author: Donahue, J.

text:
    O’Brien, Treasurer, v. The Physicians Hospital Association.

      Public charity hospital—Corporation not for profit—Evidence acceptable to show nature of organization—Property purchased with donated funds — Impressed with trust character — Reception of pay patients — Not to interfere with acceptance of indigents— Receipts cannot be diverted to private profit.

    1. A corporation, organized not for profit, may show by its charter, constitution and by-laws, or by oral evidence not inconsistent therewith, that'it is organized solely for the purpose of administering a public charity, the foundation of which is derived from private donations.

      2. Property purchased with funds donated for public charity is impressed with the trust character of the funds with which it was purchased, and neither the property itself nor the income derived from its use can be diverted to private profit.
    3. The trustee of real estate purchased with funds donated for a specific public charity, cannot lawfully use the property so purchased for purposes other than the administration of the trust imposed by the donors of the fund.
    4. Where funds are donated for the purpose of establishing and operating a public charity hospital, and the trustee of such funds purchases property therewith and uses the same for the purpose of a hospital, such hospital must be conducted as a public charitable hospital. 5. A public charitable hospital may receive pay from patients who are able to pay for the hospital accommodations they receive, but the money received from such source becomes a part of the trust fund, and must be devoted to the same trust purposes and cannot be diverted to private profit. (Taylor, Admr., v. The Protestant Hospital Assn., 85 Ohio St., 90, approved and followed.)
    6. A public charitable hospital cannot receive pay patients to such an extent as will exhaust its accommodations so that it cannot receive and extend hospital service to the usual and ordinary number of indigent patients applying for admission under proper rules and regulations adopted by the authority managing and controlling the operation of such hospital.
    (No. 15222
    Decided March 6, 1917.)
    Error to the Court of Appeals of Cuyahoga county.
    On the 15th day of January, 1915, The Physicians Hospital Association filed its petition in the common pleas court of Cuyahoga county, averring that it is a corporation not for profit; that it is the owner of certain described real estate situate in Cleveland, Cuyahoga county, Ohio, upon which premises it is operating and conducting a public hospital, known as “Grace Hospital,” as an institution of purely public charity only; that the same is exempt from taxation under the laws of Ohio; that the hospital maintains thirty-seven beds for patients and is open to the public to the extent of its facilities; that all moneys received by it are applied toward the discharge of its outstanding indebtedness and in the payment of current expenses and the advancement and promotion of the objects and purposes of its incorporation; and that the auditor of Cuyahoga county has, without authority of law, placed its property upon the tax duplicate, charged with $367.10 taxes 'and penalty, and delivered the duplicate to the defendant, P. C. O’Brien, treasurer of Cuyahoga county, who threatens to, and will unless restrained by the court, proceed to advertise and sell the same for the payment of the taxes illegally assessed against it and the penalty illegally charged thereon for nonpayment. The prayer of the petition is that the defendant treasurer be permanently enjoined from demanding and collecting from plaintiff said taxes and penalty, and enjoined from advertising and selling the property for the purpose of collecting the same; and for all other equitable relief.
    The defendant by answer admits his official capacity as treasurer of Cuyahoga county; that plaintiff is the owner of the property described in the petition; that there is charged against the property, upon the tax duplicate, the amount stated in plaintiff’s petition; and denies each and every other allegation in the petition contained.
    On November 3, 1915, the court of common pleas found on the issues joined in favor of the plaintiff, and permanently enjoined the defendant treasurer from demanding or collecting said taxes and penalty. Error was prosecuted to this judgment in the court of appeals, which court affirmed the judgment of the common pleas court, and this proceeding is brought in this court to reverse the judgment of the common pleas court and the judgment of the court of appeals affirming the same.

      Mr. Cyrus Locher, prosecuting attorney, and Mr. Frederick W. Green, assistant prosecuting attorney, for plaintiff in error.

      Messrs. Chapman, Howland, Niman & Younger, for defendant in error.
   Donahue, J.

It is shown by the articles of incorporation, and conceded by counsel for plaintiff in error, that The Physicians Hospital'Association was organized as a corporation not for profit, under the general corporation laws of this state. Neither the articles of incorporation nor the constitution adopted by the association show that the purpose of the organization is a public charity. The written by-laws were not admitted in evidence, but the oral evidence fairly establishes the fact that this hospital is conducted as a public hospital, open at all times to the public, regardless of color, and is at the service of any reputable physician of any school of medicine to the extent of its facilities, without limitation or discrimination as to the individual applicant — excepting cases of contagious disease and cases of mental disease requiring restraint, for the handling of which the hospital has no facilities, maternity cases not of emergency or surgical nature, and cases where it is suspected that the hospital is to be used to cover up criminal practices.

Where patients are financially able, they are required to pay $10 per week for ward beds, and from $15 to $35 per week for rooms, depending upon the number occupying a room, or the size, location, or desirability thereof, and whenever the doctor sending a patient to the hospital certifies that the patient is not able to pay anything no charge is made. Accident and other emergency cases are admitted without recommendation, regardless of the ability of the patient to pay.

It also appears from the evidence that the expenses of operating the hospital are largely in excess of the revenues derived from patients; that the physicians who are members of this corporation, and one other, donated the original fund necessary for the purchase and equipment of the hospital; and that since that time further donations have been made, for none of which certificates of stock were issued, nor can they be issued under the charter.

Taken in connection with this evidence, the petition of the plaintiff filed in this case — now a matter of public record, the truth of which can never be challenged by The Physicians Hospital Association— declares that this hospital is operated and conducted exclusively for charitable purposes. The trial court found these allegations to be true, and unless reversed by this court in this error proceeding that judgment becomes res adjudicata of the facts so found. Therefore, notwithstanding the indefiniteness of this charter and constitution, this corporation is forever estopped from denying its eleemosynary character, and can never divert its revenues from the purposes of public charity.

The state is fully authorized to enforce the execution of the trust involved in the gift of the foundation fund, according to the intention of the donors and the purposes of the organization, and prevent the diversion of its funds to private profit.

While it appears from the evidence that the physicians who are members of this corporation re- - ceive pay for the treatment of patients who are sent there upon their recommendation, where the patient is able to pay, this cannot affect the character of the institution itself. The hospital purports to furnish only hospital accommodation, and not professional treatment by physicians or surgeons. Whatever services are rendered indigent patients without charge is a matter of charity on the part of the physicians, who may or may not be members of the hospital association. Nor does the fact that a public charitable hospital receives pay from a patient for lodging and care affect its character as a charitable institution. Taylor, Admr., v. The Protestant Hospital Association, 85 Ohio St., 90.

There is no claim made in the pleadings that this corporation is a plan or subterfuge on the part of its promoters for the purpose of deriving profit under the guise of a charitable institution. That question could hardly be made in this case, but rather in a case brought by the state, or on behalf of the state, to revoke its charter, either for a fraud upon the state in procuring the charter to issue, or for an abuse of its corporate powers.

