source: Caselaw Access Project

author: Doyle, J.

license: Public Domain

text:
    Goepper v. Kinsinger.
    1. Improvements of a permanent nature, erected upon real estate owned by one member of a partnership who holds the legal title thereto, will, notwithstanding the real estate is used as the place of business of tire firm, be presumed to bo the individual property of such partner until it is proven that such improvements were erected by the firm and paid for out of firm assets, or contributed as firm capital by such partner.
    2. In the absence of proof of such joint ownership by the firm, or representations or conduct of the individual partner as will mislead crcdi- \ tors and, as to them, estop him from denying the ownership of the firm, the right of the creditor to subject such property to the payment of partnership debts, in preference to the individual debts of such partner, must depend upon the right of the partners as between themselves.
    3. In a case therefore where all the facts proved are consistent with tlic ownership of such partner, and that the use alone of the property was contributed to the firm, during its existence as such, that view should be adopted, rather than one that will subject such property to partnership liabilities to the exclusion of individual creditors.

      Error to the District Court of Hamilton county.
    George Klotter, senior, was the owner of a tract of land on Brown street, in the city of Cincinnati. He had formerly been for many years in the business of brewing beer, in partnership with one Sohn, but had retired therefrom sometime before 1868. He had two sons who were without capital, and he conceived the idea of building a brewery on the Brown street property and establishing his sons in business thereon. The brewery was commenced sometime in the spring of 1868, and up to January 1, 1869, over $37,000 had been expended upon it by Klotter, senior.
    After the building had been erected and before the interior arrangements were completed, or the machinery, etc., put into-it, an arrangement was made between Klotter, senior, and his two sons under which the business was to be conducted under the name of “ Plotter’s Sons.” This arrangement was made sometime late in the fall of 1868, and the business actually commenced about January 1, 1869. The firm continued in business until January 19, 1877. During all of this time the title to the real estate continued in the name of Klotter, senior.
    On January 1, 1869, a partnership agreement was prepared in writing between George Klotter, Jr., and Louis Klotter, the two sons already mentioned, the name of George Klotter, senior, not appearing therein as a partner. This agreement was signed by the sons and copied into the partnership books opened on January 1, 1869.
    It contained the following provisions:
    .First. — The form and style of said partnership shall be: Plotter’s Sons.
    Second. — That the business of said partnership shall be carried on at the brewery on Brown street, in the city of Cincinnati, or at such other place or places as the partners shall hereafter determine.
    Third. — That the said George Klotter, Jr., and Louis Klotter are the proprietors and owners of the property and stock in equal proportions, and shall continue to be the, owners in equal proportions.

      Fourth. — All profits, which may accrue to the said partnership, shall be equally divided, that is to say, each to receive one half; and all losses happening to the said firm, whether from bad debts, depreciations of goods, or any other cause or accident, and all expenses of the business shall be- borne by the said parties in equal proportions.
    Tenth. — That in case either one of the above named parties shall desire to sell out his interest in the firm and business, he must first procure the written consent of the other, and the remaining or surviving member of the firm shall have the first privilege of taking and purchasing the interest of the party so wishing to retire from the said business in preference to all other persons.
    On January 19, 1877, the firm of Klotter’s Sons made an assignment to F. J. Mayer, for the benefit of the creditors of such firm, of all lands and tenements in the state of Ohio, and all goods, chattels, merchandise, book accounts, bills, bonds, notes, choses in action, etc., of every name and kind belonging to said firm. No real estate was specifically described in the instrument of assignment, and the samo was not executed as a conveyance of real estate, not being acknowledged by the assignors.
    This instrument contains the following recital:
    “ Whereas, we, the undersigned, George Klotter, senior, Louis Klotter, and George Klotter, Jr., partners as Klotter’s Sons, being justly indebted, etc.,” and is signed by each of the three parties thus named as partners.
    At the same time and place George Klotter, Sr., made an individual assignment for the benefit of his creditors, to F. J. Mayer, in which the real estate aforesaid was specifically described, and the same was executed with all the formalities of a conveyance of real estate. Mayer afterwards transferred the trust to the plaintiff in error.
    On April 7, 1877, Kinsinger as assignee of the firm (having been substituted as such assignee in place of Mayer), filed his petition in the court of common pleas of Hamilton county against Goepper, the assignee of Klotter, Sr., alleging thát in 1869 Klotter, Sr., and his two sons entered into partnership ; that • Klotter, Sr.,, was then the owner of the real estate on Brown street on which the brewery was built, which had been built by him ; that on the completion of the building the firm engaged in business therein and continued in such business up to the date of the assignment; that there were mortgages and other liens upon said real estate and when the partnership was formed, Klotter, Sr., contributed to the firm, the real estate and buildings subject to said liens, but did not transfer the legal title to the firm as he ought to have done, but continued to hold the same as trustee for the firm until the conveyance of the same to Mayer in trust for his individual creditors. That during the existence of the firm there was paid out of the partnership, earnings and funds a large sum of money in the purchase of machinery, tanks, tubs, vats, horses, wagons, etc., and in payment of debts incurred therefor, to wit, about $60,000 ; that said money belonged to the firm and was paid by them in consideration that the property and improvements should be held for their joint benefit, and form a part of the partnership assets and capital. Wherefore he prays that Goepper, assignee of Klotter, Sr., be decreed to hold the real estate in trust, and be ordered to convey the same to plaintiff for the benefit of the firm creditors.
    The answer denies the allegations thus made as to the alleged trust; denies that the firm paid for any part of the property; that Klotter, Sr., was ever a member of said firm ; that he ever agreed to contribute said real estate or improvements to the firm as firm assets or otherwise, or that the firm had any interest therein. It alleges that the real estate wras purchased and the improvements erected by George Klotter, Sr., with his individual money, and as his own. That the firm was largely indebted to said George Klotter, Sr., for money loaned and advanced to the firm- at various times during the existence of said firm, and for money paid by said George Klotter, Sr., during, said time on account of various debts and liabilities of the said firm, and for money paid or agreed to be paid by said George Klotter, Sr., as security for said firm, and for which the estate of said George Klotter, Sr., is now liable; but defendant says that he is unable to state the amount of the indebtedness of said firm to said George Klotter, Sr., but that the same is the subject for an account to be taken.
    And this defendant denies, that said George Klotter, Sr., ever agreed to hold or ever did hold said real estate or any part thereof, with the improvements thereon, to or for the benefit of said firm, or in trust for said firm, or that said firm ever made any payments of any kind or amount, or incurred any liabilities in consideration that said property and the improvements thereon should be held for the benefit of the firm, or for their joint benefit, and should form a part of the co-partnership assets and capital.
    Goepper goes on to aver the ownership of the lots by George Klotter, Sr.; the occupancy of Kinsinger, as assignee; the insolvency of both the firm of Klotter’s Sons and Klotter, Sr.; the state of accounts between Klotter’s Sons and Klotter, Sr., and to allege that he should be paid rent, etc. lie also sets out certain mortgages.
    He then prays a sale and distribution, and for an order on Kinsinger to pay rent, or, in case of failure, for a receiver.
    The prayer for a receiver was granted, but, in lieu thereof, the parties entered into a written agreement that Kinsinger should deposit in bank, monthly, a sum equal to $1,300 per annum, as rent, to abide the final decision of the case.
    July 9, 1878, on final hearing, the case was decided in favor of Goepper, the petition of Kinsinger dismissed and the relief prayed by Goepper granted.
    The cause was thereupon appealed to the district court and there tried upon the evidence now contained in the bill of exceptions, and a finding and decree as follows rendered:
    “ On consideration whereof, the court find the equity of the case upon the original petition is with the plaintiff. That the said George Klotter, Sr., George Klotter, Jr., and Louis Klotter were partners in trade as Klotter’s Sons, as charged in said petition ; that the said George Klotter, Sr., put in said co-partnership the entire capital thereof; that said George Klotter, Jr., and Louis Klotter had no capital, and contributed nothing to said co-partnership except skill and labor; that said George Klotter, Sr., at the date of the formation of said co-partnership, was the sole owner of the real estate described in the petition herein; that the brewery building and machinery and stable were constructed and placed thereon by the said firm of Klotter’s Sons, and that the said buildings, machinery and stables are the property of said Christian Kinsingér, as assignee of Klotter’s Sons, and in trust for the creditors of said firm, and the land is the property of Herman Goepper, as assignee of George Klotter, Sr., in trust for the creditors of said George Klottei', Sr.
    “ Therefore it is ordered, considered, adjudged and deeréed that the said Herman Goepper, as assignee as aforesaid, is entitled to recover of the said Christian Kinsinger, as assignee as aforesaid, the • value of the real estate upon which said brewery buildings, stables and machinery have been erected. And it is further ordered by the court that the moneys heretofore deposited by said Kinsinger, to the joint order of said Kinsinger and Goepper in the Second National Bank of Cin. cinnati, as security for the prompt payment of any judgment which might be rendered against said Kinsinger in this action, be returned and paid to said Kinsinger; and the court further order that the entry hereinbefore entered, on the twenty sixth day of November, 1877, as well as the agreement of parties made and filed on that day, relative to the appointment of a receiver herein, etc., be and the same are hereby set aside, annulled and held for naught.
    “And it is further oi’dered by this court, that this action be referred to "William Disney, Esq., special master commissioner of this court, for that purpose, now here appointed, with directions to ascertain separately the values of the real estate upon which the brewery and machinery, and the stables of said brewery business stand, and the value of said brewery buildings and machinery, and also .said stables, and that said master make his report without delay to this court; and further, that he appraise, advertise, and sell the real estate hereinafter described, unless, within twenty days from, the entry hereof, the said parties hereto comply with the requirements of tliis decree.”
    It then proceeds to find the amounts due to various mortgagees, who filed cross-petitions in the case, about which there is no controversy here. A bill of exceptions containing all the evidence was taken, a motion for • a new trial having been overruled, and a petition in error filed in this court to reverse the decree in favor of defendant in error.

