author: Davis, J.

text:
    Barr v. Denney et al.

      Wills — Technical rules of interpretation — Devise to wife for life — • Directions to distribute property — Among heirs after death of wife — Bequest does not vest immediately — Rights of legal heirs.

    1. Technical rules of interpretation may be resorted to as aids to the construction of a will; but they can not control if they are in conflict with the apparent intention of the testator.
    2. Where a testator devises and bequeaths the whole of his estate, real and personal, to his wife during her natural life, except certain amounts to equalize gifts among his children, and then without any express or implied legacy, except as contained in the direction to his executor to convert into personalty and distribute, makes the following dispositive clause, viz.: “After the death of my wife I desire that the whole of my property, both real and personal, he sold by my executor and after expenses are paid to distribute equally to my legal heirs,” the rule that a bequest in the form of a direction to pay, or to pay and divide at a future period vests immediately, if the payment be postponed for the convenience of the fund or estate, or merely to let in some other interest, does not apply. Linton v. Laycock, 33 Ohio St., 128, distinguished. Richey, Exr., v. Johnson, 30 Ohio St., 288; Sinton v. Boyd, 19 Ohio St., 30, and Hamilton v. Rodgers, 38 Ohio St., 242, approved and followed.
    3. In such case the direction to the executor to pay or to distribute to the testator’s “legal heirs” confers a contingent interest, which does not vest until the period of distribution; and the direction “to distribute equally to my legal heirs” is equivalent to a direction to make distribution in accordance with the . statutes providing for descent and distribution
    (No. 10650
    Decided February 2, 1909.)
    Error to the Circuit Court of Greene • county.
    James Barr died on the 7th day of October, 1879, leaving a will, in which he provided that after all his just debts were paid the whole of his estate both real and personal should go to his wife, Mary A. Barr, during her natural life, except certain payments to be made to certain of his children in order to make them equal with two sons who had already received a part of his estate. And he further provided that, “after the death of my wife I desire that the whole of my property both real and personal be sold by my executor and after expenses are paid to distrib%ite equally to my legal heirs.” About eleven years after the death of the .testator, his daughter Margaret Maud Barr, married the defendant, Henry H. Denney, and about two months after her marriage, and before the death of the widow of the testator, she died leaving no issue. The defendant, Denney, claims an eighth interest in the distribution of the fund arising from the sale of the said real and personal property. The administrator de bonis non with the will annexed of James Barr, deceased, began this proceeding to determine the true construction of the will and especially of the clause already quoted. The court of common pleas found that the true meaning of the will was that the legal heirs mentioned were those who constituted the legal heirs of James Barr at the period of distribution, to-wit, the death of the widow, and held, therefore, that the defendant, Henry H. Denney, was not entitled to share in the distribution of the estate. The circuit court reversed this finding and found that the true meaning of the will was that the legal heirs mentioned were those who constituted the legal heirs of James Barr at the time of his death and not at the time of the death of his widow and therefore held that Henry H. Denney, as the administrator of Margaret Denney, was entitled to an eighth of the fund to be distributed. This petition in error is prosecuted to reverse the finding and judgment of the circuit court and to affirm the finding and judgment of the court of common pleas.

      Messrs. Darlington & Darlington for plaintiff in error.
    The intention of the testator controls the construction of a will and the sole purpose in construing is to ascertain and carry out the intent. Technical rules of construction will be applied only when the intention of the testator can not be otherwise ascertained. Exrs. of Decker v. Exrs. of Decker, 3 Ohio, 157; Stevenson v. Evans, 10 Ohio St., 307; Starling’s Exr. v. Price, 16 Ohio St., 29; Townsend’s Exr. v. Townsend, 25 Ohio St., 477; Linton v. Laycock, 33 Ohio St., 128.
    So we maintain that in this case the scheme of the will intends a contingent interest. The testator provides for his children by name, and provides for his widow for her life, and then contemplating that his estate would be undisposed of at the death of his widow and that his four children might not then be alive he orders distribution to his legal heirs just as if he took his stand at the time of the death of his widow and said— “I direct the remainder .to be divided amongst my legal heirs,” in which case no words of survivor-ship would be necessary and those living then would take. Hale v. Hobson, 167 Mass., 397.
    To his wife he uses apt words to indicate a present gift, showing that he knew the proper words to use for such a purpose; to his heirs he uses words, which are clearly shown by Scott, J., in
      Richey v. Johnson, 30 Ohio St., 288, to indicate an intention not to make a present gift with the enjoyment postponed, but to make the gift itself in the future to the unknown members of a class.
    Where there are no words importing a gift other than a direction to the executors or trustees to divide or pay at a future time the legacy is contingent and does not vest until that time arrives. 30 Am. & Eng. Ency. Law (2 ed.), 771.

      Richey v. Johnson was affirmed on that very proposition in Hamilton v. Rodgers, 38 Ohio St., 242; Bank & Trust Co. v. Darr et al., 19 C. C., 497, 10 O. C. D., 554; 2 Rockel Probate Practice, 1069.
    Of the many authorities in other states in accord with the above we cite only recent cases in Massachusetts and New York. Eager v. Whitney, 163 Mass., 463; Matter of Crane, 164 N. Y., 72; Dougherty v. Thompson, 167 N. Y., 483.
    The rule that where there is a direction to pay or divide and pay at a future time or on a given event, the vesting is immediate if the payment or division is postponed to let in a prior or life estate, is applied in all cases where there is a gift either in express terms or where an inference of a gift arises from the direction to pay or distribute to specific individuals; but the rule is not applied where the direction to the executor is to distribute to the legal heirs after the termination of the life estate, or in other words to distribute according to the statute of distributions. 2 Jar-man on Wills, 458; Hawkins on Construction of Wills (ed. of 1872), 234; Bromley v. Wright, 7 Hare, 334; Power v. Hayne, L. R., 8 Eq., 262;
      Parker v. Sowerby, 1 Drew, 488; Salmon v. Green, 11 Beav., 453; Burrell v. Baskerfield, 11 Beav., 534; Leeming v. Sherratt, 2 Hare, 14; Hallifax v. Wilson, 16 Vesey, 168; Watson v. Watson, 11 Sim., 73; Packham v. Gregory, 4 Hare, 396; In re Wilson’s Trust, 14 Jur., 263; Homer v. Gould, 1 Sim., N. S., 541; Strother v. Dutton, 1 DeG. & J., 675; In re Bright’s Trust, 21 Beav., 67; McLachlan v. Taitt, 28 Beav., 407; Chaffers v. Abell, 3 Jur., 578; Smith v. Palmer, 7 Hare, 225; In re Bennett, 3 K. & J., 280; McClure’s Appeal, 72 Pa. St., 414.
    Turning now to some of the American authorities that sustain the rule we find that they do not differ from the English authorities in the essentials that we claim; that is, the gift is a. present one, or to a specific individual or to a class or to trustees for specific beneficiaries. Herbert’s Exrs. v. Port, 23 N. J. Eq., 278, and the same case in 27 N. J. Eq., 540; Loder v. Hatfield, 71 N. Y., 92; Birdsall v. Hewlett, 1 Paige, 33; Marsh v. Wheeler, 2 Edw. Ch. 156; Fuller v. Winthrop, 3 Allen, 51; Shattuck, Admr., v. Stedman, Exr., 2 Pick., 467.
    We submit that these authorities sustain an artificial rule of construction that should not be extended beyond a case involving the same general features and should not be applied to the case at bar.
    The object is not to ascertain what rule of construction shall apply, but what the testator intended. In all of the cases cited thus far in this brief there was no uncertainty as to the persons who were to take, while in the case at bar there is an uncertainty.
    The case of Rich v. Waters et al., 22 Pick., 563, is in point.
    Where there is a bequest of personalty to be divided among several at a future period, no interest vests in the legatees until the division takes place.
    But there is no gift to the next of kin and no language importing such gift except in the direction to convert the real estate into money and then make distributions, and in such case the rule is settled that time is annexed to the substance of the gift and the vesting is postponed. Comb’s Devisees v. Branch, 4 Dana (Ky.), 547; Delaney v. McCormack et al., 88 N. Y., 183.
    The decisions in our own state that are supposed to be favorable to the other side may be classed with those we have been reviewing. Brasher v. Marsh, 15 Ohio St., 103.

      Mr. M. J. Hartley, for defendants in error.
    But not alone the actual words used will be considered in arriving at the intention of the testator, but his object, ruling, motive or purpose in making the will. Linton v. Laycock, 33 Ohio St., 128.
    The statutes of descent and distribution provide for the descent of property and its equal distribution. Consequently the ties which connect the testator with his legatees, the affection subsisting between them, the motives which may be reasonably supposed to operate with him and influence him in the disposition of his property, are all entitled to consideration. Smith v. Bell, 31 U. S., 68; Jewett v. Jewett, 21 C. C., 278.
    After the care he took to equalize two of his children by giving them $200.00 more than the others, and after directing that the proceeds be divided equally among his heirs, it is apparent that his object was to divide his estate equally among- his children after the provision for the maintenance of his wife had been accomplished. Linton v. Laycock, 33 Ohio St., 136.
    The word “heirs” has often been' construed to mean children when necessary to effect the testator’s purpose. Coseby v. Executors, 2 Dis., 460; King v. Beck, 15 Ohio, 559; Durfee v. McNeil, 28 Ohio St., 238; Hoagland v. Marsh, 4 C. C., 31.
    It is the rule no longer that where there is no gift but by a direction to pay or divide and pay at a future time or on a given event the vesting will be postponed until after that time has arrived or that event has happened but the test is the reason for the postponement, and if that was that the property had been given to another for life, the bequest vested. Executors v. State, 72 Ohio St., 454.
    A bequest in the form of a direction to pay or to pay and divide at a future period, vests immediately if the payment be postponed for the convenience of the estate or to let in some other interest, as for instance a life estate to the widow of testator. Thompson v. O’Dell, 22 C. C., 200; Faulkner v. Clevenger, 35 W. L. B., 125, 54 Ohio St., 637; Collier v. Grimesey, 36 Ohio St., 17.

