text:
    Reed v. Board of Education.
    On a school district treasurer’s bond, conditioned that the treasurer “ as treasurer of said school district, shall faithfully disburse, according to law, all such funds as shall from time to time come into his hands,’’ the sureties are liable when the treasurer fails to deliver to his successor in office the school funds that had so come into his hands, and in finding the amount of such liability, there should be included the amount of drafts, and certificates of deposit, which, when received, would have been paid on presentation, and which were received as cash by such treasurer.
    Error to tbe District Court of Stark county.
    Cyrus 3L Greiner, for a number of years, was elected and acted as treasurer of the Union School District of Alliance, Stark county. On April 19, 1875, having been re-elected treasurer for one year, Greiner gave his official bond, with plaintiffs in error as sureties. The bond was not accepted by the Board until July 6th, 1875, when it was approved and filed. The bond was in the penal sum of $15,000, and was conditioned, “ That, whereas, the said C. K. Greiner was, on the 19th day of April, A. D., 1875, duly elected treasurer of the board of education, of Alliance Union School District in the county of Stark, and State of Ohio, for the term of one year from the 19th day of April, A. D., 1875, and until his successor shall be elected and qualified :
    Now, if the said C. X. Greiner, as treasurer of said school district, shall faithfully disburse, according to law, all such funds as shall from time to time come into his hands, then this obligation shall be void and of no effect; otherwise to be and remain in full force and virtue in law.”
    Greiner, however, from April 19th, 1875, to July 6th, 1875, continued to act as such treasurer, and to receive and disburse moneys belonging to the district.
    On July 6th, 1875, he had as treasurer $6,806.09. After July 6th, 1875, and charged to himself as of September, 1st and 16th, 1875, and February 24th, 1876, he received $32,597.46; the most of which was cash. Of this sum $20,000 was for bonds sold, on which he received $10,000 cash, and perhaps $10,000 in drafts on New York and Philadelphia ; but if this were so, the drafts were paid and he got the proceeds. An indefinite part of the same came to him through certificates of deposit for taxes collected by George Fissler, treasurer of Stark county, and which money for taxes was deposited with the private banking company of Greiner, Sourbeck & Co., of Alliance; for which money the certificates were issued to Fissler, and he transferred them to Greiner. Greiner was then a partner of the Banking Co., and owned one-fourth part of it, and was the principal manager of its business operations. A part, if not all, of these certificates were taken up by the bank and credited to Griener’s account with the bank, which bank continued in active business until about February 25,1876, when it failed. After July 6, 1875, when the bond was approved,Greiner disbursed but $22,055.18, leaving in his hands as shown by his accounts $17,203.50. On June 6, 1876, after failure to pay this sum to his successor in office, suit was commenced on the bond for the amount of the penalty. ' On trial by the court without a jury, the court did not allow and charge the parties with any part of the $6,806.09 in Greiner’s hands when the bond was given (although he had thereafter disbursed $22,055.18), but took all the disbursements from what Greiner received after he gave bonds and gave judgment for the balance, being $10,542.28 and interest, in all $12,071.28 and costs. No exception was taken by the Board, and no error is alleged by the Board.
    This judgment was affirmed by the district court, and this case is here to obtain the reversal of these judgments.
    Lynch, Day & Lynch, for plaintiff in error.

      J. A. Ambler, for defendant in error.
   Follett, J.

The plaintiffs in error are sureties on a treasurer’s bond. The sureties on the bond of a public officer are bound with their principal as original promisors, aud are liable for defaults committed by their principal after the commencement of the term of office for which they became sureties; and their liability is measured by the terms of their contract.

Baylies on Sureties and Guarantors, 4,150; Miller v. Stewart, 9 Wheaton, 680, 703; State v. Corey, 16 O. S. 17, 18; Alber v. Froehlich, Ante 245.

The plaintiffs in error bound themselves that Greiner “ shall faithfully disburse according to law, all such funds as shall from time to time come into his hands ” as treasurer. The court tried the case without a jury, and the court found that Greiner, as treasurer, received $32,597.46, after the bond was approved, and disbursed but $22,055.18; and then had $10,542.28, which last sum and interest made up the judgment.

This court will not disturb the judgment except upon clear and satisfactory showing that the judgment is wrong. This is a familiar rule of law, and repeatedly so held-by this Court. Merrick v. Boury, 4 Ohio St. 60; Ralston v. Kohls, 30 Ohio St. 92; Landis v. Kelly, 27 Ohio St. 567.

Plaintiffs in error say the word “funds" does not include the taxes paid for which the certificates of deposit were given, that certificates of deposit are not funds.

But neither the tíme when Greiner received the certificates^ nor the amount of the same charged as cash that went to make up the $32,597.46, is clearly (if at all) shown by the testimony. This is a sufficient answer. But a certificate of deposit is a receipt of a bank for a certain sum of money received upon deposit, and when the depositor wishes his funds to be running on interest,” ho usually takes a certificate of deposit. Their nature and the ordinary modes of business show that they are intended to represent moneys actually left with the bank-for safe keeping, which are to be retained until the depositor actually demands them.” They are generally made negotiable. Daniel on Negotiable Instruments, § 1698.

It seems to be admitted that drafts are funds. But apply to this case the rule of law, that payments made and not applied by the parties will be applied by the Court so as to secure the precarious part of a debt, and the plaintiffs in error would be held, not only for the judgment, rendered, but for the full amount of their bond. Field v. Holland, 6 Cranch 8; Planters' Bank v. Stockman, 1 Freeman’s Chy. 502; Stamford v. Benedict, 15 Conn. 437; Gaston v. Barney, 11 Ohio St. 506, 511, 515.

In Inhabitants of Sandwich v. Fish, 2 Gray 298, 301, the court holds liable the sureties on the last year’s bond of a treasurer who brought forward a balance in his hands at the beginning of the year.

This bank was a g-oing bank until about February 25, 1876. There was no “ treasury" in which Greiner was required to keep the funds ; lie could keep them where he preferred so he disbursed them according to law. For a proper disbursement of these funds the bond-was given.

There was no error, against the plaintiffs in error, in the finding or judgment of the courts below.

Jv,dgment affirmed.


source: Caselaw Access Project

author: Okey, J.

license: Public Domain

text:
    Betts v. Harper.
    Tenants in common of real estate who are also owners, severally, of personal property, may dispose of the same by will by uniting in a single instrument, where the bequests are severable and the instrument is not in the nature of a compact, but is, in effect,' the will of each, revokable by him, and subject to probate as such several will; and where the instrument is not offered for probate until the death of all executing it, the same may then be admitted to probate as the will of each and all such persons. Walker v. Walker, 14 Ohio St. 157, limited.
    Error to the District Court of Hocking county.
    Agnes Harper and Penrose Harper, sisters, domiciled in Hocking County, each owning personal property, and being owners as tenants in common of real estate in that comity, signed the following instrument, dated April 17, 1862 : “ We, Agnes Harper and Penrose Harper, of the county of Hocking, in the State of Ohio, do make and publish this our last will and testament, in manner and form following, that is to say : First, it is our will that our funeral expenses and all our just debts be first fully paid; secondly, that all of our property, both real and personal, go to James Betts and John Drue Betts and their heirs forever ; lastly, we hereby constitute and appoint James Betts to be executor of this our last will and testament, revoking and annulling all former wills by us made, and ratifying and confirming this, and no other, to be our last will and testament.”
    This instrument was subscribed at the time of its execution by two witnesses in due form; and Agnes having died in 1872, and Penrose in 1874, the instrument was admitted to probate in the Probate Court of Hocking county, as their will, in April, 1875.

      In September, 1875, the- heirs-at law of Agues Harper and Penrose Harper filed a petition in the Court of Common Pleas of Hocking county, against James Betts and John D. Betts, to set the will aside. On the trial of the issue in the district court, to which the cause was appealed, the court charged the jury, in effect, that the will, being joint, was void ; to which charge the defendants below excepted. A verdict having been returned in accordance with the charge, judgment was rendered setting the will aside. To reverse the judgment for such error in the charge, James Betts and John D. Betts prosecute this petition in error.