      Mitchell & Holmes and James H. Perkins, for plaintiff in error:
    Use by the firm does not show title in the firm. Bindley on Part. 648. Even if land belong to two partners it does not become joint estate unless it be purposely made so. Ware v. Owens, 42 Ala. 212-215; Alexander v. Kimbro, 49 Miss. 529; Parker v. Bowles, 57 N. H. 491. And if purchased with partnership money, and conveyed to one partner it becomes his. Smith v. Smith, 5 Ves. 189 ; Ex Parte Wood, 1 De Gex Bnktcy. 134. The payment out of firm assets of debts due on separate property does not change the property from several to joint. Wheatley v. Calhoun, 12 Leigh, 264-273; Frink v. Branch, 16 Conn. 260; Hay’s Appeal, 91 Pa. St. 265. And property not actually owned jointly as firm property must be distributed to the several creditors. Heilman v. Moore, 3 Tenn. Ch. 454. Apart from the main questions, there are two errors in the decree for which we are entitled to a reversal.
    The court finds that this plantiff is the owner of the land, yet by the same decree it takes the land away from him and remits him to a claim for its value against the defendant. This is error. McCoy v. Grandy, 3 Ohio St. 463.

      W. G. Mayer, for defendant in error :
    Real estate purchased for partnership purposes and appropriated to those purposes, paid for by partnership funds and necessary for partnership purposes, always becomes partnership property. Delmonico v. Guillaume, 2. Sandf. Ch. 336; Blake v. Nutew, 19 Mo. 16. And this partnership may be proved by parol notwithstanding the paper title. Sherwood v. St. Paul, 21 Minn. 127. Nor Is it material in what name it stands. Jarvis v. Brooks, 7 Fost. 37-67; Pugh v. Carrie, 5 Ala. 446. It may be conveyed to one or more of the partners in trust for the whole partnership and this is not uncommon. Coster v. Clarke, 3 Edw. Ch. 428; McGuire v. Ramsey, 4 Eng. (Ar.) 418; Hoxie v. Carr, 1 Sumn. 182. Improvements made with partnership funds on real estate belonging to one of the partners will be treated as the personal property of the partnership. Averill v. Loucks, 6 Barb. 28.
   Doyle, J.

This action was brought into this court by petition in error before the passage of the act of April 18, 1883, and the question whether the decree of the district court is so manifestly unsupported by the evidence as to require its reversal, is properly before us.

We cannot undertake, in this opinion, to recite such evidence in detail. We are satisfied with the finding of the district court that Blotter, Sr., was a partner in the firm of Blotter’s Sons, although his name does not appear in the partnership agreement or in the firm name, and hence will pass over the testimony offered upon that issue.

We do not understand, however, that the determination of that question has very much importance in supporting the decree, that the buildings on the real estate were built by the firm, or belonged to the firm. It is quite consistent with the fact of such partnership that the use of the property was contributed by Blotter, Sr., as his contribution to the capital of the partnership, or, in view of the total wrant of capital by the sons, that the firm were tenants of the property. Therefore, to sustain the judgment of the district court there must be evidence quite independent of the partnership itself, that Blotter, Sr., contributed the property to the firm as partnership capital, or that the firm, out of its partnership moneys, paid for the same.