It further appears that this property is actually used by the defendant in error in the operation of its hospital. Under its charter, the allegations of its petition, the evidence in this case, and the finding and judgment of the court of common pleas, this property cannot lawfully be used by this corporation for a hospital other than a public charity hospital.

Where private property is temporarily used exclusively for purposes of public charity, it may be withdrawn from such use at any time at the will of the owner, but that cannot be done with the property in question. It was purchased with trust funds donated for the purposes of a public charity hospital, and is impressed with that trust. It cannot be withdrawn from the uses of this trust at the will of the trustee, or of any or all of the donors of the fund. The donors of this fund have parted .with all private ownership in the fund itself. They have no property interest in the fund, or the real estate purchased with the fund, and no rights whatever in relation thereto, except to compel the administration of the trust in accordance with the terms of the gift. The title to this property is in this corporation only as a trustee for the purposes of this trust, and it cannot divert it to any use other than public charity.

Every dollar received by this association from patients who are able to pay, or from other sources, immediately becomes impressed with the same trust, and cannot be diverted to private profit. This corporation can be compelled by a court of competent jurisdiction to administer this trust according to the intent and purpose of the donors of the fund, as found by the court of common pleas in this case; or, upon its failure to do so, it can be removed, and another trustee appointed who will properly administer the same.

It is true that this corporation is not compelled to use this property for hospital purposes. It may find the property inadequate for its needs, and purchase other property for the purposes, or it may find it unnecessary to occupy the entire property for a hospital, and may sell the same, or rent the whole or a part thereof, as may in its judgment be for the best interest of the trust; but the funds obtained from sale or rentals would still be trust funds, that could not be devoted to any purpose other than the purposes of the trust, although the property itself would no longer be used exclusively for public charity. If, however, it uses this property exclusively for hospital purposes, then such hospital must be a public charitable hospital, and as such its doors must open to those who are unable to pay, the same as they open to those who have the means to contribute further sums to this public charity commensurate in a degree at least with the hospital accommodations they receive.

The fact that it may receive pay patients, without losing its character as a public charitable hospital, does not authorize it to receive pay patients in such numbers as to exhaust its accommodations, so that it cannot receive and extend hospital service to the usual and ordinary number of indigent patients applying for admission under proper rules and regulations of the board of trustees — excepting, of course, the cases it has no facilities for handling as described and defined by the evidence in this case. The first concern of a public charitable hospital must be for those who are unable to pay. If, after taking care of these, it still has further accommodations, there can be no objection to making use of the same for pay patients in order to increase the fund which may be at its disposal for the benefit of the poor. It may be, however, that it cannot always nicely measure these demands. It is sufficient if it conforms its conduct along the lines of its experience as to the ordinary and usual demand made upon it by charity patients, provided always that it act in good faith and consistent with the purposes of its organization.

If this defendant in error fails in these particulars, the remedy is not by placing this property upon the tax duplicate, but by action to enforce a proper administration of the trust, or the revocation of its charter for abuse of its corporate franchise, and the appointment of another trustee to administer the trust.

The judgment of the court of appeals, affirming the judgment of the court of common pleas, is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: Newman, J.

license: Public Domain

text:
    The State, ex rel. Barbee, Executor, v. Allen, Probate Judge, et al.

      Power of probate court—To determine where will entitled to probate— Finding as to residence of testator — Judgment of court admitting will to probate — Though erroneous in law and fact — Cannot be reviewed by superior court — In prohibition proceedings.

    1. The probate court, vested by the constitution with jurisdiction in probate and testamentary matters and recognized as competent to decide on its own jurisdiction, has power to determine whether a will is entitled to probate and whether letters testamentary thereon shall issue.
    2. When, upon the hearing of an application for the probate of a will and for letters testamentary, the probate court finds that the testator at the time of his death was a resident of the county in which the application is made, an order or judgment of the court admitting the will to probate and issuing letters testamentary thereon, however erroneous the conclusions of law and fact upon which the judgment or order is based may be, cannot be reviewed or. set aside by a superior court in a proceeding in prohibition.
    (No. 15444
    Decided March 6, 1917.)
    In Prohibition.
    The relator is invoking the original jurisdiction of this court in prohibition. The matter is submitted upon a demurrer to the answer.
    On May 21, 1915, in a proceeding in the probate court of Franklin county, Ohio, John B. McLean was found to be a resident of that county and adjudged an imbecile and incapable of taking care of his property, and one Charles G. Saffin, Jr., was appointed guardian of his person and property and continued to be and act as such guardian until the death of McLean, which occurred May 26, 1916. It is alleged in the petition filed in this court that on January 12, 1916, without the consent or permission of his guardian, John B. McLean was removed to Fayette county, Ohio, by Mary F. McLean, his wife. The removal of McLean to Fayette county is admitted in the answer; it is denied, however, that such removal was without the consent or permission of the guardian, but it is averred, on the contrary, that the guardian consented to such removal, paid the necessary expenses thereof, and paid also the expenses of McLean while living in Fayette county, where he continued to live until his death.
    On May 27, 1916, a paper writing dated December 29, 1915, alleged in the answer to be the last will and testament of John B. McLean, and devising and bequeathing real and personal property situate in Fayette county, was offered for probate in the probate court of that county. On May 29, 1916, as required by law, notice of the application to probate said alleged will was served upon the widow and next of kin of the testator. A son and daughter of the decedent objected in writing to the jurisdiction of the probate court of Fayette county to entertain the application to probate said paper writing, upon the ground that John B. McLean was not at the time of his death a resident of Fayette county, but was a resident of Franklin county, Ohio. The objection was overruled, and on June 30, 1916, the instrument was admitted to probate as the last will and testament of John B. McLean, deceased. On the same day, R. G. Allen, the then probate judge of Fayette county, over the objection of the son and daughter of the testator, appointed the defendant Daniel McLean executor under said alleged will, and on July 31, 1916, letters testamentary were issued to said Daniel McLean. In error proceedings in the court of common pleas of Fayette county the order of the probate judge of Fayette county in admitting said alleged will to probate, and the order appointing Daniel McLean executor, were affirmed. It is admitted that error proceedings are now pending in the court of appeals of Fayette county to review the judgment of the court of common pleas.
    On May 31, 1916, a paper writing dated July 24, 1914, alleged in the petition to be the last will and testament of said John R. McLean, and devising real estate situate in Franklin county, was offered for probate in the probate court of Franklin county, and was admitted to probate July 31, 1916, over the written objections of Mary McLean, the widow, who challenged the jurisdiction of the probate court of Franklin county on the ground that a will of later date had been filed in the probate court of Fayette county, application made for the probate thereof, and notice served on the widow and next of kin as required by law, prior to the filing of said alleged will in the probate court of Franklin county. Letters testamentary were issued to the relator by the probate court of Franklin county on August 3, 1916, and he qualified as such executor. The said Mary F. McLean, widow, filed a petition in error in the court of common pleas of Franklin county to review the order and judgment of the probate court of Franklin county admitting said alleged will to probate, and said matter has been submitted to said court of common pleas.
    It is alleged in the petition for writ of prohibition that by reason of the illegal and unauthorized acts of Rell G. Allen, former probate judge, in admitting said pretended will to probate in Fayette county and in issuing letters testamentary thereon; that by reason of the unauthorized act of the defendant Frank M. Allen, present probate judge, in attempting to exercise jurisdiction over the administration of the estate; and that by reason of the defendant Daniel McLean pretending to act as executor under an illegal and invalid appointment, the jurisdiction of the probate court and the probate judge of Franklin county is interfered with and the relator is interfered with and prevented from performing his duties as such executor. It is further alleged that the guardian refuses to settle with and to turn over to relator the personal estate of said John B. McLean.
    The prayer of the petition is that a writ of prohibition issue directed to the defendant Frank M. Allen, probate judge of Fayette county, forbidding him as such probate judge and probate court further to exercise jurisdiction over said estate or to take further proceedings in said matter; and also directing that the record of said probate court in said matter be quashed, that the said letters so issued to said Daniel McLean be canceled and held for naught, and that the order admitting to probate in Fayette county the pretended last will and testament of John B. McLean be canceled and held for naught.

