author: Dickman, C. J.

text:
    Board of Education v. Best.

      Election of teachers — Calling of roll and recording the ayes and noes — Mandatory provision — Section 398t, Revised Statutes, considered. „
    1. The clause in section 3982, of the Revised Statutes, to wit: “Upon a motion * 9 9 to employ a 9 9 9 teacher, 9 9 the clerk of the board shall call, publicly, the roll of all the members composing the board, and enter on the record required to be kept, the names of those voting aye, and the names of those voting no,” is a mandatory provision and must be strictly pursued.
    2. Where the minute book, containing a record of the proceedings of a board of education, shows that all the members of the board were present; that a motion to proceed to the election of teachers was carried by a unanimous vote; and that an applicant for the position of teacher was declared elected by a unanimous vote, but that the clerk did not call the roll of the members, and the names of those voting aye were not entered on the record, the requirement of the statute was not sufficiently complied with, and the election was invalid.
    (Decided December 11, 1894.)
    Error to the Circuit Court of Muskingum county.
    The defendant in error, Jennie Best, filed her amended petition in the court of common pleas of said county, against The Board of Education of New Concord Village School District, the plaintiff in error alleging as follows :
    ‘ ‘ Plaintiff says that some time prior to May 17, 1887, she made a proposal by written application to the said board of education to teach the intermediate or primary department of the school of said district, for the customary time of nine months and at the customary salary of thirty dollars a month, said term to begin on or about the 5th day of September, 1887; that said board of education of the said 17th day of May, 1887, accepted plaintiff’s proposal and entered into a contract with her by electing her as teacher of said intermediate department of said school, and giving her a written notice of said election ; that plaintiff, relying on said contract, held herself in readiness from the receipt of said notice until the school opened September 5, 1887, to perform her part of said contract, and on said last named date presented herself at the school house of said district, having’ a teacher’s certificate duly issued to her by the board of school examiners of said county, as provided and required by law, ready and willing to take charge of said department according to said contract; and that the said board of education then and there broke said contract by utterly refusing to allow plaintiff further to perform her part of said contract, and without cause dismissed her, to her damag’e in the sum of three hundred dollars ($300). Wherefore plaintiff prays judgment against the defendant for said sum of three hundred dollars, with interest from said 5th day of September, 1887.”
    To this petition there was filed an answer in which five defenses were set Up. In the first defense, as amended, the defendant said :
    “That it denies each and every allegation in plaintiff’s amended petition.” The second and third defenses were struck out on motion of the plaintiff. To the fourth defense a general demurrer was sustained. *
    The fifth defense reads as follows :
    “ Fifth Defense — That, in pursuance of the provisions of section 3985, Revised Statutes of Ohio, this defendant, the board of education of the New Concord village school district, adopted for its government and the .government of its employees, a set of rules and regulations, which said rules and regulations were known to the plaintiff. Section 1, of article 3, of said rules and regulations reads as follows:
    ‘ The teachers shall be elected by the board of education annually, and shall hold their position for one year unless sooner removed by the board. The nominations for teachers shall be made at the June regular meeting and not be acted on for two weeks. ’
    ‘ ‘ Said rules and regulations, including said section, were in full force at the time named in the plaintiff’s amended petition, May 17, 1887. At the meeting of the board May 17, 1887, no action was taken suspending any of the rules governing the board.
    “On the 27th of May, at a legal meeting of the board, action was taken declaring the proceedings of May 17 illegal; said action on the 27th was taken before the adoption of the minutes of the meeting of May 17; said plaintiff was duly notified of the action of the board at the meeting of May 27.
    “At the regular June meeting of the board, nominations for teachers were made and the plaintiff’s application, at her request, was considered among others, as teacher for the intermediate department of the schools. Two weeks later, at the July meeting, the plaintiff’s application-was rejected.”
    To this fifth defense there was a general demurrer, which was overruled, upon the overruling of which the plaintiff, for a first reply thereto, alleged:
    “That it is not true and she denies that she had any knowledge whatever of any ‘rules and regulations’ that defendant had ‘adopted for its government and the government of its employes,’ or of any other rules whatever which said defendant had at the time she made her contract with it. Denies that said defendant ever had any such rules and regulations as those stated in defendant’s answer, or were in force at the time named in her amended petition, May 17, 1887. Denies that no action was taken by said defendant at its meeting May 17, 1887, by which any of its rules were suspended, if it ever had any rules.”
    The defendant moved the court to strike from the plaintiff’s said first reply, the following words, to wit:
    “That it is not true and she denies that she had any knowledge whatever of any rules and regulations, that defendant had adopted for its government and the government of its employees, or of any other rules whatever which said defendant had at the time she made her contract with it. ’ ’
    This motion was sustained, and the plaintiff excepted.
    At the trial the minute book of the board, identified by plaintiff’s witness as the record of the proceedings of the board, showed that on May 10,1887, the board met, and without any suspension of the rules, balloted five times for an intermediate teacher without result. Then, without any suspension of rules, it adopted a motion that: “We adjourn to meet Tuesday, May 17, for the purpose of electing’ teachers for intermediate and primary departments.”
    Said record of proceedings also showed that on May 17, 1887, the board, without any suspension of the rules, adopted a motion to proceed to elect teachers for the intermediate and primary departments ; that said motion was carried by unanimous vote and that Miss Jennie Best was declared elected by unanimous vote, for the intermediate department.
    On May 18, 1887, the clerk sent to her a notice of her • election, which she received. She made no reply to the notice, and sent no acceptance to any member of the board.
    On May 27, 1887, at a legal meeting of the board, before approving the minutes of May 17, action was duly taken declaring the election proceedings of that day .illegal. The clerk was ordered to mail to Miss Best a notice that her election had been declared illegal, and on May 28 he duly mailed to her said notice:
    At the regular June meeting nominations for teachers were made and Miss Best’s application, at her request was considered among others as teachers for the intermediate department. Two weeks later, at the July meeting, her application was rejected and another teacher duly elected.
    None of the evidence introduced at the trial discloses that at the meeting of May 17, 1887, the clerk of the hoard called publicly, the roll of all the members comprising the board, and entered on the record required to be kept, the names of those voting “aye,” and the names of those voting “no,” on the question of the election of the defendant in error.
    The evidence for the plaintiff having been heard, the defendant moved the court to arrest the testimony from the jury, and for judgment, which motion was sustained, and the jury was discharged from the further consideration of the case.
    The circuit court reversed the judgment of the court of common pleas for error:
    In overruling the demurrer to the fifth defense; in striking out the plaintiff’s denial that she had any knowledge of the rules and regulations of the board of education, and in taking the case from the jury.
    To reverse the judgment of the circuit court, this proceeding in error is instituted.

      M. M. Granger and W. J. Massey, for plaintiff in error.
    The board seeks a reversal of the judgment of the circuit court, because (a) The proceedings of May 17 were illegal.
    (1) For disregard of the rules of the board. Bloom v. Xenia, 32 Ohio St., 462; Sutherland on Construction, 455, and cases cited.

      (2) For disregard of the statutory mode of election. Section 3982, Revised Statutes (Giauque); Campbell v. Cincinnati, 49 Ohio St., 463; Clark v. Crane, 5 Mich., 151; Steckert v. East Saginaw, 22 Mich., 104; Spangler v. Jacobi, 14 Ill., 297; Supervisor v. People, 25 Ill., 181; 23 Mich., 457; 36 Ind., 90; 40 Ark., 105; 55 Iowa, 209; 6 Cal., 151; 59 Ill., 286; 29 Iowa, 282. The mode of" election prescribed by section 3982 was exclusive. Dillon Mun. Corp., 465; State v. Liberty Township, 22 Ohio St., 144.
    (6) The reply did not deny the averment in the fifth defense that at the regular June meeting of the board, nominations for teachers were made, and the. plaintiff’s application, at her request, was considered among others as teachers for the intermediate department of the schools ; and that two weeks later, at the July meeting, the plaintiff’s application was rejected.
    (c) The amended first defense put in issue the entire amended petition.

