source: Caselaw Access Project

author: Nichols, C. J.

license: Public Domain

text:
    Fetter v. Rettig. Fetter v. Leifer.

      Wills — Construction—Devise to wife until remarriage — With power to sell and convey — Life estate in widow — Remainder passes in fee simple.

    A testator used the following language in his will:
    “I give, devise and bequeath to my beloved wife, M. F., so long as she remains my widow, my entire property both real and personal, wherever it may be situated.
    “I do further devise to my said wife, in case she may desire so to do, the power to sell any of my real estate and deed or deeds to the purchasers thereof execute and deliver and thereby convey any or all of my real estate in fee simple to the purchaser or purchasers thereof and to their heirs and assigns forever." Held: That under this will the widow took only an estate for life, subject to be terminated on remarriage, and, not having remarried, and being now deceased, the real estate so devised to her passes to the next of kin of the testator as an estate of remainder in fee simple,
    (Nos. 15775 and 15776
    Decided June 21, 1918.)
    Error to the Court of Appeals of Henry county.
    The facts are stated in the opinion.

      Messrs. Cahill & Mulcahy, for plaintiff in error.

      Messrs. Donovan & Warden and Mr. H. R. Dittmer, for defendants in error.
   Nichols, C. J.

John Fetter, a resident of Henry-county, Ohio, died testate in May, 1899, and by the terms of his will devised his property to his widow Margaret Fetter, in the language following:

“Second. I give, devise and bequeath to my beloved wife, Margaret Fetter, so long as she remains my widow, my entire property both real and personal, wherever it may be situated.

“I do further devise to my said wife, in case she may desire so to do, the power to sell any of my real estate and deed or deeds to the purchasers thereof execute and deliver and thereby convey any or all my real estate in fee simple to the purchaser or purchasers thereof and to their heirs and assigns forever.”

Controversy arose among contending parties as to the nature and extent of the estate of the widow Margaret Fetter in the real estate thus devised.

Both the court of common pleas and court of' appeals held that she took an absolute estate in fee simple.

We reverse these holdings and find her estate to be one for life only, and the reasons for this decision may be briefly stated thus:

By the first paragraph of the second item, heretofore set forth in the will, she took a limited life estate; that is, one continuing that long if she remained unmarried.

The claim is made that the subsequent language in the second item, giving her the power “to sell any of my real estate and deed or deeds to the purchaser thereof execute and deliver,” enlarges the life estate into a fee simple.

The claim is further made that this view is emphasized and supported by reason of the fact that the will made no devise of the real estate in remainder; and the rule of construction is invoked, that no testator is to be presumed to die intestate as to any part of his property.

■The widow never exercised the power of selling any part of the real estate of which the testator died seized.

The authorities in Ohio as well as most of the sister states are clearly against the theory of enlargement of a life estate in lands by the annexing of an unlimited power of sale. There is nothing in the second paragraph of Item 2, giving the widow the right to use, consume or devise the proceeds of the real estate, if she exercised the right to sell.

Some third party might have been invested with the same power of sale. There is no language to be found enlarging the widow’s interest beyond an estate for life.

The instant case is not nearly so strong as Johnson et al. v. Johnson, 51 Ohio St., 446. There, the first part of the item gives the widow an absolute estate in fee simple; latterly, the item provides that if any of the property remained unconsumed at her death it should be equally divided between the brothers and sisters.

- Notwithstanding this, the court held that the widow took but an estate for life with remainder to the brothers and sisters.

There, there was a reduction of an absolute estate in fee simple expressly devised; whereas, in the instant case, the widow is expressly devised but a life estate.

There is nothing in the will under consideration that would justify the holding that the intention of the testator was to give his widow an estate in fee simple. Such a construction would require the court to ignore the significant and express limitation in the will, that her interest in the property was to be circumscribed within the limit of her widowhood.

Abundant authority could be cited in support of our view. We will be content to quote from the language of Chancellor Kent, when he said: “We may lay it down as an incontrovertible rule, that where an estate is given to a person generally, or indefinitely, with a power of disposition, it carries a fee; and the only exception to this rule is, where the testator gives to the first taker an estate for life only, by certain and express words, and annexes to it a power of disposal. In that particular and special case, the devisee for life will not take an estate in fee, notwithstanding the distinct and naked gift of a power of disposition of the reversion. This distinction is carefully marked and settled in the cases.” Jackson v. Robins, 16 Johns. (N. Y.), 537, 588.

We think the instant case comes squarely within the exception thus stated.

Therefore the judgments of the court of appeals will be reversed, and the causes will be remanded to the court of common pleas of Henry county, with direction to proceed in accordance with this finding.

Judgments reversed and causes remanded.

Wanamaker, Newman, Jones, Matthias, Johnson and Donahue, JJ., concur.


author: By the Court.

text:
    The Board of Commissioners of Logan County v. Bicher, Admx.

      Negligence — Imputed — Guest of driver of automobile — Charge to jury — Exercise of care.

    (No. 15791
    Decided June 21, 1918.)
    Certified by the Court of Appeals of Logan county.
    The defendant in error brought suit against the board of county commissioners of Logan county to recover damages sustained on account of the alleged carelessness and negligence of the commissioners, which resulted in the death of her husband.
    In her petition she described a county road called the “Carlisle Pike,” in Logan county, across which there is a stream called “Stony Creek,” over which the commissioners have maintained, for many years, a bridge.
    She alleged that the bridge was destroyed a long time prior to September 26, 1913, and that the commissioners negligently permitted the highway across the creek to remain open without any bridge or other means of passage being provided for vehicles; that the commissioners did not provide any barricade or barrier to prevent persons from using said highway and approaching said creek, or provide any means of warning passengers along said highway of the danger by reason of the destruction of the bridge, of which danger the commissioners. had full knowledge and notice.
    She alleged that the commissioners had full notice and knowledge that no barricades were across said highway to prevent passengers from using the same, and that no lights or other means of warning passengers had been placed along or across said highway; that on the day named, in the night season, John E. Bicher, deceased, was a guest in a certain automobile driven along said highway; that the automobile was driven in a careful and prudent manner and that deceased and the other persons in the same had no knowledge of the destruction of said bridge, or of the dangers existing thereof; and that while so traveling along the road, the automobile, with all of its passengers, was suddenly plunged from the level of the highway to the bottom of the creek and the plaintiff’s intestate received injuries from which he died.
    In its answer the board denied that on said day there was an opening between the banks of Stony Creek where it crossed the pike, that had been left open and exposed and uncovered, and especially denied that the road had been negligently and carelessly permitted by the defendant to be and remain open and exposed and uncovered, where the pike crossed the creek. The defendant denied that the pike on the 26th of September was without any bridge or means of passage for travelers along said highway, and denied all negligence alleged in the petition.
    For a second defense defendant set out that said bridge was washed away by unprecedented rains in March, 1913, and that defendant had caused to be constructed a good and sufficient wood bridge across said creek from 25 to 30 feet east and south of the location of the former, bridge, together with proper approaches; that about 75 or 80 feet south and west of the old bridge the traveled road had been turned by the defendant towards the east so as to provide a good and sufficient roadway and approach, abandoning the old roadway approaching the original bridge; and that defendant had erected barriers at the point where said traveled roadway had been turned to make the approach to the new bridge and had in every way exercised ordinary care for the' protection of the public.
    For a third defense defendant says that the decedent and others were driving from Middletown, Ohio, to the Lewiston Reservoir, a journey of some 100 miles, in an automobile driven by Adams, ■the owner thereof; that the deceased well knew that the roads and bridges in Miami and Mad River valleys had been practically all washed out by the spring flood, and that there had been no opportunity on the part of the various county authorities to restore the same entirely; that the automobile was not provided with good and sufficient brakes and its occupants were without means of controlling the car, all of which was well known to the deceased; and that in a wilful and negligent disregard of the turn in the roadway, and of the barricades erected by the defendant, the said deceased and other occupants of the automobile deliberately turned off said traveled roadway on to the abandoned and unused portions thereof and into and through and over the barricades that had been placed at the turning of the road by the defendant, and thereby received the injuries complained of.
    In her reply the plaintiff denied the allegations in the second and third defenses.
    On the trial the jury returned a verdict in favor of the plaintiff, and the judgment entered on this verdict was affirmed by the court of appeals, which court certified the cause to this court for review and final determination because it found that its judgment was in conflict with the judgment pronounced on the same question by another court of appeals of the state.

      Mr. Lewis F. Hale, prosecuting attorney, and Mr. A. Jay Miller, for plaintiff in error.

      Mr. Benjamin Harwits; Messrs. West & West and Mr. H. L. Dell, for defendant in error.
   By the Court.

Plaintiff in error urges that the trial court erred in overruling motions made by it to arrest the case and to direct a verdict in its favor, on the ground that no negligence on its part had been shown.

There was a distinct issue made by the pleadings as to the negligence of the defendant below; substantial evidence was, introduced by each party on this issue; and the court properly left its solution to the jury.

Defendant earnestly insisted in the courts below, and here, that the decedent was guilty of contributory negligence, and considerable evidence was introduced touching that issue. Plaintiff in error urges, that the trial court erred in refusing to give to the jury the following special charge requested by it before argument:

■ “8. I now charge you that Mr. Bicher seated as he was in the front seat by the side of Mr. Adams, the driver, was required to reasonably use his faculties of sight and hearing to observe and avoid any impending dangers incident to such driving along a country pike during the nighttime, and apprise the driver of the machine as would a person of reasonable and ordinary prudence under the same or similar circumstances.”