The decree gives the entire improvements to the assignee of the firm, leaving only the naked laud to the individual assignee of Blotter, Sr. We are utterly unable to find any evidence in the record to justify such a decree. That the firm, after the buisness was started, paid some of the bills incurred in completing the buildings, and some of the additions thereto, may be true ; but that is entirely consistent with the continued ownership of the father, as it is quite evident that much more than was thus paid was advanced in money to the firm during the period of such payments, by the father, in some instances, undoubtedly, for the very purpose of making such payments. Prior to the formation of this partnership, the father purchased .this real estate and commenced the erection of these buildings; they were substantially completed in the fall of 1868, the interior arrangement being all that remained to be done. When the firm actually commenced business in January, 1869, the buildings were substantially ready for the work of brewing. Neither of the sons contributed a dollar up to that time, and neither of them ever had anything to contribute except what was earned by the firm after business commenced. How much that was, it is not difficult to estimate, inasmuch as the firm failed in 1877, with $85,000 of the moneys advanced by Blotter, Sr., in the building of the brewery and other advances of money from his individual means, and moneys borrowed upon the strength of his individual security, unpaid, for which, if it were true that this property was the firm’s, he was either a creditor, or which he was entitled, after the firm debts were paid, to draw out of the concern before his partners could receive any part of the capital .stock; and independently of such amount the firm was wholly insolvent.

We do not doubt that the father built the. brewery, and established the business to give his sons a means of accumulating a competency, as well as to secure himself a certain income therefrom; but that he intended either to give them this property, or to contribute it as capital t.o the firm, which would be the same thing in effect; we are unable to find from anything appearing in the evidence.

There is no paper writing containing any agreement so to do. No witness speaks of any agreement of the kind as being made in terms,, and we are unable to find any facts, proved in the case, from which such agreement is fairly to be implied.

It is admitted, and it is a matter about which there is no conflict in t.he testimony, that the building itself was substantially completed (over $37,000 having been expended thereon), before the partnership was formed, and that the two sons were wholly without capital. How, then, could this property become the property of the partnership? By gift from the father to the sons of which there is no evidence whatever. By contribution thereof by the father to the capital of the firm, which must be inferred, if found to be the fact, from the conduct of the parties, for there is no direct evidence thereof; or by purchase from the father, by the firm, which is not claimed, and under the evidence cannot be claimed.

There is nothing in the evidence to show, and we do not understand it to be claimed in argument, that there was any reputed joint ownership of this property, which misled creditors. While it is true the property was in the occupation of the firm, that fact alone will not, as between the partners themselves, or between the partners and creditors, convert the individual real property of one partner into joint property of the partnership. There must be something, which amounts to a representation that it is joint property, or conduct justifying the creditor to treat it as such.

The only theory upon which the decree of the district court can be sustained, if at all, is that this property was contributed as capital to-the firm by the father; and although the district court does not so find, yet, as the-evidence is all before us, if it justified that conclusion, a decree properly based thereon would not be disturbed, although a different reason was given for it by the court rendering such decree.

In attempting to imply a contract or agreement, to contribute this property as firm capital from the circumstances, including statements and conduct, it must be borne in mind that it is the acts of the owner which are to be looked to, mainly, for that purpose. The legal title to the land was in Klotter, Sr. He was the admitted owner thereof in fee simple. Prima facie, at least, the improvements of a permanent character erected thereon are included in such ownership. No doubt, if this land was purchased during the existence of the firm, and the buildings erected thereon by firm assets, or were the contributive share of one partner to the firm assets, to be used as partnership property, the fact that the title was taken or held in tbe name of one partner, would not, in equity, make it the individual property of such partner. But when this property was bought, and the greater part of these permanent improvements erected, there was no partnership; there were no partnership assets ; and there was at that time no agreement that the property should ever be subject even to the use of any partnership. The money used in the purchase and erection was the individual money of Blotter, Sr.

Now at the date of the assignment in January, 1877, he treated it as his property. His assignment and that of the firm wrere simultaneously made, and to the same assignee. He included this property in his individual assignment by accurate description. He executed such assignment with the formalities of a conveyance of real estate, while the assignment of the partners was not so executed. While the entire lot on Brown street, of which less than half was covered by the brewery, cost, in 1S66, $4,750, he mortgaged the same in 1875, for $20,000; in 1876 for $1,600 ; and also in the same year, for $6,000, his wife joining with him in each of these mortgages, and in each of them he covenanted that he was the true and lawful owner of the property and had- full power to convey the same. In addition to this he testified upon the trial, in the district court, that he was the owner of the real estate and buildings at the date of liis assignment.

What act of his has made this property partnership property ? What he did not do is of some significance. He never made any conveyance, contract, or other instrument in writing, affecting his title and ownership of the property, nor any de • claration or acknowledgment that the firm, or his sons, had any interest therein. While he frequently said to parties dealing with the firm that he was a partner, there is nothing-in the record which shows that he ever stated to any one that the brewery was partnership property, or that the partnership had any particular amount of capital stock. On the contrary it was the custom of creditors to require his individual indorsement on the firm paper for large amounts, and his custom to give such indorsement, and this too, as the evidence shows, after his entire means had been invested in this brewery property.

In view of these facts it would be entirely immaterial what the sons testified to, as to their understanding of what the father intended to contribute to the firm assets. Such understanding or belief, unless based upon some act of his to justify it, would have no binding effect. But wé are absolutely unable to find in their evidence anything that leads us to believe that either of them ever, in fact, had any such understanding. No creditor testifies in the case; the only witnesses are the three Blotters, and an employee who. helped keep the books, and whose testimony on the point we are considering, is immaterial.

The testimony of George Blotter, Jr., upon this point consists of the following questions and answers: “Q. 14. Then neither you nor your brother contributed any part of the capital? A. No, sir; we never were credited up with anything. Q. 15. What did George Blotter, Sr., contribute? A. He paid for the brewery : I don’t exactly know the amount. Q. 16. And the ground the brewery stood upon ? A. Tes, sir.” While the questions call for an opinion of the witness as to what the father contributed to the firm assets, the answers do not attempt to state, directly, that he ever contributed anything. It is strictly true that the father paid for the brewery and land; but assuming that, by fair interpretation, he did say that the brewery and land were thus contributed, it amounts to nothing, because he gives no fact, contract, act, conversation, or conduct upon which his answer, if it bears that construction, is based.

Louis Blotter, the other son, is asked: “ Q. 42. What arrangement, if any, was there made in relation to the payment of rent for the brewery building ? A. There Avas none. Q. 48. Did your father ever speak about any interest upon the capital he had invested in the concern ? A. No, sir. Q. 44. Was there or not any agreement between yourself and your father, that is, your brother and yourself and your father, about rent of the building? No, sir. Q. 45. There was never .anything said ? A. No, sir.” Which questions and answers furnish the nearest approach to any evidence looking to proof of an agreement by the father, to contribute this property to the firm, found in the testimony of this witness.

