincinnati to receive trusts and exercise them, etc. The case is more generally known, however, as the McMicken will case. Charles McMicken, a citizen of Ohio, made his will in 1855, and died in March, 1858, without issue. So it will be seen that this will was made, and that all the matters in controversy in that case arose and occurred after the adoption of the constitution of 1851, and before this act was ‘passed which has been referred to. The case was argued by Mr. Headington and Mr. Ewing on behalf of the heirs, and Mr. Pugh and Mr. Perry and Mr. Talt on behalf of the city. Mr. Taft and Mr. Perry also filed very extensive briefs. It was very fully and ably argued by these masters of the law. The case was one in equity, and was a bill filed by the heirs of Charles McMicken to set aside the will. It sets forth a great variety of reasons why the will should not be carried out or executed, and why the city of Cincinnati could not receive the same or execute the trust. These points were all argued, eventually, at great length and with great learning. The opinion was delivered by Mr. Justice Wayne, and he devoted about twelve pages of the opinion to a general discussion of bequests and trusts, and the rights of corporations to receive the same. I will read a portion of it:

"The testator says : ‘ Having long cherished the desire to found an institution where white boys and girls may be taught, not only a knowledge of their duty to their Creator and their fellow men, but also receive the benefit of a sound, thorough and practical English education, and such as might fit them for the active duties of life, as well as instruction in all the higher branches of knowledge, except denominational theology, to the extent that the same are now or may be hereafter taught in any of the secular colleges or universities of the highest grade in the country, I feel grateful to God that through his kind providence I have been sufficiently favored to gratify the wish of my heart.’ ” I would say that this will contains much broader provisions than in the case at bar.
" ‘ I therefore give, devise, and bequeath to the city of Cincinnati, and its successors, for the purpose of building, establishing and maintaining, as far as practicable, after my decease, two colleges for the education of boys and girls, all the following real and personal estate, in trust forever, to-wit: ’ describing the property in nine clauses of the thirty-first article of the will.”

■ The thirty-fourth article of the will is a direction that the Holy Bible of the Protestant version, as contained in the Old and New Testaments, shall be used as a book of instruction in the colleges. Next, it is declared that in all applications for admission to the colleges, that preference should be given “ to any and all of the testator’s relations and descendents, to all and any of his legatees and their descendants, and to Max McMicken and his descendants. ” “ Then he directs : ‘ If after the organization and establishment of the institution,’ and the admission of as many pupils as in the discretion of the city may have been received, there shall remain a sufficient surplus of funds, that the same shall be applied to making additional buildings, and to the support of poor white male and female orphans, neither of whose parents are living, etc., etc., preference to be given to my relations and collateral descendants, etc., etc., that they were to receive a sound English education, etc., etc.; and afterwards, directions are given as to the mode of receiving such poor white male and female orphans, and the privileges to be allowed under certain circumstances.’

“The testator, in the thirty-fourth article of his will, declares that—
“ ‘ The establishment of the regulations necessary to carry out the objects of my endowment I leave to the wisdom and discretion of the corporate authorities of the city of Cincinnati, who shall have power to appoint directors to said institution.’ ”

It was his intention primarily to establish two colleges for boys and girls, and then the third for the support of poor white male and female orphans, neither of whose parents were living, and who were without any means of support, who were to receive a sound English education. This third school was to be founded by applying to the purpose the surplus funds which might remain after the complete organization of the ■college.

I shall take the liberty of reading at some length from the decision, because it states the law better than I can state it:

