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    The Stark County Mutual Insurance Company v. Edwin C. Hurd.
    Where the charter or by-laws of a Mutual Insurance Company provide that the president and secretary may give leave to effect additional insurances in other companies, and point out no other mode of giving the consent of the company, it is error to charge the jury that such consent may be given by a director or the secretary.
    This is a writ of error to the Court of Common Pleas of Stark county.
    Hurd brought an action of assumpsit in the court below, against the said company, on a policy of insurance. The policy, which had been assigned to the plaintiff below, was given to Frederick N. Hurd and Charles Lathrop, by the name of Lathrop & Hurd, who were thereby insured to the amount of $2,500, upon their stock of goods, contained in the store occupied by them in Akron.
    The plaintiff’s declaration contained a special count upon the policy, with the.common money counts.
    The plea was the general issue, to which was attached a notice, containing,- amongst other matters of defense, an averment that the plaintiff had procured from another company, the Lexington Insurance Company, an insurance of $2,500, upon the property in the declaration mentioned, which was subsisting and íd force at the time the property was destroyed by fire.
    From the exhibits accompanying, and made part of the bill of exceptions, which was taken during the progress of the case, the following facts appear.
    In the policy of insurance there is this provision:
    “ This policy is made and accepted, subject to the conditions hereto annexed, which are hereby made a part hereof.”
    Among the conditions is the following:

      “ If insurance on the same property, insured by this policy, or any part thereof, shall, at the date thereof, or during its continuance, subsist in any other company, without the consent of this company, this policy shall be void.”
    Sec. 7 of the act of incorporation (attached to the policy), provides that within twenty days from the time of the loss or damage by fire, the insured shall give notice in writing,'to the directors or to the secretary, of such loss or damage.
    Sec. 4 of the same act, provides that the board of directors shall superintend the concerns of the company, and have the management of the funds and property thereof, and all matters and things thereunto relating and not otherwise provided for by said company; they shall have the power, from time to time, to appoint a treasurer, secretary and such other officers, agents and assistants as to them may seem necessary, and prescribe their duties etc.

    Among the by-laws of the company is the following :
    “ The president and secretary may, in behalf of the company, give leave to effect additional insurances in other companies, on buildings or other property insured by this company, not in any case, however, for a greater sum or amount than the differ ence between the sum insured by this company, and two-thirds the estimated value of the buildings or other property so insured, and also to indorse such leave on the policy issued by this company' — the same to be recorded in a book provided for that and other purposes.”
    The only power conferred upon the agents of the company, in cases of fire, is the following, extracted from their instructions made out- by order of the company:
    “ Should a fire occur in your agency, you will notify the secretary thereof forthwith, and you will be expected to repair to the scene of destruction, and learn how the fire commenced, and where; whether the loss is fair, whether the conditions of the policy .have been complied with, and what amount of damage has been sustained; all which you will report to the secretary as early as practicable.”

      It was admitted on the trial, that the plaintiff had effected an additional insurance in the Lexington Insurance Company, for $2,500, but it was claimed by him that the defendant had given its consent to the second insurance. To prove this, the plaintiff introduced the testimony of witnesses who stated that, D. B. Hadley, the agent of the company, residing in Akron, had informed the clerk and agent of the plaintiff, who had the charge of the business of the plaintiff, that he was authorized by the directors of the company, to give its consent to the second insurance, and that he had done so before the goods were burned.
    Hadley testified that he had never, on behalf of the defendant, given its consent to the second insurance, that he had no authority to give such consent, and that he so informed the plaintiff’s clerk.
    The secretary of the company testified, that there were no by-laws of the company authorizing the agents of the company to give the consent of the company in such cases. He stated that application had been made at his office to obtain the consent of the company, after the second insurance had been effected, that he was informed the policy issued by the company was in New York, so that the proper, indorsement could not be made upon it, and that after he had consulted some of the directors, he wrote to Hadley to investigate the matter, and if he found it all right, to give the consent of the company. Before his letter reached Hadley, the goods were burnt, but whether they were burnt before the letter was left at the post office, did not clearly appear.
    Within twenty days from the time of the fire, the plaintiff made out a notice of the loss, in due form, which he delivered to Hadley, and gave testimony tending to prove that Hadley agreed to send the notice to the secretary of the company. Hadley testified that he received thé notice within the twenty days, but stated that he had not agreed to send the notice to the secretary, and that he had not been requested to do so. The notice was not delivered to the secretary or to any of the directors of the company till after the expiration of twenty days.
    The jury returned a verdict for the plaintiff, and a motion having been made for a new trial, was overruled, and exceptions taken.
    Exceptions were also taken to the instructions of the court, which were as follows:
    1. That the notice of loss required to be given to the defendant, might be waived by the authorized agent of the company, and whether it had been waived was a question of fact for the jury.
    2. That whether the agent had power to receive or waive notice, depended upon the proof as to his- authority.
    8. That if the notice of loss was given to Hadley, the agent; and he undertook to convey it to the officers of the company, it was sufficient.

      4. That, by the insurance in the Lexington company, the policy issued by the Stark county company did not become void, but only voidable, and so far void that the defendant could take advantage of it, if it had not subsequently consented to the second insurance.
    5. That this consent might be given by an authorized agent of the company by parol, but that the plaintiff must prove that the agent was authorized to give such consent.
    6. That authority to give such consent might be given to an agent by a director, or by the secretary of the company, and that this authority might be given by parol.
    7. That though the plaintiff practiced a fraud upon the Lexington company, by obtaining an insurance for an amount which, with the insurance in the Stark county company, was larger than the value of the goods, if the defendant, by its authorized agent, afterwards consented to the second insurance, such fraud was no defense to the action.
    The errors assigned are as follows:
    1. The court erred in charging the jury, that notice of the loss by fire, required by the charter'of the company, to be given in writing, might be waived by the agent of the company.
    2. The court erred in charging the jury, that if notice of the loss had been given to Hadley, the agent of the company, and he undertook to convey it to the officers of the company, it was sufficient.
    8. The court erred in charging the jury, that by the insur anee in the Lexington company, without the assent of the plain tiff in error, its policy did not become void.
    4. The court erred in charging the jury, that the assent of the plaintiff in error to the insurance in the Lexington company might be given by an agent of the plaintiff in error by parol.
    5. Thé court erred in charging the jury, that authority to an agent to give such assent, might be given by a director of the company, or by its secretary, and that this authority might be given by parol.
    6. The court erred in charging the jury, that fraud in obtaining the second insurance was no defense in an action against the plaintiff in error, if the plaintiff subsequently assented to the second insurance, although by such fraud the defendant in error became insured in an amount larger than the value of his goods-
    7. The court erred in refusing to grant a new trial.

      Qriswold and Hazlett, for plaintiff in error.
    The judgment should be reversed, because of error on the part of the court of common pleas, in charging the jury, in several particulars.
    1. The notice of loss, required by the charter to be given to a director, or to the secretary, in writing, cannot be waived by an agent of the company.
    The insured and' the insurer are but parts of one and the same company, having mutual rights and interests. They, together, make “ the company.” The charter is the sole authority of their existence as a company, and it defines the rights and duties of its members. It is the law of their existence. And it provides that notice shall be given in writing, to a director or to the secretary. The defendant in error was a member of a company, whose charter he knew contained this provision. Why should he not be bound by it ?
    We are aware cases may be found in which-the preliminary proof has been held by the courts and juries to be waived, or rather considered as admitted, and therefore the actual proof was dispensed with. But they are all, we believe, cases of joint stock companies, where the interests of the parties were adverse, where the insured had- been thrown off his guard by the company, etc. We will consider them more fully under the head of error in refusing to grant a new trial, and will then contend there is no evidence of waiver of notice, or that defendant in error considered it waived.
    But here, we rely on the point that it must, as required by the charter, be given in writing, and within twenty days from the time of the fire.
    2. The third error assigned is partly embraced in the second. For, if notice must be given in writing to a director or to the secretary, the charter is not complied with by giving it to a mere agent. Nor can he waive the notice ; nor will his undertaking to transmit it to the proper officer be deemed a compliance with the provisions of the charter.
    But this objection to the charge of the court, reaches farther than the previous one in this: that it attacks the principle laid down by the court, that the act of the agent was binding upon the company, though the charter, by-laws and instructions of the company conferring his powers and authority upon him, give him no such authority as it is here claimed he may exercise.
    3. The insurance having been made in the Lexington company, without the previous consent of the plaintiff, its policy became thereby void.
    We claim that by the mere act of taking that insurance, the policy issued by the plaintiff became absolutely void—
      functus officio — so that vitality could not be given to it after-wards by any act of any officer of this company — the only means of continuing, or rather effecting, an insurance in this company, being by obtaining a new policy.
    On this point the language of the condition annexed to the policy is clear and conclusive:
    “ If insurance on the same property insured by this policy, or any part thereof, shall, at the date thereof, or during its continuance, subsist in any other company, without the consent of this company, this policy shall be void.”

    Now, as it is not pretended that the consent of this company had been given, or even asked, when the insurance was effected in the Lexington company, it follows, necessarily, that unless some peculiar reason exists why a Mutual Insurance company should not be permitted to make its own contracts with its own members — a part of itself — the policy issued by the plaintiff ceased to exist, or to have any binding force upon any’one.

