author: Burket, J.

text:
    Brook et al. v. Gregg, Assignee, et al.

      Probate court — No jurisdiction to order sale of life estate, when— Owners of life and remainder estates join in mortgage— Remainderman assigns — Assignee aslcs sale of remainder estate.

    The owner of an estate for life and the owner of an estate in remainder in the same land, joined in a mortgage upon both estates, and the remainder man afterward made an assignment of his estate for the benefit of creditors, and the assignee filed his petition in the probate court against the assignor, the mortgagee, and the owner of the life estate, praying for an order to sell such remainder, that such mortgagee be compelled to answer and ask for a sale of both es.tates under his mortgage, and that the life estate be sold as upon execution. Held: That the probate court had no jurisdiction to order a sale of the life estate upon the petition of the assignee.
    (Decided November 13, 1900.)

      Error to the circuit court of Fayette county.
    In December, 1897, Pope Gregg, assignee in trust for the benefit of the creditors of Elijah E. Brock, assignor, filed his petition in the probate court against said assignor and Susannah Brock, Leon H. Houston, and certain other lien holders, and after averring the assignment, the qualification of the assignee, etc., continued as follows in his amended petition:
    “Said plaintiff further says that the said Elijah Evan Brock is the owner in fee simple, subject to the life estate therein of the said defendant Susannah Brock, of a tract of land conveyed to said plaintiff by said deed of assignment, bounded and described as follows to-wit(Description of said lands 80 acres omitted.)
    “Said plaintiff further says that he is informed and believes and therefore avers that at once after the death of Evan Brock, from whom said defendants, Elijah Evan Brock and Susannah Brock, derived their title to said real estate, said defendant, Susannah Brock, took immediate possession of said tract of land above described, as life' tenant under the will of said Evan Brock deceased, and ever since said time has been in exclusive possession and control thereof, and has enjoyed the benefit of her life estate therein.
    “That at the time said Susannah Brock entered into possession of said land as above stated, the same was insufficiently drained, and the whole thereof for farming purposes, was wet and unproductive and the fencing thereon was out of repair and very defective, and that for the purpose of a proper enjoyment of her estate therein, and to render the same productive and profitable, it was necessary for the said Susannah Brock, or those holding under her, to build new fences and repair the old ones, to properly drain the same by digging ditches and constructing tile drains, and. otherwise to improve said land.
    “That afterwards, during the years of 1886 to 1896, said land was greatly improved in the respects above named by the defendant, Elijah Evan Brock, and a large sum of money was by him expended therefor; a schedule of said improvements and the cost thereof is hereunto attached marked Exhibit “A” and by this reference made a part of this pleading.
    “That in addition to the above payments and expenditures, said defendant, Elijah Evan Brock, also paid the taxes on said land for the years 1886 to 1892, amounting in all to the sum of $441.71, and also, in addition to the above, certain special assessments against said land, made for the purpose of improving a county ditch known as the “Brock Ditch,” which in all amounted to the sum of $198.30, and plaintiff avers that all-the payment of taxes and assessments were made by the said defendant, Elijah Evan Brock, for the purpose of protecting his interest in said property, and to prevent said land being sold, to pay the same.
    “That in order to procure the money to pay for the several amounts expended for the taxes and the improvements above set forth, it became and was necessary to mortgage the said land, which was done by the agreement of this defendant, Elijah Evan Brock, and the said Susannah Brock, a mortgage being first given to one Charles Beck, which said original mortgage was afterwards increased to the sum of $1,100.00' and a mortgage for that amount was given to the said Leon H. Houston, and said plaintiff avers that this last named mortgage, by the renewals and increase thereof from time to time, now represents the sums of money spent for the payment of the taxes and assessments, and for the improvements of the said land all as hereinbefore stated.
    “Said plaintiff further avers that while it was necessary, in order to procure said sums of money on said real estate, to mortgage the interest of Elijah Evan Brock therein in fee in remainder, yet it was agreed and understood by and between said Elijah Evan Brock and said Susannah Brock that his interest therein was pledged as security only for the debt of the said Susannah Brock and that he was only surety for the same, and that said debt was not incurred for the benefit of the said Elijah Evan1 Brock, but for the benefit of said Susannah Brock to make the same productive and yield to her an income therefrom.
    “Said plaintiff further avers that said defendant Susannah Brock is of the age of-years, and that she has no other property real or personal except her life estate in the land above described, and has no way or means to pay said mortgage indebtedness, except upon a sale of her life estate in said land. .
    “Said plaintiff further avers that a sale of the fee in remainder of said Elijah Evan Brock in said land separate from the life estate of said Susannah Brock therein would be unjust and inequitable, and the same would have to be sold at a great sacrifice, and would cause great and irreparable loss to the creditors of the said Elijah Evan Brock.
    “Wherefore plaintiff prays that there may be a finding by the court as to whom, as between the defendants, Elijah Evan Brock and Susannah Brock, the said mortgage indebtedness is chargeable, and the amount that is chargeable to each of said defendants, and that said defendant Leon H. Houston be required to file an answer and cross petition setting up the' said indebtedness due to him under said mortgage, and asking for a sale of the interests of both defendants Elijah Evan Brock and Susannah Brock, in said real estate for the satisfaction thereof, or that in default of such answer and cross petition, that said defendant Leon H. Houston shall be decreed to have waived his lien upon the interest of said Elijah Evan Brock in said real estate as to that part of said indebtedness due and owing to said Leon H. Houston ffom said Susannah Brock.
    “That said plaintiff be ordered to sell the interest of the said Elijah Evan Brock in said real estate, and that the court order the interest of said Susannah Brock sold as on execution; that the liens be considered by the court, and their respective priorities determined, and their payment ordered out of the proceeds of the sale; and for all proper relief.”
    By an amendment to the amended petition the following is added: “Said plaintiff further says that the mortgage of the said Leon H. Houston is conditioned as follows: ‘provided further that if the grantor or grantors shall fail to pay the interest on the principal note herein described, or fail to pay the taxes * * * or premiums for insurance * * * then in either of said cases the principal note herein described, together with interest to the time of such covenant and condition broken, for the interest notes or so much thereof as accrued to such time, shall immediately become payable and collectible by the holders thereof, and the same may be immediately enforced by suit at law or proceedings to foreclose the mortgage, at the option of the holders "Of the notes above described or any of them.’
    “Said plaintiff further says that an interest note secured by said mortgage for the sum of eighty-eight dollars, due on or about December 2, 1898, is past due and unpaid, and that by the conditions of the said mortgage the whole amount thereof is now due and payable, and that said mortgage may be foreclosed immediately.”
    To this amended petition the following demurrer was filed:
    “Now comes the defendant, Susannah Brock, and demurs to the amended petition of the plaintiff, and says that the same does not state facts sufficient to constitute a cause of action in favor of plaintiff and against said defendant, or to entitle the plaintiff to .any relief against her.”
    The probate court sustained the demurrer and dismissed Susannah Brock from the action.
    The court of common pleas reversed the judgment of the probate court, and the circuit court affirmed the judgment of reversal, and thereupon she filed her petition in error in this court, seeking to reverse the judgments of the circuit court, and of the court of common pleas, and for an affirmance of the judgment of the probate court.

      John Logan, for plaintiffs in error.
    The question for determination is whether under "Section 6851, Revised Statutes, the probate court may entertain an action by the assignee for the benefit of creditors of the owner of an estate in remainder to compel the life tenant to disencumber the remainder from the lien of a mortgage on both estates, alleged to have been executed by the remainderman merely to pledge his estate as security for the debt of the life tenant.
    The power which it is sought to have the probate court exercise is not comprised within its constitutional jurisdiction. Art. 4, Sec. 8, of the Constitution.
    Nor does Chapter 6, of Title 4, of the Revised Statutes, Sections 523, et seq., sanction such action.
    “The real estate to be sold,” is obviously that which section 6350 directs the assignee to sell, to-wit, “the real estate assigned.”
    Whatever questions are involved as to the title to such property, are cognizable in the probate court; but none other; and the persons in interest, whom the statute directs to be made parties, are the assignors, his wife, all other lien creditors, and persons having or claiming an interest in or lien upon the property sought thus to' be sold; all persons involved in any questions of title affecting that estate.
    The life tenant as such has no interest in the title to the remainder.
    While it is apparent that the debt is not due; still in no case is the jurisdiction given to the probate court to entertain such action; but the authority to hear such case is “only conferred on the courts of common pleas, they being courts of general jurisdiction in matters of law and equity, and therefore more competent, from the character of their judges, constantly employed in the exercise of such jurisdiction, to hear and determine such matters.” Spoors v. Coen, 44 Ohio St., 497.
    If the probate court may not entertain an original action under the provision named, it certainly may not take cognizance thereof when joined to a cause of action to sell assigned real estate under section 6351.
    The theory of the assignee has been that the probate court has jurisdiction under the act of 1896, 92 O. L., 665, in mortgage foreclosure, so that the mortgagee may be required by cross-petition to force sale of the life estate, and thus, in the probate court, work out the objects of the action. The contention is that an assignee for creditors may, in an action in the probate court, mandamus a mortgagee to determine his contract and foreclose his mortgage, compel the principal to pay his debt, for which the assignor is, liable as surety, and sell the assigned real estate.
    So far as the mortgagee is concerned, the courts have no power to affect the obligation of his contract; if an option be given in his mortgage to declare his, debt due in any contingency before the term of the debt, that option belongs to the mortgagee and the courts have no right to say how it shall be exercised; otherwise, there would be no option to the mortgagee. Wilkins v. Ohio Nat. Bank, 31 Ohio St., 565.
    The theory that jurisdiction may be conferred by consent, where it is otherwise lacking, has been repudiated by this court. Gilliland v. Sellers, 2 Ohio St., 223; Railroad Co. v. Marshall, 11 Ohio St., 497; Evans v. Iles, 7 Ohio St., 234; Spoors v. Coen, 44 Ohio St., 497; Steamboat v. Long, 18 Ohio St., 521.
    The probate court has not been given the jurisdiction invoked, and the common pleas and circuit courts erred in reversing the judgment of the probate court.

      Gregg, Patton & Gregg, for defendants in error.
    It has been insisted by counsel for plaintiffs in error, that the probate court of Payette county was wholly without jurisdiction to grant the relief sought by the assignee in this case, under the facts stated in the petition as amended, for the reason that no such jurisdiction is conferred on said probate court by law.
    Susannah Brock, the owner of the life estate, that was encumbered by the mortgage, and as set forth in the petition, the principal debtor, was certainly a party in interest within the meaning of Section 6351.