It is insisted that within the rule declared in The Toledo Railways & Light Co. v. Mayers, 93 Ohio St., 304, the above charge should have been given.

In that case, where a guest of the owner and driver was injured, it was held that the negligence of the -driver of an automobile which comes into collision with a street car is not imputable to the guest, although the guest is required to exercise ordinary care for his own safety and to reasonably use his faculties, of sight and hearing to avoid danger incident to crossing the track. But it is the function of the jury to determine from the facts shown in each case whether the injured person used such care, and what care the circumstances required.

Plaintiff in error by the request made desired the court to instruct the jury what in the particular circumstances of this case a person of reasonable and ordinary prudence would do. Such a thing can only be determined from the circumstances, and these the jury must find. They might find that under the facts of a particular case a person who is not driving, but is merely a guest, might, under the circumstances disclosed in that case, rely on the driver without being negligent or imprudent. Especially would this be true if there was nothing in the situation indicating probable danger.

Moreover, the court gave to the jury seven special charges requested by defendant (plaintiff in error), in two of which, numbers six and seven, the duty of decedent to exercise ordinary care for his own safety in avoiding danger incident to such driving along a country road in the nighttime is fully stated.

We do not find any reason to interfere, and the judgment will be affirmed.

Judgment affirmed.

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


text:
    The State, ex rel. Barnes, v. Johnson, Judge.

      Writ of prohibition — Jurisdiction of common pleas court — Residence local option petition — Withdrawal of petition — Remedy by proceeding in error.

    (No. 15908
    Decided April 2, 1918.)
    In Prohibition.

      Messrs. Smith, Baker, Effler & Allen, for relator.

      Mr. J. A. White and Mr. Charles M. Earhart, for respondent.
   By the Court.

The right to a writ of prohibition restraining a judge from hearing a petition and application filed in pursuance of Sections 6140 to 6168, General Code, commonly known as the Jones Local Option Law, does not accrue by reason of an order of such judge permitting the withdrawal of a petition previously filed covering the same territory, particularly where the respondent had found that the petition last filed contained a greater number of qualified electors’ signatures than did the petition first filed. The statute conferred upon the respondent full and complete jurisdiction in the matter before him. If the relator were aggrieved by the finding and conclusion of the respondent, he would have a complete and adequate remedy by proceeding in error. The demurrer is therefore sustained.

Demurrer sustained.

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


text:
    Rheinfrank et al. v. Hurr, Admx.

      Estates — Sale of realty to pay debts — Who may maintain action — Remedy of creditor.

    (No. 15470
    —Decided March 19, 1918.)
    Error to the Court of Appeals of Wood county.

      Mr. Eugene Rheinfrank and Messrs. Harrington & Dunn, for plaintiffs in error.

      Mr. Benjamin F. James and Mr. Edward Beverstock, for defendant in error.
   This court, being fully advised in the premises find, that the court of appeals erred in overruling the general demurrer of the defendants to the amended petition of the plaintiff. That on the facts set forth in the amended petition, the plaintiff is not entitled to the relief prayed for, or to maintain this proceeding. That under the statutes of this state, the personal representative of the deceased is the only person authorized to maintain an action to subject the real estate of the decedent to the payment of his debts, and that if the defendant in error has any valid claim whatever against the estate of James Dunipace, deceased, that has not been fully settled, or is not' barred by the statute of limitations, her remedy is under the statute of Ohio relating to the administration of decedent’s estate.

It is therefore ordered and adjudged 'by this court, that the judgment of the court of appeals be, and the same is hereby, reversed. And coming now to render the judgment that the court of appeals should have rendered, it is hereby ordered and adjudged, that the demurrer of the defendants to the amended petition of the plaintiff, be, and the same is hereby sustained, and the amended petition dismissed.

Judgment reversed.

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


text:
    Brown v. The Kiechler Mfg. Co.

      Release for personal injuries — Mental capacity to contract — Question for jury — Error to direct verdict.

    (No. 15510
    Decided March 19, 1918.)
    Error to the Court of Appeals of Hamilton county.

      Messrs. Galvin & Bauer, for plaintiff in error.

      Messrs. Robertson, Buchwalter & Oppenheimer, for defendant in error.
   It is ordered and'adjudged by this court, that the judgment of the said court of appeals be, and the same hereby is, reversed; for the reason that the issue joined by the pleadings as to the mental capacity of the plaintiff to contract at the time he signed the paper writing purporting to be a release, as set forth in the answer, is a question of fact, to be determined by a jury under proper instructions, and for this reason, the trial court erred in directing a verdict for the defendant. (Perry v. The M. O’Neil Company, 78 Ohio St., 200, approved and followed.)

It is further ordered and adjudged, that this cause be remanded to the superior court of Cincinnati, Ohio, for further proceedings and trial according to the law.

Judgment reversed.

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


text:
    Geer v. The State of Ohio.

      State medical board — Revocation of physician’s certificate.

    (No. 15609
    Decided March 19, 1918.)
    Error to the Court of Appeals of Cuyahoga county.

      Mr. W. H. McMorris, for plaintiff in error.

      Mr. W. S. FitzGerald and Mr. Edward C. Stanton, for defendant in error.
   Judgment reversed on authority of Jewell v. McCann et al., 95 Ohio St., 191.

Judgment reversed.

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


text:
    The State, ex rel. The M. E. Murphy Co., v. Donahey, Auditor of State.

      Public contracts — Terms and provisions control, when — Measurements by engineer — Final in absence,of fraud, when.

    (No. 15777
    —Decided March 19, 1918.)
    In Mandamus.

      Messrs. Morton, Irvine, Turner & Blanchard, for relator.

      Mr. Joseph McGhee, attorney general; Mr. L. D. Johnson and Mr. Frank Davis, Jr., for respondent.
   The court upon consideration whereof, and being fully advised- in the premises, finds that the motion of the plaintiff is well taken and sustains the same, for the reason that it is averred in the petition of the relator and admitted by answer of respondent, that it was written into the contract under which this labor was performed, as one of the terms and conditions thereof, that, “all. measurements and determinations of quantities shall be made by the engineer, and his measurements shall be final and conclusive between the parties.” That in the absence of fraud, collusion or mistake, this condition of Jhe contract is binding on the parties thereto, and includes within its terms the measurements and determinations of quantities of all earth hauled over five hundred feet from the boundary line of the hatchery.

That in the absence of an averment that the engineer in charge of this work was guilty of fraud or collusion with the plaintiff, or mistaken in hi6 measurements and determinations of the quantities of earth as measured, determined and certified by him, the answer of the respondent states no legal grounds for setting aside the measurements and determinations of quantities made by the engineer in charge of this work, and that the measurements and determinations of quantity made by the engineer in charge are therefore final and conclusive upon the parties to this contract.

It is therefore ordered and adjudged by this court that a peremptory writ of mandamus issue, requiring the respondent as Auditor of State, of the State of Ohio, to issue a voucher to the plaintiff, directed to the Treasurer of State, in the sum of $6,094.93, as prayed for in relator’s petition.

Writ to issue.

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


text:
    The County Board of Education of Clinton County v. The County Board of Education of Greene County.

      Schools — Transfer of territory — From centralised district — Three-year limitation — Section 4727, General Code.

    (No. 15785
    Decided March 19, 1918.)
    Certified by Court of Appeals for Greene county.

      Messrs. Hayes & Hayes and Mr. S. L. Gregory, for plaintiff in error.

      Mr. Harry D. Smith and Mr. F. L. Johnson, for defendant in error.
   Judgment affirmed on authority of State, ex rel. Snapp, v. Goul et al., 97 Ohio St., 259.

Judgment affirmed.

Wanamaker, Newman, Jones, Matthias, Johnson and Donahue, JJ., concur.


text:
    Pollitz et al. v. The Public Utilities Commission.

      Public Utilities commission — Application for rehearing — Filed after statutory period — Jurisdiction — Error to supreme court.

    (No. 15615
    —Decided April 2, 1918.)
    Error to the Public Utilities Commission.

      Messrs. Henry, Fauver, McGraw & Thomsen, for plaintiffs in error.

      Mr. Joseph McGhee, attorney general; Mr. C. A. Radcliffe and Mr. S. H. West, for defendant in error.
   It is ordered and adjudged by this court, that the order of the said utilities commission be and the same is hereby affirmed; for the reason that the record discloses that no application for a rehearing of the order of the commission was filed within the time required by law, and, therefore, the commission was. without authority to entertain the application for a rehearing or to set aside the order theretofore made by them.

Order affirmed.

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


text:
    Barker et al., County Commissioners, v. The City of Akron.

      Elections — Municipal—Payment of expenses — Section 5052, General Code — Declared constitutional by court of appeals — Affirmance by supreme court — Concurrence of judges.

    (No. 15681
    —Decided April 2, 1918.)
    Error to the Court of Appeals of Summit county.

      Mr. C. G. Roetsel, prosecuting attorney; Mr. W. A. Spencer and Mr. Robert Guinther, for plaintiffs in error.

      Mr. Scott D. Kenfield, for defendant in error.
   It is ordered and adjudged by this court, that the judgment of the said court of appeals be, and the same is hereby, affirmed.

The election expenses in question in this case were incurred for elections other than November elections, in odd numbered years and clearly come within the provisions of Section 5052, General Code, which requires that the same be paid from the county treasury as other county expenses.

Four members of this court are of the opinion that this section of the General Code is unconstitutional. Three members are of the opinion that this section is. not repugnant to any constitutional provision. The court of appeals held the statute constitutional. In such cases the Constitution of Ohio requires a concurrence of six members of the supreme court to declare a law unconstitutional. It follows that the judgment of the court of appeals must be affirmed.