“ We shall now consider the objections which were made by the counsel for the appellants to the validity of the devises and bequests of Mr. McMicken, that the city of Cincinnati has not the capacity to take them and to execute the trusts of the will, and that no other trustee can be appointed.
“ In our view, the answers to them from the opposing, counsel were decisive. No incapacity of the city of Cincinnati to take in this instance can be inferred from its charter. It has the power to acquire, to hold, and possess, real and personal property, etc., etc., and to exercise such other powers and to have such other privileges as are incident to municipal corporations of a like character and degree, not inconsistent with this act of the general laws oi the state. Swan, 960. It was admitted in the argument, that the section just read confers power upon the city to acquire and hold real estate for the legitimate objects of the city. These objects are enumerated in many particulars directly connected with its powers to govern the city, and in the 19 sections following that cited there is not a sentence or word from which an inference can be made that the legislature meant to deprive the city of Cincinnati from taking and administering charitable trusts. Indeed, such a course would have been inconsistent with the legislature’s caution in its enactments under the constitution of 1851. It would be doing great injustice to the legislature even to suppose that it meant, in passing an act for the government of corporations, under the provisions of the constitution, that it designed to encroach upon that of the judiciary, or to alter the whole power of chancery in respect to charitable uses, and the long-established practice of corporations, private and municipal, to receive them as trustees, and to administer them according to the intention of donors. So far from any intention to interfere with such a privilege in the city of Cincinnati, we infer from previous and subsequent legislation that it was to have an important agency in carrying out the 6th article of the constitution in respect to education. We allude to the act for the better organization and classification of the common schools in Cincinnati and Dayton, passed in the year 1846 (Ohio Focal Daws, 91), and to that of January 27, 1853, both now in force. In the first, the trustees and visitors of common schools in the city of Cincinnati, with the consent of the city council, have the power to establish and maintain out of any funds under the control of the trustees and visitors such other grades of schools than those already established as they may deem expedient for such purpose. Further, by Sec. 68 of the state school Daw, Swan, 852, passed in January, 1856, power is given to township boards of education, and their successors in office, to take and hold in trust for the use of central and high schools, or sub-district schools, in the township, any grant or donation, or bequests of money, or other personal property, to be applied to the support of such public schools. Again, in 38 Ohio Laws, March 26,1856, it is declared that whenever any one gives lands or money for the endowment of a school or academy, not previously established, and shall not provide for the management of it, that the court of common pleas shall appoint trustees with corporate- powers. That act provides also for the management of charities when the founders have not given directions r and another act, Swan, 193, 1856, provides how colleges may be incorporated by their own act, and how trustees of an endowment may also become a corporation by their own act. These acts have been cited to show that Ohio, in her legislation, has made municipal corporations trustees for charity devises and bequests, and that the management of them is a duty. They also prove that the privilege to take them is one given and imposed by law.
“After a close examination of all the legislation of Ohio relating to corporations, and its system of education, we have not been able to detect any sentence or word going to show any intent to alter the law as it stood before the adoption of the constitution of 1851, in respect to a corporation receiving and taking, either by testament or donation, property for a charity, or to prevent them from having trustees for the execution of it according to the intention of donor. To take such privileges from them can only be done by statute expressly, and not by any implication by statutes, or from any number of sections in statutes analogous to the subject, containing directions for the management of corporations. The law is, that where the corporation has a legal capacity to take real or personal estate, then it may take and hold it upon trust in the same manner and to the same extent as private persons may do. It is true that if the trust be repugnant or inconsistent with the proper purposes for which' it was created, that may furnish a good reason why it may not be compelled to execute it. In such a case, the trust itself being good, will be executed under the authority of a court of equity. Neither is there any positive objection, in point of law, to a corporation taking property upon trust not strictly within the scope of the direct purpose of its institutions, but collateral to them, as for the benefit of a stranger or another corporation. But if the purposes of the trust be germaine to the objects of the corporation, if they relate to matters which will promote and perfect these objects, if they tend to the suppression of vice and immorality, to the advancement of the public health and order, and to the promotion of trade, industry, and happiness, -where is the law to be found which prohibits the corporation from taking the devise upon such trust in a state where the statutes of mortmain do not exist, the corporation itself having an estate as well by devise as otherwise? We know of no authority which inculcates such a doctrine, or prohibits the execution of such trusts, even though the act of incorporation may have for its main objects mere civil and municipal government and powers. Vidal v. Girard, 43 U. S. (2 How.) 126, 190. This court announced the same principal again in the case of McDonough v. Murdoch, 56 U. S. (15 How.) 367, with other and new illustrations, and with direct reference to the capacity of a corporation to take such trusts, if within its general objects, or such as were collateral or incidental to its main purpose. There is nothing in the Ohio statute of wills to pre. vent corporations from taking by devise. Much was also said in the argument denying the legality of the trusts, in consequence of the uncertainty of the beneficiaries, and because the relatives of the testator were to have the preference. As to the first, white boys and girls make as distinctive a statute of a class who are to be the first beneficiaries of the trust, and the words of the 36th section, that ‘ if any surplus shall remain, etc., it shall be applied to the support of poor white male' and female orphans, neither of whose parents are living, and who are without any means of support,’ makes as certain a description as could have been expressed.
“ It seems to us, now, that the objection relative to the condition of the beneficiaries is at variance with the established primary rule in respect to a charity, not only with reference to the statute of 43 Elizabeth, c. 4, but to a charity under the common law. The answer is, that a charity is a gift to a general public use, which extends to the rich as well as to the poor. Jones v. Williams, Amb., c. 651. Generally, devises and bequests having for their object establishments of learning are considered as given to charitable uses, under the statute of Elizabeth, Attorney General v. Earl of Eansdale; but that does not make a devise good to a college for purposes not of a collegiate character, intended chiefly to gratify the vanity of the testator. And we cannot be mistaken, that a devise to a corporation in trust for any person is good, and will be effectuated in equity. 1 Bro. Ch. Cas., 81. And a fortiori, a devise to a charitable corporation, in trust for any other charitable use, would be good. All property held for public purposes is held as a charitable use, in the legal sense of the term charity. Law Library, Vol. 80, p. 116, Grant on Corporations. „
" We will not pursue the subject further: for, without having discussed either of the six objections made in the bill of the complainants, or the points made by counsel in support of the demurrer to the bill, numerically, both have been under our examination; lor all were appropriately in the argument of the cause, and in this opinion we meant to decide them all, and have done so.
“ We cannot announce them more expressively than they were urged in argument:
“ 1. The doctrines founded upon 43 Elizabeth, c. 4, in relation to charitable trusts to corporations, either municipal or private, have been adopted by the courts of equity in Ohio, but not by express legislation; nor was that necessary to give courts of equity in Ohio that jurisdiction.
“ 2. The English statutes of mortmain were never in force in the English colonies; and if they were ever considered to be so in the state of .Ohio, it must have been from that resolution by the governor and judges in her territorial condition; and if so, they were repealed by the act of 1806..
“ 8. The city of Cincinnati as a corporation is capable of taking in trust devises and bequests for charitable uses, and can take and administer the devises and bequests in the will of C. McMicken.
“ 4. Those devises and bequests are charities, in a legal sense, and are valid in equity, and may be enforced in equity by its jurisdiction in such matters without the intervention of legislation by the state of Ohio.
“ 5. McMicken’s direction, in section 32 of his will, that the real estate devised should not be alienated, makes no perpetuity in the sense forbidden by the law, but only a perpetuity allowed by law and equity in the cases of charitable trusts.
“ 6. There is no uncertainty in the devises and bequests as to the beneficiaries of his intention; and his preference of particular persons, as to who should be pupils in the colleges which he meant to found, was a lawful exercise of his rightful power to make the devises and bequests.
“ 7. The disposition which he makes of any surplus after the complete organization of the colleges is a good charitable use for poor white male and female orphans.
“.8. Legislation of Ohio upon the subject of corporations, by the act of April 9, 1852, does not stand in the way of carrying into effect the devises and bequests of the will.
This cause was argued on both sides with such learning and ability, that we feel it to be only right to the profession to acknowledge the assistance given us in forming our conclusions; and our only regret is, that it should necessarily have extended this opinion to a greater length than we wished it to be.”