      The condition of the mortgage being broken, tbe only interest passed by tbe assignment to tbe assignee, and tbe only interest remaining in tbe life tenant, were tbeir respective equities of redemption. Tbe legal title to both interests were merged in tbe mortgagee
    Both parties being liable, tbe life tenant as principal, tbe other as surety, for tbe same debt, and it being necessary in tbis action to order it paid, can it be claimed that Susannah Brock was not a party in interest? How could tbe court determine tbe questions otherwise?
    Tbe inchoate right of dower of tbe wife or widow of 'the assignor, is a separate interest that does not pass by tbe deed of assignment. Yet tbe court can by decree bar such right of dower in tbis action.

      Shroyer v. Richmond, 16 Ohio St., 455; Kelley v. State, 6 Ohio St., 269; Ries v. Bank, 10 C. C., 656; 5 Circ. Dec., 20; Farwell v. Dry Goods Co., 11 C. C., 100; 5 Circ. Dec., 303; Clapp v. Banking Co., 50 Ohio St., 528; Saylor v. Simpson, 45 Ohio St., 141; Brown v. Trottner, 11 C. C., 498; 5 Circ. Dec., 222; Havens v. Horton, 53 Ohio St., 342; Baker v. Lamkin, 11 C. C., 103; 5 Circ. Dec., 54; Doan v. Biteley, 49 Ohio St., 588.
    Tbis case comes under tbe rule laid down in case of Davis v. Davis, 11 Ohio St., 391; Clapp v. Banking Co., 50 Ohio St., 528.
    If Section 6351 does not confer tbe jurisdiction, certainly tbe special act above is broad enough to confer such jurisdiction.
    Tbe question made here will have to be determined either by tbe probate court or the court of common pleas of Fayette county, before tbe assignee will have discharged bis trust according to law. To tbe extent that the mortgagee seeks to hold the estate in remainder for the payment of his debt, it is clear that he would have to work out his equities in the probate court. Lindemann v. Ingham, 36 Ohio St., 1; Sayler v. Simpson, 45 Ohio St., 141.
    It is also clear that the court, the mortgagee being properly in court, could by decree extinguish his-rights under his mortgage and sell the property free therefrom, and he would have to look to the fund in the assignee’s hands for the satisfaction of the same, and that said mortgagee could be compelled to accept the amount of his debt whether due or not.
    But before a decree could be rendered that would bind the life tenant she would also have to be made a party. ■
    By joining in the execution of the mortgage the life tenant placed her property in a situation that gave the court jurisdiction, that would not exist otherwise. The execution of the mortgage was the act of the party, but the result that followed such execution was by operation of law.
    It is also true that a court of chancery, having jurisdiction of the parties acts in personam and will not hesitate to grant relief although the property is without the jurisdictional limits of the court. Bispham’s Equity, 65; Muller v. Dows, 94 U. S. (4 Otto), 444; Bispham’s Equity, p. 410.
    This being true a court of equity would order a sale of such interest to satisfy such liens. Why should the assignor’s rights be destroyed by changing the form of the security and pledging his property for the payment of the debt.
    It is conceded that the assignee, by paying the mortgage debt, would be entitled to be subrogated to all the mortgagee’s rights thereunder, but that does not furnish an adequate remedy in this case. The only adequate remedy is the form of action adopted in this case, the equitable remedy of exoneration. Fetter on Equity, p. 254; Bispham’s Equity, p. 390, 391; 93 N. Y., 225; 131 N. Y., 262; 30 N. E., 102; 23 Pa. St., 294; 124 U. S., 61 N. H., 356; Am. and Eng. Ency. Law, vol. 7, 346; Stump v. Rogers, 1 Ohio 533; McConnell v. Scott, 15 Ohio, 401; 123 Ind., 397; 1 Ch. Ca., 223.
   Burket, J.

The answer of Leon H. Houston set up his mortgage, but did not ask its foreclosure, and he did not elect to enforce his option to have the principal note become due and payable by reason of the nonpayment of the interest note for eighty-eight dollars, and the other interest notes as well as the principal were not yet due.

Upon this state of facts was the demurrer properly sustained? Or in other words, had the probate •court jurisdiction to adjudicate as to the rights and liabilities of Mrs. Brock? She has a life estate in the land and her son has an estate in remainder in the same land. Her estate is separate and independent of his. It is not a right in the land like unassigned dower, but is an estate by itself. Her estate must end before his can begin as an estate in possession. While his estate is vested, the beneficial interest as an estate in possession must await the extinction of her •estate. The two estates are to be enjoyed, not at the same time, but in succession, hers first, his afterward-. His estate passed by his deed of assignment to his assignee, to be administered under the jurisdiction and orders of the probate court. Her estate remained in herself, subject to the mortgage lien upon it in favor of Mr. Houston. Her estate is not a lien on his; neither is his a lien on hers. As between the assignee and Mrs. Brock, there is no question in regard to the title to her life estate requiring a settlement. Her title is conceded beyond question to be that of a life estate, nothing more, nothing less. A decree of a court is therefore not required to settle any question as to her estate. No wife or widow of the assignor has any dower estate in her life estate. Her life estate is not to be sold by the assignee under the deed of assignment, and it was not contracted to be sold by the assignor prior to the assignment.

It is therefore clear that her life estate is not included either in the words or spirit of section 6351, Revised Statutes. So much of that section as affects, this question is as folows:

“The probate court shall order the payment of all incumbrances and liens upon any of the property sold, or rights and credits collected, out of the proceeds, thereof, according to priority.
“Provided, that the assignee may, in all cases, where the real estate to be sold, or which may have been contracted to be sold by the assignor prior to the assignment, is incumbered with liens, or where any questions in regard to the title, or the dower estate of' the wife or widow of the assignor, require a decree to settle the same, commence a civil action therefor in the common pleas court or probate court of the proper county, making all persons in interest, including the Avife or widow of the assignor, parties to such proceedings ;
“And upon hearing, the court shall order a sale of the premises, of the completion of the contracts of' sale made by the assignor, the payment of the incumbrances and the contingent dower interest of the wife or widow, subject to the proviso hereinafter contained, and determine the question involved in regard to the title of same;
“And the proceeds of all the real estate so sold, after payment of heirs and incumbrances, and the- contingent dower rights and interest of such wife or widow-, as ordered by such court shall be reported to the probate court by the assignee, and disposed of as provided in this chapter.”

The question as to the jurisdiction of the probate court in this case, under this section, is the same as if she had a life estate in one tract of land and her son had an estate in remainder in another, and both bad joined in a mortgage on both estates, and the son .had afterwrard made an assignment for the benefit of creditors. In such a case it could not reasonably be -claimed that the assignee could, by petition in the probate court, force a sale of her life estate. The confusion in this case has arisen by failing to realize that the life estate is independent of the estate in remainder, as much so as if the life estate and estate in remainder wrere in two different tracts.

It is argued by counsel for defendants in error that if the probate court has no jurisdiction to order a sale of her life estate under said section 6351, jurisdiction is conferred by the special act of April 27, 1896, 92 O. L., 665, conferring jurisdiction on the probate court of Payette county concurrent with the court of common pleas “in all actions (1) for the partition of real property, and (2) for the sale of real or personal property under a mortgage, lien or other incumbrance, with the same jurisdiction as the court of common pleas to determine all questions, whether legal or equitable that may arise in reference to said property.”

Remembering that the controversy under the-amended petition, and the amendment thereto in this case is between the assignee and Mrs. Brock, and not. between Mr. Houston, the mortgagee and Mrs. Brock, it, must be clear that the action of the assignee against-Mrs. Brock is not for the sale of her real estate under a mortgage, a lien, or other incumbrance, because he has no mortgage, no lien, and no other incumbranceon her life estate, and he pleads none. He therefore; has no right of action against her, as to her life estate, and no question either legal or equitable can arise with reference thereto as to him. Mr. Houston, asks no relief on his mortgage and does not pray for-its foreclosure, or for an order to sell her life estate.. His mortgage not being due, he has the right to await its maturity as to her life estate, and the assignee can not force him to foreclose his mortgage upon the life-estate.

In legal effect this is an action by a surety, the assignee, to compel the principal, Mrs. Brock, to discharge the debt secured by the mortgage to Mr. Houston, but the probate court has no jurisdiction of such an action, and if it had, the action can only be brought, after the debt is due.

It is urged that there was a merger of the life estate and remainder by reason of both joining in the-mortgage, but that could not work a merger in favor-of the assignee. He stands in the shoes of the remainderman, and not in the shoes of the mortgagee..

It is also urged that, as both are liable to Mr. Houston for the same debt, one as principal and the other as surety, it is necessary in this action to order the debt paid, and that Mrs. Brock is therefore a party in interest. That argument is not sound. As the probate court has no jurisdiction to sell her life estate, and has no jurisdiction to compel her. as principal to discharge her debt so as to save the surety, it has no jurisdiction to order the debt paid in so far as concerns Mrs. Brock; and the distribution of the proceeds of the sale of the estate in remainder, even though it should all go to Mr. Houston on his mortgage, does not concern Mrs. Brock, and she has no interest therein, and is not a proper party thereto.

When it is conceded, as it must be, that her life estate is not connected in privity or estate with his remainder, and that the assignee stands in the shoes of his assignor, and that the rights of the mortgagee do not inure to the assignee, it becomes clear that the probate court has no power to order a sale of her life estate upon the petition of the assignee.

It is urged that a sale of both estates together will produce more money for the creditors, and also for the mortgagee, than separate sales, and that, therefore, the probate court has jurisdiction to order the sale of both. This argument is not sound. As to the mortgagee, it is sufficient to say that he is not asking a sale of both estates under his mortgage, and there is no statute authorizing the assignee or the probate court to control his actions in this regard. He is of age and free to use his rights under his mortgage as he sees fit. If the assignee had a lien upon the life estate, he might then force a sale free of Mr. Houston’s mortgage, and compel him to look to the proceeds of such sale for payment, but the assignee has no lien on the life estate, and, therefore, can not force the sale thereof.