      “ This policy shall be void.” Stronger language cannot be used; and unless this shall receive the construction contended for, the company may cease to adopt rules and regulations, for the government of itself or its members.
    We refer the court to the following authorities:

      Jackson v. Massachusetts Mutual Fire Insurance Company, 28 Pick. Rep. 418. In this case the Massachusetts company was sued upon a policy, one of the conditions of which contained this clause: “ And when a subsequent insurance shall be made, by any other company, or by any person, on property insured in this office, without the consent of the president in writing, and according to the terms in such consent expressed, it shall ipso facto annul the policy, and the premium become forfeited to this company.”
    The plaintiff subsequently procured an insurance in the National Insurance Company, and in the condition annexed to that policy, there was this clause:

      “ If the assured shall have made, or shall hereafter make, any other insurance upon the said property, without the knowl edge and consent of said company, etc., the risk hereupon shall cease and determine, and the policy be null and void, unless confirmed by a new agreement thereupon written, after a full knowledge of such facts and circumstances.”
    No allusion was made in the last policy to the insurance made by defendant.
    No notice was given to the defendant or its officers, of the policy effected at the National office.
    The defendant contended that the action would not lie against it, because of the second policy. But the court held otherwise, because the second policy “ was wholly void and inoperative;” “ wholly nugatory and of no effect.”
    Why is not the insurance of the plaintiff in error also “ void and inoperative,” and its policy “ nugatory and of no effect ”?

      Cockerill v. Cincinnati Mutual Insurance Company, 19 Ohio Rep. 148, is more clearly in point, and more conclusive of the case.
    The plaintiff in that case was insured in the Cincinnati Mutual, and while so insured, his boat — the subject of the insurance — was sold at a judicial sale, for a debt which existed against her, previous to his purchase, and without his consent. He asked of the defendant a return of the premium note, which was refused, but the defendant agreed that if the boat came again to be the property of the plaintiff, the defendant would waive the forfeiture, and the policy should continue to the end of the time. The plaintiff did repurchase the boat, after which she was burnt, and the action was brought upon the policy.
    The court held the action would not lie. The policy was terminated, defeated, made void by the sale. And such being the case, if it could never operate again, which the court do not say could be done, it could only be by virtue of a “ waiver of the forfeiture,” and this must, say the court, by all the authorities, be in writing.

      4. But granting that there was sufficient vitality left in the first policy, after the second had been effected, to admit of a resuscitation, still the court erred in charging that the consent of the defendant to the second insurance might be given by an agent of the company, by parol.
    (1.) An agent such as Hadley, has no authority to give the consent of the company, in any way.
    Section 4 of the charter, names the officers of ‘the company, and defines their duties. No other officers being appointed, and no powers specially delegated to those there named, such consent could only be-given by the directors. The provision is imperative in its terms.
    But they may appoint other officers, and prescribe their duties.

    They have appointed agents, and the record shows what powers have been conferred upon them — in what their agency consists. In cases of this description, they have no power whatever. The plaintiff below, as a member of the company, is supposed to know this as well as the directors. Indeed he was so informed by the agent.
    The only authority conferred by the directors on any of the officers of the company, is delegated to the president and secretary. And this, it will be seen, is a joint power. Neither can act alone, but the two together “ may give leave to effect additional insurance, in other companies.”
    And this, it will be perceived, is a power to give leave in advance ; it does not authorize them to give their consent, after the second insurance shall have been effected.
    And such leave shall be “ indorsed on the policy issued by this company.”
    Hence it is clear that a mere agent of the company has no power to give the consent of this company, either before or after the second insurance is effected, and that the president and secretary are only authorized to give that consent in advance, and that such consent must be indorsed on the policy issued by this company. The directors, whose duty it is to “ superintend the concerns of the company,” either have acted upon the supposition that where such second insur anee has been effected without the necessary assent, its policy became ipso facto void, or they have seen fit to reserve to themselves the power of waiving the forfeiture.
    This part of the charge was clearly wrong, therefore, and upon a point vitally important.
    (2.) It was equally erroneous in assuming that the consent to the second insurance could be given by parol.
    Under this head we maintain that whoever might give the assent, it must have been done in writing, to be binding on the company. By the, second insurance, the policy issued by this company was forfeited. This is admitted ; but it is contended it was not so wholly void but that it might be restored to life by a subsequent consent. In other words the forfeiture might be waived. For the sake of the argument, we are willing, here, to admit it. But then, how can this forfeiture be waived ?
    We need only to refer to the case above cited from 16 Ohio Rep., and the cases cited by counsel in argument. The court in that case says, in so many words, “ a waiver of forfeiture must be in writing.” This point is established by the decisions referred to by the plaintiff and by commercial usage. There is no decision to the contrary, and we do not feel at liberty to depart from a principle of universal recognition, in a matter of commercial law.” 164-5. And again, “ if the determination of the interest of the insured was a forfeiture merely of the policy, that could only be waived by a written instrument to that effect.” 165. '
    During the argument in the common pleas, some authorities were cited, with a view to prove that the consent, or waiver, or whatever -it may be called, might be given by parol. We remember only one, nor can we find any other, which we should suppose would be cited. This was McEwen v. The Montgomery County Mutual Insurance Company, 5 Hill’s Rep. 101. In that case the policy provided “ that in case the assured shall have already made another insurance against loss by fire, on the property therein insured, not notified to that corporation, the policy should cease and be of no other effect.” The agent who filled up the application, was informed of a prior insurance in the Saratoga Mutual, but the fact was not inserted in the application, nor was any other notice given to the company, or to any of its officers.
    It was claimed by the defendant that the policy was void, because no notice of the prior insurance had been given to the company in writing. But the court held otherwise, for the reason, first, that it was nowhere provided that it should be in writing, or inserted in the application; and second, because “ the company must have intended that notice of a prior insurance should be given to the agent.” It held that “ the agent was commissioned to negotiate contracts for them, and notice to him while engaged in that business, and acting within the scope of his authority, was notice to his principals.”
    All which may .be very good law, but does not- touch the question, as to the power of an agent to give the consent of the company to a subsequent insurance, made after the insurance has been effected. And I apprehend any case which may be cited as to this point, will be equally irrelevant and inconclusive.
    But there is one remark of the judge, made in deciding that case, which fully sustains the view we have taken of this, as to the effect of the second insurance without having previously obtained the consent of this company. He says “ if notice of the prior insurance was not given, the policy was void from the beginning.” Just what we contended for — that by the second insurance, without consent, this policy became absolutely void.

    The acts of a board of directors — who alone, as we have seen, can give a consent under such circumstances as these, or waive the forfeiture — can usually be' evidenced only in writing. The board, as such, is a corporate body, and where the power has not been delegated to another officer, or to one of its own number, it acts as a unit, and its acts are matter of record in some shape.
    The principle we are contending for is reasonable. It is all important to the intelligent management and successful operation of an association like this, that those managing its affairs should know, by reference to their papers, records, etc., just what their rights, duties, responsibilities and liabilities are Hence, the directors of this company have required that their secretary shall keep a faithful record of all their acts, and that whatever he does shall be done in writing. The agents have no power, except to report to the company, on the strength of which the company acts. The mode in which it acts, or rather in which its acts are evidenced, are as just stated. And every member of the company is interested in having the affairs of the company managed in this way. There are no reasons in law why they should not be, but many why they should be.
    5. The court erred in informing the jury that a director or the secretary of the company might give an agent authority to bind the company, by his consent to the insurance in the Lexington company, and that this authority might be given by parol.
    (1.) “ A director,” as we have seen, has, of himself, no power; though the board, if is admitted, may delegate such power to an agent, provided it is lawfully done. The record shows that no such delegation of power has been attempted in any way. Or, what is the same thing, there is no evidence it has been done or attempted, and the proof shows that all which has been done or attempted was before the court below, and is now part of the record.
    (2.) The same proof shows that the secretary has no authority to confer any such power upon an agent. The power of the secretary in this respect is specifically defined. He may, in connection with the president, “ give leave to effect additional insurances.” This is the extent of his power.
    Hence, as before stated, this power — and especially in cases where the second insurance has already been effected —remains with the board of directors. Certainly we need not refer to authorities to prove that where an act of incorporation gives to a body all the power it has, it must act in accordance with the provisions of the charter giving the power. If it be necessary, we would refer to the decision of Marshall, C. J., in Head & Amory v. Providence Insurance Company, cited on page 160 of 16 Ohio Rep.
    The law is the same as to the by-laws of a corporation, and the powers conferred by them. If made in pursuance of the charter, they are of the same force as it, and when they prescribe certain rules of action, those rules are as obliga ‘tory as the charter. When they prescribe to its officers a mode of contracting, they must observe that mode, or the instrument no more creates a contract than if the body had never been incorporated.
    (3.) If such authority could not be given by either a director -or secretary, it is unnecessary to consider the other part of the proposition embraced in this charge. But if either of these officers could give to an agent the right to consent, for the reasons above stated, it must have been done in writing, to be binding upon the company.
    6. We maintain that fraud in obtaining the second insurance, would be a defense in an action upon this policy. The court will observe that this company refuses to insure more than two-thirds in value of the property, and in the by-law giving the president and secretary power to assent to an additional insurance, it is provided that the second' insurance shall not be in so large a sum, as, with the insurance in this company, to exceed two-thirds in value of the property insured. The object of this provision is obvious. And the question presented under this assignment is, whether the assured shall in this way be permitted to violate and nullify this salutary provision. To argue the -question is unnecessary. If the objection to the charge, when thus stated, is not apparent, no elaboration of argument would probably make it so

