author: Boynton, J. Oket, J.

text:
    The State of Ohio v. George, Trustee, et al.
    1. The execution and delivery of the bond required by the act of April 6. 1876 (73 Ohio L. 275), and the supplementary act of April 24, 1877 (74 Ohio L. 466), are conditions precedent to the right to exercise the powers which said acts were designed to confer.
    2. An eviction of the lessees of the public works of the state from that portion thereof known as the Canal Basin, in the city of Hamilton, by the city council of said city before such bond was executed and delivered,, was.wholly unauthorized, and such eviction constitutes no defense to an, action by the state to recover the rent that accrued during the continuance of the eviction.
    Error to tbe Superior Court of Montgomery county.
    The action below was brought in the Superior Court of' Montgomery county, by the state against the lessees of the. public works, and the sureties on their bond given for the¡ performance of all the conditions by them to be performed contained in the lease from the state under which they held and operated the public works.
    The petition set out the terms of the lease, from which it appeared that the lessee agreed to pay for the use of the-public works during the term of ten years, commencing June 1, 1871, a yearly rental of $20,075, payable semiannually, in advance, on the 1st day of June and the 1st day of December of each year. That, to secure the performance of the conditions of said lease by them-to be per■formed, among which was the payment of said rental, they ■executed a bond, with their co-defendants as sureties, in the penal sum of $200,000. The petition set out the bond, and alleged the non-payment of the installment of rent falling due December 1, 1877, being $10,087.50, and prayed judgment.
    .The answer admitted default in the payment of the rent demanded, but alleged that, by the terms of the lease, the state covenanted, upon the performance by said lessees of the conditions of said lease by them to be performed, that they should peaceably and quietly enjoy the demised premises ; that among the side-cuts to said canal, constituting a material and important part of the demised premises, was .that in the county of Butler, known as the canal basin, at the city of Hamilton;' “ and that said plaintiff, after making the said indenture of lease, and before any part of the •rent in said petition demanded became due and payable, to wit, on the 19th day of June, 1877, entered upon said side-cut or basin and "ejected, expelled, put out, and amoved the lessees therefrom, and totally destroyed and removed said side-cut or basin, and has ever since kept, and still does keep, the lessees out of possession thereof; that said ejectment and vacation was accomplished as follows: That, on the 27th day of April, 1872, the general assembly of the State of Ohio passed an act entitled “ an act to authorize the city council of the city of Hamilton to fill up a part of the canal basin in said cityand April 6,1876, said general assembly passed another act entitled “ an act supplementary to an act to authorize the city council of the city of Hamilton to fill up a part of the canal basin in said city,” passed April 27, 1872; and April 24, 1877, said general assembly passed another act entitled “ an act supplementary to an act entitled an act to authorize the city council of the city of Hamilton to fill up apart of the canal basin in said city,”' passed April 27, 1872, and an act supplementary to said act, passed April 6, 1876.
    “ And defendants say that under and by virtue and in pursuance of said acts of the general assembly, the city •council of said city of Hamilton, on or about the night of the 19th day of June, 1877, cut off, by a dam, said side-cut from the Miami and Erie Canal, and shortly thereafter filled up and destroyed the same.”
    The reply denied that the city of Hamilton ever took any action under the act of April 24, 1877; and denied that the state ejected, expelled, put out, or amoved the said ■lessees from said canal basin or from any part of the demised premises, or that it ever did anything whatever in •that behalf.
    The parties waived a jury, and submitted the cause to the court, who found, among other things, the following facts:

      First. That the council of said city of Hamilton did, under and by virtue of the said acts of the general assembly •of the State of Ohio, named in said answer, destroy said basin, known as the Hamilton Basin, as alleged in said an.swer.

      Second. That said Hamilton Basin formed a material and valuable portion of the leased premises, and that the destruction thereof did material injury to said lessees.

      Third. That the plaintiff ejected, expelled, put out, and -amoved said lessees from said basin, in the manner and by the means alleged in said answer.
    On this finding, the court gave judgment for the defend.ants.
    A bill of exceptions was taken, setting out all the testimony, from which it appears that the only evidence relating to the execution, delivery, or approval of the bond required by the first section of the act of 1876, or the second section of the act of 1877, was elicited from the cross•examinátion of J. B. Owens, a witness called for the state, as follows:
    “ Q. Do you represent the interests of Hamilton here to-day ?
    “ A. I came here along with the others.
    “ Q. Did you not come here for the purpose of representing the interests of Hamilton ?

      “A. Well, I came here with others to defend the city of Hamilton, to be honest with you.
    “ Q. Hamilton gave a bond of fifty thousand dollars to-the state in this matter, did n’t it ?
    “ A. Yes, sir, so I understand.
    “ Q. Is n’t there a feeling that Hamilton may become liable to the state in that amount ?
    “ A. Well, my friend Parrott, there, says there is no liability.”
    The act of April 27,1872 (69 Ohio L. 271), authorized the city council of the city of Hamilton to fill up so much of said canal basin as lay west of the line where Eleventh street, as laid out on the south side of the basin, would, cross the same if extended; provided,that said “measure” should be approved by two-thirds of the voters of the city,, and that said city council should first procure the written consent of the lessees of the public works, to the filling up of said hasin, and their release of all claims for damages-from the state on account thereof. On the 18th day of May, 1875, a vote was taken as provided by the act, and more than two-thirds of the voters of the city were found to be in favor of filling up the hasin.
    But the city having been unable to procure the written consent of the lessees to the filling up of said basin, and a release of all claim for damages therefor against the-state, on the 6th of April, 1875, a supplementary act was-passed, containing, among other provisions, the following: “ That the city council of the city of Hamilton may, by resolution or ordinance, provide for the filling up of said canal basin, as is provided in the act to which this act is-supplementary, without first procuring the written consent of the lessees of the public works of this state to the filling-up of said canal basin, and a release from said lessees of all claim for damages from the state on account of such filling up. Whenever the city council of said city shall decide to fill Up so much of said basin as is herein authorized, the said council shall make known their said decision to the governor of the state, and shall deposit with the gov■ernor a bond, duly executed and to the satisfaction of the governor, indemnifying the state from all liabilities and ■damages which may result from said filling up; said bond to be prepared by the attorney-general of the state.”
    No action having been taken under this provision, on April 24,1877, the legislature passed an act, 74 Ohio L. 466, authorizing the city council of the city of Hamilton to fill up and remove the banks of so much of the basin in said city as lay west of the line where Eleventh street, as laid out' on the north side of said basin, would cross the same if extended, and east of the line where Eleventh street, as laid out on the south side of the basin, would ■cross the same if extended. Section 2 provides as follows: “ That whenever the city council of Hamilton may, by resolution or ordinance, provide for the filling up of said portion of the canal basin, and removal of said banks, said ■city council shall make known their decision to the governor of the State of Ohio, and shall deposit with the governor a bond, duly executed and to the satisfaction of the governor, indemnifying the state from all liabilities and damages which may result from filling up said basin or removal of said banks; said bond to be prepared by the attorney-general of the state.”
    A motion for a new trial, on the ground, among other things, that the finding of the court was not sustained by sufficient evidence, was overruled, and an exception noted.

      Little Shearer and Isaiah Pilliars, attorney-general, for plaintiff in error.