As to the creditors it is enough to say that they can not claim more than the proceeds of the sale of the estate conveyed by the deed of assignment. It often occurs that the sale of two separate adjoining pieces of real estate as one property, would produce much more than a separate sale of each, but that fact does not authorize the probate court to order a sale of both, upon the petition of the assignee of the owner of one of them. To so order would be in conflict with the rights of private property, and it is beyond the power of the general assembly to authorize such an order.

The probate court was right in its judgment, and the judgment of the circuit court, and of the court of common pleas will be reversed, and that of the probate court affirmed.

Judgment reversed.


source: Caselaw Access Project

author: Williams, J.

license: Public Domain

text:
    The State of Ohio ex rel. Culbert v. Kinney, Secretary of State and State Supervisor of Elections for the State of Ohio.

      State supervisor of elections — Duties and powers — Section 2066-8, Revised Statutes — Appointment of deputy state supervisor — Recommendation for appointment of qualified person Toy county executive committee — Mandamus proper remedy to compel slate supervisor to perform duty.

      1. By Section 2966-3, of the Revised Statutes, the state supervisor of elections was required, on or before the first Monday in August, 1892,to appoint deputy state supervisors of election for the term of one and two years from that date, as therein provided; and, as the first Monday in August of that year was the first day of the month, that became the day of the month for the beginning of the terms of subsequent appointees, and on or before which such subsequent appointments should be made.
    '2. When a recommendation for the appointment of a qualified person as deputy state supervisor of elections, signed by the chairman, secretary and members of the county executive committee of a political party that at the preceding November election cast the highest or the next highest number of votes for governor or secretary of state, is placed on file with the state supervisor of elections, within the required time, it is his duty to appoint the person so recommended.
    3. Mandamus is the proper remedy to enforce the performance of that duty.
    (Decided November 13, 1900.)
    Mandamus.
    This action is brought to compel the defendant to appoint the relator to the position of deputy state supervisor of elections for Sandusky county.
    The petition alleges that on the 17th day of July, 1900, there was filed in the office of the defendant, the recommendation of the republican executive committee of Sandusky county, for the appointment of the relator as a deputy state supervisor of elections of that county, for the term beginning August 1, 1900, and ending July 31, 1902; that the relator was then, and is, a citizen and elector of that county having all the qualifications necessary for a deputy state supervisor of elections for the county, and that he was then, and still is, a member of the republican party which, at the election held in November, 1899, cast the highest number of votes in this state for the, office of governor. It is further alleged that notwithstanding the recommendation so filed, the defendant, in violation of his duty, refused, and still refuses, to appoint the relator to the office or place of deputy state supervisor of elections for Sandusky county. The prayer is for a. writ requiring defendant to make the appointment.
    The defendant by his answer denies the allegations of the petition, and avers that “there being no recommendation before him for the appointment of a deputy state supervisor of elections in and for the county of Sandusky, from, the republican executive committee of said county,” he appointed to that place another person, who has entered upon his duties and is still acting in the performance thereof. Evidence was taken on the issues thus joined, which, it is conceded, shows that on the 14th day of July,. 1900, there was sent from Fremont, Ohio, to the office of the state supervisor of elections at Columbus, Ohio, the following recommendation: “Recommendation for appointment of member of board of deputy state supervisors of elections for Sandusky county. Fremont, Ohio, July 14, 1900. To the Secretary of State, Columbus, Ohio. The undersigned members, chairman and secretary of the republican executive committee of Sandusky county, Ohio, acting for and on behalf of said committee, hereby recommend Albert E. Culbert, of Fremont, Ohio, for appointment as deputy state supervisor of elections for said county for the term beginning August 1, 1900, and ending July 81, 1902. (Signed.) J. D. Bemis, Chairman, A. H. Jackson, A. E. Culbert, Secretary, J. H. Becker, C. P. Myers, W. A. Roush.” This document was received at the office of the defendant on the 17th day of July, 1900, and was then filed therein with the following endorsement: “Recommendation for appointment of deputy state supervisor of elections for San-dusky county. Republican. Received July 17, 1900. Charles Kinney, Secretary of State.” And the receipt and filing of the paper by the defendant was acknowledged in the following communication to. the relator: “Ohio, Department of State, July 17, 1900. Albert E. Culbert, Fremont, Ohio. Dear Sir: I am in receipt of the recommendation of the republican executive committee of your county in behalf of your appointment as deputy state supervisor of elections, and have filed the same. Very respectively yonrs, Charles Kinney, Secretary of State.”
    On the 14th day of July, 1900, E. L. Rugh, the only member of the republican county executive committee of Sandusky county, whose name is not signed to the recommendation herein above set forth, sent his written recommendation to the state supervisor of elections in the words and figures following: “Gibson-burg, Ohio, July 14, 1900. Hon. Charles Kinney. Secretary of State, Columbus, Ohio. My Dear Sir: I hereby recommend Albert E. Culbert, of Fremont, Ohio, for appointment as deputy state supervisor of elections for said Sandusky county, for the term beginning August 1, 1900, and ending July 31, 1902. (Signed.) E. L. Rugh.” The evidence also shows that the persons whose names are signed to the foregoing recommendations constituted the entire republican executive committee of Sandusky county, that their signatures thereto were genuine, and that J. D. Bemis was chairman, and A. E. Culbert, secretary of the committee.

      Dyer, Williams & Stouffer; Richards é Heffner; D. B. Love and J. M. Hall, for relator.
    The recommendation of the relator was in writing, duly signed by the officers of said committee and also by all the members thereof except Mr. E. L. Rugh, who presented a separate written recommendation; and the relator contends that this recommendation contains the expressed will of the committee, and that it can not be questioned by the respondent except on the ground that it is fraudulent, and not genuine. .
    No such claim as this is made by the respondent or his attorneys; and we, therefore, contend that no testimony should be considered by the court in its determination of this case except the recommendation itself. This conclusion must be accepted as correct; for, if this recommendation is not fraudulent, it must be genuine; if genuine, is expresses the will of the executive committee.
    Now the will of the executive committee, when expressed in the form of a recommendation of a qualified person, to the state supervisor, at least ten days before the appointment is made, must be regarded; for, in the language of the statute, “then the state supervisor shall appoint the persons so recommended.”
    The duty of the state supervisor being purely ministerial, mandamus will lie.
    Under the statute, when the proper committee has recommended, the secretary of state has no discretion in the making of the appointment. The language of the statute is, that if such recommendation be made, “then the state supervisor shall appoint the person so recommended.”
    His duty is purely ministerial, and is plainly specified. Marbury v. Madison, 5 U. S. (1 Cranch), 137; State ex rel. v. Moore, 42 Ohio St., 103; Coll v. Canvasser, 83 Mich., 367 (S. C., 47, N. W. Rep., 227; Strong, petitioner, 20 Pick., (Mass.),484; Groom v. Gwinn, 43 Md., 574; State ex rel. Truesdell v. Plambeck, 36 Neb., 398, (S. C., 54, N. W. Rep., 667), 404; Speed v. Common Council, 97 Mich., 211; Ellis v. County Commissioners of Bristol, 2 Gray, 370; People ex rel. v. Hilliard, 29 Ill., 413; People ex rel. Brewster and Jones v. Kildruff, 15 Ill., 493; Merill on Mandamus, Section 140.
    The action' of the county executive committee of Sandusky county was regular and in due form.

      It is the claim of the respondent herein, that he was not bound to appoint the relator, for the reason, that the recommendation made to him on relator’s behalf, was not the action of the executive committee of the republican party of Sandusky county, but was the action of the individual members thereof.
    The action of the committee making the recommendation is the controlling thing. The subsequent signing of the printed form by the chairman and secretary, or by all the committee as in this case, was simply the formal execution of the agreed action of the committee, and it is immaterial when or where said recommendation was signed.
    It will be noted that all of the cases cited by counsel in'brief for respondent, which counsel have been kind enough to furnish to us in advance of the preparation of our brief, are cases which have relation to corporate bodies, or to bodies officially organized, by statute, in the nature of corporations.
    This is distinctly stated to be the basis of the decision in the case of State ex rel. Steinbeck v. Treas., 22 Ohio St., 144.
    The republican county executive committee of San-dusky county is neither a creature of statute nor a body corporate. It has no corporate rights, and cannot exercise any corporate functions.

      McKane v. Adams, 123 N. Y., 609; 51 Hun., 629.
    It is clear, therefore, that the reasoning and the authorities contained in the cases cited by counsel, applying as they do to corporations and corporate acts, are not pertinent to the case at bar.
    This committee had no constitution or by-laws, nor had it even adopted any rules for its guidance in conducting its business. It therefore cannot be said that because such formal action as the statutes require of corporate bodies, or such as conform in all respects to the rules of parliamentary law, was 'not observed, that the action of this committee in recommending relator was, therefore, void. On the contrary, the subsequent signing of the recommendation of relator by the officers and members of this committee is such a ratification of the action of the committee at its meeting as to preclude the denial of the good faith of the committee’s action. Broat, 27 N. Y. Sup., 176.
    In none of the authorities, is it held to be necessary that there should be a formal vote of the body, except in those eases, where, by statute, it is made the duty of such boards or other bodies to keep a formal record of their proceedings. Madden v. Smelts, 2 C. C. R., 168; 1 Circ. Dec., 424; McCortle v. Bates, 29 Ohio St., 419; 19 Am. and Eng. Ency. of Law, 465; Stewart v. Wallis, 30 Barb., 344.
    These authorities, and the other authorities quoted by counsel for respondent in their brief, all show that the essential features necessary to the validity of the act of a body of the kind and character of the republican county executive committee, are the following:
    1. That the members shall have proper notice of the meeting.
    2. That a quorum shall be present at such meeting.
    3. That they shall deliberate upon the subject matter before them.
    4. That they shall take action while in session.