      When there is no. gift, but a direction to pay or divide and pay at a future, or on a given event, the vesting will be postponed till after that time has arrived, or that event has happened, unless from particular circumstances a contrary intention is to be collected. Richey v. Johnson, 30 Ohio St., 288; Sinton v. Boyd, 19 Ohio St., 30; Hamilton v. Rodgers, 38 Ohio St., 242; Faulkner v. Clevenger, 54 Ohio St., 637.
    But in the case at bar there are the “particular circumstances” from which a contrary intention is collected, that is, that the time of payment or distribution is postponed to let in a life estate to the widow of deceased.
    When such is the case it is the rule that the estate vests at the death of the testator.
    The estate created has no element of contingency, nor uncertainty about it; it is to be distributed at a time certain to arrive to certain definite or designated persons. There is no condition precedent to the right to these proceeds, the postponement being the right of possession, and that these elements constitute a vested remainder from the taking effect of the will. Weymouth v. Irwin, 5 N. P., 248; Dean v. Nichols, 25 W. L. B., 278, 54 Ohio St., 628.
    The remainder here created where there were persons in being ascertained and capable of taking at the expiration of the particular estate comes clearly within the definition of a vested remainder and in fact has no element of contingency in it. 24 Am. & Eng. Ency. Law, 393.
    The law favors the immediate vesting of estates. Thompson v. O’Dell, 22 C. C., 200; Sherman v. Baker, 40 L. R. A., 717.

      An estate will be presumed vested at the death of the testator under the circumstances of this case unless a contrary intent is manifest. Bolton v. Bank, 50 Ohio St., 290.
   Davis, J.

There can be little or no contention in regard to the rules of construction which may be resorted to in the effort to ascertain the true meaning of this will.. The chief source of debate between the parties is as to which of them, and how, they may be applied to best effectuate the intention of • the testator. All agree that the testator’s intention when once ascertained must control, if the intended provision is lawful; and that such intention must be sought in the terms of the whole will. Yet it must be conceded that if the language of the will, when all of its parts have been considered, remains ambiguous, the construction must finally be determined by calling to our aid such rules of interpretation as the reasoning and experience of the courts have wrought out and established b)^ common consent as tending to the uniform administration of justice. To express these thoughts in another way, technical rules may be used as aids to interpretation but can not control if they be in conflict with the apparent intention of the testator.

The controversy in this case arises from the following clause of the will. “After the death of my wife I desire that the whole of my property both real and personal be sold by my executor and after expenses are paid to distribute equally to my legal heirs.” The contention on the part of the defendant in error, Denney, is that the -bequest to the legal heirs of the testator vested at the death of the testator. On the part of the plaintiff m error it is insisted that the bequest is future and contingent and that it did not vest until the time for distribution.

The testator had in contemplation all of his property and all of his family when he made this will; for his declaration is, “ will and bequeath to my wife, Mary A. Barr, the whole of my estate, both real and personal, for her use and benefit during her natural life, except as follows;” then he provides for payments to equalize the amounts received by his children. He makes no gift over, either by remainder or executory devise; but looking to the future, he says, “After the death of my wife I desire that the whole of my property, both real and personal, be sold by my executor and after expenses are paid to distribute equally to my legal heirs.” There is nothing further in the will to explain or qualify this clause. Although he was careful to equalize advancements among his children and named several -of them, lie makes no devise or bequest specifically to any of them nor to all as a class, but requires that his executor, after the termination of the life estate, shall convert the whole estate into personalty, and after expenses are paid, shall distribute equally to his legal heirs. The fund cannot be created, nor the extent of the interest in it be determined until the life estate has terminated, the property converted and the expenses paid. This will was made when death was imminent. The testator died in less than three weeks afterward. Although he had his children in mind the moment before he dictated this provision, yet, looking into the indefinite future and perhaps remembering that some of them might predecease their mother —the event which actually did happen — he refrained from bequeathing the property to his children, by name or as a class, or expressly to his next of kin or heirs at law who might be such at the time of his decease, but broadly, and it would seem with a distinct and rational purpose, directed his executor “to distribute equally to my legal heirs,” an expression exactly equivalent to a direction to make distribution at the time stated according to the statute of descents and distribution. Hence the most natural interpretation of this will is that the testator bequeathed nothing after the expiration of the life estate and contented himself with the expression of his desire that the property should all be converted into personalty and then distributed equally among those who might then be his legal heirs.

This interpretation of the will is made entirely clear, we think, by further considerations from the technical point of view. We have already adverted to the fact that 'there is no gift in praesenti tc the testator’s heirs. If it were so the interests would be vested and would be contingent only in respect to the time of possession and enjoyment. Of such a nature is -the case of Linton v. Laycock, 33 Ohio St., 128, which is so much relied upon by the defendant in error, and Collier v. Grimesey, 36 Ohio St., 17. But if there is a gift over in futuro after the expiration of an intermediate estate, not to specified individuals or to a definite class, but to persons not ascertained or not in being at the time of the bequest, the legacy is con-ting'ent and does not vest until the time of distribution. 4 Kent, 207.

In Richey, Exr., v. Johnson, 30 Ohio St., 288, this court had under consideration a will in which the testator devised to his wife for her natural life the use of a farm and directed that after her death his executors should sell the farm and divide the proceeds equally between the testator’s brothers and sisters “and their heirs.” It was held that “the gift implied in the direction to divide the proceeds between the designated parties is a gift of personalty; but as the fund could not be raised until the death of the widow, and was to be divided between persons then living, the interest of the legatees therein remained contingent till that time.”

In Tennessee it was held that a devise to a widow for life and at her death to the heirs at law of the testator, creates a contingent remainder and the estate goes in fee to such persons only as at the widow’s death answer to the description of heirs at law of the testator; and the court cited with approval Bigley v. Watson, 98 Tenn., 358, 359. The court said: “The chancellor treated the remainder as vested, but the Court of Chancery Appeals was of the opinion that it' was contingent. We concur in the latter view. The remainder was contingent, because the testator obviously intended the land to be divided at the death of his widow among such persons as should then sustain to him the relation of heirs at law. The remaindermen are to be ascertained not at his death, but at the death of his widow, the life tenant; and they are to be such persons as would at that time be his ‘heirs at law.’ At his death, when the will took effect, those persons were ‘dubious and uncertain;’ therefore the remainder must be contingent.”

.In New York, the court of appeals held, in a case in which the testator left a large estate,- both real and personal, giving to his widow a life estate and half the income of all his property of every kind, and to his ‘legal heirs” the remainder of the income accruing during the life of his wife after the payment of all taxes, assessments and' other charges against his estate, that the words “legal heirs,” as used in the will, meant those who would take in case of intestacy and in the portions prescribed as under the statute of distributions. Woodward, v. James, 115 N. Y., 346. In another case the same court, Matter of Crane, 164 N. Y., 71, per Parker, C. J., held that where, “aside from the direction to the executors or trustees to divide and distribute the estate upon the death of the widow, there are no words importing a gift, and where the only gift is found in a direction to divide, or pay, at a future time, the gift is future not immediate; contingent and not vested.” There are many other cases of the same import, both in this country and m England. These well settled principles of law, with the considerations heretofore expressed with regard to the intention of the testator as shown in this will, would seem to conclusively establish the interpretation which we have reached.

But the counsel for the defendant in error, Denney, insists that although there may be no gift in this will except as implied from the direction to pay after the death of the widow and the conver-' sion of the property into personalty and the.payment of the expenses, yet that the vesting of the interest to the legatees is immediate, because the interest is postponed only as to its enjoyment in order to let in a prior life estate. And he seems to rely upon the case of Linton v. Laycock, 33 Ohio St., 128, as supporting his contention. As we have already said, that case was distinctly different from the present one in that, in that case the direction to divide and distribute was a direction to divide and distribute “amongst all my children then living or their heirs when the youngest child is twenty-one years of age,” etc. And from that language the court held, as expressed in the fourth proposition of the syllabus, that: “A devise to one when he arrives at a given age — sthe intermediate estate being devised to another — vests on the death of the testator, and is not defeated by the death of the devisee before the specified age. The words of futurity importing contingency, are not necessarily inconsistent with the immediate vesting of the estate, but may be regarded as merely postponing the possession.” The court regarded the direction in the will to divide the estate among specified devisees as disclosing a gift in praesenti, which was to ripen into possession “'when the youngest child is twenty-one years of age;” and as an aid to that construction the court resorted to the rule that, “words of seeming condition will, if they can bear that construction, be held to have the effect of postponing the right of possession only, and not the present right to the estate.”- In the present case the words of condition will not, in our. judgment, bear such a construction nor permit the application of that rule. The doctrine of Richey, Exr., v. Johnson, 30 Ohio St., 288; Sinton v. Boyd, 19 Ohio St., 30; Hamilton v. Rodgers, 38 Ohio St., 242; and not that of Linton v. Laycock, supra, is applicable to and decisive of this case.

The judgment of the circuit court is reversed and that of the court of common pleas is affirmed.

Reversed.

Crew, C. J., Spear, Shauck and Price, JJ., concur. 1


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    Doan v. Rogan.