Judgment affirmed.

Wan am aker, Newman and Matthias, JJ., concur.


text:
    The Globe-Wernicke Co. et al. v. The Safe-Cabinet Co.

      Contempt — Violation of injunction decree.

    (No. 15766
    Decided April 2, 1918.)
    Error to the Court of Appeals of Hamilton county.

      Mr. Judson Harmon; Mr. C. D. Robertson and Mr. R. H. Parkinson, for plaintiffs in error.

      Mr. Gideon C. Wilson and Mr. James L. Steuart, for defendant in error.
   It is ordered and adjudged by this court, that the judgment of the said court of appeals be, and the same is hereby, affirmed; this court being of the opinion that the record discloses evidence of acts violative of the decree of injunction awarded by said court March 24, 1914, committed subsequent to the modification and affirmance of that decree by this court, and is sufficient to warrant the finding of the court of appeals herein and sustain the conviction of The Globe-Wernicke Company and Henry C. Yeiser, president of said company, of the charge of contempt made by the complainant.

Judgment affirmed.

Wanamaker, Newman, Jones and Matthias, JJ., concur.


text:
    Wells v. Wells.

      Court of appeals — Jurisdiction on appeal — Divorce and alimony.

    (No. 15816
    —Decided May 14, 1918.)
    Error to the Court of Appeals of Auglaize county.

      Messrs. Lippincott & Lip pine ott, for plaintiff in error.

      Messrs. Goeke, Anderson & Boesel, for defendant in error.
   Judgment affirmed on authority of Marleau v. Marleau, 95 Ohio St., 162.

Judgment affirmed.'

Wanamaker, Newman, Jones, Matthias, Johnson and Donahue, JJ., concur.


text:
    Ramm v. The Babin Realty Co.

      Court of appeals — Reversals on weight of evidence — Jurisdiction to reverse same case second time — Section 11577, General Code.

    (No. 15829
    Decided May 14, 1918.)
    Error to the Court of Appeals of Cuyahoga county.

      Messrs. Stanley & Horwitz and Messrs. Payer, Winch, Minshall-& Karch, for plaintiff in error.

      Messrs. White, Johnson, Cannon & Neff, for defendant in error.
   Judgment reversed on authority of The Mahoning Valley Ry. Co. v. Santoro, Admr., 93 Ohio St., 53, and Nyiry v. Modern Brotherhood of America, 97 Ohio St., 343.

Judgment reversed.

Wanamaker, Newman, Matthias and Johnson, JJ., concur.


text:
    The State, ex rel. Bessinger, v. Johnson, Judge.

      Writ of prohibition — Challenging jurisdiction of common pleas court — Refusal by court, of appeals — Affirmance by supreme C0Urt

    (No. 15953
    —Decided May 14, 1918.)
    Error to the Court of Appeals of Lucas county.

      Messrs. Smith, Baker, Effler & Allen, for plaintiff in error.

      Mr. C. M. Earhart and Mr. James A. White, for defendant in error.
   It is ordered and adjudged by this court, that the judgment of the court of appeals of Lucas county refusing to issue a writ of prohibition directed to the common pleas court of Lucas county, be, and the same hereby is affirmed, for the reason that the court of common pleas has full and complete jurisdiction of the subject-matter of the action pending before it, and full authority under the laws of this state to determine its own jurisdiction.

This court further find, that the issues and evidence in this case are identical with the issues and evidence in the case of State, ex rel. George Barnes, v. Curtis T. Johnson, Judge of the Court of Common Pleas of Lucas County, No. 15908, [ante, 438], in which cause this court finally and fully ad-' judicated all"the issues and questions presented by the record in this case.

Judgment affirmed.

Wanamaker, Newman, Jones, Matthias, Johnson and Donahue, JJ., concur.


text:
    The State, ex rel. Noel et al., v. Houpt et al.

      Schools — Newly created, districts — ■Authority to appoint board — Sitbsequent election — Title to office — Sections 4712, 4736 and 4736-1, General Code.

    (No. 15869
    Decided May 14, 1918.)
    In Quo Warranto.

      Mr. J. S. Hare and Mr. Benjamin Meek, for relators.

      Mr. Joseph McGhee, attorney general, and Messrs. Carey & Hall, for respondents.
   This court being fully advised in the premises find from the pleadings and admissions, that on the 25th day of September, 1915, the County Board of Education of Wyandot County, Ohio, created the McCutchenville Rural School District, and upon the same day duly appointed J. L. Bare and the defendants, except Frank Yambert, as the board of education of the newly created district.

That the persons so appointed duly qualified and organized as such board.

That later, J. L. Bare resigned, and the defendant, Frank Yambert, was. appointed by the County Board of Education of Wyandot County to fill the vacancy in the Board of Education of the Mc-Cutchenville Rural School District occasioned by the resignation of J. L. Bare.

That the County Board of Education of Wyandot County, Ohio, was duly and legally authorized by the provisions of Section 4736, General Code, to appoint the members of the board of education of the newly created McCutchenville Rural School District, and that the appointment so made by them was valid and legal; and the pretended appointment by the commissioners of Wyandot county on the 9th day of October, 1915, was without authority of law, and void.

That the term of J. L. Bare under the appointment of the County Board of Education ended on the 1st day of January, 1918, and that his resignation after that date created no vacancy, and the appointment of the defendant, Frank Yambert, to such supposed vacancy, was null and void.

• The court further finds that the provisions of Section 4736-1 in relation to the successors of members of a board of education of a rural school district appointed by the commissioners of a county under authority of that section, have no application whatever to the election of successors of members of the board of education of a rural school district appointed by the county board of education under authority of Section 4736, General Code.

That under the provisions of Section 4712, General Code, the board of education of rural school districts shall consist of five members elected at large, at the same time township officers are elected, and in the manner provided by law, for the term of four years.

The court further finds that the relators were each duly, legally, and properly elected members of the board of education on the 6th day of November, 1917, at the time fixed for the election of township officers within the state of Ohio as members of the Board of Education of the McCutchenville Rural School District.

, That they have duly qualified as members of the board of education of that district, and organized as such, and are entitled to exercise all the rights, powers, privileges and functions of the board of education of that district.

That the defendants unlawfully usurp the office of members of the Board of Education of the Mc-Cutchenville Rural School District, and unlawfully retain the books and other properties used in the transaction of the business of that board, and refuse to surrender ■ possession thereof to the relators, and unlawfully pretend to exercise the right to act and transact the business of the Board of Education of the McCutchenville Rural School District.

It is therefore ordered and adjudged, that the defendants and each of them be ousted from the office of member of the Board of Education of the McCutchenville Rural School District, and that the relators be inducted therein.

Writ allozved and judgment of ouster.

Wanamakee, Newman, Jones, Matthias, Johnson and Donahue, JJ., concur.


text:
    The Ohio State Telephone Co. v. The City of Columbus.

      Municipal corporations — Compensation by telephone company — For use of streets — Franchise stipulation for percentage of gross receipts— Validity.

    (No. 15650
    —Decided May 28, 1918.)
    Error to the Court of Appeals of Franklin county.

      Messrs. Daugherty, Todd & Rarey; Messrs. E. H. & W. B. Turner; Messrs. Brozvn, Geddes, Schmettau & Williams and Mr. George H. Jones, for plaintiff in error.

      Mr. Henry L. Scarlett, city attorney, for defendant in error.
   Judgment affirmed on authority of The Columbus Citizens Telephone Co. v. City of Columbus, 88 Ohio St., 466.

Judgment affirmed.

Wanamaker, Newman, Jones, Matthias, Johnson and Donapiue, JJ., concur. ■


text:
    The Berlin Heights Banking Co. v. The Western Union Telegraph Co.

      Supreme court — Rules of practice — Affirmance of judgment — Involving weight of evidence.

    (No. 15743
    —Decided May 28, 1918.)
    Error to the Court of Appeals of Cuyahoga county.

      Messrs. White, Johnson, Cannon & Neff, for plaintiff in error.

      Messrs. Cook, McGowan & Foote, for defendant in error.
   This court finds that it is shown by the record of the cause in the court of appeals that that court reversed the judgment of the court of common pleas for error of law in the charge, and because it is not supported, by sufficient evidence.

It is, therefore, ordered and adjudged by this court under Rule XIX of the Rules of Practice of this court that the judgment of the said court of appeals be, and the same is hereby, affirmed.

Judgment affirmed.

Newman, Jones, Matthias and Johnson, JJ., concur.

Nichols, C. J., Wanamaker and Donahue, JJ., dissent.


text:
    Johnson v. Skehan.

      Jurisdiction — State courts — Subject-matter pending in federal court — Attorneys’ fees — Money paid into court.

    (No. 15758
    Decided May 28, 1918.)
    Error to the Court of Appeals of Lucas county.

      Mr. William H. McLellan, Jr., for plaintiff in-error.

      Messrs. Graves & Stahl, for defendant in error.
   It is ordered and adjudged by this court, that the judgment of the said court of appeals be, and the same hereby is, reversed; and the judgment of the common pleas court is affirmed, for the reason that it appears from the record, that the defendant in error, Catherine Skehan, on the 20th day of January, 1914, filed in the district court of the eastern district of Michigan, southern division, a motion asking that court to require the plaintiff in error and his associate counsel, Frank J. Riggs, to return the money received by them upon the order of that court, and which is the same money in controversy in this, suit, to the registry of the said district court of the United States, and that at the time of the commencement of this action, that motion was still pending in that court, which court had and has full jurisdiction in the premises to open up and set aside its order directing the money to be paid to Ben W. Johnson and Frank J. Riggs, and to require the said attorneys to return the money into that court.