We think that case decisive of this upon the principal questions involved. We think that case clearly, amply and fully decides that the city of-Toledo, irrespective of any special statutes, was fully authorized or im-powered to receive this trust, and that these acts that have been referred to in no way affect the right of the city to receive the trusts, The city had the right to receive the trusts and to execute them. A court of chancery, if called upon, would appoint the necessary trustees.

However, it seems to us that the conclusion to be arrived at' from this decision, from the character ■ of this trust, is that this is a private matter,, and not on.e of a general nature. It is a college, a university, for a specific, definite purpose, originally founded as such, and carried forward in the various acts by these various statutes as such,— a school, not one for-a body ..of ipen, b.ut for all citizens in the city, Perhaps no other city, in the state but the city of Cincinnati would have a school pr a college of that kind. Indeed, I do not think that there is another one in the state of Ohio. And we are of the opinion that these various acts, in their application to this school, are in their nature such as may be passed by the legislature of the state of Ohio, and not be in violation of any provisions of the constitution.

Under these statutes, passed lawfully, the city has the naked legal title to this property. It has the power to confirm the nominations of trustees which are made by the board of education. Beyond that, the whole power of management of this trust and of these schools is placed in the board of trustees. I have read Sec. 401*9, R v. Slat., and I will not read it again ; but it confers all the powers that have been exercised in regard to these schools upon the board of trustees, and this board of trustees is not a corporation. The trustees are not endowed with corporate powers. If authority is necessary upon that, the decision of the Supreme Court of the state of Ohio in State v. Powers, 88 Ohio St. 84, decides that even boards of education are not corporations within the provisions of the statutes of the state of Ohio in regard to corporations.

. The law does not profess to incorporate the trustees. State v. Davis, 23 Ohio St. 434, also is a case in support of the proposition that they are not an incorporated body, but are simply endowed with certain powers. Therefore, the objection that is made that these acts confer corporate power upon the city of Toledo, and that therefore they are void, we think falls to the ground.

But if they were void, what then ? They would only be void in regard to the exercise of those powers. That would not affect the trust. The trust would remain in the city aiid a court of chancery would have full power to appoint trustees to carry out the trusts. But that law in our judgment, is clearly constitutional, and this board is a legal board, and may carry out the provisions of this trust.

There is another proposition in this petition that is brought to our attention, and that is in regard to the so-called polytechnic school. In the view that we take of the case, that the power of the control of this university is vested in the board of trustees, we are of the opinion that this question cannot be properly raised in this petition in quo warranto without the presence of the members of the board of trustees, at least. We suggest, without deciding, that perhaps it cannot be raised at all in this action or in this form of action.

I want to go back a little, now — to the formation of this institution. It was formed as the University of Arts and Trades. It was incorporated for the promotion of knowledge in the arts and trades and their related sciences, and to furnish artists and artisans with the best facilities for a high culture in their profession. That character adheres to it to this day, save and except the trustees have brought this under the other clause of this trust; and that is, that other branches of learning not included in the prescribed list may become a part of the curriculum, may become a part of the institution ‘1 when endowed so as to be sustained without the use of the trust funds herein provided.” If a time shall come whe'n new endowments are made upon this institution to such an extent that they may carry forward the institution for the promotion of all kinds of education in arts and sciences, or any different department of learning that they see fit to carry forward, provided the endowments are such as to do this without diverting this fund, they may do so. The fund at present yields about $800 per annum. It may be claimed that because the money is raised by taxation to conduct this school, that therefore the time has come when they can do that — when they can extend their branches of education to any department that they see fit. That may be a question of very serious importance. The object of this trust is to “ establish an institution for the promotion of knowledge in the arts and trades and their related, sciences, by means of lectures and schools; by extensive collections of mineralogical or other cabinets and museums that relate to the mechanic arts, and whatever else will serve to furnish artists and artisans with the best facilities for a high culture in their professions.” The construction of that should be this : the board of trustees having charge of this school, and carrying out the object and purpose of the founder in regard to the promotion of the arts and trades and their related sciences, would'have a wide discretion as to what may be taught in the school. The object is to qualify men for work in art. I do not mean technical art, but in the arts and in the trades. You will find by an examination of the definition of the word “ arts " that it has a very broad significance. It relates to the adoption of material means to useful purposes. The word “ trades ” is an exceedingly broad word. Now, whatever will qualify men, artisans, artificers, for the work for which they are destined, which they desire to carry on, may be taught in this school. They can teach no more than that. They may undertake to call it a university, but that does not change the nature of the school or its character. They may call it a polytechnic school; that does not change the character of the instruction that should be given there — whether they call it a polytechnic school, or class in natural philosophy, or class in chemistry, no matter about the name. The substance of the thing is, they may teach all that is related to the objects and purposes for which the school is founded, and nothing further, except, as I have already stated, they obtain donations enough to go beyond that.

Whether that question can be raised here or not we are extremely doubtful, even if the members of the board of trustees were made parties. In State v. Board of Ed., 3 Circ. Dec. 708 (7 R. 152) and in the case of State v. Newark, 57 Ohio St. 430 [49 N. E. Rep. 407], which also cites State v. Board of Ed., supra, there are references made to this law and to this doctrine. It is also reviewed in the text books. And the view seems to be, 'without stating it accurately, somewhat like this: First, that there can be no power exercised in quo warranto except it be an ouster of the board; that is, if there be an excess of power, it must be reached by another method, to-wit: by a court of chancery by way of injunction. Quo warranto is treated, and always has been, as a matter of law; but corporations being under the control of chancery courts they may be called to account in those courts as to whether they are exceeding their powers. There is perhaps this qualification running through it all; if the body goes so far beyond any powers as to encroach upon the sovereign power ; or, as stated at common law, upon the power of the king in derogation of his power, usurping his powers, then the writ of quo warranto may lie to the extent that such powers are usurped.

