author: Donahue, J.

text:
    The State, ex rel. Godfrey, a Taxpayer, v. O’Brien, Treasurer, et al.

      ■ Taxation — Office and officers — Appointment or election — Section I, Article X, Constitution — Compensation — Section 20, Article II, Constitution — Repeals and amendments — Section 16, Article II, Constitution — Assistant assessors and boards of revision —Acts of May 7 and 20, 1915 (106 O. L., 246 and 433) — Constitutional law.

    1. County and township subdivisions are agencies of the state, and constituent parts of the plan of permanent organization of state government.
    9. Where the state seeks to exercise its sovereign power through the agencies of county or township officers, the statute creating the office and providing for the selection and compensation of the incumbent, must conform to the constitutional provisions with reference to such officers.

      3. A provision in an act of the general assembly of this state for the appointment instead of the election of a county or township officer, is in violation of Section 1 of Article X of the Constitution of Ohio and void.
    4. The general assembly of Ohio cannot delegate the authority conferred upon it by Section 20 of Article II of the Constitution, to fix the compensation of officers.
    5. The provisions of an act of the general assembly purporting to confer authority upon the county auditor, or the board of county commissioners, to fix the salary of county or township officers within certain limits, without providing a uniform rule for determining such compensation in the several counties of the state, are in conflict with Section 26 of Article II of the Constitution of Ohio, and void.
    6. The provision of Section 16 of Article II of the Constitution of Ohio, providing that no law shall be revived or amended unless the new act contains the entire act revived, or the section or sections amended, is mandatory. The inclusion, by reference, of the provisions of a repealed statute is in violation of this provision of the Constitution of Ohio and void.
    7. The statute defining the duties, powers, liabilities and penalties imposed upon deputy assessors being repealed, the provisions of Section 17 of the act of the general assembly of Ohio, passed May 7, 1915 (106 O. L., 246), that the elected assessor, “shall perform all the duties, exercise all the powers and be subject to all the liabilities and penalties devolved, conferred or imposed by law upon the deputy assessor so appointed,” are unconstitutional and void.
    8. The act of May 20, 1915 (106 O. L., 433), entitled: “An act to amend sections 31, 32 and 39 of the act entitled: ‘An act to provide for the listing and valuation of property for purposes of taxation and to repeal certain sections of the General Code, relating thereto,’” is unconstitutional and void.
    9. Sections 3, 18, 23, 31, 32, 35, 39, and all parts of other sections relating to the appointment, duties and authority of assistant township assessors and county boards of revision, of the act of the general assembly of Ohio, passed May 7, 1915 (106 O. L., 246), entitled: “An act to provide for the listing and valuation of property for purposes of taxation and to repeal certain sections of the General Code, relating thereto,” are unconstitutional and void.
    (No. 15190
    Decided January 9, 1917.)

      Error to the Court of Appeals of Cuyahoga county.
    On the' 7th day of January, 1916, the state of Ohio upon relation of Willis R. Godfrey, taxpayer, filed an amended petition in the court of common pleas of Cuyahoga county, averring:
    That relator is a resident, citizen and taxpayer of the county of Cuyahoga and brings suit on behalf of himself and all other taxpayers of Cuyahoga county; that the defendant, P. C. O’Brien, is the duly elected, qualified and acting county treasurer, and that John A. Zangerle is the duly elected, qualified and acting county auditor of Cuyahoga county.
    That on the 7th day of May, 1915, the general assembly of Ohio passed an act entitled “An act to provide for the listing and valuation of property for purposes of taxation and to repeal certain sections of the General Code, relating thereto,” which act was approved by the governor of Ohio on May 8, 1915, and filed in the office of the secretary of state at Columbus, Ohio, on the 11th day of May, A. D. 1915, (106 O. L„ 246).'
    That Sections 31, 32 and 39 of said act were amended by an act of the general assembly of Ohio passed May 20, 1915, which act was approved by the governor of Ohio on May 27, 1915, and filed in the office of the secretary of state at Columbus; Ohio, on the 1st day of June, 1915, (106 O. L., 433).
    That the defendant Zangerle, as auditor of Cuyahoga county, claims the right, under and in pursuance of these acts, and threatens to, and unless restrained by the court will, incur expenses, employ clerical and other help, and create various debts and obligations in the name of Cuyahoga county, in exercising certain power and authority thereunder, specifically enumerated in the amended petition, which he claims to be conferred upon him by these acts, and will issue his warrants upon the county treasurer for the payment of these expenses, and that the defendant O’Brien, as treasurer of Cuyahoga county, will, unless restrained by the court, honor the warrants, certificates and vouchers of the county auditor, issued in payment of the expenses enumerated.
    That certain specified sections of these acts are unconstitutional and void, and that by reason of the unconstitutionality of the sections specified, and other sections of said act, the entire original act and the act amending Sections 31, 32 and 39 thereof are unconstitutional and void.
    The prayer of the petition is that defendant Zangerle be temporarily enjoined from incurring any of such expense, that defendant O’Brien, treasurer, be temporarily enjoined from honoring any warrant, certificate or voucher issued by the auditor in payment therefor, and that upon final hearing the temporary restraining orders may be made permanent and the relator allowed costs and reasonable attorney fees; and for such other and further relief as may be just and equitable.
    To this amended petition the defendants filed a joint demurrer, which demurrer was sustained by the. court, and the relator not desiring to plead further the petition was dismissed at costs of relator.
    Error was prosecuted to this judgment in the court of appeals of Cuyahoga county, which court affirmed the judgment of the common pleas court, and this proceeding in error is brought to reverse the judgment of the common pleas court and the judgment of the court of appeals affirming same.

      Messrs. Hitchcock & Fackler; Messrs. Price, Alburn, Crum & Alburn and Messrs. Spear, Mills, Knight & Godfrey, for plaintiff in error.

      Mr. Cyrus Locher, prosecuting attorney; Mr. Frederick W. Green, assistant prosecuting attorney; Mr. Edward C. Turner, attorney general; Mr. Clarence D. Laylin and-Mr. Herbert C. Sherman, for defendants in error.
   Donahue, J.

The demurrer to the amended petition presents the question of the constitutionality of a number of sections of the act of the general assembly passed May 7, 1915 (106 0.‘ L., 246), entitled “An act to provide for the listing and valuation of property for purposes of taxation and to repeal certain sections of the General Code, relating thereto,” and the act of May 20, 1915 (106 O. L., 433), amending Sections 31, 32 and 39 of the former act.

Perhaps the most important question presented by the record in this case is the question of the constitutionality of Section 18 of the original act and Sections 31, 32 and 39, as amended May 20, 1915.

Section 18 authorizes the county auditor, when he deems it necessary to enable an assessor to complete his work within the time prescribed, to appoint one or more assistant assessors for such ward, district, city, village or township.

Section 31 constitutes the county treasurer, prosecuting attorney, probate judge and the president of the board of county commissioners of each county, a county board for the appointment of three members of a county board of revision.

Section 32 authorizes this county board to appoint three competent persons who shall constitute the county board of revision.

Section 39 provides for the organization of the county boards of revision whose members are so appointed.

Section 1 of Article X of the Constitution of Ohio requires that “the general assembly shall provide, by law, for the election of such county and township officers as may be necessary.”

If assistant township assessors are township officers and the members of county boards of revision are county officers, these sections are in clear conflict with this provision of the constitution requiring township and county officers to be elected.

An examination of the sections of this act purporting to define the duties of assistant township assessors and the duties of boards of revision leaves no possible doubt as to the official character of either. But the mere fact that they are officers does not necessarily make them township or county officers.

Section 17 provides for the election of a township assessor, and provides that he shall take and hold his office for the term of two years, from and after the first day of January following his election. It also provides that the assessor shall be a citizen, possessing the qualifications of an elector of the township.

Section 18 authorizes the county auditor to appoint an assistant assessor, who shall possess all the qualifications of an elected assessor, and, in the work assigned to him, perform all the duties and be subject to all the liabilities and penalties enjoined upon elected assessors by law. It would appear from this provision that an assistant assessor is entirely independent of the elected assessor in that township; that he is in no sense a deputy, but on the contrary performs the same duties and has the same power and authority as the elected assessor. If an elected township assessor is a township officer, an assistant township assessor appointed under the provisions of Section 18 is also a township officer.

A. county board of revision is appointed by a board whose members are county officers. It acts in an independent capacity, with authority to do and perform official acts for the whole county. .It is clothed with some part of the sovereign power of the state, to be exercised in the interest of the public as required by law. It is designated by statute as “The County Board of Revision.” Its official authority is coextensive with the territorial limits of the county. The salaries of its members are paid from county funds.