      (d) Under the facts put in evidence by the plaintiff the defendant was entitled to judgment. 24 Ohio St., 83; 38 Ohio St., 389.
    (e) The plaintiff sustained no injury by reason of the striking from her first reply its denial of her knowledge of rules.
    (/) The common pleas did not err in striking out that denial. As a matter of law, all persons must take notice of such rules of a public body. 2 C. C. Rep., 510; Story on Agency (9th ed.), section 307; Whiteside v. U. S., 93 U. S., 247; 60 Mo., 53.

      (g) The filing of the amended petition made unimportant the action of the common pleas upon the demurrer to the original petition. Bank v. Street, 1 Ohio St., 1.
    Hence the circuit court ignored that assignment of error.

      J. A. Troette and S. A. Dickson, for defendant in error.
    The board claims that its proceedings on May 17, 1887, when it elected Miss Best, were illegal, and that it is therefore released from its contract with her.
    On May 10, 1887, the board, by a full vote,, adjourned to meet May 17, 1887, for the purposes of electing teachers. On.the date last mentioned, the board did meet pursuant to adjournment, and all the members were present. The meeting was-, therefore legal. Sections 3920 and 3985, Revised Statutes. Preparatory to carrying out the objects of the meeting, a motion to proceed to the election of teachers was proposed, and was adopted by unanimous vote. The preliminary motion to proceed to the election was, in effect, a motion to suspend any rules which the board may have had providing for the election at any other time. Cushing’s Manual, par. 21; 2 C. C., 510. The board therefore acted within the statutory authority conferred upon it, and elected plaintiff below, not-merely by the statutory quorum, but by a unanimous vote. Sections 3982 and 4017, Revised Statutes. The rules of the board were not a limitation of its power, if it saw fit to disregard them. The statute fixes the only limitation of its power. It is doubtful whether the doctrine of ultra vire® applies in any case to quasi corporations; but if it. be thus extended, the doctrine is, that the plea should not prevail, when justice would not be= advanced, but on the contrary would accomplish a legal wrong. Wait’s Actions and Defenses, vol. 2, p. 335.
    The second question arises on the board’s motion to strike out of the reply defendant’s denial of knowledge of the board’s rules. It is claimed that the law holds her to a knowledge of the rules, and that she was bound by them, even though she did not know, in fact, of their existence. One dealing with a corporation is not bound by the bylaws of such corporation unless he has knowledge of them. Waite’s Actions and Defenses, vol. 2, p. 326. There is a vast difference between statutes enacted by the legislature and rules made for their own convenience bya school board.
    The third question arises upon the board’s motion to arrest the testimony from the jury and-the judgment of the common pleas court sustaining the same. This judgment was founded upon the claim that plaintiff below failed to offer any evidence of a contract, and that her evidence failed because she did not prove that an aye and nay vote was taken on her election. This was no part of her case; if available at all, it should have been set up in defendant’s answer. The record does not show that the clerk called the roll; but it does show what is equivalent to an aye and nay. . The record shows this evidence, and the defendant offered nothing in defense. Section 3982, Revised Statutes, is directory only, and a substantial compliance is all that is necessary.

      (a) If no legal sanction is provided by which a compliance can be enforced, they are plainly directory. Sedgwick on Const. Stats., p. 317. *
    (5) An affirmative command, unless accompanied by a negative word, is directory. Sedgwick on Const. Stats., pp. 319 to 324; 24 Ohio St., 241.
    (c) When a provision of a statute is the essence of the thing to be done, it is mandatory; otherwise when it relates to form and manner. 58 N. H., 17; Endlich on Int. Stats., section 436, and cases cited.

      id) When nullification of proceedings had in disregard of certain forms prescribed by statute would work injustice to innocent persons, or advantage to those guilty of the neglect, without promoting’ the real aim and object of the enactment, the statute will be held directory. Endlich on Int. Stats., section 433.
    (<?) Statutory requirements intended for the guide of officers in the conduct of business devolved upon them and designed to secure order, system and dispatch in proceedings, and by a disregard of which the right of parties interested cannot be injuriously affected, are not usually regarded as mandatory unless accompanied by negative words. 13 Wall., U. S., 506.

      if) The language of section 3982 is addressed to the clerk. The clerk is a mere ministerial officer, and may or may not be a member of the board. Section 3980, Revised Statutes. ,

      (g) Section 3904, Revised Statutes, provides that the clerk shall record the proceedings, etc., yet it was held that his failure to do so could not prejudice an innocent party, the statute being mandatory. 3 C. C., 517; Bloom v. Xenia, 32 Ohio St., 462. Statutes controlling the exercise of powers conferred or privileges granted, are more strictly construed than those directing the manner of public duties. Endlich on Int. Stats., section 433.
    (i) The case of Campbell v. Cincinnati, and all of the other eases cited in the board’s brief on the same point have reference to ordinances of a general or permanent nature, and most of them to ordinances involving the taxation of property. The same distinctions mentioned in the preceding paragraph apply to all of these cases, hence they are not analogous.

      (j) Where a statute is directory, a departure from the strict observance of it does not invalidate a contract, where it appears that no fraud has been practiced and no substantial right violated. 37 Ohio St., 205; 22 Ohio St., 194; 20 Ohio St., 225; 19 Ohio St., 25; 15 Ohio St., 273; 11 Ohio St., 96; 6 Ohio St., 176; 3 Ohio St., 475; 1 Ohio St., 175. It seems to us that the general principle of estoppel applies to this case. Parsons on Contracts, volume 2, p. 935, and eases cited. The doctrine is well settled in Ohio. Beardsley v. Foot, 14 Ohio St., 414; Dixon v. Subdistrict, 3 C. C., 517.
    The statement that the application of plaintiff below, at her request, was considered at the June meeting of the board, is not true. The board is not warranted in making said statement in its brief, simply because it was contained in the answer and not denied in the reply. At most it can only be deemed matter tending to deny the allegation in the amended petition that plaintiff relied upon her contract; hence, no reply is necessary. Bliss on Code Pleading, section 396; Hoffman v. Gordon, 15 Ohio St., 212; The State v. Williams, 48 Mo., 210; Riddle v. Parke, 12 Ind., 89. It was wholly unnecessary for plaintiff to notify the board of her acceptance. The proposal proceeded from her and was accepted by the board. She made the proposal by a written application ; the board accepted the proposal by electing her and sending her written notice of such election. Parsons on Contracts (7th ed.), volume 1, pi 514.
    The cases in 24 Ohio St., 83 and 38 Ohio St., 389, only go to prove that the jury should have passed upon the evidence offered by plaintiff below.
   Dickman, C. J.

As shown by the record, the defendant in error, Miss Jennie Best, some time prior to May 17, 1887, made a proposal by written application to the plaintiff in error, the Board of Education of New Concord Village School District, to teach the intermediate or primary department of the school of that district. At the regular June meeting of the board she was nominated for teacher, and her application, at her request, was considered among others, for appointment as a teacher in the intermediate department. At the meeting , of the board, two weeks later, in July, 1887, her application was rejected and another teacher duly elected. Notwithstanding the rejection of her application, she presented herself at the school house on the 5th day of September, 1887, when the scholastic year began, prepared to take charge of the school and teach it, but was not. permitted to do so.

It is contended in behalf of the defendant in error, that though not elected a teacher at the regular June meeting, she was duly and legally elected at the meeting of May 17, 1887, whereby a right of action accrued to her against the board when she was refused charge of the school.

Among the provisions applying to boards of education, it is provided by section 3985 of the Revised Statutes, that: “The board of each district shall make such rules and regulations as it may deem expedient and necessary for its government, and the government of its appointees and pupils. ” In pursuance of this section of the statutes, the board adopted a set of ' rules and regulations, among which section 1, of article 3, reads as follows: “The teachers shall be elected by the board of education annually, and shall hold their position for one year, unless sooner removed by the board. The nominations for teachers shall be made at the June regular meeting’, and not be acted on for two weeks.” The wisdom of such a rule is obvious, designed and effective as it is to give an opportunity to become acquainted with the qualifications and fitness of the applicant. The board met on May 10, 1887, and without any suspension of rules, balloted without result for an intermediate teacher, and adjourned to May 17, for the purpose of electing’ teachers for the intermediate and primary departments. On May 17, 1887, without any suspension of rules, a motion to proceed to an election was carried'by unanimous vote, and the board then proceeding to an election, Miss Best was declared elected by unanimous vote for the intermediate department. On May 27, 1887, at a leg’al meeting’ of the board, this election was declared illegal.