Take the case at bar. This board of trustees is authorized by the terms of the trust to establish an institution for the promotion of knowledge in the arts and trades and their related sciences. They cause education to extend to this branch and that branch, and in the performance of their duty they may step beyond their powers and may teach something that in the judgment of some men may not be related to the proposed school, and which may not either remotely or immediately qualify men for the performance of those duties connected with the arts and trades. A writ of quo warranto to oust the board would not lie. The proper method would be to invoke the aid of a court of chancery to restrain the trustees from causing those branches of education to be taught.

As I have said, we will make no order in regard to that without the presence of the board of trustees as parties, because under the view that we take, the whole matter is within their power. The common council itself established the manual training school, but the board of trustees established the so-called polytechnic school. It is not an act of the council; it is the act of the trustees. Hence, they should be made parties. We make these suggestions in regard to the matter, so counsel may take it under advisement, if they desire to, and take such course as they see fit.

Now, it is said that the levying of the taxes for this school is opposed to the provisions of the constitution of the United States, especially Sec. 19 bill of rights. I call attention now to some sections of the constitution of the state of Ohio. Section 7, Art. 1 of the bill of rights provides;

“All mea have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience. No person shall be compelled to attend, erect, or support any place of worship, or maintain any form of worship, against his consent; and no preference shall be given, by law, to any religious society; nor shall any interference with the right of conscience be permitted. No religious test shall be * * *. Religion, morality, and knowledge, however, being essential to good government, it shall be the duty of the general assembly to pass suitable laws to protect every religious denomination in the peaceable enjoyment of its own mode of public worship, and to encourage schools and the means of instruction.”

Well, now, if they may do that by law, they do it through corporations or through any other boards that are subsidiary means for carrying the objects and purposes of the corporation. Article 6, Sec. 1 of the constitution provides :

“ The principal of all funds, arising from the sale, or other disposition of lands, or other property, granted or entrusted to this state for educational and religious purposes, shall forever'be preserved inviolate, and undiminished.”

That relates to the school fund of the state.

Section 2. “ The general assembly shall make such provisions, by taxation, or otherwise, as, with the income arising from the school trust fund, will secure a thorough and efficient system of common schools throughout the state; but no religious or other sect, or sects, shall ever have any exclusive right to, or control of, any part of the school funds of this state.”

In the municipal code, paragraph 34 of Sec. 1692, it is provided generally that the common council shall have power “ to acquire by purchase, or otherwise, and to hold real estate, or any interest therein, and other property for the use of the corporation, and to sell or lease the same.” That was in the same general line that was referred to by the Supreme Court of the United States. It is said that the raising of money by taxation for the support of this school is in violation of the constitution of the state — Sec. 19, Art. 1 of the bill of rights, which provides that “ Private property shall ever be held inviolate, but subservient to the public welfare,” etc.

This school has been founded for a most laudable purpose; it has been carried forward in one of its branches in a most useful manner for the citizens of Toledo in the education of children. It receives money from the city, upon levy' made by boárd of education. It is still a private school. This aid that is given by the city by way of taxation is simply, so to speak, feeding the uses and purposes of the trust and the board of education levies the tax because the trustees are carrying on a beneficial course of public instruction — one that is beneficial to the youths and children of the city.

It is shown by the provisions of these various sections of the constitution to which I have referred, that a leading object and purpose of the constitution is that the people of the state of Ohio shall be educated. It seemed proper to the members of the constitutional convention of this state that education should be promoted and that schools should be provided in order that the children might be educated. They are levying taxes in this city for the purpose of aiding this school, — fitting it, if you please, — and that is simply ancillary to the purposes of that trust. It is done, indeed, by the board of education. They are the ones who are authorized to do it. It is a part of the educational scheme; and although it is done, as it is said, by a special law, nevertheless it is rightfully done by a special law, because this body is not a corporation, and its objects and purposes are not of a general nature, so far as this school is concerned. Nevertheless it has been of benefit to the children of this municipal corporation. It is done for the end and purpose that a certain amount of education may be acquired in useful branches; more than that, it is done in conjunction with the board of education, because this second deed that is made by Mr. Scott says that the intention and purpose of the donor, the founder, of this school was, that it should be carried forward, not in opposition to the common schools or the school system of the state, but in conjunction with it, in extension of it, and for the purpose, as is stated I think in almost these words : that they may be educated in departments beyond that which they receive in the public schools of the city of Toledo. It is carried forward in conjunction with it, and hence it is that the proceeds of this fund may be used, and the work may be carried forward, in conjunction with those who have charge of the school system of the state. And it so carried forward. The legislature has authorized the board of education to levy these taxes for the very purpose of carrying this forward in conjunction with, or in extension and in addition to the education that is afforded by the public schools. And clearly, in our judgment, it is not contrary to Sec. 19, Art. 1, of the bill of rights.

I have in a very hasty and informal matter stated our views upon this question. It follows from what I have said that the demurrer must be sustained.


source: Caselaw Access Project

author: HULL, J.