      If. A. Daugherty and J. li. Qrogcm for plaintiffs in error.

      J. H. GolUns for defendant in error.
   Okey, J.

The construction placed by the majority of the court in Walker v. Walker, 14 Ohio St. 157, on the instrument there in question, viewed in the light of the facts existing at the time of its execution, was that the alleged will should be regarded as simply a compact, joint in form and substance, between Walker and his wife, to treat their several estates as one estate, and jointly dispose of it as such among the objects of their bounty; that it was a matter of negotiation between them, and the disposition which each made of his or her property was influenced and modified by the disposition made of the property of the other; that each devise and bequest was, in fact, made in consideration of each and all the rest; and that it was part of the compact that neither of the parties should revoke or cancel the instrument, or any part of it, without the consent of the other. Moreover, subsequently to the death of Mrs. Walker, Walker, in violation of the agreement, conveyed to others portions of his lands so devised. The majority held that the instrument was not valid as a will; and that the remedy of the devisees and legatees, if they had any, was in equity to enforce the agreement.

Assuming, as we should — more than twenty years having elapsed since the case was decided — that the instrument received the proper construction, we are not disposed to question the decision. But it is said, in the opinion, that the policy of the State, as indicated in our legislation, is opposed to joint wills; and attention is directed to the language of the wills act, which it is said plainly refers to an .instrument to be executed by one person only. It will be seen, however, that our statute is not peculiar in this respect. The provisions of the English statutes and the statutes of the various states, upon the subject, are precisely similar to our own; and the conclusion that they indicate a policy that two or more persons ' may not unite in the same instrument in making their wills, whatever the form of the instrument may be, is only reached by a rigid, and as we think, altogether unwarranted adherence to the mere letter of the statute. The provisions of the statute relating to the execution of deeds are similar, and yet nobody has ever doubted that any number of persons having ah interest in property may join in an instrument conveying it.

The case before us is unlike Walker v. Walker. vAgnep Harper and Penrose Harper were each the owner of. personal propertj’, and they were owners, as tenants in common, of real estate. Each desired to bequeath her personal property to James Betts and John D. Betts, and each desired to devise to them her undivided share of the real estate. They could unquestionably have done this by two instruments, but they could do it as effectually by one. This instrument was, in effect, .the separate will of each. Either could have revoked it, so far as it was her will. On the death of Agnes, in 1872, the instrument might have been admitted to probate as her will ■; and in 1874 it might have been admitted to probate as the will of Penrose; but in 1875 it was properly admitted to probate .as the will of both. The authorities, it.will be seen, are in some conflict, but the view we have stated is supported by reason and the manifest weight of authority. Exp. Day, 1 Bradf. 481; Diez's Will, 50 N. Y. 88; Mosser v. Mosser, 32 Ala. 551; Schumaker v. Schmidt, 44 Ala. 454; Wyche v. Clapp, 43 Texas, 544; March v. Huyter, 50 Texas, 243; Breathitt v. Whittaker, 8 B. Monroe, 530; Lewis v. Scofield, 26 Conn. 452; Evans v. Smith, 28 Ga. 98; Re Siracey, 1 D. & S. 6, 1 Jur., N. S. 1177; Re Maine, 1 S. & T. 144; Re Love grove, 2 S. & T. 453, 8 Jur., N. S. 442; and see Denyssen v. Mostert, 4 L. R. P. C., 236, 8 Moore, P. C. N. S. 502; Gould v. Mansfield, 103 Mass. 408; cf. Clayton v. Liverman, 2 Dev. & Bat. 558; Hershy v. Clark, 35 Ark., 17, 23.

Judgment reversed.


author: Johnson, C. J.

text:
    Spangler v. Dukes.
    1. Where a husband intending to make a provision for his wife in lieu of dower, executes and delivers to her, through the intervention of a trustee, a deed for a portion of his real estate, which is reasonable in amount and value, and is given and accepted in consideration that she release all claims as widow against his estate, and then dies intestate, owning other real estate, in which she is entitled to dower under the statute, she may, at his death, elect to waive the provisions made for her, and claim her dower, but she cannot claim both. (Rev. Stats. §4189.)
    2. If after the title is vested in her by such conveyances, the unrecorded deeds are, by mutual consent, destroyed, the title is not thereby re. invested in the husband; neither is her right at his death to make such election divested, although by such destruction of the deeds it was intended to reinvest him with the title.
    3. Where after commencing an action to quiet her title to such provision, and when the same is pending and is being contested, she, without being fully advised as to her rights, claims and receives dower in other lands, sold to pay debts, she may still be permitted in furtherance of justice, to make her election, and accept such provision on condition that she restore to the estate the amount so received as dower, and release all claims to dower in the residue of her husband’s lands.
    4. Where a husband during coverture makes a provision for his wife, in full of all her claims as widow against his estate, including her right to dower, which she accepts, and he dies intestate, she is not thereby barred of her right to the year’s support provided by law, out of his estate. Gollier v. Gollier, 3 Ohio St. 369, followed and approved.
    Error to District Court of Wood county.
    In the court of common pleas, Elvira Dukes brought her action, alleging that she had the legal title and was in possession of a certain tract of land of about eighty acres, that plaintiffs in error set up and claim an estate therein, and prays that they be compelled to show their title, and that it be declared void as against her. /