      7. Were the court below right in regard to all the points here made, involved in its charge to the jury, we claim that it erred in refusing to grant a new trial.
    (1.) As to the preliminary proof. Was notice of the loss waived ? It was not in terms, certainly. This is not pretended. Is there any proof that it was in fact ? Where it has been held that the preliminary proof may be waived, we are aware that it has also been held that whether it was or not, was a question for the jury. Bub there must certainly be some proof. What is the proof here ? All the defendant can claim is, that in conversation with the secretary, not long after the fire, when the defendant’s clerk asked him what was to be done about it, and about the goods saved, he said he would attend to it as soon as he could, and in the same conversation, when talking about the insurance in the Lexington company, he said this company would not stand upon technicalities, if they found all things right.
    Neither party considered this a waiver; for some ten days afterwards, the defendant actually made out and delivered to the agent a formal notice of loss. Clearly, then, there was nothing in the interview between Goodman and the witness, which induced the defendant to suppose the preliminary proof was waived. We want no stronger evidence than this on this point.
    We are aware that numerous authorities may be found, in which this notice has been considered as waived. We shall not consider them separately, nor in detail. But it will be found on examining them, that they are all cases in which the parties have met or corresponded, and the defendants have placed their defense on some other and specific ground; have stated that they did not consider themselves answerable for the loss, or doné or said something showing that they did not require preliminary proof to be made, and thus putting the assured off their guard, and inducing them to neglect giving the notice. Here there has been nothing of the kind. A notice was attempted to be given by hand ing it to an agent. At no time after that, was there any communication between the defendant and any officer of the company, by which the notice of loss could be waived. Hence there is no evidence of waiver. .There is no evidence of an opportunity to waive the notice. If the notice can be waived, and if after it had been left with Hadley, the secretary had had an interview with Hurd, and informed him, the company would not pay the loss, because it believed he destroyed the goods himself, or because the second insurance was obtained without its assent, or because of some other specific objection, there would have been evidence on which the jury might have found the notice waived. But no such evidence is found in the case, nor any evidence tending to prove a waiver.
    “ Where a policy of insurance requires notice of loss by fire to be given forthwith, and the underwriters, on payment of loss being demanded, reply that the proof of the amount of the loss is unsatisfactory; that there has been a material concealment, and that all the rights of the insured are forfeited under a particular article of the policy, and add that they reserve all objections to a recovery in any form, and without intending to waive any of their rights under the policy, this answer cannot be construed as a waiver of the objection, that notice of the loss was not given forthwith.” Edwards v. Baltimore Insurance Company, 3 Gill’s Rep. 176.
    We trust our various objections to the rulings of the court below will not be weakened, or lightly considered, because of their number. We have but one more. And perhaps we had more safely rested our case on that alone. Sure we are, this is an insuperable one — and justice requires us to state, that the president judge and one of the associates, were in favor of granting a new trial, for the reasons urged below, and here presented in support of the second proposition embraced in the objection we are now considering.
    A new trial should have been granted, because there was no evidence of the consent of the company to the insurance in the Lexington company, and the court of common pleas erred in refusing to grant it. And in presenting this argument we concede — but only for the sake of the argument — that the court below was right in charging that an agent, who' was legally authorized, might give this consent, so as to bind the company by parol. If the court was wrong in its charge, the judgment will be arrested for that cause. That point, however, is discussed under another head, and is by no means abandoned.
    But there was no evidence to justify the verdict, even under the charge of the court.
    Admitting that Hadley could have 'been authorized to give the consent of the company, there must have been some proof of it. We ask, with confidence, where is that proof ? We have actually proved what we are not bound to do, a negative. Hadley says he had no such authority. Goodman says he had not. The records of the company say he had not. The nature of the agency says the same. And the conduct of Hurd shows that he knew he had not. We rely, therefore, not alone upon the absence of proof — proof which the plaintiff below was bound to make — but in addition to this, we claim that the negative proof is conclusive of the case.
    It will not be. contended, we imagine, that the statement of Hurd that Hadley said he had seen the directors, and it was all right, will be evidence of his authority. An agent may prove his own authority in court, but what he says on that subject, out of court, is not evidence. The fact of the agency must be proved by competent testimony, and then the extent of the agency — which latter may be done by positive proof, or by inference from positive proof, as from the nature of the agency, recognition of his acts by his principal, etc., — and then what the agent says or does, as a part of the res gesta, may be proved by another. But to claim that because a person says he is an agent of another, that he has derived certain powers from another, or that another has intimated certain facts to him, the pretended principal is bound, is absurd. Pie idea that this proves an agency. or the nature and extent of the powers delegated to an agent, is ridiculous. We will not insult the intelligence of the court 'by referring to authorities. We presume counsel for defendant will not stultify themselves by maintaining any such position.
    And yet this is all there is to stand upon. Hadley “ said he had 'seen the directors, and it was all right.” This is all that is claimed by the all-important witness, Hurd, as proving the consent of the company.

      There is then no evidence of consent. We claimed a new trial, therefore, not because the weight of testimony was with us, but because no testimony was offered by the plaintiff — no legal testimony — to prove a point, without proof of which he himself concedes he could not recover. It was as essential to establish this fact, as to prove the issuing of the policy, and there is as total a lack of proof as though in reference to that fact, the plaintiff had merely proved that Hadley had, on some occasion, said the directors had told him a policy had been issued, and “ it was all right.”
    Need we press this point further ? It seems to us the principle of law is clear — that it is a case where -Ae plaintiff failed to make out an essential part of his case, or to give testimony tending to make it out.
    We will only add, that if the court overrules us on this point, rules and regulations are of no avail, and the compa^ ny may as well cease to adopt any. Nay, the charter may as well be disregarded, as a rule of action, at once. It will be deciding in effect, that the directors shall not “ superintend the concerns of the company;” that its charter, rules and bylaws, though published and known to all its members, possess no binding force, and may be superseded or destroyed by the casual conversation of a member of the company with one of its agents, who has no authority in the premises, professes to have none, says to the member he has none, is proved to have had none, where there is no attempt to prove that he has, and where all the conduct of the member shows that he knows he has not. If such a defense is not successful, the company never should attempt one, no matter what claim may be preferred against it.
    And we see no hardship in it. As a member of the compa-' ny, Hurd is supposed to know — in this case did actually know —what its rules are — rules established for his protection as well as that of the other members of the company. And his actions show that he did know what they were. He effects a second insurance. This he had a right to do, risking the consequences. But it was a matter of his own. It was intended for his benefit, not the benefit of the company. Having placed himself in peril — or as we -claim, having forfeited his policy— he applies to the company for relief. It was under no obligation to do anything; but to accommodate him, through its officers it did, according to its rules, take steps to investigate the matter, and if found expedient, waive the forfeiture by giving its consent to the second insurance. Its action was, however, delayed, by difficulties he himself created, by the abs'ence of the policy, etc., but finally, the agent was directed to investigate the matter, and if found right, to give the consent of the company. Whether this action of the company was legal is unimportant, as the goods were burnt before the message reached the agent. He took no steps under it.
    But the position occupied by the defendant was a voluntary one, in which the company had no agency. In the event of-a fire, the day after he effected his insurance in the Lexington company, he knew this company would be discharged. And he also knew — he must have known — he would continue in this state of peril till the consent of this company could be obtained, in accordance with its charter, rules, and by-laws. Why should he complain of us, if he was overtaken by disaster, before that consent was obtained ?
    He is just as well off as though he had not insured in the Lexington company, for there he has secured the same sum we otherwise would have been compelled to pay. And we are satisfied from the proof, he has got all his goods were worth. We are further satisfied, his object in doubling his insurance was to make the two companies pay for them.

      We are aware these considerations may not influence the court, in deciding the legal questions involved in the case, but we always feel more confident in our positions, more satisfaction in urging them upon the favorable consideration of a court, when we know a faithful application of the abstract principles of law will do exact justice — when law and equity harmonize and embrace each other.