license: Public Domain

text:
      MUNICIPAL CORPORATIONS — STREETS—NEGLIGENCE—DAMAGES.
    [Lucas (6th) Circuit Court,
    February 1, 1902.]
    Haynes, Parker and Hull, JJ.
    Toledo v. Michael Nitz.
    1. Portion or City Market Considered as a Public Street.
    • Where the platform of a set of wagon scales, situated in the middle of a city market building to which sidewalks were laid from opposite sides of the street in the center of which the market building stands, opposite to the city buildings on one side and an alley running to a parallel street on the other, and to which steps were constructed leading from the platform of the market building to the scales on each side, making the platform accessible to pedestrians from every direction, had been used as a common thoroughfare by people generally in that part of the city, both day and night for a great many years with the city’s knowledge of such use, it is properly considered a public street, and as such, a person walking upon it is entitled to the protection of one using any public street.
    2. Rule as to the Use oe Streets.
    Where a person in making his destination, at night and without notice of danger, walks upon the platform of a city market house, which, while it may not be considered as a public street, leads to the market scales, the platform of which is used as a public street, and is injured by falling into an unguarded and unlighted excavation caused by the removal of the scales by the city, or with its knowledge thereof, he is not precluded from recovery therefor by the mere fact that he departed from the sidewalk and walked upon the platform in question, because a person exercising ordinary care has a right to step upon a sidewalk at any place he chooses.
    3. Reading Statute as Part oe Charge in Such Case.
    Section 2640, Rev. Stat., prescribing that a municipal corporation shall keep its streets open, in repair and free from nuisance, etc., sets forth its duty as prescribed.by the legislature and imposed by the common law. Therefore, it may properly be read by the trial judge in his charge to the jury in an action for negligence against a city for permitting an excavation to remain unguarded and unlighted in a place which the evidence uncontra-dicted shows was used by the public as a sidewalk. Such a charge cannot be considered as misleading or as having any application to any place not so used.
    4. Guarding Dangers — “ What does not Protect ” Insueeicient.
    A statement in a charge in relation to the duty of a city to protect the public from injury in the use of its streets, that “ what does not protect is not sufficient ” is not too emphatic, nor can the city complain thereat where it does not appear that anything whatever had been done to guard an excavation in a much frequented thoroughfare, or give notice of danger to a footman except a small pile of dirt and a lot of rubbish scattered about which he might or might not see at night, especially, since it appears that the dirt and rubbish were there only incidentally and not so placed to give notice of the excavation.
    5. Charge to Jury — Construction oe Words.
    A charge “ When a case starts in this court, ft starts without any assumption of negligence on the part of the city or the plaintiff himself. The jury are obliged to decide the case on evidence that is brought here. You cannot assume that the city has been negligent, neither * ® * that the man himself was negligent. The same rah abplies to both * * * and the burden is on the man who brings the suit * * * to establish that the city has • been negligent ® ® * to prove that to your satisfaction ” is not prejudi cial to the city. The italicized words refer to the preceding expressions and not to those which come after.
    6. Same — Meaning of “His own Testimony.”
    A plaintiff in an action for personal injuries is under no obligation to take upon himself the burden of proving himself free from negligence except in the event of his own testimony raising the presumption that he has been negligent. The expression “ his own testimony ” includes that of the plaintiff and his witnesses. Hence, when the law is so charged, the defendant cannot claim to be prejudiced by such expression, although some other expression might have been better.
    7. Charge Sufficient as to Contributory Negdigence.
    A charge that contributory negligence to defeat recovery must be negligence that constitutes a proximate cause of the injury complained of, means that if plaintiff’s own negligence was one of the causes of the injury, or if combined with other causes, occasioned the injury, he cannot recover, and a charge so given is sufficiently intelligible to a jury.
    8. Verdict Exceeding Earning Capacity Sustained.
    A verdict of $6,350 damages for injuries permanently disabling a man fifty-six years old and earning $1.25 per day, although greater than his earning capacity, according to his expectancy of life, cannot be considered excessive when it appears that his lungs were lacerated by the breaking of his ribs at the time of his injury, from which he suffered an attack of pneumonia, that his lungs are permanently and materially injured, making it impossible for him to draw a full breath without pain, and causing him to suffer inconvenience and pain continually, and that on account of his injuries he has, perhaps, contracted tuberculosis.
    Heard on Error.
    M. R. Brailey and John P. Mantón, for plaintiff in error.
    E. L. Twing and A. C. Bowersox, for defendant in error.

      For a prior holding in this case, see Nitz v. Toledo, 12 Circ. Dec. 357 (22 R. 454).

   HULL, J.

This case was before this court at a former term, Nitz then being the plaintiff in error. The case is reported in 12 Circ. Dec. 357 (22 R. 454). As the facts were quite fully stated in that opinion, it will not be necessary to go into them very fully now. The case was reversed at that time, chiefly on the ground of error in the charge of the court, the judgment below having been in favor of the city. The case was after-wards tried in the court of common pleas, and a verdict returned in favor of Nitz and judgment entered upon that verdict. It is to reverse this judgment that the city of Toledo filed a petition in error in this court.

Nitz brought his action to recover for personal injuries, caused, as he claimed, by the negligence of the city of Toledo, and recovered a verdict for $6,350. A judgment was entered in his favor for that amount. The plaintiff’s injury was sustained at what is known as the “ Market Space,” in Superior street, in the city of Toledo, lying between Monroe and Washington streets. There is here a platform some twenty-two feet wide, in the middle of the street, and which runs from Monroe to Wash" ington street, except a space in the middle about fifteen feet wide, where there was a wagon scale that was used for market purposes. The platform, which was used for niarket purposes was entirely open at the sides and at the ends, so that people might walk on it at any time, either day or night, if they saw fit. The privilege of the use of the scales was let by the city to private individuals. On the day of Nitz’ injury the scales had been taken out by order of the city, a new lease having been made to another party than the one who had been renting and conducting the scales theretofore. This left an excavation from four to five feet deep; that is, from four to five feet below the level of the street, and from seven to eight feet below the level of the market space platform. Early in the evening Nitz was walking along, either on Superior street proper, west of the market space platform, as he claims, or upon the ■ platform itself, as some of the witnesses testified he was doing, and having no knowledge that the scales had been removed, as he claims, he fell into this excavation, and three of his ribs were broken, according to the testimony of a physician who attended him, and others, including his own testimony. In consequence of his injuries he was confined to his house for many months. The testimony of his own physician shows that his injury produced pneumonia, which lasted for several weeks, and perhaps some months, and that he has since that time been unable to perform manual labor, in fact, not able to leave his house but very little of the time.