      Written contract to form partnership — To be succeeded by corporation■ — General conduct of corporation set forth — Contract does not lack consideration — And is enforceable, when — Stipulation for liquidated damages for breach — Not construed as penalty, when.

    1. A contract in writing by which the parties agree to form a present partnership for the establishment of a mercantile business, to be succeeded afterward by a corporation of which the parties are to be directors, and the general conduct of which is set forth in the agreement, one of the parties to furnish the capital and devote a portion of his time to the conduct of the business, and the other to give his entire and undivided attention to the business for a period of three years, and to receive a fixed salary therefor, also to share in the profits, but to be protected by the one who is to furnish the capital from any liability for debts incurred, is not invalid as lacking consideration or mutuality, but is an enforceable contract.
    2. Whether a stipulation providing for liquidated damages for the breach of a contract is to be construed as liquidated damages or as a penalty depends upon the intention of the parties to be gathered from the entire instrument. While courts will not construe contracts in a way authorizing recovery for liquidated damages simply because the parties have used that term in the agreement, yet, where parties to a contract otherwise valid have in terms provided that the damages of the injured party by a breach on the part of the other of some particular stipulation, or for a total breach, shall be a certain sum specified as liquidated damages, and it is apparent that damages from such breach would be uncertain as to amount and difficult of proof, and the contract taken as a whole is not so manifestly unreasonable and disproportionate as to justify the conclusion that it does not truly express the intention of the parties, but is consistent with the conclusion that it was their intention that damages in the amount stated should follow such breach, courts should give effect to the will of the parties as so expressed and enforce that part of the agreement the same as any other.
    (No. 10655
    Decided February 2, 1909.)
    Error to the Circuit Court of Cuyahoga county.
    Action below was to recover damages for breach of the following contract:
    “This Agreement by and between Michael J. Rogan, Seth H. Doan, Dudley J. Mahon and Conrad Roth, witnesseth:
    “First. That it is hereby mutually agreed .between the parties hereto that a corporation shall be organized under the laws of Ohio for the purpose of carrying on in Cleveland, Ohio, a retail clothing business. That said company shall have a capital stock of thirteen thousand dollars ($13,-000.00) divided into thirteen hundred shares of ten dollars ($10.00) each, the name of the same to be The Rogan Clothing Company.
    “Second. That it is understood and agreed between the parties hereto that the said Michael J. Rogan is to pay to such corporation when formed the sum of five thousand dollars ($5,000.00) in cash and to receive therefor 500 shares, of the paid up capital stock of said company. That to each of the other parties to this' agreement there is to be issued one share of the capital stock of said company.
    “Third. That in said corporation it is hereby agreed that each of the parties hereto are to be directors and that said Michael J. Rogan is to be the president of said corporation, Seth H. Doan, the treasurer and general manager, Dudley J. Mahon, the secretary, and Conrad Roth the vice-president.
    “Fourth. That during the first year said Michael J. Rogan as such president is to draw no salary, but during such time as he is in Cleveland attending to the business of said company his necessary expenses are to be paid by the company.
    “Fifth. That said Seth H. Doan as such treasurer and general manager is to receive the sum of thirty-five dollars ($35.00) per week and the sum of four hundred dollars ($400.00) as a bonus at the end of the year. That said Dudley J. Mahon and Conrad Roth as the secretary and vice-president of said company are to each receive the sum of twenty-seven and 50-100 dollars ($27.50) per week, said salaries to commence August 1, 1903.
    “Sixth. That at the expiration of every six months a complete inventory is to be taken, based on the market value of the goods at the time of the taking said inventory and any profits are to be divided into four equal parts and shares of the said capital stock are to be issued said four persons to the extent of the said profits, and the same course is to be followed until all the remaining' stock, to-wit, the said seven hundred' and ninety-seven (797) shares have been issued. And after said stock is paid up, the profits are to be divided into four equal parts and paid to the.four parties to this agreement by way of dividends for the period of three years from this date.
    “Seventh. That upon the final dissolution of the temporary partnership hereby formed, or the fin,al distribution of the assets of the corporation to be formed, and in the determination of all profits and dividends, the said five thousand dollars ($5,000.00) paid by Michael J. Rogan is to be treated as if it were a liability of the partnership or corporation, although the same is not in fact to be really a' debt, but merely a first charge on the assets'after the real debts have been paid. But interest on said sum is to be paid by the partnership to said Michael J. Rogan at the rate of six (6) per cent, per annum, and when said five hundred (500) shares of stock are issued to him for said sum he is to be paid six (6) per cent, per annum by said corporation, but is to receive by reason of said five hundred (500) shares no further share in the profits, whatsoever, for the period of three years from this date.
    “That the said Michael J. Rogan hereby guarantees to protect said Seth H. Doan, Dudley J. Mahon and Conrad Roth from any liability for any debts incurred by the said corporation in the purchase of goods, it being mutually understood and agreed that no goods are to be purchased or debts incurred without the written consent of Michael J. Rogan, and that no note, draft, check or writing of said parties or the said corporation is to have any validity whatsoever until the same has been countersigned by said Michael J. Rogan.
    ■ “That all checks, drafts, notes and instruments are to be executed for said corporation by said Seth H. Doan, its treasurer, and then countersigned by said Michael J. Rogan, the president.
    “Eighth. That said Michael J. Rogan as such president is to have the power to discharge any officer or employe of the company for just cause.
    “Ninth. That said Seth H. Doan, Dudley J. Mahon and Conrad Roth are to give their entire and undivided attention to the business of the company and to faithfully discharge. their duties. That said Seth H. Doan is to perform the work usually done by a general manager and to exercise the usual authority of said officer. That each of said persons during the period of three years from this date will give all of their time to said business and engage in no other occupation or business enterprise whatsoever.
    “Tenth. That neither of the parties hereto, or any member of the company shall sell any goods upon credit. That if any goods are so sold the same are to be at once charged against the individual making the sale and he is to settle for the same within thirty days from the time of the sale.
    “Eleventh. That if any delay should occur in the formation of the corporation above referred to, in the meantime this agreement from its execution shall be considered as creating a partnership bet-tween the parties hereto, the same to continue upon the terms above provided for the period of at least three years.

      “Twelfth. That if either said Seth H. Doan, Dudley J. Mahon or Conrad Roth shall sever his connection with the said temporary partnership or said corporation without the consent of Michael J. Rogan and within three years from this date the person so offending shall pay said Michael J. Rogan the sum of one thousand dollars ($1,000.00) as his liquidated damages.
    “Thirteenth. That when said corporation has been formed such clauses shall be inserted in the regulations and by-laws as may be necessary to give effect to any of the stipulations herein.
    “In witness whereof the parties hereto set their hands at Cleveland, Ohio, June 24th, 1903.
    “(Signed) “M. J. Rogan,
    “Seth H. Doan, “Conrad Roth,
    “Dudley J. Mahon.”
    The breach consisted in a violation of the twelfth clause of the contract and arose by reason of the plaintiff in error (defendant below) Seth H. Doan, refusing to go on with or in any way performing his agreement as expressed by the contract.
    Doan’s answer contained an admission of the making of the contract and a general denial otherwise. Also that the contract was without consideration and was void for illegality and want of mutuality; that Rogan had suffered no loss in the premises; and that before the contract was accepted by • the corporation to be formed, and before plaintiff had expended any money in proceeding to carry out the terms of the contract, defendant withdrew from the arrangement and notified plaintiff and the other signers of the instrument that he could not carry out the terms specified to be performed by him.
    The case was tried in the common pleas to a jury. These facts were disclosed at the trial: The plaintiff, Michael J. Rogan, a resident of Detroit, Michigan, desiring tp engage in the clothing- business at Cleveland, and not being himself acquainted with the trade at that place, entered into negotiations with Seth H. Doan, Conrad Roth and D. J. Mahon, salesmen then in the employ of a larg'e .mercantile establishment in that city, for their co-operation, which resulted June 24, 1903, in the making of the contract copy of which is hereinbefore given. A location was determined upon on Euclid avenue in the building known as the Arcade, at which location the contract was signed by the parties. Doan was to be the treasurer and general manager and was to receive, as stated in the contract, thirty-five dollars per week and four hundred dollars yearly as bonus; the other two less salaries, and Rogan to receive no salary. Ele was to put in five thousand dollars capital and receive six per centum interest on that. Relying upon the stipulation of these persons as expressed in the contract, and apparently especially relying upon that of Doan, Rogan, in the presence of Doan, and with verbal assurance of intention to stand by his agreement,, entered into a three-year written lease with the Arcade company in his own name, from August 15, 1903, of four rooms in the Arcade for store purposes at a monthly rental of one hundred and fifty dollars. The day the contract was signed, and after executing the lease, Rogan left for the East for the purpose of buying goods for the store expecting that the other three would meet him in Rochester a day or two later. After the execution of the contract and of the lease, Doan, Roth and Mahon resigned their positions with their former employer, and the next day Roth and Mahon went on to Rochester to meet Rogan. Doan, being advised b}r Roth and Mahon that they were going to meet Rogan and expected them to accompany them, finally, after some negotiation, declined to go and the other two left without him. Doan sent no word to Rogan, and did not afterwards communicate with him. His conduct was in effect a refusal to go on with the contract and a breach of it. Rogan, with Roth and Mahon, went on with the business, each performing the contract on his part.
    During the month of July following the contemplated corporation was formed by the three contracting parties, two others being associated ■in order to comply with the statute as to the number of corporators, but Rogan having furnished the capital became the principal stockholder, the others holding only one share each. In so far as it was practicable to do so the contract between the four was recognized and the method of conducting the business therein provided for was carried out. The business, however, proved unremunerative, and Rogan lost his money.
    It was the opinion of the court of common pleas that the sum mentioned in the twelfth clause as liquidated damages was in effect a penalty, and that inasmuch as ho proof of actual damage had been offered, the plaintiff was, entitled to nominal damages only. The jury was instructed accordingly, and a verdict for nominal damages was returned on which judgment was entered. This judgment was reversed by the circuit court and final judgment rendered for Rogan. The plaintiff in error, Doan, brings error.