And for the further reason, that it appears from the record in this case, that the said funds have not been converted by the plaintiff in error to his use, but that the same are held by Frank J. Riggs, of Detroit, Mich., on behalf of himself and the plaintiff in error, upon the claim that they are entitled to the same as attorney fees in the case of Catherine Skehan v. John Winne, in the United States district court of the eastern district of Michigan, southern division, in which action the defendant paid into court the sum of $10,000.00 in settlement of plaintiff’s claim, and that the money in dis-.pute is part of this $10,000.00.

Judgment reversed.

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


text:
    Ware v. The Industrial Commission of Ohio et al.

      Workmen’s compensation — Jurisdiction — Common pleas court — Action by claimant — Court of appeals — Duty to consider all assignments of error.

    (No. 15783
    Decided May 28, 1918.)
    Error to the Court of Appeals of Hamilton county.

      Messrs. Fulford, Shook & Wilby, for plaintiff in error.

      Mr. Joseph McGhee, attorney general; Mr. Stanley McCall, assistant attorney general; Mr. John V. Campbell, prosecuting attorney, and Mr. Henry G. Hauck, assistant prosecuting attorney, for defendants in error.
   This court finds that the court of appeals erred in its finding that the said court of common pleas had no jurisdiction of the subject-matter of the said action and was not authorized to try, hear and determine the appeal of the said defendant in error. This court further finds that the said court of appeals should have considered all of the other assignments of error included in the petition filed by the Industrial Commission in the court of appeals.

It is, therefore, ordered and adjudged by this court that the judgment of the said court of appeals be, and the same is hereby, vacated and this cause remanded to the court of appeals with instructions to consider the assignments of error above referred to.

Judgment vacated and cause remanded to court of appeals.

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


text:
    The State, ex rel. Lange, v. The Industrial Commission et al.

      Workmen’s compensation■ — •Advancements by employer — Who entitled to commission’s award.

    (No. 15792
    —Decided June 11, 1918.)
    In Mandamus.

      Mr. E. K. Giblin, for relator.

      Mr. Joseph McGhee, attorney general, and Mr. Stanley McCall, for respondent.

      Mr. Harry E. Hammar, for cross-petitioner, The Diamond Alkali Co.
   The court finds that the money advanced to the relator by The Diamond Alkali Company was paid for and on behalf of all parties in interest, and in order to avoid the delay necessary in the allowance and payment by the Commission, and to meet the immediate necessities of the relator. The court, therefore, finds that the relator is not entitled to the writ prayed for, but that the said The Diamond Alkali Company is entitled to the writ prayed for in its cross-petition.

It is, therefore, ordered and adjudged that a writ of mandamus issue as prayed for by the said company in its prayer.

Writ denied to relator, but to issue in favor of The Diamond Alkali Co. on cross-petition.

Wanamaker, Jones, Johnson and Donahue, JJ-, concur.


text:
    Russell v. The City of Massillon.

      Directed verdict — Issues to be submitted to jury, when.

    (No. 15836
    Decided June 11, 1918.)
    Error to the Court of Appeals of Stark county.

      Mr. Warren E. Russell and Messrs. Pomerene, Ambler & Pomerene, for plaintiff in error.

      Mr. George W. Williams, city solicitor, for defendant in error.
   It is ordered and adjudged by this court that the judgment of the said court of appeals be, and the same hereby is, reversed; and this case is remanded to the common pleas court of Stark county for a new trial and further proceedings according to law; for the reason that it appears from the record in this case, that the plaintiff offered evidence tending to prove the material allegations of the petition, and that therefore, the trial court erred in directing a verdict for the defendant. The issue of fact should have been submitted to the jury to be determined by it under proper instructions from the court.

Judgment reversed and cause remanded.

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


text:
    The Board of Agriculture of Ohio v. Brittain.

      Civil service — Removal of employe — Failure to furnish reasons — Abolishment of office — Amendment of statute.

    (No. 15795
    —Decided June 21, 1918.)
    Error to the Court of Appeals of Franklin county.

      Mr. Joseph McGhee, attorney general, and Mr. L. D. Johnson, for plaintiff in error.

      Mr. Alfred Bettman and Mr. Henry T. Hunt, for defendant in error.
   Judgment affirmed on authority of State, ex rel. Brittain, v. Board of Agriculture, 95 Ohio St., 276, and State, ex rel. Taylor, v. Cowen, 96 Ohio St., 277.

Judgment affirmed.

Nicitols, C. J., Newman, Matthias, Johnson and Donahue, JJ., concur.


text:
    The City of Cleveland v. The Public Utilities Commission et al.

      Public utilities commission — Valuation of utilities — Items to be included — Cost of attaching business.

    (No. 15819
    Decided June 21, 1918.)
    Error to the Public Utilities Commission.

      Mr. W. S. FitzGerald, director of law, and Mr. Wm. B. Woods, for plaintiff in error.

      Messrs. Tolies, Hogsett, Ginn & Morley; Messrs. Squire, Sanders & Dempsey and Mr. Frank M. Cobb, for The Cleveland Electric Illuminating Co.

      Mr. Joseph McGhee, attorney general, and Mr. C. A. Radcliffe, for defendant in error.
   This cause came on to be heard upon the transcript of the record of the Public Utilities Commission of Ohio and was argued by counsel. On consideration whereof, it is ordered and adjudged by this court, that the judgment of the said Public Utilities Commission of Ohio be, and the same is hereby, modified by reducing the permanent value as found by the commission, of the several classes and kinds of property of The Cleveland Electric Illuminating Company, and the property of said company as a whole, used and useful for the service and convenience of the public in electrical service, as of July 1, 1914, to the sum of $18,549,172.87, and as so modified, the order of the public utilities commission of Ohio is affirmed. The amount of said reduction in the permanent value being the sum of $1,112,070 and being the amount of the item allowed by the commission designated “cost of attaching business.”

Order modified.

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


text:
    Maloney v. Sheriff of Hamilton County.

      Extradition — Requisition by governor — Presumption favoring issuance■ — •Section no, General Code, not construed.

    (No. 15832
    Decided June 21, 1918.)
    Error to the Court of Appeals of ^Hamilton county.

      Messrs. Hackett, Yeatman & Harris, for plaintiff in error.

      Mr. John V. Campbell, prosecuting attorney, and Mr. Walter M. Locke, assistant prosecuting attorney, for defendant in error.
   It is ordered and adjudged by this court, that the judgment of the said court of appeals be, and the same is hereby, affirmed; for the reason that in the absence of proof to the contrary, the presumption obtains that the Governor of Ohio acted in conformity with the laws of this state in the issuing of a warrant for the petitioner upon a requisition of the Governor of Pennsylvania.

The court of appeals properly found that the record in this case does not purport to contain all the evidence presented to the Governor of Ohio by the agent of the Governor of the State of Pennsylvania.

Therefore, the question as to whether Section 110, General Code of Ohio, is directory or mandatory, is not raised by the record in this case, and the decision of that question could in no way affect the judgment that must be entered here.

Judgment affirmed.

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


text:
    The City of Cleveland v. Russo, Admr.

      Municipal corporations — Negligence — Respondeat superior.

    (No. 15850
    Decided June 21, 1918.)
    Error to the Court of Appeals of Cuyahoga county.

      Mr. W. S. FitzGerald, director of law, and Mr. James T. Cassidy, assistant director of law, for plaintiff in error.

      Mr. G. E. Morgan and Mr. B. D. Nicola, for defendant in error.
   Judgment affirmed on authority of City of Toledo v. Cone, 41 Ohio St., 149.

Judgment affirmed.

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


text:
    Bayles v. Welch et al.

      Court of appeals — Jurisdiction — ¡Petition to vacate judgment — Section 11635, General Code.

    (No. 15864
    Decided June 21, 1918.)
    Error to the Court of Appeals of Licking county.

      Messrs. Jones & Jones, for plaintiff in error.

      Messrs. Kibler & Kibler, for defendants in error.
   It is ordered and adjudged by this court, that the judgment of the said court of appeals be, and the same hereby is, reversed; for error in sustaining the motion to dismiss the petition filed in said case March 27, 1917, this court being of opinion that the proceeding instituted by the filing of said petition is authorized by Section 11635, General Code; and this case is. remanded to the court of appeals with directions to overrule said motion and for further proceedings in said court according to law.

Judgment reversed and cause remanded.

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


text:
    The State, ex rel. Zielonka, City Solicitor, v. Marshall et al.

      Public utilities commission — Settlement of rate complaint — Constitutes contract, when — Acceptance by company — Authority to annul during contract-term.

    (No. 15955
    Decided June 21, 1918.)
    In Prohibition.

      Mr. Saul Zielonka, city solicitor, and Mr. Wm. Jerome Kuertz and Mr. Charles E. Weber, assistant city solicitors, for relator.