Roth of these witnesses testify that certain payments were made by the firm to parties who furnished labor and material in constructing and fitting the brewery for business; but both witnesses agree that such moneys were furnished by their father, and the payments made, usually by George Klotter, Jr., upon directions to that effect from the father.

It is distinctly alleged in the petition that the brewery was built by Klotter, Sr., and that he contributed or put the same into the firm subject to the liens thereon, including the land on which the same was built. If it is not true that he contributed the property to the firm but it continued his individual property, after the partnership was formed, the. payment by the firm of liens upon such separate property would not change its character, whatever equitable right the firm might have to reimbursement.

When the partnership commenced business, books of account were opened by the book-keeper, George Klotter, Jr,, and the greatest reliance is placed upon these accounts to sustain the decree of the district court.

Two of such accounts were offered in evidence, and transcripts of the same are-in the record. One is called “brewery account,” and the other purports to be the account of George Klotter, Sr. Each of these accounts, probably contains the cost of constructing the brewery, including the $37,452 expended in the construction by Klotter, Sr., prior to January 1,1869. George Klotter, Sr., is credited in the first credit item of his individual account with this sum ; and he is also credited with various other sums, amounting, during the year 1869, to about $35,000 and during the entire time the firm was in operation, including the two.amounts already mentioned, to $85,708 more than was drawn by him from the firm. Of course much of this money was used in building the brewery, which, if- we can understand these accounts, cost about $57,000, the balance being. advanced in the purchase of chattels and conducting the business.

But are these accounts, or the fact that they were thus kept, and made up of the items contained in them, sufficient, in connection with the other evidence in the case, to warrant a finding that the brewery was constructed with the money of the firm, or that, being constructed with the individual money of Klotter, Sr., was contributed by him as capital to the firm ?

It must be remembered that this was a family arrangement ; that the father was actuated largely by a desire to start his sons in business ; that he was putting his entire m'eans into this brewery and the business in which he was embarking his sons ; that he was not guarding himself and his interests with the care that he would in dealing with strangers ; that his son, George, was to be the book-keeper of the firm, having charge of the office. Nothing would be more natural than that he should expect George to keep his accounts as well as the firm accounts ; and that he should keep them in the firm books was not at all unlikely.

We find here the same absence of proof to give these books the importance claimed for them, that we have noticed in other branches of the evidence. No one swears that Klotter, Sr., ever directed or consented to the accounts being thus kept, or that he ever saw such accounts or knew in what manner they were being kept. Without now questioning the admissibility of these accounts in an action by the assignee of the firm, representing the creditors, against the firm or any individual member of it; or their importance as strong supporting circumstances, we are unable to bring our minds to the conviction that they are sufficient alone, for indeed they stand substantially alone, to support this decree. It is nevertheless true that the rights of the creditors depend in this particular upon the rights of the partners. Unless the junior Klotters are entitled, as against their father, to have this property decreed to be partnership property, the creditors are not. Hence these accounts are of no greater significance here, than if the action was between the partners. As George Klotter,' Jr., was the book-keeper, with exclusive control thereof, they would have very little value as evidence for him in such action, unless some knowledge of, or assent thereto, on the part of the father, was shown.

In short we find nothing in this record inconsistent with " this conclusion, — that Blotter, Sr., bought the land and built the brewery with his own means, intending to start his sons in business therein ; that he engaged in the business with them ; that he advanced all the capital of the firm, with which it purchased the necessary chattel property to carry it on, and also the money necessary to conduct the same; that he made no contract for rent of the real property, or interest on his advances, because he intended to charge none, it being, as he says in his testimony, a family affair, for the benefit of them all, and which, it was contemplated, would result in profits sufficient for them all; but that the real estate, including the buildings, was his individual property, and to remain such. We think this view is strengthened by the partnership agreement, and a fact, not without some significance, that for several years the taxes on the property were charged to the father in his individual account.

Aside from the main question there is a part of the decree which we think is clearly erroneous. While it is found that Blotter, Sr., was the owner of the real estate, upon which the improvements were erected, it is ordered that Goepper, assignee, is entitled to recover of Kinsinger, assignee, the value of such real estate. In other words, if the mortgages are paid, and thus a sale of the property upon the cross-petition of the mortgagees prevented, Goepper is forced to sell to the assignee of the firm, the real estate, at its value; and a master commissioner is appointed to ascertain and report that value. Even if it were found that Kinsinger was entitled to the value of the improvements, or of some portion thereof, to secure to him compensation for such value, as a condition precedent to the restoration of the property to the owner of the fee, is as far as the court could go. It would be analogous to the cases of occupying claimants. It can not take the fee from its owner and transfer it to another, who may have an equitable right to compensation for improvements, or even a lien upon the land itself. See McCoy v. Grandy, 3 Ohio St. 463.

We do not question the right of the assignee of this firm to enforce in equity the payment to him of the value of any improvements erected by the firm and paid for with firm assets, after the partnership was formed. We arc entirely unable to ascertain from the record what the amount is, if any, which the firm used in that way. Nor do we doubt that any money loaned to the firm by Kiotter, Sr., either as a direct loan or contribution to the firm capital or advanced to the firm, by ■way of gift to his sons, would be firm assets, which if so used would be within this statement. But the proof is not such as to enable us to determine any of these matters. The burden of proof in each of these respects is upon the assignee of the firm.

We, therefore, reverse the decree of the district court, and remand the case for further proceedings upon those questions. If, upon a new trial, it is established that such an equitable claim exists in favor of the assignee of the firm, the amount of the same should be ascertained, and the assignee of IClotter, Sr., ordered to pay the same within a reasonable time or, in default thereof, the property be sold. If he does pay it he is entitled to the possession of the real estate, subject to the mortgage liens, about which there is no question made here.

Reversed and remanded.


author: Upson, J.

text:
    Railroad Company v. Skillman.
    1. Under the act of March 30, 1875 (72 Ohio L. 143), which provides that “ any corporation operating a railroad, in whole or in part in this state, may demand and receive for the transportation of passengers on said road, not exceeding three cents per mile for a distance of more than eight miles: provided the fare shall always he made that multiple of hve nearest reached by multiplying the rate by the distance,” a charge of twenty-five cents for carrying a passenger a distance less than eight miles and more than six miles, will not, as a matter of law, be declared unreasonable.

      2. A railroad company may charge a higher price for carrying passengers when the fare is paid on the train, than it does at its ticket offices, provided the price thus charged is reasonable, and the fare charged on the train, does not exceed the maximum allowed by law.
    3. A person entering the cars, without having purchased a ticket, and persistently refusing to pay the usual and reasonable fare, upon demand by the conductor, and after reasonable time in which to determine whether he will or will not pay the same, may lawfully be removed from the train.