      Mr. W. B. Neff and Mr. W. D. McTighe, for plaintiff in error.
    We contend that the contract was void for want of mutuality because at the time of its execution, the corporation which was intended to be formed was not in existence. No company exists within the meaning of the statute, until the requisite stock has been subscribed and paid in, and the directors chosen. State, ex rel., v. Insurance Co., 49 Ohio St., 440.
    It will be observed that the plaintiff in error could not possibly be compensated according to the terms of the contract unless such corporation was formed. The contract does not bind the defendant in error, Michael J. Rogan, to employ the plaintiff in error for any salary or for any length of time. It did not bind the corporation because it was not in existence. Turnpike Co. v. Coy, 13 Ohio St., 84.
    At most it is a mere offer on the part of Mr. Doan and could not become binding until accepted by the corporation. 10 Cyc., 263; 4 L. R. A., 508, note; Thompson on Corporations, Sections 480, 482, 483; 4 Am. & Eng. Ency. Law, 201; Stowe v. Flagg, 72 Ill., 397; Winters v. Mining Co.,
      57 Fed. Rep., 287; Morrison v. Mining Co., 52 Cal., 306; 7 Am. & Eng. Ency. Law, 138; Clark on Contracts, 46.
    If, however, we are wrong in this contention, we contend that the $1,000.00 was in the nature of a penalty, and the evidence showed that no substantial damage had been suffered, that therefore the common pleas court was right in holding that at most the plaintiff in error could recover nominal damages.
    It will be observed that each one of these three men was to pay the full sum of $1,000.00, although they were to be compensated in different sums for their labor and were to hold different positions. It will also be observed that if any one of them should sever his connection with the corporation even one day before the full term of three years, that he would forfeit $1,000.00. It can hardly be possible therefore to believe that the $1,000.00 was intended as liciuidated damages, that is, as having been ascertained by the parties as the probable loss which would accrue from the violation of the terms of the contract by any one of the persons mentioned, because severing his connection with the company for one day would be as complete a breach as would the severance of such connection the day after the execution of the contract. As we understand the text-books and the authorities the question as -to whether or not a sum named shall be considered liquidated damages or penalty, is to be determined by the intention of the parties which is to be gathered from the subject-matter and character of the agreement and circumstances surrounding the transaction. Berry v. Wisdom, 3 Ohio St., 243.
    If the amount named “is disproportionate to the real damage sustained, courts will hold the payment of such sums to be a penalty.” Joyce on Damages, Section 1303. If the question is doubtful, courts will hold the same to be in the nature of penalty rather than liquidated damages. Joyce on Damages, Section 1344; Blasting Co. v. Stone Co., 16 C. C., 28
    That is to- say the same amount would be forfeited whether the breach was for three days or for three years. It is absurd to assume that the parties figured out an estimate that a one or two days’ breach of the contract would involve the loss of $1,000.00 and that the loss would accrue in the one instance as in the other.

      Mr. Amos Burt Thompson and Mr.' Charles P. Hine, for defendant in error. -
    All the parties mutually agreed to form a partnership and eventually a corporation. Mr. Rogan agreed to furnish $5,000.00, the entire initial capital of the partnership or corporation. In consideration of such payment Roth, Mahon and the defendant Roan agreed to give their entire time to the joint business.
    There was certainly ample consideration for the several promises of the individual parties.
    We think the decision of the court in Mosier v. Parry, 60 Ohio St., 388, is conclusive against the first contention of the plaintiff in error.
    The claim that a party was not bound by a contract which provided that he should enter into a contract with a corporation not then in existence was considered by the Supreme Court of Massachusetts in the case of Drummond v. Crane, 159 Mass., 577.
    It is asserted that the contract is void because it undertakes to- bind the corporation as to how it should be organized, who should be its officers, what they shall be paid and how the affairs of the corporation should be managed. While agreements for the control of a corporation are often held invalid as against stockholders who are not parties thereto, we submit that such agreements are perfectly valid when made by all the parties who are or will be stockholders. Wilbur v. Stoepel, 82 Mich., 344.
    A mutual agreement to become shareholders in a corporation thereafter to be formed is a binding contract. Morawetz on Private Corporations, Section 50; Thompson on Private Corporations, Sections 1172 and 1181.
    An agreement defining the nature of the proposed corporation, its purposes and the details of its organization and management is perfectly proper and legitimate. Conyington on Corporate Organizations, 31; Cook on Corporations (4 ed.), 1183; King v. Barnes, 109 N. Y., 267.
    In the face of these provisions plaintiff in error contends that the partnership was not bound and “could not compensate Mr. Doan according to the terms of the contract or give him the position contemplated by the contract.” Mr. Doan could perform the work usually done by a general manager, and exercise the usual authority of such officer, whether the business was owned by a partnership or a corporation. The agreement to pay him a salary for such services was valid. 22 Am. & Eng. Ency. Law (2 ed.), 43-123.
    Plaintiff in error’s contention is that Section 12 provides for a penalty rather than for liquidated damages. We think the cases of Blasting Co. v. Stone Co., 64 Ohio St., 361, and Hattersly v. Waterville, 16 Cir. Dec., 226, 4 C. C., N. S., 242, affirmed 74 Ohio St., 466, completely refute all the arguments advanced by plaintiff in error in this connection.
    The contract uses the words “liquidated damages.” We do not claim that the use of this term in the contract is conclusive, but in the absence of any showing to the contrary the usual technical meaning will be accorded this phrase. Kelley & Mahon v. Fejervary, 111 Ia., 693.
    We believe there is no evidence whatever in the record tending to show that the parties did not intend that these words should be given their usual technical meaning.
    On the question of liquidated damages see also Sanford v. Bank, 94 Ia., 680, 63 N. W. Rep., 459; Publishing Co. v. Moore, 183 U. S., 642.
    The authorities and text-books agree that a mutual agreement to become shareholders in a corporation thereafter to be formed is a binding contract and that it is legitimate and proper in such agreement to define the purposes and details of the organization and management of the proposed cornoration. Morawetz on Corporations, Section 50; Thompson on Corporations, paragraphs 1172, 1181..
   Spear, J.

Two questions are presented, one relating to the validity of the contract and the other to the matter of damages for its breach.

The contract. It is urged as against the judgment of the circuit court that the contract lacks both consideration and mutuality and is therefore invalid. We are unable to see that either fault exists. Mutual promises, if of a substantial character, not open to the charge of illegality and involving benefit to the promisors respectively, ordinarily afford sufficient consideration for the contract of the parties. This contract on its face implies advantage to each. Rogan was to have the benefit of the skill as a salesman and the acquaintance with local trade of Doan, and Doan was to have the benefit of an advance in his compensation, and a permanent position for three years, and, although risking no money, a share in the profits. There was sufficient consideration.

The claim of want of mutuality seems to be based upon the proposition that as Doan was to be employed as treasurer and general manager of' a corporation such relation could not exist until the corporation was formed; and the promise did not bind - the corporation for it did not exist and did not bind Doan because the corporation was not bound. This assumption ignores the fact, abundantly shown by the contract, that a present partnership was formed by the contracting parties to be succeeded by a corporation within a reasonable time; that Rogan on his part was bound, as between him and Doan, and whether the anticipated corporation was also bound is not of consequence. It is not important that the contract contemplated another more formal contract, and that to be made with another party. It was well understood that Rogan was to become the owner of substantially all the stock of the Rogan company, and he did so become the owner. His interest in having the contract performed, therefore, is quite the same, in a controversy between him and Doan founded upon the contract, as though it had been provided that the business should be conducted without the substitution of a corporation.

The presence in the contract of a stipulation as to the manner of organization of the contemplated corporation, whom the officers should be and what their compensation should be, and how the business should be managed, can not have the effect to render the contract void or illegal. The corporation was to be organized for the conduct of a specific business; the parties to the contract were to have the entire control of the corporation when formed save that one share would be owned by a fifth person, this simply to make the organization conform to the statute. A contract looking to this result would not be against public policy for, as held in King v. Barnes, 109 N. Y., 267, “there is no principle of public policy which forbids competent parties from entering into an agreement to form a corporation and providing for its future management and control, if the corporation is created according to statutory requirements, and the objects contemplated are lawful and proper.” Nor is it any objection to the contract that it is a mutual agreement to become shareholders in a corporation thereafter to be formed. Such contracts are of constant occurrence and their legality is not now doubted. Indeed the organization of corporations can hardly be conveniently effected without them.

Damages. The twelfth clause of the contract is the part to which attention is directed. That is: “Twelfth: That if either Seth H. Doan, Dudley J. Mahon or Conrad Roth, shall ■ sever their connection with said temporary partnership or said corporation without the consent of Michael J. Rogan and within three years from this date the person so offending shall pay said Michael J. Rogan the sum of one thousand dollars as his liquidated damages.” There is no other act against the consequences of which as to damages there is any provision in the contract, and this fact sufficiently distinguishes this case from Berry v. Wisdom, 3 Ohio St., 241,’ much relied upon by counsel for plaintiff in error.