      The amended answer of Nancy Spangler, 1st, Denies that plaintiff has the legal title; 2d, Avers that plaintiff is the widow of one John Dukes, who died February 28th, 1875, intestate, leaving defendant his sole heir, and that at the time of his decease, he was seized, among others, of the tract of land in controversy, and of an equitable estate in certain other lands, all of which descended to defendant, subject to the payment of debts, the widow’s dower and the provisions made for her by statute. She further alleges, that about the 23d of November, 1S72, John Dukes was then seized of other lands, of the value of $20,000, and personal property of the value of $8,000, and owed about $14,000, that he was then old and infirm and subject to be influenced and controlled by plaintiff, by means of which she procured his consent to a disposition of his property to be effectual after his death, so that she could hold her portion free from interference, and free from any claim by the heirs of her husband, and to that end she procured a justice of the peace to draw the necessary papers, among them a release by her of all her claim to her husband’s estate, on his conveying to her the lands in question, that in part performance of that arrangement a deed was executed by John Dukes to convey this land to his wife, but defendant denies that it was properly executed and delivered, so as to pass her the title, that said arrangement was never carried out, nor did she execute any release, and the pretended deed under which plaintiff claims was ineffectual to pass title. Further, that before said arrangement was completed it was by mutual consent abandoned, and the papers already prepared were canceled and destroyed, and that no consideration passed for said deed.
    It is also averred, that plaintiff, as administratrix of her husband’s estate, procured to be set off to her as her year’s support, notwithstanding said arrangement, the sum of $2,000 in money as well as other allowances made for her by statute for her year’s support, and claims dower in all the lands of her husband. The prayer is that plaintiff’s title be adjudged void, or if that is not done that the consideration named in said deed, $12,000, which is the value of the land, be declared a lien thereon, and be paid in such manner as the court may direct.
    To this plaintiff replied denying that John Dukes died, seized of this land, or that the same descended to defendant.
    John Dukes died January 28,1875. This action was commenced March 12th, .1875. Defendant’s answer was filed August 16, 1875.
    On the first trial in the district court on appeal, the court, . at the conclusion of plaintiff’s testimony, dismissed plaintiff’s petition-, holding on the case made, that she had no cause of -action. This judgment was reversed by this court in Dulces v. Sjpangler, 35 O. St. 119, for reasons therein stated, and the .cause was remanded for further proceedings.
    On the next trial, the court made a special finding of facts, and, in conclusion of law therefrom, in favor of defendant in .error as follows:
    , . “ 1st. On the 15th day of November, 1872, the said John -Pukes being aged and infirm, was sick and as he then believed •could not recover. That the plaintiff was his fourth wife, .about 30 years younger than himself and childless. That said John. Dukes had only one child, the defendant, Nancy D. (Spangler, who was his daughter by a former marriage. That -in the year 1850 said, John Dukes gave to his said daughter 240 .acres of land in Hancock county, for which he paid $2,400, and .which was its then value. That he had given to her a small . amount of household goods at her marriage and had never given -her. anything else. That in the year 1850 said John Dukes gave to (George W. Spangler, the husband of his said daughter, 80 £ acres of land, in Hancock county, then of the value of $400, and never gave'him any more. That on said 15th day of No•.vémber, 1872, the said John Dukes held by deed and title bond . twelve hundred acres of land in Wood county, Ohio, includ- . ing the 240 acres in this cáse in controversy, in all of the value of $28,8.00. . That the said 240 acres was then worth $9,600. That there was unpaid on his said lands the sum of.$3,200. ; That lie then owed Richard Dukes $2,000; Lewis Dukes -. $3,500; Laskey, $3,500; and other debts, $662. That his per-j.sonal estate at that time did not exceed his said debts. That on said 15th day of November he sent for one Lewis Dubbs, a justice of the peace of said county, to come to his house, and when there he then informed said justice that he wanted to make a disposition of all his property. That he wanted to-deed one 80 acre lot to one Horn, a young man he had raised, and he wanted to deed the 240 acres in the petition described, to one -Wood, as a trustee, and by said Wood to be conveyed to his wife. That the balance of his estate he wanted to give to one of two objects, either to establish a school for the education of young ministers or the missionary society, and that he wanted to consult said justice about which would be best.
    “ The said justice said to him lie-had better do it by will; That said Dukes said no; he had consulted a lawyer about it, and it could be done that way. That said justice then wrote, and said Dukes executed and delivered said deeds to Horn. And that said justice then wrote the deed for said 240 acres from said John Dukes to said Wood which was in due form of a warranty deed from said Dukes to said Wood. That the consideration named in said deed was $12,000. That it was then duly signed and acknowledged by said Dukes, witnessed and delivered. That no consideration then or afterwards was paid or intended to be paid. That at the same time the said Wood duly conveyed, by warranty deed, said premises to the plaintiff and the consideration in the deed named, also was $12,000, but no part of it was then paid or intended to be paid. That to sign said deeds said Dukes was held up in bed, and after so executing the same he became so exhausted and sick that he said to said justice that he was not then able to complete the disposition he then desired to make of the balance of his estate, and he requested said justice to remain until morn, ing to finish, but the justice could not do so, and it was then arranged that said justice should be sent for as soon as said Dukes should be able to complete his intended disposition.
    “That said Dukes afterwards became much better and ■ able to be up and attend to business, and never afterward sent for said justice or made any further disposition of his estate.
    “ The court also further find that at the time of so execfiting said conveyance to said Wood, and by Wood to the plaintiff, said Dukes intended the same as a settlement and full provision for her out of his estate. That the same was a reasonable provision for her, and said John Dukes then intended and understood that the same should be in full of all rights and claims on her part out of his entire estate as Iris widow. And that the plaintiff so accepted said conveyance with full knowledge of all the matters herein above stated.

      “ The court further find that afterwards, in July, 1873, the said John Dukes sent for said justice and the witnesses to said deeds to come to his house, and when they had done so he requested the plaintiff to bring out said deeds to Wood and herself, and when she had done so he said he wished them destroyed, and said justice asked the plaintiff if it was her wish and she replied ‘ yes, I suppose so, if it is his wish.’ And thereupon said justice burned said deeds up, the same not having been recorded. That said Dukes afterward gave as a reason for so doing that his relatives complained about the deeds and threatened to sue him. That said John Dukes died intestate, January, 1875, and the plaintiff, Elvira Dukes, administered upon his estate. That she claimed and was allowed for her years support, under the statute, two thousand dollars, which sum she received out of the personal estate. That she also claimed and received property of the value of $100, and the other allowance of household goods.
    “ That afterward plaintiff married one Newton, who was appointed administrator de bonis non of said estate, and the personal property being insufficient to pay the debts, on the 6th of January, 1879, he filed his petition in the Probate Court of said county of Wood, representing the deficiency to be $7,800, and asking for the sale of 520 acres of said land, and in said action the plaintiff, Elvira, was made a party in said case, and filed her answer, claiming dower therein as the widow of said John Dukes, and asking the value thereof in money, and such proceedings were had in said case that said Probate Court found the allegations in the petition were true.
    “ That plaintiff was entitled to dower therein and ordered the sale of said lauds, and out of the proceeds ordered said debts to be paid, giving the plaintiff in money the value of her said dower interest.
    “ That afterwards, to prevent a sale, and to pay said debts, the said administrator and said Nancy Spangler agreed, and at private sale sold 800 acres of the land owned by said Dukes, including said 520 acres so ordered to be sold.
    “That 600 acres thereof were sold at $16 per acre, and 200 acres at $28 per acre.
    “That out of the proceeds, as the value of her said dower interest, the said Elvira Dukes, plaintiff, received $1,910. That $8,800 were applied in payment of balance due from said John Dukes on said lands. $3,000 were received by said Nancy Spangler, and the balance was used by said administrator in paying debts of said estate, costs and expenses. That there is still unpaid of said debts of John Dukes, $900. That besides the said 240 acres in this case in controversy, there remains but 80 acres of land unsold as above stated, of the value of $20 per acre.
    “The court further find that the said plaintiff, Elvira Dukes, after the decease of said John Dukes, claimed and received under the statute, all the provisions for her, as the widow of said John, and did claim and receive dower in all the lands of which John was seized at the date of said deeds, and at his decease.
    “The court further find that when the plaintiff demanded and received her year’s allowance out of her husband’s estate, she was in doubt as to her rights, and supposed that the burning of the deeds would prevent her holding the lands so conveyed to her ; that she was made a party defendant in actions brought by the administrator of her husband’s estate for the sale of lands to pay debts, and answered asserting her dower interest therein, while this action was pending, and when decisions adverse to her title had been rendered against her in the common pleas and district courts.
    “That the allowance for her year’s support was made March 10th, 1875. That $563.35 of this allowance was paid her in personal effects, and the balance credited to her on her settlement as administratrix of her husband’s estate after the commencement of this action.

      “The court, therefore, from the facts so found and as the law of the case are of the opinion and find as the law of the case, that the equity of the case is with the plaintiff, and that the plaintiff is entitled to be quieted in her possession and title in and to said lands, in the petition described.
    “And- thereupon the said Nancy I). Spangler moved the court to set aside said finding and conclusions of law, and for a new trial — for the reason that said finding and conclusions of law from the facts so found are contrary to the law of the case and not sustained by said facts.”
    This motion was overruled, and a bill of exceptions was taken.
    To reverse this judgment error is prosecuted in this court.

      A. Blacltford, for plaintiff in error.
    At her husband’s decease Mrs. Dukes could elect to take either the provisions of the post nuptial settlement, or dower and statutory allowances, but she cannot have both. Receiving dower and other allowances was an election. Crooks v. Crooks, 34 Ohio St. 610; Roper Hus. and Wife, 482; 1 Wash. R. Prop. 268; Bishop Married Woman, §§ 430, 431, 432, 433; and .see cases cited note 2, § 433. Parham v. Parham, 6 Humph. 287, holding that if she claims dower .and distribution she must renounce the benefits of the deed. That it was so understood and agreed, when deed made, may be shown by parol. Livingston v. Livingston, 2 Johns. Ch. 539. The intention may sufficiently appear from the nature of the provision and the inconsistency of taking both ; or it may be shown by parol. Clancy, Hus. and Wife, 230. Wood v. Warden, 20 Ohio 518. Garver v. Miller, 16 Ohio, St. 527. In equity such contracts are enforced between husband and wife. Houghton v. Houghton, 14 Ind. 506, and Resor v. Resor, 9 Ind. 347, were verbal agreements. Also, Thomas v. Brown, 10 Ohio S. 247.