The claims of the plaintiff in error are that the verdict is against the weight of the evidence, and that the court erred in its charge to the ■ jury.

When the case was here before, we held that the fact that the city itself ordered these scales to be moved, and that such removal of the scales caused the excavation, was in fact an order by the city for the excavation to.be made, and that it was not necessary to show any further notice to the city or its authorities; that the city having ordered the excavation to be made, that would be notice and knowledge. And we held then, as we do now, that no guards had been placed about this excavation by the city, either by way of rails or lights. There is some testimony tending to show that there was some earth on the west side of the opening; some rubbish, perhaps, that had been thrown out when the scales were removed. The testimony of the plaintiff is that there was very little of this, not enough to attract attention. Whatever was there, it was because it happened to have been thrown out of this excavation, but was not put there by the city for the purpose of notifying anyone that tbe scales bad been removed or tbat tbére was an excavation into wbicb one might fall.

Nitz claims tbat be was walking along Superior street, just west of tbe market platform, and tbat when be came to tbe opening in tbe plat, form where tbe scales bad been, be walked across Superior street at that point, with tbe intention of walking through on tbe scales t© tbe other side of Superior street, and then going east through an alley to St. Clair street. Tbe evidence shows that there was a sidewalk extending from tbe west side of Superior street up to tbe scale opening, and tbat on tbe east side of tbe platform was a building occupied as a city prison and police court, and alongside that was tbe alley; and tbe evidence shows tbat the scales located in this place, were and bad been used for a very long period of time as a street, people passing back and forth, both on foot 'and in vehicles day and night. We think the jury were warranted in finding that tbe scales and platform were to be regarded as a street, and that one using them was entitled to tbat protection wbicb tbe law gives him in using a street of a municipal corporation.

Upon this trial of tbe case no evidence was offered to show tbat the market platform itself, extending from Monroe to Washington streets, was used as a part of tbe street by people generally in traveling back and forth. Tbat brings us to tbe first claim of counsel for plaintiff in error, to-wit: tbat the weight of tbe evidence is that Nitz was talking on tbe platform and fell off tbat into tbe scale excavation, and was not walking on tbe street, as be claims; and it is claimed tbat if be was walking on tbe platform, there being no evidence that tbat was or had been used as a street, and fell from that into this e-xcavation, tbat he could not recover. There was nothing said to the jury in tbe charge of tbe court upon this question. No special attention seems to have been given to it by counsel on either side at tbe trial, and no request was made along that line.

It is claimed that Nitz is within tbe rule laid down by tbe Supreme Court in certain cases, tbat á traveler cannot recover against a municipál corporation where be is out of tbe limits of tbe highway, and has gone onto other property of tbe city for purposes of his own and is thus injured, as in Kelley v. Columbus, 41 Ohio St. 263, where a person was walking along tbe street, and left tbe highway, and went onto a vacant piece of property near tbe city ball for purposes of bis own, and was injured by reason of tbe condition of this lot upon which be walked. The Supreme Court held that be could not complain.

Along this line is also Dayton v. Taylor, 62 Ohio St. 11 (56 N. E. Rep. 480), where a person walked across'tbe street inside tbe curb in á diagonal direction, and slipped into a catch basin, and it was held that in leaving the sidewalk he assumed the risks which lay in the path which he thus chose. In Kelly v. Columbus, supra, the traveler went outside the street entirely, upon a piece of ground that was not used for street purposes; in Dayton v. Taylor, supra, the traveler walked across the street in a manner not contemplated and was injured.

It is claimed that Nitz is within the principle of these two cases, and that, if he was walking upon the market platform, there being no evidence that that was Used as a street, and fell from that into the excavation, he cannot recover.

Some three or four witnesses, perhaps, testified that he was walking on the platform. Nitz himself claimed that he was walking on the street, where he fell into the excavation.

In our judgment this case may be distinguished from Kelly v. Columbus, and Dayton v. Taylor, supra. This is not a case where the person departing from the street, if this would be a departing, was injured on account of any defect in the ground or in the place to which he had gone. There was no defect in the market house platform that caused Nitz’ injury. If the market platform was not a part of the street, and if Nitz had no right to go there, as is claimed, and he went upon it at his own risk, and on account of a board being out of that, or a hole in it, in some way he had fallen down and been hurt, then the case might be within the rule laid down in the above decisions; but if, as is claimed by the city, he went upon the platform, and walked over that in safety and sustained no injury until he fell into the excavation caused by the removal of the scales, then we have another question.

We find the testimony is practically uncontradicted that the platform scales were and for a long time had been used as a public street, and one walking thereon would therefore be entitled to the protection one is entitled to in using any public street. So that if the contention of the plaintiff in error be true, that when Nitz went upon the market platform he was departing from the street, still, when he undertook to step upon the scales, or the place where the scales had been, and was injured, the jury were warranted in finding that he was undertaking to walk into and upon a street.

We know of no rule of law and no decision, that holds that under such circumstances he would be deprived of a right to recover. One walking along the street may depart from the highway and walk into a vacant lot or upon city property for some purpose, away from the street, and some back to the street by a different line, and again enter upon it, and if he is not injured when outside the street, but when he comes back to • the street he steps into a hole which has been left there through negligence, and is injured, he is not barred of the right to recover. A man has a right to step upon the sidewalk at any point that he chooses, and if he exercises ordinary care, he will not be precluded from recovering because he departed from the street, and was going back to it and upon it. So in this case, if the plaintiff' walked upon the platform, and if that was not a part of the street, as the city claims, when he undertook to go where the scale platform had been, and' to put his feet upon that, he was entitled to protection, for the scale platform had been used as a public street for many years, and was in fact part of the street.