It is contended in behalf of the plaintiff in error that the election was illegal for' noncompliance with the rules of the board, and for disregard of the statutory mode of election as prescribed by section 3982 of the Revised Statutes.

It is urged, however, on the part of the defendant in error, that the power of the board to make rules and regulations carries with it the power to suspend a rule, and that when, on May 17, the motion to then proceed to elect teachers was carried by unanimous vote, it worked a suspension of the rule that nominations for teachers should not be acted on for two weeks.

We deem it unnecessary to consider whether the election of the defendant in error was void by reason of a failure to comply with the rule requiring such nominations to be made at the regular June meeting, and not to he acted on for two weeks. In our judgment, the election was without the sanction of law, because in disregard of the above mentioned section 3982. That section contains the following provision: “Upon a motion to adopt a resolution authorizing the purchase or sale of property, either real or personal, or to employ a superintendent, teacher, janitor, or other employe, or to elect or appoint an officer,-or to pay any debt or claim, or to adopt any text hook, the clerk of the hoard shall call, publicly, the roll of all the members composing the board, and enter on the record required to be kept the names of those voting ‘aye,’ and the names of those voting no.’ ”

The clerk is made the recording officer of the hoard, and it is incumbent upon him to call the roll on taking a vote. The statutory provision that he shall publicly call the roll, and enter on the record the names of those voting aye and the names of those voting no, is tantamount to a provision, that the vote shall be taken by yeas and nays and entered on the journal. It is not claimed, nor is it a fact, that at the election of the defendant in error as teacher, the clerk of the hoard called the roll and entered the ayes and noes as required by the statute.

But, it is urged that such requirement is not mandatory, but directory merely. Mandatory statutes are imperative, and must be strictly pursued, otherwise the proceeding which is taken ostensibly by virtue thereof will be void. Sutherland on Stat. Con., section 454. It will be observed, that a motion to employ a teacher is placed on the same footing with a motion to adopt a resolution for the purchase or sale of real or personal property, or to pay any debtor claim — matters of such interest and importance as involving the expenditure of the school fund, that the statute should be strictly followed when a vote is to be taken on the adoption of such a motion.

By section 1694 of the Revised Statutes, ‘ ‘ ordinances of a general or permanent nature, shall be fully and distinctly read on three different days, unless three-fourths of the members elected dispense with the rule; and the vote on such suspension shall be taken by yeas and nays and entered •on the journal.” In Bloom v. Xenia, 32 Ohio St., 461, it was held that the section is imperative in its injunction that ordinances shall be read on three different days, unless the rule is dispensed with by a three-fourths vote; and the remaining .language of the clause is, we conceive, no less imperative or mandatory, that the vote on such suspension shall be taken by yeas and nays, and •entered on the journal. The principles announced in the last cited case were approved in Campbell v. Cincinnati, 49 Ohio St., 463, and we see no good reason why the most important duties enjoined upon boards of education, should be held less imperative than those of no geater importance that are made mandatory upon municipal councils. The authority of boards of education, like that of municipal councils, is strictly limited. They both have only such power as is expressly granted or clearly implied, and doubtful claims as to the mode of exercising the powers vested in them are resolved against them. Clearly, these organizations that derive their existence as bodies politic and corporate from the legislature, cannot be allowed the same latitude in the observance of their statutory duties, as is permitted to the general assembly. Such subordinate bodies corporate are not privileged to treat express and explicit provisions of the statute as only directory, discretionary, because, there are provisions in the constitution that are held directory in their character for the reason that their observance by the general assembly is secured by their sense of duty and official oaths, and not by any supervisory power of the courts. .

It is said, however, that the primary object of the law in providing that the roll of members of the board shall be called publicly, and the names of those voting aye or no recorded, is to determine whether a teacher has been elected by the requisite majority; and that such object is fully attained when such evidence is produced, as appears in the minute book of the plaintiff in error, which contains the record: ‘ ‘ Board met; members all present. Miss Jennie Best was declared elected by unanimous vote for intermediate department. ” Where there is a viva voce vote, taken in the usual way, which is by a call.for all those who are in favor to say aye, and those opposed to say no, without entering at large on the minutes the names of those voting, the presiding officer judges by his ear which side has the more voices. But, if the vote of a, quorum is in favor of a motion or resolution and no vote is cast against it, the record may still be, that it was adopted unanimously, though some of the members present, in fact, abstained from voting. Steckert v. The City of East Saginaw, 22 Mich., 104. To avoid uncertainty, therefore, in determining the conduct of boards of education in transacting such important official business as concerns the purchase or sale of property, the payment of debts or claims, and the selection of teachers who are to stand somewhat in loco parentis in training the minds, and shaping the moral character of their pupils, the general assembly has carefully guarded against ambiguity by prescribing a method of voting which should not be departed from, and in that regard, the rule expres'sio unius, should, we think, be strictly applied.

Steckert v. The City of East Saginaw, supra, was a bill to restrain the collection of an assessment for paving a street. The first ground of alleged invalidity in the proceedings was, that the several votes in the«common council ordering the improvement made, were not taken by ayes and noes, as required by the city charter. The provision of the charter was : ‘ ‘ Whenever required by two members, the votes of all the members of the common council, in relation to any act, proceeding or proposition, had at any meeting, shall be entered at large on the minutes. ’ ’ The record of the meeting of the council gives the names of all the aldermen present. After stating’ the resolutions ordering the improvement, there was this minute, “adopted unanimously on call.” The argument was that the record shows, first, the names of the several aldermen who were present when the action was had; second, that the roll was called on the vote; and third, that each of them, when the roll was called, voted for the adoption of the resolutions. This being so, the vote, it was contended, was in effect entered at large on the minutes, and that the repetition of the names of the aldermen in the minutes would have been only ah idle ceremony, accomplishing no useful purpose.

It was said by Cooley, J., in pronouncing the opinion of the court: “We have found ourselves unable to take the same view of this record-that is taken by the counsel for defendants. There can be no'doubt that the provision of the statute which requires these votes to be entered at large on the minutes, was designed to accomplish an important public purpose, and that it cannot be regarded as immaterial, nor its observance be dispensed with. The purpose,' among other things, is to make the members of the common council feel the responsibility of their action when these important measures are upon their passage, and to compel. each member to bear his share in the responsibility, by a record of his action which should not afterwards be open to dispute.” See also Spangler v. Jacoby, 14 Ill., 297. The same views are similarly expressed in Judge Cooley’s treatise on Constitutional Limitations, as follows: “It is provided in the constitutions of some of the states that, on the final passage of every bill, the yeas and nays shall be entered on the journal. Such a provision is designed to serve an important purpose in compelling each member present to assume as well as to feel his due share of responsibility in legislation; and also in furnishing definite and conclusive evidence whether the bill has been passed by the requisite majority or not.” (6th ed., 168.)

The same doctrine is unqualifiedly approved by-Judge Dillon in his work on Municipal Corporations., after an examination of the authorities supporting the opposite view. Sec. 291 (229).

In Rich v. City of Chicago, 59 Ill., 286, the street improvement was not asked for by the petition of the owners of a majority of the property to be assessed; and in such case, the city charter'declares, that the improvement “shall be ordered only by the votes of at least three-fourths of all the aider-men present, such vote to »be entered by ayes and noes on the record of the common council. ” It was objected that there was no valid ordinance commanding the improvement, or the assessment to be made. The court say: “It does not appear, from the record introduced, or otherwise, that this improvement was ordered by the votes of three-fourths of all the aldermen present, and it appears, affirmatively, that the vote was not entered by ayes and noes on the record. Wé must, therefore, regard the objection as well taken. ’ ’

In Cutler v. Town of Russellville, 40 Ark., 105, it was held, that the weight of authority and the better opinion seems to be, that a requirement that the yeas and- nays shall be called and recorded on the passage by a municipal council of an order or resolution to enter into a contract is designed to accomplish an important public purpose; and hence cannot be reg-arded as immaterial, nor its observance dispensed with. To the same effect are the decisions in Town of Olin v. Meyers, 55 Iowa, 209; Morrison, Administratrix, v. City of Lawrence, 98 Mass., 219, and in numerous other cases involving the same question.