      Mr. M. R. Patterson; Mr. Tom S. Maddox and Mr. H. H. McMahon, for relator.

      Messrs. Gregg, Patton & Gregg; Mr. E. G. Lloyd and Mr. O. H. Mosier, for defendants.
   Newman, J.

The plaintiff is asking that a writ of prohibition issue. The jurisdiction of the probate court of Fayette county in the probate of the will of John B. McLean and in the issuing of letters testamentary thereon is challenged. The probate courts of this state are courts of record and have jurisdiction in probate and testamentary matters. (Sections 7 and 8, Article IV of the Constitution.) It has.been held repeatedly that these courts are in the fullest sense courts of record, belonging to the class whose records import absolute verity, and competent to decide on their own jurisdiction. They have full jurisdiction to adjudicate all questions arising in proceedings properly before them. In the hearing of an application to probate a will a probate court has jurisdiction to fully and finally determine all questions involved in.the application, including that of the domicile of the testator, and the judgment of the court is protected by the same rule as to collateral attack as other judgments of courts of record. Wilberding, Admr., v. Miller et al., 90 Ohio St., 28.

On May 27, 1916, a paper writing dated December 29, 1915, purporting to be the last will and testament of John B. McLean, was offered for probate in the probate court of Fayette county. The application for probate contained allegations of-facts sufficient to establish the jurisdiction of the probate court, among which was the allegation that McLean was a resident of Fayette county. Notice was served upon his widow and his next of kin, as required by Section 10507, General. Code. Two of the next of kin of McLean contested the jurisdiction of the probate court of that county to entertain the application for probate. This they had the right to do under Section 10520, General Code, which gives to any person interested in the probate of a will the right to contest the jurisdiction of the court to entertain the application. The challenge to the jurisdiction was based upon the ground that McLean was not at the time of his death a resident of Fayette county, but was a resident of Franklin county, the claim being that McLean, on May 21, 1915, had been adjudged by the probate court of Franklin county to be a resident of Franklin county and an imbecile, that a guardian had been appointed of his person and property, that said order and judgment had remained in full force and effect until McLean’s death, and that his residence in Franklin county therefore had been unalterably fixed.

The proceeding in Fayette county which .had to do with the probate of the will and the issuing of letters testamentary thereon was one properly before the court and within its constitutional jurisdiction. That court, under the authority of Wilber ding, Admr., v. Miller et al., supra, had power to determine the question of jurisdiction. Counsel in elaborate and exhaustive briefs and in oral argument have discussed the effect of the adjudication as to the residence of McLean in the guardianship proceeding in the probate court of Franklin county, and the question whether or not the residence could be changed by any act of the ward. But the probate court of Fayette county, having jurisdiction of the subject-matter, had the right to and it was its duty to inquire into the matter of the residence of McLean. This was a jurisdictional fact which that court had the power to determine. It may have been erroneous in its decision, but, as was held in The State, ex rel. Garrison, v. Brough et al., 94 Ohio St., 115, followed in Kelley, Judge, v. The State, ex rel. Gellner, 94 Ohio St., 331, the writ of prohibition cannot be made to serve the purpose of a writ of error to correct mistakes of a lower court in deciding questions of law within its jurisdiction. In the Kelley case, the relatrix based her action for a writ of prohibition upon two grounds, one of which was that the insolvency court of Hamilton county was without jurisdiction in a certain divorce proceeding, for the reason that the plaintiff in that proceeding had not been a resident of the state of Ohio for one year next preceding the filing of the petition. What is said in the opinion in that case in reference to the residence of the plaintiff in the divorce proceeding applies to the matter of residence in the instant case. It is said, at page 341:

“Whether or not the plaintiff in the divorce proceeding had been a resident of the state one year prior to the time of filing his petition for divorce was a question of fact about which there might be, and in this case apparently was, some dispute. In all cases where an inferior court has jurisdiction of the matter in controversy and keeps within the limits prescribed by law for its operation, the superior court should refuse to interfere by prohibition, and it should not consider whether the court below erred in the exercise of its powers, since it has nothing to do with the correctness of the rulings of the inferior court but only with its exercise of jurisdiction.”

It is to be noted that in the application for probate filed in the probate court of Fayette county there was a statement that McLean had an estate in that county, and it is urged by counsel for the defendant that that fact, under the provisions of Section 10511 et seq., General Code, would authorize the probate of the will in that county, although McLean had not been a resident thereof. Counsel for relator, however, say that Section 10511 became a law October 1, 1840, while Section 10604, which provides that upon the death of an inhabitant of this state letters testamentary shall be granted by the probate court of the county in which he was an inhabitant or resident at the time he died, did not become effective until November 1st of -that year, and that Section 10511, in so far as it authorizes the original probate of the will of a deceased inhabitant of this state in any county other than the county of last residence, being absolutely inconsistent with the provisions of Section 10604, was repealed by Section 10604. But, in our view of the case, it is unnecessary to consider the question here, for it appears that upon the hearing of both the application for probate and the application for letters testamentary there was a finding by the probate court that McLean was a resident of Fayette county. When this finding was made and the other statutory requirements were complied with the court was authorized to admit the will to probate and issue letters testamentary thereon. It may have been erroneous in its decision, but the person aggrieved had an adequate remedy at law to correct the error. Section 10521, General Code, provides that the decision of the probate court as to its jurisdiction may be reviewed on error, and plaintiff in this case prosecuted error to the court of common pleas where the judgment of the probate court was affirmed. It appears that an error proceeding is now pending in the court of appeals of Fayette county to review the judgment of the court of common pleas. If the judgments of the probate court of Fayette county in admitting the paper writing to probate and in issuing letters testamentary thereon were erroneous, it is to be presumed that these judgments will be reversed.