      Mr. Joseph McGhee, attorney general, and Mr. C. A. Radcliffe, for respondents.
   The court being fully advised in the premises, find that The Cincinnati Gas & Electric Company and The Union Gas & Electric Company, entered into a contract and agreement of settlement with the city of Cincinnati, of their complaint No. 564 on the dockets and records of the Utilities Commission of Ohio, to ordinance No. 390-1915 of the city of Cincinnati, and that in pursuance of such settlement and agreement by which the city agreed that the higher rates and prices than those named in the ordinance, collected by said companies from July 6, 1915, to November 1, 1916, should be retained by the companies, upon condition that the rates and charges prescribed in the ordinance should be accepted by said utilities from November 1, 1916, to the end of the term provided for in said ordinance, — which agreement was made subject to the order and approval of the Utilities Commission. That said Utilities Commission entered an order in pursuance of said agreement, and expressly found in said order that the rates which it so fixed had been agreed upon by and between the city and the gas company. That such agreement and settlement and the order of the Commission entered in pursuance thereto, is a binding contract between the city of Cincinnati and The Cincinnati Gas & Electric Company and The Union Gas & Electric Company, the same as if written acceptance of the rates named in this ordinance had been filed with the clerk of the said city by said companies, and binding upon the parties thereto during the term named in the ordinance.

And the court further find, that where an order of the Utilities Commission has been entered in a cause pending before it by agreement and in pursuance of a contract of settlement between the parties to the controversy pending before such commission, that the commission has no power or authority to open up and set aside such order, and relieve either of the parties to the contract from the terms and conditions thereof, during the time covered by the contract of settlement made by the parties thereto.

For the reason above stated and upon no other ground averred in the petition, it is ordered and adjudged, that a writ of prohibition issue as prayed for in the petition.

Writ to issue.

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


text:
    The State, ex rel. The Interstate Vaccine Co., v. The Board of Agriculture of Ohio et al.

      Board of agriculture — Regulation of sale of hog virus — Constitutional law — Police power — Revocation of permit — Applicant estopped, when.

    (No. 15975
    Decided June 21, 1918.)
    In Mandamus.

      Mr. John A. Deasy and Mr. James R. Clark, for relator.

      Mr. Joseph McGhee, attorney general, and Mr. P. E. Dempsey, for respondents.
   This day this cause came on to be heard by the court upon the demurrer of the relator to the answer of the respondents herein, and the court being fully advised in the matter find said demurrer not well taken, and overrule the same, for the reasons:

1st: That Order No. 4 of .The Board of Agriculture of Ohio, to regulate the sale and distribution of hog cholera virus in Ohio, is a valid exercise of the police power conferred upon The Board of Agriculture by Section 1108, General Code.

2nd: That the relator having applied for and received a permit under the terms and conditions of Order No. 4, cannot now complain of the revocation of that permit under the terms and conditions written in the order.

It is therefore ordered and adjudged, that the writ of mandamus as prayed for in the petition, be, and the same hereby is refused.

Writ denied.

Newman, Jones, Matthias, Johnson and Donahue, JJ., concur.


text:
    The State, ex rel. The Hartford Life Insurance Co., v. Langdale et al.

      Writ of prohibition — Purpose and scope,

    (No. 15932
    Decided July 2, 1918.)
    In Prohibition.

      Messrs. Jones, Hooker, Sullivan & Angert and Messrs. Arnold & Game, for relator.

      Mr. Smith W. Bennett, for respondents.
   Writ denied on authority of State, ex rel. The Hartford Life Insurance Co., v. Douds et al., 96 Ohio St., 604.

Writ denied.

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


author: Newman, J.

text:
    The State, ex rel. Buchtel, v. Hawkins, Justice of the Peace.

      Attachment — Jurisdiction — Justice of peace — Sections 10224 and 10225, General Code — Action commenced in township — Defendant and garnishee Cleveland residents.

    Under the provisions of Sections 10224 and 10225, General Code, a justice of the peace elected and residing in a township of Cuyahoga county outside of the city of Cleveland is without jurisdiction to issue an order of attachment against a resident of the city of Cleveland and against a garnishee who is a resident of said city, where neither the defendant nor the garnishee can be served in the township in which the justice was elected and in which he resides.
    (No. 15933
    Decided November 19, 1918.)

      In Mandamus.
    This is a proceeding in mandamus originating in this court. The defendant is a justice of the peace in and for East Cleveland township, Cuyahoga county, Ohio. On the 6th day of March, 1918, plaintiff brought an action against one James Svoboda, before said defendant as justice of the peace, to recover the sum of twelve dollars for necessaries. At the time of the filing of his bill of particulars, plaintiff filed an affidavit in attachment, naming The Theodor Kundtz Company, a corporation, garnishee, and tendered a bond as required by law. It appears from the petition that at the time of the filing of said papers said Svoboda was a resident of the city and township of Cleveland and not a resident of the township of East Clevelánd, nor present therein, and the said The Theodor Kundtz Company was located and had its principal place of business in the city and township of Cleveland and not in the township of East Cleveland. The defendant, as justice of the peace, refused to issue a summons in said action and to issue, an order of attachment. The prayer of the petition is that a writ of mandamus issue to compel him to do so and to proceed to assume jurisdiction of said action and proceedings in attachment. The sufficiency of the petition is challenged by demurrer.

      Messrs. Chapman, Howland, Niman & Younger, for plaintiff.

      Messrs. Gentsch, Rawson, Smith, Kavanagh & Carpenter; Messrs. Henderson, Quail, Siddall & Morgan; Messrs. Hoyt, Dustin, Kelley, McKeehan & Andrews; Mr. D. E. Morgan and Mr. C. M. Horn, for defendant.
   Newman, J.

The demurrer to the petition presents the question whether a justice of the peace elected in a township of Cuyahoga county outside of the city of Cleveland has jurisdiction to issue an order of attachment against a resident of the city of Cleveland and against a garnishee who is a resident of that city, when neither the defendant nor the garnishee can be served in the township in which the justice of the peace was elected and in which he resides.

Section 583, Revised Statutes, as amended 93 Ohio Laws, 146, provided:

“Justices of the peace within and co-extensive with their respective counties shall have jurisdiction and authority: * * *

“7. To issue attachments and proceed against the goods and effects of debtors in certain cases, except in counties containing a city of the second grade of the first class, or of the first grade, second class, the jurisdiction and authority in such cases is co-extensive only with the township for which the justice was elected, but when said justice has jurisdiction of the defendant because he resides in the township for which said justice was elected or otherwise as provided in section 584 of the Revised Statutes, the jurisdiction of such justice in attachment shall be co-extensive with the county.”

Section 584, as amended 93 Ohio Laws, 146, provided:

“No householder or freeholder resident of the county shall be held to answer a summons issued against him by a justice in a civil matter in any township of such county other than the one where he resides, except as otherwise provided by section five hundred and eighty-th-ree, and in the cases following: * * *

“Fourth. Where the summons is accompanied with an order to attach property the jurisdiction is co-extensive with the county, except in counties containing a city of the second grade of the first class, or of the first grade, second class, the jurisdiction is co-extensive only with the township for which the justice was. elected, unless jurisdiction of the defendant is otherwise obtained as provided elsewhere in this section.”

The counties referred to in paragraph 7 of Section 583 and in paragraph 4 of Section 584 are Cuyahoga and Franklin.

On February 2, 1909, in Oakman v. Rose Furniture Co., 79 Ohio St., 467, the judgment of the circuit court of Cuyahoga county was affirmed. The circuit court in that case held unconstitutional the amendment to Section 584, Revised Statutes, supra, excepting Cuyahoga and Franklin counties from the general provisions of that section as to the jurisdiction of justices of the peace in attachment cases, and held that justices of the peace in those counties, as well as. in all the counties of the state, had jurisdiction co-extensive with their counties “to issue attachments and proceed against the goods and effects of debtors in certain cases.”

The codifying commission of Ohio codified the laws of this state, which codification was adopted by the general assembly in 1910. Section 583 was carried into the General Code as Section 10224, and the codifying commission named the two counties, Cuyahoga and Franklin, in paragraph 7, instead of referring to them by class and grade.

Section 584 was carried into the code as Section 10225, and paragraph 4 of the former section was made to read: “Where the summons is accompanied with an order to attach property the jurisdiction is co-extensive with the county, except as otherwise specially provided.”

We do not think there can be any question but that the words “except as otherwise specially provided” refer to the exception in the seventh paragraph of Section 10224.

It is to be observed, therefore, that not only the provisions for county-wide jurisdiction of justices in attachment cases were reenacted by the general assembly in 1910, but also the provisions which excepted Cuyahoga and Franklin counties therefrom. These two sections were in the General Code on September 3, 1912.

On that date Section 1, Article IV of the Constitution, was amended so as to read: “The judicial power of the state is vested in a supreme court, courts of appeals, courts of common pleas, courts of probate, and such other courts inferior to the courts of appeals as may from time to time be established by law.” This constitutional amendment became effective January 1, 1913, and the office of justice of the peace ceased at that time to be a constitutional office.

The general assembly, clothed with power to establish courts inferior to the courts of appeals, on April 28, 1913 (103 Ohio Laws, 214), enacted the following:

“Sec. 1711-1. That there be and is hereby established in each of the several townships in the several counties of the state of Ohio, except townships in which a court other than a mayor’s court now exists or may hereafter be created having jurisdiction of all cases of which justices of the peace have or may have jurisdiction, the office of justice of the peace.

“The jurisdiction, powers and duties of said office, and the number of justices of the peace in each such township shall be the same as was provided by the laws in force on September 3rd, 1912. All laws and parts of laws in force on said date, in any manner regulating such powers and duties, fixing such jurisdiction or pertaining to such office or the incumbents thereof are hereby declared to be and remain in force until specifically amended or repealed, the same as if herein re-enacted.”