      •Cook da Throwp, for defendant in error. -
   Johnson, C. J.

Prom the findings of fact it is clear ; 1st. That John Dukes in November, 1872, intended to make a full disposition of all his estate without leaving a will/ 2d. That in part execution of that intention he, through a trustee, executed and delivered a deed, in fee, of the land in controversy to his wife as a suitable provision for her, in full for all her claims as widow against his estate, in consideration that she would relinquish all claims as dower or otherwise against the same ; and 3d. That such provision was reasonable and was accepted by her in lien of all claims against her husband’s estate.

This was in legal effect a jointure, settled on her during coverture, which vested in her the estate in fee, and the subsequent destruction of the deeds did not reinvest her husband writh the legal title, though done with her consent, and was so intended by the parties.

It further appears that from physical inability, at the time, to fully execute his intention to make a full disposition of his property, the matter was postponed for a time and finally abandoned, and an ineffectual effort made to undo what had been done by the destruction of the deeds to his wife; and that subsequently he died intestate seized of other real estate in which his wife was entitled to dower, if not barred by the jointure, and that she being in doubt as to her rights in the matter, and not having been fully advised in relation thereto, demanded and received her dower in a portion of said lands, which have been sold to pay debts, and still claims dower in those not yet sold, while retaining possession of the land in controversy and prosecuting this action to establish her jointure, by reason of the fact that her title deeds were never recorded.

From this state of facts it is clear that by the delivery of the deeds, the legal estate vested in her. It was not divested by destroying the deeds, even with her consent, and that at her husband’s death she might elect to waive her jointure and be endowed under the statute (Revised Stat. § 4189).

That it would be inequitable to allow the widow to claim both jointure and dower, when the former is a reasonable provision for her, in lieu of the latter.

That as her claim to dower was made after the commencement of this action to quiet her title to the jointure, and while her right to this land was in grave doubt, and before she was fully advised in the premises, she should not be thereby estopped from her election under section 4189 of the Revised Statutes.

But if she now elects to prosecute this action to establish her jointure she must restore to the estate the amount already received as dower in the lands sold, and release her claim to dower in the unsold lands.

Something has been said as to her returning also, the amount she has received as widow for her year’s support.

Under Collier v. Collier, 3 Ohio St. 369, she 'is entitled to this allowance notwithstanding this provision was in full of all claims against said estate.

Judgment aeeordingl/y.


author: By the Court.

text:
    Ball v. White.
    Manure is made tlie subject of larceny by statute (sections 6794 and 6856, Bevised Statutes), although at the time of taking, it savors of the reality.
    Error to District Court of Hocking county.

      Weldy c6 Wright, for plaintiff in error.

      C. EL. Buerhaus, for defendant in error.
   By the Court.

The original action was by White against Ball, in slander, for words imputing the crime of larceny. The defendant justified, among other things, charging that on the 17th day of March, 1878, the plaintiff did feloniously take, steal and carry away four wagon loads of manure of the value of $3.00, the property of defendant.

The court, among other things, charged the jury, as follows: “ Manure, is, in law, real estate, and not a thing subject of larceny; that a person can no more commit larceny by taking the manure belonging to another, than if he should take his sand, gravel or earth; that the taking by one of manure belonging to another would be trespass only.”

This instruction was erroneous. By § 6856, Rev. Stats, it is enacted, whoever steals anything of value is guilty of larceny,” etc. By section 6794 it is provided, that the term “anything of value” as used in the definition of larceny,, includes, “ things which savor of the reality, and are, at the time they are taken, a part of the freehold, whether they are of the substance or produce thereof, or affixed thereto, although there be no interval between the time of severing and the taking away.” Such has been the state of the law since July 1,1877.

Judgments reversed and, canse remanded for a new trial.


author: By the Court :

text:
    Bergman v. Cleveland.
    An ordinance which makes it an offence for the proprietor of a place where malt, vinous or spirituous liquors are sold, to employ females to serve his customers with such liquor, is authorized by the act of 1875, section 199, sub-divisions 5 and 6 (72 Ohio L. 107; Kev. Stats. §1692), conferring power to regulate such places; and such ordinance is not in conflict with any provision of the state or federal constitution.
    Í Error to the District Court of Cuyahoga county.

      Arnold Orem, for plaintiff in error.

      Carlos M. Stone, for defendant in error.
   By the Court :

By the act of 1875 (72 Ohio L. 107), it was provided; “ Section 199. All cities and incorporated villages shall have the general powers hereinafter mentioned, and may provide by ordinance for the exercise of the same. * * * 5. To regulate ale, beer and porter houses and shops. 6. To regulate taverns or other houses for public entertainment.” And see Rev. Stats. §1692.

The following ordinance was regularly adopted by council and was in force in 1877 in the city of Cleveland, and was based on the above statutory provisions :

“ Section 40. — It shall be unlawful for any keeper or proprietor of any saloon or restaurant, or room or place wherein ale, beer, porter, wine or liquors are sold, to employ any girl or girls, woman or women, other than the wife of- said keeper or proprietor, in the said saloon or restaurant, in the waiting on customers, or the furnishing to customers of ale, or beer, porter, wine, liquors, or any article of any kind whatsoever therein sold, or to perform any service whatsoever, either with or without compensation, in said room or place where said ale, beer, porter, wine or liquors, and other articles are sold and kept for sale.
“Section 41. — It shall be unlawful for.any girl or girls, woman or women, to be employed, or to render service of any description whatsoever, either with or without compensation, in any ale or porter house, or in any room or place in which ale, beer, porter, wine or liquors are sold, as a waiter, bartender, or in any other capacity which shall render it necessary for her to rende]- service of any kind whatsoever in any room where said ale, beer, porter, wine or liquors are sold or kept for sale : Provided, that this ordinance shall not prevent any proprietor of such place or places from employing his wife in his assistance in such place or places.
“Section 42. — Every person employing any girl or girls, woman or women, or permitting or suffering any girl or girls, woman or women, to render service, with or without compensation, in such place or places, contrary to the provisions of sections forty and forty-one of this chapter, shall, on conviction thereof, be fined in any sum not less than five dollars nor more than fifty dollars, for every day such person or persons shall Ife so employed, permitted or suffered to so render service in violation of said sections; and every girl or woman who shall be employed in such place or places, or who shall render service therein cont ary to the provisions of said sections, shall, on conviction thereof, be fined in any sum not exceeding fifty dollars, or imprisoned for not less than thirty nor more than- ninety days, or both, at the discretion of the court.”

Ferdinand Bergman was proprietor and keeper of a beer •hall in the city of Cleveland, and on Jitly 6, 1877, bad in his employ two women, neither of whom was his wife or daughter, as waiters to cany the beer from the bar to the customers •seated at and around tables in the same room of the saloon or ■beer hall. He was charged in the police court, in an affidavit, with such offence, and arrested, and an information having been filed, he moved to quash the same, which motion was overruled. The defendant then pleaded not guilty and waived a jury, and, on proof of the above facts, was convicted and sentenced to pay a fine of $40 and costs, and it, was ordered that he 'stand committed until, fine' and costs were paid.

The conviction was affirmed in the court of common pleas and district court, and this petition in error is prosecuted to reverse the several judgments.

It is urged that the ordinance violates Art. 1. § 1, of the Constitution of the State, the fourteenth amendment to the Constitution of the United States, and other provisions of the State and federal constitutions. But we do not think so. The power to regulate such places where intoxicating liquors are sold, is expressly delegated to incorporated cities and villages, and in our opinion the ordinance and conviction are within the power so delegated, and violate no constitutional provision.