Again, in this proceeding we are concededly not concerned with the question whether the paper writing admitted to probate by the probate court of Fayette county was or was not the last will and testament of John B. McLean, or whether or not he was competent to make a will on December 29, 1915, while the adjudication of imbecility was in full force and effect and while he was under guardianship. That qttestion, of course, can be determined in an independent action to contest the will. To conclude, if the judgment of the probate court of Fayette county was based upon erroneous conclusions of law or fact, it was subject to attack in a proceeding in error. It cannot be reviewed or set aside in a proceeding in prohibition.

Writ refused.

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


author: Wanamaker, J.

text:
    Kelley et al. v. Hazzard et al.

      Making, probating and contest of wills — Statutory control — Right of contest not forfeited by previous acceptance, when — Misrepresentation by executor—Tender back of legacy before trial — Sufficiency of estoppel against will contest.

    1. In Ohio the making, probating and contesting of wills is controlled by the statutes.
    2. Where an action to contest a will is begun within the statutory period, the right to maintain such action is not forfeited by the fact that the party plaintiff consented in writing to the probating of the will and accepted a legacy thereunder, where such consent and acceptance were induced by false and fraudulent representations as to the amount of the estate and the testamentary capacity of the testator, made by the executor under the will with the intent of inducing the legatee to abide by the will.
    3. Tender back of such legacy is not a condition precedent to bringing an action to contest a will. Tender back at any time before trial is sufficient.
    4. A plea of estoppel against such will contest, setting forth the consent to the probate of the will, the payment of the legacy and retention of the same, is not sufficient in law as a defense. In order to constitute an estoppel it is necessary that the representations made by conversation or conduct were relied upon resulting in a course of action which should not now in good conscience be disturbed.
    (No. 15207
    Decided March 6, 1917.)
    Error to the Court of Appeals of Knox county.
    The facts are stated in the opinion.

      Mr. Frank Moore; Mr. Columbus Ewalt and Messrs. Douglass & Hutchison, for plaintiffs in error. .

      Mr. L. C. Stillwell and Mr. Robert L. Carr, for defendants in error.
   Wanamaker, J.

On May 4, 1910, the will of Margaret Hartman was duly probated in the probate court of Knox county, Ohio.

On August 12, 1911, Elizabeth Hazzard, a niece of said Margaret Hartman and a legatee under her will, filed her petition in the court of common pleas of Knox county to contest the validity of said will.

One of the defendants, James A. Kelley, as one of the legatees and as executor, of said will, filed an answer. He pleaded that said Elizabeth Hazzard was estopped from contesting said will, because, first, she consented in writing to its probate, and, second, she accepted and has retained the legacy provided for her in the will.

Elizabeth Hazzard filed a reply, admitting that she had heard the will read and consented in writing to its probate; that she accepted her legacy and receipted for the same; and that she still retains it.

By way of avoidance, she further pleaded that she was not aware of the real conditions of the will; that she was misled by the false representations of James A. Kelley concerning the amount of the estate and the condition of her aunt’s mind; that she tendered back the legacy with interest, on January 24, 1913, after becoming aware of the true condition of the estate and the facts and circumstances surrounding the execution of the will; that the amount of the estate was more than $12,000, and that if said testatrix had died intestate plaintiff would have inherited more than one-half of the same; and that “she now stands ready and willing and offers to pay into court or to said Executor the full amount of said legacy of $800.00 with interest thereon, or is willing to allow said sum as a credit upon the share she is entitled to receive of said estate.”

The defendant James A. Kelley filed a motion in the court of common pleas for judgment on the pleadings, which motion was sustained.

The court of appeals upon error reversed the judgment of the court of common pleas.

Error is now prosecuted to this court for the reversal of the judgment of the court of appeals.

The sole question is upon the pleadings, and boiled down resolves itself into this query: Did Elizabeth Hazzard, by her conduct, estop herself from contesting the will of her aunt, Margaret Hartman ?

The estoppel charged against said Elizabeth Hazzard, whereby it is urged that she forfeited her right to contest the will, is what is known as estoppel in pais, or estoppel by conduct. It is sometimes referred to as equitable estoppel.

Numerous definitions have been given in which more or less loose legal language has been used, tending to confuse rather than clear the fundamental elements of estoppel. Sometimes it has been referred to as a rule of evidence; sometimes a rule of pleading; sometimes a rule of substantive law.

No matter how it may be technically regarded, at the bottom it is a rule administered by courts in the interest of substantial justice. It declares in brief that where one has, by conversation or conduct, induced another to take a certain course of action, either affirmative or negative, to his benefit or- prejudice, said first party will not in good conscience and natural justice be permitted to subsequently, by conversation or conduct, declare the contrary. He is now stopped or prevented from doing the contrary to what he had theretofore done, upon which another party relied, and had good cause to rely, to his pecuniary benefit or prejudice.

Now, what did Elizabeth Hazzard say or do that wrongfully influenced or misled James A. Kelley, either personally or as executor, touching his conduct with reference to the will or estate of Margaret Hartman ?

It is said that Elizabeth Hazzard consented in writing to the probate of the will; that she accepted the legacy under the will; and that, at the time of bringing the action, and for the full two-year period provided by the statute, she retained said legacy. But there is no allegation anywhere in the pleading declaring any prejudice or damage thereby to James A. Kelley or the estate of Margaret Hartman.

It is not pleaded that the estate has been settled; it is not pleaded that Elizabeth Hazzard has spent her legacy and is insolvent, and, therefore, is unable to account for the same. In short, there is not a single averment anywhere in the pleading, counted essential to invoke the right of estoppel, which doctrine, being more or less of a forfeiture, is not favored by the law.

If, however, there be any estoppel in this case, as set forth by the pleadings, it is quite apparent that the shoe is on the other foot, for Elizabeth Hazzard squarely pleads that she was, upon the death of Margaret Hartman, a resident of West Virginia, and had been for some time; that she was unacquainted with the amount of Margaret Hartman’s estate, or as to her testamentary capacity at the time of the making of the will, and that she depended upon the information and representations imparted to her by James A. Kelley; that James A. Kelley falsely and fraudulently represented to her both the amount of the estate and her aunt’s capacity to make a will; that she relied on said representations made by Kelley, which he knew to be false and fraudulent and which were made to Elizabeth Hazzard with the intent to deceive her; and that after learning of the true condition, both as to the estate and the testamentary capacity of Margaret Hartman, she brought the suit and subsequently tendered back the money with interest.