      P. P. Panney and M. A. Daugherty, for defendant in •error.
   Boynton, J.

Assuming, without deciding, that the :acts under which it is contended the canal basin was filled up and destroyed by the city of Hamilton, are not in conflict with the constitution, this being the more favorable view to be taken for the defendants in error, and granting .that the eviction of the tenant by the landlord from any material portion of the demised premises suspends or bars-the latter’s right to the rent during the continuance of the eviction, Hodgkins v. Robson, 1 Vent. 276; Colburn v. Robson, 117 Mass. 262, the facts, in our judgment, fail to establish an eviction by the state, and hence are insufficient to constitute a defense to the action. The only consent given by the state to the eviction, consisted in the passage bjl the legislature of the three acts referred to in the answer, under and by virtue of which it is alleged said basin was destroyed. In reply to the allegations of the answer* connecting the state with the wrongful eviction, the plaintiffs denied that any action whatever was ever taken by the-city of Hamilton under the acts of 1877, or that the state-ever ejected, expelled, or put out said lessee from said canal basin, or any part of the public works, or that it ever did anything whatever in that behalf. These denials were sufficient to put the defendants upon proof of the allegations-of the answer involving the state in the alleged wrongful eviction.

The only evidence adduced to show the execution and delivery of a bond by the city, indemnifying the state-against liability or loss resulting from the destruction of the basin, was drawn out on the cross-examination of the-witness Owen. He stated, in answer to the inquiry whether the city “had not given a bond in the sum of fifty thousand dollars to the state,” that he so understood; and in answer to the further question, whether there “ was not a feeling that the city might become liable to the state in that amount,” said, “ Well, my friend Parrott, there, says-there is no liability.” These two answers comprised the entire testimony that was offered on the subject of the execution and delivery of the bond which the city was required to give to the state, and these answers were given to inquiries which were a part of a series put to the witness to elicit evidence showing his interest in the result of the action, for the purpose of affecting his credibility. The-evidence was wholly insufficient to establish the fact that such bond was given, or to warrant the court in accepting-the fact as established. The matter was susceptible of direct proof easily attained, and if the execution and delivery of the bond were essential to the right to maintain the defense interposed, the fact ought to have been established by testimony less uncertain and less open to doubt. The question, then, arises at the outset, whether the city of Hamilton, in view of the circumstances existing at the time the basin was destroyed, was entitled to exercise the power that the legislation referred to, was designed to confer ?

It is very manifest that the provisions of the act of 1876, and of the act of 1877, requiring the city to execute and deposit with the governor a bond indemnifying the state against all liability or loss growing out of the action of the city in filling up the basin, were intended as a substitute for the provisions of the original act requiring the written consent of the lessees, and their release of the state from all liability resulting from the filling. The consent and release provided for, were clearly conditions precedent to the city’s right to exercise the power that the act of 1872 was designed to confer; and until they were secured, the city had no right to act under the statute. And when it was 'found that the lessees would neither give consent, nor release their claim for damages for the destruction of that portion of the canal covered by the basin, and the bond required by the act of 1876, as also by the supplementary act of 1877, was substituted for such consent and release, the execution and delivery of the bond were as fully a condition prerequisite to the city’s right to exercise the power conferred by the latter acts, as were the consent and release, under the act of 1872.

It is very true that the statute does not in terms provide that the deposit of such bond with the governor shall precede the exercise by the city of the authority to fill up the basin. But a careful consideration of the provisions of the three acts, and of their subject-matter, in the light of tbe admitted and well-understood business relations between the state and the lessees of the public works, satisfies us that tbe deposit of sucb bond with the governor was clearly intended as a condition, upon the performance of which the city’s right to fill up said basin was made to depend. Before the passage of either of the acts requiring the bond to be given, the lessees had refused their assent to the filling up of the basin, and to release to the state their claim for damages, in the event their rights under the lease were Interfered with. These facts were well known to the legislature, as appears from the recitals of the act of 1876. It was very apparent that litigation would result from any interference with the right of the lessees to this portion of the public woi’ks.

Hence, it was provided, in both the act of 1876 and the act of 1877, that whenever it was determined to fill up said basin, the decision of the council should be communicated to the governor, and a bond given fully indemnifying the state from all loss or damage to result therefrom. It was the plain import of this language, that the city might proceed to fill up the basin, upon the execution and delivery of said bond; and until such bond was accordingly given, the right to destroy the basin did not exist, and the action of the city causing such destruction was wholly unauthorized.

Erom the position taken in the argument, that the state Is answerable as an aider and abettor of the unlawful act of the city in causing the eviction, although the statute was not complied with, we wholly dissent. The legislature can bind the state only in the mode and by the adoption of the forms and methods prescribed by the constitution. It speaks through a legislative act. And where the act is designed to confer power, and, either expressly or by fair implication, makes its exercise depend upon the performance of a condition precedent, such condition must be performed before the right to exercise the power attaches. The right of the defendants to hold the state accountable for the action of the city in filling up the basin depends on the authority acquired by the city as between the city and the state. Unless the city is in a position to justify its act, through compliance with the terms and conditions of the statute, in a controversy between it and the state, the state •can not be held liable for the city’s act.

Suppose the state should bring an action against the city for an injury to its rights as lessor of the public works, or owner of the reversion, will it be pretended that the city could justify its action, under the acts-aforesaid, in the face ■of its omission to give the bond required by them ? And if the city could not successfully defend, how can it be made to appear that the state is liable to the defendants for "the city’s doings, when to effect such liability it must appear that the state authorized the city’s act.

In our opinion, the execution and delivery of the bond required by the statute were a condition, without the performance of which no authority was vested in the city to ■fill up said basin; and as it did not sufficiently appear to have been given, the motion for a new trial should have been granted.

Judgment reversed and cause remanded for a new trial.

Oket, J.

I understand the reversal of the judgment below to be placed on the ground that it does not appear that the bonds, required by the city of Hamilton under the acts in question, were in fact given. The attorney-general distinctly admitted that it was wholly immaterial whether they had been given or not; and that was the only allusion made to the matter in the argument on either side. I do not doubt the right, much less the power, of the court to place its decision on any ground thought to be embraced by the record; but, in my opinion, it is clear that the learned judge of the superior court (Haines, J.) committed no error in that or any other particular.

1. It was never contemplated by the general assembly, in passing the act of 1876 or that of 1877, that giving bond by the city of Hamilton should be a condition precedent to the lawful destruction of the basin. What is, or is not, a condition precedent depends, not on merely technical words, but on the plain intention of the legislature to be deduced from the whole statute. That giving such bond is not in terms made such condition is manifest, nor does any fair construction of the language require it, nor is there anything in the record to justify the belief that such was the-intention. Assuming the validity of those acts, a bond of the city, without surety, was all that could have been required. As the liability was, even by the terms of the acts, the same without as with such bond, the state might well, have waived the bond, or might have enforced the obligation, after the basin was destroyed, to the same extent without as with a bond. ®

2. Reference is made in the answer to the several acts of' 1872, 1876, and 1877, and then follows this allegation r “And defendants say, that under and. by virtue of and in pursuance of said acts of the general assembly, the city council of said city of Hamilton, on or about the night of' the 19th of June, 1877, cut off, by a dam, said side-cut from the Miami and Erie canal, and shortly thereafter filled up- and destroyed the same.”