It is conceded by counsel for the relator-that there was established in each of the townships in the several counties, except townships in which a court other than a mayor’s court then existed or that might thereafter be created, the office of justice of the peace, with the jurisdiction, powers and duties that had existed by the laws in force on September 3, 1912, and all laws regulating such powers and duties and fixing such jurisdiction were expressly declared to be and remain in force until repealed.

Cleveland township, Cuyahoga county, is a township in which a court other than a mayor’s court exists, viz., the municipal court of the city of Cleveland, and therefore there are no justices of the peace in that township.

But it is the claim of counsel that inasmuch as the provisions in Sections 583 and 584, Revised Statutes, supra, excepting Cuyahoga and Franklin counties, have been declared unconstitutional in the Oakman case, Sections 10224 and 10225, General Code, their successors, stand with the same meaning and the same interpretation that attached before the codification in 1910.

We cannot subscribe to this view. It is not a matter of interpretation or construction with which we are dealing. When Section 1711-1, supra, was enacted in 1913, the general assembly, by the use of the term “laws in force on September 3rd, 1912,” had reference to all sections in the General Code relating to the jurisdiction, powers and duties of a justice of the peace which had not been repealed. Sections 583 and 584, Revised Statutes, had not only not been repealed, but, as we have seen, were carried into the General Code as Sections 10224 and 10225. At the time Section 1711-1, supra, was enacted, the holding in the Oakman case could have no application, for the office of justice of the peace had ceased to be a constitutional office, had become statutory, and was wholly within the control of the general assembly. In re Hesse, 93 Ohio St., 230.

Our conclusion that the general assembly intended to include among the laws in force on September 3, 1912, the exception contained in Sections 10224 and 10225, supra, in reference to Cuyahoga and Franklin counties, is strengthened, we think, by the fact that as late a§ February 1917, 107 Ohio Laws, 20, Section 10225 was amended and the exception in reference to these two counties was again carried into the section.

On April 18, 1913, 103 Ohio Laws, 682, the general assembly amended and supplemented an act providing for the establishment of a municipal court in the city of Cleveland, and in Section 1579-10 it was provided that in all actions and proceedings against a resident of the city of Cleveland, heard and determined in a court of a justice of the peace in and for any township in the county of Cuyahoga other than Cleveland township, the municipal court shall have appellate civil jurisdiction.

It is urged by counsel for the relator that in the use of this language the general assembly recognized the jurisdiction of justices of the peace over residents of the city of Cleveland when the summons is accompanied by an order of attachment, and provided this remedy instead of excluding the jurisdiction of a justice over residents of the city of Cleveland, as do the other municipal court acts.

In view of the later enactment to which we have referred — the act of February 1917, amending Section 10225, carrying with it the exception in reference to Cuyahoga and Franklin counties — we do not think that the provision in the Cleveland municipal court act with reference to an appeal was intended to have application to attachment matters. This appeal provision could well apply to other civil matters, in which a justice of the peace outside of the city of Cleveland has jurisdiction over residents of that city. For instance, in paragraph 5 of Section 10225, when two or more persons are jointly, or jointly and severally bound in a debt or contract, or otherwise jointly liable for the same action, and reside in different townships of the same county, or in adjoining counties, the plaintiff may commence his action before a justice of the township in which any of the persons liable reside ; and, in paragraph 6, in cases of trespass to real or personal property, the action may be brought in the township where the trespass was committed, or in the township where the trespasser, or one of the several trespassers, resides.

Our holding is that Sections 10224 and 10225, supra, including the exception in reference to Cuyahoga and Franklin counties, were “laws in force on September 3rd, 1912,” and, on April 28, 1913, when Section 1711-1, supra, was enacted, were free from any constitutional objection. The defendant, therefore, in the instant case, is. precluded by the provisions of these two sections from exercising jurisdiction in the case in which plaintiff brought an action, and the writ of mandamus will therefore be denied.

Writ denied.

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


text:
    Weinland v. Fulton, Secretary of State.

      Constitutional law — Validity of amendment — Cannot be determined in injunction proceeding < — To restrain submission to electors, when.

    (No. 16071
    Decided September 10, 1918.)
    Error to the Court of Appeals of Franklin county.

      Mr. Frank Davis, Jr., for plaintiff in error.

      Mr. Joseph McGhee, attorney general; Mr. P. E. Dempsey; Mr. Timothy S. Hogan; Mr. Judson Harmon and Mr. A. J. Freiberg, for defendant in error.
   By the Court.

In an action to enjoin the Secretary of State from submitting for the approval or rejection of the electors a constitutional amendment proposed by petition in pursuance of the provisions of Section 1 and Section 1a of Article II of the Constitution of Ohio, a court can not consider or determine whether such proposed amendment is in conflict with the Constitution of the United States. (Pfeifer et al. v. Graves, Secretary of State, 88 Ohio St., 473, approved and followed.)

Judgment affirmed.

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


author: Matthias, J.

text:
    The Complete Building Show Co. v. Albertson.

      Courts of appeals — Appellate jurisdiction — Chancery cases— Pleading — Action at law — Accounting—Form of action not changed, when,

    1. The jurisdiction of the court of appeals is now conferred only by Section 6, Article IV of the State Constitution. In the trial of cases on appeal its jurisdiction is thereby limited to chancery cases and can neither be enlarged nor curtailed by the general assembly.
    2. An action for the recovery of money as a debt or as damages is essentially an action at law and, where no fiduciary or trust relation exists between the parties, cannot be converted into a suit in chancery for an accounting by averments that facts relative to plaintiff’s claim and the extent of his damages are not known to plaintiff but are within the knowledge of the defendant.
    (No. 15912
    Decided November 26, 1918.)
    Error to the Court of Appeals of Cuyahoga county.
    The plaintiff in error in this court was the plaintiff in the court .of common pleas. In its petition the plaintiff avers that in the transaction of its business, and incidental thereto, it exhibited a picture and offered to the person suggesting the best title therefor a certain house and lot. The house was not then completed, but was to be finished by the plaintiff in accordance with the plans and specifications on file. The defendant was the successful competitor, and a deed was duly executed conveying said premises to him. Defendant requested the plaintiff to turn over to him the balance of moneys not expended, and which were held by the plaintiff for the completion of the building according to the plans, specifications and survey therefor, stating that he would pay and discharge all unsatisfied claims for material and labor required for the completion of said house, and discharge and satisfy all costs of materials thereafter to be delivered to complete the same. The plaintiff accordingly turned over to the defendant for such purpose the sum of $955.90.
    Plaintiff then avers that after receipt of said money “the defendant misapplied said money to other items and accounts than those contained in the plans, specifications and survey aforesaid and failed to apply said money to the items, accounts and purposes designated in the plans, specifications and survey and left unpaid and unsatisfied claims for labor and materials against the plaintiff for many hundreds of dollars as plaintiff is informed and believes, the exact amount of which is to the plaintiff unknown and which after the exercise of due diligence, it is unable to ascertain, but on information and belief alleges the amount to be, to-wit, $656.14.”
    There are other averments in the petition, repeated in various forms, but which in substance are that the defendant has refused and still refuses to account to the plaintiff for said money after demand made therefor, and that defendant is insolvent except in so far as his solvency is effected by said property. The prayer is that an account be taken between the plaintiff and defendant and a decree entered ordering the defendant to reimburse plaintiff in the amount of the balance ascertained to be due plaintiff, and in default thereof that the amount be entered as a judgment and made a lien upon the premises of the defendant, and said lien foreclosed, and that until further order of the court defendant be restrained from conveying or encumbering said property.
    Issue was joined by answer; and by way of cross-petition the defendant set out that the plaintiff was indebted to certain persons and corporations therein named for materials claimed by them to have been furnished for and used in the construction of said house, who were claiming liens on said premises therefor, and that the same if valid were for materials furnished at the instance and request of plaintiff pursuant to its obligation to deliver said house to the defendant free of cost. Said material and supply companies were made defendants, and filed cross-petitions setting up their claims.
    Plaintiff filed a reply to the cross-petition of the defendant Albertson, but none to the cross-petitions of the other defendants. The case was tried by the court, the entry showing that a jury had been waived, and the court found in favor of the defendant Albertson and also found in favor of the cross-petitioning material and supply companies and against the plaintiff, and ordered and adjudged that the plaintiff pay their claims. The case was thereupon taken on appeal to the court of appeals; where, upon motion, the same was dismissed upon the ground that the court of appeals did not have jurisdiction thereof. Error is prosecuted in this court to reverse that judgment.

      Mr. David B. Carpenter, for plaintiff in error.

      Messrs. Wilkin, Cross & Daoust and Mr. Trafton M. Dye, for defendant in error.
   Matthias, J.

The jurisdiction of the court of appeals is now conferred only by Section 6, Article IV of the State Constitution. In the trial of cases on appeal its jurisdiction is thereby limited to chancery cases and can neither be enlarged nor curtailed by the general assembly. Cincinnati Polyclinic v. Balch, 92 Ohio St., 415, and Wagner v. Armstrong, 93 Ohio St., 443.

The court of appeals refused to entertain jurisdiction of this case and dismissed the appeal. The only question therefore presented by the record is whether this case is a chancery case and appealable to the court of appeals.

In discussing the question by which the extent of equity jurisdiction is to be tested and practically determined, it is stated in 1 Pomeroy’s Equity Jurisprudence (3 ed.), Section 62, that “The question is * * * whether the circumstances and relations presented by the particular case are fairly embraced within any of the settled principles and heads of jurisdiction which are generally acknowledged as constituting the department of equity.” It is further said that one of the results which follows is that “a court of equity will not, unless perhaps in some very exceptional case, assume jurisdiction over a controversy the facts of which do not bring it within some general principle or acknowledged head of the equitable jurisprudence.”