      4. The expulsion of such person may be at a place other than a railroad depot, or usual stopping place, provided care is taken not to expose him to serious injury or danger.
    5. Such person acquires no right to remain on the train, by offering to pay the usual fare after the train has been stopped for the purpose of ejecting him.
    Error to the District Court of Logan county.
    Martin N. Skillman brought suit in the court of common pleas of Logan county, against the Cincinnati, Sandusky & Cleveland Railroad Company, to recover damages which he claimed that he had sustained by being wrongfully removed from the cars of the defendant.
    On the trial of the case, evidence was given to the jury tending to prove that on June 8, 1875, the plaintiff entered a passenger car of the defendant, at Huntsville, in Logan county, to be conveyed as a passenger to Bellefontaine, in the same county, ,on that day; that after going upon The train, lie presented to the conductor, in the smoking car, a paper purporting to be a blank drover’s pass, issued by the Cincinnati, Hamilton & Dayton Railroad Company, and demanded to be carried thereon to Springfield, free of charge, which paper the conductor refused to accept; that afterwards, in the passenger car, the conductor demanded of the plaintiff a ticket or his fare, when the plaintiff again presented the same paper, and demanded that the conductor indorse and fill it up, and carry him over defendant’s road, thereon free of charge; which the conductor refused to do, stating to the plaintiff that he could not accept the paper, but that plaintiff could pay his fare to Bellefontaine, and then procure a ticket for the residue of his journey ; that plaintiff asked the conductor what the fare to Bellefontaine was, who replied that it was twenty-five cents ; that plaintiff responded that he was not entitled to twenty-five cents' but only twenty cents, which he was willing and ready to pay, and would go to Bellefontaine and see if he could not find some agent there gentlemanly enough to accept, indorse and fill up said paper authorizing him to ride over defendant’s road free of charge; that the conductor replied that the ticket rate of fare from Huntsville to Bellefontaine was twenty cents when the ticket was pre-purchased, but that twenty-five cents was the fare when a ticket was not pre-purchased; that the plaintiff then said to.the conductor that he would not pay twenty-five cents, but only twenty cents, to which the conductor replied that he would have to pay twenty-five cents or leave the cars; that the plaintiff responded to the conductor, “You will have to put me off thenthat the conductor said, “ If I stop the train I will not accept your fare,” and the plaintiff still refusing to pay the twenty-five cents, the conductor caused the train to be stopped, after which the plaintiff offered to pay the conductor the twenty-five cents, which he refused to accept, and caused the plaintiff to leave the train. Evidence was also given tending to prove that the plaintiff tendered the twenty-five cents before the train was stopped or materially checked. Evidence was given tending to prove that from January, 1875, to January, 1877, the defendant charged at its railroad office at Huntsville, twenty cents for tickets from that place to Bellefontaine, and that the fare on the cars was twenty-five cents, and that printed notices were posted in the railroad office giving notice that the ticket rate was twenty cents, and the car fare twenty-five cents, and that the plaintiff knew that the tickets were sold at twenty cents. The evidence tended to prove that the plaintiff was required to leave the train at a point about three miles from Huntsville, where there was no depot, or usual stopping place, and that there was no such-depot or usual stopping place between Huntsville and Bellefontaine.
    It was admitted on the trial that the conductor demanded of the plaintiff twenty-five cents for his fare from Huntsville to Bellefontaine, and that the distance between those places is less than eight miles, and more than six miles.

      The verdict of the jury was in favor of the defendant, and the court overruled a motion for a new trial, and rendered a judgment upon the verdict. A bill of exceptions was taken, containing the charge of the court, as w7ell as the instructions requested by the plaintiff and refused by the conrt.
    The district court, on error, reversed the judgment of the court of common pleas, and this proceeding is prosecuted to reverse the judgment of reversal.

      West, Walker & West, for plaintiff in error.

      William Lawrence and Joseph II. Lawrence, for defendant in error:
    The court below held that the railroad company “is authorized to charge twenty-five cents for eight miles.” This overlooks the fact that the statute fixes no rate for eight miles but only distances “more than eight miles ” — that is for nine miles and more. The statutes of April 20,1874, and of March 30, 1875 (4 Sayler Stat. 3288-3516, Laws of- 1874, p. 147, and Laws of 1875, p. 143), provide that any railroad company “ may receive for the transportation of passengers on said road, not exceeding three cents per mile for a distance of more than eight milesprovided the fare-shall always be made that multiple of five nearest reached by multiplying the rate by the distance.”
    This statute controls in this case. State v. Sherman, 22 Ohio. St. 411; 1 Ohio Railway Rep. 80, 165, 166 (1870); C. H. & D. R. R. Co. v. Cole, Law & Eq. Rep. April 4, 1877, p. 412; P. C. & St. L. R. R. v. Moore, 33 Ohio St. 384; 29 Ohio St. 126; 23 Ohio St. 190; 1 S. & C. Stat. 281, 309. The statute does not fix any rate under eight miles. The effect is that the railroad company can charge only a reasonable rate. What is a reasonable rate may be in some cases a question of fact and in some a question of law.
    I. When a railroad company fixes a ticket rate there is no authority to charge a higher car rate, and the court will, as a question of law, hold that the ticket rate is a reasonable rate.
    1. On December 16, 1867, the attorney general of Ohio (Hon. W. H. West) gave an opinion on this question, which arose to the Pittsburgh, Ft; Wayne & Chicago R. R. Co., under General Corporation Statute of May 1, 1852, 50 Stat. 274, Sec. 18; 1 Swan & O. Stat. 278, sec. (30) xiii.; Act-April 4, 1863, 60 Stat. 54, the only difference being that under that statute the rate for distances over thirty miles was three cents per mile, and the company could fix reasonable rates for distances under that, while now the statute applies to distances over thirty miles with reasonable rates for less. The attorney,general said the statute fixed the rate for distances over thirty miles at three cents per mile, and as to the power to charge more against passengers who did not pre-purchase tickets, he said :
    “ Have railroad companies authority to exact rates greater than those prescribed by law, from passengers destined to stations distant more than thirty miles ? I think not. This authority is assumed as to passengers who fail to purchase tickets. The claim rests on two grounds, one of personal convenience to the company’s agents ; the other, and chief, of protection against dishonesty.