This is certainly a statement that the city complied with the act of 1876, and there is no reply to that part of the-answer. If the city complied with the act of 1876, it is quite immaterial whether any steps were taken under the-act of 1877, for the act of 1876 made ample provision for filling up a material part of the basin, and for a bond to* the state. True, the allegation is somewhat indefinite, and,, if a motion had been made for the purpose, the court might have required the defendant to make the pleading certain,, by setting forth the steps taken by the city; but no such motion was made. It is clear that the averment is sufficient on demurrer. Chamberlain v. Painesville, etc., R. Co., 15 Ohio St. 225. There being no denial of the allegation “that, in what was done by the city, it had proceeded under the act of 1876, it is to be taken as true (75 Ohio L. 622); and hence, the supposed defect in the record does not exist.

3. The bond was given ; and this distinctly appears in the record. At a meeting of the council of Hamilton, held April 24, 1876, the president of the council and city clerk, were required to execute to the state the bond of the-city, as provided for in the act of 1876. The defendants,. on June 23,1877, made official communication to Governor Yonng that the authorities of the city of Hamilton were-proceeding, under the ácts hereinbefore mentioned, to draw the water from the basin, preparatory to filling it up, and that if this was accomplished, they would pay no more rent, but, on December 1, 1877, abandon the public works. That officer, with such notice, would not have failed to enforce the execution of the bond, if it had not been already executed.

But, to put the matter at rest, it appears that, on the-trial of the case, evidence on the subject was offered. In the cross-examination of Owens, a witness for the plaintiff,, occurs the following: “ Q. Did you come here for the purpose of representing the interests of Hamilton? A. Well,, I came here, with others, to defend the city of Hamilton,, to be honest with you. Q. Hamilton gave a bond for $50,-000 to the state in this matter, didn’t it? A. Yes, so I understand. Q. Is n’t there a feeling that Hamilton may become liable to the state in that amount? A. Well, my friend Parrott there (one of the defendants) says there is no liability. Q. Is not that what the people down there think?” Objection being made by the counsel for the state the question was not answered.

This; surely, afforded prima fade evidence that the statutory provision in that particular had been complied with,, and no objection having been made at any time to the sufficiency of the evidence, and nothing in opposition to it appearing in any part of the record, it must be taken as true-—the record containing all the evidence offered on the trial..

4. In presenting what I believe to be the correct view of this case, I will state a final reason why it is immaterial whether or not the bond was given under either act.'

The State of Ohio is the owner of the Miami and Erie canal and other public works. On June 1, 1871, the defendant became the lessees of the state as to all of them, for the term of ten years, at a gross sum to be paid per year, in semi-annual installments. By the terms of the lease, the lessees were required, inter alia, to give a bond to-;secure tbe payment of the rent, and renew it every two years. On June 1, 1877, they paid the rent for six months in advance, and renewed the bond, in compliance with those terms. They were then in peaceable possession of the property, under a covenant in the lease for quiet enjoyment. A valuable and material part of the property so leased was the basin in the city of Hamilton, being part of the Miami .and Erie canal.

Notwithstanding the state, on June 1, 1871, guaranteed to the lessees peaceable possession of the whole property leased, during the term of ten years, the general assembly thereafter passed a series of acts authorizing the destruction of the above mentioned basin. The first of these acts, passed April 27, 1872 (69 Ohio L. 271), granted authority to the city of Hamilton, to fill up a material portion of the basin; but the consent of the lessees was essential to the •exercise of the power, and that was never obtained. Still, the city council, on May 3, 1875, passed a resolution declaring that the basin was dangerous to life and health, .and that it had been condemned by the board of health of that city as a nuisance; and a vote of the citizens of the city was taken, May 18, 1875, which resulted in a majority in favor of filling up the basin. No attempt, however, was made to fill it up at that time; and it is plain that nothing <of the sort could have been done; for a public work of that character, constructed and owned by the state, could not, in contemplation of law, become a nuisance in the hands of the lessees. Com. v. Reed, 34 Pa. St. 275 ; Field on Corp. 677.

The supplementary act of April 6,1876 (73 OhioL. 275), authorized the city to fill up that portion of the basin mentioned in the act of 1872 (69 Ohio L. 271), without obtaining the consent of the lessees; and the act of April 24, 1877 (74 Ohio L. 467), which was actually passed April 20, 1877, authorized the filling up of additional portions of the ■basin, without such consent.

Under these acts, the council passed either ordinances or (resolutions on April 24, October 30, and November 6,1876, and January 15, April 23, June 13, and June, 18, 1877, with express reference to the destruction of the basin, and authorizing such destruction in terms; and, accordingly, the basin was destroyed.

There is no pretense of malice on the part of the citizens or officers of the city of Hamilton. They thought the basin interfered with their prosperity, and it is not strange that they desired to get rid of it. They believed the statutes in question authorized them to destroy it. Indeed, it is impossible to read the record without reaching-the conclusion that the basin would not have been destroyed if the acts in question had not been passed. The woi’k of destruction was not that of an irresponsible mob, but of the members of council and other officers of the city, who-assumed to act under authority of these statutes.

Of course, the state could transfer the reversion in the-basin to the city of Hamilton, and perhaps the acts in question were valid for such purpose; but the lessees were entitled to remain in quiet enjoyment of the basin until June-1, 1881, and hence the state could only authorize the destruction of it under the right of eminent domain. Where,, in the exercise of that right, a lessee is evicted from a portion of his premises, no defense will, ordinarily, be thereby afforded to him against an action on the lease for rent. Frost v. Earnest, 4 Whart. 86; Mills on Em. Dom., ch. 5. But here the state is the lessor, and if, under its authority,, its lessees are evicted from part of the premises, the consequences will be the same as if the act had been that of a private lessor. That the legislature may even commit individual wrongs is certain; though, neither fraud nor malice can be imputed to the general assembly; nor can an action be maintained against the state without its consent. Cooley on Torts, 123, 616, 689. But that difficulty is removed when the state becomes the actor. Then there is not one law for the state and another for the citizen. Where-a grant is made by the state to an individual, for a valuable consideration, the rule of construction between the-government and the subject is the same as between private-grantors and grantees” (3 Wash. R. Prop. 524*); and when, at the suit of the state, courts are called on to determine the rights and obligations of the parties to such grants, the same principles must be applied as if they had been private persons. They stand upon an equality, and the sovereign is merged in the contractor and suitor. In no state has this principle been more distinctly asserted than in Ohio. The State v. The Franklin Bank, 10 Ohio, 9.1; The State v. Buttles, 3 Ohio St. 309, 319; The State v. Ferry, Wright, 662. And see Sinking Fund Com. v. Northern Bank, 1 Met. (Ky.), 174.

The acts of 1876 and 1877 were probably unconstitutional, so far as they attempted to confer authority cm. the ■city of Hamilton to interfere with the estate of the lessees without their consent. The legislature, in the proper ex■ercise of the power of eminent domain, might have authorized the destruction of the basin. This would have afforded a complete answer to any allegations of trespass .against the city, but it would also have furnished a defense to the lessees in an action for rent. It is very doubtful, however, whether there was any proper exercise of that power. First. The authority to destroy the basin was an attempt to clothe Hamilton with corporate power, and the .statutes being local and special, they seem to be in conflict with the constitution. Art. 13, § 1; The State v. Mitchell, 31 Ohio St. 592. Secondly. Neither of the acts contains any statement of a public purpose for which the basin -was to be taken, and private property can not be appropriated to public use without such declaration. Const., •art. 1, § 19; Reeves v. Treas. of Wood Co., 8 Ohio St. 333.