For the aforegoing reasons, the election of the defendant in error by the board of education of the New Concord Village School District, was, in our opinion, illegal and void. And being so, the court of common pleas did not err in taking the case from the jury, and rendering judgment for the defendant below — the board of education. The judgment of the circuit court should, therefore, he reversed, and that of the court of common pleas affirmed.

Judgment accordingly.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    State v. McCoy.

      Producing criminal miscarriage — Principal offender — Section 6815, Revised Statutes — Woman as aider or abettor — Section 6804, Revised Statutes.

    By section 6815, Revised Statutes, one who prescribes or administers medicines to a pregnant -woman with intent to produce a criminal miscarriage upon her, is made a principal offender; while by section 6804, Revised 'Statutes, the woman is subject to indictment as an aider and abettor thereof, if she voluntarily and knowingly participates in the unlawful act; and in such case, if upon the trial of a principal offender, she testify on behalf of the state her evidence should be regarded as that of an accomplice.
    (Decided December 11, 1894.)
    Exceptions to the Court of Common Pleas of Wayne county.
    The defendant was indicted and placed on trial upon a charge of unlawfully administering medicine to a pregnant woman, with intent to procure a miscarriage. The woman was a witness for the state, and the defendant contended that if she knowingly and voluntarily took the medicine with intent to cause her own miscarriage, then her testimony should be received as that of an accomplice, and the jury cautioned by the court to regard it accordingly. The trial court took this view of the question and charged the jury as follows :
    “If you find from the evidence that Julia Harrison was pregnant at the time alleged in the indictment, and knew she was then so pregnant, and with the intent of causing and procuring a miscarriage, she went to the accused and was examined by him, and that afterwards the accused himself, or Yoder acting under the instructions of the accused, procured from him the ergot or other medicines which were given to said Julia Harrison, the accused and Yoder then and there intending that said Julia Harrison should take said ergot and other medicines for the purpose of causing her to have a miscarriage of the child of which she was then pregnant, and that the said Julia Harrison then and there knowing that said ergot and other medicines were so given to her for the purpose of causing her to miscarry, took the same and miscarried ou'the 4th day of June, 1890, and and that said miscarriage, or the means to procure it, were not necessary to preserve the life of said Julia Harrison, and had not been advised by two physicians to be necessary for that purpose, then said Julia Harrison would be an accomplice in the commission of said crime, and the same rule regarding her evidence should be applied by you as I have stated to be proper in the case of the accomplice Yoder. ” * * *
    To this part of the charge the prosecuting attorney excepted, and has brought it to this court for review.

      A. D. Metz, prosecuting’ attorney for plaintiff.

      John McSweeney, for defendant.
   By the Court.

•That the trial court may, and usually should, caution the jury respecting’ the degree of credit they should give to the uncorroborated testimony of an accomplice in a fekmy is not denied; but the prosecuting attorney contends that a woman, under our statute, is not subject to indictment, although she may jointly, with others, engage in procuring upon herself a criminal miscarriage, and, therefore, is not to be regarded as an accomplice in the commission of the offense.

The statute, section 6815, Revised Statutes, under which McCoy was indicted, reads as follows: “Whoever, with intent to procure the miscarriage of any woman, prescribes or administers to her any medicine, drug, or substance whatever, or with like intent uses any instrument, or means whatever, unless such miscarriage is necessary to preserve her life, or is advised by two physicians to be necessary for that purpose, shall, if the woman either miscarries or dies in consequence thereof, be imprisoned. ’ ’ * * *

This statute is not, in terms, directed against the woman upon whom the offense is committed, nor against any other person who may have aided, abetted or procured its commission; its terms include the person, only, who prescribes or administers the medicine, etc., or who uses the instrument. If this was the only statute, neither the woman nor any other person could be indicted, though she or he may have counseled or procured the offense to be committed. The legislature in this instance, however, followed the usual mode adopted in this state for defining an offense, and affixing to it an appropriate penalty. Very few of our statutes that create a specific offense denounce a penalty against persons who may' merely aid, abet, counsel or procure its commission. This class of offenders is embraced by the sweeping provisions of section 6804, Revised Statutes, which, reads : “ Whoever aids, abets, or procures another to commit any offense, may be prosecuted and punished as if he was the principal offender.”

Whenever a. woman voluntarily participates with another person who administers medicine to, or uses an instrument upon her, for the purpose of producing a criminal miscarriage upon herself, she falls within the express provision of the last quoted statute, and is thereby subject to indictment and punishment as an aider, abettor, or procurer of the principal offender, and her evidence, when she testifies in the case, should be regarded as that of an accomplice.

Exceptions overruled.


text:
    Rheinboldt v. Raine, Auditor, et al.

      Taxation — Vendee's absolute obligation for real estate — Vendor retains legal title — Sums due as purchase money taxable — Authority of auditor to place same on duplicate.

    A sum due the 'vendor of real estate from the vendee, as purchase money, to pay which the vendee has given an' absolute obligation, is a credit and taxable as such, notwithstanding the vendor has retained the legal title of the land sold as his security.
    Where sums due as such purchase money have been omitted from the tax return of the vendor, the county auditor is authorized to go back five years and place the same on the duplicate for taxation.
    (Decided December 11, 1894.)
    Error to the Circuit Court of Hamilton county.
    . The action was brought in the court of common pleas to enjoin the auditor of Hamilton county from placing certain additional valuations and taxes on the duplicate as a charge against the plaintiff, and to enjoin the county treasurer from collecting said additional taxes or any part thereof.
    By the record it appears that prior to April 17, 1877, the plaintiff, Rudolph Rheinboldt, was a partner in the brewing firm of John Kauffman & Co., Cincinnati, Ohio. The other members of the partnership were John Kauffman and Maria A., his wife. The property of the partnership consisted of a number of pieces of real estate situate in and about the city of Cincinnati, and personal property, consisting of horses, wagons, stock on hand, book accounts and other assets, belonging to the firm, the personal property being valued at about $111,370. Rheinboldt’s health failed, and desiring to retire, he entered into a contract with his partners as follows, to-wit:
    “Whereas, John Kauffman, Rudolph.Rheinboldt and Maria A. Kauffman are jointly interested in the property used in the business of John Kauffman & Co.;
    “And, whereas, the said Rudolph Rheinboldt is desirous of disposing of his interest in said business and of retiring from said firm;
    “Now, therefore, this agreement made and entered into this seventeenth day of April, A¿ D. 1877, between John Kauffman and Maria A. Kauffman, parties of the first part, and Rudolph Rheinboldt, party of the second part, witnesseth :
    “1. That the said Rudolph Rheinboldt, in consideration of the sum of one hundred and forty-five thousand ($145,000) dollars, which the said, parties of the first part agree to pay as follows,, to wit:
    ‘ ‘ 1. Ten thousand dollars cash.

      “2. Ten thousand dollars on the first day of August, 1878. •
    “3. Ten thousand dollars on the first day of August, of each and every year thereafter until said sum is fully paid, promises and agrees to convey and execute all proper deeds therefor when said sum of $145,000, with interest thereon, and as hereinafter stipulated, has been paid in full, all his right, title and interest in all the property both personal and real, now belonging to or connected with said business, to the parties of the first part, or either of whom as may by the parties of the first part be designated. And it is agreed that all deferred payments shall bear interest at six per cent per annum until paid, which interest, shall be paid annually, the first payment thereof to be on ' August 1, 1878, the deferred payments to bear interest from the date of this agreement, and that said parties of the first part are to pay all taxes and assessments on all of said property.
    “4. The said John Kauffman hereby agrees and assumes to pay all debts and liabilities of the firm of John Kauffman & Co., and to save the said Rudolph Rheinboldt harmless from the same.

      “5. It is further understood between the parties hereto that said Rudolph Rheinboldt does not part with any interest in the real estate of said partnership property until the aforesaid amount of one hundred and forty-five thousand dollars, with interest, is paid in full and deed executed for said property; it is also understood that said Rudolph Rheinboldt is not entitled to any revenue for said property whatsoever, either as rent or otherwise, during the continuance of this contract, except the principal and interest above provided for. ” .