This also falls short of the requirements of estoppel, but approximates it more nearly than the allegations of the defendant Kelley. The tender back was not made until more than two years had elapsed from the date of the probate of the will. Did she forfeit her rights under the statute to contest the will ?

As we have already seen, there is no estoppel pleaded in this case, and forfeitures are not favored in the law, especially where injustice may result.

The statute fixes the time within which an action to contest a will may be brought. Within that statutory period the action was brought. The failure to tender back within the two-year period did not forfeit Elizabeth Hazzard’s right to contest the will..

But it is urged that even if there be no estoppel, it was Elizabeth Hazzard’s clear duty to tender back the legacy before she began her suit, or at least before the expiration of the two years from the probate of the will.

We have already reviewed the circumstances under which this legacy was accepted by Elizabeth Hazzard. She pleads that it was upon the false and fraudulent representations of James A. Kelley; and, for the purposes of the motion and the review thereof, this allegation must be considered as true.

Courts have generally held, and soundly so, that the rule of tender back as to wills does not apply where a, per son acted in ignorance of the will, the amount of the estate, or the testamentary, capacity of the testator, and was induced so to act by the false and fraudulent representations of the executor. Page on Wills, Section 326, and Watson v. Watson, 128 Mass., 152.

There is, however, another well-settled exception to a tender back, and that is where the party chargeable with the tender would, in the event of his prevailing in the suit, receive at least as much as he now has in his possession; for, in such an event, no tender is necessary, as no harm can come either to the estate or to any interested party.

It is urged, however, that there may be in existence other instruments which may later be found to be the last will and testament of said Margaret Hartman in the event that the present probated will shall in the contest proceedings be held for naught, and that, therefore, it cannot be said that Elizabeth Hazzard will, in the event of her success in the contest proceeding, be entitled to as much as or more than she received as a legacy under the will.

This contention is entirely too speculative. More than six years have elapsed since the probating of the will in question, and there is nowhere in the record even a suggestion that there is another paper writing purporting to be such will. And even so, how could it be claimed that Elizabeth Hazzard would not be a beneficiary under such will for an amount equal to the amount of the legacy in the present will? These suggestions only show the remoteness and irrelevancy of the contention. It is not well taken.

The rules of law have as their primal and paramount purpose the working out of justice. If no injustice can result from following a given course, there is neither rhyme nor reason in preventing any person from pursuing his statutory rights through his statutory remedies. Certainly when rules of law are presumably intended to promote justice no good reason can be given as to why a rule of law should be applied to prevent justice.

The question here is, was this the last will and testament of Margaret Hartman ?

That question is still unsettled. The issue, however, is properly raised in the pleadings.

The judgment of the court of appeals remanding the cause to the court of common pleas for trial upon that issue is hereby affirmed.

Judgment affirmed.

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


author: By ti-ie Court.

text:
    The Christ Diehl Brewing Co. et al. v. Schultz, Treasurer.

      Action by county treasurer—To enforce lien for taxes—Petition and evidence of unpaid taxes — Sections 2667 and 2669, General Code — Interpretation of ambiguous statute — Remedy for unintentional repeal of statute — Section 6085, General Code.

    (No. 15318
    Decided March 6, 1917.)
    Error to the Court of Appeals of Henry county.

      Messrs. H. & R. Newbegin and Messrs. Donovan & Donovan, for plaintiffs in error.

      Mr. George S. May; Mr. R. W. Cahill and Mr. T. A. Conway, for defendant in error.
   By ti-ie Court.

Where an action is brought by a county treasurer under favor of Section 2667, General Code, to enforce a lien for taxes or assessments charged against lands or lots or parcels thereof upon the tax duplicate, and the petition contains the allegations specified in Section 2669, General Code, such allegations must be sustained by proof that the lands or lots or parcels described in the petition stand charged, upon a tax duplicate authorized by law, with the taxes and assessments sought to be recovered.

If the language of a statute is ambiguous and its meaning doubtful, a court in construing such statute will endeavor to ascertain and give effect to the intent of the lawmaking body which enacted it; but when the language employed is clear, unambiguous, and free from doubt, it is the duty of the court to determine the meaning of that which the legislature did enact, and not what it may have intended to enact.

Where an existing statute is specifically repealed, a court will not inquire whéther the legislature intended its repeal. If it be true that a statute was unintentionally or inadvertently repealed, the remedy .is by legislative action, and not by judicial declaration that the general assembly has done that which it did not intend to do. Slingluff et al. v. Weaver et al., 66 Ohio St., 621, approved and followed.

Section 6085, General Code, having been specifically repealed by the act of May 31, 1911 (102 O. L., 291), the tax duplicate offered in evidence by the treasurer to support the allegations of his petition was not, authorized by law, and can have no probative force or effect.

The judgments of the court of appeals and of the common pleas court are reversed, and judgment for plaintiff in error.

Judgments reversed.

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


author: By the Court.

text:
    Porter v. The Trustees of The Cincinnati Southern Railway.

      Compensation for legal services — Contract by railway corporation board — For services at fixed amount — “Subject to the will and pleasure of the board” — Action required by board for additional allowance — Public officials forbidden by public policy — To add to sum named in contract, when.

    (No. 15357
    Decided March 6, 1917.)
    Error to the Court of Appeals of Hamilton county.
    The facts are stated in the opinion.

      Mr. Rufus B. Smith, for plaintiff in error.

      Mr. J. W. Peck, for defendants in error.
   By the Court.

This was a proceeding brought in the superior court of Cincinnati by The Trustees of The Cincinnati Southern Railway, defendants in error, in which they sought a decree fixing the amount of compensation due Washington T. Porter, plaintiff in error, for certain services rendered to them, which are referred to in the petition. They prayed that on the payment of the amount so fixed, the defendant be required to release and discharge the plaintiffs from all claim and demands by reason of such services.

The pleadings in the case are quite voluminous, and it is unnecessary to set them out in detail.

It is conceded that the defendant was asserting a claim against the plaintiffs for $25,000, as fees for services rendered by him as attorney in certain appropriation proceedings, and in matters connected therewith, which proceedings were brought by the plaintiffs pursuant to a statute passed in 1898, which authorized an expenditure of $2,500,-000 to secure certain necessary terminals.

The answer of the defendant sets forth at length, and in detail, the particular services rendered by him, and there is no substantial dispute with reference to that feature of the case.

It is conceded that payments aggregating the sum of $7,100 have been made to Mr. Porter on account, and that the trustees fixed the amount to be paid him for all services rendered to them by him as attorney at $8,150. This action by the trustees was taken pursuant to the claim made by them that they were empowered to fix the compensation by reason of the resolution of the board by which Mr. Porter was employed, as follows: “Ordered that W. T. Porter be and he is hereby appointed attorney for the board at a compensation of $50.00 per month subject to the will and pleasure of the board both as to term of service and rate of compensation.” A vast amount of testimony was taken on the trial of the case in the superior court and a voluminous record made.