Rut, the state being the lessor, it is wholly immaterial whether the acts were constitutional or unconstitutional, and it is equally immaterial whether or not the authority attempted to be conferred was strictly pursued. Where the tenant is evicted, by the landlord, from part of the premises, the entire rent is thereby suspended, for the landlord “ shall not so apportion his own wrong as to enforce •the tenant to pay anything for the residue.” The evic¡tion, whether partial or complete, which relieves the lessee from the payment of rent, is in the nature of a tort, and, though committed by another, the landlord must bear the consequences if he authorized the act. The proper inquiry is, “ whether the plaintiff' has, by his conduct, made •himself a party to that which, in point of fact, amounts to .an eviction. . . . The question, therefore, of eviction or no eviction, depends upon the circumstances, and it is, in all eases, to be decided by the jury.” Upton v. Townsend, Upton v. Greenlees, 17 C. B. (84 E. C. L.), 30-64-66; Royce v. Guggenheim, 106 Mass. 201; Fillebrown v. Hoar, 124 Mass. 580; McClurg v. Price, 59 Pa. St. 420; Tunis v. Grandy, 22 Gratt. 109; Hayner v. Smith, 63 Ill. 430.

The question, then, is not whether the statutes were -valid, nor whether they were complied with, but did the legislature, in passing the above-mentioned statutes of 1872, 1876, and 1877, occasion the destruction of the basin or materially contribute thereto ? That the passage of those statutes did so contribute — that this was, indeed, the «efficient cause of the destruction — I entertain no doubt. And the lessees were not bound to enjoin the city or those -attempting the destruction of the basin; nor were they estopped by renewing the bond on June 1, 1877.

In any view of the ease, the judgment below, in my ■opinion, was right; and of the same opinion is Gilmore, C. J. But the majority is of. a different opinion.


source: Caselaw Access Project

license: Public Domain

text:
    Ackerman v. Lazarus.
    Motion for stay of execution.

      Harrison, Olds $ Marsh, and IT. J. Wylie, for the motion.

      Marriott ‡ Hughes, contra.
   The undertaking required by subdivision 3 of section 15 (75 Ohio L. 806), to stay the execution of an order of sale of mortgaged property, ought to provide against, waste and for the value of the use arid occupation, as well as for the payment of the deficiency arising from the sale, where the payment of such deficiency is ordered. The statute prescribes a general rule for such undertaking, and is intended for the protection of other lienholders affected by the delay, as well as the mortgagee who may be entitled to payment of a deficiency.

Motion granted.


author: White, J.

text:
    Murphy & Bros. v. Swadner et al.
    1. By section 12, of chapter 6, of the code (75 Ohio L. 675), power is conferred on this court to vacate or modify its judgments or orders, after the term at which such judgments or orders were made; and, since the-expiration of the Supreme Court Commission, this power extends to-the judgments and orders of the Commission, as fully as to the judgments and orders of the court.
    2. On the hearing of a motion to vacate or modify a judgment or order, on-the ground that it was entered by mistake, parol evidence is admissible.
    3. Where the judgment entered on the journal is different from what was-intended by the court, but is shown to be such as ought to have been rendered, it will not be vacated or modified as entered by mistake.
    Motion to modify a judgment entered by the late Supreme Court Commission.
    The petition in error in this case was filed in this court-on November 17, 1874. The object of the petition was to-obtain the reversal of the finding and order of the Superior-Court of Montgomery county, made in a proceeding to distribute among execution creditors the proceeds of the sale on execution of certain personal property. On the organization of the Commission, the cause was transferred to-that body for decision.
    On June 19, 1878, judgment was entered by the Commission in the follow ing form: “ This cause came on to be heard upon the transcript of the record of the Superior-Court of Montgomery county, and was argued by counsel. On consideration whereof, it is ordered and adjudged by this court, that the judgment of the said superior court be, and the same is, hereby reversed, and this cause is remanded to the said superior court for such further proceedings as may be authorized by law.”
    The present motion is made by the plaintiffs in error, and certain of the defendants in error, to so modify the judgment as to show that the cause is remanded to the “ superior court for a distribution of the fund realized from the-sale of both the stock and machinery, according to section. 424 of the code, excluding the executions on the judgments in-favor of Hogle $ Co. and Holmes Co.”

    The superior court found that the executions issued oa the judgments in favor of Hogle & Co. 'and Holmes & Co.,, were the first liens on the stationary engine and. certain-other machinery and fixtures in the storeroom of the judgment debtors.
    From the testimony of witnesses contained in the bill-of exceptions, the Commission were of opinion that the-levies under these executions were invalid, for the reasou that there was no sufficient seizure of the property by the-officers holding the executions, and that the superior court, erred in holding the levies valid.
    By consent, on the hearing of this motion, the statement of four members of the Commission has been submitted. This statement is to the effect that it was not intended by the Commission to remand the cause for a rehearing generally, but only so far as was necessary to settle priorities as prescribed by section 424 of the code, excluding Holmes & Co., and Hogle & Co., for the reasons stated in-the opinion delivered in the ease; and that if the attention of the Commission had been specially called to the effect of the entry, they would have directed it to be made in the-form now asked.
    Against the modifications of the entry, the affidavits of the witnesses whose testimony is contained in the bill of ■exceptions, are submitted. The substance of these affidavits is that the testimony of the witnesses as given on the trial in the superior court, is not fully reported in the bill of exceptions, in regard to the seizure and possession of the ¡stationary engine, machinery, and fixtures, by the sheriff under the executions issued on the judgments of Holmes & •Co. and Hogle & Co. That in respect to such property, it •was seized by the sheriff under said executions, and that he continued to hold possession thereof, and that the agreement with the judgment debtor, by reason of which the levies were held to be invalid, did not embrace such property, hut extended only to the stock of merchandise held by the ■debtor for sale.
    - Young Gottschall, for the motion.

      Conover $ Craighead, and Thomas 0. Lowe, contra.
   White, J.

The amendment of the constitution by which ■the Commission was created, provides that the decisions of the Commission “ shall be , certified, entered, and enforced .as the judgments of the Supreme Court, and at the expiration of said Commission all business undisposed of shall be certified to the Supreme Court, and disposed of as if said Commission had never existed.” 74 Ohio L. 551.

By section 12, chapter 6 of the revised code (75 Ohio L. •675), power is conferred on this court to vacate or modify its judgments or orders, after the term at which such judgments or orders were made, for the causes specified in ■section 1 of the chapter; and, since the expiration of the Commission, we entertain no doubt that that this power extends to the judgments and orders of the Commission, as fully as to the judgments and orders of this court. If this •court is not invested with the power to vacate or modify the judgments and orders of the Commission, the power •does not exist.

But although the court has the power to make the modification, the case presented by the motion does not, in our •opinion, call for the exercise of the power.

There was no finding of the facts by the court under section .280 of the code. 2 S. & C; 1026. Nor did the case come within section 4 of the act of April 12, 1858. 2 S. & C. 1155.

Independently of that act, judgments and final orders were reviewable on error, under the code, only on questions of law. House v. Elliott, 6 Ohio St. 497; Turner v. Turner, 17 Id. 450; Wilson v. Scott, 29 Id. 636.