      J. M. Sheets, Attorney General; Daniel J. Ryan and George E. Jones, for respondent.
    There was no action by the executive committee of the republican party of Sandusky county, as such; therefore the power of the state supervisor of elections to appoint a deputy state supervisor for said county was limited only by his legal discretion.
    Whatever irregularities a committee may allow or exhibit in its ordinary transactions among its members, when it seeks to deal with another whose action is affected by its action, then a committee, or any other organized body, must be prepared to show that it has acted according to the forms of law, and in the only way in which it can legally act, and to show what the body, meeting as such, by a vote of its constituent parts, has determined. Reed’s Rules of Order, a Manual of General Parliamentary Law, by Thomas B. Reed, p. 16, et seq.; In re Broat, 27 N. Y. Sup., 184; Reed’s Rules, supra, p. 74.
    Such notice must specify the particular purpose for which the meeting is called, and any act of the meeting wholly beside the special purpose of the meeting as stated, is void.
    Dillon on Municipal Corporations, 4th Ed., Vol. 1, Section 286; Whitehead v. Hamilton Rubber Co., 52 N. J., 78; Hill v. Rich Hill Mining Coal Co., 119 Mo., 9; 24 S. W. Rep., 223; Mercantile Library Hall Co. v. Pittsburg Library Ass’n, 173 Pa. St., 30; Kent v. Quicksilver Mining Co., 78 N. Y., 159; State v. Smith, 15 Ore., 98; Beach on Private Corporations, Vol. 1, 456; Farwell v. Houghton Copper Works, 8 Fed. Rep., 66; Commonwealth v. Gullen, 13 Pa. St., 133, or 33 Am. Dec., 450; Beach on Private Corporations, Section 279; Angell & Ames on Corporations, Section 493; Potter on Corporations, Vol. 1, Section 339; Reed’s Rules, 22; 19 Am. & Eng. Ency. Law, 465; State ex rel. Shinnich v. Green, 37 Ohio St., 227; Potter on Corporations, Vol. 1, Section 343.

      Relator’s claim that at the alleged meeting it was agreed to recommend him, is not sustained by the evidence; on the contrary the testimony shows that no action whatever was taken or decided upon. Two or three members, according to the testimony of relator,, expressed themselves favorable to the appointment of relator, but that was all. Jackson, Myers, and probably Rugh, were not present when any mention was máde of the matter of deputy state supervisor.
    Relator’s sworn statement that no action was taken because the committee had no blank to make the recommendation upon, shows beyond controversy, that no determinate action was taken by the committee.
    But the relator claims that several months after this meeting, to-wit; about the middle of July, 1900, a blank was filled out by him, circulated by him, and the signatures of the individual members of the committee procured at different times and places by him, and that this paper was delivered or sent to respondent by relator, and that this paper is the recommendation required by law.
    We submit that the separate acts of members of a body are not the acts of the body. State ex rel., Steinbeck v. Treasurer, 22 Ohio St., 144.
    Signatures of members of a board at their places of business to discharge a person in the workhouse, makes the discharge void.

      Ex parte Walker, 8; W. L. B., 198; 8 Dec. Re., 480; Cooley on Taxation, 2nd. Ed., 258; Dowing v. Ruger, 21 Wend., 178; Fuller v. Gould, 20 Vt., 643; Columbus R. Co. v. Grant Co., 61 Ind., 427; Cooley on Taxation, page 58, 2nd Ed.; McCortle v. Bates, 29 Ohio St., 419.

      The question involved herein is purely political, and not involving either personal or property rights,, the writ should not issue for want of jurisdiction.
    The office of deputy state supervisor of elections is-not held by grant or contract; neither the incumbent or claimant herein has any property or vested interest in said office. It is created solely for the benefit of the public. Connor v. City of New York, 1 Selden, 285.
    This is the accepted doctrine in this country, Throop on Public Officers, Section 17, p. 18; Hyde v. State, 52 Miss., 665; Donahue v. County of Will, 100 Ill., 94; State ex rel., Attorney General v. Hawkins,. 44 Ohio St., 98; 3 Kent’s Commentaries, 454; Taylor v. Beckham, 20 U. S. Sup. Ct. Reporter, 890.
    Unless protection is sought for property or against the infringement of personal rights the writ will not. issue. Political rights are not protected by the courts. Judd v. Town of Fox Lake, 28 Wis., 583; Merrill on Mandamus, Section 61, p. 69.
    When a bill in equity calls for judgment upon a political question, it will not be entertained by the court. State of Georgia v. Secretary of War, 73 U. S. (6 Wall.), 50; Marbury v. Madison, 5 U. S. (1 Cranch), 137; Dickey v. Reed, 79 Ill., 261; McKane v. Adams, 123 N. Y., 609; Daily v. Packard (Special Term, 1882).
    The court should refuse to issue a writ of mandamus in this case, because the title to the office is involved, and the proper remedy is guo warranto. Merrill on Mandamus, Section 140, pp. 175, 176; McCrary on Elections, Sections 402, et seg.; Commonwealth v. Commissioners, 5 Rawle., 75.
    A mandamus will not be granted if the title of the applicant to the office, by virtue of which he makes the application for such mandamus, be drawn in question by the pleadings. This is the case in the matter before the court. Albert E. Culbert, the relator, seeks to have his rights to the office of deputy state supervisor determined by this court. He must first establish his right by the proper proceedings. He cannot do this on application for mandamus. Paine on Elections, Section 928, p. 770; United States v. Guthrie, Sec’y of Treasury, 58 U. S. (17 Howard), 305; Anderson v. Colson, 1 Neb., 172.
    The state supervisor of elections is invested with certain official discretion concerning the performance of his public duties, and in the absence of bad faith and abuse of discretion, will not be controlled or directed by mandamus. •
    That the state supervisor of elections possesses certain discretion in the appointment of deputy state supervisors is apparent from the statute. When the executive committee recommends, the state super' visor is the judge of two elements in the appointment, viz.:
    1. He determines the fact as to whether the executive committee has recommended;
    2. He determines the fact as to whether the person recommended is a “qualified person.”
    90 O. L., 263; State v. Kendall, 15 Neb., 262; United States v. Seamen, 58 U. S. (17 Howard), 225; United States v. Guthrie, 58 U. S. (17 Howard), 284; State v. Governor, 22 Wis., 110; People v. Contracting Board, 27 N. Y., 378.
    Mandamus will not lie to control the discretion vested in a public board. 14 Am. & Eng. Ency. of Law, p. 99; Hoole v. Kinkead, 16 Nev., 217; Ex parte Black, 1 Ohio St., 30; State ex rel. v. Crites, 48 Ohio St., 460; State ex rel. v. Commrs. Belmont Co., 31 U. S., 451; State ex rel. v. Commrs. Shelby Co., 36 Ohio St., 326.
    Mandamus cannot issue to compel the issuance of an election certificate, where there are disputed facts to be determined before the relief can be granted. People v. Vandervoort, 65 N. Y. Sup., 100.
    Mandamus will lie where a board or officer exercising a quasi judicial function refuses to act, and not after action to reverse or review the judgment or discretion of the board or officer. Civic Federation v. Salt Lake County, 61 P., 222; Karb v. State, 54 Ohio St., 383.
    That a public officer who is called upon to use official judgment and discretion cannot be directed by mandamus, in the absence of fraud and abuse, is the accepted and settled rule in Ohio.

      State ex rel. v. Moore, 42 Ohio St., 103.
   Williams, J.

The statute which makes the secretary of state ex officio the state supervisor of elections contains the following provision: “On or before the first Monday in August, 1892, such state supervisor shall appoint four deputy state supervisors for each county in this state, who shall be qualified electors of the county for which appointed. For the first appointment, two members shall be appointed for a term of one year, and two for a term of two years from the first Monday in August in 1892. One member so appointed for one year and one for two years shall be from the political party which cast the highest number of votes at the last preceding November election for governor or secretary of state. The other two members shall be appointed from the political party which cast the next highest number of votes for such officer at said November election. Thereafter appointments shall be made annually for two deputy state supervisors for each county for the term of two years, which appointments shall be from two political parties which cast the highest and the next highest, number of votes at the last preceding November election for governor or secretary of state.” Section 2966-3. As the first Monday in August in the year 1892, was the first day of that month, that became the day of the month, on or before which subsequent appointments of deputy state supervisors were and are to be made as required by the foregoing provision, and such appointments continue for the term of two years thereafter. State v. Neibling, 6 Ohio St., 40-42; State v. Handy, 51 Ohio St., 204. The statute contains the further provision that, “if the executive committees of the two political parties in the county casting the highest and the next highest number of votes in this state at the last preceding November election, recommend qualified persons to the state supervisor at least ten days before the appointment is made, then the state supervisor shall appoint the persons so recommended to. the number to which such party is entitled; but if no such recommendation is made, the state supervisor shall make the appointments agreeably to the-provisions herein contained.”

These statutory provisions are mandatory in terms, enjoining on the state supervisor of elections the duty of appointing, each year, at the time named, one-deputy supervisor of elections for each county from each of the two political parties that, at the preceding November election, cast the highest and the next highest number of votes for governor or secretary of state, and requiring him to appoint the person recommended by the county executive committee of such party, when he possesses the necessary qualifications, and the recommendation has been properly made within the required time. The obvious purpose of the statute is to allow the designated political parties, through the executive committee appointed by them, to select their own representation on the county board of elections; and when their recommendation is properly made, the state supervisor is not at liberty to disregard it and appoint another person of his own choice. He is called upon to decide in the first instance whether the person recommended is qualified and the recommendation is made by the proper committee within the proper time. But his decision when contrary to the fact, in either respect, is open to correction by the courts.

The real defense made in this case is, that the relator was not properly recommended for appointment because his recommendation was not authorized by regular action had at an organized meeting of the committee. There was no resolution or motion favoring the relator’s recommendation adopted while the committee was in session; but we have discovered nothing in the statute which requires that manner of recommendation, or the observance of any particular formality. The committee is merely an agency of convenience, whose members are usually chosen by convention to look after the local interests of the party, and they are neither required to keep a record, nor to conform their proceedings to any particular rules or regulations. It bears little or no analogy either in its character or functions to those boards and bodies which are clothed with the power of imposing public burdens and of making contracts in their corporate capacity, and which can therefore act only in organized meetings required by law; nor, to those governed by parliamentary usage. In the absence of special intructions from the convention which chooses the members of the committee, (and there does not appear to have been any in this, case,) they must necessarily determine their own mode of action; and, no other mode having been adopted, the concurrence of all the members, authenticated by their signatures, in any measure within the scope of their authority, would seem to be sufficient for all the practical purposes of such a committee. It is not doubted that the relator, when his recommendation was filed with the defendant, was, and still is, a citizen and elector of Sandusky county, lacking no-qualification necessary to entitle him to receive the appointment of deputy state supervisor of elections, for that county; nor that his recommendation is the genuine instrument which it purports to be, and was-filed within the time required by law. The recommendation was in substantial conformity with the statute, and sufficiently expresses the wish of the committee for the relator’s appointment as a deputy supervisor of elections of Sandusky county. His right to the appointment is a statutory one, which the defendant in the performance of his official duties was bound to recognize.