We therefore hold that whether the market house platform was a street or a part of a street or not, that of itself would not deprive Nitz of the right to recover on account of walking thereon. Although there is no positive evidence in the case, the circumstantial evidence, the surroundings, as disclosed by the record, indicate very strongly that this platform was in fact used as a part of the street, and that it was as much a part of the street as the two driveways on either side of it, which were used for vehicles. There were steps at each end of - it for people to go up and down; it was entirely open at the ends and sides, and there were steps in the middle for people to go upon the scales. The whole place taken together, the platform as well as the driveways, is properly denominated “ Market Space,” although all was in fact apparently a part of Superior street. But considering this question in the way in which counsel for the city asks us to view it, that this platform was not in fact a part of the street, we think for the reasons given that this, if true, would not deprive Nitz of the right to recover.

There are many objections taken to the charge of the court. The court read to the jury Sec. 2640, Rev. Stat., which prescribes the duties of a municipal corporation in regard to streets; that it shall keep them open, in repair, and free from nuisance, etc. It is objected that this was error, for the reason that it did not distinguish between streets traveled by the public and public grounds and places like the market house, where people were invited only for certain purposes and at certain times of the day, and that it was an abstract proposition of law not applicable to the case.

We think that there was no error in the court reading this statute to the jury. It sets forth the duty prescribed by the legislature, á duty which was imposed upon municipal corporations by the common law before this statute was passed, giving statutory construction to the common law; and the judge by reading that statute did not intend to say to the jury, and the jury could not have understood, that he meant to refer to any place that was not in fact a street; but the court intended to direct their attention to the place where Nitz claimed he was hurt, and where ' the practically uncontradicted evidence shows that a street did exist, 1 and had existed for a long period of time.

Objection is taken to the charge of the court as to the duty of the city to protect the public from injury when using streets, and it is objected that what the court said is too emphatic, in stating to the jury that “ what does not protect is not sufficient.”

The record does not show that anything had been done by the city to protect or guard this excavation. At the most there was nothing there but a comparatively small pile of dirt and a lot of rubbish, which a footman might see or might not. No care had been taken and nothing had been done to guard or protect this excavation. In view of this, we find no error in this instruction of the court.

This language in the charge is objected to, and argued at some length, and insisted upon as error :

The same rule applies to both. The fact must be shown by the evidence in the case, and the burden is on the man who brings the suit in the first place to establish that the city has been negligent; that it has omitted some duty it owed to him. The burden is upon him to prove that to your satisfaction.”

The principal thing objected to is the words “ to your satisfaction,” and it is urged that that is equivalent to telling the jury that they must be satisfied beyond a reasonable doubt. A decision by Judge Laubie, Russell v. Russell, 3 Circ. Dec. 460 (6 R. 294), is cited. If we examine this part of the charge, and read it in connection with what the court said just preceding it, we find that that language only applies to the duty imposed upon the plaintiff, below and does not apply to the city. The paragraph begins:

“ When a case starts in this court, it starts without any assumption of negligence on the part of the city or the plaintiff himself. The jury are obliged to decide the case on evidence that is brought here. You cannot assume that the city has been negligent, neither can you assume that the man himself has been negligent. The same rule applies to both. The fact must be shown by the evidence in the case, and the burden is on the man who brings the suit in the first place to establish that the city has been negligent; that it has omitted some duty it owed to him. The burden is upon him to prove that to your satisfaction.”

So that if there was any error in the use of this language, it was against the plaintiff below, and not in his favor. Counsel argue that the expression “ the same rule applies to both ” should be read in connection with the expression “ The burden is upon him to prove that to your satisfaction.” But the statement “ the same rule applies to both ” relates to what went before and not to what came after. So that the city surely cannot complain of this charge of the court. Personally I have never been fully satisfied that it was not proper for a court to say to a jury that they must be “ satisfied ” of the plaintiff’s claims; but this decision of Judge Raubie is very full and very able ; but all that is necessary to say in regard to this portion of the charge, is that the rule as laid down was applied'to Nitz and not to the city, and therefore the city was not prejudiced, in any event.

It is objected further that the court said to the jury that:

“ He (the plaintiff) is under no obligation to take upon himself the burden of proving that he is free from negligence himself, except in the event of his own testimony showing that he has been negligent. If he discloses by his- own evidence that he has been negligent, then it is his duty to relieve himself of that negligence and excuse himself from the negligence that is shown in the case.

It is argued that the expression “ his own testimony ” limits it to the testimony of the plaintiff alone, and not the testimony of the plaintiff and his witnesses. We do not think that such a restricted construction as that should be given to this language, but that the court meant to say to the jury by using the expression “ his own testimony,” not only his own individual testimony, but the testimony of the witnesses called by him. In Robison v. Gary, 28 Ohio St. 241, this language was used, and is cited by counsel in his brief.

“ The evidence of plaintiff as well as of defendant is to be considered in determining the question of contributory negligence, and a charge seeming to confine the jury to defendant’s evidence is erroneous.”

The Supreme Court use this expression with reference to the testimony of the plaintiff and his witnesses, and not with reference to the plaintiff alone, as it is urged the jury would understand it. Some other expression in addressing a jury might be better, but we do not find it error to use this language.

What the court said to the jury upon the subject of contributory negligence and the rule upon that question is objected to. The court said :

“ On the other hand, if the city claims as they do claim in this cases that this man was injured through his own negligence, the burden is on the city, in the absence of himself making any such showing in his evidence, to establish that he was guilty of contributory negligence in the case; and by contributory negligence is meant precisely the same character of negligence that on the other side makes the city liable. It must be negligence that constitutes a proximate cause of the injury, one of the causes, one of the proximate causes, of the injury. If the plaintiff is guilty of such contributory negligence as that he cannot recover. The burden of showing that he is, is on the city.”