Assuming, however, that the Commission, after reversing the judgment of the court below, might, upon the state of the record, have proceeded to render final judgment between the parties, yet they were not bound to do so. And if the showing which is now made to us had been made to them, that the bill of exceptions did not correctly present the facts of the case, and that to conclude the parties by it, might do injustice, it is to be presumed that they would have refused to render such final judgment, and would have remanded the cause, as was done, to the court below for further proceedings. The fact that the judgment as entered on the journal is different from what was intended by the Commission, or rather is different from what they would have entered if their attention had been called to its effect, does not require it to be modified. The judgment is shown to be such as ought, under the circumstances of the case, to have been rendered, and, hence, will not be disturbed.

Motion overruled.


author: Okey, J.

text:
    Lawrence Railroad Company v. Commissioners of Mahoning County.
    1. The legislature can not create a liability for acts as to which there was no liability when they were committed; hut where a remedy exists, the legislature may change it, as well as to acts theretofore as those thereafter done.
    2. The act of March 7, 1873 (70 O. L. 53), which provided a new remedy against those who place obstructions in public highways, applied as well to existing obstructions as to those subsequently placed therein.
    3. A railroad company wrongfully laid its track in a public highway, and' after it had continued the obstruction more than six years, an action was brought against it under the act of 1873. Held, that neither the limitation of four years, nor that of six years, was a bar to the action.
    4. Under the act of 1873, relating to obstructions in highways, the measure’ of damages, ordinarily, is the cost of removing the obstruction and restoring the highway to its former condition.
    5. Where an obstruction is created in a state or county road, and the corporate limits of a municipal corporation are extended over a part of the' road so- obstructed, the county commissioners can not maintain an action for the obstruction of that part of the highway which is within the limits of the corporation.
    6. An action by the county commissioners, brought for the obstruction of a county road, was pending at the time of the passage of the act of March 7, 1873; and on May 81, 1873, the court, by consent of parties, made an order that the cause should stand as though commenced on that day. Held, that the action must be regarded as one prosecuted under the act of 1873.
    Error to the Court of Common Pleas of Mahoning county. Reserved from the district court of that county.
    July 20, 1872, the city of Youngstown commenced an action in the Court of Common Pleas of Mahoning county, against the Lawrence Railroad Company, a corporation under the laws of this state. At the January term, 1878, of that court, the commissioners of that county were substituted as plaintiffs. At the May term, 1873, the following order was made by that court and entered on its journal : “ This cause came on for hearing upon demurrer to the petition filed herein, and was submitted to the court, who, upon due consideration, overruled said demurrer, to which defendant by counsel excepts; and thereupon, by consent of parties, the plaintiffs have leave to amend and file new petition within forty days from court, defendant to answer in thirty days thereafter, plaintiff to reply iti twenty days thereafter, and hereafter this cause to stand as though commenced at this date, to wit, May 31, 1873; and this cause continued.”
    An amended and second amended petition was filed, the latter on August 8, 1874. In that it is alleged as follows :
    “ That in the year 1810 a public road and highway, commencing at or near to the point where East Federal street in the city of Youngstown, county and state aforesaid, crosses Crab creek and extending in an easterly direction therefrom, sixty-six feet in width, to and beyond the eastern boundary line of the township of Youngstown, county and state aforesaid, was duly and legally laid out and established by the proper authorities, and that the same was used and occupied by the public as such road and highway from said year until possession was taken thereof, as hereinafter set forth by said defendant, and that during said time said road and highway was graded, drained, and kept in good condition for the convenience and use of the public as such road and highway.
    “ That some time during the year 1866, the exact date said plaintiffs are now unable to give, said defendant wrongfully and without lawful authority, entered upon and took possession of said road and highway between said Crab creek and llazelton in said township, being a distance of about one and one-half miles, and in some places thereon dug up and removed the earth and soil therefrom, and in other places filled in for the purpose of causing the surface thereof to conform to the established, grade of its railroad and built and constructed its locomotive railroad thereon, and thereby obstructed said road and highway and rendered public travel upon all that portion thereof covered by said railroad absolutely impassable and upon that portion not covered thereby difficult, dangerous, and very unsafe, and that in consequence of the wrongful and illegal acts of said defendant as above set forth, said road and highway has been rendered very much less convenient and useful to the public than the same was previous to the commission thereof, and said defendant has ever since said year 1866 held, and now holds, possession of said road and highway between said points, and has ever since said year last mentioned kept and maintained, and now keeps and maintains, said railroad thereon, to the damage of plaintiff’s in the sum of one hundred thousand dollars, for which said plaintiffs ask judgment against said defendant.”
    The first, fourth, and fifth defenses in the answer were as follows:
    “ Eirst defense. That it is true defendant did, in the year 1866, enter upon and locate, and in that year, or the early part of the year 1867, did construct a portion of its railroad along and upon the highway in said petition mentioned ; that the same is a part of its main line of railroad, and which by its charter it was authorized to locate, construct, and maintain; and that the said entry upon said highway, and the location and construction of said railroad thereon, were done with the consent and knowledge of the commissioners of Mahoning county, Ohio, predecessors of the persons now acting as such commissioners.”
    “Eourth defense. Eor a fourth defense, defendant denies that the care, custody and control of all of said highway, or the title thereto, belongs to or is vested in plaintiffs. On the contrary, defendant avers that a large extent of said highway is, and for many years has been, within the corporate limits of said city of Youngstown, as a street thereof, the title to which is vested in said city, and the care, custody,' and control of which belongs to and is vested in said city.”
    “ Eifth defense. Eor a fifth defense defendant says that plaintiff ought not to have and maintain their action in said petition set forth, because it says that it located and constructed its said railroad along and upon said highway, under and by virtue of written contracts with the commissioners of Mahoning county, Ohio, and wherein said commissioners and defendant agreed upon the terms and conditions upon which defendant should use, occupy, and enjoy, for the purpose aforesaid, said highway; and whatever rights plaintiffs may have against defendant by reason of its railroad being located and constructed upon said highway, are dependent upon the terms of said written contracts.”
    The defendant also set forth in its answer'that the action was barred by the statute of limitations of four years and six years. The answer also contained a denial that the obstruction was to the extent claimed in the petition.
    By the reply the plaintiff admitted that the company located the main line of its road on the highway described in the petition, but denied all other allegations in the answer.
    On the trial at the January term, 1,876, the evidence was conflicting upon the question whether the highway had been entered upon or occupied by the company with either the verbal or written consent of the commissioners.
    In November, 1868, the corporate limits of the city of Youngstown were so extended as to include part of the road so obstructed by the defendant.
    The whole highway claimed by the plaintiffs to be occupied by the company, including as well that part within as that portion beyond the corporate limits, is twelve acres, being a track sixty-six feet in width and one and a half miles in length.
    On the trial, the plaintiff asked Montgomery, a witness, this question: “ State to the jury, what, in your judgment, was the value of the easement in this twelve acres of land, assuming that to be the quantity before the Lawrence Railroad was located upon it, to the public?” Answer: “I suppose it was $15,000.” Question: “ State what the same easement was worth after the Lawrence Railroad was- located and constructed along it, to the public, as a road and right of way between the same points ?” Answer: “ Taking into consideration the mode in which it is left by the railroad, I should say it might be worth $3,000 or $4,000.” Exception was taken to the introduction of the evidence. The court’ charged the jury, among other things, as follows:
    “ On the question of damages you will disregard the claim of counsel, that the rights of individuals owning land along the highway in question, are to be protected in this case. There being but two ways in which the public can become dispossessed of their easement in this highway, namely: either by contract with the commissioners or by appropriation proceedings, and unless the proof shows that by one or the other of these methods the defendant has acquired this easement, the public still retain it; and as the public, in such circumstances, have a complete remedy at law for compensation for that easement so taken by the defendant, the commissioners can not recover damages except for the extent to which the public have been inconvenienced in the use of said highway, from the time the defendant laid its track on said highway down to November, 1868, at which time the west half of said highway became annexed to the city of Youngstown, and for the extent to which the public have been inconvenienced in the use of the east half of said highway to the present time.”
    The jury returned a verdict for $3,500, and the court overruled a motion for a new trial, and entered judgment on the verdict. A bill of exceptions, in which all the evidence and the charge of the court are set forth, was taken by the defendant. The district court, to which the case was taken bn error, reserved it for the decision of this court.
    The act of 1853, “ establishing boards of county commissioners, and prescribing their duties ” (51 Ohio L. 421; 3 Curwen, 2204), was amended in 1873 (70 Ohio L. 53; 4 Sayler, 2866), as follows:
    “ Sec. 17. That in all cases where any bridge on any state or county road, or public building, the property or under the control or supervision of any county within this state, shall be injured or destroyed, or where any state or county road or public highway has been, or shall be, injured or impaired, by placing or continuing therein, without lawful authority, any obstruction, or by the changing of the line, filling up or digging out of the bed thereof, or in any manner rendering the same less convenient or useful than it had been previously thereto, by any person, persons, or ^corporation, such person, persons, or corporation shall be subject to an action for damages, and the county commissioners of the proper county are hereby authorized to sue for and recover of such person or persons, or corporation, so causing or having caused such injury or impairment, such damages as shall have accrued by reason thereof, or as shall be necessary to remove such obstruction or repair such injury, and the money so recovered shall, when col-’ lected by the proper officer, be paid into the treasury of the proper county, and shall be appropriated by the commissioners thereof to repairing such bridge, building, or road, or removing such obstruction, as the case may be; provided, the court may, in case of a recovery, make such order as in its discretion may be deemed necessary to repair the injury, or remove the obstruction complained of; and provided, further, that the statutes of limitation shall not run or be deemed to have run in favor of any person or corporation so obstructing or continuing an obstruction in, or causing injury to, or having done the same, respecting any such road or public highway.”