      “6. It is hereby agreed that said Rudolph Rheinboldt consents to join in the sale of real estate belonging to John Kauffman & Co. not necessary for carrying on the brewing business. If said John Kauffman desires to sell the same, he, said Rudolph Rheinboldt, being entitled to receive one-half of the proceeds of sale, which shall be a credit upon said gross sum.
    “7. It is further agreed that the said Rudolph Rheinboldt will receive any sums of money before the same becomes düe, as above stipulated, and interest thereon shall then cease from that date; all moneys- paid said Rheinboldt shall be a charge upon the interest of said Rheinboldt in said business.
    “8. The said Maria A. Kauffman hereby charges all her separate estate with the payment of said sum of $145,000, and with the faithful performance of this agreement and the payment of all sums herein agreed to be paid.
    “In witness whereof, the parties have hereunto set their hands and seals in duplicate on the day and year aforesaid.
    [seal] “John Kauffman,
    [seal] Rudolph Rheinboldt,
    [seal] Maria A. Kauffman.
    “ Witnesses: A. E. Kramer,
    Emil Schmitt.”
    Under this contract, the Kauffmans paid to Rheinboldt various sums of money, so that there remained due said Rheinboldt as follows : On the day preceding the second Monday of March, 1883, $85,000; on the day preceding the second Monday of April, 1884, $75,000; on the day preceding the second Monday of April,' 1885, $65,000; on the day preceding the second Monday of April, 1886, $65,000; on the day preceding the second Monday of April 1887, $65,000; on the day preceding the second Monday of April, 1888, $65,000.
    The plaintiff failed and omitted to return the balance due under said contract or any part thereof, for taxation under the laws of - Ohio. The auditor of Hamilton county in the discharge of his duty, in 1888, cited Rheinboldt to show cause why the auditor should not put upon the tax duplicate.the said balance for the respective years, and after a hearing did put upon the duplicate said sums as taxable credits, and charged against the plaintiff the ordinary state and county taxes in like manner as against the property of other citizens. Only the simple taxes were charged, without penalty or interest. In the common pleas an injunction was allowed. The circuit court, on appeal, held that said balances for the 'respective years were taxable, and dismissed the petition. To this judgment error is prosecuted.

      Von Seggern, Phares, & Dewald, for plaintiff in error.

      J. B. Foraker and L. C. Black, for defendants in error.
   By the Court.

It is contended that the transaction, between Rheinboldt and the Kauffmans was a conditional sale, inasmuch as the vendor retained the title to the real estate covered by the contract, and stipulated to convey only on payment of the purchase money, and therefore, the sum remaining due as purchase money cannot be taxed. We are unable to assent to this view. Had the property sold all been personalty probably this claim would not be made, for the reason that the sale as to that was admittedly absolute. But can it make any difference that the contract embraces real estate, and that the title, so far as Rheinboldt held it, continued in him ? By whatever name the transaction is described, the fact remains that the obligation of the Kauffmans to pay the purchase money was absolute; it was a chose in action having value, a legal claim and demand enforceable by Rheinboldt by action at law irrespective of his lien as vendor, the retention of the -legal title being only as security. The installments, as they became due, were rights in action which Rheinboldt might sell, and payment of which the purchaser might enforce by suit. The several amounts were, therefore, within the meaning of our tax laws, credits which, by the constitution, are required to be taxed. As to the claim that to tax these sums would result in double taxation it is enough to say that although the real estate continued to stand' in the name of the partnership on the duplicate, yet, by the contract, the Kauffmans were obligated to pajrall taxes and assessments, and if Rheinboldt, because of default on the part of the Kauffmans, should be compelled to pay any such charge, such payment would be payment of a debt of the Kauffmans rather than his own, and a legal right to collect of them would result.

These amounts being • subject to taxation, the - right of the auditor to go back for five years and place them on the duplicate for simple taxes, is established by the case of Gager v. Prout, 48 Ohio St., 89. No question of penalty or interest is involved.

Judgment affirmed.


text:
    Chapman v. Miller et al.

      Decision of state supervisor of elections final — Deputy board of supervisors must comply therewith — Common pleas court no jurisdiction to enjoin — Mandamus.
    Upon submission of objections to certificates of nomination, by board of deputy state supervisors to state supervisor of elections, his decision thereon is final, and the board of deputy ■state supervisors refusing to comply therewith may be compelled to do so by mandamus. And an answer stating that they have ■been enjoined by the court of common pleas or a judge thereof, states no .valid excuse for refusing to comply with the decision of the state supervisor. In such case the court of common pleas has no jurisdiction of the subject matter and its order of injunction is void.
    (Decided December 11, 1894.
    Mandamus.
    This was an action brought by Richard H. Chapman, relator, a citizen and taxpayer of Mercer county, against the board of deputy state supervisors of Mercer county, and C. G. O. Miller, John G. Beckman, S. A. Bowman and Adolph Gil-berg, the persons constituting said board, and H. H. Guy, clerk of the board, to compel said board and the members thereof, and the clerk, to obey the order of the secretary of state, as state super- ■ visor of elections, as to the printing of ballots in and for Mercer county, for the November election, 1894.
    The order which the defendants refused to obey is as follows:
    “On October 2, 1894, there was filed with the board of deputy state supervisors of election of Mercer county, a certificate of nomination certified by Thornton Spriggs, chairman, and Stephen R. Wilson, secretary of the central committee of the People’s party of Mercer county. This certificate of nomination certified certain candidates for various offices in said county. Later, towit: On the 6th day of October, there was filed with the board of deputy state supervisors of elections certificate of nomination signed by J. L. Hook, chairman,-and H. T. Hughes, secretary, as officers of a convention held at Rockford in said county of Mercer, purporting to be a convention of the People’s party of the said county, and certifying nomination of candidates for various offices of said county. On the 15th day of October, 1894, there was also filed with the said board of elections a certificate of nomination by petition, signed by more than 300 of the electors of said county, and properly certified, nominating candidates for the various offices to be filled by the electors at the coming November election' in said county. Objections were filed with the board of deputy state supervisors of elections to placing the candidates named by the alleged People’s party convention, filed October 2, and to the independent Democratic papers. On the question of placing the names of the said candidates on the ballot sheet or rejecting them the board was a tie, and so the matter comes to the secretary of state as state supervisor of elections for final decision.
    “Whether the convention held at Celina September 29, properly represented the People’s party, and whether it was regarded as representing said People’s party at the time the delegates assembled, depends upon the regularity of the call. The testimony shows that in 1893, the People’s party of Mercer county, among other things done, named a county central committee, consisting’ of the following named persons: John P. Chivington, William Nottingham, Thornton Spriggs, W. W. Harper, F, S. Collins, Martin Rutledge, Nelson Armantrout, Ezra Snider, L. E. Fox, D. Barger, S. R. Wilson and Fred Stedke. The above named central committee of the People’s party of Mercer county, it is admitted, was the central or controlling committee of such party, and authorized, among other thing’s, to call the convention for the purpose of nominating candidates for the various offices. From the testimony submitted to me, and especially by the affidavit of Frederick Stedke, corroborated by S. R. Wilson, two of the members of said committee, it appears that John C. Chivington, Thornton Spriggs, S. R. Wilson, W. Harper, Fred. Stedke, H. B. Bennett, proxy, and Ezra Snider, a majority of the central committee of said People’s party, met on the 15th day of September and by a majority vote of the members present issued a call for a convention to be held at Celina on September 29; that the said convention having-assembled on the date named in the call, appointed a committee for the purpose and authorized them to nominate a ticket for the several county officers to be voted for, and to certify the same to the board of deputy state supervisors; that said committee did nominate, as authorized by said convention, and certified to the deputy state supervisors candidates for the several offices to be voted for as follows, to. wit:
    ‘ ‘ For sheriff, Andrew L. Alexander; for treasurer, Henry V. Hinton; for recorder, Richard H. Chapman; for county commissioner, Stephen R. Wilson; for surveyor, Clyde V. Smith, and for infirmary director, John H. Murlin. The facts, as alleged in the affidavit above referred to, were denied by the attorney representing the electors who participated in the Rockford convention, but no testimony was produced in substantiation of the claim. All the evidence that has been presented shows that the Celina convention was regularly called by the duly constituted committee representing the People’s party of said county, and that it was in fact as well as in name the People’s party convention; and it is not denied that the persons participating in said mass convention were all'recognized adherents of the People’s party of said county, and that by a vote of seventy-nine to forty-four the said convention directed the said county central committee to make the nominations, and certify the same to the deputy state supervisor. It is alleged, and affidavits furnished substantiating the allegations, that some of the persons nominated were not members or adherents of the People’s party, but as a matter of fact were adherents of other political parties. Whether they are or are not members of the People’s party is immaterial, as the law distinctly recognizes the right of one party to indorse the candidates of another party by nominating them as their own candidates, or authorizing it to be done by a committee having authority to make original nominations. (See section 6a of the ballot law.)
    “The convention held at Rockford October 6, was not called by a majority of the central committee of the People’s party of county, but by a minority of the committee, and the convention was participated in only by a small number of bolting delegates who also participated in the Celina convention, and consequently it was not a convention representing the People’s party as contemplated in the statutes, and therefore had no authority to make nomination in any other manner than by petition. Whether the Celina convention was called a People’s party convention or a Populist convention is not material so long as the papers certifying the nominations certified them as People’s party candidates. The certificate of nomination certifies That at a convention of electors representing the People’s party of the county of Mercer, held at Celina, Mercer county, Ohio, on the 29th day of September, 1894, ’ etc.
    “As to the certificate of nomination of candidates for county offices by petition, as such nominations are specifically authorized by the provisions of section 7 of the ballot law, I hold such nominations to be valid, and direct that they should be printed on the ballot under the proper designation certified. It is therefore ordered that the names of the candidates nominated through the action of the convention held on September 29, at Celina, be placed upon the ballot sheet under the state ticket of the People’s party; that the nominations made at the so-called Rockford convention on October 6, be rejected, and that the candidates nominated by nomination papers, as above mentioned, be placed on the ballot sheet under the heading' as certified in the nomination papers to the board of deputy state supervisors.
    “Witness my signature and seal of office, at Columbus, this 23d day of October, A. D. 1894.
    (L. S.) “ Samuel M. Taylob,
    ‘ ‘ Secreta/ry of State. ’ ’
    To this petition, C. G. O. Miller and John G. Beekman, defendants, filed the following answer:

      “The State of Ohio ex rel. Richard H. Chapman, Relator, v. C. G. O. Miller et al. , Respondents.
    “Answer.
    “Now come the defendants, C. G. O. Miller, chief, and John G. Beckman, a member of the board of deputy state supervisors of elections for Mercer county, Ohio, by their counsel, John W. Loree and R. L. Mattingly, and for answer to the petition for a peremptory writ of mandamus herein, respectively allege and show by exhibit hereto attached:

      “First — That at the time of the filing of the petition herein, this said board of election supervisors, and these defendants named as individuals, were restrained by the judge of the common pleas court of Mercer county, Ohio, by an order made in chambers by the Hon. John E. Ritchie, a judge of said court, from printing or having printed, and from distributing the official ballots of Mercer county, Ohio, having- thereon the ticket nominated by the People’s party at Celina, Ohio, on October 2, and from having printed thereon the independent ticket nominated by petition, filed October 16, with such board. And that a petition by Francis M. Dick et al. v. C. G. O. Miller et al., for injunction was filed in the common pleas court of Mercer county, Ohio, on October 24, 1894, on which petition a restraining order hereinafter mentioned was allowed, and that said petition was for hearing on the application for the temporary injunction at 10 o’clock A. m., October 29, 1894, and that service of the said restraining order was duly served and made on the 25th day of October, 1894, at their meeting held, at 1 o’clock p. m., and that a service of the entry and order in such behalf made, was served upon the board about 9 o’clock A. M., on said day. That said petition was further heard on the said 29th day of October, on the application for tem> porary injunction by the judge aforesaid, who, after hearing said application and the evidence and argument made on the decision and order set forth .in the journal entry annexed hereto, and made a part of this answer and identified and marked as exhibit ‘A.’
    “ Second — -And said defendants further allege that the decision and orders of the secretary of state, as the state supervisor of elections in behalf of the matters herein involved, reached the board by mail in the afternoon of October 25, and there had been no meeting of the board in the interval between the receiving of such order and the service of the restraining order allowed by the judge of the common pleas court aforesaid; that these answering defendants had notice and service of the injunction before receiving the decision from the secretary of state; that their conduct in this matter has not been wilfully opposed to the orders of the secretary of state, but on the contrary in the utmost good faith to discharge their duties according to law as by them understood.
    “The said Francis- M. Dick in his petition, alleged and charged that several persons who participated in said nomination by petition, and the persons who participated in said nominations made on the 29th day of September, 1894, with conspiring together for the purpose of committing a fraud upon the rights of the said Francis M. Dick, and others alike interested, and of obtaining an unfair advantage at the coming November election by placing the same ticket in three different places upon the official ballot aforesaid, and said petition did charge and aver in said petition that they fraudulently agreed to and did nominate the same candidates for the Republican ticket,' the People’s party ticket, and for the Independent ticket, as stated by relator in his petition; and did further charge that no sufficient petition as required by law, has been filed with said board of deputy supervisors ; that said nomination papers did not contain three hundred signatures thereto as provided by law.
    “That upon the hearing’ of said petition it was developed by the evidence and was found by the court, that the nomination papers for the nomination of independent candidates did not contain three hundred signers, in conformity with and as required by law; that the papers conforming’ to law contained the names of two hundred and sixteen electors and no more. Reference is again had to exhibit ‘A,’ annexed hereto.
    “These answering defendants therefore ask that the peremptory writ prayed for by-relator be denied and for all other proper relief. ’ ’
    This answer is duly verified. The exhibit referred to in the answer is the order of the common pleas judge, and is as follows:

      State of Ohio, ) jn Court 0f Common Pleas. Mercer County, ss. )

    “Francis M. Dick for Himself et al., ETC., v. C. G. O. Miller et al.
    “ ENTRY.
    “This 29th day of October, A. D., 1894, this cause came on to be heard before the Hon. John E. Ritchie, a judge of the said common pleas court, in chambers, at the court house in Celina, Ohio, upon the application of the plaintiff, for the allowance of a temporary injunction. And thereupon came the defendants, by their counsel, and it appearing to the judge that all said defendants had been duly served with summons in said petition, and had due and legal notice of the restraining order heretofore allowed, and the time and place when and where said application would be made for the allowance of such injunction, said application was heard on the petition and the evidence, and upon the argument of counsel on behalf of plaintiffs and defendants, and the said judge being fully advised in the premises, finds that as to the nomination of independent candidates by nomination papers, that the said nomination papers do 'not contain three hundred signers thereto as provided by law; that said nomination papers by petition are not sworn to by signers as required by law; that, therefore, the prayer of the petition, in [so far as it concerns the placing and printing the candidates nominated by petition upon the official ballot of Mercer county, Ohio, for the ensuing general election, should be allowed.
    ‘ ‘It is, therefore, hereby ordered and adjudged that defendants be, and hereby are, enjoined from printing, or causing to be printed the said ticket nominated by petition on the said official ballot, until further order made herein, upon the plaintiff giving an undertaking, as provided by law, in the sum of one hundred dollars; and as to all other matters, for which an injunction is prayed for in the petition, the same is not allowed.
    “John E. Ritchie,

      “Judge Common Pleas Court, Mercer County, Ohio.'”

      The injunction bond, it was conceded, had been given as ordered. To this answer the relator filed a general demurrer.

      J. K. Richards, Attorney-General, for relator.

      John W. Loree, and R. L. Mattingly, for defendants.
   By the Court.

The matter of the ballots of Mercer county having been submitted to the state supervisor of elections, for the reason that no decision of the objections could be arrived at by the deputy state supervisors of Mercer county, they being equally divided, and the state supervisor having made his decision, the question is whether such decision is final, and whether, under the statute, the court of common pleas has jurisdiction to interfere by injunction or otherwise.