The practice of courts of equity, in a proper case made, even in one where the parties have used the term liquidated damages, to construe such provision as a penalty only, and then grant relief, was based upon the power of such courts to relieve against forfeitures generally, and especially for non-payment of money, for forfeitures were said to be abhorred in equity, but such practice affords no warrant for courts of law to treat as invalid a reasonable stipulation, deliberately entered into by parties in every sense sui juris, providing a certain sum as the just and appropriate amount of the damages following the breach of the agreement to do or omit to do a particular act, for to do so would be to make a new covenant for the parties, which the court may not do. And we understand the rule, generally recognized and enforced, to be that while courts will not construe contracts in a way authorizing recovery for liquidated damages simply because the parties have used that term in the agreement, yet, where parties to a contract have in terms provided that the damages of the injured party for some particular breach, or for a total breach of the contract, shall be a certain sum' specified as liquidated damages, and it .is apparent that damages for such breach would be uncertain as to amount and difficult of proof, and the contract taken as a whole is not so manifestly unreasonable and disproportioned as to justify the conclusion that it does not truly express the intention of the parties but is consistent with the conclusion that it was their intention,that damages in the amount stated should flow from such breach, it is the duty of courts of law to give effect to the plainly expressed will of the contracting parties, for as stated in Dwinel v. Brown, 54 Me., 468, quoted with approval in Knox Rock Blasting Co. v. The Grafton Stone Co., 64 Ohio St., 361: “The parties themselves best know what their expectations are in regard to the advantages of their undertaking and the damages attendant on its failure, and when they have mutually agreed on the amount of such damages in good faith and without illegality, it is as much the duty of the court to enforce that agreement as it is the other provisions of the contract.” And as held, of like tenor, in Sun P. & P. Ass’n v. Moore, 183 U. S., 642, a case involving the question of liquidated damages: “From a critical examination of all these cases and others that might be referred to, it will be found that the business of the court, in construing this clause of the agreement, as in respect to every other part thereof, is to inquire after the meaning and intent of the parties; and when that is clearly ascertained from the terms and language used, it must be carried into effect. A court of law possesses no dispensing power; it can not inquire whether the parties have acted wisely or rashly in respect to any stipulation they may have thought proper to introduce into their agreements. If they are competent to contract within the prudential rules the law has fixed as to parties, and there has been no fraud, circumvention or illegality in the case, the court is bound to enforce the agreement.” And as held, of like tenor, in Bagley v. Peddie, 16 N. Y., 469: “If independently of the stipulated damages, the damages would be .wholly uncertain and incapable of being ascertained except by conjecture, in such case the damages will be considered liquidated if they are so denominated in the instrument; if the language of the parties evince a clear and understood intention to fix the sum mentioned as liquidated damages in case of default of performance of some act agreed to be done, then the court will enforce the contract if legal in other respects.”

Without rehearsing the testimony it is made entirely clear by a consideration of the contract itself that the alleged breach by Doan would necessarily prove a serious damage to Rogan. He was made dependent almost wholly on .the other parties to the contract for the intelligent and businesslike management of the business, and especially relied upon Doan.' He was also under obligation to perform the contract with the other two contracting parties. They had left other employment and were thus dependent upon Rogan, and good faith required that he go on with the enterprise on their account. It is equally clear that the amount of such damage would be exceedingly difficult of a demonstration by proof. Nor does the stipulation seem so disproportionate to the possible damage as to justify the belief that the parties did not intend the exact result as to damages which the terms of the contract import. We are of opinion that clause twelve is not a penalty and should be construed as justifying liquidated damages.

It is insisted that it is impossible to believe the parties intended the sum named to be liquidated damages because the severing of his connection by either of the three persons mentioned three days before the contract would expire would be as complete a breach as would such' severance the day after the execution of the contract; that is, the amount would be forfeited whether the breach were for three days or three years. It would seem sufficient answer to this contention to say that the event suggested would be too improbable a contingency to cause the possibility of- its occurrence to enter into the case; at least it is not of sufficient gravity to destroy the efficacy of the provision for damages for the breach which actually did occur.

Other authorities cited by the counsel, to a greater or less extent supporting the conclusions here announced, will be found collected in their proper place.

Counsel for defendant' in error have given us as an addenda to their brief the opinion of the circuit court, by Winch, J., (not as yet published), which we have found helpful and which justifies a briefer treatment of the case by this court than might otherwise be deemed advisable.

The judgment of the circuit court reversing" that of the common pleas and rendering final judgment for Rogan will be

Affirmed.

Crew, C. J., Summers, Davis, Shaucjc and Price, JJ., concur.


author: Summers, J.

text:
    Holbrock v. Smedley. State, ex rel., Holbrock, v. Egry.

      Person refused recognition as member of council — Not entitled to injunction — City council is judge of qualification of members —Court may determine facts, when — Provisions of Sections 1536-205 and 1556-612, Revised Statutes — Councilmen ' shall have no interest tn city contracts — Determination of fact of disqualification — R’elator admits disqualification — Will not be, restored in quo warranto — Municipal law.

    1. The council of a city is made by statute, the judge of the election and qualifications of its members, and a person elected a member, who is refused recognition as a member by the members who have met to organize, on the ground that he is disqualified, is not in possession of the office or entitled to an injunction to enable him to exercise its functions.
    2. A city council is the exclusive judge of the qualifications of its members, but in a proceeding in quo zvarranto the court may determine whether in law the facts constitute a disqualification.
    3. The provision of Section 1536-205, Revised Statutes, which provides that, “nor shall any member of the council, board, officer or commissioner of the corporation, have any interest in the expenditure of money on the part of the corporation other than his fixed compensation; and a violation of any provision of this section shall disqualify the party violating it from holding any office of trust or profit in the corporation, and render him liable to the corporation for all sums of money or other things he may receive contrary to the provisions of this section, and if in office he shall be dismissed therefrom,” is not one of the qualifications of a member of council that the council is made the judge of by Section 1536-612, .Revised Statutes; and the city council is without authority to determine the fact of such disqualification and upon a finding of such fact to declare a member’s seat vacant, and to proceed to fill the vacancy, but the court will not in a proceeding in quo warranto, by the person so deprived of his office, oust the person elected to fill the vacancy and restore the relator to the office when in his petition he admits the fact of such disqualification.
    (Nos. 11301-11445
    Decided February 2, 1909.)
    Error to the Circuit Court of Butler county.
    The council of the city of Hamilton consists of seven members, four elected from wards, three elected at large, and a president. These were elected at the election in 1907, and their terms of office began January 1, 1908. On January 3, 1908, on call of the mayor, they met to organize. Each of the persons elected had, previously to the meeting, received a certificate of his election and had, within ten days thereafter, duly qualified by giving bond and taking the oath of office. At the hour appointed for the meeting, the president took the chair and called the names of those who had received certificates, and as their names were called each answered present. The relator had been elected as one of the councilmen at large, and when his name was called one of the other members arose and protested against relator sitting in the council as a member thereof for the reason that he was disqualified, and offered a resolution, a copy of which is as follows:
    “Be it resolved, By the Council of the City of Hamilton, Butler County, Ohio, that,
    “Whereas, Ferd. C. Holbrock, who has been elected a member of Council of the City of Hamilton, Ohio, did while a member of the Council of said City, violate the laws of the State of Ohio, in this, to-wit,
    “He was interested in contracts with the said City of Hamilton, Ohio, whereby he sold shoes and merchandise to said city.
    “And, while a member of council of said city, he did have an interest in the expenditure of money on the part of said corporation, other than his fixed compensation, to-wit:
    “In, that on or about the following dates, he sold to said City of Hamilton, Ohio, shoes and merchandise:
    “January 4, 1906; September 18, 19'06; November 6, 1906; April 3, 1907; and April 4, 1907, and was paid money by said City of Hamilton, Ohio, for shoes and merchandise on or about the •following dates:
    “April 9, 1906, voucher number 2525 Poor Fund.
    “April 19, 1907, voucher number 979 Poor Fund.
    “May 15, 1907, voucher number 1236 Street Fund.

      “Aug. 16, 1907, voucher number 2124 Poor Fund.
    “Dec. 10, 1907, voucher number 3244 Poor Fund.
    “And, whereas, said Ferd C. Holbrock has thereby disqualified himself from holding any office of trust or profit in said City of Hamilton, Ohio, and has thereby forfeited his right to hold any office of trust or profit in said city.
    “Therefore, be it resolved, that the said Ferd C. Holbrock be and is hereby adjudged disqualified from holding the office of member of council in said city, to which he has been elected, that said office be and the same is hereby declared vacant.
    “(Signed) J. A. Holzberger,
    “Member of Council of the City of Hamilton, Ohio.”
    The president of council then inquired of the relator if he had anything to say in regard to the resolution, the relator remained mute, and a motion was made by another member to refer the resolution to a committee of three members of the council to investigate and report, which motion was duly seconded, and the president put the same to a vote of the members of the council there present by yeas and nays, stating that the relator was not entitled to vote on the motion, and the roll being called on the motion b.y the president of council resulted in three yeas and three nays on said motion, and thereupon the president of council declared the vote to be a tie and he, himself, voted against the motion and declared it lost. Thereupon a vote was taken on the adoption of the resolution, the president declaring that the relator was not entitled to vote thereon, and the vote resulted in three votes in favor of the resolution and three votes against, and thereupon the president declared the vote a tie and himself then voted in favor of the resolution and declared the same carried and adopted.
    Thereupon a motion was made by said John Holzberger that Aloys E. Egry, an elector of said city, possessing all the qualifications necessary to membership in the council, be elected as a member of said council to fill the vacancy, and a vote being had on the motion resulted in three votes in favor and three votes against said motion, the president of council declared the vote a tie and he, himself, then voted in favor of the election of said Egry, and then declared him duly elected a member of said council.
    The council then voted to recess for fifteen minutes.
    During the recess three members of council and the relator remained in the council chamber, and in the absence of the other members of the council proceeded with the organization of the council by electing a president pro tem., a clerk and a sergeant-at-arms, and then adjourned to meet on the following Tuesday evening.
    At the expiration of the period of recess, the president of council and the other three members of council and the said Egry, who had been declared elected as above stated and who, during the recess had given bond and taken the oath of office, met in the council chamber, and proceeded with the organization of council by electing a president pro tern.,- a clerk and a sergeant-at-arms.
    Since that evening each of said bodies has been meeting and acting as the council of the city.
    On January 21, 1908, Holbrock filed his petition in the Court of Common Pleas of Butler county averring that he was in possession of the office, and praying that the defendants, the president of the council and the other members of council, who were refusing to recognize him as a member of the council, might be enjoined from interfering with him in his possession of said office.
    Upon a hearing the court of common pleas allowed the injunction. The case was then taken by appeal to the circuit court where the facts above stated were found by that court, and as a conclusion of law,' from the facts so found, it found that Holbrock was not in possession of the office, and that the council by its'action had found Holbrock disqualified to hold the office and had created a vacancy in the office, and that it had then properly filled the office by the election of Egry, and it dissolved the injunction and dismissed the petition.
    The second case was a proceeding in quo warranto commenced by filing a petition on May 25, 1908, in the Circuit Court of Butler county, Ohio, in which the facts above stated are set forth, and it is averred that Egry usurps and unlawfully holds and exercises the office, and the relator prays that Egry may be adjudged not entitled to the office, and that he may be ousted therefrom and the relator inducted into said office.