      J. T. Brooks, for plaintiff in error.

      Wilson, Jackson & Wilson, and Jones & Murray, for defendants in error.
   Okey, J.

The court properly instructed the jury that there could be no recovery on the issues as made, if the railroad company occupied the highway under an agreement with the commissioners. 54 Ohio L. 133. The jury must have found that there was no such agreement. We are not prepared to say that the court below erred in overruling a motion for a new trial, based on the ground that the finding was against the evidence. The rule on the subject is correctly stated in McGatrick v. Wason, 4 Ohio St. 566, 575. Nor does the fact that some of the commissioners saw the obstructions placed in the highway, but made no objection, afford any ground for saying that the plaintiffs were estopped.

The seventh section of the act of 1853, repealed and reenacted with changes (65 Ohio L. 35; 74 Ohio L. 134), seems not to provide for such a case. There is manifestly an error in the seventeenth section of the act of 1853, as originally enacted. Whether it occurred in the enrollment, I know not. We need not undertake the task of interpreting the enactment. This action is against a corporation for unlawfully placing an obstruction in a county road, and the rights of the parties must be determined under the seventeenth section of the original act, as amended in 1873.

The legislature, it has been said, can not create a liability for acts as to which there was no liability when they were committed. Const., art. 2, § 28; Little Miami R. R. Co. v. Comm’rs Greene County, 31 Ohio St. 338; and see cases collected in 70 Ohio L., Appendix, 69. But “ a party has no vested right in a defense based upon an informality, not affecting his substantial rights.” Cooley’s Con. Lim. (4 ed.) 461. At least, it is perfectly clear that if a liability exists, the form of the remedy may be changed, or the existing provisions supplemented by other legislative enactments. Such an obstruction as that created in this case is, by the act of 1857 (54 Ohio L. 130), re-enacted in 1877 (74 Ohio L. 240), declared to be a nuisance, and the person erecting or maintaining it is liable to indictment, chargeable with the expense of removing it, and moreover liable to the suit of any person injured by such nuisance in his health, comfort, property, or the enjoyment of his estate. And see the act of 1868, 65 Ohio L. 21, § 29 ; lb., § 32.

It is clear, therefore, that for this obstruction there was, at the time it was created, a remedy provided by law; and we think the general assembly might well provide, as it did by the amendment of 1873, this new and additional remedy, and that the amended act applied to obstructions already created. Nor can the statute of limitations apply to such a case as this, for the reasons stated in the opinion in Little Miami R. R. Co. v. Comm’rs of Greene Co.

Considering further the construction which should be placed on this act, we hold that, as applied to the facts disclosed in this record, the measure of damages is the cost of removing the obstruction and restoring the highway to its former condition. "What the rule is in those exceptional cases, where such restoration would be almost, if not altogether, impossible, we need not determine. But it is clear in this case that evidence as to the value of the easement was improperly received; the charge to the jury was given on an erroneous basis as to the measure of damages; and the petition was not framed in strict accordance with a proper interpretation of the statute, though we do not hold that no cause of action is stated therein.

The obstruction was placed in the highway in 1866 and 1867. In November, 1868, the corporate limits of the city of Youngstown were extended over a considerable portion of the road so obstructed, aud that part of the road became a street in the city. The court charged the jury that, as to this part of the highway, the plaintiffs might recover for damages sustained from the time the obstruction was placed in the road until such annexation was made, and evidence was received, against the defendant’s objection, to prove such damages. In this the court erred. True, it was held in Wells v. McLaughlin, Butman v. Fowler, 17 Ohio, 99, 101, that the county commissioners might lay out, within or through a municipal corporation, a public highway. We do not decide that that may not still he done. But the municipal code of 1869 (66 Ohio L. 222, § 439), re-enacted in 1878 (75 Ohio L. 388), provided that “the council shall have the care, supervision, and control of all public highways, bridges, streets, avenues, alleys, sidewalks, and public grounds within the corporation, and shall cause the same to be kept open and in repair and free from nuisance.” . And see 66 Ohio L. 149, §§ 8, 199. ' Under the act of 1873, the damages recovered must be appropriated by the commissioners in repairing the road or removing the obstruction ; but as control of highways in the corporation is confided to the corporate authorities, the commissioner could not apply such moneys within the corporate limits. Hence, if an action for damages, sustained by reason of such obstruction within the corporate limits of Youngstown, can be maintained, the action must be prosecuted by the city, and the recovery of the plaintiffs in this case must be confined to injury to the road outside of the city limits.

By the order of May 31, 1873, the cause is to stand as though commenced on that day. The order appears to have been made by consent of parties, and no attempt has been made to set it aside or impeach it. Full effect must be given to it, and we think such effect is given when we hold that by force of it this action must be regarded as one prosecuted under the act of March 7, 1873.

Other questions have been discussed, but we do not think it is important to make any report of them.