Judment affirmed. '


author: Oket, J.

text:
    The State v. Brewster.
    1. "Where a section of the Revised Statutes is repealed and re-enacted in a changed form, a subsequent statute which, in terms, again repeals and re-enacts the original section in still another form, is, as a general rule, to be regarded as a repeal of the section in its amended form', and the section in ’its last form will take its place in the revision as part of the Revised Statutes.
    3. The classification of municipal corporations provided for in the Revised Statutes, sections 154G-1550 referred to in the act of 1888 (80 O. L. 124) is authorized by the constitution, and is not in conflict with article 2, section 26, nor article 18, section 6; and the fact that territory is attached to any such corporation for school purposes does not affect the validity of such classification.
    3. By amendments to the Rev. Stats., sections 3958, 3959, the Cincinnati school district is withdrawn from their operation, and, also, as to the duties of the board of education and county auditor, from section 3960.
    4. The act of April 16, 1883 (80 Ohio L. 124), makes it the duty of the board of education of the Cincinnati school district to estimate, each year, the amount of taxes which, in the opinion of the board, should be assessed for school purposes; but the estimate so made is not final, the same being subject to review and reduction, as provided in section 2690 (;.).
    Mandamus.
    In 1888, the board of education of Cincinnati fixed the amount to be levied for that year for school purposes, in that school district, at $686,375. The tax commission provided for by the act of 1883 (80 Ohio L. 124), reduced the amount to $477,000, in which reduced form the auditor of Hamilton county placed the estimate on the tax list. In The State v. Cevppeller, 39 Ohio St. 455; s.c. 4 Ohio L. Jour. 464, 10 Law Bal. 360, this court refused the application of a taxpayer, residing in the school district, to compel, by mandamus, William S. Cappeller, as auditor, to place on the tax list an additional sum, so as to make the levy equal to the original estimate. The decision was placed on the ground that, consistently with the facts appearing to the court, the board of education had acquiesced in the action of the auditor,.
    Since the former decision, on application of Howard Douglass, president of the board of education, a taxpayer residing in the district, an alternative writ of mandamus was issued from this court to Joseph W. Brewster, who, on November 12, 1883, became, and still is, county auditor, commanding him, in like mannex-, to place such additional sum on the tax list, or show cause why he refuses. It is shown that the board of education has not acqxxieseed in such refusals by auditor Cappeller or auditor Brewstei'. To this writ Brewster has answei’ed setting forth the action of the tax commission in reducing the amount, and justifying the action of the foimer auditor as well as his own action; and the State, by the relator, has demurred to the ánswer.

      St alio, Kittredge da Wilby and Paxton <& Warrington, for the relator. . ,

      O. J. Oosgrave, county solicitor; J. M. Dawson, city solicitor; and Wulsin <& Perkins, for defendant.
   Oket, J.

We assume that if auditor Cappeller should have placed on the tax list the estimate of $686,375, made in 1883 by the Cincinnati board of education for school pur.poses, it is the duty of auditor Brewster to add to the tax list such sum as with the $477,000, already placed thereon, will make the levy equal to such original estimate. In other words, the question before us is whether the Cincinnati tax commission, provided for in the act of April 16,1883 (80 Ohio L. 124); is a lawful board, and if so, whether it is clothed with power to reduce the estimates for school purposes made by the Cincinnati board of education.

By Rev. stats., § 3885 et seq., the State is divided into school districts. Cities are divided for school purposes into cities of the first class and cities of the second class, and territory may be attached to any city for school purposes. Cities of ten thousand and upward, at the federal census of 1870, are city districts of the first class, and all other cities are city districts of the second class. Cincinnati is a school district of the first class, and territory has been added to the city for school purposes. In such case persons residing on the territory attached "are electors for members of the board of education, but not for city officers generally.

The mode of making estimates and levies for school pur-, poses was chiefly provided for by Rev. Stats., §§ 3958, 3959, 3960. § 3958, specifying the duties of the board of education in making such estimates, was' repealed February 13, 1883 (80 Ohio L. 17), and re-enacted with certain changes. The original as well as the amended section, included the Cincinnati board of education. But on April 16,1883 (80 Ohio L. 124), “ original section 3958” was again repealed.and re-enacted, though so changed as to except Cincinnati from its operation. The repeal of “original section 3958”' was a repeal of the act of February 13,1883. Oshe v. The State, 37 Ohio St. 494, 501; Brigel v. Starbuck, 34 Ohio St. 285. § 3959, placing a limit on the amount which the board of ■ education might levy, was repealed and re-enacted -in an amended form in 1882 (79 Ohio L. 80.), but in its original as well as in its changed form, the Cincinnati board of education was included in its provisions. In 1883, however, the section was repealed and re-enacted in such form as to except the Cincinnati board from its operation (80 Ohio L. 124). § 3960, relating to such estimates, when read in connection with sections 3958 and 3959 in their amended form, has no application to the Cincinnati school district, so far at least as the section relates-to the duties of the board of education and county auditor.

, An examination of the act of April 16, 1883 (80 Ohio L. 124), will show that the manner of estimating, limiting and levying taxes for school purposes for the Cincinnati school ■districts, is governed mainly by its provisions. That £ict provides, among other things, .as follows: Section 2690a. In each city of the first, second and third grades of the first class, and in cities of the second class, first grade, and in cities having a population of twenty thousand and not more than thirty thousand, and in cities having a population of fifteen thousand four hundred and thirty-five by the last federal census, there shall be a board of tax commissioners to consist of the mayor, the city comptroller nor city auditor, and if ■they have neither city comptroller or city auditor, then the city solicitor, and three citizens of such city, to be appointed .by the superior court of such city, or if there be no superior court in such city, the court of common pleas of the county in which such city is situated, and which three citizens last mentioned shall be- appointed, one for three years, one' for two years, and one for one year, and their successors shall be appointed for three years from the expiration of their respective terms. In case of any vacancy by the death, resignation, removal from such city or otherwise of either of such citizen commissioners, the same shall be filled fer the residue of his term by appointment of said court.

“ Section 2690c. That no tax shall be levied upon the property of any such city by the council thereof, or any school board or other authority therein, until approved by the board of tax commissioners aforesaid.........

“ Section 2690%. In all cities of the first grade of the first class, to enable the city comptroller and the boards aforesaid to estimate correctly the levies and the appropriations aforesaid, the authorities of all the city institutions, as well as every head of a department or office in the city for whose wants provision is to be made, including the board of education and the trustees of the commercial hospital, shall report to the comptroller on or before the first Monday of March, in each year, the amount of money • needed for their respective wants for the ensuing year,said estimate to be given for each month. The comptroller, as well as the boards of tax commissioners and common council, shall revise them, and, if deemed proper, shall reduce them, so as to prevent unnecessary expenditure, and to bring them within fair limits to the other expenditures required by the city......

“ Section 2689. The aggregate of all taxes levied or ordered to be put upon the grand duplicate, above the tax for county and state purposes, including the levy lor general purposes, and the tax for schools and school-house purposes and for hospital purposes and other special purposes, in cities of the first grade of the first class, shall not exceed in any one year sixteen mills on each dollar of the value of any property as valued for taxation on the county tax-list, and such further rate as may be necessary to provide for the payment of the interest, and to create a sinking fund for the redemption of bonds issued, and that may be issued under the act relating to the Cincinnati Southern Railway, passed May 4, 1869, and the acts amendatory thereof, and supplementary thereto.”

These provisions devolve upon the Cincinnati board of education the duty of making, each year, an estimate of the amount of taxes which, in the opinion of the board, will be necessary for school purposes ; but the estimate may be reduced in the manner provided in the above section 2690 (i) ; and, aside from taxes for state, county, and Cincinnati Southern Railway purposes, the rate for all purposes, including schools, cannot exceed sixteen mills in any year (§26S9).

It is urged that such construction of the provisions of the statutes renders the act of April 16, 1883, unconstitutional, so far as it relates to the Cincinnati school district, and attention is called to the fact that in The State v. Powers, 38 Ohio St. 54, it was held that laws regulating the organization and management of common schools, must have a uniform operation throughout the state. True, but the power of classification was.distinctly recognized in that case.