The trial court found that the defendant had been employed by the plaintiffs as attorney “at a compensation of fifty dollars per month” and such additional compensation as might .be fixed by the board; that on January 30, 1905, the board fixed the compensation of the defendant at $6,050 in addition to $2,100 theretofore paid defendant on account; and that on May 7, 1908, there was paid on account, without prejudice to the rights of the parties, $5,000. The court further found that there was due the defendant the sum of $1,050, being the balance of the amount allowed by the board, with interest to July 1, 1912, and ordered its payment.

This judgment was affirmed by the court of appeals and by this proceeding the plaintiff in error seeks to reverse the judgments of the courts below.

The contention of the defendants in error, which has been upheld, is that the board of trustees had final and conclusive power to fix the amount to be paid for Mr. Porter’s services; and that the courts cannot inquire into the question concerning the reasonableness of the action of the board. Considerable testimony was offered by Mr. Porter, which tended to prove that the value of the services which it is conceded that he rendered was very much more than the sum fixed by the board. It is his contention that he is entitled to be paid the reasonable value of those services. He necessarily contends that the action of the board of trustees is not final and does not conclude his rights. Therefore, it is at once seen that the important question in the case is, Did the order of the board, under which Mr. Porter was employed, give it the sole authority to determine the amount of his compensation and also to determine that the services in the condemnation cases were rendered pursuant to that resolution? If so, the judgments below should be affirmed; and, if not, they should be reversed.

As is well known the Cincinnati Southern railway is owned by the city of Cincinnati, and is operated by a corporation to whom it is leased. It was constructed pursuant to certain statutory enactments beginning in 1869. After the railway had been put into operation it was discovered that sufficient terminals had not been provided. Subsequently the statute of 1898 was passed, by which the trustees were authorized to borrow $2,500,000 to be used in the construction of terminals, under the terms and safeguards provided in the act. In carrying out the plan, a number of condemnation suits were brought, and property secured thereby, which required an expenditure of about $1,500,000. It is conceded that a very large part of the labor connected with these matters was entrusted to and performed by Mr. Porter, and these are the services for which the trustees sought to have compensation fixed in this proceeding.

It is conceded that for many years prior to the events above related, Mr. Porter had been in the employ of‘the board as its attorney, sometimes at $50 a month, and for a while at $100 a month. The order above set out was made April 18, 1894, when Mr. Porter returned to the service of the board after an absence of several years. In considering the resolution of 1894 it must be conceded that it is not clearly drawn. The language is: “W. T. Porter be and he is hereby appointed attorney for the board at a compensation of $50.00 per month subject to the will and pleasure of the board both as to term of service and rate of compensation.” However, there is one thing that is clear, viz., the initial employment at a fixed compensation of $50 per month. Then follows the provision “subject to the will and pleasure of the board both as to term of service and rate of compensation;” that is, the board might at any time terminate the employment or it might at its “will and pleasure” continue the employment and change the “rate of compensation.” If it terminated the employment that would be an end of the matter. If it changed the rate of compensation, it would be incumbent upon the board to give expression to its “will and pleasure” by a resolution or order equally formal, and equally well authenticated, and made before any services were rendered under the changed’ rate. Without some action of that nature by the board it would not have authority to make allowances to Mr. Porter for any services rendered pursuant to the resolution in addition to the $50 a month, because, as to compensation, unchanged by the “will and pleasure” of the board, the amount is definitely fixed at $50 per month.

We think that sound public policy forbids that public officials should be permitted to definitely fix a certain sum to be paid for services to be rendered to the public, and at the same time reserve to themselves the arbitrary power to add to the sum named in the contract after the services are rendered. We think there is much in the contention of counsel for the plaintiff in error that this would open the door to favoritism and fraud.

It is said in 9 Cyc., 481: “It is not easy to give a precise definition of public policy. It is perhaps correct to say that public policy is that principle of law which holds that no person can lawfully do that which has a tendency to be injurious to the public or against the public good, which it may be designated, as it sometimes has been, the policy of the law or public policy in relation to the administration of the law. * * * The test is the evil tendency of the contract and not its actual injury-to the public in a particular instance.”

We think, therefore, that the courts below were in error in holding that the board had the conclusive right under the resolution of 1894 to determine the question of additional compensation after the work is done.

Now, it is the contention of Mr. Porter that the services rendered by him in the condemnation proceedings were not rendered pursuant to the resolution of 1894 and that that resolution had no relation to those services.

The decisive question in the case is, Were the services for which compensation is now claimed rendered in pursuance to the resolution in question ?

It is contended by Mr. Porter that his labors were so onerous and exacting, and the responsibility in connection with them so great and important, as to conclusively indicate that the services were not .rendered pursuant to a resolution which provided for the payment of $50 a month; and, further, that the parties themselves thus treated the entire subject. The trustees made payments to Mr. Porter which were in excess of $50 a month, and he contends that this was such a practical construction placed upon the transaction by the parties themselves as to be entitled to great weight in determining whether the services here in question were rendered under the order in question.

We think that the learned courts below were in error in holding that the resolution of the board adopted in 1894 was conclusive of these matters and gave the board conclusive authority to fix the value of the services.

The defendant below should have been permitted to show, if he could have done so by legal testimony, that the services in question were not rendered pursuant to the resolution in question, and, if they were not, should have been permitted to prove the value of those services.

For these reasons the judgments below will be reversed.

Judgments reversed.

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


text:
    Szalkai v. The State of Ohio.

      Evidence — Shooting with intent to kill — Plea of self-defense — Not available where defendant provokes assault—Admissibility of testimony as to character of prosecuting witness — Criminal law—Charge to jury—Trial practice.

    (No. 15376
    Decided March 6, 1917.)
    Error to the Court of Appeals of Lucas county.
    Facts are stated in the opinion.

      Messrs. Graves & Stahl, for plaintiff in error.

      Mr. J. C. D’Alton, prosecuting attorney, and Mr. Nolan Boggs, for defendant in error.
   By the Court.

The plaintiff in error, Alex • Szalkai, was tried in the common pleas court of Lucas county and found guilty of the charge of shooting with intent to kill. A motion for a new trial having been overruled, penitentiary sentence was imposed, and the judgment of the common pleas court was thereafter affirmed by the court of appeals.

The trial court excluded testimony offered on behalf of plaintiff in error, the defendant below, in substance that Demecs, the prosecuting witness, had assaulted one Czejedy with a knife and inflicted several cuts upon his person; that the defendant Szalkai was not present when Demecs injured Czejedy; but that prior to the affray in question in this case the defendant was told by Czejedy that Demecs had cut him.