So much of section 10 of the ballot law, as bears on this question is as follows:

“Certificates of nomination and nomination papers, when filed, shall be preserved and be open, under proper regulation, to public inspection'; the certificates of nomination and nomination papers being so filed, if in apparent conformity with the provisions of this act, shall be deemed to be valid, unless objection thereto is duly made in writing, within five days after the filing thereof. Such objections or other questions arising in the course of the nomination of candidates for state offices and presidential electors shall be considered by the secretary of state, and his decision shall be final. Such objections or other questions arising in the course of nominations of candidates for county offices or offices of a district lying within a county, shall be considered by the deputy state supervisors of the county, and objections or questions arising in the course of nomination of candidates for district or' circuit offices or offices in a subdivision of a district shall be considered by the chief deputy state supervisors and clerks of said election boards of the several counties comprising the district, circuit or subdivision, and their decision shall be final; but in case no decision can be arrived at, the matter in controversy shall be submitted to the state supervisor of elections, who shall summarily decide the question thus submitted to him, and his decision shall be final.” (90 0 L., 269.)

It will be noticed that the decision of the board of deputy supervisors, as well as the decision of the district or circuit board, is final. Also, that the decision of the state supervisor is final, whether made as to candidates for state officers or presidential electors, in the first instance, or county, district or circuit officers, upon submission by those boards. The statute provides that the questions shall be summarily decided, and that the decision shall be final. This necessarily excludes the jurisdiction of the court of common pleas, as to the subject matter, and it is clear that the judge of the court of common pleas was without jurisdiction, and that his order granting the injunction was utterly void and of no effect, and furnishes no excuse for the refusal to obey the order of the state supervisor of elections.

It is urged that if the action of the state supervisor is final, and if the courts of the state have no jurisdiction to interfere, then this court has no jurisdiction in this case. The answer is that the action of the state supervisor is final as to the questions submitted to him, and courts have no jurisdiction of these questions; but when those questions are decided by the state supervisor, and the duties of the county board fixed, it becomes the duty of such board to obey the order of the state supervisor, and if the members of the county board refuse to execute the order of the state supervisor, they can be compelled to do so by mandamus. This is not invading the exclusive jurisdiction of the state supervisor, but is commanding obedience to his order after his jurisdiction has been exhausted. This court may in any case compel by mandamus “the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station.” (Section 6741, Revised Statutes.) The state supervisor having, by his decision, determined the names to be placed upon the ballots for Mercer county, it is by statute made the duty of the deputy supervisors to cause the ballots to be printed and distributed. This legal duty they refused to perform, and the court has jurisdiction and power to compel performance by mandamus.

The demurrer is, therefore, sustained, and a preerryptory xorit of mandamus awarded.


author: Bradbury, J.

text:
    Lee et al. v. Hennick et al.

      Agent — When becomes trustee — Preferring creditors by chattel mortgage— When conveyance becomes assignment in trust — Section 6343, Revised Statutes.

    Where property of a debtor is, in contemplation of insolvency, conveyed by chattel mortgage to an agent of a creditor, for the purpose of securing the debt of the latter, such agent, as to property thus conveyed, is a trustee for his principal, and the conveyance is an assignment under section 6343, Revised Statutes, and inures to the benefit of all the creditors of the mortgagor.
    (Decided December 18, 1894.)
    ERROR to the Circuit Court of Franklin county.
    The plaintiff in error brought an action in the •court of common pleas of Franklin county under section 6343, Revised Statutes, praying that a chattel mortgage, executed by said Charles Hen-nick to secure a debt, due from him to one of his creditors, be declared an assignment in trust for the benefit of all his creditors. Neither the court of common pleas nor the circuit court adopted the plaintiff’s view of the question. Thereupon they brought the record of the circuit court to this court for review.

      C. S. Cherrington, for plaintiffs in error.

      Byrne & O'Neil, for defendants in error.
   Bradbury, J.

The question to be determined in the case before us arises on a finding of fact made by the circuit court, which reads as follows:

“That on the 12th day of June,A. D. 1889, the defendant, Charles Plennick, was engaged in business as a merchant, keeping’ a retail saddlery and harness store at No. 135 E. Town street, in the city of 'Columbus, Ohio, in which city he also resided. That on said 12th day of June, 1889, said defendant, Hen-nick, was indebted to the plaintiffs in the sum of two hundred and twenty-nine and 5-100 dollars, with interest from the 1st day of December, 1888, at which date last aforesaid, said claim of plaintiffs against said Hennick became due. That on said 12th day of June, 1889, said Hennick was also indebted to divers other persons, among others to the defendants, Arthur D.,and William N. Anderson, doing business as partners, under the firm name and style of the Anderson Harness company, said last named indebtedness being evidenced by a promissory note signed by Charles Hennick and his father-in-law as his surety, dated September 29,1887, due in one year after date, and payable in terms to said “John T. Gale,as attorney in fact for the Anderson Harness company, or order;” upon which note there still remained due and unpaid the sum of $330.00 on June 12,1889.
“That at the time said note was given by said Hennick, and also on said June 12, 1889, said Gale was acting as the attorney in fact of the' Anderson Harness company, under authority of a power of attorney.
‘ ‘ That Gale had no personal interest whatever in said note, nor the debt evidenced thereby. That on said 12th- day of June, 1889, and for several weeks prior thereto, said Hennick was being pressed by plaintiffs for payment of their said claim, which was long past due, and also by said Gale for payment of the balance due on said note, but was unable to pay said claims or either of them, and suit was threatened and was about to be brought on each of said claims. That on said 12th day of June, 1889, said Hennick executed and delivered a chattel mortgage, whereby he assigned and conveyed all the fixtures and stock of goods and materials in his store (being the same property described in the petition), in terms to “John T. Gale, as attorney in fact for the Anderson Harness company,” said mortgage being conditioned for the payment of the balance due on the note hereinbefore described. Said mortgage was verified by “ John T. Gale, as attorney in fact for the Anderson Harness- company,” and was on the same day filed with the recorder of Franklin county, Ohio, and said Gale immediately took and held possession under said mortgage, of all the property conveyed by the same, and proceeded to sell said property for the purpose of paying the balance due on said note, with the full consent of said Hennick. That said Hennick had, at the time of executing said mortgage, no other property subject to execution. That said Hennick was insolvent when he gave said mortgage, and it was taken by said Gale and given by said Hennick, with the intent and purpose of securing said Hen-nick’s said debt to the said Anderson Harness company, and paying the same out of the proceeds of the sale of said property before any of his other creditors would be paid or secured.”

That Hennick, the mortgagor, was insolvent when he executed the mortgage in question is established by the finding of fact, as well as that the instrument embraced all the property he owned, which was subject to his debts, and that he had at the time other creditors, among whom were the plaintiffs below, now plaintiffs in error. The transaction, therefore, should be held to have been entered into and completed “in contemplation of Hennick ’ s insolvency, ’ ’ and ‘‘ with intent to prefer ’ ’ one “creditor.”

It is a settled doctrine in this state that the form of the instrument by which the transfer of the insolvent’s property is effected, is immaterial. If the debtor’s property is transferred to another, it constitutes an assignment within this statute, whatever instrument is chosen, if the other necessary conditions are present. Bloom v. Noggle, 4 Ohio St., 45; Harkrader v. Leiby, 4 Ohio St., 602; Dickson v. Rawson, 5 Ohio St., 218.

The only remaining question is whether Gale is to be regarded as a trustee for The Anderson Harness company. He certainly is such trustee, unless the circumstance that he was authorized, by a power of attorney, to act for them deprives him of that character. Whether an agent is created by a solemn power of attorney under seal, by an unsealed writing, or by parol, he is equally an agent when acting within the scope of the power conferred upon him.