      “ 1. If the exaction of 'these greater rates be considered in "the light of a penalty for the violation of a coi’porate regulation, it is wholly unauthorized, for the imposition of penalties is not an incident of- corporate powers. - If it be •'considered in the light of a burden imposed on the traveling public to compensate for the crimes of the company’s agents, it is equally unauthorized for the punishment of the innocent for the crimes of the guilty and faithless, is still less an incident of corporate power. On either ground it contravenes the positive and express terms of the statute, which is an answer sufficient and conclusive.
    “ 2. It may be said that the exercise of this power is warranted and justified by public policy. But neither self-protection, public policy, or any pretext whatever can override a public statute. Reasons of public policy may be grounds for legislative interference and relief, but I have only to consider the powers of these corporations in the absence of such legislation.
    3. The limitations of the statute are dependent on no conditions, either of public policy, self-protection, pre-purchase of a ticket, or otherwise, except distance alone. No corporate regulation can disregard this positive enactment. If it were otherwise, the creator of these corporate beings would be subject and subordinate to the creature. Hence, when a passenger enters the ears with the bona fide intention of being transported a continuous journey of thirty miles or more, the exaction from him of fare at a rate more than that prescribed by the statute, on any pretext whatever is unauthorized. No breaking of the journey into fragments, and charging for shorter distances between intermediate points, can sanction or legalize excessive rates.”
    “ Are discriminating rates for distances less than thirty miles authorized as against passengers failing to pre-purchase tickets? The statute of 1852 (1 S. & C. p. 278, § 30) to the restriction of which the Pittsburgh, Ft. Wayne & Chicago Railroad Company is subject, provides that for less distances than thirty miles, such ‘ reasonable rates ’ may be charged ‘ as may from time to time be fixed by the company or prescribed by law.’
    “ 1. It is a sufficient answer to the proposition to say that no authority exists for fixing a multiplicity of rates between the same points. A'reasonable rate may be fixed, and not many rates for the same class of passengers.
    “ 2. The legislature having prescribed what is regarded as a ‘reasonable’ compensation for thirty miles distance, it is not ‘reasonable’ that the company shall be authorized to fix any, rate for a less distance which will exact a greater gross sum.
    “If it be, in legislative contemplation, unreasonable to exact more than ninety cents for thirty miles, it would certainly seem unreasonable for the company to exact a greater sum for any less distance.”
    II. The statute by implication limits the fare to twenty cents. 1. It is clear on reason and authority that the company could not charge as much fare for six miles as for nine. Smith v. P. Ft. W. & C. R. R. Co., 23 Ohio St. 10, 16; Campbell v. R. R. Co., 23 Ohio St. 168, 190; State v. Sherman, 23 Ohio St. 411.

      2. Ail important question arises on the construction of the statute of 1815 for distances over nine miles. The general rate is three cents per mile. But at this rate nine miles would be twenty-seven cents,'eleven miles-, thirty-three cents, and so on. These sums, if exacted, would make great inconvenience in “making change ” under our decimal and half-decimal system of money. To remedy this the statute says: “ The fare shall always be made that multiple of live nearest reached by multiplying the rate by the distance.” Thus, if the distance is nine miles, multiplying the rate, three cents, by the distance, nine miles, we have a result of twenty-seven cents. But as this is not a multiple of five, the statute says the fare shall be, in such case,'“that multiple-of five nearest reached,” that is nearest to twenty-seven. What is the nearest multiple of five to twenty-seven? There are only two multiples to choose from — twenty-five and thirty — for these are both multiples of five. Now between twenty-seven and twenty-five there is only one number, while between twenty-seven and thirty there are two numbers; therefore, twenty-five is “that multiple of five .nearest reached,” and is the authorized fare for nine miles. As a question of law it is manifestly unreasonable to charge as much for six miles as for nine. The construction of the statute made in the common pleas cannot be supported.
    1. It assumes that thirty is as near to twenty-seven as it is to twenty-five.. This is about as absurd as it would be to say that a point two miles distant from an object is nearer the object than a point only one mile distant.
    2. This construction enlarges corporate authority by construction against the plain words of a statute, which is against every authority of every court.
    3. It is an unjust discrimination against the traveling public, by requiring every passenger (except dead-heads) to lose three cents rather than a railroad company shall lose two cents ; that is assuming that twenty-seven cents are the exact but unattainable just compensation to be made for nine miles’ travel.
    • 4. The statute and usage under it show that no -such strained construction is authorized. A railroad company can not charge for fractions of a mile. For ten and three-quarter miles only ten miles fare can be taken. The statute recognizes no fractions, this is the usage under it. Hence, the legislature intended all questions as to fractions to be resolved in favor of the public.
    III. The plaintiff could only be lawfully ejected at a station. Ill. Central R. R. v. Sutton, 42 Ill. 438; 23 Ohio St. 10, 15.
    IV. , No tender of fare is necessary where more than the legal rate is demanded. 23 Ohio St. 10, 16, 18, 19.
    V. As to damages. 23 Ohio St. 11, 17.
   Upson, J.

— The first question to be decided in this case is, whether, under the statute then in force, the defendant was justified in demanding from the plaintiff the sum of twenty-five cents, as the fare from Huntsville to Bellefontaine, the distance being conceded to be more than six, and less than eight miles. Upon this ]foint the court of common pleas charged the jury that the “ defendant had the right to charge any rate not exceeding twenty-five cents for a distance less than eight miles and more than six miles,” to which charge the plaintiff excepted. The words of the statute, in force on June 8, 18T5, are; “ Any corporation operating a railroad in whole, or in part, in this state, may demand and receive for the transportation of passengers on said road, not exceeding three cents per mile for a distance of more than eight miles; provided the fare shall always be made that multiple of five nearest reached by multiplying the rate by the distance.” T2 Ohio Laws, 143; Revised Statutes, § 33T4. It will be observed that while the statute limits the fare which may be demanded when the distance is more than eight miles, it imposes no limit when the distance is not more than that. In that case the railroad company is allowed to exercise its own discretion in fixing the rate, subject only to the implied condition that it must not prescribe a rate which the law would pronounce unreasonable. In giving a construction to that }3art of the same statute which provides, that for the transportation of property, the corporation may demand and receive, “ in case the same is transported a less distance than thirty miles, such reasonable rate as may be from time to time fixed by such corporation, or prescribed by law,” this court held that it was unreasonable, as a matter of law, that the company should fix a greater sum for a less distance than thirty miles, than the maximum allowed for full thirty miles. Campbell v. Cincinnati & Marietta Railroad Company, 23 Ohio St. 168. And similar language in section 12 of the act of February 11, 1848 (S. & C. 271), relating to rates for carrying passengers, received the same construction in the case of Smith v. Pittsburgh, Fort Wayne & Chicago R. R. Co., 23 Ohio St. 10.

The amount demanded in this case did not exceed the maximum allowed by the rule approved in those eases. In the arguments of counsel there is much discussion as to the meaning of .the proviso, that “ the fare shall always be that multiple of five nearest reached by multiplying the rate by the distance,” the court instructing the jury that this proviso requires that the .multiple which is equal or next above the product thus reached, shall govern, and not the multiple short of, or below such product,” which the defendant claimed to be the proper construction. The plaintiff contending that the multiple nearest reached is the nearest multiple of five, whether above or below such product.