It is claimed in argument, however, that mandamus, is not the proper remedy of the relator, because the title to an office is involved, the only method of trying which is by proceeding in quo warranto. This is-not a proceeding to oust the occupant of an office, or-determine his right to its possession.- Its purpose is to obtain the necessary evidence of the relator’s right to demand the place to which he should have been appointed. The appointment of the defendant is a preliminary step essential to the establishment of that right, and must necessarily precede an action in quo warranto against the occupant of the office. For, until the appointment shall he made, the relator is not an officer de jure, nor entitled to demand of the occupant the possession of the office, or maintain an action for its possession. In an action of that kind the occupant, is the only proper party defendant. In this action the state supervisor of elections is the only proper defendant; and the action is closely analogous to one in mandamus to compel a canvassing officer or board to issue a certificate of election to a person entitled thereto. Such an action does not determine the title to the office, but its only result, if successfully maintained, is to put the party in a position to contest the claimant’s title by quo warranto. This view is: sustained by authority. Ellis v. County Commissioners, 2 Gray, 370; Elisha Strong’s Cases, 20 Pick., 484; Groome v. Gwinn, 43 Md., 574; People v. Hilliard, 29 Ill., 413; Merrill on Mandamus, Section 146.

Peremptory torit awarded.


author: Shauck, C. J.

text:
    The Lake Shore & Michigan Southern Railway Co. v. Ehlert, Administrator and The Cleveland, Cincinnati, Chicago & St. Louis Railway Company.

      Gates across a highway at railroad crossing — When shut warn public of passage of trains — Passer so warned guilty of negligence — Cannot recover, when.

    1. When the gates across a highway at a railroad crossing are closed they definitely warn the public that the crossing, whether it is of a single or a double track, is, for the time being, to be used for the passage of trains.
    2. One who, with knowledge of such warning, passes a closed gate and takes a position upon the crossing is guilty of negligence which will prevent a recovery for injuries he may receive from a passing train.
    (Decided November 13, 1900.)
    Error to the circuit court of Cuyahoga county.
    As administrator of Christian Holz, deceased, Ehlert brought suit in the court of common pleas against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, and the Lake Shore & Michigan Southern Railway Company, to recover damages sustained by the next of kin of his intestate, who, it was alleged, was fatally injured at a street crossing in Cleveland by a train of the former company, which was negligently run on a track owned by the latter company, upon which the warning gates were negligently constructed and operated. It is alleged in the petition that when Holz approached the crossing the gate over the street was down for the passage of a west bound train upon the north track, the gate covering the carriage way of the street, but not the side walk ; that Holz took a position inside the gate and within three feet of the south rail of the south track awaiting the passage of said train, and while so standing was struck by the engine of a train which was passing eastwardly on the south track at a high rate of speed; that neither the gateman, who was present, nor any other employe of either company warned Holz of the approach of said east bound train although it was then due. It is alleged that there was negligence in running the train at a high rate of speed without signals, and “in not maintaining at said crossing a sufficient obstruction to the passage of people on the sidewalk and in not giving notice of the approach of said train.” Demurrers to the petition were overruled and the companies answered separately, each.denying the charge of negligence against it, and alleging that the death of Holz was due to his own negligence. The evidence offered by the plaintiff on the trial tended to support the allegations of the petition. It showed that the gates on either side of the double track were down; that the deceased passed one of them and was standing by the nearer track awaiting the passage of a train upon the other, and was struck by an engine passing upon the track by which he was standing. The defendants requested the court to give the following instruction, which was refused:
    “When the gate at a railway crossing is down, persons using the highways cannot, in the exercise of ordinary care, go within the gate or between the gate and the tracks except at their own risk of injury, and if you find the deceased saw the gate was down as he approached the crossing, and passed by the gate and between it and the track, he did so at his own peril of being struck by a train upon the other track.”

      The jury returned a general verdict for the plaintiff, and answers to the following questions submitted to them: “Did the deceased know there was no arm across the sidewalk, as he approached the gates and before he stopped to permit the freight to pass?” Answer, “Yes.” “Did the deceased see the gates were down, as he approached the crossing?” Answer, “Yes.” “Did the deceased pass the gates and go nearer to the track than the gates?” Answer, “Yes.”
    The defendants filed motions for judgments on the special findings, which were overruled. They also filed motions for a new trial, which were overruled. A judgment was then entered on the general verdict, and that judgment was affirmed by the circuit court. By petition and cross-petition, a reversal of said judgments is sought.

      Dickey, Brewer & McGowan, for plaintiff in error,
    citing the following cases: Railway Co. v. Schneider, 54 Ohio St., 678; Cleary v. Philadelphia Ry. Co., 140 Pa. St., 19; Granger v. Boston & Albany Railroad, 146 Mass., 276; Maryland Central Co. v. Neubeur, 62 Md., 391; Douglass v. Railroad Co., 5 American Neg. Rep., No. 1, p., 110; Geiselman v. Scott, 25 Ohio St., 86; Railway Co. v. Crawford, 24 Ohio St., 631; Bellefontaine Railway Co. v. Snyder, 24 Ohio St., 670; Railway Co. v. Elliott, 28 Ohio St., 341; Pennsylvania Co. v. Rathgeb, 32 Ohio St., 66; Steel, Admr. v. Kurtz, 28 Ohio St., 191; Byrd v. Blessing, 11 Ohio St., 362; Berry v. State, 31 Ohio St., 219; Lowe v. Lehman, 15 Ohio St., 179; Bain v. Wilson, 10 Ohio St., 15; Krause v. Morgan, 53 Ohio St., 26.

      E. A. Foote and John T. Dye, for the C. C. C. & St. L. R. R. Company, citing the following cases: Cleary v. Pennsylvania State Ry. Co., 140 Pa. St., 19; Davy
      v. Railway Co., 11 L. R. Q. B. Div., 213; Young v. Railroad Co., 107 N. Y., 500; Marden v. Railroad Co., 159 Mass., 393; Debbins v. Railroad Co., 154 Mass., 402; Douglass v. Railway Co., 76 N. W. Rep., 356; Granger v. Railroad Co., 146 Mass., 276; Allerton v. Railway Co., 146 Mass., 241; Marland v. Railroad Co., 123 Pa. St., 487; Hauser v. Railroad, 147 Pa. St., 440; Railroad Co. v. Fitzsimmons, 40 Ill. App., 360; Mc-Geehan v. Railroad Co., 149 Pa. St., 188; Buckley v. Railroad Co., 78 N. W. Rep., 655; Peck v. Railway Co., 50 Conn., 379; Dlauhi v. Railway Co., 105 Mo., 645; Moore v. Railway Co., 108 Pa. St., 349; Rigg v. Railway Co., 158 Mass., 309; Woodward v. Oregon, 22 Pac., 1076; Thomas v. Banking Co., 40 Ga., 231; Galveston Co. v. Herring, 36 S. W., 129; Lepnick v. Gaddis, 18 Southern, 319; East Tenn. Co. v. Daniel, 42 S. W., 1062; McCain v. Louisville Co., 18 S. W., 537; Santa Fe etc. Railway v. Hurley, 36 Pac., 216; Atchison etc. Co. v. Irwin, 10 Pac., 820; Miller v. Chicago etc. Co., 23 N. W., 756; Chicago etc. Co. v. Rayburn, 38 N. E., 558; Schindler v. Milwaukee etc. Co., 43 N. W., 911; Gurley v. Missouri etc. Ry., 6 S. W., 218; Elliott v. Carter etc. Co., 73 N. W., 948; Long v. Doxey, 50 Ind., 385; Laykin v. Railway Co., 15 Ore., 220; Parmlee v. Adolph, 28 Ohio St., 10; Schaefer v. Sandusky, 33 Ohio St., 246; Railroad Co. v. Kehoe, 83 Md., 434; Railway Co. v. Staggs, 39 S. W. Rep., 295; St. L. Co. v. Ross, 33 S. W., 1054; Railway Co. v. Monday, 49 Ark., 257; Railroad Co. v. Watly, 69 Miss., 145; Kirtley v. Railway Co., 65 Fed. Rep., 386; Snyder v. Railway Co., 60 Ohio St., 487; Railway Co. v. Miller, 149 Ind., 490; Railway Co. v. Bryan, 107 Ind., 51; Keefe v. Railway Co., 92 Ia., 182; Railroad Co. v. Yeamans, 86 Va., 860; Raines v. Railway Co., 39 West Va., 50; Holmes v. Railway Co., 97 Cal., 161; Everett v. Railroad Co., 115 Gal., 105; Schmolze v. Railroad Co., 83 Wis., 659; Railroad Co. v. Didzoneit, 1 App. D. C., 482; Railway Co. v. Mertes, 38 Neb., 448; Sweeney v. N. Y. Steam Co., 15 Daly, 312; Railway Co. v. Well, 90 Ala., 185; Murphy v. Deane, 101 Mass., 455; Elliott on Railroads, Vol. 3, Section 1155; Coulter v. Northern Ry. Co., 67 N. W. R., 1046; Grand Trunk Ry. Co. v. Ives, 144 U. S., 408; Improvement Co. v. Stead, 95 U. S., 161; Chicago & N. W. Ry. Co. v. Netolicky, 67 Fed., 665; Clark v. Canadian Pac. Ry. Co., 69 Fed., 543; Thompson v. N. Y. Central Ry. Co., 110 N. Y.,636; Shaber, Admr. v. St. Paul M. & N. Ry. Co., 9 N. W. R., 575; Winstanley v. Chicago, M. & St. P. Ry. Co., 72 Wis., 375; Atchison, T. & S. F. Ry. Co. v. Hague, 38 Pac., 257; Kerwhacker v. Railway Co., 3 Ohio St., 172; Timmons v. Railway Co., 6 Ohio St., 106; Railway Co. v. Terry, 8 Ohio St., 570; Railroad Co. v. Whittaker, 24 Ohio St., 642; Railroad Co. v. Picksley, 24 Ohio St., 654; Railroad Co. v. Depew, 40 Ohio St., 121; Coal Co. v. Estievenard, 53 Ohio St., 43; Stallman v. Railway Co., 22 Ohio St., 1; Rathgeb v. Railway Co., 32 Ohio St., 67; Meek v. Pa. Co., 38 Ohio St., 632; Whitacre v. Railway Co., 35 Ohio St., 627; Weisel v. Railway Co., 55 Ohio St., 155; Kirschbaum v. Railway Co., 24 Ohio St., 119; Davis v. Mann, 10 M. W., 546; Beach on Contributory Negligence, Sections 10 to 13 and 27 to 35; 3 Elliott on Railroads, par. 1175.