When the bill providing for the classification referred to in the clause quoted from the act of April 16,1883 (2690a), was reported to the general assembly, the reasons in support of such classification were stated by the codifying commissioners at length. Rev. Stats. Preface VIII.-X. The objection that the classification was illusory was conceded to be forcible, but it did not prevail. On the contrary, the reasons given by the commissioners in support of such classification • were thought to be sufficient, and hence the classification was adopted. Rev. Stats. §§ 1546-1550. The validity of that classification has been repeatedly recognized in this court, and the reasons for adhering to that construction of the constitution are cogent and satisfactory. Hence, we hold that statutory provisions with respect to any such class are for governmental purposes, general legislation, and not in conflict with Art. 2, § 26, nor Art. 13, § 6, of the constitution.

It is urged, to be sure, that certain territory not within the city of Cincinnati has been attached to the city for school purposes, and hence that the Cincinnati school district is not, in territory, the city of the first grade of the first class referred to in the above section 2690 (a). But this does not change the fact that wherever the board of education is referred to in the above provisions, the words include the Cincinnati board of education. Nor is any confusion created, or unwarranted liberty with the language taken, by calling such board a board within the city. Persons residing on the territory so attached are electors, as we’have seen, for members of such board of education, and hence are represented in the board; and such territory, and the residents thereof, are embraced in the estimates of the board, and must be included in the tax actually levied. True, the persons residing on such attached territory had no choice in the selection of the board which reduced the levy ; but, as affecting the question of the validity of the tax revising board, or its power to reduce the levy as made by the board of education, the fact is of no importance. If the city of Cincinnati and the Cincinnati school district were commensurate, an act providing a special mode of making estimates ■ for school purposes, and confining it to cities of the first grade of the first class, would, in view of whát has been stated as to the power of classification, bo entirely valid. The fact that the school district is larger than the city proper, does not interfere with the power to classify and to legislate with respect to such class. And as the Legislature may provide, in terms, a limitation on the rate or amount of taxation for school purposes for any such class, it may, as in this statute, leave unlimited the rate and amount which the board of education may estimate as necessary, iii the board’s opinion, for school purposes, and vest, in such board or officer as the legislature may provide for or designate, the power to revise and reduce such estimate. In this instance the legislature has provided that such revision and reduction may be made by a tax revising board elected or selected by the city proper or its officers. We see no constitutional objection to the tax commission or its power to reduce the estimates of the board of education.

The act of April 16,1883, as we have seen, applies to cities of the first class, and cities of the first grade of the second class. At present that includes Cincinnati, Cleveland, Toledo and Columbus. Being constitutional to this extent, we do not think its validity is affected by the fact — if it be a fact — that it is invalid as to the other cities referred to therein. We would not be justified in saying that it is probable its passage was made to depend on the fact that such minor cities were embraced by it. Hence, the act is valid as to the cities named, even if invalid as to the minor cities, which are not brought within any recognized or permissible classification. Little, M. R. Co. v. Com. of Greene Co., 31 Ohio St. 338, 344; Com. v. Hitchins, 5 Gray, 482, 485; Cooley’s Com. L. (5th ed.), 211, 216; Bishopls Written L., § 34.

Demurrer to answer overruled and peremptory writ denied.


author: By the Court

text:
    Barber v. The State.
    On an indictment under Rev. Stats., § 0820, for maliciously cutting with. intent to kill, the prisoner ciXmot be convicted of maliciously cutting with intent to wound.
    Error to the Court of Common Pleas of Knox county.

      Adams c& Irvin, for plaintiff in error.

      James Lawrenee, Attorney-General, for the State.
   By the Court

: Barber was indicted for maliciously cutting Darling, with intent to kill him. The statute provides: Whoever maliciously shoots, stabs, cuts or shoots at, another person, with intent to kill, wound or maim such person, shall be imprisoned in the penitentiary not more than twenty nor less than one year.” Rev. Stat., § 6820. Plea, not guilty. Verdict, guilty of maliciously cutting with intent to wound. Sentence, penitentiary for two years.

Upon any indictment the jury may find the defendant not guilty of the offense charged, but guilty of an attempt to commit the same, if such attempt is an offense; when the indictment charges an offense including different degrees, the jury may find the defendant not guilty of the degree charged, and guilty of an inferior degree ; and if the offense charged is murder, and the accused is convicted by confession in open court, the court shall examine the witnesses, and determine the degree of the crime, and pronounce sentence accordingly.” Rev. Stats., ■§ 7316.

An assault and battery is a degree inferior to the principal offense charged in the indictment, and hence, the defendant might be found guilty of an assault and battery under this indictment. Heller v. The State, 23 Ohio St. 582. But he could not, upon this indictment, be properly found gnilty of maliciously cutting with intent to wound. That is not an “inferior degree” to that chai’ged in the indictment, within the meaning of the statute, but is of the same degree, and may be punished with equal severity. Cutting with the specific intent of wounding not being charged in this indictment, there can be no conviction under it of that offense.

Judgment reversed and cause remanded for further proceedings.


author: Owen, J.

text:
    Moore v. Given.
    1. It is the duty of courts in the interpretation of statutes, unless restrained hy the letter, to adopt that view which will avoid absurd consequences, injustice or great inconvenience, as none of these can he presumed to have been within the legislative intent.
    2. Where a statute requires notice of a proceeding, hut is silent concerning its form or manner of service, actual notice will alone satisfy such requirement.
    3. In a proceeding under “an act to regulate inclosures, and to provide against trespassing animals” (1 S. & 0., 649), as amended May 3, 1873 (70 Ohio L., 246), authorizing township trustees, after notice to all parties who may have any interest in the title or possession of premises affected hy a partition fence (and in the repair or construction of such fence), to proceed to view and assign to each party, for repair, his share of it, notice to a tenant in common in sole possession of such premises, who is alone interested in the possession of them, and in ■ the repair of such fence, is sufficient to invest the trustees with power to act.
    Error to the District Court of Muskingum county.
    The plaintiff in error, who was plaintiff below, brought his action to recover against the defendant the value of labor and materials furnished by him in repairing a partition fence between his own and lands occupied by defendant, under an act to regulate inclosures and provide against trespassing animals (1 S. & C. Stat. 649), section three of which was amended May 3d, 1873 (70 O. L. 246), and provides that “when any controversy shall arise about the rights of the respective owners of partition fences, and their obligation to keep up and maintain the same in good repair, if they cannot agree among themselves, either party may apply to the trustees of the township in which said fence may be situate, who, after not less than ten day’s notice to all parties who may have any interest in the title or possession of said premises, and the repair or construction of said fence, shall proceed to view and assign to each party, in writing, his equal share of such partition fence, to be by him maintained in good repair,” and provides how one of such owners may, upon the other’s default, repair the entire partition fence, and recover from the latter a judgment for the value thereof, and acquire a lien upon the lands enclosed. The plaintiff, by the averments of his petition, showed himself entitled to the recovery sought, if service of notice on the defendant was sufficient to give the trustees jurisdiction to act. The petition alleges that the fence in question was the line fence between two parcels of land, one of which Avas owned and occupied by the plaintiff, while the defendant was, at the time of giving the notice, and for twenty years previously had been, in possession of the other, claiming to be the owner, and was, in fact, alone interested in the possession thereof, and in the construction and repair of the partition fence, and being the only person known to the trustees and to the community as owner of the title, and holding himself out as such sole owner. That defendant was at that date (Jan. 2d, 1875) the owner of four equal undivided one-sixth parts of such tract of land ; the residue of the.title being owned by persons whose residence was not in the State of Ohio, nor known to plaintiff or the trustees.
    The- court of common pleas sustained the defendant’s deunurfer to the petition, and rendered judgment for the latter, which wás affirmed by the district court. To reverse this judgments the present proceeding is prosecuted.

      T. J. Taylor, for plaintiff in error.

      Southard ds Southard, for defendants in error.
   Owen, J.

Did notice to the defendant, he being the owner of an undivided interest of the lands actually occupied by him, invest the trustees with power to view and assign to each party, for repair, his share of the partition fence 2

The defendant, by his demurrer, admitted that he received such form of notice as the law required ; that he was then and for twenty years previously had been in possession, claiming to be the owner of the land to be affected; that he was alone interested iu the possession of it; that he was alone interested in the construction and repair of the partition fence; that he was the only person known to the trustees and the community as the owner of the title; that he held himself out as the sole owner of the land, and that the owners of the residue of the title to it were persons whose residence was not within the State of Ohio, nor known to the plaintiff or the trustees.