These facts bring the members of the county board of revision clearly within the doctrine announced by this court in the case of State, ex rel. Armstrong, v. Halliday, 61 Ohio St., 171; State, ex rel., v. Brennan, 49 Ohio St., 33, and State, ex rel. Guilbert, v. Yates, 66 Ohio St,, 546, 550.

This court, however, in the more recent case of State, ex rel. Pogue, v. Groom, 91 Ohio St., 1, held that members of the county budget' commission are county officers. It is impossible to distinguish between members of the county budget commission and members of the county board of revision, unless, perhaps, it would the more clearly appear that the latter are county officers within the meaning of Section 1 of Article X of the Constitution of Ohio.

It is said, however, that the function of valuing property for taxation is neither a county nor a township nor a municipal function, but rather a state function, and that in the nature of things the state alone can deal with this problem through state agencies only. This claim overlooks the fact that county and township organizations are provided for by the constitution itself; that these subdivisions are agencies of the state, and '“constituent parts of the scheme of permanent organization of the government of the state.” State, ex rel., v. Yates, supra, 551.

The general assembly has in this act created certain township and county offices and conferred authority on the incumbents of these offices to perform certain duties incident to the exercise of the taxing power of the state. Whenever it does this it must observe the constitutional provisions in reference to such offices. Under the laws of this state, the principal duties of county auditors and county treasurers relate to the levying and collection of taxes. Certainly it cannot be claimed that these officers are not county officers, and yet that contention would be equally as sound as the contention that members of county boards of revision- are not county officers, because their official duties are in connection with the exercise of the taxing power of the state.

It is conceded by counsel for defendants in error that if township assessors and members of the county board of revision are officers within the meaning of Section 20 of Article II of the Constitution, Sections 23 and 35 of this act are in conflict with that constitutional provision.

Section 35 authorizes the county commissioners to fix annually the compensation of the members of each county board of revision at not less than $3.50 nor more than $10 per day.

Section 23 provides that the compensation of assessors and assistant assessors shall not be less than $3 nor more than $6 per day, which compensation shall annually be fixed within such limits by the county auditor subject to the approval of the board of county commissioners.

This is an attempt to delegate to the auditor and board of county commissioners the legislative authority conferred upon the general assembly by Section 20 of Article II of the Ohio Constitution, to fix the compensation of all officers. These sections are in direct conflict with that constitutional provision and void. State, ex rel. Montgomery, v. Rogers, 71 Ohio St., 203, 219; State, ex rel. Guilbert, v. Yates, 66 Ohio St., 546, 551, and Cricket et al. v. State, 18 Ohio St., 9.

Section 17 provides that the term of the assessors shall be two years. The authority conferred by Section 23 upon the county auditor, annually to fix the compensation of these officers, is also in clear conflict with the further provisions of Section 20 of Article II, providing that the salary of an officer shall not be changed during his existing term of office, unless the office be abolished. It is the opinion, however, of a majority of this court that this provision does not apply where ¿ statute fixing the compensation of an officer fails by reason of its unconstitutionality.

These sections not only fail ¡to fix the compensation of these officers, but also fail to fix any rule by which the compensation can be determined uniformly in the several counties of the state, within the meaning of Section 20 of Article II of the Constitution, as interpreted in the cases above cited.

The assessors and assistant assessors may receive from $3 to $6 per day, as determined by the county auditor, subject to the approval of the board of county commissioners. The members of each county board of revision may receive from $3.50 to $10 per day, as the board of county commissioners may direct. There is no requirement that the compensation in the several counties shall be fixed by any uniform rule. On the contrary, the amount that these officers shall receive in each particular county depends upon the judgment and discretion of the county auditor and the board of county commissioners of each county, subject only to the limitation named in these sections. For this reason this provision offends against Section 26 of Article II of the Constitution, requiring that all laws of a general nature shall have a uniform operation throughout the state. State, ex rel., v. Yates, supra.

Section 3 of this act provides that the duties imposed upon the district assessor “by any existing provision of any law repealed by this act * * * shall devolve upon and be performed by the county auditor.”

Section 17 provides, among other things, that the elected assessor “shall perform all the duties, exercise all the powers and be subject to all the liabilities and penalties devolved, 'conferred or imposed by law upon the deputy assessor so appointed.”

Section 103 of the same act expressly repeals Sections 5368 and 5579 to 5624-20, both inclusive, of the General Code, which among other things define the duties and powers, and impose the liabilities and penalties upon, appointed assessors.

The parts of Sections 3 and 17 just quoted conflict with Section 16 of Article II of the Constitution, which provides: “No law shall be revived, or amended unless the new act contains the entire act revived, or the section or sections amended, and the section or sections so amended shall be repealed.”

While it was held by this court in the case of Lehman v. McBride, 15 Ohio St., 573, that the clause in Section 16 of Article II, which provides that “the section or sections so amended shall be repealed,” is directory only to the general assembly, and was not intended to abrogate the long-established rule as to repeals by implication, yet it is clear that this court entertained a different view as to the other provisions in the same section of the constitution.

In the opinion in that case, at page 603, it is said that the purpose of this constitutional provisiones to make “all acts, when amended, intelligible, without the examination of the statute as it stood prior to the amendment, it requires every section intended to supersede a former one to be fully set out. No amendments are to be made by directing specified words or clauses to be stricken from, or inserted in, the section of a prior statute which may be referred to; but the new act must contain the section as amended.”

Aside from this positive declaration of this court in the case of Lehman v. McBride, supra, it is clear that this provision of the constitution requiring each new act to contain the entire act as revived, or the section or sections amended, is mandatory; otherwise repealed sections must be given the same force and effect as if they were not in fact repealed.

The repeal of a statute is the end of that statute. To all intents and purposes it is the same as if it, had never existed. Reference in a legislative act to a repealed law, as supplementary or explanatory of the new act, is an absurdity, prohibited by this provision of the constitution.

Any other course would lead to endless confusion and uncertainty, and prevent an intelligent administration of the statutory law of this state. The fact that a statute is recently repealed, or repealed by the same act which refers to it, is no argument in favor of such loose legislation. If that can be done, then reference can be made to a statute repealed half a century ago, or the new section may remain unrepealed for the next half a century. In either case it would require that all repealed statutes be carried into each edition of the General Code published, otherwise there would be no means available to determine the scope, intent and purpose of the act which incorporates by reference a part of the provisions of the repealed law. This of course would be wholly impracticable, if not impossible.

It is claimed, however, by counsel for the defendants in error that even if Section 3 of this act is unconstitutional, nevertheless Sections 5398 to 5414, inclusive, General Code, survive not only the act now under consideration but also the act of April 18, 1913 (103 O. L., 786), and that these sections confer upon the county auditor full authority to do and perform the duties that Section 3 of this act attempts to define by reference to the repealed statute. That argument does not aid the court in determining the constitutionality of this section, nor does this contention of counsel apply to Section 17 of this act, for the reason that the statutes relating to the duties of an appointed assessor have all been repealed.

For the reasons given, the provisions of Section 17, that an elected assessor “shall perform all the duties, exercise all the powers and be subject to all the liabilities and penalties devolved, conferred or imposed by law upon the deputy assessor so appointed,” and the act of May 20, 1915 (106 O. L., 433), and Sections 3, 18, 23, 31, 32, 35 and 39, and the provisions of all other sections relating to the appointment, duties and powers of assistant assessors and county boards of revision, contained in the act of the general assembly of Ohio passed May 7, 1915 (106 O. L., 246), are unconstitutional and void.

The judgment of the court of appeals of Cuyahoga county affirming the judgment of the com-, mon pleas court of that county, and the judgment of the common pleas court of Cuyahoga county, are reversed, and this case is remanded to the common pleas court with.directions to overrule the demurrer to the petition.

Judgments reversed.

Nichols, C. J., Wanamaker, Newman, Jones, Matthias and Johnson, JJ., concur.


source: Caselaw Access Project

author: Johnson, J.

license: Public Domain

text:
    Sheffield-King Milling Co. v. The Domestic Science Baking Co.

      Contract for future deliveries — Stipulation of damages for breach —Damages regarded as penalty, when — Determination of intention of parties — Enforcement of measure of damages — If stipulation not inequitable or unjust — Interpretation of contract.