      The circuit court sustained a demurrer and dismissed the plaintiff’s petition.

      Mr. W. C. Shepherd and Messrs. Shotts & Millikin, for plaintiffs in error.

      Messrs. Andrezvs, Harlan & Andrezvs, for defendants in error.
   Summers, J.

“The remedy by injunction may be employed by the incumbent of a public office to protect his possession against the interference of an adverse claimant whose title is in dispute, until the latter shall establish his title at law; but it is not the appropriate remedy to try the title to a public office, or to determine questions concerning the authority to make appointments thereto.” Reemelin et al. v. Mosby, 47 Ohio St., 570. And “Injunction will not lie at the suit of a claimant to a public office who is out of possession, against an adverse claimant who is in possession.” Harding v. Eichinger, 57 Ohio. St., 371.

The controlling question in the first case is, whether Holbrock was in possession of the office.

Under the new municipal code the question, is not free from doubt.

Under the former code, councilmen were elected in April and they were required to meet for organization at the first regular meeting of the council after the second Monday in April of each' year. Section 1675, Revised Statutes (Bates, 3 ed.), provided, “The mayor, or in his absence or inability, the clerk, at the hour of the first regular meeting of the council, after the second Monday of April in each year, shall call to order the members elect, and those holding over, who may be assembled; and as the members elect are called, they shall present their certificates of election and take the required oath.” Section 1662 made similar provision as to aldermen and councilmen. Then a councilman was not in possession of the office until he presented his certificate of election to the council, or to the members holding over and those elected and assembled for ■ the purpose of organizing, and was received and permitted to take and took the oath of office. The practice in Congress and other legislative bodies is, when a member’s election is contested, to treat the certificate of. election as prima facie conclusive of the holder’s election and as entitling him to be sworn in and to participate in the organization, and to act until the contest is determined upon its merits; but the certificate is not even prima facie evidence of his qualifications. Objections to eligibility are generally made at the time a person presents himself to be sworn in, and in such cases he is required to step aside, the house proceeds with its organization, the question of his eligibility is referred to a committee, which speedily reports the facts and the house then determines this question before he is permitted to be sworn. McCrary on Elections, Section 318.

By the constitutional amendment, (Article XVII, adopted in 1905) providing for biennial .elections, municipal elections are now required to be held in November and in the odd numbered years, and by Section 1536-610, Revised Statutes (Bates 6 ed.) the terms of members of council begin on the first day of January next after their election, and Section 1536-611, Revised Statutes, (Bates 6 ed.) provides that “The members of council shall, within ten days from the commencement of their term, elect a president pro tem., clerk, who shall also perform the duties of city clerk unless otherwise specified in this act, and such other employes of council as may be necessary.” The effect of the amendment providing for biennial elections, and of the amendment to the statute changing' the commencement of the term of councilmen to the first Monday in January, is to lengthen the interval between the election and the commencement of the term. Whether there is any requirement in the municipal code that a member of council shall give bond or shall take an oath is doubtful. But Section 2, Revised Statutes, provides that, each person chosen, or appointed to an office under the constitution or laws of the state, and each deputy or clerk of such officer, shall, before entering upon the discharge of his duties, take an oath of office, and Section 1536-999, Revised Statutes, provides that, “The council may declare vacant the office of any one elected or appointed to an office who shall fail to take the oath required in Section 1737 (1536-996), or to give any bond required of him, within ten days after he has been notified of his appointment, or election,” and it may be that this explains why each member of the council had, before the meeting for organization in January, given a bond and taken the oath of office. Still it is provided by Section 1536-612 that, “Council shall be the judge of the election and qualification of its members.” And in view of this provision and the practice of legislative bodies above referred to, we think that where the qualifications of a newly elected member are disputed by one of the members elect, as to whose election and qualification no question is made, that the member whose qualifications are disputed can not be held to be in possession of the office until his qualifications have been determined and he has been admitted as a member of the council.

It follows that ' the injunction was properly dissolved and the petition properly dismissed.


text:
    State of Ohio, ex rel. Holbrook, v. Egry.
   In the proceeding in quo warranto, the circuit court sustained the demurrer on the ground that the council of the city was the exclusive judge of the election and qualification of its members, and that the council having passed upon the qualifications of the relator, the court was without jurisdiction, and it is said to have based its decision upon The State, ex rel., v. Berry, 47 Ohio St., 232; Stearns v. Village of Wyoming et al., 53 Ohio St., 352; State, ex rel. Shank, v. Gard, 8 C. C., N. S., 599. The case in 47 Ohio State, was a proceeding in quo warranto and arose out. of a contested election, and it was held that the jurisdiction of council was exclusive. The case in 53 Ohio State, was a proceeding in error to review the determination of a city council in the case of a contested election, and it was held that it could not be reviewed on error. In the case in 8 Circuit Court Report, the question turned upon the eligibility of a member of council, and the court found that the member was ineligible if the facts were as they had been found by the city council. In other words, the court found that the ground of ■ ineligibility, as a matter of law, existed and that, therefore, the jurisdiction of council was exclusive.

The weight of authority is to the effect that a constitutional provision that each house shall be the judge of the election and qualification of its members confers upon it exclusive jurisdiction, but that a statutory provision that a city council shall be the judge of the election and qualifications of its members does not, unless it is expressly so provided, make the council the exclusive judge. MechenTs Public Offices and Officers, Section 214; Dillon’s Municipal Corporation, Section 202; State, ex rel., v. Gilmore, 20 Kans., 551; People ex rel. v. Hall, 80 N. Y., 117; State, ex rel., v. Kempf, 69 Wis., 470; State, ex rel., v. Gates, 35 Minn., 385. In People v. Hall, supra, Folger, J., says: “It is apparent that there is a wide difference in the occasions of the use of these phrases, in conferring power upon the highest legislative bodies, and upon the councils of municipalities, or other inferior tribunals. As to the legislatures, they are used when the people — the sovereignty— has come together by its delegates to organize, a government, and to parcel out the three great powers thereof — the legislative, the executive, and the judicial — among the three co-ordinate and principal depositaries to which they are committed. Though the constitution confers upon. specified courts general judicial power, there are certain powers of a judicial nature which, by the express terms of the same instrument, are given to the legislative body, and among them this which we are considering. All powers are, then, in the hold of the people. They are about to distribute these powers among the bodies.which they at the same time create. When it is said on such an occasion to either house of the legislature, 'You are to be the judge of the election of the members of your own body/ there is a specific conferment of this particular power; and when it is said at the same time to the judicial body, 'You are to have general jurisdiction in law and equity/ though the conferment ©f power is general, there is, by the force of the concurrent action, excepted from the general grant the specific authority definitely bestowed with the same breath upon another body. In such case it may well be that a form of words in the instrument that clearly makes a gift of judicial power to one co-ordinate body should be construed as reserving the particular power thus bestowed from the general conferment of judicial power by the same instrument, at the same time, upon another co-ordinate body. The power thus given to the houses of the legislature is a judicial power, and each house acts in a judicial capacity when it exerts it. The express vesting of the judicial power in a particular case so closely and vitally affecting the body to whom that power is given takes it out of the .general judicial power, which is at the same time, in pursuance of a general plan that has regard in each part - for every other part, bestowed upon another body; both bodies being contemporaneous in origin, and equal in dignity, degree, and proposed duration. None of these things apply to the council of a city. It is the creature of the legislature. It has not the inherent powers of one of the constitutional depositaries of authority. It is from the outstart a body inferior to the judiciary, and, as a general rule, is answerable unto it. It is not unsafe for it, nor is it inconvenient, that a power to determine of the membership of it should be given to the courts. It is not to be feared that it will be destroyed, or its existence be endangered, by the judicial exercise of that power. It is made by temporary and changeable statute, instead of. by fundamental and permanent law. The authority that created it, the legislature, remains, and may interpose to ward it from harm, or may bring it back to life if harmed fatally.”