The contention of the defendant was and is, that all persons interested in the title of the lands occupied by him should have had notice of the proposed action of the trustees before they could have become invested with jurisdiction to act.

The defendant was the sole occupant of the lands. He was, by his- own admission, the only person interested in the possession of it or in the repair of the fence. His co-tenants in common were beyond seas ; their residences unknown.

As the form and manner of notice are not prescribed by the act, actual notice could alone satisfy its requirements.

This would require of the plaintiff an impracticable, if not an impossible, thing.

That the law does not require vain, absurd or impossible things of men is one of its favorite maxims; and it is the plain duty of the courts, in the interpretation of a statute, unless restrained by the rigid and inflexible letter of it, to lean most strongly to that view which will avoid absurd consequences, injustice and even great inconvenience; for none of these can be presumed to have been within the legislative intent. Rex v. Banbury, 1 Ad. & El. 136, 142; Commonwealth v. Loring, 8 Pick 370; Jeffersonville v. Weens, 5 Ind. 547; Henry v. Tilson, 17 Vt. 479; Putnam v. Langley, 11 Pick. 490; Bishop on Written Laws, 82; Debolt v. Trust Co., 1 Ohio St. 365; Brigel v. Starbuck, 34 Ohio St. 285.

In the case last cited, Okey, J., uses this language : “ Bnt where strict adherence to the mere letter of a remedial statute will manifestly lead to serious inconvenience, interruption and delay in the settlement of an estate, we may sometimes depart from it, and we are always justified in looking to the whole statute to ascertain in what sense the words were used.”

If the defendant’s position is well chosen, and all persons interested in the title were required to bo notified, remainder-men, reversioners, mortgagees, execution creditors after levy, would be within the requirement of the act and require notice, though having no interest in the possession of the premises or the repair of the fence.

Applying, the foregoing principles of construction, and looking to the entire act and the objects to be effected, we are not called upon to do violence either to the obvious legislative intent or to the letter of the act in order to give it an interpretation in entire accord with reason and the justice of the case.

Section 2 of the act before us provides :

“ The respective owners, or lessees for one or more years, “ of lands which now are, or hereafter may be inclosed with “fences, shall keep up and maintain in good repair, all partition fences between their own and the next adjoining in- “ closures, in equal shares, so long as both parties continue “to occupy or improve the same.”

This provision raises the plain implication, that the parties -occupying and improving for their own benefit the lands ■divided by a partition fence are they who are immediately ■concerned in its repair.

Section 3 of the act provides for notice “ to all parties who may have any interest in the title or possession of said premises a,id the repair or construction of said fence?

To entitle a party to notice it is not enough that he be interested in the title or possession of the premises; he must also be interested in the repair or construction of the fence.

How the defendant came to be alone interested in the construction and repair of this partition fence does not appear. It is sufficient for us to know that he admits the fact to exist, and this leaves us at liberty to suppose that it is so by some arrangement between himself and his co-tenants in common. Notice to him was sufficient to authorize the trustees to act.

The facts stated in the petition abundantly constituted a cause, of action, and there was error in sustaining the demurrer to it and rendering the judgments complained of. The judgments of the court of common pleas and of the district court are reversed, and cause remanded for further proceedings according to law.


author: Follett, J.

text:
    Springfield v. Spence.
    1. A municipal corporation is not liable to an action for simply failing to provide drainage for surface water.
    2. Where a municipal corporation provided a system of drainage which at the time was amply sufficient, but by the improvement of lots by individual owners thereof such drainage becomes insufficient to save vacant lots from overflow in time of severe rain storms, a purchaser of one of such vacant lots, who, with knowledge that the lot is subject to overflow at such times, erects thereon a building, cannot maintain an action against the city for damage caused by such overflow, but must protect his own property from the same.
    Error to the District Court of Clark county.
    In May, 1867, George Spence became the owner of lot 197, in the city of Springfield, Clark county. This lot was on the southeast corner of Main and Yellow Springs streets. In the Fall of 1868, on this lot at the intersection of those streets, he erected a large brick building with rooms for business and a cellar thereunder.
    Some years previous the city council established grades and gutters for the streets of all that part of the city south of Main street, so as to carry the surface water to the south side of Main street, and thence west on the south side of Main street until it intersected a natural stream of water and passed into the waters of Buck Creek.

      In the natural condition of the land the water that fell on a part of this area ran in another direction. By reason of the improvement of the private property of the individual owners, according to the system of grading and drainage so adopted by the city, an additional quantity of water was caused to flow to the intersection of Main and Yellow Springs streets, so that during heavy rains there was not sufficient capacity in the gutters or drains' leading from this intersection to carry off the water so as to prevent an overflow. In August, 1868, the water thus overflowed and ran on to .this lot and into the cellar of this building, and damaged the cellar and building, and caused delay, and expense in the work of construction and in removing the water, and loss of use of building.
    Before Spence purchased the lot he knew the situation aud condition of the premises, which were the same as since the purchase, and he was a member of the city council before, and during this time, and up' to April, 1871, and he knew the system of grading and of drainage adopted and used by the city. In some places gutters had been repaired and made in accordance with the established grades, such making and repairing did not materially increase the flow of water to his premises.
    Spence sued the city for damages as above, and recovered a judgment, which was affirmed in the district court, and the city now seeks to reverse these judgments.

      Eeifer dé White, for plaintiff in error.
    The corporation was not liable. Municipal Code (Ohio Laws, 1869), § 199; Dillon Mu. Cor. §§ 542-544, and notes (1st ed.); Goszler v. Georgetown, 6 Wheat. 597; Macy v. Indianapolis, 17 Ind. 267; Cincinnati v. White, 6 Pet. 431; Wilson v. New York, 1 Denio. 595; Mills v. Brooklyn, 32 N. Y. 489; Sprague v. Worcester, 13 Gray, 193; Flagg v. Worcester, 13 Gray, 601; Munn v. Pittsburg, 40 Pa. St. 364; Bennet v. New Orleans, 14 La. An. 120; Mayor, &c. v. Furze, 3 Hill, 612; Hudson v. New York, 5 Seld. 163; Rochester White Lead Co. v. Rochester, 3 N. Y. 462; Barton
      v. Syracuse, 37 Barb. 292; Cavanaugh v. Brooklyn, 38 Barb. 232; Carr v. Northern Liberties, 35 Pa. St. 324; Grant v. Erie, 69 Pa. St. 420; Child v. Boston, 4 Allen, 41, 51; Turner v. Dartmouth, 13 Allen, 291; Radcliff v. Brooklyn, 4 N. Y. 195 ; Brinkmeyer v. Evansville, 29 Ind. 191; Dillon Mu. Cor. (3d Ed.) §§ 987-989-990 ; also 1038-1051, and notes; Scovil v. Geddings, 7 Ohio, 562 ; Hickox v. Cleveland, 8 Ohio, 543; Wheeler v. Cincinnati, 19 Ohio St. 19, 21; Cincinnati v. Cameron, 33 Ohio St. 336; Crawford v. Delaware, 7 Ohio St. 459; 21 Ohio St. 499; 14 Ohio St. 523.