The rule laid down by this court in the case of The State of Ohio v. Roderick, 77 Ohio St., 301, is conclusive upon the proposition that such evidence is not admissible. In that case the defendant was permitted to prove the conduct of the deceased on other occasions, as indicating his actual character, and then was permitted to show that he had learned of those instances prior to his own affray with the deceased, in order to show the state of mind under which he, the defendant, acted. The court there held that such evidence was incompetent and sustained exceptions presented by the state, laying down the rule which should govern in such cases, and we have no inclination to disapprove that decision.

Demecs, the prosecuting witness in the instant case, testified that about three or four months previous to the shooting in question the defendant had drawn a revolver on him and threatened to shoot him, but had dropped his gun, which was picked up by his wife, and that he, Demecs, then went away. In the general charge the court instructed the jury as follows:

“In examining the facts, gentlemen, you will also consider that a man threatened with serious injury or bodily harm cannot avail himself of the defense of self-defense if he by his own unlawful conduct has created the danger himself with which he is threatened. Thus: when he provokes arid brings upon himself an attack by assailing another he cannot justify himself for killing or injuring his adversary on the ground that he, the assailant, was in danger of injury or serious bodily harm.”

There can be no question as to the competency of the testimony relative to the prior altercation, for the purpose of showing the enmity then existing and the feeling of Szalkai toward Demecs, and presumably it was offered for that purpose. The competency of this evidence, is not challenged, but counsel for plaintiff in error urge that the portion of the charge just quoted, though a correct statement of the law, by reason of the testimony with reference to a former altercation, probably caused the jury to understand that if the defendant committed an assault upon a previous occasion he would not be entitled to the benefit of the defense of self-defense in this case. The record shows an irreconcilable conflict in the testimony of the various witnesses as to which one of the parties to the actual affray made the first assault, and it was therefore the duty of the court to instruct the jury substantially as stated above. (Stoffer v. The State of Ohio, 15 Ohio St., 47.) It is not apparent from the language used by the court that reference was thereby made to the previous occurrence testified to by Demecs. If there was any question about that, counsel for defendant should have availed themselves of the opportunity to secure a further instruction limiting the effect and application of the evidence as to the prior assault, and a further instruction, if it seemed necessary, that even if an assault had been made by the defendant upon a previous occasion that fact would not deprive him of the right of defending himself against a subsequent assault by the prosecuting witness. The instruction given was not only not prejudicial but was free from error.

The accused admitted having shot Demecs and sought to justify the act upon the ground of self-defense. That was the real issue upon which the case went to the jury. The burden of proving that the shooting was excusable upon such ground rests upon the defendant and must be established by a preponderance of the evidence. (Silvus v. The State, 22 Ohio St., 90; Weaver v. The State, 24 Ohio St., 584; The State v. Sappienza, 84 Ohio St., 63, 71, and The State v. Vancak, 90 Ohio St., 211, 214.) The charge of the court on the subject of self-defense follows the rule laid down in those cases. The language employed, though in some respects unhappily chosen, does not appear, when considered with the remainder of the charge and the entire record of the case, to have placed upon the defendant any improper burden or resulted to his prejudice.

The judgment of the court of appeals is therefore affirmed.

Judgment affirmed.

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


text:
    The Neave Building Co. v. Roudebush, Admr.

      Death caused by alleged, negligence of employer—Fall of window washer from sill—Question of negligence per se—Violation of municipal ordinance — Weight of evidence—Proximate , cause of accident — Instructions to jury.

    (No. 15387
    Decided March 6, 1917.)
    Certified by the Court of Appeals of Hamilton county.

      Messrs. Robertson, Buchwalter & Oppenheimer, for plaintiff in error.

      Mr. Louis B. Sawyer; Mr. William A. Roudebush and Mr. George W. Welch, for defendant in error. “
   By the Court.

Defendant in error, William A. Roudebush, as administrator, brought an action in the court of common pleas of Hamilton county to recover damages on account of the death of Clarence Henson, alleged to have been caused through the negligence of the plaintiff in error. The cause was tried to a jury and resulted in a verdict for the defendant in error. A motion for new trial was overruled, judgment was rendered on the verdict, and this judgment was affirmed by the court of appeals. The record of the case was certified to this court for review and final determination for the reason that the judgment upon which the court of appeals of Hamilton county had agreed was in conflict with the judgment pronounced upon the same question by another court' of appeals of this state.

Plaintiff in error owned, managed and" controlled an eleven-story office building in the city of Cincinnati, known as the Neave Building. Defendant in error’s intestate, Clarence Henson, was employed by plaintiff in error as a window washer. In the performance of his duties, according to the allegations of the petition, it became necessary to wash and clean the windows of the building on the outside, and on the 6th day of January, 1911, while washing a window on the third floor of the building, Henson fell from the window to the sidewalk below receiving injuries from the effects of which he died a few hours later. It was alleged in the petition that at the time of the injury the window sills of the building were covered with snow, which made the cleaning of the windows very difficult and dangerous, and that notwithstanding said condition Henson was ordered to wash them. It was alleged in the petition that plaintiff in error negligently failed to comply with the provisions of Section 505 of the ordinances of the city of Cincinnati, as follows: “In every fireproof or semi-fireproof building now in existence or hereafter erected every window above the second story thereof shall be equipped with a suitable device which will permit the cleaning of the exterior of such windows without endangering life and limb. Provided, however, that such device need not be placed on any window that can be easily cleaned from within.”

It was further alleged that plaintiff in error failed to provide in any manner for the safety of defendant in error’s intestate while engaged in said dangerous occupation, or to provide any safety device whatever to prevent injury to him, and, further, that it failed to employ a sufficient number of men to clean its windows and elevator so as to give defendant in error’s intestate sufficient time to carefully clean its windows on the outside. Plaintiff in error in its answer denied that it failed to comply with the provisions of the ordinance referred to and denied further all carelessness and negligence on its part.

It is claimed by plaintiff in error that there was no evidence as to the cause of the mishap or the manner in which Henson met his death. It is unquestionably true that the death was due to a fall. The jury in answer to an interrogatory given at the request of plaintiff in error found specially that Plenson fell from the window in attempting to clean the window while standing on the outside. We have examined the record and there was evidence tending to show that Henson met his death in the manner found by the jury. Whether this finding was against the manifest weight of the evidence was a question properly before the lower courts for determination. Both the common pleas and court of appeals refused to disturb the verdict and judgment, and this court does not determine as to the weight of the evidence.