It is not material in this case, however, whether the construction given to the proviso by the court of common pleas is the .correct one or not; for it is clear that for any distance greater than eight miles the railroad company might charge at least twenty-five cents, and we are of opinion that for a distance not more than eight miles, any reasonable sum not exceeding that might be charged. There was in that respect no error in the charge of the court of common pleas.

It is next contended that the court of common pleas erred in charging the jury that “ the railroad company had the right to prescribe rates for pre-purchased tickets, and car rates when tickets were not pre-purchased, for distances less than eight miles and more than six miles, provided that neither of such rates exceeded twenty-five cents.”

It is insisted that when a railroad company fixes a ticket , rate, there is no authority to charge a higher car rate, and the court will, as a question of law, hold that the ticket rate is. a reasonable rate,” and that a higher car rate is unreasonable. We cannot assent to that proposition. The company cannot impose as a penalty for not purchasing a ticket such a sum that the fare demanded on the cars, including such additional amount, shall exceed the maximum allowed by law; but within that limit a just discrimination is clearly proper. The first duty of the conductor is to provide for the safety of the passengers on the train of which he has charge, and next to promote their comfort and convenience. lie also has the general supervision and control of those who are employed on the train. It is plain that the practice of paying fare on the train, instead of purchasing tickets, might be carried so far as to prevent the faithful performance of the conductor’s duties, and when that is found to be the case, railroad companies not only have the right to make, but often do make and enforce, rules to prevent any persons from going upon their trains without having previously purchased tickets. The small additional sum required in this case when the fare was paid on the cars was certainly reasonable, and it was not error to so charge the jury.

The plaintiff also excepted to the charge of the court of common pleas, that when payment of the fare demanded was refused, the defendant had the right to eject him from its train, and also to the refusal of the court to charge, as requested by the plaintiff, that the defendant railroad company had no right to expel the plaintiff from its cars, except at a railroad depot, or stopping-place.” Of the defendant’s right to eject the plaintiff from its car for a persistent refusal to pay his fare from the station at which ho entered the ear to the next station, there can be no serious question, provided he was not removed with unreasonable violence, or at a place where he would be exposed to serious injury or danger. When he refused to pay the usual fare, he had no right to remain on the train, or to claim the lights of a passenger, but might rightfully be treated as a trespasser, and be at once expelled. To hold that this could only be done at a railroad depot, or stopping-place, would deprive a railroad company of its chief safeguard against that kind of fraud or imposition, and we know of no principle of law, or public policy, which requires that every one who prefers not to pay his fare shall be carried without charge from the station at which he gets on the train to the next station.

We see no error in the charge of the court of common pleas, that “ when, for such refusal to pay, the train was stopped for the purpose of ejecting the plaintiff, his right to transportation was not restored by afterward offering to pay the fare so demanded,” especially when taken in connection with the instruction also given to the jury, that the plaintiff was entitled to a reasonable time, after the demand was made, to consider whether he would pay the sum demanded. To concede that privilege to a person who has willfully violated the obligations of the implied contract under which he was allowed to enter the cars, would enable him to attempt the perpetration ofa fraud at the leastpossible risk of loss or inconvenience to himself, and the greatest annoyance and inconvenience to the railroad company, and the passengers on its train. By denying such privilege no right is violated, for the rights and privileges of a passenger have been abandoned, under circumstances which justify the company in refusing to permit such person to come again upon the train.

Considering the entire charge given to the jury, and the instructions refused, we are of opinion that there was no error in the rulings of the court of common pleas, and that the district court erred in reversing the judgment of that court.

Judgment of the district court ■ reversed, and judgment of the court of common pleas affirmed.


author: Okey, J. McIlvaine, ’ J.,

text:
    The State v. Cappeller.
    Where a hoard of education certifies an estimate of a school tax to the county auditor, who places the same on the tax list in a reduced form, .a citizen and tax payer of the school district, who, five months thereafter, seeks, ky mandamus, on his own relation, to compel the auditor to place the original estimate on the tax list, must satisfy the court that the hoard of education did not consent to the reduction.
    Mandamus. Reserved in tire District Court of Hamilton county.
    On November 1, 1883, a petition was filed in the district court of Hamilton county, in a case entitled The State of Ohio, on the relation of Louis Kramer, against William S. Cappeller, auditor of Hamilton county, which petition, omitting caption, signature of counsel and verification, is as follows: “Now comes the State of Ohior by Louis Kramer, the relator, and represents to the court that Louis Kramer, the relator, is a citizen and tax-payer- in the school district of Cincinnati, in the county of Hamilton, and state of Ohio, and that said school district is a city district of the first class, and that the city limits of the city of Cincinnati are not co-extensive with the limits of the said school district, and that said school, district includes territory without the corporate limits of said, city, which territory has been attached for school purposes to said district, and that the board of education of the said city district, prior to the year 1883, did 'ascertain that said school district included territory without the corporate limits of said city of Cincinnati, and caused to he made a plat of the territory so attached for school purposes, and caused the same to be recorded as a part of the proceedings- of said board, as required by law.
    “ The relator further represents to the cou-nt that the said defendant, Wm. S. Cappeller, is, and during all the time hereinafter mentioned, has been duly elected and qualified, and acting as auditor of Hamilton county aforesaid,

      “ The relator further represents to the court that the board of education in the said city district of the first class did, at a regular meeting held between the 3d Monday in April and the 1st Monday in June, 1883, determine by estimate, as nearly as practicable, the amount of money necessary to be levied as a contingent fund to continue the schools of the district, after the state funds were exhausted, to purchase cites for school houses, erect, purchase, lease, repair and furnish school houses, build additions thereto, and for other school . purposes. And the said board of education did certify the amount so estimated, to wit: six hundred and eighty-six thousand three hundred and seventy-five dollars (§686,375), in writing, before the 1st Monday in June, 1883, to Wm. S. Cappeller, the defendant, auditor of the county of Hamilton, to which county the school district as aforesaid belongs.

      “ The relator further represents to the court, that it thereupon became and was the duty of said defendant, as auditor aforesaid, to assess the entire amount so estimated and certified as aforesaid, upon all the taxable property of the school district aforesaid, and enter it upon the tax-list of the county treasurer of said county, to collect the same at the same time and in the same manner as state and county taxes are collected, and to pay it to the treasurer of the school district, upon the warrant of the county auditor; but the relator represents that the said Wm. S. Cappeller, auditor as aforesaid, neglects and refuses so to do, and, on the contrary, the said defendant, auditor, refused and still refuses, to assess the amount so certified and enter it upon the tax list, as required by law, well knowing his duty in the premises, and in violation of his duty as said auditor.