      George Arthur for defendent in error.
    As to the liability of the city: — Wood on Nuisance, § 745 : Oliver v. Worcester, 102 Mass. 489; Thayer v. Boston, 19 Pick. 511; Anthony v. Adams, 1 Met. (Mass.) 284; Pittsburgh v. Grier, 22 Penn. St. 54; Eastman v. Meredith, 36 N. H. 296 ; Trustees v. Gibbs, 11 H. L. Cas. 687; Parker v. Macon, 39 Ga. 725; Wilson v. City of New Bedford, 108 Mass. 216; Gilmartin v. Philadelphia, 71 Penn. St. 140; Thurston v. City of St. Joseph, 51 Mo. 510; Ashley v. Port Huron, 35 Mich. 296, and cases there cited; Pennoyer v. Saginaw, 8 Mich. 534; Pumpelly v. Green Bay Co., 13 Wallace, 166; Nevins v. Peoria, 41 Ill. 502; Aurora v. Gillett, 56 Ill. 132; Aurora v. Reid, 57 Ill. 30; 62 Ill. 519; 68 Ill. 167; Proprietors of Locks v. Lowell, 7 Gray 223; Franklin v. Fisk, 13 Allen, 211; Elder v. Bemis, 2 Met. (Mass.) 599; Haskell v. New Bedford, 108 Mass. 208; Eaton v. B. C. & M. R. R. Co. 51 N. H. 504; Arimond v. Green Bay, 31 Wis. 316; Cotes v. Davenport, 9 Iowa, 227; O’Brien v. St. Paul, 18 Minn. 176; Kob v. Minneapolis, 22 Minn. 159; Dillon Mun.Corp. §§ 1038, 1048; Barton v. Syracuse, 36 N. Y. 54; Nims v. Troy, 59 N. Y. 500; Denver v. Capelli, 4 Col. 25; South Bend v. Paxon, 65 Ind. 228; Child v. Boston, 4 Allen (Mass.) 41; Emery v. Lowell, 104 Mass. 13; McGregor v. Boyle, 34 Iowa, 268; Dermot v. Detroit, 4 Mich. 435; City Council v. Gilmer, 33 Ala. 116; Jones v. New Haven, 34 Conn. 1; Logansport v. Wright, 25 Ind. 512; Hamilton v. Columbus, 52 Ga., 135; Harper v. Milwaukee, 30 Wis. 365, and Dixon v.Baker

      65 Ill. 518; Inman v. Tripp, 11 R. I. 520; Rhodes v. Cleveland, 10 Ohio, 159; McComb v. Akron, 15 Ohio, 481; Akron v. McComb, 18 Ohio, 229; Cincinnati v. Cameron, 33 Ohio St. 336; 21 Ohio St. 499.
   Follett, J.

The pleadings in the case are indefinite as to the issues intended to be made, or that were tried. The record does not show at what time the grades of the streets were established, or what they are, or when the system of drainage was adopted, or what it is. And it does not appear that the gutters or drains 'when made, and for years thereafter, were not more than sufficient to carry off the water from this lot and its surroundings during even the most severe storms of rain; but it does appear by Spence’s testimony that an increased accumulation of water about this lot and building was caused by reason of the improvements of the private lots of individual owners. And if does not appear that the lot, or the street, or gutters were up to the established grade. The record shows but a part of the testimony, and the charge of the court.

Among other things the court charged the jury that, “ The law authorized the defendant to establish and fix such grades for the streets and gutters in the territory aforesaid, as to it seemed fit and proper, and it might by so fixing and establishing of said streets and gutters conduct the water that falls on said territory to the intersection of Yellow-Springs and Main streets, if it saw proper so to do, whether the water that fell on said territory, without such grades, would have naturally flowed to that point or not, but if the water that fell on that territory, or a part thereof, without such grades, would not have flown to the intersection of Yellow Springs and Main streets adjacent to plaintiff’s lot, and by such fixing and establishing of such grades by the defendant, it was made to flow to that point-, the defendant was bound when it reached that point to so take care of it, as to prevent it from injuring plaintiff’s lot, and if the defendant failed to so take care of it at that point as to prevent it from injuring the plaintiff’s lot, and it did injure the plaintiff’s lot, the .defendant is liable to the plaintiff for such injury.”

•But, on request of the city, the court refused to charge the jury that, The city council had the legal authority to establish a system of drainage from and along the streets of the city of Springfield, and to fix the grades of the streets of said city; and if the jury find that the drains established by said council became inadequate after they were established and constructed to carry off the surface water accumulated therein by reason solely of the increased quantity of surface water caused to flow into the same, in consequence of improvements made by owners of lots in said city adjacent to the said streets, then the plaintiff cannot recover for any injury to his property arising from such inadequacy of said drains to carry off such water and prevent plaintiff’s premises from being overflowed.”

The duty of providing a system of drainage, is one requiring the exercise of deliberation, judgment and discretion, and is judicial in its nature. For failure in the performance of such duties no action lies. There is no complaint that the ministerial part of providing the gutters was not well done when they wTere provided. The charge, as given, and as refused, would hold the city liable for damages done to this hitherto vacant lot and the building just erected' thereon, for failing to take care of the increased amount of surface water, by.enlarging the capacity of drains, which had become inadequate, by reason, solely, of the increased quantity of surface water caused to flow into them in consequence of improvements made upon lots adjacent to the streets. This view is not supported by the weight of authority, or by correct policy and sound reason. In Carr v. Northern Liberties, 35 Pa. St. 324, the Supreme Court of Pennsylvania says, ‘‘ A municipality having power to grade its streets, is not responsible in damages for an injury sustained by a citizen, in consequence of the particular grade adopted. Nor is it liable for neglecting to provide a sufficient number of inlets to its sewers, which were sufficient when constructed, but have ceased to be so, in consequence of the increase of population and the greater extent of territory graded and built npon.” And this case is approved by Judge Sharswood, in Grant v. City of Erie, 69 Pa. St. 422, and by Judge Agnew in Allentown v. Kramer, 73 Pa. St. 409. The case of Mills & Dean v. City of Brooklyn, 32 N. Y. 489, goes beyond this case. In that case the Court of Appeals says, “ A. municipal corporation is not liable to a private action for damages accruing for not providing sufficient sewerage for draining the plaintiff’s promises. Where the authorities of a city caused a sewer to be constructed for a locality which included the plaintiff’s premises, but which, though not in itself a nuisance, was insufficient to carry off the water, held, that the city corporation was not responsible for plaintiff’s damage, occasioned by the overflowing.”

And in Atchison v. Challiss, 9 Kan. 603, the supreme court says, “ Where a city constructs a sewer or drain for the purpose of carrying off surface water, it is not bound to construct such a sewer or drain as will be sufficient to carry off all the snrfaee water, in all cases and under all circumstances.” And in delivering that opinion the Court said, “ If a city is not bound to construct a drain of any kind, by what system of reasoning can it be made to appear that if it shall construct a drain it must construct one that shall be sufficient in all cases, and for every emergency?”

So, also, in Fair v. City of Philadelphia, 88 Pa. St. 309, where it was sought to recover damages by reason of the insufficiency of a public sewer to carry off surface water, the court says, “Where the sewers were not defectively constructed or left out of repair, the municipality cannot be made responsible for an error in the judgment of the city authorities as to the size a sewer should have been constructed.” The mere omission of municipal authorities to provide adequate means to carry off the water which storms and the natural formation of the ground throw on a city lot, will not sustain an action by the owner thereof against the municipality, for damages arising from the accumulation of water on said lot, by reason of the construction of a sewer, that was not of sufficient size to carry off the surface drainage.” See also City of Denver v. Capelli, 4 Col. 25.

Where the drainage is by gutters there is less reason for strictness in holding cities liable, than where the drainage is by sewers.

The city must keep its drainage in good condition. Surface water is a common enemy in a city.

The owner of private lots can raise the same to grade if he so desires, and can thus keep out-all surface-water ; but the municipal government has neither the interest nor the light thus to improve and protect private property. If the city could thus improve private lots, its power might become oppressive; and if the private person could thus compel the city to care for his private interests, its weakness might become ruinous. The law protects each in the proper exercise of rights, and excuses many omissions.

Judge Cooley in his work on Torts says, on' page "620 “ One shows no ground of action whatever when he complains that he has suffered damage .... because the drains which it (the city) orders and constructs are insufficient to carry off the surface water. ”

There was error in the district court in affirming the judgment of the court of common pleas, and the same is ^reversed, and the cause is remanded to the court of common pleas for further proceedings.

Judgment aeeordingly.