    1. Where the parties to a contract deem it advisable, the law permits them to stipulate in advance what the damage, or the measure thereof, shall be in case of breach by either. Compensation for damages sustained is the legitimate object of such provisions. But where that object is lost sight of and the amount so stipulated is inequitable or unjust, courts will regard it as a penalty and will refuse to enforce the provisions and remit the injured party to his actual damages.
    2. In the construction of such provisions, the question whether " they impose a penalty or provide for liquidated damages is one which will, in the absence of fraud or circumvention, be determined from a full view of all the terms of the contract and by a consideration of its subject-matter and the language used to express the intention of the parties.
    3. Where it appears from the terms of a contract for the sale of flour that the parties did not contemplate that the seller had the flour on hand, but that he should manufacture it in the future, for delivery within a period named in the contract, from wheat to be purchased by him for the purpose, it was competent for them to stipulate what the measure of damages should be in the event of a breach by the buyer, and if the stipulation is not inequitable or unjust it will be enforced.
    (No. 15194
    Decided January 9, 1917.)
    Error to the Court of Appeals of Hamilton county.
    This was a proceeding brought in the court of common pleas of Hamilton county by the plaintiff in error against the defendant in error to recover damages claimed to have been sustained by it by reason of the breach of a contract made between the parties in August, 1912.
    It is conceded by the pleadings that the parties entered into a contract in that month, whereby the plaintiff sold to the defendant Baking Company a quantity of flour equivalent to 4,000 barrels of 196 pounds each, the seller to pay freight from Faribault, Minnesota, to Cincinnati. The flour was to be packed in jute bags of 140 pounds each. The price was $4.75 per barrel at Faribault. The deliveries were to be made between October 1, 1912, and March 1, 1913, and were to be shipped over the C., H. & D. railroad. The terms were net, payable by draft, with bill of lading attached, through the Market National Bank of Cincinnati. The shipments were to be made on the order of The Domestic Science Baking Company, the vendee.
    The contract was in writing, executed in duplicate by officers of the respective companies. It is conceded that the defendant ordered out and received 750 barrels of the flour, but neglected and refused to order out the remaining 3250 barrels, by reason of which fact the plaintiff alleged the breach of the contract and claimed damages as stated.
    The answer of the defendant denied the breach, and also alleged that the method of computing the loss or damage of the plaintiff upon the breach of the contract, under its terms, amounts to and is in effect a penalty, and, therefore, illegal.
    The plaintiff recovered a judgment in the common pleas court, which was reversed by the court of appeals. This proceeding is brought by the plaintiff in error to reverse the judgment of the court of appeals and affirm that of the common pleas.

      Mr. Stanley K. Henshaw; Mr. E. R. Donohue and Mr. H. L. Hoidale, for plaintiff in err.or.

      Mr. W. A. Rinckhoff and Mr. Murray Season-good, for defendant in error.
   Johnson, J.

The contention between the parties concerns the provision in the written contract with reference to the damages which should be payable by the vendee in case of a breach on its part. That provision is: “If buyer fails to furnish directions for shipment within original contract time or prior to the date of expiration of extension seller may * * (3) Terminate contract, in which case the following is agreed upon as the basis of settlement, viz.: the actual difference between the highest closing price of No. 1 Northern wheat in Minneapolis on the date of sale and date of cancellation as shown by the ‘Minneapolis Market Record,’ figuring four and one-half bushels of wheat for every barrel of flour, the buyer to reimburse the seller for carrying the wheat at the rate of one cent per bushel per month from date of sale to date of cancellation, plus two cents per bushel for buying and reselling the wheat, and two cents per bushel to cover loss of profit, if any, and inconvenience to seller resulting from failure of buyer to take out flour as per contract.”

The position of the defendant in error is that the method prescribed in the provision of the contract quoted, for computing damages, amounts to a penalty and is not a provision for liquidated damages.

The court of appeals entertained the view in substance that there was no excuse for fixing a sum as liquidated damages in the contract; that as flour was an article or commodity which is bought and sold daily throughout the country, whose market value was not difficult to ascertain, it would be unreasonable and inequitable to enforce this contract in accordance with its terms.

It may be safely said that generally when parties enter into contracts they do so with the expectation that each will perform his part, and that the benefit which each expects to derive under the contract is the. inducement which leads him to make it. But there is no legal objection to including in their agreement provisions with reference to damages to be paid in the event of its breach. The contract may provide for payment of a stipulated or liquidated sum.

In view of the wide range and variety of contracts, and of their subject-matter, it is sometimes difficult to determine whether the terms thus agreed upon in advance actually provide for damages or for a penalty. Compensation for damages sustained is the legitimate object of such provisions, and where that object is lost sight of and a penalty imposed they will not be given effect by the courts. Equity will enjoin the enforcement of inequitable and unjust provisions of this nature and courts of law will refuse to enforce them. ■

The authorities generally agree that in the absence of fraud or illegality the question is one which must be determined by a consideration of the subject-matter, the language of the contract, and the intention of the parties.

The rule is stated in 13 Cyc., 90: “As to whether a sum agreed to be paid as damages for the violation of an agreement shall be considered as liquidated damages or only as a penalty is held to depend upon the meaning and intent of the parties as gathered from a full view of the provisions of the contract,, the terms used to express the intent, and the peculiar circumstances of the subject-matter of the agreement. The contract is to govern; and the true question is, What was the contract ? Whether it was folly or wisdom for the contracting parties thus to bind themselves is of no consequence if the intention is clear. If there be no fraud, circumvention, or illegality in the case the court is bound to enforce the agreement.”

In Doan v. Rogan, 79 Ohio St., 372, it is held in the syllabus: “Whether a stipulation providing for liquidated damages for the breach of a contract is to be construed as liquidated damages or as a penalty depends upon the intention of the parties to be gathered from the entire instrument. While courts will not construe contracts in a way authorizing recovery for liquidated damages simply because the parties have used that term in the agreement, yet, where parties to a contract otherwise valid have in terms provided that the damages of the injured party by a breach on the part of the other of some particular stipulation, or for a total breach, shall be a certain sum specified as liquidated damages, and it is apparent that damages from such breach would be uncertain as to amount- and difficult of proof, and the contract taken as a whole is not so manifestly unreasonable and disproportionate as to justify the conclusion that it does not truly express the intention of the parties, but is consistent with the conclusion that it was their intention that damages in the amount stated should follow such breach, courts should give effect to the will of the parties as so expressed and enforce that part of the agreement the same as any other.”

The court, by Spear, J., in the opinion in that case, at page 388, quote from Dwinel v. Brown, 54 Me., 468, the same language formerly quoted by this court in The Knox Rock Blasting Co. v. The Grafton Stone Co., 64 Ohio St., 361: “The parties themselves best know what their expectations are in regard to the advantages of their undertaking and the damages attendant on its failure, and when they have mutually agreed on the amount of such damages in good faith and without illegality, it is as much the duty of the court to enforce that agreement as it is the other provisions of the contract.”

In the case at bar it is contended that the article contracted to be sold was' an ordinary commodity whose market value was easy to be ascertained, and that the measure of damages for the breach of a contract of sale is the difference between the contract price and the market price at the place of delivery. This is of course the general and well-settled rule in the absence of valid provisions in the contract which require the application of a different measure. It is in harmony with the rule laid down in the Ohio sales act (99 O. L., 413), which is also cited by defendant. That is an “Act to establish a law uniform with the laws of other states on sales.” It was passed in response to a general desire for substantial uniformity in the legislation of the different states on all branches of commercial law. It is of high importance that everyone should know his rights and his obligations at all times and all places in connection with every transaction in which he engages. Every law that has been' passed in furtherance of that object should have its provisions enforced and its principles recognized wholly independent, and to the exclusion, of inconsistent decisions and doctrines previously declared. In this way only can the desired uniformity be sustained.

Sections 8444 and 8451, General Code (formerly Sections 63 and 71 of the sales act), provide as follows:

“Sec. 8444. (3) When there is an available market for the goods in question, the measure of damages is, in the absence of special circumstances, showing proximate damage of a greater amount, the difference between the contract price and the market or current price at the time or times when the goods ought to have been accepted, or, if no time was fixed for acceptance, then at the time of the refusal to accept.”
“Sec. 8451. When any right, duty, or liability would arise under a contract to sell or a sale by implication of law, it may be negatived or varied by express agreement or by the course of dealing between the parties, or by custom, if the custom be such as to bind both parties to the contract or the sale.”