      John M. Weld and Foran, McTighe & Baker, for Ehlert, citing the following cases: Baker v. Pendergast, 32 Ohio St., 494; Meek v. Pennsylvania Co., 38 Ohio St., 632; Hart v. Devereux, 41 Ohio St., 565; Mynning v. Railroad Co., 28 Am. & Eng. Ry. Cases, 665; 64 Mich., 93; 31 N. W. Rep., 147; Stall v. Rail
      road Co., 57 Mich., 239; Allen v. Willard, 59 Pa. St., 374; 34 Cal., 153; Johnson v. Hudson Railway Co., 20 N. Y., 65; Insurance Co. v. Palm, 5 Ohio St., 107; Evans v. Adams etc. Co., 122 Ind., 362; Ind. Stone Co. v. Stewart, 7 Ind. App., 563; Borshall v. Detroit Ry., 73 N. W. Rep., 551; Railway Co. v. Garcia, 75 Tex., 583; Railway Co. v. Monday, 49 Ark., 257; O’Brien v. McGinty, 68 Me., 552; Iliver v. Railway Co., 7 Ct. App. Col., 13; Davis v. Guarnieri, 45 Ohio St., 470; Rapalje’s Digest, Vol. 3, p. 512; Sherman & Redfield on Negligence, 4 Ed., 294; 9 Bosworth, 536; 30 N. E. R., 37; Railway Co. v. Schneider, 45 Ohio St., 678; Rapalje’s Digest, Vol. 3, 478; 35 Am. & Eng. Railway Cases, 334; Railway Co. v. Wilson, 42 Am. & Eng. Ry. Cases, 153; 133 Ill., 55; 24 N. E. R., 555; Railway Co. v. Webb, 90 Ala., 185; Webb v. Insurance Co., 6 Ohio, 456; McGatrick v. Wason, 4 Ohio St., 566; Breese v. State, 12 Ohio St., 146; Dean v. King & Co., 22 Ohio St., 118; Railway Co. v. Sargent, 19 Ohio St., 438; Rorer on Railroads, Vol. 1, page 529; Eaton v. Fitchburg R. Co., 129 Mass., 364; Railway Co. v. Perkins, 125 Ill., 127; Schmidt v. Railroad Co., 75 Ia., 606; Railroad Co. v. Crawford, 24 Ohio St., 631; Railroad Co. v. Snyder,24 Ohio St., 670; Railroad Co. v. Picksley, 24 Ohio St., 654; Railway Co. v.White’s Admr. 5 S. E. Rep., 573; Railway Co. v. Greany, 24 Am. & Eng. R. Cas., 473; Norton v. Railway Co., 29 S. E. Rep., 886 (N. C.); Railway Co. v. Hedges, 105 Ind., 398; McGhee v. White, 66 Fed., 502; Railway Co. v. Kelly, 80 Ill. App., 675; Railroad Co. v. Murphy, 50 Ohio St., 135; Railway Co. v. Dunkman, 4 S. W. Rep., 670; Winstanley v. Railway Co., 39 N. W. R., 856; 72 Wis., 375; Ramsey v. Railway Co., 89 Ky., 99; Hicks v. Railway Co., 164 Mass., 424;
      Schweinfurth v. Raihoay Co., 60 Ohio St., 215; Railroad Co. v. Schade, 15 Cir. Ct., 424, 8 Cire. Dec. 316, 57 Ohio St., 650; Booth on St. Ry,, Section 306; Railway Co. v. Anderson, 85. Fed. Rep,, 413; Railway Co. v. Ives, 144 U. S., 408.
   Shauck, C. J.

The rule by which the liability of the companies should be determined is a corollary from that defined in Railway Company v. Schneider, 45 Ohio St., 678. That case related to a fatal injury received at a grade crossing, and the deceased was held not to have been guilty of contributory negligence because “an open gate with a gateman in charge is notice of a clear track and safe crossing, and, in the absence of other circumstances, when the gates are open, and the gateman present, it is not negligence in the persons approaching * * * to pass on to the track through the open gates without stopping to listen.” The company was held liable because it had not closed the gates and thus given to persons approaching the crossing the warning of danger for which the gates were an obvious preparation, and upon which it had authorized the public to rely. In the present case, as the petition admits, the testimony shows, and the jury specially found, the gates were closed, and the deceased had knowledge of that fact when he went upon the crossing. The rules by which liability is determined are to be applied impartially, and there is manifest error in the judgments of the courts below. In such circumstances the company cannot be held liable because it does not give the warning which its obvious preparation authorizes the public to expect, and liable as well although it gives the warning.

The allegation of the petition that the company was negligent ‘in not maintaining at said crossing a sufficient obstruction to the passage of people on the sidewalk” indicates a misconception of its duties. It is not required to interpose such obstacles as will make it impossible for persons to go upon the crossing. Its duty is to give the warning which it has authorized them to expect.

The allegation that “the gate was lowered across said street for the passage of a long freight train on the north track, which said freight train was then and there in the process of passing, from east to west on said north track,” indicates a misconception of the significance of closed gates. They signify that the space between them, whether occupied by a single or a double track, is, for the time being, to be used exclusively for the passage of trains. It would not be practicable to give separate warnings for each track, nor is there any necessity for such warning. The conclusion reached in Railway Company v. Schneider, supra, was justified by the object of diminishing the frequency of collisions at grade crossings. That object will be promoted by requiring persons approaching such crossings to heed the warning when it is given.

That there can be no recovery upon such facts as are here presented has been decided in numerous well considered cases. Among them are Buckley v. Flint & Pere Marquette Railroad Co., 119 Mich., 583; Douglas v. Chicago, Milwaukee & St. Paul Ry. Co., 100 Wis., 405; Cleary v. Philadelphia & Reading Railroad Co., 140 Pa. St., 19; Granger, Admr. v. Boston & Albany Railroad Co., 146 Mass., 276; Marden, Admr. v. Same, 159 Mass., 393.

The demurrers to the petition should have been sustained. The requested instruction should have been given. Upon the facts specially found there should have been judgment for the defendants below notwithstanding the general verdict.

Judgments of the circuit and common pleas courts reversed and judgment for plaintiffs in error.


author: By the Court:

text:
    Hinds et al. v. Sells.

      Amount involved not more than three hundred dollars — Court’s jurisdiction confined to constitutionality of statute involved, when — Section 7014, Revised Statutes — Constitutional.
    1. Where the amount involved is not more than three hundred dollars, exclusive of interest and costs, and this court acquired jurisdiction by reason only of the constitutionality of a statute being involved, its jurisdiction of the cause is confined to the question as to the constitutionality of such statute, and other questions will not be considered or decided.
    2. Section 7014, Revised Statutes, giving a right of action against one who sends a claim out of this state to be collected by attachment, and thereby to defeat the exemption laws of Ohio, is not in conflict with any provision of the constitution of this state, and is a valid enactment.
    (Decided November 13, 1900.)
    Error to the circuit court of Tuscarawas county.
    The defendant in error brought his action against John Hinds and William Hinds in the court of common pleas for the recovery of one hundred and sixty-five dollars, and by proper averments in his petition showed that he was a resident of Ohio and entitled to the benefits of the homestead and exemption "laws,, that he was and had been an employe of the Pitts-burg, Cincinnati, Chicago and St. Louis Railway Company, having money due and owing to him from that company for his services; that said plaintiffs, in error, being also residents of Ohio and having a valid claim against him which they could not collect in this state by reason of the exemption laws, made an assignment thereof to one Nicholas Shultz, residing at Wheeling, West Virginia, for the purpose, and with the intent to deprive defendant in error of his. right to have his personal earnings exempt from application to the payment of said claim, and to defeat the exemption laws of this state. He also averred that the said assignment was a mere sham and that the plaintiffs in error were at all times the real owners, of said claim, and that said Shultz, by proceedings in attachment and garnishee process at Wheeling, collected said claim from the railroad company out of money due him for personal earnings in Ohio, which were so exempt from application to the payment of the said claim in this state.
    The defendants below answered and, among other things, the constitutionality of section 7014, Revised Statutes of Ohio, was drawn in question. There was, a verdict and judgment in favor of Mr. Sells, the plaintiff below for the full amount claimed by him. A motion for a new trial was overruled, and the circuit court affirmed the judgment, and now plaintiffs in error come here seeking relief.

      E. E. Lindsay; A. W. Elson and Healea & Greene. for plaintiffs in error.
    A careful examination of Section 7014 discloses-that its purpose is not solely to protect citizens and residents of Ohio in their exemption rights under the-laws of the state.

      By its terms it imposes a penalty and creates a cause of action in a civil suit, and prescribes a rule of evidence for the commission of several separate and distinct acts which may properly be classified as follows :
    First. “Whoever sells, assigns or transfers any claim for debt against a resident of this state for the purpose of having the same collected by procedings in attachment in courts outside of this state * * * shall be fined, etc.
    Second. “Or whoever with intent to deprive a resident of this state of a right to have his personal earnings exempt from application to the payment of his debts, sends out of this state any claim for debt against such person for the purpose aforesaid, etc.” (that is for the purpose of having the same collected by proceedings in attachment in courts outside of this state) “shall be fined, etc.”
    Under the first provision above stated, an offense is committed by selling, assigning, or transferring a claim for debt for the purpose stated, whether the debtor has exemptions under the laws of this state or not. The offense is complete, according to the terms of this provision of the statute, when the sale is made for the purpose stated and is not determined or affected in any way by the exemption rights of the debtor under the laws of this state.
    We submit that such provision of the statute is in violation of the constitution of the United States, and of the state of Ohio. Section 1, Art. 1 of the constitution of Ohio.
    It seems clear that this provision of the constitution guarantees to the citizen the right of acquiring' property by means of purchase as well as by any other lawful method, and acquisition by purchase of necessity requires that there should not only be a purchaser but a seller; hence the disposition by sale of one’s property under this provision is as fully guaranteed as its acquisition. Palmer v. Tingle, 55 Ohio St., 423; Coal Company v. Rosser, 53 Ohio St., 12; State v. Goodwill, 25 Am. St. Rep., 863; Section 19, Art. 1 of the constitution of Ohio.
    We submit that said Section 7014 violates Section 1, Art. 14 of the constitution of the United States . It unquestionably abridges the privileges of the citizen •and deprives him of his right of disposition of his property where the public welfare is in no way involved.
    We submit that Section 7014, Revised Statutes, is in violation of Section 2, Art. 4 of the constitution of the United States. It deprives citizens of Ohio of the rights, privileges and immunities of citizens of the several states by making it an offense for a citizen of Ohio to sell, assign or transfer his property, and by depriving him of the right of collecting his debts by proceedings in attachment in courts outside of the state when he has a right to prosecute attachment proceedings in Ohio in conformity with the laws of Ohio, and under the provision of this section of the constitution of the United States has the right to prosecute attachment proceedings in the state of West Virginia in conformity with the laws of West Virginia.