The form with which it is conferred, concerns, in this respect, the method by which his authority is to be established rather than its extent. If an agent, created such by a sealed instrument, cannot become the trustee of his principal in a transaction embraced by the agency, then it is difficult to conceive how one appointed by a simple writing or by parol only, could be charged as the trustee of, his principal in respect to matters falling within the scope of his agency. It is true, no doubt, that the principal, under the liberal provision of our code of civil procedure, may generally obtain relief at law, as contradistinguished from that in equity, against his agents whatever their authority may be, or however delegated, and that therefore resort to equity may be less necessary, and, on that account, less frequent than formerly. Nevertheless, in a proper case, a principal whose property is in the possession of his agent may have recourse against the latter according to the principles of a court of equity; and when the former resorts to equity for relief he is entitled to that form of equitable relief appropriate to his case, which may consist in charging the agent as his trustee. Veil and Petray v. Administrators of Mitchel, 4 Wash. C. C. (U. S.), 105; Thompson v. Perkins, 3 Mason (U. S.), 232; Chesterfield Mfg. Co. v. Dehon, 5 Pick. (Mass.), 7; Norris et al. v. Tayloe, 49 Ill., 17; Bank v. King, 57 Pa. St., 202.

This principle is sustained by the recent case of Gashe v. Young, 51 Ohio St., 376, where this court held that,'“an agent who acquires property for a consideration furnished by his principal and takes the title in his own name, holds it as trustee for the principal; and, in general, when the title to property purchased, is taken to one or more persons, and the consideration, or an aliquot part thereof, is paid by another, a trust results in favor of the latter.”

The above case, like that now under consideration, was one'brought to have a conveyance, made by failing debtors, declared to create a trust for the benefit of creditors under section 6343, Revised Statutes. There an absolute sale of the property was the form of conveyance adopted, while in the case under consideration a chattel mortgage was selected. We have seen, however, that the form of the instrument chosen is immaterial if it creates a trust.

In the case before us the agent, Gale was the mortgagee in possession of the goods, to secure a debt due the principal, though evidenced by a promissory note payable to^Gale, the attorney in fact. The consideration had been paid by the principal. These circumstances bring the transaction within the principle of the syllabus in Gashe v. Young, above quoted. Had Gale taken the proceeds and invested them in other property real and personal, the principals could have pursued the fund where-ever it could be found, if the bona fide rights of third persons did not intervene. This they could do, solely, because of their right to treat Gale as. their trustee.

The relation of trustee and cestui que trust arose solely, from the nature of the transaction, and Gale was equally a trustee in respect to the property, whether he conducted himself honestly, or whether, by misconduct, he made it necessary for his principals to invoke, by a court of equity, a declaration of the trust, for their protection.

Judgment for plaintiffs in error on the finding of facts.


author: Spear, J.

text:
    Village v. Kallagher.

      Municipal corporation — Not insurer against accidents upon streets— Not bound to anticipate improbable events — Liability for bill board erected alongside of street.

    1. A municipal corporation is not an insurer against accidents upon streets. It is held, to reasonable care only in keeping them free from nuisance. Therefore, it is not bound to anticipate improbable or unprecedented events, and provide against their possible results.
    2. The action below was to recover for injuries from the falling of a bill board erected by citizens along the side of one of the streets of Oak Harbor. At the trial the defendant contended that the portion of the street where the board was placed was not generally used by the public; that the board was not an obstruction and did not interfere with the prdinary use of the street or sidewalk near it; that the board was constructed in a good substantial manner so as to be safe under ordinary circumstances, and that at the time of the accidentan extraordinary and unprecedented wind was blowing, which caused the board to fall upon the plaintiff, and evidence was given tending to sustain the contention. Thereupon counsel for the village requested the court to charge the jury in substance that if the evidence established the foregoing propositions there could be no recovery, which request was' refused. Held: Such refusal was error.
    (Decided December 18, 1894.)

      Error to the Circuit Court of Ottawa county.
    The defendant in error sought to recover for injury by reason of the falling upon her of a bill board which had been erected in one of the streets of the village by citizens for the purpose of advertising a church festival. She complained in her petition that the board had been put up some three weeks before the accident by certain persons with the knowledge and consent of the council and street commissioner of the village in a street known as Church street at the intersection of Water street, and close to. and along the south side of Water street. The board, which was some sixteen feet long and fourteen feet high, was so negligently set up and insecurely set on the ground as to be an obstruction, a hindrance and a nuisance in and to said Water and Church streets, and dangerous to persons passing by on Water street, which was one of the principal streets of the village, of all which the village authorities had full notice. On the 19th of April, 1889, while plaintiff was lawfully walking on the sidewalk on the south side of Water street and across Church street, which brought her within a few feet of the north side of the bill board, and, without fault or negligence on her part, the board fell upon her and inflicted serious injury. A general denial was pleaded in the answer. On trial a verdict for plaintiff was rendered. Judgment in her favor followed, which was affirmed by the circuit court. To reverse both judgments this proceeding in error is prosecuted.

      C. I. York and George Kinney, for plaintiff in error.

      Finefrock & Garver and J. T. Marshall, for defendant in error.
   Spear, J.

Evidence was given at the trial by defendant tending to show that Church street is sixty-six feet in width, the portion south of Water street terminating at the Portage river two hundred and thirty-five feet distant, where there is a dock; that this part of Church street was not generally Used by the public, and by those who did use it in a limited way only, so that the traveled part of the street south from Water was only about twenty feet in width, the portion from the east of that track to the sidewalk on the east side of the street being more or less given up to grass and weeds and used largely by adjoining owners for storing agricultural implements and for showing them; that the bill board which was about fourteen feet long by twelve high, was erected at a place in Church street between the east sidewalk and the traveled track over a space which was considerably rough and broken and not convenient for driving' upon, was wholfy on Church street and about three feet from the south line of the sidewalk on Water street and parallel with it; that the board was not an obstruction to travel, and did not interfere with the ordinary use or travel on the street or sidewalks near it. Also, that the board was constructed in a good and substantial manner so as to be safe and free from danger under ordinary circumstances. Also, by both parties tending to show that at the time of the accident a wind of extraordinary violence was blowing which caused the board to fall upon the plaintiff. “There was a big gale of wind that day; it blew the bill board over on her,” says one witness; “the wind was blowing very hard, a good deal harder than ordinary winds, stronger than ordinary high winds,” says another; “a very hurricane,” says a third; “a very high wind, higher_ than usual, an unusually high wind, ” says a fourth. And more to the same effect. As applicable to this evidence the defendant requested the court to instruct the jury that; “if you find from the evidence adduced, that the bill board was constructed in a good and substantial manner, that it was safe and free from danger under all ordinary circumstances, and that it was so constructed as not to interfere in any manner with the ordinary use of or travel on the streets or sidewalks near or about it, and that the fall of the bill board was caused by an unprecedented or extraordinary wind storm — I say to you that you must find for the defendant-in this action.”

The instruction was not given either in form or substance, but the charge as given permitted the jury to return a verdict for the plaintiff notwithstanding they might find that the conditions assumed in the request were established by the evidence.

In this we think the trial court erred. A municipal corporation is not an insurer against accidents upon its streets and sidewalks. It is held to reasonable care only in the keeping of its streets free from nuisance; impracticable things are not required, nor is the municipality bound to anticipate improbable or unprecedented events and provide against their possible results. To be bound to provide against unprecedented storms, therefore, is to be required to use extraordinary, or the highest degree of care. Hence, in this case, if the bill board was not in itself a nuisance, i. e., if it was so placed as not to interfere in any manner with the ordinary use of or travel on the streets or sidewalks near or about it, and was constructed in a good substantial manner, so that it was safe and free from danger under all ordinary circumstances, and its fall was caused by an extraordinary or unprecedented wind storm, the village could not be held liable. Chase v. Cleveland, 44 Ohio St., 505; Railway Co. v. Brigham, 29 Ohio St., 374; 1 Am. & Eng. Ency. of Law, 176, 177; same volume 24, p. 91; 2 Dillon’s Mun. Corp., section 1019; Chicago v. McGiven, 78 Ill., 347; Quincy v. Barker, 81 Ill., 300; Brown v. Glasgow, 57 Mo., 156; Flori v. St. Louis, 69 Mo., 341; Howard v. North Bridgewater, 16 Pick, 189; Jones v. Boston, 104 Mass., 75; Hewison v. New Haven, 34 Conn., 136; Allegheny v. Zimmerman, 95 Pa. St., 287.

Judgments reversed and cause remanded.