Judgment reversed, and cause remanded for a new trial.


text:
    The State of Ohio, ex rel. the Attorney-General v. Bonnell.
    Where the stockholders of a corporation wore notified that the annual meeting for the election of directors would be held at a certain hour of the day fixed by the charter, and the corporation was restrained from holding an election on that day, in consequence of which no meeting was held until several hours after the time fixed in the notice, when a small number of the stockholders, without the knowledge of the others, met, organized, and adjourned until the next day, at which time an election was held by a minority of the stockholders, without notice to others, who were in the vicinity for the purposes of the meeting, and might have been readily notified: Held, That such election was unfair, and must be held to be invalid, whether the restraining order did or did not bind the stockholders.
    Quo Warranto. On February 3, 1879, Hon. Isaiah Pillars, attorney-general, filed in this court a petition in the nature of a quo warranto, against Henry 0. Bonnell and others, asking that each of them be required to answer by what warrant he claims to exercise the office of director of Brown, Bonnell & Co., a corporation. An answer and reply were filed, and testimony was taken.
    On September 13, 1875, Joseph H. Brown, Henry 0. Bonnell, and, others acknowledged the certificate of the incorporation of a company, under the laws of this state, under the name of Brown, Bonnell, & Co. The object of the corporation was the manufacturing iron, mining coal, etc. The capital stock was $1,500,000, divided into fifteen thousand shares of one hundred dollars each. The principal office and place of business was fixed at Youngstown Ohio. It was further provided in the certificate, “ that the annual meeting of the stockholders of such body corporate, for the election of directors and the transaction of such other business as may be lawful, shall be held on the third Tuesday of January in each year.” The certificate was filed and recorded in the office of the secretary of state, on September 16, 1875, and a certified copy was issued in due form by the secretary of state, on the same day; and thereupon the corporation was organized, and it has ever since been engaged in the business for which it was created, the number of directors being fixed at seven. There was no bylaw as to notice to be given of meetings; but in January of each year, previous to the annual meeting, the secretary gave to the stockholders notice of the annual meeting, stating the hour at which it would be held.
    Meetings of stockholders were regularly held on the third Tuesday of January, in 1876,1877, and 1878, and directors elected, the following persons being chosen at the meeting in 1878: Joseph H. Brown, Richard Brown, Thomas Brown, George W. Hale, Henry 0. Bonnell, Herbert C. Ayer, and "W. Scott Bonnell, each receiving 13,044 votes. They were duly qualified and entered upon their duties as such officers. The meeting in each year was held in the morning, from ten to eleven o’clock, though, in 1877, the meeting was adjourned until two o’clock in the afternoon, when the election was held.
    Notice of the annual meeting to be held on the third Tuesday, being the 21st day of January, 1879, at half after ten o’clock, a. m., was served by the secretary on each stockholder.
    On the night of January 20,1879, an action was commenced by Joseph H. Brown and others, against George W. Hale and the corporation, Brown, Bonnell & Go., in the Court of Common Pleas of Mahoning county. In the petition it was stated that twelve hundred and fifty shares of the capital stock, amounting to $125,000, had been issued to Joseph H. Brown, and that he was legally and justly entitled to vote thereon, at all elections for directors of the corporation; but that, on January 15, 1879, said George W. Hale, having obtained possession of the certificates for said shares, fraudulently surrendered them, and procured the company to issue to himself a new certificate for the same shares, and unlawfully caused himself to be placed on the books of the company as the owner of the shares; that said Hale intended to vote on said stock, at the election of directors, on January 21,1879; that the facts had not come to the knowledge of the plaintiffs, until January 20, 1879, at two o’clock, p. m. The prayer was, among other things, that said Hale be restrained from voting on said shares, and that the company be enjoined from refusing to receive Joseph II. Brown’s vote on said shares.
    The application for an injunction was made to Hon. William T. Spear, one of the judges of the court of common pleas, on the night of January 20, 1879, Peter M. Hitchcock, George W. Hale, Henry 0. Bonnell, Thomas W. Sanderson, attorney of the company, and others being present. The judge, on January 21, 1879, at two o’clock, A. M., allowed a restraining order, in the following terms: “ By consent, all the parties in this action are hereby enjoined from holding any election, or attempting to hold any election, for officers of Brown, Bonnell & Co., and from transferring, or attempting to transfer, any stock of said Brown, Bonnell & Co., until January 22,1879, at ten o’clock, A. m., unless this order is sooner modified or vacated. January 21, 1879. William T. Spear, judge of the court of common pleas.”
    The arrangement was that the case should be heard, on the application for an injunction, in the afternoon of January 21, 1879. On that day, at two o’clock, p. m., Mr. Sanderson, attorney of the company, obtained the papers at the court-house, and remarked to Judge Spear that the defendants would be ready, and return with their affidavits for a hearing, within an hour. The judge and counsel for plaintiffs remained at the court-house until half after five o’clock, but, the defendants and their counsel not appearing, the judge made the following additional order: “ The foregoing order is continued in force until January 23, 1879, at ten o’clock, a. m., unless sooner modified or vacated, January 21, 1879. William T. Spear, judge of t]ie court of common pleas.” On the same day, Judge Spear informed Mr. Sanderson that this additional order had been made.
    A few minutes before the additional order was made— that is, about five o’clock on the evening of January 21st — • certain stockholders, to wit, Peter M. Hitchcock, Richard Brown, ~W. Scott Bonnell, Henry 0. Bonnell, James L. Botsford, and Martin Bonnell, met at the office of Brown. Bonnell & Co., for the purpose of “ saving the charter day,” as some of the witnesses expressed it. No meeting had been previously held on that day. A chairman and secretary were chosen, and, without transacting any other business, the meeting was adjourned until ten o’clock the next morning — that is, January 22d. No other stockholder had notice of the meeting.
    At the meeting on the morning of January 22d, certain proceedings were had, which appear in the records of the corporation as follows: “ On motion of T. ~W. Sanderson, it was resolved to proceed to the election of seven directors to serve for the ensuing year. . . . The whole number of votes east at said election was 4,806, and George ~W. Hale, George M. Ayer, Henry 0. Bonnell, ~W. Scott Bonnell, Herbert C. Ayer, Peter M. Hitchcock, and James L. Botsford each received 4,806 votes. . . . Thereupon, the chairman deelai-ed the above-named persons duly elected directors for the ensuing year.” The meeting then adjourned.
    The office of Brown, Bonnell & Co. consists of three rooms. The election was held in the room in the rear, which is reached by passing through the other two. After the meeting had organized, Henry 0. Bonnell, Peter M. Hitchcock, and their associates, saw Henry Crawford, Herbert 0. Ayer, and Henry I. Higgins, whom they knew to be stockholders, in the middle rooms, where they remained a few minutes and went away. Soon after they had gone, the chairman went to the front office and announced that if any stockholders of Brown, Bonnell & Co. were present, they could now come forward and vote for directors. Crawford, Herbert 0. Ayer, and Higgins, when they were present in the middle office, thought Henry O. Bonnell and his associates, in the back room, were preparing affidavi ts to resist the injunction, and none of them suspected that to hold an election was contemplated, until they were informed of the election after it had been actually held. Other stockholders, who had been in Youngstown since January 20th, were not notified of either meeting. This Henry O. Bonnell, Peter M. Hitchcock, and their associates, well knew. As Henry O. Bonnell stated in his testimony, “ no special pains were taken to give them notice.”
    On the trial of the case of Brown and others against Hale aud others, the court of common pleas, on March 5, 1879, found and adjudged in accordance with the petition, and made the perpetual injunction prayed for, and the defendants appealed to the district court, where the cause is now pending.
    Herbert C. Ayer has declined to accept under the election of January 22, 1879, and George ~W. Hale neither accepts nor rejects the office. The others elected at that time claim by virtue of such election.