      P. S. Olmstead, for defendant in error.
    The statute in question in this case has been in force with but slight change, continuously for about twenty-two years. During this time it has been accepted by the public, and administered by the courts as a valid enactment. Its validity has never been challenged in this court nor in any circuit court of which any report was ever made.
    The object and purpose of this law (sec. 7014). was to protect the family of the debtor from want, and suffering. So that his personal earnings, when necessary for the support of his family, might be' saved and protected for that sole purpose.
    These exemption laws are enacted in the interest of humanity. They are established for public good,, for the well-being of society. Sears v. Hanks, 14 Ohio. St., 298; McConville v. Lee, 31 Ohio St., 447.
    The act under consideration only prohibits the sale, or transfer of claims under certain conditions and restriction, and these are in the interest of humanity and for the public good and general welfare of society.
    All property in this state is subject to such general regulations and restrictions as are necessary to the common good and general welfare.
    In the exercise of its police power, the state may regulate the conduct of its citizens, one towards the other, in the manner in which each shall use his own property, when such regulations become necessary for the public good.
    In view of these well settled principles of law we think this act is valid, and in support we cite the following authorities: Cooley Con. Lim., 5th Ed., pp. 707, 734, 735; State v. Powell, 58 Ohio St., 324; Palmer v. State, 39 Ohio St., 236; State v. Telephone Co., 36 Ohio St., 297; Roth v. State, 51 Ohio St., 209; Railway Co. v. Railway Co., 30 Ohio St., 604.
    Under the head of police powers many laws restricting the use, enjoyment and sale of property have been declared to be valid. Cooley, pages 706-7 and 8; Cooley, pages 739-40-41; 18 Am. and Ency., 755.

      In the state of Indiana a statute of a like kind was before the Supreme Court and was sustained. State v. Dittmar, 120 Ind., 54; 107 Ind., 490; 103 Ind., 328; 120 Ind., 388; 13 Appellate Ind., 401; 2 Appellate Ind., 492 and 488
    As to the other errors pointed out in the plaintiff’s brief, we will only say, that the amount involved in this action, exclusive of interest and costs, is $155. The case came into this court by reason of the constitutional question involved in it. As to anything else the judgment of the circuit court is final and conclusive, 93 O. L., 255; Section 6710.
    Hence this court will not, we think, consider any question, except the one that gave the court jurisdiction.
   By the Court:

As the amount involved is less than three hundred dollars, this court has jurisdiction of the case only by reason of the constitutionality of a statute being drawn in question, and our decision must therefore be confined to the question that gives us jurisdiction, •and the other questions argued in the brief of counsel for plaintiffs in error have not been considered, and are not decided, for the reason that we are without jurisdiction as to those questions in this case.

Section 7014, Revised Statutes is as follows:

“Whoever sells, assigns or transfers any claim or [for] debt against a resident of this state for the purpose of having the same collected by proceedings in attachment in courts outside of the state, or whoever, with intent to deprive a resident of this state of a right to have his personal earnings exempt from application to the payment of his debts, sends out of this state any claim for debt against such person for the purpose aforesaid, where the creditor and debtor and the person or corporation owing the money intended to be reached by such proceedings are within the jurisdiction of the courts of this state, shall be fined not more than fifty nor less than twenty dollars, and the person whose personal earnings are so attached shall have a right of action before any court of this state having jurisdiction, to recover the amount attached, and any costs paid by him in such attachment proceedings, either from the person so assigning, selling, transferring or sending such claim out of this state to be collected as aforesaid, or the person to whom such claim is assigned, sold, transferred or sent as aforesaid, or both, at the option of the person bringing such suit. The' assignment, sale, transfer- or sending of such claim to a person not a resident of this state, and the commencement of such proceedings in attachment shall be considered primafacie evidence of a violation of this section; and any person, or the agent of such person, who purchases, any claim within this state with the intent aforesaid, shall be subject to the fine herein provided.”

The purpose of this section is to protect our citizens, •in their rights relating to homesteads and exemptions, and as the statutes on that subject are constitutional, any statute which is reasonably in aid of' the right must also be constitutional, unless it should conflict with some other part of the constitution. We-find no such conflict. The section in question only prevents our own citizens from resorting to a sharp-trick or practice in another state to defeat the provisions of our exemption laws; and the general assembly has full powers to so protect our citizens.

Judgment affirmed.


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    Commissioners of Cuyahoga County v. The City of Cleveland.

      Oare of insane needy persons — Who cannot he admitted to asylum —Rests on county where they have legal settlement.

    The burden of caring for insane persons in needy circumstances, who can not be admitted to an asylum, rests upon the county in which they have their legal settlement.
    (Decided November 13, 1900.)
    Error to the circuit court of Cuyahoga county.
    The action below was brought by the city of Cleveland, a municipal corporation of the first class and second grade, against the commissioners of Cuyahoga county, to recover the sum of $12,513.71, expended by the plaintiff in providing food, clothing and other necessaries, to various persons who were adjudged'insane by the probate.judge of that county. The petition alleges that the county of Cuyahoga has no infirmary, but that the plaintiff, whose corporate limits are co-extensive with the township in which it is. situated, has a city infirmary, and that the sum named was expended by the plaintiff upon the order of the probate judge at various times, up to December, 1896, for the support and care of insane persons in that, county who could not be admitted to any asylum. An itemized statement of the amounts so expended, the times when expended, and the names of persons for whose support they were expended, is attached to the petition. In addition to these facts the petition alleges that “each and all of said persons were duly brought before the judge of the probate court of said county upon an inquest of lunacy,'and upon full hearing before said court, each and all of said. persons were found and adjudged by tbe probate judge to be insane persons, in needy circumstances, requiring public support and relief, and residents of, and having their legal settlements in said city of Cleveland, and were each duly committed to the superintendent of the city infirmary qf the city of Cleveland, he being found by the judge of said probate court to be a suitable person; and that neither of said persons could, at any time, be admitted into any asylum •of said state, before, or’at any time since;” and that “all of said persons were in fact, as found by said •court, insane and indigent persons, needing public relief and support, and were residents of and had their legal settlement in said city of Cleveland at the time of their commitment to said superintendent, ■and were duly committed by said court to the superintendent of the Cleveland city infirmary as aforesaid because they could not be received into an any asylum •of this state, and were so committed to the superintendent of the Cleveland city infirmary upon the order •of the said probate court; that the cost and expense of the care, maintenance and support of each of said persons be paid out of the county treasury:” The petition further alleges that “the lodging, care, food, ■clothing and attendance furnished the said persons were necessary, said persons being needy, and were furnished by this plaintiff to said several persons in accordance with the statement herewith filed, and that the prices charged therefor are reasonable and just.”
    The defendant filed a general demurrer to the petition, which was sustained by the court of common pleas, and final judgment rendered thereon for the defendant. That judgment was leversed by the cir •cuit court, from which error is prosecuted here.

      P. E. Kaiser, county solicitor, and F. L. Taft, assistant county solicitor, for plaintiffs in error.

      T. E. Eogsett and Beacom, Excell, Gage & Oarey, for defendant in error.
   By the Court:

The question involved is whether the burden of caring for insane persons in needy circumstances, who can not be admitted to an asylum, rests upon the county in which they have a legal settlement, or must be borne by the township in which they reside. If the burden rests upon the county, there was no error in the judgment of the circuit court. The subject is regulated by statute, the provision of which must determine the controversy. Our statute provides that each county is entitled to send patients to the asylum of the district in which such county is situated, in proportion to the population of such county; that the medical superintendent of each of the asylums shall inform the probate judge of the different counties comprising the district, monthly, of the quota of patients to which each county is entitled, and the number in the asylum from. said county; that the probate judge, when a person is adjudged insane, shall apply to the superintendent of the asylum for the insane situated in the district in which such patient resides, for admission of such insane person thereto; and upon receiving the application the superintendent shall immediately advise the probate judge whether the patient can be received; and, that when a patient is sent to the asylum for the insane, the probate judge shall see that he is supplied with the proper clothing, and, if not otherwise furnished, he shall furnish such clothing, and in such case, the same shall be paid for upon his certificate and the order of the county auditor, out of the county treasury. Sections 698 to 706, Revised Statutes.

Then Section 707 contains the provision that, “if a person found to be insane cannot be admitted into the asylum, the probate judge shall direct the sheriff of the county, or some other suitable person, to take charge of such insane person until the cause of non-admission is removed, and if necessary, he may direct the confinement of such insane person in the county infirmary or jail (but not in the same room with a person charged with or convicted of a crime), as the circumstances require; and if all things needful are not otherwise supplied, he shall furnish them, and in that case, they shall be paid for out of the county treasury, on the certificate of the probate judge; but he shall not in any case furnish anything to * * * a person who is not in needy circumstances.”

These provisions govern the case; and from them, it seems reasonably clear that the county is ultimately bound for the payment of the expense of taking care of all insane persons having a settlement therein, who are in needy circumstances, and cannot be received into an asylum. And it sufficiently appears from the petition that the persons for whose support the action below was brought were committed to the care of the superintendent of the plaintiff’s infirmary, because he was found to be a suitable person to have the care of them, and they could not legally be admitted to an asylum.

Judgment affirmed.


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    The Cincinnati, Hamilton & Dayton R. R. Co. v. Hedges.

      Protection of railway employes — Section 2 of act of 1890 — Application of under Section 79, Revised, Statutes.