Our statutes do not expressly make council the exclusive judge of the election and qualification of its members, but the statutory provision conferring that power upon council has been treated as analogous to the constitutional provision conferring the power upon the legislature, and the power of a legislature to confer exclusive jurisdiction upon the council is supposed to be derived from the constitutional provision, (Article II, Section 21) that, “The general assembly shall determine, by law, before what authority, and in what manner, the trial of contested elections shall be conducted.” It may be doubted that the constitutional provision was intended to or does apply in municipal elections, but assuming that it does, it makes no reference to qualifications for office. But assuming that the constitutional provision does cover municipal elections and that power to determine a contested election includes power to determine qualifications, it is said by Williams, J., in State, ex rel., v. O’Brien, 47 Ohio St., 464-473, that, “The distinction between the trial of a contested election, which is a contest between two or more persons for the same office, or against one claiming the office, and implies that there was an election held under some lawful authority for choosing an incumbent of an office then in existence, which some one might lawfully fill, and an inquiry into the legal existence of the office, or the authority to hold an election or make an appointment to fill it, is clear and substantial, and was practically enforced in the cases of State, ex rel., v. Marlow, 15 Ohio St., 114, and State, ex rel., v. Taylor, Ibid., 137.

“While, therefore, the power conferred by Section 1679, Revised Statutes, on the councils of municipal corporations, to determine the election of their own members, is exclusive, we are of opinion, qito warranto may be maintained against a person who assumes the exercise of the office of member of the council from a ward which has no lep'al existence, or under an election held without authority of law.”

And so here, we think quo zvqrranto will lie to determine whether the facts, upon which council has determined one of its members or one elected to the office nf councilman, to be disnualified, constitute in law, a ground of disqualification. Council is the exclusive judge of the fact of disqualification, but it can not disqualify excepting on legal ground, and whether the facts found by it constitute such ground is a question of law which may be determined by the courts.

There are numerous provisions in the municipal code giving power to remove or suspend officers, and it is provided that the determination of the officer, or body, on whom the power is conferred shall be final. Section 129 provides, that the directors and officers provided in the act shall, subject to the limitations therein prescribed, have sole power to remove or suspend any such officers, clerks or employes. Section 152 provides that the chief of police and the chief of the fire department shall have exclusive right to suspend in their departments, and that in such cases- the cause shall be certified in writing to the mayor, whose judgment shall be final, and that the mayor shall have the exclusive- right to suspend the chief of the police department or the chief of the fire department, and that he shall certify the fact and the cause .of suspension to the board of public safety, and that its judgment shall be final. Section 183 makes a violation of any of the provisions of the merit system a misdemeanor, and a conviction vacates the office and renders the person convicted incapable of holding any office or place of public employment in the city for a period of five years. Section 186 gives the right of appeal from the decision of the mayor in cases of removal to the board of oublic safety and makes its judgment final. Section 225 makes it the duty of the mayor, when he has reason to believe that any officer has been guilty, in the performance of his official duty, of bribery, misfeasance, malfeasance or non-feasance to file with the council written charges against such officer, and provides for the service of notice and a copy of such charges upon the officer and for a hearing before the council, and that the accused shall have the right to appear in person and by counsel and examine all witnesses and answer all charges against him, and that the judgment or action of council shall be final, provided that it shall require the votes of two-thirds of all members elected to council to* remove such officer. There were similar provisions in the former municipal code, and there are such statutory provisions respecting other officers and boards, and the court has, in numerous cases respecting' them, held, in effect, notwithstanding the statute assumes to confer exclusive power or to make the determination final, that the courts, although they may not judge on the merits, have authority to keep such tribunal, board or officers, within the limits of their jurisdiction, and to compel them to exercise it with regularity. State, ex rel., v. Hawkins, 44 Ohio St., 98; State, ex rel., v. Hoglan, 64 Ohio St., 532; State, ex rel., v. Bryson, 44 Ohio St., 457; State, ex rel., v. McLain, 58 Ohio St., 313; State, ex rel, v. Sullivan, 58 Ohio St., 513.

In the first case, the court said (545), speaking of the power of removal, “The power is one that can not be arbitrarily exercised. It requires charges to be made, supported by such a statement'of facts as hi iudojnent of law constitute the charge made; and an opportunity to the party to be heard. Whilst the court can not pass on the truth of the facts alleged, or interfere with the discretion of the mayor in this regard, it may and will, when appealed to,. pass on the sufficiency of the facts on which the charges are made.”

Do the facts recited in the resolution constitute a disqualification of which the council is made the judge by Section 1536-612, Revised Statutes, which provides that, “Council shall be the judge of the election and qualification of its members.” Section 1536-613,. Revised Statutes, reads as follows: “Councilmen at large shall have resided in their respective cities, and councilmen from wards, shall have resided in their respective wards for at least one year next preceding their election. Every member of council shall be an elector of the city, shall not hold any other public office or employment, except that of notary public or member of the state militia, and shall not be interested in any contract with the city. Any member who shall cease to possess any of the qualifications herein required or shall remove from his ward, if elected from his ward, or from the city, if elected from the city at large, shall forthwith forfeit his office.” The qualifications here prescribed are: 1. Residence in the city and ward for one year next preceding the election. 2. That he shall be an elector of the city. 3. That he shall not hold any other public office or employment, excepting that of notary public, or member of the state militia. 4. That he shall not be interested in any contract with the city. These are “qualifications” within that term in Section 1536-612. But we do not think the acts specified in Section 1536-205 are within that term, in the sense that council may adjudge the fact of disqualification. That section contains this provision: “nor shall any member of the council, board, officer or commissioner of the corporation, have any interest in the expenditure of money on the part of the corporation other than his fixed compensation ; and a violation of any provision of this section shall disqualify the party violating it from holding any office of trust or profit in the corporation, and render him liable to the corporation for all sums of money or other things he may receive contrary to the provisions of this section, and if in office he shall be dismissed therefrom.” Section 1536-989, Revised Statutes, reads as follows: “On complaint under oath, filed with the probate judge of the county in which the corporation, or the larger part thereof, is situated, by any elector of the corporation, signed and approved by four other electors thereof, charging that any member of the council or alderman has received, directly or indirectly, any compensation for his services as councilman, alderman, committeeman, or otherwise, contrary to the provisions of section sixteen hundred and eighty-three or that any alderman, member of the council, or anj' officer of the corporation, is or has been interested, directly or indirectly, in the profits of any contract, job, work, or services, or is or has been acting as commissioner, architect, superintendent, or engineer in any work undertaken or prosecuted by the corporation contrary to the provisions of section sixty-nine hundred and seventy-six, or that any alderman, member of council, or any officer of the corporation has been guilty of misfeasance or malfeasance in office, such probate judge shall forthwith issue a citation to such party, charged in the complaint, for his appearance before him within ten days from the filing of such complaint, and also furnish the accused and city solicitor with a copy thereof: provided, that the probate judge shall require the party complaining to furnish sufficient security for costs before acting upon such complaint.” Section 1536-990, Revised Statutes, provides that the trial shall be by jury, if a jury is demanded by either party, and Section 1536-993, provides that if the charges in the complaint are sustained, the judge shall enter the charges and finding thereon upon the record of the court, and make an order removing such officer from office, and therewith transmit a certified copy of the same to the presiding officer of the council, whereupon the vacancy shall be filled as provided by law; and further provides that if any proceedings in error are instituted by the officer complained of, that he shall not exercise the functions of his office until such order is finally reversed or vacated. In Doll v. State, 45 Ohio St., 445, it is held that a member of the board of public works of the city of Cincinnati is an officer elected to an office of profit or trust within the state within the meaning of Section 6969, Revised Statutes, which makes it a felony for any such person to become directly or indirectly interested in any contract. And Section 6976, Revised Statutes, makes it a misdemeanor for a member of council to be interested in the profits of any contract, job, work or services for the corporation. Section 1536-614, Revised Statutes, provides that council may punish or expel any member for disorderly conduct, or violation of its rules, and declare his seat vacant for absence without valid excuse, where such absence has continued for two months; but no expulsion shall take place without the concurrence of two-thirds of all the members elected, and until the delinquent member shall have been notified of the charge or charges against him, and shall have had an opportunity to be heard. Now, if the humblest appointee is entitled to be heard upon written charges before he can be removed, and if an officer can not be removed until he has had an opportunity to appear in person and by counsel, and to examine witnesses, and then only by a vote of two-thirds of all the members elected to council, and if council can not expel one of its own members for a violation of its rules, excepting by a like vote, and if an officer of the city can not be removed for being interested directly or indirectly in the profits of any contract, job, work or service, excepting by an order of the probate court, and after the verdict of a jury, if a jury trial be demanded, and a similar provision is made for the removal of a member of council for being interested in the profits of any contract, it would seem to be unreasonable to conclude that the legislature intended, by the use of the words, “and a violation of any provision of this section shall disqualify the party violating it from holding any office of trust or profit in the corporation,” in Section 1536-205, Revised Statutes, to confer the power upon the council, by a mere majority of its members, not only to deprive him of the seat to which he had been elected by the city, but also to throw him out with a brand upon him of an act that forever disqualifies him from holding any office in the city.