It is urged that the trial court erred in charging that failure to comply with Section 505 of the ordinance of Cincinnati constituted negligence per se. At the request of the defendant in error, the trial court, before argument, charged the jury that if it found from the evidence that the defendant (plaintiff in error) did not comply with the provisions of the ordinance introduced in evidence, and that the windows could not be easily cleaned from within, and that Henson fell from a window above the second story of the building, and that the failure of defendant to comply with the ordinance was the proximate cause of his death, its verdict must be for plaintiff (defendant in error). In its general charge the court used practically the same language, and instructed the jury further, that, if it should find that the window could be easily cleaned from within, the ordinance did not apply so far as it required the use of the suitable device mentioned in the ordinance. We find no error in either the special request or in the general charge on this proposition. We think it is in accord with the holding of this court in Schell v. DuBois, Admr., 94 Ohio St., 93. Whether or not the window in. question could be easily cleaned from within, whether there was a violation of the ordinance, and whether such violation, if any there was, was the proximate cause of the death of Henson, were questions of fact properly submitted to the jury. The general verdict of the jury may have been based upon the violation of the ordinance, and it cannot be said that there was no substantial evidence tending to show that there was a violation of the ordinance and that such violation was the proximate cause of the death of Henson. In view of our holding as to the ordinance, it becomes unnecessary to consider the other assignments of error.

Judgment affirmed.

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


text:
    The State, ex rel. The A. Bentley & Sons Co., v. Pierce, Auditor.

      Statutory limitations on expenditure of money — By officer or board on public work — Court no right to construe express language of law, when—Doubt as to power resolved in favor of public — Disposition of earnings of county moneys — Powers of county commissioners.

    1. Where the statute places an express limitation upon the amount of money to be expended on any public work, by any officer, or board, the contractual power of such officer, or board, is fixed by such statutory limit.
    2. Where the statute delegates power to any administrative board, such as a board of county commissioners, to fix the limit of such public expenditure, and such board so fixes a limit in language free from doubt, there is no right in any court to construe said language, and the power of such administrative board is thereby limited to the amount so fixed.
    3. In case of doubt as to the right of any administrative board to expend public moneys under a legislative grant, such doubt must be resolved in favor of the public and against the grant of power.
    4. The earnings of all county moneys under the depositary law generally belong to the county unless the statute expressly provides otherwise.
    (No. 15437
    Decided March 6, 1917.)
    In Mandamus.
    This is an action for a writ of mandamus against Joseph Melroy Pierce, as auditor of Clark'county, to require him to pay an order of the board of trustees, appointed by the governor of Ohio to erect a memorial building in said county, under the provisions of Section 3059 et seq., General Code.

      On October 3, 1912, the commissioners of Clark county, Ohio, passed a resolution pursuant to Section 3059, General Code, stating that in their opinion it was desirable to erect, furnish and maintain a memorial building, and to expend for such purpose a sum of money not to exceed $250,000; thereupon the governor appointed five citizens as a board of trustees, who organized agreeably to law and submitted to the people at the next election the question of issuing $250,000 of bonds of the county; and the same having been approved such issue was sold by the commissioners at the request of the memorial building trustees, the proceeds of said sale being $250,000. The memorial fund thus arising was placed by the county treasurer in a depositary, earning thereby the sum of $18,000.
    The board of trustees secured a site, employed an architect who perfected plans and specifications, and on or about September 5, 1914, entered into a written contract with the relator for the complete construction of the memorial building at an aggregate cost of $205,090.13.
    In the acquisition of the site, the employment of the architect, and other incidental matters, said board of trustees incurred expenses aggregating about $57,000, the total aggregate expended or contracted to be expended in connection with said project being $262,000, all but about $15,000 of which has been paid.
    The question is whether the interest or increment arising from the deposit of said funds by the county treasurer may be added to the amount which the memorial trustees are authorized to expend; or, to the contrary, are the memorial trustees limited to the $250,000 provided in the original resolution of the commissioners of Clark county?

      Mr. J. E. Bowman and Mr. J. Warren Keifer, for plaintiff.

      Mr. Charles E. Ballard, for defendant.
   Wanamaker, J.

Section 18 of the Bill of Rights of the Ohio Constitution of 1802 contained the very wholesome admonition “That a frequent recurrence to the fundamental principles of civil government, is absolutely necessary to preserve the blessings of liberty.”

It is as true to-day as it was 115 years ago.

The Federal Constitution is clearly a document of delegated powers. True, it was not such in its original form, but by virtue of the 10th Amendment it became such beyond all doubt. This amendment reads:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The same basic doctrine is announced in most of the state constitutions, particularly the Ohio Constitution of 1851, which is still, in this respect, in force. Section 20 of the Bill of Rights reads:

“This enumeration of rights shall not be construed to impair or deny others retained by the people; and all powers, not herein delegated, remain with the people.”

This same doctrine of delegated power with reference to constitutions very generally prevails when the legislature assumes to confer, within its constitutional grant, certain powers upon various political subdivisions of the state or upon some officer, board or commission of such subdivision.

Sitch grant of power, by virtue of a statute, may be either express or implied, but the limitation put upon the implied power is that it is only such as may be reasonably necessary to make the express power effective. In short, the implied power is only incidental or ancillary to an express power, and, if there be no express grant, it follows, as a matter of course, that there can be no implied grant.

In construing such grant of power, particularly administrative power through and by a legislative body, the rules are well settled that the intention of the grant of power, as well as the extent of the grant, must be clear; that in case of doubt that doubt is to be resolved not in favor of the grant but against it. It is one of the reserved powers that the legislative body no doubt had, but failed to delegate to the administrative board or body in question.

Now, how stands the case at bar? The whole question pivots on the construction of the statute.

Section 3059, General Code, provides that when the memorial building is to be erected the county commissioners in their resolutions shall state: “That in their opinion it is desirable to erect * * * a memorial building * * * and to expend for such purpose an amount to be named by them not to exceed $250,000 in any one instance.”

Section 3061, General Code, provides, further, that upon the appointment of the memorial association by the governor of Ohio, such association, through its board of trustees, shall “direct the submission to popular vote at the next regular county election of the question of the issue of bonds in the amount so named in the original resolution ” etc.

Section 3062, General Code, provides that the commissioners shall issue the bonds of the county “not to exceed the total sum determined upon in the original resolution of the commissioners.”

Section 3063, General Code, provides that the fund arising from the sale of the bonds shall be placed in the county treasury to the credit of a fund to be known as “the memorial building fund.” The last part of that section reads: “If upon the completion of the memorial building an unexpended balance of the fund remains in the county treasury, it shall be placed and kept to the credit of such sinking fund.”

All these sections taken together are clear, consistent and convincing, demonstrating that the legislature intended the original resolution by the board of county commissioners to be the basis and limitation upon all future proceedings as to a memorial building — that- the voters of the county should know the maximum to be expended so that they might vote intelligently upon the bond issue.

The soundness of such a policy cannot be doubted; neither can the meaning of the simple, straightforward words of the statute. Two hundred and fifty thousand dollars was the largest sum that could be expended by the memorial association through its trustees.

This statute being simple and straightforward in its meaning, there is neither room nor right for judicial construction. The statute speaks for itself.

This was clearly the county’s money and subject to the general depositary law. The statutes clearly provide what shall be done with the county moneys and the earnings upon the same.

Writ denied.

Newman, Matthias and Johnson, JJ., concur.