    Section 2 of tlie act of 1390 (S7 Laws, 149) does not, under the provisions of Section 79, Revised Statutes, apply to a cause of action existing at the adoption of the act.
    (Decided November 13, 1900.)
    Error to the circuit court of Butler county.

      Millildn, Shotts & Millilán and R. D. Marshall, for plaintiff in error.

      Aaron Wesco and Morey, Andrews & Morey, for defendant in error.
   By the Court:

Hedges was injured while in the employ of the railway company on November 23, 1889. The injury, as averred, resulted without fault on his part, from a defect in a brake he was then using in his employment which was out of repair and defective by reason of the negligence of the company. Issues of fact were made up and tried to a jury which rendered a verdict in his favor. Judgment was rendered on the verdict by the court, after overruling a motion for a new trial. On error the judgment was affirmed by the circuit court. The court charged the jury, among other things, to the effect that if it found from the evidence, that there was a defect in the brake that caused the injury, that fact raised a prima facie case against the company and the plaintiff would be entitled to recover if injured thereby without fault on his part. This we think was error.

The instruction was predicated upon the provisions of a statute adopted April 2, 1890 (87 Ohio Laws, 149) which reads as follows:

“It shall be unlawful for any such corporation to knowingly or negligently use or operate any car or locomotive that is defective, or any car or locomotive upon which the machinery or attachments thereto belonging are in any manner defective. If the employee of any such corporation shall receive any injury by reason of any defect in any car or locomotive, or the machinery or attachments thereto belonging, owned and operated, or being run and operated by such corporation, such corporation shall be deemed to have had knowledge of such defect before and at the time such injury is so sustained, and when the fact of such defect shall be made to appear in the trial of any action in the courts of this state, brought by such employe, or his legal representatives, against any railroad corporation for damages, on account of such injuries so received, the same shall be prima facie evidence of negligence on the part of such corporation.”

The injury as stated occurred November 23, 1889, and was therefore an existing cause of action at the adoption of the amendment, though the suit was not commenced until afterwards, on May 21, 1890. Prior to this statute the existence of a defect in the machinery employed resulting in injury to an employe did not make a prima facie case of negligence against the company. Culpable knowledge on the part of the company had to be proved by the plaintiff.. Assuming the act of 1890 to be remedial in character, still, under Section 79, Revised Statutes, it would not apply to an existing cause of action without an express provision to that effect; and there is no such special provision in the act.

It is true that Section 79, Revised Statutes, applies only in terms to the amendment or repeal of a statute, and the act of 1890 abové referred to is neither. Still, we regard the principle of that section as declaratory of the policy of our law, which forbids giving to a statute retroactive effect, though remedial in character, unless the act contains an express provision to that effect.

The judgment is for the reason given.

Reversed.


author: By the Court :

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    The State of Ohio ex rel. The Attorney General v. The Mt. Hope College Company.

      trustees of educational institution — Sign displomas in blanlc — • Officer sells them and confers degrees — Dissolution of corporation required.

    When the trustees of an educational institution, incorporated under the laws of this state, sign diplomas in blank and leave them within the control of one of its officers who sells them, and thus confers degrees without regard to merit, there is such a misuse of the power conferred as requires the dissolution of the corporation.
    (Decided November 13, 1900.)
    In Quo Warranto :
    The attorney general filed a petition to oust the defendant of its franchise upon the ground now insisted upon that such franchise has been abused and misused. The grounds specified in the petition are sufficiently indicated in the following abstract of the report of Robert H. Day, Esq., to whom the cause was referred, after issue joined, for the purpose of taking and reporting the testiinony with his findings of fact and conclusion of law: That report condensed shows that the defendant was incorporated as a corporation for profit on the 23rd day of January, 1893, for the general purposes, as alleged in its certificate of incorporation, of promoting education, religion, morality, et cetera. Shortly after its incorporation it proceeded to conduct a college called Mt. Hope College, at Rogers, in Columbiana county, employing for that purpose teachers, and receiving and graduating students; that on or about the 11th day of December, 1897, it entered into a contract with one A. A. Galbreath by which it leased the college to him for a term of five years for an annual rental of one hundred and eighty dollars, the property to be used for school purposes, to be conducted under the management of said Galbreath as president, he to receive all incomes from tuitions and diplomas and to pay all expenses of the operation of the college. Under said contract Galbreath conducted the institution up to the filing of this suit, maintaining a number of de-. partments at least in name, that it included a “Home Study Department” which was conducted as follows: Pupils who could not arrange to pursue their studies as residents of Rogers were invited to matriculate in the institution and send by letter to the principal a statement of what studies they had pursued and what degree they desired; in reply to which the student was given a grade and informed as to the amount of work necessary to secure his degree, together with the necessary fees which should be paid before the diploma was granted and the degree conferred. The post graduate course was conducted largely in the same way; a list of studies was submitted to the applicant and he notified the principal of those which lie had pursued, what grades if any he had from another school or college, upon consideration of which the defendant would confer upon him such degree as the applicant desired, upon the payment of fees and the performance of certain conditions. If the applicant had attended a school whose standard warranted it, a degree would be conferred without further requirement by the defendant except the occasional writing of a thesis or digesting of a book. No records were kept of the operation of the college since April, 1898, by the trustees or the faculty, of the students attending the college, nor of their classification, standing or work in said college, nor of the degrees conferred, except as the same were kept in a private ledger in the control of said Galbreath. Prior to that date occasional records had been kept. The board of trustees did not authorize nor organize the so-called “Home Study Department” established by Galbreath, but did sign diplomas with full knowledge that they were to be used in such department. They knew of its existence from the catalogue and from a publication called “The Mount Hope Anchor.” The records of the board of trustees do not show that any curriculum was ever adopted. Students were admitted to all departments of the college as applicants for degrees upon their own statement as to the studies which they had pursued, and sometimes upon the grades received from other schools, but nowhere does it appear that any entrance examination was ever required. The diplomas were granted and degrees conferred in the “Home Study Department” upon examination of the applicant by examiners appointed at or near the home of the applicant. In the post graduate course degrees were conferred without examination, but upon the preparation of a digest of some book or the writing of a thesis and in some instances in both departments the applicant received his degree upon the payment of fees and a promise to do work in the future. Such diplomas were signed and degrees conferred by the board of trustees upon the verbal request of Galbreath and sometimes such diplomas were signed in blank to be afterwards filled out. No grade or statement of the standing of the applicant or his accomplishments was submitted to the trustees, nor was there any vote or record of any faculty proceedings communicated to the board. That, one Chester Ralston, who had secured from Oberlin College the decree of M. A., asked the requirements of Mount Hope College for the degree of Ph. D. In response to which Galbreath replied, under date of September 9, 1898, that he would confer the degree of Ph. D., upon the following conditions: First, that the applicant write a thesis on some subject to be selected by himself, and to contain at least ten thousand words. Second, that he mail his photograph from which a cut was to be made for use in the college paper. Third, that he send his biography for publication. Fourth, that he send a list of names and addresses to whom should be sent sample copies of the journal containing his biography and announcement of his graduation from said college. Fifth, that he pay a matriculation fee of $5.00, a fee of $5.00 when his thesis was ready for examination; a fee of $5.00 when he sent his biography and picture; a fee of $5.00 when the list of names to whom should be sent a catalogue of the publications in question, and lastly a fee of $5.00 when his diploma was ordered, making a total of $25.00. Should he desire, the further offer was made, that his diploma and degree could be secured at once by payment of the fees in advance, and upon the condition that he could comply with the terms stated within six months from date. Said Ralston did not accept the said proposition. On November 12, 1899, said A. A. Galbreath, as president of Mount Hope College, received from Thomas Erskin Wilson, |25.00in full payment of fees for post-graduate course leading to a degree of A. M.; said degree was conferred forthwith upon condition that the applicant perform the work for such degree, within six months. That other colleges of the state of Ohio, composing-the Ohio College Association, require an entrance examination or the certificate of an approved high school, or its equivalent, in special preparatory training, before allowing a student to enter as an applicant for a baccalaureate degree, and then require four years’ study, the last year of which must be spent at the school conferring the degree and the rest at some-school of recognized standing, or show a fitness by examination to be admitted to the senior year’s work that the master’s degree is conferred by not less than one and in some cases two-years’ work after receiving-the baccalaureate degree, and some colleges require at least one year’s work, and in certain colleges all must be resident work. That every college should have enough apparatus to do two years’ scientific laboratory work in order to properly teach the sciences. That degrees are conferred by a formal vote of the board of trustees upon the formal recommendation of the faculty, certifying to the accomplishment of the student and to his merit and as deserving such degree, all of such proceedings are duly made matter of record -by both faculty and board of trustees, which are separate and distinct organizations. That a list, of students in attendance at college should be kept,, also their classification and grading in order to properly determine their qualification as applicants for degrees, and that all work leading to a degree should be completed before the same is conferred. It further appears that the defendant admitted with great freedom as candidates for the degrees all those who ■claimed to have special fitness and standing, without subjecting them to any examination, granting diplomas and conferring degrees without any test of the scholarship and sometimes upon the promise that the degree should be earned by future work.
    As his conclusion of law the master reports that the defendant should be ousted of its right to be a corporation.

      J ohn M. Sheets, attorney general, and J. E. Todd, assistant attorney general, for the plaintiff.

      N. B. Billingsly and L. T. Farr, for defendant.
   By the Court :

It is not.supposed by any member of the court that the state charters institutions of learning with a view to authorizing the reprehensible practices of which the defendant has been guilty. Indeed its counsel do not attempt to show that its conduct has been consistent with the purposes of its organization. The only question of doubt is whether it should be ousted of the power to confer degrees fraudulently, or of its right to be a corporation. The former judgment is insisted upon because of the large responsibility of Galbreath for the fraudulent exercise of the powers of the defendant, and because the trustees demanded his resignation when the petition in this case informed them as to his bad character and misconduct.

But a consideration of all the facts shown by the evidence and found by the master leads to the conelusion that the trustees themselves have been culpably negligent, and that the corporate powers of the defendant are, in their hands, liable to grave abuses. Moreover, if an institution of learning is to be maintained at Rogers, it should be relieved of the odium which is attached to the defendant. A judgment ousting the defendant of its right to be a corporation will be entered and so executed as not to interfere with any legitimate educational work which it may now be doing.

Judgment of ouster.