      Humphrey, Upson and Edgerton, for defendant.
    I. The notice of loss required by the policy, to be given by the plaintiff in error, may be waived by the authorized agent of the company; and whether it has been so waived, was a question of fact to be decided by the jury.
    The court below instructed the jury that the plaintiff was bound to prove, affirmatively, the agent’s authority to receive or waive notice; and we presume it will not be seriously contended that the company could not authorize an agent to do this act as well as any other. The only question is, whether the company itself has power to waive such notice; and this question has been decided in the affirmative by a large number of decisions.
    The case of McMasters et al. v. The Westchester Mutual Insurance Company, is much like the present.
    In deciding that case the court say: “ The law is well settled, that if there be a formal defect in the preliminary proofs which could have been supplied had an objection been made by the underwriters to payment on that ground; if they do not call for a document, for instance, or make objection on account of its absence or imperfection, but put their refusal to pay upon other grounds, the presentation of such' further preliminary proof will be considered waived.”
    The court also lays great stress upon the fact, that “ the agents were neighbors of the assured — in daily communication with him on the subject of his claim; some of them obviously seeking for the means of defeating it by inquiries into the situation and title of the property destroyed, and by interrogation of the parties, and yet no distinct objection taken to the preliminary proofs that might now be considered as fatal.”
    In this ease, the proof shows that Hadley, the agent resided in the same town with the defendant in error; that immediately after the fire, Goodman, the secretary of the company, visited Akron for the purpose of examining into the circumstances of the loss; and while there he examined Frederick N. Hurd, defendant’s clerk, (as well as many other persons) on oath, for the manifest purpose of showing that the defendant had destroyed his own property, and also that he had misrepresented its value.
    In none of the conversations which he had with F. N. Hurd, did the secretary make any objection to payment of the claim on account of the absence of the preliminary proof, but he even assured him that the company would not stand on technicalities.
    In the case of The Ocean Insurance Company v. Francis, 2 Wendell’s Rep. 65, the court held the preliminary proofs to be waived by “ the declarations of the authorized agent of the plaintiff in error.”
    We also refer the court to the following authorities, which fully sustain our position upon this point:

      Martin v. Fishing Insurance Company, 20 Pick. Rep. 389 ; Vos v. Robinson, 9 Johns. Rep. 192; Francis v. Ocean Insurance Company, 6 Cowen’s Rep. 404 ; Etna Fire Insurance Company v. Tyler, 16 Wendell’s Rep. 401; McIntyre v. Bowne, 1 Johnson’s Rep. 228.
    II. If the notice of loss was given to Hadley, the agent of ' the company, and he undertook to convey it to the company, it was sufficient.
    It appears from the testimony, that the defendant in error made out the notice, in writing, and took it (within the time required by the policy) to Hadley, the agent of the company in Akron, and in reply to his inquiries was informed by Hadley that it made no difference whether the notice was left with him or sent to Goodman, the secretary. Hadley also promised to send it to Goodman the same day.
    We maintain, 1, That notice to the agent was notice to the principal, and that leaving the notice with Hadley, was a sufficient compliance with the requisitions of the policy.
    In McEwen v. The Montgomery County Mutual Insurance Company, this position is fully sustained. In that case, the notice of a prior insurance, required by the policy, was held to be good when given to an agent, although it was not in. writing, and never actually reached the company. In deciding the case, the court say: “ The agent is appointed and sent out for the purpose of inviting men to insure, and encouraging them to do so by transacting the business in such a way as to save them from the necessity of either going or sending to the office of the company. * * * The power under which the agent acts never prescribes, in terms, that the notice may be given to him, but the notice is good for the reason that, while acting within the scope of his authority, whether a general or special agent, he stands in the place of the principal, and persons dealing with him are, for most purposes, regarded as dealing with the principal. * * As the notice was properly given to the agent, it is of no consequence that he neglected to communicate it to the company.”
    2. But if the court should not consider it sufficient in general to give such notices to an agent, the company would still be bound by the notice in this instance for another reason, which is, that if the notice did not' reach the secretary in time, the delay was occasioned by the fraudulent acts of the agent, ánd the company cannot take advantage of such fraud. 2 Greenleaf's Ev. p. 383, § 406.
    III. By the insurance in the Lexington company, the policy in the Stark company did not become absolutely void,, but only so far void that the Stark company might take advantage of it, if the company had not subsequently assented to it.

      One of the conditions annexed to the policy provides, that “ if insurance on the same property, insured by this policy or any part thereof, shall at the date thereof, or during its continuance, subsist in any other company, without the consent of this company, this policy shall be void.”
    This condition does not, in express terms, require that the consent of the company should be obtained previous to the second insurance; and we understand its true construction to be, that where a second insurance is thus effected, it is at the option of the company either to annul the contract, or to treat it as still in force. This is the construction given to similar provisions in other contracts, and we know of no reason why a different rule should be applied to policies of insurance. In this case, none of the officers of the company thought of treating the contract as at an end, until after the loss of the property insured, .and the directors showed their construction of the contract by actually authorizing the agent to give the assent of the company, as is proved by the testimony of the secretary.
    The case of Jackson v. Massachusetts Mutual lire Insurance Company, 23 Pick. Rep. 418, has been cited as sustaining the opposite doctrine. That case does not, however, decide this point, for the question did not arise, whether a subsequent consent to the second insurance was good. It was admitted that consent had not been given at any time, and the court, of course, held that the policy was not binding. The case of Cockrill v. Cincinnati Mutual Insurance Company, 16 Ohio Rep. 148, is also relied upon by the counsel for the plaintiff in error, but we think it does not sustain his position. In that case, the plaintiff’s boat, which had been insured by the defendant, was sold at judicial sale; but the defendant agreed that, if the plaintiff would repurchase the boat the policy should continue. The court held, that “ the policy was at an end by the transfer of the entire interest of the insured, by judicial sale;” and it seems to have been the opinion of the court, that “this was not a forfeiture which could be waived, but an entire destruction of the policy,” and that “ the agreement was equivalent to a new policy.” It is plainly admitted in the decision, that a new forfeiture may be waived, althought it is said that the waiver must be in writing, a proposition which we shall consider in another part of our argument.
    1. Consent to the second insurance might be given by an authorized agent, by parol. '
    As will be seen by the bill of exceptions, the court below instructed the jury that, if the defendant in error relied upon an assent given by an agent, he must prove that the agent was authorized to give such assent.
    In this, we think that the court went too far; for we claim that the general powers of the agent were sufficient, without any special authority, to act in this case. Such power is necessarily implied from the nature of his employment. He is appointed for the purpose of enabling men to transact business with the company, without the trouble and expense of going to its office ; and the object of his appointment would be defeated by holding his acts not to be binding on the company.
    We insist, however, that the evidence proves that Hadley was specially authorized to give the consent of the company to the Lexington insurance.
    2. The consent to a second insurance may be given by parol.
    The condition annexed to the policy simply requires the consent of the company, without prescribing the mode in which it shall be given. The company was notified of the second insurance immediately after it was obtained, and its consent thereto requested, and it was bound, in good faith, either to give or refuse its consent within a reasonable time, so that the defendant in error might obtain another insurance if necessary. We claim that, if the company, after being thus notified, expresses no dissatisfaction, but shows its intention to continue the insurance by calling upon the assured to pay assessments, etc., consent will be implied from its acts.

      However this may be, it seems to us clear, that an express assent is binding, although given by parol, as in this case.
    The contract into which the parties have entered, certain ly does not require that the consent should be in writing. We can see no reason why any distinction should be made between the forfeiture of a policy of insurance, and the forfeiture of a lease or other contract; and it is admitted that all such forfeitures may be waivéd. by mere acts, without any express waiver.
    Why, then, should a written waiver be required in this, even supposing that obtaining the second insurance did amount to a forfeiture ? We are told, in reply, that “ there is no decision to the contrary.” We insist that it rests upon the counsel for the plaintiff in error to produce decisions establishing the position for which he contends; he is bound to show why policies of insurance should be subject to a rule of construction different from that applied to all other contracts.
    We deny that the decisions sustain his position. It is said that the case of Cockrill v. Cincinnati Mutual Insurance Company, referred to above, decides this question; and it is true that the language of the decision might be made to include this case, but we do not believe that the court intended to establish any such general rule in regard to forfeitures, as is contended for.
    The court evidently considered the sale of the boat not as a forfeiture merely, but as an entire destruction of the policy, and that therefore a new policy was necessary. As was said by the. counsel for defendant, “ The termination o'f the risk originally assumed, was not a matter in the nature of a forfeiture. The contract was to- indemnify the party insured, against loss or damage that might happen to the interest which the insured had in the boat. When that interest ceased, the risk ceased, because no damage could possibly happen to that which had no existence.

      Here the interest of the defendant in error in the property insured, still remained liable to the perils insured against, and unless released from the contract by his own act, he still continued liable to pay assessments upon the premium note. We claim that if this decision is correct, it must be sustained by. reasons that do not apply to the present case.
    The authorities cited by counsel in the same case, are also referred to. They are, 3 John. Cases 142; 1 Phil. on Insurance 572; 1 Sum. Rep. 232. They decide that a forfeiture by deviation may be waived; but it is claimed by the counsel for the defendant, in the case in 16 Ohio Rep., that, according to these authorities, the waiver must be in writing. In the case referred to in Johnson’s Cases, the waiver was in writing, and was held to be binding upon the company, but the 'question did not arise, and the court did not intimate an opinion whether it would not have been equally good if it had been verbal. In the passage quoted from Philips oh Insurance, it is said that the waiver must be in writing; but no authority is given for the position, except the case of Crowningshield v. New York Insurance Company, which does sustain it.
    The case in Sumner’s Reports we have not had an opportunity of examining.
    The case of McEwen v. The Montgomery County Mutual Insurance Company, 5 Hill’s Rep. 101, is, it seems to us, exactly analogous to the present. In that case, the policy required notice of prior and subsequent insurances to. be given to the company, and the court held that, as the policy did not expressly require it to be in writing, the notice was sufficient, although it was given verbally to an agent, and never was communicated to the company.
    IV. It is claimed that the court erred in charging the jury that a director or the secretary of a company might give an agent authority to bind the company by an assent to the insurance in the Lexington company.