In applying the test suggested we are admonished to ascertain, examine and consider “the circumstances and relations presented” by this case, and the case made in the petition, as well as the prayer, must be looked to in determining the character of the action. Reed’s Admr. v. Reed et al., 25 Ohio St., 422.

It is to be observed that the substance of the plaintiff’s petition is that the plaintiff had conveyed to the defendant a residence property; that the building was not completed; that the defendant agreed, in consideration of payment to him of a stipulated sum of money by the plaintiff, to relieve the plaintiff of its obligation to complete the building according to the plans, specifications and survey therefor, and to pay and discharge all claims for material and labor necessary to so complete said building; that plaintiff paid the defendant said sum of money; that the defendant failed to keep his contract, and by reason of his failure, the plaintiff became liable for the payment of certain claims, the extent of which it was not definitely informed and therefore cannot state. Plaintiff’s petition contains averments as to the failure of the defendant to account and of refusal on demand to render an accounting to the plaintiff, and other similar averments; but an action for the recovery of money as a debt or as damages is essentially an action at law and cannot be converted into a suit in equity by the mere use of words and phrases usually found only in pleadings in equitable actions, no matter how often repeated nor the extent of variation of such allegations. The essential and material averments of the petition will be scrutinized, and the pleading, stripped of all surplus and immaterial statements, examined to ascertain the essential character of the action. No facts are alleged which would entitle the plaintiff to the equitable action of accounting. The parties did not sustain a fiduciary relation. It may be said here, as truly as in the case of Willson Improvement Co. v. Malone, 78 Ohio St., 232, that the relations which would authorize a court of equity to require such an accounting do not exist, and that either party believing the other to be indebted to him might have recourse to an action at law for the recovery of the amount thereof. The plaintiff has not proceeded upon the theory that the arrangement between it and the defendant constituted a trust, and does not seek to have any trust performed or executed; nor is this a case in which judgment for money can only follow as. a result of a previous award of equitable relief. The relief which plaintiff does seek is reimbursement, and it asks that the amount found due be entered as a judgment. True, plaintiff avers that it does not know the extent of the claims which defendant has failed to pay and therefore cannot state in its pleading the amount of its damage; but now that adequate means of obtaining discovery from parties to actions at law are afforded by our statute, suits for discovery, as previously prosecuted in equity, are no longer necessary; and it is elementary that where an adequate remedy is afforded at law equity may not be resorted to. (Chapman v. Lee, 45 Ohio St., 356.) The only equitable relief prayed for in this action is that of injunction, and that does not appear to have been urged. Even if it were, it was merely ancillary and incidental and cannot serve to change the nature of an action from one at law to a suit in chancery. The allegations of the cross-petitions of the material and supply companies were not put in issue by a reply, and were thereby confessed to be true, and were allowed, apparently as a matter of course, and, hence, an appeal from the relief granted thereon would not lie in behalf of the plaintiff even if it were otherwise available.

It follows that the action of the court of appeals in dismissing the appeal was right and its judgment is therefore affirmed.

Judgment affirmed.

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


text:
    The State, ex rel. Kahle, v. Rupert, Auditor.

      Initiative and referendum — Municipal—Petitioners may withdraw signatures, when — Certification of petition to election officials —Powers and. duties of officers — Section 4227-2, General Code.

    (No. 16132
    Decided October 29, 1918.)
    Error to the Court of Appeals of Allen county.

      Mr. Edwin Blank; Mr. R. C. Eastman and Mr. S. A. Armstrong, for plaintiff in error.

      Mr. Melvin Light, city solicitor; Messrs. Wheeler & Bentley and Messrs. Welty & Downing, for defendant in error.
   By the Court.

In the absence of statutory provisions to the contrary an elector signing a petition authorized by the statutes of this state, invoking either official tor judicial action, has a right to withdraw his name from such petition, or, if he be the sole petitioner, to dismiss the same at any time before judgment has been pronounced, or before official action has been taken thereon. Dutten v. Village of Hanover, 42 Ohio St., 215; Hays et al. v. Jones et al., 27 Ohio St., 218, and McGonnigle et al. v. Arthur et al., 27 Ohio St., 251, 256.

The general assembly of Ohio, in the enactment of Section 4227-2, General Code, evidently recognized this right, and afforded the signers of a referendum petition an opportunity for its exercise by providing in this section that the clerk or city auditor shall not certify such petition to the board of deputy supervisors of elections until after the expiration of ten days from the date of filing the same.

While the statute does not in terms provide how soon after the expiration of ten days the clerk or city auditor must certify the same to the board of deputy supervisors of election, nevertheless, such officer must perform this duty within a reasonable time thereafter. Upon his failure to certify within a reasonable time after the expiration of ten days, mandamus will lie to compel him to perform his duty under the statute. He cannot arbitrarily withhold certifying such petition to the board of deputy supervisors of elections for the purpose of permitting the withdrawal of further signatures; but until official action is taken by him, or an action in mandamus is brought, any person signing a petition has the right to withdraw his name therefrom.

Every officer of this state or any subdivision thereof not only has the authority but is required to exercise an intelligent discretion in the performance of his official duty. A city auditor is not required to certify to the board of deputy supervisors of elections a petition for referendum that does not comply with the provisions of Section 4227-2, General Code. However, the conclusion he may reach as. to whether such petition does or does not conform to the provisions of that section is not final. That is a question to be adjudicated by the court in an action either to restrain the auditor from certifying the same or to compel him to do so. In such proceeding, the question of the sufficiency of the referendum petition will be determined as of the date of the commencement of the action.

Judgment affirmed.

Wanamaker, Newman, Johnson and Donahue, JJ., concur.

Nichols, C. J., Jones and Matthias, JJ., not participating.


text:
    Lauer v. Green et al.

      Partition — Right of tenant in common — Section 12026, General Code — Cannot be defeated by will of cotenant, when.

    1. The provisions of Section 12026, General Code, confer upon every tenant in common having the possession or an immediate right to the possession of lands, the right to compel partition of the same.
    2. The estate of such tenant in common cannot be affected or his right to compel partition defeated, deferred or limited by the provisions of the will of his cotenant whereby he attempts to entail his estate including the lands owned as a cotenant.
    (No. 15927
    Decided November 26, 1918.)
    Error to the Court of Appeals of Morrow county.
    Plaintiff in error was plaintiff in the court of common pleas where he sought partition of a tract of land containing 160 acres, claiming to be the owner in fee simple of the one-eighth thereof. He averred in his petition that the defendants Howard M. Green, Dahl C. Green and James S. Green are each seized in fee simple of the undivided one-eighth part of said real estate by virtue of a deed from Lenora H. Green; that all the defendants named in his petition, under and by virtue of the last will and testament of James H. Green, who died August 7, 1894, are seized of the undivided four-eighths part of said real estate; that James H. Green, deceased, and Lenora H. Green, his wife, were joint owners in fee simple of the real estate above described at the time of the death of said James H. Green, and that said Lenora H. Green on the 11th day of April, 1905, by deed conveyed her. undivided one-half of said real estate to her four sons, Howard M. Green, Frank R. Green, Dahl C. Green and James S. Green, they being the only children of James H. Green and Lenora H. Green; and that on the 21st day of October, 1916, this plaintiff purchased at sheriff’s sale the interest of the defendant Frank R. Green, the same being the undivided one-eighth thereof. A copy of the will of James H. Green is attached to the petition. A devise to his wife Lenora H. Green of a life estate in all his property is followed by this provision:
    “Item 3. I give and devise to my children living at the death of my said wife, my interest in a certain farm, situated in Washington Township, Morrow County, Ohio, the east part of said farm extending into North Bloomfield Township in the County and State aforesaid containing about five hundred and thirty (530) acres on the following conditions, to-wit: So long as more than one of them shall be living it shall be held by them jointly in equal and common use for their benefit and support, and each shall enjoy an equal share of the products and income thereof, and bear an equal share of the taxes and necessary repairs, and to keep the same free and clear of any incumbrances and neither of my children shall have the right to place any incumbrances thereon, and at the death of any one of them, the interest of the deceased one therein shall go to the survivors or survivor and at the death of the last survivor, then my in-, terest in said farm shall go to the legal heirs of my children, share and share alike, and in case my said wife should remarry this provision shall take effect on such remarriage, and said premises shall be free of any right of dower, therein on her part.”
    Lenora H. Green, as widow, and as executrix of the last will of James H. Green, deceased, and the children of the four sons of James H. Green and Lenora H. Green, are made parties defendant.
    The defendants Howard M. Green, James S. Greenland Dahl C. Green filed an answer wherein they admit the relationship of the various parties as set up in the petition, and admit that James H. Green, deceased, and Lenora H. Green were joint owners in fee simple of the real estate described in the petition at the time of the death of James H. Green. They deny all other allegations of the petition. Defendants allege that whatever right, title or interest said James H. Green had in and to said premises in his lifetime was disposed of by his will, a copy of which is attached to the petition of plaintiff, and that by reason thereof the defendants have no more than a use of said property.
    The case was heard on appeal in the court of appeals. That court found that the estate of James H. Green, being an entailed estate, cannot be partitioned, and that the plaintiff is not entitled to a general order of partition. A decree was entered that the lands described in the petition be first divided into two parts of equal value by commissioners named in the order, and assigned one part to the estate of James H. Green, deceased, and the other to the grantees, under the deed of Lenora H. Green, and their successors in title, and ordered that the last-mentioned part be divided and aparted as follows: One-fourth to the plaintiff, one-fourth to Howard M. Green, one-fourth to Dahl C. Green and one-fourth to James S. Green. This proceeding in error is prosecuted to reverse the judgment of the court of appeals.