It must be noted that this contract was not silent on the subject. It contained an “express agreement” touching the “liability.” It provides that the basis of settlement shall be “the actual difference between the highest closing price of No. 1 Northern wheat in Minneapolis on the date of sale and date of cancellation as shown by the ‘Minneapolis Market Record,’ figuring four and one-half bushels of wheat for every barrel of flour, the buyer to reimburse the seller for carrying the wheat at the rate of one cent per bushel per month from date of sale to date of cancellation, plus two cents per bushel for buying and reselling the wheat, and two cents per bushel to cover loss of profit, if any, and inconvenience to seller resulting from failure of buyer to take out flour as per contract.”

It is apparent from this language that the parties themselves contemplated that the plaintiff should not be required to speculate upon the price of wheat, whose fluctuating character must have been well known to both, but that the transaction should proceed on the idea that the plaintiff should purchase a sufficient quantity of wheat on the. day of sale. Not only this, but it is apparent from the contract that the parties themselves contemplated that this wheat should not be at once manufactured into flour, but should be held or “carried” until near the time when the plaintiff would be required to manufacture the flour from it. Otherwise the provision as to the highest closing price of No. 1 Northern wheat on the date of sale, and the provision to reimburse the seller for carrying the wheat at one cent per bushel per month and two cents for buying and reselling the wheat, would be wholly unnecessary and meaningless. Under the clause, “and two cents per bushel to cover loss of profit, if any,” the plaintiff waived any claim.

We think that a consideration of the whole instrument forces the conclusion that the contract did not provide for, and the parties did not contemplate, a direct sale of the flour as an ordinary commodity, as it might have done if the parties had so desired; but it provided for, and they contemplated, the purchase of the wheat at once and the future manufacture and delivery by the plaintiff of the amount of flour within the period covered by the terms of the contract. With these steps in contemplation the parties contracted that defendant should reimburse plaintiff for any loss on account of the purchase of the wheat in case defendant refused to take the flour, or “fails to furnish directions for shipment.” The parties in this case were fully competent to contract. Each was fully able to consider and provide for his own interest. It is not claimed that there was any fraud or circumvention in connection with the negotiation, and we can conceive of no injustice, or inequity, in the enforcement of the terms of a contract thus made, which contemplated the purchase by the seller of sufficient wheat to supply the commodity to be manufactured and delivered thereafter during a period of a number of months. The parties agreed that wheat, the thing from which the flour was to be made, should be the basis upon which to calculate damages. They could, of course, have agreed that the flour should be such basis, but they did not do so. That was a matter for them to agree about. They did not fix an arbitrary lump sum which might turn out to be-wholly inequitable, but fixed a method, the chief element of which was the price of 'wheat from which the flour was to be made, a matter not within the. control of either. In this situation when the plaintiff. proved it had performed the terms of the contract on its part, had purchased the necessary wheat, and showed the damages that had accrued oh the basis agreed on, it was entitled to recover.

In Russell Miller Milling Co. v. Bastasch, 70 Ore., 475, relied on by defendant in error, it is held: “In an action for a breach of contract to purchase flour, a custom of the plaintiff on purchases for future delivery of setting aside a quantity of wheat sufficient to be manufactured into the flour ordered cannot be considered, where the parties are not shown to have contracted with reference to it and no knowledge of it is imputed to the defendants in either, pleadings or evidence.” That was an ordinary suit for damages and did not involve the question made here as to liquidated damages or penalty. In the case we have here, it will also be noted, the plaintiff does not assert a “custom” but an express contract, in which the parties are “shown to have contracted with reference” to the basis of settlement.

The view that the measure agreed on in the contract was reasonable and just is supported by Erie Baking Co. v. Hubbard Milling Co., 217 Fed. Rep., 759, which was likewise a suit for breach of contract and involved simply the proper measure of damages. The court say: “At the time the contract was made the Milling Company did not have the flour on hand, so that the parties agreed, not upon the sale of an article already made, but upon the manufacture and sale of an article not yet in being. For the breach of such a contract it is apparent that the measure of damages generally applied — namely, the difference between the price agreed upon and the market price at the time of the breach — may not properly compensate the manufacturer, and in that event another measure that will compensate him should be applied.”

Testimony tendered by the defendant in the trial court, tending to show the market value of the flour at the time of the breach and at the place of delivery, was rejected by the court. Of course, if the measure of damages to be applied in the case was the difference between the contract price and the market price of flour as an ordinary commodity at the time of the breach, the testimony was wrongfully rejected, but in the view we have taken of the language of the contract this was not the proper measure, and, therefore, the court did not err in rejecting the testimony.

In the construction of the contract and in arriving at the intention of the parties the learned court of appeals did not give the provisions to which we have referred the controlling effect that we think is required by correct interpretation.

The judgment of.the court of appeals will be reversed and that of the common pleas affirmed.

Judgment reversed.

Nichols, C. J., Wanamaker, Newman, Jones, Matthias and Donahue, JJ., concur.


author: By the Court.

text:
    Jewell v. McCann et al., as The State Medical Board of Ohio, et al.

      State medical board — Revocation of physician’s certificate — Notice of hearing and appeal — Sections 1275 and 1276, General Code, unconstitutional — Due process of law.

    (No. 15306
    Decided January 9, 1917.)
    Error to the Court of Appeals of Franklin county.

      Mr. Thomas M. Sherman, for plaintiff in error.

      Mr. Edward C. Turner, attorney general;, Mr. Charles Follett and Mr. A. O. Dickey, for defendants in error.
   By the Court.

The plaintiff in error, Azariah. K. Jewell, instituted this action in the common pleas court of Franklin county, December 18, 1914, and sought to enjoin the state medical board and its secretary from holding any hearing upon or making any finding or order with reference to an application filed in the office of said board for the revocation of the certificate of plaintiff, theretofore issued to him by said board in the manner provided by law,, authorizing him to engage in the practice of medicine and surgery.

By demurrer to the petition of plaintiff the question was raised and presented whether the statutes which authorized proceedings to revoke such certificate, being Sections 1275 and 1276, General Code, were violative of the due process of law provisions of the constitution of the state and of the United States. The demurrer was sustained by the common pleas court and that action was affirmed by the court of appeals.

The sections of the General Code brought into question at the time of the commencement of this action provided as follows:

“Sec. 1275. The state medical board may refuse to grant a certificate to a person guilty of fraud in passing the examination, or at any time guilty of felony or gross immorality, or addicted to the liquor or drug habit to such a degree as to render him unfit to practice medicine or surgery. Upon notice and hearing, the board, by a vote of not less than five members, may revoke a certificate for like cause or causes.
“Sec. 1276. An appeal may be taken from the action of the state medical board refusing to grant, revoking or suspending a certificate, for the causes named in the preceding section, to the governor and attorney general, whose decision affirming or overruling the action of the state board shall be final.” (103 O. L., 438.)

Thereafter these sections were amended and supplemented (106 O. L., 177, 178). However, by reason of the provisions of Section 26, General Code, the statute as amended and supplemented subsequent to the institution of this proceeding can in no wise affect this case. The only authority possessed by the state medical board in the matter under consideration, at the time it attempted to take the action sought to be enjoined in this proceeding, was conferred by the sections above quoted. No provision whatever was made or then existed whereby the attendance of witnesses could be required or their testimony procured, nor was any procedure provided whereby the rights of the holder of such a certificate to engage in the practice of medicine could be protected and safeguarded. Although the statutes authorized the revocation of such certificate “upon notice and hearing,” the board was not vested with any of the powers essential to the conduct of the trial or hearing. No process was authorized and no method or means for such hearing prescribed or provided, nor is an opportunity to be heard furnished by the provisions of Section 1276 authorizing an appeal to an officer or officers in whom is vested no authority to subpena witnesses, enforce attendance, compel the giving of testimony, or the production of necessary books, records and documentary evidence.

The statutes in question did not provide the plaintiff in error due process of law and are therefore invalid.

The demurrer to the petition should have been overruled. The judgments of the court of common pleas and of the court of appeals herein are therefore reversed.

Judgments reversed.

Nichols,, C. Newman, Jones, Matthias, Johnson and Donahue, JJ.; concur.


text:
    Trumpler, Admr. de bonis non, etc., et al. v. Royer et al.

      Executors and administrators — Settlement of accounts — Jurisdiction of probate court — Section 8, Article IV, Constitution — Section 10492, General Code — Attorneys’ fees — Determination and, allowance — Item for settlement account, when — Appeal from application or order — Section 11206, General Code.