      We consider it proper to state, this part of the charge is not correctly set forth in the bill of exceptions. The court, in fact, charged that those officers of the company, who had power to give such consent for the company, might authorize an agent to act for them, and the defendant in error was bound to prove that the agent was actually thus authorized. The counsel for the defendant in error objected to the language of the bill of exceptions in this respect, and the objection was sustained, but the president judge accidentally omitted to correct the error.
    We do not, however, deem this an important point, for the defendant in error did not claim, on the trials that the agent acted under the authority derived from a single director, or from the secretary alone, but from the directors and secretary. This charge, therefore, even if given, would have been upon an abstract point, not involved in the case.
    Fraud, in obtaining an insurance in the Lexington company, would be no defense to this action.
    The court has no means of knowing whether the defendant committed such fraud, or not, for the plaintiff in error offered no evidence whatever for the purpose of proving it. It was not in issue in the case, and we know of no principle of law which would permit either party to give evidence in regard to it. How, then, could such fraud be a defense to this action, even if it were fully proved. The mere statement of the proposition is a sufficient answer to it.
    Y. It is claimed, in the last place, that the court erred in refusing to grant a new trial.
    It is a well settled rule of law, that the power to grant a new trial will not be exercised for the purpose of enabling the defendant to take advantage of technical defenses, especially when substantial justice has been done by the verdict of the jury. The points upon which the plaintiff in error contends that the testimony was insufficient, are strictly technical, and do not affect the merits of the case. We do not, however, admit that there was a want of proof in regard to any point, for we think an examination of the whole evidence will satisfy the court, that every point was fully proven.
    In regard to the waiver of notice, the proof was stronger than in any of the cases above cited. In addition to the express declaration of the secretary that the company would not stand on technicalities, the testimony shows that immediately after the fire, the officers of the company spent several days in taking depositions (and among others the defendant’s clerk) for the purpose of proving that the fire was caused by the defendant himself, and also that he had misrepresented the value of his goods, thus leading the defendant to suppose that no other defense, to his claim was intended. If the company intended to refuse payment of the loss on account of the absence of preliminary proofs, they were bound to state the objection at that time, and having failed to do so, cannot now take "advantage of it.
    The evidence of the assent of the company to the insurance in the Lexington company, seems to us conclusive. Hadley, the agent; actually assented to the second insurance in behalf of the company. That is proven by the testimony of E. N. Hurd and J. A. Granger. We maintain that this is binding upon the gompany, even without' proof that Hadley had re ceived a special authority. It is, however, admitted by the secretary, that after consultation with the directors, he wrote to Hadley to give the required consent. The secretary thinks the letter did not reach Akron until after the fire; but supposing that to be true, would not the action of the directors amount to a ratification of the previous acts of the agent ? We think it would.
    Whether Hadley did really receive the letter before the fire, or not, was a question of fact to be decided by the jury, and there were many circumstances which justified the jury in coming to the conclusion that the secretary was mistaken upon that point. The secretary, himself, was uncertain as to the exact time when he mailed the letter, and we have no doubt that Hadley told the truth when he said that he had heard from the directors, and it was all right.
   Avery, J.

It became a question before the jury, on the trial of the case below, whether the defendant, the Stark County company, had given its assent to the insurance effected in the Lexington company; and the court in charging upon that point, used this language, “ That authority to give such assent may be given to an agent by a director of the company, or by the secretary, and this authority may be given by parol.”

To secure from the owner vigilance and constant care over the property insured, it is the practice of these companies to cover by their policies a part only of the loss. They insure no property for its full value, or for an amount greater than the value, because it is found necessary to guard against negligence on the part of the insured, and sometimes against his dishonesty. It is necessary, also, for the same reason, to provide, that the insured shall not effect policies at his pleasure, upon the same property, in other insurance companies.

The subject is considered of so much importance, that for this company it is provided in the act of their incorporation, if insurance on any building insured by the company, shall subsist at the same time in any other office, the insurance by the company shall become void, unless such double insurance subsist with the consent of the directors or agents,' signified by indorsement on the back of the policy, signed by the president and secretary.

With the object of extending the provisions to all other property to be insured by the company, amongst the condi tions annexed to the policy, and -declared to be a part thereof, is one in the following words: “ If insurance on the same property insured by this policy, or any part thereof, shall at the date thereof, or during its continuance, subsist in any other company, without the consent of this company, this policy shall be void.”

The policy is void, then, without the consent of the company. The insured in such ease, if upon the trial, another policy is shown to exist, must prove that it was effected with the consent of the company. He takes the affirmative. The company only can give the consent, not a member, or even an officer, unless it be further shown that he was previously authorized by the company.

This company has pointed out the mode in which its consent is to be given. It has provided for this in one of its by-laws, which the plaintiff, being a member of the company, is supposed to know. The by-law is in these words : The president and secretary may, in behalf of the company, give leave to effect additional insurances in other companies, on buildings or other property insured by this company; not in any case, however, for a greater sum or amount than the difference between the sum insured by this company, and two-thirds of the estimated value of the buildings or other property so insured; and also to indorse such leave on the policy so insured by this company — the same to be recorded in a book provided for that and other purposes.” Here is the only mode, according to the charter and by-laws, authorized by the company, for giving its consent. The president and secretary must give the leave, and unless some other law be shown, there is no authority in a director or secretary to give such leave.

The charge of the court, then, by which the jury were instructed, that such assent might be given by a director or secretary, was erroneous.

Errors, it is alleged, are also to be found 'in other portions of the charge, and the court erred, it is claimed, in not granting a new trial, upon the motion of the defendant.

The error which has been particularly noticed above, must cause a reversal of‘the judgment; and as to the rest of the errors assigned, we are not agreed to declare either one of them sufficient for that purpose. Judgment reversed.


source: Caselaw Access Project

author: Hitchcock, C. J.

license: Public Domain

text:
    The State, on Relation of the Directors of the Eastern and Western School Districts of Cincinnati, v. The City of Cincinnati and others.
    The act of February 20th, 1849, to authorize the establishment of separate schools for the education of colored children, and for other purposes, is constitutional.
    Separate districts, established for colored children, under the provisions of that act, are entitled to all the rights and privileges of regular school districts.
    The laws regulating schools in Cincinnati, are applicable to the separate dis-' tricts in that city, established under the law of 1849.
    Money deposited in the city treasury for the use of those districts, must be drawn from the treasury in pursuance of the law relative to common schools in the city.
    It is the duty of the city council to give such orders upon the city treasurer that the money deposited in the treasury for the use of those districts may be appropriated to the use intended.
    This is a mandamus, reserved in Hamilton county.
    On the 16th of May, 1850, during the session of the supreme court in Hamilton county, an alternative mandamus was issued, at the instance of the board of directors of common schools, for the eastern and western districts of Cincinnati, against the city of Cincinnati, the. city council of Cincinnati, and William Disney, treasurer of said city, returnable on the 18th.
    To this writ, Disney made a return, respecting which, there is no controversy. It is admitted by the relators to be sufficient.
    The information was filed on the 15th of May, and is as follows:

      To the Honorable, the Supreme Court of the State of Ohio, within and for the county of Hamilton, In said Slate:

    , Your petitioners, Richard Phillips, John I. Gaines, William Beckley, Ishmael Keith, William Eerguson, and William A. Nelson, respectfully represent and state to the court, that they constitute the board of directors of common schools for the eastern and western districts of the city of Cincinnati, which schools are established by law for the education of the colored youth residing in said city; and that in pursuance of law, your petitioners rented divers rooms, and established divers schools in said city, for the education of said youth, and employed competent and duly qualified teachers as instructors of said youth in the schools aforesaid.
    And your petitioners further state, that heretofore, to wit: on the 15th day' of March, 1850, William Disney, in his capacity as treasurer of said city, received from the treasurer of Hamilton county, the sum of two thousand one hundred and seventy-seven and sixty-seven hundredths dollars, for the use of your petitioners, and of the common schools for colored youth, so by them established, the same being the proportion of the public school funds belonging to your petitioners, and to the schools under their charge, as the same was apportioned by the auditor of said county, in pursuance of law, which sum of money still remains in the hands of said treasurer, in the'treasury of said city.
    And your petitioners further represent, that on the first day of April, 1850, there became due from them for expenses incurred in the support of said schools the sums hereinafter set forth, as follows, namely: The sum of six dollars to the trustees of the New Street Church, for two months rent of school room; the sum of seven dollars to the trustees of the Union Baptist Church, for one month’s rent of school room; to Martha S. Whipple, the sum of twenty dollars, for one month’s salary as teacher; to Peter Clarke,the sum of twenty dollars, for one month’s salary as teacher; to William R. Casey, for one month’s salary as teacher, the sum of twenty dollars, and to O. J. B. Nickens, the sum of sixty dollars, for two months salary as teacher in said schools; and that, thereupon, afterwards, to wit: on the fifth day of April, 1850, your petitioners duly certified to the city council of said city the correctness of said several accounts, together with the several accounts respectively, and desired the city council to pass an order directing the treasurer of. said city to pay the same out of the funds of your petitioners in his hands, to the persons entitled to receive the same.; but your petitioners state that the said city council, afterwards, on the first day of May, 1850, utterly refused to pass any order in relation to the payment of said accounts, and they now claim that they have no power, jurisdiction or authority to make any order in the premises.
    And your petitioners further represent, that afterwards, to wit: on the Í0th day of May, 1850, they caused said accounts to be presented to the said William Disney, treasurer of said city, and payment thereof was then and there demanded of said Disney, as treasurer, and the said Disney then and there utterly refused and still doth refuse to pay the same, or any part thereof, although the said Disney then had and now has in his hands, as treasurer, as aforesaid, the whole of said sum of two thousand one hundred and seventy-seven and sixty-seven hundredths dollars, and which said sum is held by said Disney, as treasurer of said city, for the use of your petitioners, and of the schools so by them established; he, the said Disney, pretending that he has no power to disburse any of the funds in the city treasury, without the order of said city council, signed by the city clerk, first being had and obtained.
    And your petitioners further state, that by reason of said refusal by said city council to pass the orders aforesaid, and of said treasurer to pay said accounts, the teachers employed by your petitioners are deprived of the compensation, which is justly due them for their services, and the schools so by your petitioners established have been suspended for want of means to. carry on the same, although a fund amply sufficient to sustain said schools has been provided by law, and is now in the hands of said Disney, as treasurer of said city.
    And your petitioners further state, that they are entirely without remedy in the premises, unless it be afforded by the interposition of this honorable court; and they therefore pray that writs of. mandamus may issue against the city of Cincinnati, the city council of the city .of Cincinnati, and William Disney, treasurer of said city; that said city and city council be commanded to pass an order directing said treasurer to pay said accounts, out of said fund, and that the said Disney, as treasurer, be commanded to pay the same to the order of your petitioners, and that such other order may be had in the premises, as justice may require.
    By Ball & Hoadly,