It is urged by counsel that this was in effect telling the jury that the plaintiff could recover unless it appeared from the testimony that his negligence caused the injury; that they should have been instructed, that if his negligence in any degree “ contributed ” to his injury, he could not recover. Counsel in their brief say : “To establish the contributory negligence of plaintiff the city is required by this instruction to show that ‘he was injured by his own negligence,’ that ‘ his negligence constituted a proximate cause of the injury — one of the causes, one of the proximate causes,’ that his negligence ‘proximately caused the injury.’ ”

Examining the language of this instruction, however, we find that the court did not say to the jury that it was necessary to show that this plaintiff’s own negligence was the sole cause of the injury, but taking the instruction altogether, it means that if his own negligence was one of the causes of the injury, if combined with other causes it caused his injury, he cannot recover. The court says, “ It must be negligence that constitutes a proximate cause of the injury, one of the causes, one of the proximate causes of the injury.” Negligence which contributes directly to the plaintiff’s injury is one of the proximate causes of the injury and we are not sure but the jury would understand this language better and moie readily than the expression “ negligence which contributes directly to his injury.”

And we find that this or similar language has been used by the Supreme Court of this state, in the case of Schweinfurth v. Railway Co., 60 Ohio St. 215 (54 N. E. Rep. 89). The court say in the syllabus :

“ In an action for negligence, it is not error to refuse an instruction that the defendant cannot be held liable, though guilty of the negligence charged, if the negligence of the person injured contributed in any degree, or in any way, to the injury of which he complains. Unless the negligence of the person injured contributed directly to, or was.a proximate cause of the injury, it does not preclude a recovery.”

On page 222 of the opinion the court cite with approval from 2 Thomp. on Neg., page 1151, as follows:

“ The negligence of the plaintiff, in order to bar a recovery, must have been a proximate cause of the injury complained of. If the negligence of the plaintiff was only remotely connected with the injury, the plaintiff may recover damages, if notwithstanding such remote negligence of the plaintiff the defendant might have avoided the injury by the exercise of ordinary care.
“ But tbe negligence of the plaintiff in order to bar his recovery, must have been so far an efficient cause, of the injury that unless he had been negligent, the injury would not have happened; or, as the rule is often expressed, although there may have been negligence on the part of the plaintiff, yet unless he could by the exercise of ordinary care have avoided the consequences of the defendants negligence, he is entitled to recover.

So that we find that this expression that “ his own negligence must have been one of the causes of the injury,” or “ a proximate cause of the injury,” is approved by the Supreme Court; and the court below, was substantially following the language of this opinion. We find no error in this.

The further ground on which we are asked to set aside the judgment and reverse the case, is, that the damages are excessive. The verdict was for $6,350. This is, to be sure, a large amount of money. The plaintiff at the time of his injury was about fifty-six years of age¡ He was earning then $1.25 a day, and worked in a lumber yard. The jury were warranted in finding from the evidence that he would never be able to perform such manual labor again as he had been in the habit of performing. The evidence shows that for many weeks and months he was confined to his bed, and that he has been unable to perform any work since he was injured. The testimony oí his own physician showed that his lungs were lacerated by the broken pieces of ribs, so that his injury was followed by pneumonia in a very short time, — some two or three days, — and that he was very ill with that for a long time, and that his lungs are permanently injured by the pneumonia. Both have solidified to some extent, the left one to a considerable extent, and the right one not so much; and this, according to the testimony of his physicians, will always continue. On account of it he is unable to draw a full breath, and suffers inconvenience and pain nearly all the time. Three physicians called by the city testified that in their judgment he had tuberculosis; two of them testified that 'they had examined his sputum, and found tubercular bacilli in the sputum. There is no evidence that he had had tuberculosis before he sustained this injury, or had shown any tendency in that direction.

The court charged the jury fully upon the question as to his right to recover in case he had had tuberculosis before his injury, or in case there were seeds of the disease in his system that had been aggravated by his injury.

We are of the opinion that his present condition is due to his injuries. The weight of the testimony is that so far as manual labor is concerned, his injury has destroyed his usefullness; that he will suffer from this injury the rest of his life; and that the condition of his lungs is due to the injury which he then sustained. It is true that his earning capacity is not very large. His expectancy of life, according to the tables, at the time of the injury, was about sixteen years. If he were kept constantly employed, he w'ould earn perhaps $250 or $300 a year, which would not amount to as much as this verdict; but in cases of personal injury a party is entitled to recover for more than the mere loss of earning capacity. Where death does not ensue, and the party himself brings his action, he is entitled to recover not only for the loss of earning capacity which he has sustained, but to recover compensation for all other injuries and losses that he has sustained on account of the personal injury inflicted; his peace and happiness in life, his health are something to him — are worth a great deal, perhaps more, in many cases, than earning capacity. The law is that the jury may consider all those things in determining how much, in such a case, the plaintiff is entitled to: they may consider the extent of his injury and its permaence, may consider the pain which he has already endured and which he is likely to endure in the future, in connection with his loss of earning capacity. We cannot say, taking all these things into consideration, that this verdict is the result of prejudice or passion. If the claims of Nitz are true, if the testimony of his physicians is to be believed, by this injury his health and physical enjoyment have been, to a great ex-extent, destroyed.

It is hard to put in dollars and cents what ought to be allowed a man who has thus suffered, whose lungs are in such a condition that a full breath, perhaps, can never be drawn by him without pain; who may for the greater part of his life be confined to his house ; who from being a strong healthy man fifty-six years of age, who had never been sick before but once in his life, has become a wreck. Within certain limits the law submits that question to the jury, and under proper instructions from the court they apply to it their common sense, and reason and judgment, and give what in their judgment is a fair compensation for the injury sustained.

The charge on the question of damages cannot be complained of, and after a careful examination of the testimony on this question, we hold that we cannot disturb the verdict upon the ground that the damages are excessive. The verdict may be larger than some other jury would have given, it may be larger than the court would have given; but the injuries which Nitz sustained were of a very serious character, and that they are permanent, there is no question.

We find no error in the record, and for that reason the judgment of the court of common pleas will be affirmed.