    1. By the provisions of Section 8, Article IV, Constitution, and Section 10492, General Code, plenary jurisdiction is conferred on the probate court to grant and revoke letters testamentary and of administration, to direct and control the conduct, and settle the accounts of executors and administrators, and order the distribution of estates.
    2. The allowance of fees for services rendered by attorneys employed by am executor or administrator in the settlement of the estate in his hands is a matter to be determined by the probate court, and until so determined such fees do not constitute a valid claim against the estate.
    3. The amount of such fees may be included as an item in the settlement-account of the executor or administrator; or an application upon due and legal notice to all parties in interest may be made to the probate court to allow the claim and fix the' amount thereof.
    4. Any person affected by order of the court with - reference to any such item or application may, by the provisions of Section 11206, General Code, appeal therefrom to the court of common pleas.
    (No. 15210
    Decided January 9, 1917.)

      Error to the Court of Appeals of Seneca county.
    This was a proceeding brought by the defendants in error, John C. Royer and Calvin D. Spitler, in the probate court of Seneca county. In their petition filed in that court they allege substantially that one Samuel Dahm was named in the will of Emma R. Slusser, deceased, as- executor, and had qualified ; that an action had been commenced by certain relatives to contest and set aside the will; that said Dahm had employed them as attorneys to represent him as such executor and to act for and on behalf of the estate in resisting the action to set asidle the will; that on the 9th of November, 1910, said Dahm died and on the 21st of December, 1910, plaintiff in error, Walter G. Trumpler, was appointed and qualified administrator de bonis non with the will annexed of the said Emma R. Slusser, and is now acting as such; that although Trumpler was appointed and qualified before the trial of the action to contest the will, yet he did not discharge the defendants in error, and they continued, with his consent and acquiescence and with the full knowledge on his part that the petitioners had been employed by his predecessor, to defend said action and to sustain said will at the expense of the estate; that all of the legatees in the will were made defendants in said action to contest and had due and legal notice of the prayer of the petition, and also that all of said legatees were fully informed and had full knowledge of the employment of the petitioners by the said Samuel Dahm in his representative capacity, as aforesaid, and that the said petitioners were rendering their legal services with the expectation of receiving reasonable compensation from the estate; that said litigation was successfully terminated in behalf of said estate and the will was sustained; and that they presented to the said Trumpler, as such administrator de bonis non, a statement of their account for such services and asked the allowance thereof, which the said Trumpler declined and refused. They therefore pray that said Trumpler, administrator, be cited by the court to show cause why he should not pay or provide for the payment of said claim, and that he be required to allow and pay the same out of the funds of the estate.
    To this petition a demurrer was filed, and sustained by the probate court. The sustaining of the demurrer was overruled in the common pleas court and this overruling was affirmed by the court of appeals.
    A motion filed in this court to require the court of appeals to certify its record to this court for final determination was overruled. Thereafter the demurrer was overruled in the probate court, and all the legatees and devisees under the last will and testament of said Emma R. Slusser were made parties to the proceeding and duly served. Answers were filed and issues made up.
    On the hearing of the issues made by the pleadings the probate court allowed to the defendants in error the sum of $400. Not satisfied with the amount, the defendants in error attempted to appeal to the common pleas court, which court on motion dismissed the appeal on the ground that the cause was not appealable. Error was prosecuted to the court of appeals, which held that the cause was appealable. The judgment of the court of common pleas was reversed and the cause remanded to the court of common pleas for hearing on the issues joined in the pleadings.
    This proceeding is brought to reverse the judgment of the court of appeals.

      Mr. Frank T. Dore and Mr. Milton Sayler, for plaintiffs in error.

      Mr. W. C. Rohrbacker and Messrs. Royer. & Spitler, for defendants in error.
   Johnson, J.

It is contended by plaintiffs in error that the probate court had no jurisdiction of the subject-matter. As to this it is shown in the statement that when the application was filed originally in the probate court the defendant administrator filed a demurrer thereto on the ground that the court had no jurisdiction to entertain the proceeding. This demurrer was sustained in the probate court. On error in the common pleas court this judgment was reversed, and the judgment of the court of common pleas was affirmed by the court of appeals. This court overruled a motion to require the court of appeals to certifiy its record here for final determination. Therefore, the decision of the court of appeals was conclusive as to that question.

The parties agree that the right of appeal is determined by Section 11206, General Code, the pertinent portion of which is as follows: “Appeal may be taken to the common pleas court, by a person against whom it is made, or whom it affects, from any order, decision, or judgment of the probate court in settling the accounts of an executor, administrator, guardian, and trustee, or of assignees, trustees, or commissioners of insolvents.”

The plaintiffs in error contend that the words “in settling the accounts of an executor,” etc., mean the settlement of the accounts between the executor and the estate, and that the words “by a person against whom it is made, or whom it affects,” include only those who have the legal right to file exceptions to the account of an administrator or executor, etc. They urge that the question whether the defendants in error were entitled to anything had to be determined, and so long as it remained undetermined, credit for the payment thereof could not have been taken by the executor or .administrator and could not have been included as an item of any account, and therefore had no relation to the settling of an account or of an item thereof.

Plenary jurisdiction has been conferred upon the probate court in the settlement of estates. Section 8 of Article IV of the Constitution provides: “The probate'court shall have jurisdiction in probate and testamentary matters, the appointment of administrators and guardians, the settlement of the accounts of executors, administrators, and guardians,” etc. Section 10492, General Code, provides that the probate court shall have jurisdiction to grant and revoke letters testamentary and of administration and to direct and control the conduct and settle the accounts of executors and administrators and order the distribution of estates.

In McMahon, Admr., v. Ambach & Co. et al., 79 Ohio St., 103, it was held:

“1. The statutes of the state bearing upon the settlement in the probate court of the estates of de.ceased persons, taken together, show that the allowance to an administrator for extraordinary services in the settlement of the estate is part of the statement of his account, and is to be considered by the court accordingly.
“2. Whether, the allowance is in fact made at the time of or prior to the filing of a settlement account, such allowance cannot take effect as prejudicing the rights of others interested in the settlement of' the estate who have not had notice until the court, after legal notice, acts upon the settlement account itself.”

In that case an allowance for extraordinary services had been made to the administrator without notice to the parties in interest. The order was purely ex parte, and this court held that when the item was included in the final account it was then subject to exceptions by parties in interest. In the opinion it is stated by Spear, J., at page 114:

“It is not doubted that the probate court has power, in the proper way and at the proper time, to make allowances for extraordinary services by an administrator, nor that, speaking in the general sense, the proceedings in the settlement of estates by the probate court are not inter paries, or adversary in character, but are proceedings in rem. This because the estate itself, the res, is committed to that court, and on that court is devolved the duty of determining its status and disposing of its corpus. But it does not follow that every matter connected with the settlement of an estate is strictly in rem, and therefore binding on everybody without notice, for we find provision for notice in many matters which in their nature may be considered in rem.” And, on page 119, it is said: “In legal effect the item in dispute in the present case is part of the settlement account, is subjected to the same right of review, and must stand or fall on review the same as any other item excepted to.”

In the case at bar the application was made to the probate court, upon which is “devolved the duty of determining the status and disposing of the corpus” of the estate.

All parties in interest were notified and appeared in court, and by proper pleadings set up their claims with reference to the matter in dispute. As was the view of the court in the McMahon case, supra, “in legal effect” the item in dispute became an item to be included in the settlement account. In the syllabus of that case it is held: “Whether the allowance is in fact made at the time of or prior to the filing of a settlement account, such allowance cannot take effect as prejudicing the rights of others interested in the settlement of the estate who have not had notice until the court, after legal notice, acts upon the settlement account itself.”

It may be said that the allowance of extra compensation to an administrator and the allowance of fees to be paid to attorneys for services rendered in settlement of the estate are matters to be determined by the probate court, and until so determined they do not constitute valid claims against the estate.

In Thomas, Admx., v. Moore, 52 Ohio St., 201, it is held: “Executors and administrators are personally liable for the services of attorneys employed by them, but their contracts therefor do not bind the estate, although the services are rendered for the benefit of the estate, and are such as the executor or administrator may properly pay for, and receive credit for the expenditure in the settlement of his accounts.”

In discussing the right and duty of administrators and executors to employ counsel to advise and assist them in the performance of their official duties, after stating that it cannot be determined that the services or their value constitute a part of the fund in the hands of the representative, however important or valuable those services may have been in collecting the assets, or in resisting unjust claims against them, it is said, at page 206: “The law contemplates that the representative will himself pay the value of such services, and be reimbursed, by receiving credit for the amount paid, in the settlement of his accounts. Such items constitute a part of the .expenses of administration, which, together with the funeral expenses, take precedence, under our statute, of all other demands.”