      Their Solicitors.

    The State of Ohio, Hamilton county, ss.
    Richard Phillips, one of the petitioners above named, and president of the board of directors of common schools for the eastern and western districts of the city of Cincinnati, being duly sworn, saith, that the several matters- and things in the foregoing petition stated, are true in substance and in matter of fact, to the best of his knowledge, information and belief.
    Richard Phillips.
    Sworn to and subscribed before me, notary public under the • act of -1819. Given under my hand and seal of office, at Cincinnati, this fifteenth day of May, A. D. 1850.
    Geo. Hoadly, Jr.,
    [L. S.] Notary Public.

    Whereupon, the court haying heard the same, ordered that writs of alternative mandamus issue to the city of Cincinnati, and to the city council of the city of Cincinnati, and to William Disney, treasurer of said city, returnable on the 18th day of May, 1850, and the writs were accordingly issued and served.
    The writ served upon the city and city council is as follows:

      The State of Ohio, Hamilton county:
    To the city of Cincinnati,
    and the city council thereof, Greeting:
    Whereas, it has been suggested to us, that you have refused to issue an order directing the treasurer of said city to pay certain sums of money, alleged to be due as follows, to wit: The sum of six dollars, to the trustees of New Street Church, for two months rent of school room; the sum of twenty dollars, to the trustees of North Street Church, for two months rent of school room; the sum of seven dollars to the trustees of the Union Baptist Church, for one month’s rent of school room; to Martha S. Whipple, the sum of twenty dollars, for one month’s salary as teacher; to Peter Clarke, the sum of twenty dollars, for one month’s salary as teacher; to William R. Casey, for one month’s salary as teacher, the sum of twenty dollars; to O. J. B. Nickens, the sum of sixty dollars, for two months salary as teacher; the correctness of which several sums of money had been certified to you by the board of directors of common schools for the eastern and western districts of the city of Cincinnati. Now therefore, we being willing that full and speedy justice should be done in the premises, do command you that you issue an order directing the treasurer of said city to pay the said several sums of money, so certified, as herein before stated, or that you appear before the judges of our supreme court, sitting within and for the said county of Hamilton, at the court-house in said county, on the 18th day of May, 1850, at nine o’clock A. M. of said day, to show cause why you refuse to do so.
    Witness, Isaac G. Burnet, clerk of our supreme court, at Cincinnati, this 16th day of May, A. D. 1850.
    Isaac G. Burnet, Glerk.

    [L. S.] Per S. G. Burnet, Deputy.

    To this writ, the city of Cincinnati and-its council, made the following return:

      State of Ohio, Hamilton county, ss.
    The answer of the city of Cincinnati, to the alternative mandamus, on the application in the supreme court in and for said county, made by Richard Phillips, John I. Gaines, William Beckley, Ishmael Keith, William Ferguson, and William A. Nelson, claiming to constitute the board of directors of common schools for the eastern and western districts of Cincinnati, for the education of colored youth, against the city of Cincinnati, the city council of the city of Cincinnati, and William Disney, treasurer of said city.
    This respondent says, that the board of trustees and visitors of common schools of the city of Cincinnati, on the seventh day of August, in the year 1849, passed a resolution that the city should be divided into two school districts, for the colored youth of said city, to be called the eastern and western districts ; and on the same day, passed another resolution that the said board should notify the colored adult male tax payers of said districts, that an election for school visitors and trustees, would be held in said districts on the 13th day of August, 1849, at two o’clock P. M.; and on the same day, the city clerk was directed by said board, to cause to be published in the Globe and Chronicle, notice of the election provided for in the second of said resolutions, to be held in the eastern district, at the New Street Chapel on New street; and in the western district, at Zion Church on Third street, between Race and Elm streets, which notice was given. Soon after this, the said board passed another resolution to employ suitable persons to list the colored tax payers and youth of said districts, and did employ one such person for that purpose in each district.
    This respondent says, that on the third day of April, 1850, the accounts set forth in said application for a mandamus, some of them certified correct, by John I. Gaines, some by Charles Satchel, one by William M. Nelson, and one by Richard Phillips, were presented by one of the applicants for a mandamus to the city council of said city, and put on the desk of the president of said council, with a request that said accounts should be paid. The said accounts were referred to the committee on common schools, who, on the second day of May, 1850, made the report, a copy of which is certified by the city clerk, and hereto annexed, marked jExhibit A, and the said report was accepted and agreed to ; and the city council refused to order said accounts to be paid.
    This respondent says, in pursuance of the order aforesaid, an enumeration was made of the colored youth in said city, ¿nd they were found to.be in the eastern district, four hundred and twenty-three, and in. the western district, four hundred and twenty-two, making together, eight hundred and forty-five, and that the white youth of said city were also enumerated and found in the same year (1849), to be thirty-three thousand five hundred and forty-eight. A tax was levied by the city council of said city, in the year 1849, for school purposes, on all the real and personal property in said city, as returned on the grand levy of the state, without any distinction being made as to the ownership of such property, whether owmed' by white or by colored persons.
    The auditor of Hamilton county made a division of the school funds, in the treasury of said county, to which the city of Cincinnati was entitled, derived from all sources whatever; and in making such division, he appropriated a part of said funds in proportion to the number of white youth enumerated as aforesaid, thirty-three thousand five hundred and forty-eight, for the support of schools for white youth; and a part of said funds, in proportion to the number of colored youth enumerated as aforesaid, at eight hundred and forty five, for the support of schools for colored youth. The amount appropriated by this rule, for the support of schools for colored youth, was two thousand one hundred and and seventy-seven dollars and sixty one cents ($2,177.61), which was paid to William Disney, treasurer of said city, out of the treasury of said county, by order of the said county auditor, on the 13th day of March, 1850. The said -city treasurer was not willing to receive said money, supposing that it was not proper for him to receive it, and he would not have received it, except for the following reason, to wit: the said county auditor refused to give him an order for the other school money, unless this was also included, and all receipted for to gether. For this reason the city treasurer did receive said money, and deposited the same in the State Bank of Ohio, Franklin Branch in Cincinnati, where the same lies at four per cent, interest, subject to judicial decision. Said city treasurer, supposing, as aforesaid, that it was not proper for him to receive said $2,177.61, has not reported the receipt thereof officially, to the said city council, nor to the city clerk.
    Wherefore this respondent prays the judgment of the court, whether the said sum of $2,177.61, has been legally levied and collected, and appropriated as above set forth; and that the court will make such order in the premises, as shall be required by right and justice; and- that this respondent may be hence dismissed.
    Daniel Yan Matre,

      Attorney for Respondent.

    In testimony whereof, John B. Warren, president of the city council of the city of Cincinnati, has hereunto set his hand, and the seal of said city, this 30th day of May, 1850.
    John B. Warren,
    [L. S.] President.

    Exhibit A.
    City Clerk’s Oeeicb, Cincinnati, May 27, 1850. Abstract from the minutes of May 2d, 1850.
    Mr. Messick, from the special committee to whom had been referred the bills of the colored common schools, submitted the following report, which was accepted and agreed to:
    “ The committee on schools ” have had under consideration several claims presented by the board of trustees of' the colored schools, and report that the city treasurer has certain funds in his hands, purporting to have been assessed and collected for the benefit of the common schools, but the legislature has made no provision to appropriate said fund. The committee, therefore, believe that the city council has no control over the subject, and beg to be discharged from its further consideration.”
    I certify the foregoing to be a correct abstract.
    Wm. G. Williams, City Clerk.