      Henry Crawford and A. W. Jones (with Isaiah Pillars, attorney-general), for the relator:
    Burden on defendants: People v. Utica Ins. Co., 15 Johns. 358; Comm’rs v. Woelfer, 3 S. & R. 29; State v. Ashley, 1 Ark. 513. Meeting on evening of January 21st, and on morning of January 22d, illegal, because all the stockholders did not have notice : Green’s Brice’s Ultra Vires, 452 ; Eield on Corp., § 227; McCrary on Elect., 114; Smith v. Darley, 2 H. L. Cas. 789; People v. Batchelder, 22 N. Y. 134; Dickey v. Hurlbut, 5 Cal. 345; Knowles v. Yates, 31 Cal. 93 ; Musgrave v. Nevinson, 2 Ld. Ray. 1358; Stevens v. Eden Soc., 12 Vt. 688 ; School Dist. v. Blakeslee, 13 Conn. 227; Melvin’s case, 68 Penn. St. 340 ; San Buenaventura Mfg. Co. v. Vassaul, 50 Cal. 534. Election illegal, because held in violation of restraining order: Eield on Corp., §§ 184, 245 ; 1 Bl. Com. 467 ; Grant on Corp. 154; Green’s Brice’s Ultra Vires, 451, 455; Ang. & Am. on Corp. 89; Kyd on Corp. 399; Ex parte Wilcock, 7 Cowen, 409; 1 S. & C. Stat. 310, § 82; lb. 317; People v. Hatch, 33 Ill. 127. Under the circumstances, the election operated as a surprise anti fraud on the stockholders who did not participate : Grant on Corp. 204; Cooley on Const. L. 616 ; Ft. Dodge v. District, etc., 17 Iowa, 85 ; R. v. Gaborian, 11 East. 77 ; People v. Peck, 11 Wend. 611; People v. A. & S. R. Co., 55 Barb. 344; Foster v. Scarff, 15 Ohio St. 534.

      G. M. Tuttle and T. W. Sanderson, for defendants:
    Meeting of January 21st lawful, and hence could lawfully adjourn till January 22d, and then hold election: 14 Ohio St. 40. Right to hold election in nature of franchise: Com. Dig. Franchise F. 11; Grant on Corp. 68; Att'y-Gen. v. Davy, 2 Atk. 212; R. v. Foxcroft, 2 Burr. 1017; Comm’rs v. Read, 2 Ashm. 261; Brightley’s El. Cas. 126; People v. Clute, 50 N. Y. 451; 14 Ind. 97; 15 Ind. 331; 7 Ad. & El. (N. S.) 406; 10 East. 211; 1 S. & C. Stat. 276, § 9 ; lb. 301, § 2 ; Brewster v. Hartley, 37 Cal. 15; Petty v. Tooker, 21 N. Y. 267; People v. Phillips, 1 Den. 388; Ex parte Holmes, 5 Cowen, 426; 19 Wend. 37; 4 Cowen, 358, 382 ; 32 Ind. 393; 37 Cal. 543 ; Field on Corp., § 230. The stockholders not being parties, the restraining order did not operate on them: 75 Ohio L. 721; 1 Clarke, 348; Barb. Ch. Pr. 633 ; 9 N. Y. 263, 269; 32 How. Pr. 501; Calvert on Parties, 20-43 : Story’s Eq. PI. 149,1 57, 207; 11 Coke, 99a; Ang. & Am. Corp., § 420. Quo warranto discretionary: Comm’rs v. Cully, 56 Penn. St. 270; Comm’rs v. Jones, 12 Penn. St. 365.
   Okey, J.

Where the meeting is stated and general, notice of the time and place of holding it, or of the business to be transacted, is, in the absence of provision or regulation to the' contrary, in no case required. That is the general law of private corporations. Nevertheless, actual notice that the election for directors would be held at half after ten o’clock on the morning of January 21, 1879, was received by every stockholder. Moreover, it was the uniform custom to meet for such purpose on the morning of the day named in the certificate of incorporation, though, when directors were chosen in 1877, the meeting was adjourned until two o’clock in the afternoon for the purpose. Here no election was held at the time prescribed, in the certificate (January 21,1879), for the reason — known to all the stockholders — that the court had granted an order restraining the holding of such election on that day. Nor was any meeting held by the stockholders at the hour designated for the meeting. As the restraining order would not have prevented the stockholders from holding a meeting, if they had met at the time designated and adjourned until the next day, and then held an election, a different question would have been presented. It has been held that any business which may be properly transacted at a regular meeting may, if commenced but not completed at the regular meeting, be done at an adjourned meeting, which is simply a continuation of the regular meeting, and that no notice to the stockholders of the holding of such adjourned meeting is necessary. But this case does not fall within any such principle.

That all or nearly all the stockholders of Brown, Bonnell & Co. were present in the city of Youngstown, on the 21st and 22d days of January, 1879, and felt themselves deeply interested in the question of the election of directors for the corporation, and that this was known to every stockholder, is very clear; and it is equally clear that stockholders representing more than two-thirds of the shares of the capital stock were in no way notified of the meeting Held at the office of Brown, Bonnell & Co., on the evening of January 21st, or that held on the morning of January 22d, until the new directors were actually elected. To be sure, the chairman made proclamation, during the meeting on the morning of January 22d, that all stockholders of the corporation could come in and vote for directors ; but we can not doubt that making that proclamation was purposely delayed until Henry Crawford, Herbert C. Ayer, and Henry I. Higgins, three of the stockholders, had left the office.

We do not feel called upon to employ harsher language, in stating the course which was pursued, than is essential to accurate knowledge of the condition of things at the time the election in question was held. The stockholders had become divided in opinion as to the proper management of the affairs of the company. Some of them thought the iron should be disposed of to certain persons in Chicago. Others were of a different opinion. The course to be pursued by the corporation would, of course, be determined by the majority of stockholders in electing directors. In fact, the question really turned upon the 1,250 shares of stock in controversy in the case of Brown and others against Hale and others. Doubtless, the Bonnells, Hitchcock, and others, thought that bringing that action was a very improper thing to be done. With that feeling, it is, perhaps, not strange that the election in question was held. We express no opinion as to the merits of the questions involved in that case, nor as to the force and effect of the restraining orders. The only question we find it necessary to determine is, whether, without regard to the effect of the restraining orders, the law will uphold an election held under such circumstances. On careful consideration of the case, we unite in holding that it will not. To sustain an election held under such circumstances would, indeed, be a most dangerous precedent. The liberal rule which is extended to elections fairly but irregularly held, has no just application to this case. It follows that j udgment of ouster must be entered against all persons claiming' by virtue of the election held January 22,1879 ; and the directors elected January, 1878, will be restored to office ; for, where directors have been regularly elected, and enter upon the duties of the. office, they will continue to be directors until their-successors are duly elected and qualified, though they may,, for a time, be interrupted in the discharge of their duties;. and such successors must be chosen as provided in the statute, that is, at the annual meeting in January or at a special election.

Judgment of ouster, etc.,