In the present case there devolved on the probate court the duty of determining matters affecting the status of the estate of Emma R. Slusser, deceased, and of legally distributing it. As shown, the attorneys were not entitled to bring suit at law, against the administrator as such, to recover for their services. An administrator is the instrumentality selected- and appointed by the probate court for the' settlement of the estate in accordance with the law and under the orders of the court. And counsel who have rendered necessary professional services in connection with an estate in the control of the court, whether in connection with its settlement or in defense of a suit to contest a will, should have the right to invoke the order of the court to determine all questions touching the service, after due and legal notice to all parties in interest. Otherwise an administrator by refusing to include in his settlement account an item for the payment of counsel could arbitrarily deprive them of opportunity to have their claim considered.

Section 10214, General Code, provides that the provisions of part third and all proceedings under it shall be liberally construed, in order to promote its object, and assist the parties in obtaining justice. “The rule of the common law, that statutes in derogation thereof must be strictly construed has no application to such part.”

Section 11206, General Code, is a remedial statute and is one of the sections included in part third of the General Code.

We think it clear that the matter presented to the probate court by the defendants in error in this case was such a one as to constitute a proper item in the settlement account of the administrator. The order made by the probate court touching the item affected the defendants in error, within the meaning of Section 11206. And all parties in interest being before the court at the time the order was made the defendants in error were, under the provisions of that section, entitled to an appeal.

For these reasons the judgment below will be affirmed.

Judgment affirmed.

Nichols, C. J., Wanamaker, Newman, Jones, Matthias and Donahue, JJ., concur.


author: Matthias, J.

text:
    The State, ex rel. Nimberger et al., v. Bushnell et al., Board of Education, et al.

      Schools — Tuition and attendance — Reenactment of statutes in revision — Meaning or effect not changed, when — 'Codification of Section 4029-3, Revised Statutes — Payment of high school tuition — By boards of education in districts — Not maintaining high schools — Clear meaning of statute applied — Without regard to result, when.

    1. The reenactment of a statute in a code or revision does not change its meaning, construction or effect unless the language of the statute as revised clearly manifests the intent of the legislature to make such change.
    2. The dissection of Section 4029-3, Revised Statutes, and making several sections thereof in the process of codification, did not effect a change of the meaning or application of its provisions so as to impose upon boards of education in village districts not maintaining a high school the obligation of paying the tuition of pupils resident therein who attend high school elsewhere.
    3. Although subsequent legislation authorizes the issuance of certificates of promotion to the pupils of any school under county supervision who have completed the elementary school work, thereby entitling them to admission to any high school, the obligation to pay tuition has not been correspondingly extended so as to include village districts which maintain no high school.
    4. When the meaning of the language employed in a statute is clear, the fact that its application works an inconvenience or accomplishes a result not anticipated or desired should be taken cognizance of by the legislative body, for such consequence can be avoided only by a change of the law itself, which must be made by legislative enactment and not by judicial construction.
    (No. 15425
    Decided January 23, 1917.)
    In Mandamus.
    This is an original action in mandamus instituted in this court. The facts appearing in the petition and the amendment thereto are in substance as follows :
    The relators are residents of the village school district of the village of East View in Cuyahoga county, Ohio, which adjoins the city school district of the city of Cleveland, and are the owners of property situated in the city of Cleveland, and within the city school district, which is valued for taxation at $9,510, upon which the amount of school taxes paid for the tax year, 1915, was $90.84, with a like amount levied thereon for the tax year, 1916. Josephine Nimberger, the daughter of relators, has completed the work required in the course of study in the elementary schools in said village school district and is eligible for admission to high school. That district has not established and does not maintain ány high school. The county superintendent of schools in and for Cuyahoga county, Ohio, has issued to said Josephine Nimberger a certificate of promotion as provided for in Section 7747, General Code. No agreement has been entered into bjr and between the board of education of the village school district of East View and the board of education of the city school district of the city of Cleveland, but the provisions of Section 7750, General Code, have been fully complied with and the notice therein required duly given. On September 9, 1916, Josephine Nimberger was admitted as a pupil in East Technical High School — which is one of the high schools in said city school district and is a regularly organized high school within the requirements of Section 7752, General Code — and continued in attendance therein until October 11, 1916, when the defendants refused to permit her to continue in attendance thereat until the board of education of the village of East View should meet the requirement theretofore made by the board of education of said city school district and pay tuition for the attendance of Josephine Nimberger at said high school at the rate of $3 per week, payable in advance for the first half of the current school year, and without credit or allowance for any school tax paid by the relators upon property owned by them in said city school district. The amount of tuition so demanded was $57. The defendants refused to permit Josephine Nimberger to attend said high school unless such sum was paid in advance either by the village board of education or by the relators..
    Relators pray for a writ of mandamus ordering the defendants to permit Josephine Nimberger to attend the school named for the first half of the current year. The sufficiency of the facts stated to constitute a cause of action is questioned by demurrer.

      Mr. Cyrus Locher, prosecuting attorney, and Mr. Frederick W. Green, assistant prosecuting attorney, for relators.

      Mr. W. S. FitzGerald, director of law, and Mr. A. A. Cartwright, assistant director of law. for defendants.
   Matthias, J.

The question presented by the record in this case is whether a board of education of a village district wherein no high school is maintained is required by law to pay the tuition of pupils who have completed the elementary school work of such district and are attending a high school in another district.

Although each board of education is required by law to establish a sufficient number of elementary schools to provide for the free education of the youth of school age within the school district, the provisions of the statute with reference to the establishment of high schools are not mandatory.

It is provided by Section 7663, General Code, that a board of education may establish one or more high schools, whenever it deems the same necessary for the convenience or progress of the pupils attending them, or for the conduct and welfare of the educational interests of the district. We think it must be conceded that there is no liability upon a village board of education for the payment of tuition for pupils resident of that district, but attending high schools elsewhere, unless the statutes of the state specifically place upon such board of education that obligation. It is contended that such duty and obligation is fixed and declared, by the provisions of Sections 7748, 7750 and 7751, General Code. A cursory reading of these provisions induces the conclusion contended for, the language being in broad and general terms.

Section 7750, General Code, provides that a board of education not having a high school may enter into an agreement with another board of education which does maintain a high school for the schooling of the high-school pupils of the former, and then, when such an agreement is made, the board making it shall be exempt from the payment of tuition at other high schools of pupils who live within three miles of the school designated in the agreement, if the school or schools selected by the board are located in the same civil township, as that of the board making it, or some adjoining township. That section provides further that in case no such agreement is entered into, the pupil holding a diploma may select the school to be attended, and shall give notice thereof in writing to the clerk of the board of education.

Section 7751 provides that “Such tuition shall be paid from either the tuition or contingent funds.”

Before we can be justified, however, in applying the provisions of these sections to all schools’, and to all boards of education, we must examine the history of these sections and thereby ascertain their correct meaning and proper application.

Section 7750 was formerly a portion of Section 4029-3, Revised Statutes, which was a part of what was formerly known as the Boxwell law, under authority of which pupils of subdistricts and special districts were admitted to examinations, and diplomas issued to those who were successful. Under the provisions of that act boards of education of the special or township district, in which any pupil receiving a diploma resided, were authorized to pay the tuition of such pupils who thereafter attended any village or city high school in the county. Subsequently these provisions were so amended as to permit attendance in an adjoining county, and later so amended as to make the payment of tuition mandatory. In 1902 the terms of this statute were so extended as to admit to the examination “pupils of township, special and joint subdistricts,” and to entitle those receiving diplomas to enter any high school in the state. However, tuition was required to be paid only by boards of education of districts which maintained no high school. In 1909 an amendment was made, the effect of which was to require boards of education which maintained a high school with only limited courses to pay tuition to a high school of a higher grade, for the period named, to supplement the work of the local high school. In 1910 the codifying commission subdivided Section 4029-1, Revised Statutes, making therefrom Sections 7740 to 7744, General Code, and subdivided Section 4029-3, Revised Statutes, making therefrom Sections 7747 to 7751, General Code.

No change whatever was made in the substance, meaning or application of these provisions at that time except to eliminate joint subdistricts, and that undoubtedly was done because of the fact that in 1904 joint subdistricts had been abolished.

A comparison of thé codification of 1910 with the former sections of the Revised Statutes discloses no change of language which would in anywise affect the operation of any of the provisions to which we have heretofore referred, and it is quite obvious that village boards of education were not affected in any wise by the provisions of any of these sections, either before or after the codification.