    To this return a general demurrer was filed by the relators.

      Ball & Hoadly, and Pugh & Pendleton, for relators, made the following points :
    1. Mandamus is the proper remedy to compel the city council of the city of Cincinnati, to pass an order for the payment of accounts certified as correct by the colored board of directors of common schools, out of the funds in the city treasury, placed there for the support of such schools.
    2. Where a return to an alternative mandamus is evasive, a peremptory mandamus will be awarded.
    3. The act “To authorize the establishment of separate schools for the education of colored children, and for other purposes,” passed February 10, 1849, places colored youth in Ohio, upon an equal footing with white youth, in respect to common schools ; and if colored youth in any district, are excluded from schools for white youth, in the manner indicated in the act, they are entitled to share pro rata with white youth, in the common school funds of such district.
    4. The “ special tax for district purposes,” referred to in the third section of the act, relates to special taxes for building and repairing school houses and the like, assessed in particular districts, and does not embrace general taxes levied on a city at large, and common to all districts.

      They cited the following authorities :

      United States v. The County Commissioners, 1 Morris Rep. 31; Page v. Hardin, 8 B. Monroe 648 ; Johnson’s Adm’r v. Kelley et al., Wright’s Rep. 353 ; The matter of the Trustees of Williamsburgh, 1 Barb. Rep. 34; The State v. Mc Colister, 11 Ohio Rep. 52; Burnet v. The Auditor of Portage county, 12 Ohio Rep. 57 ; Brown v. Crippen, 4 H. & Munf. Rep. 173; Kendall v. The United States, 12 Peters 524; Decatur v. Paulding, 14 Peters 497; Crane’s case, 5 Peters 190; The Life and Fire Ins. Co. v. Wilson, 8 Peters 291; The People v. The Judges of Duchess Com. Pleas, 20 Wend. Rep. 659 ; Post Master Greneral v. Trigg, 11 Peters 173.

      Grholson Miner, for defendants, made the following points:
    1. The constitution of Ohio requires that those intrusted with any power connected with the government of the State shall be white persons.
    2. The directors of common schools are public officers, and the directors of each school district constitute, under the law, a corporation, or municipal body, exercising and discharging public powers and duties.
    3. The act “ to authorize the establishment of separate schools for the education of colored children, and for other purposes,” passed February 10, 1849, so far as the same authorizes colored persons to vote at an election for directors of common schools, to hold office as such school directors, and to have and possess the rights and powers granted to school directors by the laws of the state, is unconstitutional and void.
    4. There is not, nor can there be, under any existing law, such a public body or corporation, in the county of Hamilton, as “ the board of directors of common schools for the eastern and western districts of Cincinnati.”
    5. The board of trustees and visitors of common schools in Cincinnati, is not an independent body or corporation, but merely a part of the city government, and has no right to institute any legal proceeding. By the act of March 7th, 1842, the city council is prohibited from ordering the payment of any account out of the city school fund for tuition or building pur poses, until the same is audited and allowed by the board of trustees and visitors ; but the city council may refuse to order payment of any claims, and the remedy of the' party injured is by suit against the city.
    They cited these authorities:

      Soper v. Livermore, 28 Maine Rep. 193; Sherwin v. Bugbee, 16 Ver. Rep. 439 ; Fourth School Dis. in Rumford v. Wood, 13 Mass. Rep. 192 ; McLoud v. Selby, 10 Conn. Rep. 390 , Clark v. L. & N. Canal Co., 51 Eng. C. L. Rep. 898; Reg. v. Powell, 41 Eng. C. L. Rep. 575; Reg. v. Ledyard, Ib. 697.
   Hitchcock, C. J.

The questions raised in this case are important, being intimately connected with our common school system. The facts stated by the relators in their application to the court, are, in substance, admitted by the defendants in the return to the alternative mandamus. It admits that there is in the treasury of the city, the sum of $2,177.61, belonging to the eastern and western school districts of the city, for the use of common schools in those districts; at least it admits that the city treasurer received this amount of money from the auditor of the county for that purpose, but does not seem to be exactly willing to admit that it is in the treasury. The treasurer received it, and he received it as school money, belonging to the eastern and western districts, but he received it unwillingly, and instead of reporting it to the city council as so much money in his hands, he deposited it in the Franklin Branch, in Cincinnati of the State Bank of Ohio, at four per cent, interest, where the same remains, subject to judicial decision. It is stated in the return, that “ the treasurer was not willing to receive said money, supposing it was not proper for him to do so, and he would’ not have received it, except for the following reason, to wit: the county auditor refused to give him an order for the other school money, unless this was also included, and all receipt ed for together.” This other school money which was thus ob tained, amounted to a much larger sum. It is further stated-in the return, that the bills referred to in the complaint, had been referred by the city council to the committee on schools. This committee reported, “ that the city treasurer has certain funds in his hands, purporting to have been assessed and collected for- the benefit of the common schools, but the legislature has made no provision to appropriate said fund; the committee, therefore, believe that the city council has no control over the subject.” Upon the whole return, the defendant “ prays the judgment of the court, whether the said sum of $2.177.61, has been legally levied and collected, and appropriated, as above set forth, and that the court will make such order in the premises, as shall be required by right and justice.”

It is claimed by counsel for the relators, that the return is evasi-ve, and that consequently they are entitled to a peremptory mandamus, and 1 Barb. Rep. 34 is cited as authority. This authority sustains the position assumed by counsel. ' The return, in the opinion of the court, is somewhat evasive, but as we understand it, the city council do not' intend to controvert the right of the two districts to this money, provided it has been “ legally levied and collected.” On this subject they have doubts, and refer the question to the court. They seem, further, to have doubts whether they have any thing to do in the business, or have any control over it. They have been advised by this “ committee on schools,” that they have no concern with it, and they want the opinion of the court upon the subject. Such seems to be the intention and desire of the city council. They do not complain that these eastern and western school districts of the city, are for the benefit of the colored children of the city. They are aware, as we all must be, that if education improves the white youth of the state, and better fits and prepares them to make useful citizens, education must better prepare the colored children to become useful inhabitants. There is nothing in the return to show that they have any feeling of opposition to the education of colored youth. The only question in the mind of the city council seems to he, whether this money was properly levied and collected, and whether they have the right to interfere to give it the direction by law in tended, if the intention of -the law is, that it shall be appropri ated to the education of colored youth.

So far as the first question is concerned, neither the city council, in their answer, nor their counsel in argument, have pointed out wherein this money was levied and collected in violation of law. It was levied and collected under the same provisions of law that the larger sum referred to was levied and collected. So far as this latter sum is concerned, there is no complaint. It seems to be admitted that this was properly levied and collected. It was, without hesitation, received by the city treasurer, and rather than not receive it, he agreed to take the $2,177.61, although with respect to the propriety of the receipt of this latter sum, he had some conscientious scruples. If the levy and collection of this latter sum were illegal, the same objection applies to the former sum; so far as this matter is concerned, the same law applies to both. The two sums were collected together, as one gross sum, and after the collection, distribution was made by the county auditor. If any thing was wrong, it was this distribution, but of this there is no complaint. It is admitted that the apportionment was in exact proportion to the number of youth in these two complaining districts.

In order to determine whether it was proper for the city council to give this sum the direction intended by law, whether they had the power to interfere with it, and to draw orders for it upon their treasurer, as liabilities might be incurred by the districts, it will be necessary to give some little attention to our school laws, and especially to the act of February 10th, 1849, “ to authorize the establishment of separate schools for the education of colored children, and for other purposes.” (47 Ohio L. 17.)

In exainining this act I shall first consider the 6th section, which is the repealing section. After repealing certain laws by their titles and dates, the section proceeds as follows: “ And all parts of other acts, so far as they enforce any special disabilities, or confer any special privileges on account of color, are hereby repealed, except the act of February 9th, 1831, re lating to juries, and the act of the 14th March, 1831, for the relief of the poor.” Now suppose there had been no other provisions in this act, what would have been the consequence, so far as schools are concerned ? Unquestionably, white and colored children must have been admitted into the same schools, and upon the same terms. There would have been no distinction on account of color. All would have an equal right of ad-mission, and all must have been admitted, unless the law was palpably violated and resisted. The eight hundred colored youth, and the thirty-three thousand white youth of Cincinnati would have been found in the same rooms, the same schools, under the same instructors, according to their locality in the different parts of the city.

In this state of case the colored youth of the city would have received precisely the same benefit from the school fund as is now claimed for them. By the general school laws, as they would have remained after this repealing clause, this right would have been secured to them.

But to avoid this difficulty of mingling in the same schools, youth of different colors, whites with blacks and mulattoes, the “ board of trustees and visitors of common schools of the city of Cincinnati, on the 17th August, in the year 1849, passed a resolution that the city should be divided into two school dis tricts, for the colored youth of said city, to be called the eastern and western districts.”

If the provision of the law authorizing this action is, as is contended by defendant’s counsel, unconstitutional and void, it follows of course, that the general law remains, securing to colored youth the right of attendance in common schools with white youth, and the right to participate in the school fund, for it will not be pretended that the repealing clause before referred to, is unconstitutional. They might be ex eluded by force and violence, they could not be by the laws of the land, as it now exists.