In State, ex rel., Winsor, v. Mayor and Council, 10 Wash., 4, it is said: “In boards like city councils, where the councilmen are elected by factions and at the behest of special interests, it would be a dangerous power, likely to be subversive of the rights of the people, to allow a majority of the members of a council to expel a member, and this power might frequently be used for the purpose of aiding unworthy movements.” In the case at bar the facts seem to warrant the inference that the president and three members of the council belong to one party and that the remaining four members belong to a different party. The president of council had no vote excepting in case of a tie. The three members conceived the plan to bar the relator from participating in the organization of council by objecting to him on the ground specified, otherwise the four members would be able to elect the clerk and the other officers at the organization. The relator was objected to on the ground that he was disqualified. The president of council held that he had no right to vote upon that question, and the vote being' three to three he declared it a tie and voted with the three who were parties to the plan. The relator’s seat was declared vacant, and upon a vote to elect a member to fill the vacancy, another tie was declared, and the president’s vote, together with that of • the three members referred to, resulted in filling the vacancy with one who would act with them, and they then proceeded to organize the council by the election of a clerk and the other officers. And thus the will of the electors at the election was defeated, for the relator was elected as a member at large, but in the manner stated the will of the electors of the whole city was defeated, and his seat was filled not by the electors, but by the three members of council and the president. In the same case it is held that the causes for which council may expel a member being specified, power to expel is limited to those mentioned, which in the case at bar would limit the power to the causes specified in Section 1536-614, and would exclude the right of removal on the ground specified in the resolution.

This provU’on of the statute that no member of council shall have any interest in the expenditure of monejr on the part of the corporation and that a violation of any provision of the section of which it is a part shall disqualify the party violating it from holding any office of trust or profit in the corporation, is not as clear as it might be. It was first brought into the statute as a 'provision in the so-called Worthington law, Section 2699, Revised Statutes, ( Bates, 3 ed.), the reasons for the enactment of which law are very fully stated in The State, ex rel., v. Hoffman, Auditor, 25 Ohio St., 328. Other kindred provisions in the statutes disqualify on the ground of having an interest in the contract, which it does not seem would be likely to occur without willful or intentional wrongdoing, or at least without the impropriety of his act occurring to the member, but under the present provision we can very readily understand how a member of council might inadvertently, or without it ever occurring to him that his conduct was improper, be guilty of a violation of its provisions. And the policy of the statute, in its broad and indefinite terms, may be questioned. But municipal corporations are merely agencies of the state and the legislature may prescribe the qualifications of their officers and the condition upon which they may remain in office. The incumbents have neither a property interest nor a contract right in them, (Taylor & Marshall v. Beckham, 178 U. S., 548), and the relator - must be presumed to have accepted this office .with a knowledge of this provision of the statute and upon the condition that a violation of it should disqualify him to hold any office in the city.

Reference may be made to a few cases illustrative of the application of similar provisions. Section 19 of an act to amend the charter of the city of New York, passed in 1849, (Laws of N. Y., chapter 187) provides that, “No member of the common council, head of "department, chief of bureau, deputy thereof, or clerk therein, or other officer of the corporation, shall be directly or indirectly interested in any contract, work or business, or sale of any article, the expense, price or consideration of which is paid from the city treasury, or by any assessment levied by any act or ordinance of the common council, nor in the purchase of any real estate or other property belonging to the corporation, or which shall be sold for taxes or assessments.” In Roosevelt v. Draper, 23 N. Y., 318, it is held that the governor of the almshouse is forbidden by this provision to be concerned in the purchase of real estate. In the opinion, 329, Denio, J., says: “There is, of course, a far stronger reason for prohibiting.members of the common council and the commissioners of the sinking fund from being interested in such sales, in which they would have a direct agency by virtue of their offices than for attaching the disability to one filling the position held by the defendant Draper;,but the legislature thought fit to extend it to all corporation officers, including, of course, the governor of the almshouse, and we can not make an exception.” In Smith v. City of Albany, 61 N. Y., 444, it was held, that the plaintiff could not recover for the use of his horses and carriages, hired by a committee of the city council, of which body the plaintiff was a member. And in the opinion it is said, that the act of 1843, (Laws of N. Y., chapter 57) which provides that, “It shall not be lawful for .a member of the common council of any city in this state, or the-trustee of any village, or the supervisor of any town, to be a contractor under any contract authorized by the common council, board of trustees, or board of supervisors of which he is a member, or to be in any manner interested directly or indirectly, either as principal or surety, in such contract,” is but declaratory of the common law. In Nicoll v. Sands et al., 131 N. Y., 19, where the commissioners of highways who signed a contract upon the part of the town were, by its terms, to be paid by the contractor for their services in directing and supervising the laying of pipes, Peckham, J., in the opinion disapproves the practice and says, that while it may not have been prohibited, yet it is of so questionable a nature as to call for the most scrutinizing review of the result by the courts. In Bell v. Quin, 2 Sand. Sup. Ct. Rep., 146, it was held that a recovery could not be had upon a promissory note given for a share of the profits in a contract made with the commissioners of the almshouse of the city of New York for the delivery of coal, for the reason that one member of the firm, the payee of the note, was an assistant alderman. In People; ex rel, v. Mayor of New York City, 5 N. Y. Supp., 538, it was held that the president of the board of health might be removed from office for violation of the provision of a statute that no head of department should become interested directly or indirectly in the purchase of real estate by' the corporation, and that it - was immaterial that the act also contained a provision for the punishment of such offense. In In re Smith, 63 N. Y. Supp., 1018, one of the trustees of a village was removed from his office for the reason that he had furnished work and a team and an engine to the street commissioner on improvements made by the village and had received pay therefor in violation of an act providing that no village officer should be interested in a contract with the village, and it was held that it was no justification that he acted in good faith and received no more on his contract than other contractors received. In Goodrich v. City of Waterville, 88 Me., 39, it is held that a member of the city council can not maintain an action to recover for medical services rendered by his firm to a pauper of the city. In The Village of Dwight v. Palmer, 74 Ill., 295, it was held, under the statute of that state, that the clerk of the board of trustees of an incorporated village could not recover under a contract to publish certain ordinances, though lie had resigned his office before any work was done under the contract. In The City of Ft. Wayne v. Rosenthal, 75 Ind., 156, it is held that an employment by a board of health of a city of one of its members to vaccinate pupils in a public school, is a void contract, and creates no liability against the city.' In McGregor v. City of Logansport, 79 Ind., 166, it is held that the common council of a city can not make a valid contract with the city judge for the use of his office as a city court room. In 'Benton v. Hamilton et al., 110 Ind., 294, it is held that a ^contract between a town treasurer and the town for the improvement by the former of a public street is, under the statute, void as against a property owner assessed on account of the improvement. In McElhinney v. City of Superior, 32 Neb., 744, it is held, that where a city council enters into a contract in which one of its members is interested, for the building of an electric light plant and lighting of the city, the contract may be avoided by the city, and if the contract has not been performed, a taxpayer may maintain an action to enjoin performance of the contract. In Dunlap et al. v. The City, 13 Weekly Notes of Cases, 98, it is held under a statute ¡roverning public contracts in the city of Philadelphia, which provides, “No member or officer of councils, or any department of the city government,, shall be in any way interested in such contracts, directly or indirectly, either at its inception, or during the progress of its fulfillment, or furnish any materials, or supplies, or labor for such contracts,” that the word “interested” does not mean anything but pecuniary interest, and that a bill for stationery furnished to one department of the city was not invalid on the ground that a member of the councils was in the employ of the firm that had furnished the stationery, the member being employed upon a salary that was a Nfixed sum and not dependent on commissions on sales. In Coxe’s. Case, 1 Pa. District Rep., 702, it is held that supervisors of townships had no authority to employ their own teams, or to hire their own minor children to work on the public roads of the township, even though no actual fraud or falsehood is alleged, and it is admitted that the services were honestly rendered for the benefit of the taxpayers. Such course being within the inhibition of a statute that “Nor shall any member of any corporation or public institution, or any officer or agent thereof, be in any wise interested in -any contract for the sale or furnishing of any supplies or materials to be furnished to or for the use of any corporation, municipality or public institution, of which he shall be a member or officer, or for which he shall be an agent.” In Commonwealth, ex rel., v. Hilibish, same report, page 703, it is held, that a councilman is not subject to the penal provisions of that statute on the ground that the superintendent of water works bought several articles at a supply store in which he was a partner, together with two other persons. The purchases were made at the store without any contract or agreement previously made, but in the same manner as any other person would purchase, who would enter a store and buy any small article of merchandise, and the sales were made by the clerk in attendance upon the counter at the time. In Commonwealth v. The Commissioners of Philadelphia County, 2 S. & R., 195, Tilghman, C. J., in considering the effect of a statute upon the right of the county commissioners to purchase chairs from a member of their own board said: “The meaning of the law, where the words are ambiguous, may be best known by considering the mischief which it was intended to prevent. Now, it is certain that it is dangerous to permit a body of men entrusted with the public money to purchase from themselves the articles required for the public service, because men are generally partial to themselves, and therefore, inclined to sell their own goods to the best advantage, but being both buyers and sellers, they could have the game completely in their own hands. One would suppose, therefore, if words will bear it, that the manner of contracts, either for the sale of goods or employment in the public works, were intended to be prohibited.” See also Doll v. The State, 45 Ohio St., 445; Bellaire Goblet Company v. City of Findlay, 5 C. C., 418; Grant v. Brouse et al., 1 N. P., 145 and Marsh v. The Village of Hartwell et al., 2 N. P., 389.

In the relator’s petition in quo warranto he avers: “The plaintiff says that he, during the years 1906 and 1907, was a member of said council of the city of Hamilton, Ohio, and that during said time he accepted orders from the board of public service, delivered shoes thereon and received pay for same as follows;” then follows the orders and vouchers referred to in the resolution. Being of opinion that this was a violation of that provision of the section which provides that a member of council shall not have any interest in the expenditure of money on the part of the corporation and is ground for his removal from his office, and he having admitted the fact, the court will not adjudge that he should be restored to his office, and the defendant being in the office by the votes of those who would have authority to fill the vacancy occasioned by the relator’s removal from the office, the court will in the exercise of its discretion not oust him therefrom.

The judgments are affirmed.

Crew, C. J., Spear, Si-iauck and Price, JJ., concur.