A dissection of the original sections, making several sections of each for the purpose of convenience merely, does not effect any change in the substance or operative effect thereof, and, under the well-known and frequently-applied rule, does not alter the meaning of the language used.

The presumption is that although the language has been changed in the revision or codification of the statute it has the same meaning and application as before the revision or codification, and the court is warranted in changing the construction thereof only when that is plainly required in order to conform to the manifest intent of the legislature. Ash v. Ash et al., 9 Ohio St., 383, 387; State, ex rel. Clough & Co., v. Commissioners, 36 Ohio St., 326; Heck v. State, 44 Ohio St., 536; State, ex rel. Baumgardner, v. Stockley, 45 Ohio St., 304, 308; Conger et al. v. Barker’s Admr., 11 Ohio St., 1; German American Ins. Co. v. McBee et al., 85 Ohio St., 173, and Myers, Treas., v. Rose Institute, 92 Ohio St., 238, 247.

“A board of education” meant just the same after as it did before the action of the codifying commission. Village boards of education were entirely outside the scope of those statutes before the codification, and there was no change which could possibly serve to include them.

Section 7740 was amended April 13, 1910, extending the privilege of taking the examination to pupils of village districts as well as to those of township and special districts. However, there was no change in the provisions relative to the payment of tuition. The question thereupon arises whether this amendment, which affords to the pupils of village districts the privilege to take such examination, serves to impose upon the board of education of such district the obligation to pay tuition for any such pupils passing the examination who thereafter attend high school in some other district. It is to be borne in mind that the right and privilege of pupils to attend high school in districts other than those wherein they reside was conferred long prior to the passage of any law requiring boards of education to pay tuition for such attendance. It is therefore manifest that the right to take the examination, and, if successful, the privilege of attending a high school in another district, did not imply any obligation whatever upon the local board of education to pay tuition. The right of the pupil to attend a high school elsewhere and the obligation of the board to pay tuition have,at all times been treated in legislation as two entirely separate and distinct matters, the privilege of the pupil being broader than the obligation of the board. .

It is to be observed that very shortly after the last amendment to which we have above referred, the legislature, on May 10, 1910, amended Section 7748 so as to extend the rights and privileges of a Boxwell-Patterson graduate to a pupil living in a village or city district who had there completed the elementary school course and thereafter transferred his residence to a township or special district. The fact seems significant that the legislature, by the terms of this amendment, limited the tuition privilege to a village pupil who had become a resident of a township or special district, and did not extend the same privilege to the pupil who continued a resident of the village district after completing the elefnentary course.

In 1914 the sections of the code which incorporate the provisions for examination were repealed. At that time, also, Section 7747 was amended so as to read as follows:

“The tuition of pupils who are eligible for admission to high school and who reside in rural: districts, in which no high school is maintained, shall be paid by the board of education of the school district in which they have legal school residence, such tuition to be computed by the month. An attendance any part of the month shall create a liability for the entire month. No more shall be charged per capita than the amount ascertained by dividing the total expenses of conducting the high school of the district attended, exclusive of permanent improvements and repair, by the average monthly enrollment in the high school of the district. The district superintendent shall certify to the county superintendent each year the names of all pupils in his supervision district who have completed the elementary school work, and are eligible for admission to high school. The county superintendent shall thereupon issue to each pupil so certified a certificate of promotion which shall éntitle the holder to admission to any high school. Such certificates shall be furnished by the superintendent of public instruction.”

Under the provisions of the above section, while all pupils of any school in the county under the supervision of the county superintendent, who had completed the elementary school work, were entitled to receive certificates of promotion and permitted to attend any high school in the state, yet local boards of education, by the terms of this statute, were required to pay the tuition only of pupils “who reside in rural districts, in which no high school is maintained.”

It is too plain to require discussion that the provisions of Section 7747, General Code, must be limited in their application to rural districts. That limitation is made by the express terms of that section, and we have seen that under proper construction of Sections 7750 and 7751 the provisions thereof do not include village boards of education.

It is to be observed that the manner of ascertaining the rate of tuition to be charged for rural pupils is definitely prescribed by Section 7747. If we assume that Sections 7750 and 7751 place upon village boards of education the obligation to pay tuition we cannot look to the provisions of Section 7747 to ascertain the rate of tuition to be charged, for clearly the provisions of that section, relative to the rate of tuition which may be charged and the manner of its ascertainment, have reference only to “the tuition of pupils who are eligible for admission to high school and who reside in rural districts, in which no high school is maintained.” Neither Section 7750 nor any other section of the statute prescribes any method of determining the amount of tuition to be paid by village districts. The provisions of Section 7682, General Code, would therefore govern, which authorize boards of education to admit pupils not residents of the district “upon such terms or upon the payment of such tuition as it prescribes.”

It follows that if village boards of education are required to pay tuition they must meet the terms prescribed by the board of education of the district maintaining the high school attended, while the board of education of the rural district is required to pay only the tuition determined and computed in the manner prescribed by Section 7747, General Code, although pupils from the village district and the rural district may be in attendance upon the same high school.

From these considerations it seems quite clear that the legislators, in drafting and enacting the various statutes to which we have referred, either designedly or inadvertently failed to impose upon boards of education of village districts maintaining no high school the obligation to pay tuition for the pupils of that district attending a high school elsewhere. It is well argued that there is no good reason why that should have been done. We are unable now to assign any reason for not extending the same privilege to a pupil resident of a village district not having a high school that is accorded the pupil under similar circumstances in a rural district; nor any reason why the same obligation should not rest upon the village school district not maintaining a high school to pay the tuition of its pupils who have completed the elementary school course as is imposed by the plain terms of the statute upon the rural districts. It has been suggested that this apparently unfair discrimination may have ■escaped the attention of those charged with the duty of preparing recent amendments to our school laws, because of the fact that there are but few village districts in the state which do not maintain a high school. A slight change of phraseology would have removed the unfairness and inequality. The condition of the provisions we have been considering serves to illustrate the usual results of the scissors-and-paste method of legislation too frequently employed. Whatever the cause of the present condition of the statute, if a correction is to be made it should not be accomplished by a forced construction of the provisions of the school code by the courts. That is purely a matter of legislation, and is solely within the province of the legislature. Any district which is required to pay the tuition of a pupil residing therein, but attending school in another district, is entitled to the benefits of the provisions of Section 7683, General Code, and should be credited with the amount of school taxes paid upon property owned by the pupil or his parent in the district wherein is located the high school attended. Such credit should be made no matter who pays the tuition. But for the reasons above stated the board of education of the village of East View is not required to pay any of the tuition sought to be charged against it, and the record discloses that the relator has not met the requirements of the board of education of the school district of the city of Cleveland with reference to the payment of tuition. The demurrer to the petition is therefore sustained and the prayer for a writ of mandamus is denied.

Demurrer sustained and writ refused.

Nichols, C. J., Wanamaker, Newman, Jones, Johnson and Donahue, JJ., concur.


author: Newman, J.

text:
    Gebbie v. Efros.

      Contract for sale of realty — Action for damages for breach — Petition not bad on demurrer — For failure to allege payment or tender, when.

    In an action for damages based upon a breach by the vendor of a contract under the terms of which he is to convey to the purchaser certain described real estate free from all incumbrances at a time fixed in the contract, the petition will not be held bad on demurrer because of the failure of the purchaser to allege a payment or tender of payment of the balance of the purchase price, where there is an allegation in the petition that there is an incumbrance upon the real estate, which the vendor is unable to remove.
    (No. 15271
    Decided January 23, 1917.)

      Error to the Court of Appeals of Cuyahoga county.
    Defendant in error brought an action against plaintiff in error in the court of common pleas of Cuyahoga county to recover damages for the alleged breach of a contract for the sale of real estate, a copy of which contract is attached to the petition and made part thereof as follows:
    “This agreement made and entered into, by and between Jean Armstrong Gebbie, hereafter to be known as party of the first part, and Max Efros, hereafter to be known as party of the second part, both of Cleveland, Ohio, witnesseth:
    “For the consideration of Thirty-seven Hundred and Twenty-five ($3725.00) Dollars to be paid as hereafter provided.
    “Said first party, agrees to convey to said second party, by good and sufficient Warranty Deed, the following described premises: (description omitted.)
    “Said first party, agrees to deliver said premises to said second party, free and clear of any encumbrances, liens or clouds of title, of whatsoever kind and nature, excepting the taxes for the last half of the year 1915, and thereafter, which said second party assumes and agrees to pay.
    “The purchase price is payable as follows: One Hundred ($100.00) Dollars cash in hand, receipt of which is hereby acknowledged by said first party, and the balance of Thirty-six Hundred and Twenty-five ($3625.00) Dollars on or before Thirty (30) days from the date of this contract.