The first section of the act of February, 1849, enacts, “ That the trustees of each incorporated township in this state, and the trustees, visitors, and directors of schools, or other officers, having authority in the premises, of each city and incorporated town or village, shall be, and they are hereby authorized and required, respectively, in case they shall not deem it expedient to admit the colored children resident in any such township, city, town or village, into the regular common schools therein established, to create one or more school districts, for colored persons, in every such township, city, town, or village, which district or -districts shall include all the territories thereof; and in laying off such districts, they shall be governed in all respects by the provisions of the act for the better regulation of common schools, passed March 7, 1888.”

Pursuant to the provisions of this section, the “ board of trustees and visitors of common schools of the city of Cincinnati ” accepted the resolution dividing the city into two districts for colored youth, before referred to. There is no complaint 'of want of power in this board to perform the act, nor is it pretended but that it was properly performed.

The second section of the same act provides, that when any district is established as prescribed in thfe first section, the authority establishing the same shall give notice to the adult male colored tax-payers residing in the districts, to meet and choose their school directors, “ and such meeting, and all subsequent meetings for the election of directors, and for other purposes, shall be held and conducted as is directed in respect to meetings for like objects, by act of March 7, 1838, and the acts amending the same, and the powers, rights,” etc.

In pursuance of this section, notice was given, and an elec tion held in the eastern and western districts of Cincinnati, and so far all appears to be right.

The third section requires the authorities establishing separate districts to cause lists to be made of all colored taxpayers, and all colored youth over five and under twenty-one years of age resident therein, and to certify the same to the auditor of the county, who. is directed to preserve the same in his office.

This requisition was also complied with.

The same section next prescribes, “ that no property of any colored tax-payer within said districts, shall be charged with any special tax for district purposes, for the benefit of schools in any regular district, embraced wholly or in part of the same territory; and no property of any white person in any regular district, shall be charged with any such tax for the benefit of the schools in any separate district composed wholly or in part of the same territory.”

What is meant by a special tax in this connection may be easily ascertained by reference to the general school law of 1838, and the acts amendatory thereto, by the provisions of which acts these separate districts are to be controlled. These laws in fact constitute a part of this act. The only change is, that for the accommodation both of whites and colored persons, separate districts are instituted, including within their limits territory which has previously been, or subsequently may be* organized into regular districts. AI though these districts include the same territory, they constitute as distinct districts as if they were formed of separate and distinct territory. In regular districts the tax-payers of each must pay the special taxes of their own district, so in these separate districts. These special taxes are generally levied for the purpose of purchasing sites for school houses, and for building and repairing school houses. As to general taxation for school purposes, no discrimination is made as to tax-payers, whether they reside in one district or another, nor is any distinction made between colored tax-payers and others.

The fourth section of the act is as follows: “ Every separate district, established as aforesaid, shall be held to include for school purposes, only the colored persons resident within its territorial limits, and from and after the establishment of the same, the colored youth resident therein, shall attend the schools organized under the directors of such district; and the powers and duties of county auditors, county treasurers, township trustees, township treasurers, district treasurers, and district clerks, and other officers in regard to such separate district, and the schools established therein, shall be the same as now are, or may be exercised or performed by said officers respectively, in relation to the regular districts, and the schools established therein, and said districts and schools shall in all respects, except so far as this act provides to the contrary, be governed by, and have the benefits of all the provisions of said act of March 7, 1838, and the amendatory acts, and all acts relating to schools in cities, towns, or villages, modifying the same.”

The eastern and western districts of the city of Cincinnati are located in that city, and under this section of the act, the law regulating schools in that city is applicable to these districts. Such was the intention of the general assembly, as evinced by the language used, and' such is the manifest spirit of the law.

It is unnecessary^to inquire at length as to the law regulating common schools in the city of Cincinnati. It constitutes a system peculiar to that city, a system which might not work well in the state at large. This system is prescribed by the act of March 1st, 1834, to establish and incorporate the city of Cincinnati,” etc. (32 Ohio L. 244.) By the 33d section of the act, it is provided that all money collected in said city for the support of common schools, as well as other school funds, shall be paid into the city treasury as a separate and distinct fund.

In pursuance of this provision, the money now in controversy was paid over by the auditor of Hamilton county to the treasurer of the city, as well as a greater sum which had also been collected for school purposes. The two sums so paid over, had been collected of all the tax-payers of the city, without distinction of color. According to the apportionment made by the county auditor, the sum of $2,177.61 belonged to the eastern and western districts. This money is in the treasury of the city for the use of schools in those districts.

Now, how is this money to be drawn from the treasury ? Precisely as other money for like purposes is drawn from the treasury under the Cincinnati school system and the practice under that system. The treasurer cannot pay without an order from the city council, and as the foundation for such order “ the board of trustees and visitors of common schools ” certify to the city council the correctness of all accounts for expenses incurred for the support of said schools, and give certificates to teachers entitled to receive payment. This has been substantially done in the case before the court, and we do not understand that there is any objection to the payment of the claims ón account of informality. Nor is it contended that if these papers had been made by the “ board of trustees and visitors ” of the schools in the regular districts, they would not have been sufficient to lay the foundation for an order upon the treasurer for payment. I understand they are in the ordinary form used for the purpose of obtaining money from the treasury, when therein deposited for school purposes. Under these circumstances they must be held sufficient in the present ease. The relators are entitled to the money. The city council must make the necessary order for its payment. The return or answer is not sufficient to absolve or relieve them from this objection.

But it is claimed by defendants’ counsel, that this law of March, 1849, is in violation of the constitution of the state, and therefore null and void. Before this court will declare any law to be unconstitutional, that part of the constitution of the state with which it conflicts must be pointed out, and the discrepancy between the law and constitution clearly ascertained. So long as doubts remain, whether the law conflicts with the constitution, the law should be enforced.

Certainly so much of the act of 1849 as operates to repeal " all parts of other acts, so far as they enforce any special disabilities, or confer any special privileges on account of color,” can hardly be said to be unconstitutional. The controversy heretofore has been whether the laws creating these disabilities, and conferring these special privileges, were in accordance with the constitution. Whether the general assembly could constitutionally deprive black and mulatto persons of the benefits of the .common schools of the state. Amid all this controversy, however, the question was never presented to this court in a shape that made it necessary for the court to pass upon it.

It is assumed by counsel for defendants that the office of school director is a public office, and as none other than a white man can, under the constitution, hold a public office, and as a school director of a separate school district for coloréd youth may be a colored man, therefore the law is unconstitutional. This law of 1849 does not say any thing as to the color of a person to be elected school director. It is silent upon that point. Undoubtedly, however, it was the intention of the framers of that law that colored persons might be elected directors. There is nothing, however, in the constitution prohibiting a colored person from holding such an office, if office it may called. Nor is it insisted that there is any such prohibitory clause. All that is said in that instrument upon the subject of schools is found in the 25th section of the bill of rights, which is as follows: “ No law shall be passed to prevent the poor, in the several counties and townships within this state, from an equal participation in the schools, academies, colleges and universities within this state, which are endowed, in whole or in part, from the revenue arising from donations made by the United States, for the support of schools and colleges, and the doors of , said schools, academies, and universities shall be open for the reception of said scholars, students, and teachers, of every grade, without any distinction or preference whatever, contrary to the intent for which said donations were made.”

The whole subject of organizing and regulating schools is very properly left to the general assembly in the exercise of its legislative powers.

But although there is no such prohibitory clause, still it is insisted that this law, in the particular named, is in contravention of the spirit of the constitution. In my opinion, this is rather dangerous ground to tread upon in determining the constitutionality of a law. We may all agree as to the reading of the constitution, and generally as to its meaning, but when we contó to talk of its spirit, it is a different matter. There is great danger that we shall conclude that spirit to be in accordance with our preconceived opinions or feelings of what it ought to be. Counsel for defendants come to the conclusion • that the spirit of the constitution prohibits a colored man from being the director of a .school district for colored children. Another man, from reading the first section of the bill of rights, might be led to the conclusion that the spirit of the constitution required that all men should be placed upon an equal footing, except where that instrument expressly provided otherwise.

So far as the elective officers of the state, county, or townships are concerned, they must be white men. They can be elected only by white men. White men alone are legal voters at state, county, and township elections. Beyond this the constitution does not prescribe. Nor does it eyen go thus far with respect to all county and township officers.

Now a school director, although in some respects a public officer, is not even a township officer. He is merely the officer of a school district — a political organization unknown to the constitution — the mere creature of legislative enactment. And it seems to the court that the power creating the political organization might well define the qualification of its officers, if in so doing they do not violate any express provision of the charter under which they themselves act.

Another constitutional objection is, that these directors are elected by colored voters. The same reply may be made to this objection as to the former, nor do we see any thing in either of these objections which would lead us to the con elusion that this law of 1849 is unconstitutional. But should we so hold, the only consequence would be, as before stated, to give to the colored youth of Cincinnati a right to enter the public schools of that city, and in that way participate in the benefit to be derived from the school fund. As a matter of policy it is unquestionably better that the white and colored youth should be placed in separate schools, and that this school fund should be divided to them in proportion to their numbers.

Without further remarks, we announce the opinion that the relators have made a case which entitles them to relief, and that the return or answer to the alternative mandamus is insufficient. A peremptory mandamus will therefore be ordered.