      “ Wherefore the relator prays that a peremptory mandamus may issue against the defendant, Wm. S. Cappeller, auditor of Hamilton county as aforesaid, commanding him to assess the entire amount so estimated by the board of education of said district, and so certified in writing to the said defendant as auditor of the county as aforesaid, to wit: the said sum of six hundred and eighty-six thousand three hundred and seveniyfive dollars ($686,375), upon all the taxable property of said school district, and enter it upon the tax list of Hamilton county aforesaid, as required by law.”
    On November 1, 1883, the parties appeared in the district court, which then heard the cause and made disposition thereof as follows:

      “ This cause came on for hearing, notice having been given to defendant of the application of the relator for a peremptory writ of mandamus as prayed for. The court, being fully advised in the premises, find the facts stated in the petition of the relator are true, and further find that the said estimate of the amount necessary to be levied as a contingent fund, made by the board of education between the 3rd Monday in April and the 1st Monday in June, was, by said board, on the 1st day of June, ordered presented to the board of tax commissioners appointed under the law of April 16, 1883, for approval, and it was so presented and was considered by such commissioners, and the amount was reduced to four hundred and seventy-seven thousand dollars ($477,000), by the board of tax commissioners, and the county auditor placed the amount as reduced upon the tax duplicate of the county, and the duplicate has been delivered bjr the auditor to the treasurer of the county for collection in pursuance of law. The levy sought to be put upon the tax duplicate by this proceeding under mandamus has not been approved by the board of tax commissioners.
    “ And the questions of law arising thereon, are: whether defendant, as auditor of Hamilton county, upon the facts so found, was in duty bound, under the law, to assess and levy the said sum of six hundred and eighty-six thousand three hundred and seventy-five dollars ($686,375), upon the taxable property of the said school district, and enter it upon the tax list of the county. Whether said tax can be legally levied upon the property of the city of Cincinnati, until the same be approved by the board of tax commissioners. Whether the relator is entitled to make the application for the writ of mandamus. And whether said auditor may now be compelled by mandamus to place said levy upon the duplicate. And the court finds that said questions of law are important and difficult, and, upon the motion of both parties to the proceeding, is unanimous in the opinion that the cause and proceeding should be reserved for decision in the supreme court of the state. It is thereupon ordered by the court, that this cause be, and the same is hereby reserved for decision by the supreme court.”
    The petition and journal entry constitute the record, which, properly authenticated, was filed in this court November 5, 1383.

      Stallo & Ivittrerlge, for relator.
    1 O. J. Gosgrave, J. M. Dawson and Wulsin c& Perkins, for defendant.
   Okey, J.

In the argument of this cause, counsel have discussed important questions as to the construction of the statutory provisions relating to the public schools in Cincinnati, and questions as to the construction and constitutionality of the act of 1883 (80 Ohio L. 121), relating to boards of tax commissioners in certain cities. But we have not found it necessary to express' an opinion upon any of these questions. "We will assume for the purposes of this case, without so deciding, that when the estimate of $686,375 was presented, the auditor should have placed it on the tax list; and we have no doubt that, in a proper case, Louis Kramer, a citizen and tax payer of the Cincinnati school district, would be a proper relator to enforce by mandamus the performance, by the auditor, of such official duty. The State v. Henderson, 38 Ohio St 644.

In the record it is stated that the board of education, between the third Monday in April and the first Monday in June, 1883, estimated the amount of money necessary to be levied for the school purposes mentioned in the petition, at $686,375, and that the board certified this estimate to Cappeller, county auditor. The allegation, that it thereupon became ánd was the duty of the said defendant, as auditor aforesaid, to assess the entire amount so estimated and certified, as aforesaid, upon all the taxable property of the school distr’ct,” lias reference, of course, to the estimate so made and certified to the auditor ; and it is certainly consistent with the record to say that this act of the board may have been done before the first day of June, and that the auditor, at the time the estimate was so presented, refused to place the same on the tax list. The third Monday of April was the sixteenth day of the month, and the first Monday of June was the third day of the month. If we exclude the second day of June, which -was Sunday, these acts may all have been done, consistently with the record, on any one of the forty secular days intervening between April 16th and June 2d.

Assuming, as under the circumstances I think we may, that these acts were all done before the first day of June, or if done on June 1st, that they were completed before any other step was taken by the board of education, let us notice what followed. On the first day of June, the board of education ordered the estimate so made to be presented to the board of tax commissioners. When it was in fact presented does not appear, but the board of tax commissioners took the estimate into consideration, and reduced such estimate to $477,000, and thereupon the auditor placed the estimate, in its reduced form, on the tax list. Five months have elapsed since that time, and it does not appear that the board of education has, in any way, objected to the action of the board of tax commissioners in reducing the estimate, or the action of the auditor in placing such reduced estimate on the tax list and completing such list for and delivery of the same to the treasurer. If the board of education became satisfied that a mistake had been made, and that the sutn of $477,000 was sufficient, and thereupon acquiesced in, and consented to the action of the board of tax commissioners and auditor, so that the action of the board of tax commissioners became virtually the action of the board of education, surely the writ should not be awarded, even if the law did not clothe the board of tax commissioners with the powers it exercised. In view of the time which has elapsed, the silence of the board of education during the time, the large interests involved, and the inconvenience and expense which would result from the enforcement of an order in accordance with the prayer of the petition, we have no hesitancy in saying that the burden was on the relator, and not on the auditor, to show that there had been no such acquiescence, even assuming that the view of the relator as to the proper construction and validity of the statutes is correct. Indeed, this is only in accordance with the well settled rule. “ In a proceeding by mandamus to compel an officer to do an act which it is. claimed the law enjoins on him as a duty, the existence of all the facts necessary to put him in default must be shown” (Cincinnati College v. La Rue, 22 Ohio St. 469); and “ a mandamus will not be awarded in the absence of a clear right, in the party seeking the writ, to the object sought to bo obtained by it ” (The State v. Yeatman, 22 Ohio St. 546).

Peremptory writ refused.

McIlvaine, ’ J.,

dissenting. Upon the allegations of the petition, expressly found tobe true by the district court, I think it must be presumed that the board of education adhered to its estimate of the amount of money needed for school purposes within their district until the contrary be averred and proved. If this board receded from their estimate and adopted that of the board of tax commissioners, it should have been set up as matter of defense. There is no legal presumption of such fact, nor can this court take judicial notice of it. If such'fact might be inferred from the subsequent inaction of the board of education, the inference might be rebutted by proof.

In my judgment the delay in commencing the action ought not to bar the. right.