      “Said first party agrees to furnish a certificate of title of said premises, in The Guarantee Title & Trust Company, or The Land Title Abstract Company, showing said premises to be as described above.
    “All screens and other permanent fixtures, on said premises, shall belong to said second party in consideration of this transaction.
    “This transaction shall be consummated in the following manner: Said first party, will deposit with The Guarantee Title & Trust Company, a Warranty Deed to the above described premises, and said second party will deposit with said Company, the balance of the purchase price, namely, Thirty-six Hundred and Twenty-five ($3625.00) Dollars, and when said company can certify title in said second party, the money deposited with the said company shall be turned over to said first party.
    “It is further agreed between said parties, that said second party shall pay the escrow charge of The Guarantee Title & Trust Company.
    “In witness whereof, we have hereunto set our hands this 14th day of July, 1915.
    “Jean Armstrong Gebbie,
    “Max EfrosA
    It is alleged in the petition that plaintiff in error wholly failed to comply with her agreement to convey to defendant in error the property described, free and clear of all incumbrances, liens or clouds of title, except the said taxes.

      It is further averred that plaintiff in error was then (at the time of the filing of the petition), and at all times had been, unable to convey title to said premises or to deliver said premises, to defendant in error free and clear of all incumbrances, liens or clouds of title, excepting said taxes, for the reason that ever since the 20th day of January, 1891, there had been a condition attached to the title to said premises, that no building be erected thereon to be used for business purposes of any kind, and' no building to be erected to cost less than one thousand dollars, and that a building erected thereon should • stand on the north side of said lot, leaving a sufficient space for a driveway on the south side of same, and to stand back at least twenty feet from the front fence line of said lot, and that said restriction upon the use of said premises constituted an incumbrance thereon which had not and could not be removed by plaintiff in error. It is further alleged in the petition that the fair market value of the premises free and clear of. incumbrances was $4,500, and that the defendant in error has suffered damage by reason of the premises in the sum of $875, in which amount he asked judgment against the plaintiff in error.
    A general demurrer to the petition was filed by plaintiff in error. The demurrer was sustained, and defendant in error not desiring to plead further his petition was dismissed and judgment was rendered against him for costs. Error was prosecuted to the court of appeals, and the judgment of the court of common pleas was reversed and the cause remanded to the latter court for further proceedings. Upon application of plaintiff in error the court of appeals was directed to certify its record to this court.

      Mr. R. J. Lamb, for plaintiff in error.

      Mr. Francis J. Wing, for defendant in error.
   Newman, J.

According to the terms of the contract, for the breach of which damages were sought, plaintiff in error was to deliver to defendant in error the premises described, free and clear of any incumbrances, liens or clouds of title, excepting the taxes for the last half of the year 1915, and defendant in error was to pay the purchase price as follows: $100 cash in hand and the balance on or before thirty days from the date of the contract. It was provided that the transaction should be consummated by plaintiff in error depositing with The Guarantee Title & Trust Company a warranty deed for the premises described and defendant in error depositing with said company the balance of the purchase price, the. money to be turned over to plaintiff in error when said company could certify title in the defendant in error. The $100 in part payment of the purchase price was paid by defendant in error on the 14th day of July, 1915, the day the contract was executed. Nothing further was done by him in the matter until he filed his petition asking damages. There is no allegation in the petition that he paid or offered to pay the balance of the purchase price. The sufficiency of the petition is challenged by demurrer. The question presented is whether the petition is defective because of the failure to allege that there had been a payment or tender of payment of the balance of the purchase price.

Counsel for plaintiff in error relies on Raudabaugh v. Hart, 61 Ohio St., 73, and the cases cited in the opinion in that case. The holding in the cited cases is in substance that in an action for damages, based upon the breach by the vendor of a contract to convey real estate, a petition which contains no allegations of payment or tender of payment of the purchase price as provided in the contract must be held bad on demurrer. In the Raudabaugh case it appeared from the petition that the defendant had not at the time of the making of the contract of sale, or afterwards, power or authority from the members of a certain partnership to sell all or any of the property in question. It is insisted by counsel that there was established in the Raudabaugh case the further proposition of law that an allegation of partial or total failure of the vendor’s title does not cure the defect in the petition, viz., the absence of an allegation of payment or tender of payment. But Spear, J., in the opinion says that for aught that is alleged the vendor could have acquired the title and could have completed the contract on his part had the plaintiff come forward with the money or given notice that he was able and ready to perform. In other words, there was no finding that the vendor was disabled from performing his part of the contract.

But the facts in the case under consideration, as disclosed by the petition, are different. Defendant in error predicated his right of action on the failure of the plaintiff in error to convey to him the real estáte in question free and clear of all incumbrances, liens and clouds of title, except taxes. It is alleged that plaintiff in error was and had been at all times unable to convey title to said premises or to deliver the same to defendant in error free and clear of all incumbrances, liens or clouds of title, excepting taxes, for the reason that ever since the 20th day of January, 1891, there had been a condition attached to the title to said premises, that no building be erected thereon to be used for business purposes of any kind, and no building to be erected thereon to cost less than $1,000, and that a building erected thereon should stand on the north side of said lot, leaving sufficient space for a driveway on the south side of same, and to stand back at least twenty feet from the fence line of the lot. It is then alleged that this restriction on the use of said premises constituted an incumbrance thereon which had not and could not be removed by plaintiff in error. This incumbrance of which defendant in error complained would seem to be a servitude in favor of the property of strangers, and no presumption would lie that it was within the power of plaintiff in error to extinguish the same. But be this as it may, it is expressly alleged that the incumbrance had not been and could not be removed, a controvertible fact, of course, but for the purposes of the demurrer to be taken as true. In other words, plaintiff in error was disabled from the performance of her part of the contract, in that she could not convey a title free of incumbrances.

It seems to be well settled that the rule relating to tender on the part of the purchaser is subject to the exception that a tender is unnecessary where it would be merely a useless ceremony, as where the vendor is clearly unable to perform his part of the contract; where, for instance, there is an incumbrance upon the property which he is unable to remove. See 39 Cyc., 2089, and the cases there cited. On page 2096 of the same volume, under the head of “Pleading,” in an action by a vendee against a vendor, it is stated that the complaint must show the performance on the part of plaintiff of the conditions precedent which the contract imposes upon him, but where performance is rendered unnecessary upon one of the grounds previously stated (which includes the one to which we have just referred), it is not necessary to allege a performance or tender on the part of the plaintiff if the facts or circumstances excusing the same are alleged and the allegations of the latter character are clear and explicit. We think the case under consideration here comes within the exception to the general rule. The facts excusing the tender on the part of defendant in error were alleged, and to us seem clear and explicit. As we have said, there was an incumbrance on the property which had not been and could not be removed by plaintiff in error.

It is suggested that defendant in error, having contracted to abide the opinion of the title company as to the validity of the title, had no right to refuse to perform, and sue for damages, merely because he believed that the title company would not certify that the title was clear. The allegations of the petition, for the purposes of the demurrer, must be taken as true, and in view of the fact that there was an incumbrance on the property, which co.uld not be removed, the title company could not and it is not to be presumed would certify a clear and unincumbered title.

Under the terms of the contract between the parties, the balance of the purchase price was to be paid within thirty days. The transaction was to be closed by plaintiff in error depositing the deed and defendant in error depositing the balance of the purchase price, a time certain being fixed for the performance of the contract by the parties. If plaintiff in error was unable, for the reasons set forth in the petition, to convey an unincumbered title to the real estate in question, she could not, as a matter of course, deposit a warranty deed, the instrument by which such, a title was to be conveyed, and her inability to do this was in effect a refusal to do so. It would have been an idle ceremony on the part of the defendant in error to pay or offer to pay the balance of the purchase price under such circumstances. The law does not require a useless act. It appearing that plaintiff in error was unable to give to defendant in error an unincumbered title to the property embraced in the contract, defendant in error was not required to pay or'tender payment of the balance of the pur7 chase money before he could maintain an action for damages.

Judgment affirmed.

Nichols, C. ]., Wanamaker, Matthias and Johnson, JJ., concur.

Jones and Donahue, JJ., concur in the judgment, but dissent from the syllabus.