      Mr. J. W. McCarron, for plaintiff in error.

      Mr. W. J. Geer, for defendants in error.
   Matthias, J.

The record discloses that at the death of James H. Green he and Lenora H. Green were the joint owners in fee simple of the real estate described in the petition, and that Lenora H. Green was the owner of the undivided one-half of said tract on April 11, 1905, when she executed a quitclaim deed to her four sons, Howard M. Green, Dahl C. Green, James S. Green and Frank R. Green, which effected a conveyance to each of them of the undivided one-eighth of said real estate. Subsequently an undivided one-eighth thereof was sold by the sheriff of Crawford county upon execution to satisfy a judgment against said Frank R. Green, and was purchased by the plaintiff. Said sale was confirmed, and deed conveying the land to him was duly executed by the sheriff of Crawford county.

The question presented in this case is whether the plaintiff is entitled to. a general order of partition of said real estate without any restriction or limitation by reason of the provisions of the will of James H. Green, whereby he devised his interest in said tract of land and other real estate to his wife during her natural life and at her death to his four sons during their lifetime, and at the death of the last survivor of them to the legal heirs of his said children.

Under the provisions of Section 12026, General Code, tenants in common, and coparceners, of any estate in lands, tenements, or hereditaments within .the state, may be compelled to make or suffer partition thereof in the manner prescribed. But it is contended that the plaintiff is not a cotenant in that portion of the land disposed of by the will of James H. Green, and further that the,land entailed by James H. Green cannot be a subject of this partition suit. The plaintiff’s interest is one-fourth of the share previously owned by Lenora H. Green, and that was the undivided half of the 160-acre tract involved in this suit. It certainly follows that the plaintiff is the owner not of an undivided one-fourth of a specific half of said land, but the owner of the undivided one-eighth of the entire tract. Therefore, to the extent of his interest, he has the same right to a decree of partition that Lenora H. Green would have, had she retained her title. Her title was in no wise subordinate to or dependent upon that of James H. Green; on the contrary they were equal and came from a common source. It has long been settled that when there is an outstanding estate for life vested in a third person in the' whole premises, of which partition is sought, the reversioners or remaindermen cannot have partition; but that one who owns in fee simple an undivided interest in real estate can maintain an action to compel partition as against his cotenants who have only a life estate in another undivided interest. (Tabler v. Wiseman et al., 2 Ohio St., 208, and Johnson v. Brown et al., 74 Kansas, 346.) Here there is no outstanding estate for life vested in a third person in the whole of the premises of which partition is sought; nor is the plaintiff disabled to prosecute partition by reason of being prevented by some intervening estate from recovering possession in an action at law, unless that has been accomplished by the terms of the will of the co-tenant of his predecessor in title. But it is fundamental that a tenant in common cannot convey or encumber the interest of his cotenant, nor by any act of his divest his interest as cotenant in the entire tract, or defeat, defer or limit his rights as a tenant in common, and any attempt to do so is ineffectual. Freeman on Cotenancy and Partition, Sections 172 and 183, and 7 Ruling Case Law, page 879, and cases cited.

If a tenant in common by creating a contingent remainder or by entailing his estate may affect the right or interest of his cotenant, it would be within the power of any tenant in common, by creating such an interest, to prevent partition and deprive his cotenant of his right thereto conferred by statute, which, of course, cannot be permitted. The difficulty of making partition and the inconvenience resulting to other tenants furnish no sufficient reason for denying it. Taylor v. Blake, 109 Mass., 513, and Scovil et al. v. Kennedy et al., 14 Conn., 349.

It follows that the plaintiff is entitled to a general order of partition, and that the finding of the court of appeals that the plaintiff’s right to such order was affected by the provisions of the will of James H. Green was erroneous. For the reasons stated the judgment of the court of appeals is reversed.

Judgment reversed.

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


text:
    The State, ex rel. Moulton, v. Myers. The State, ex rel. Schlott, v. Myers.

      Schools — Election of county board member — Retiring presidents of local boards cannot elect, when.

    (Nos. 15888 and 15889
    Decided November 19, 1918.)
    In Quo Warranto.

      Mr. George W. Hoover and Mr. J. W. Craine, for relator William Moulton.

      Mr. W. S. Earsman and Mr. J. W. Craine, for relator Franklin Schlott.

      Mr. A. W. Agler and Messrs. Welty & Burt, for defendants.
   By the Court.

The statute which confers upon the presidents of the boards of education of the various village and rural school districts of each county authority to elect a member of the county board of education each year, does not authorize the election of a member of such board for a term which does not begin until after the expiration of the term of office of such presidents. . The general rule of law, well established, which is recognized and applied in the case of State, ex rel. Morris, v. Sullivan, 81 Ohio St., 79, is applicable, and precludes the election of members of the county board of education, whose terms of office do not begin until the third Saturday of January,.by presidents of village and rural school districts of the county, whose own terms and power to appoint expire on the preceding first Monday of January. The election of each of the relators was therefore invalid and they are not entitled to the relief sought.

Writs denied.

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


author: Jones, J.

text:
    The Canton Cemetery Assn. v. Slayman.

      Cemetery associations — Malicious prosecution —Liability—Execution— Property exempt, when.

    1. Under the provisions of Section 10093 et seq., General Code, the legislature of this state has assumed specific control over certain powers exercised by cemetery associations organized thereunder. By various sections of the act it has provided for the exemption of specific property from execution. Under the maxim expressio unius, exclusio alterius, the necessary implication arises that other property is not exempt from execution, and that an action may lie against such association and judgment satisfied by execution against non-exempted property.
    2. In this state an action for malicious prosecution can be.maintained against an association organized under the sections named.
    (No. 15796
    Decided December 10, 1918.)
    Error 'to the Court of Appeals of Stark county.
    Defendant in error, Sarah F. Slayman, sued the Cemetery Association for malicious prosecution, alleging in her petition that the association through James Dewel, its sexton, and J. A. Reed, its secretary and superintendent, without reasonable or probable cause, maliciously charged the plaintiff with having committed the offense of unlawfully removing flowers from the cemetery; that pursuant to said charge- she was arrested and imprisoned, and thereafter acquitted in the criminal court of Canton. Admitting her arrest and acquittal by the criminal court, but otherwise denying generally the allegations of the petition, the defendant pleaded as an avoidance that it was a corporation organized for cemetery purposes, not for profit, and that it was without capital stock; that it was a public and charitable corporation engaged in maintaining a cemetery as a place for the burial of the dead.
    Plaintiff recovered a verdict, which was affirmed by the court of appeals. Error is now prosecuted to this court.

      Mr. Lorin C. Wise and Messrs. Amerman & Mills, for plaintiff in error.

      Mr. Homer V. Briggle and Messrs. Welty & Burt, for defendant in error.
   Jones, J.

There is a wide divergence of view in the various jurisdictions of this country as to the liability of charitable organizations, to which it is not necessary to allude. Whatever may be the principle adopted in this and other states as to the liability of such associations in general, it is evident that here in Ohio the legislature has taken cognizance of this particular association, and has, by strong implication, recognized its liability to suit, in the legislation contained in the chapter affecting cemetery associations of the character here involved, whether purely charitable or otherwise. This legislation provides for the organization of such associations, for the acquisition and location of burial grounds, for the application of income and receipts, and for specific exemptions from execution.

Section 10093, General Code, provides: “A company or association incorporated for cemetery purposes may appropriate or otherwise acquire and hold, not exceeding one hundred acres of land; also, take any gift or devise in trust for cemetery purposes, or the income from such gift or devise according to the provisions of such gift or devise, in trust, all of which shall be exempt from execution, from taxation, and from being appropriated to any other public purpose, if used exclusively for burial purposes, and in no wise with a view to profit.”

When, therefore, the legislature has thus provided, in this or other sections of the General Code, for specific exemptions of one or more classes of property, it thereby impliedly excludes any other property from exemption. The maxim expressio unius, exclusio alterius applies. The fact that the legislature has provided when exemptions may or may not be had from execution indisputably shows that it did not intend to release these associations wholly from the payment of their civil obligations.

Counsel for plaintiff in error contend that Section 10109, General Code, provides a limitation as to the use which can be made of the funds of the cemetery association. The latter part of this section is as follows: “No part of the proceeds of land sold, or of the funds of such a company or association, shall ever be divided among its stockholders or lot-owners. All its funds must be used exclusively for the purposes of the company or association, as above herein specified, or invested in a fund the income of which shall be so used and appropriated.”

This section was only intended to apply to the application of the funds of the association by the officers entrusted with the control thereof and does not in terms exempt any of its property from civil liability as does the section first above quoted. In the case of Donnelly v. Boston Catholic Cemetery Assn., 146 Mass., 163, 166, a similar provision to the Ohio statute last quoted was found in the Massachusetts statute. In that case Judge Holmes declined to hold that the provision of the Massachusetts statute exempted the property of said association from ordinary civil liabilities.

We hold, therefore, that when the legislature of Ohio assumed to exercise control over the manner of acquisition and the safeguarding of the property of these associations it impliedly recognized their civil liability for a tortious act of the character here involved by providing the specific exemptions from execution found in the chapter relating to cemetery associations. The judgments of. the lower courts are affirmed.

Judgments affirmed.

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

Johnson, J., dissents.


text:
    The State, ex rel. Leighley, v. Eikenberry.

      Schools — Removal of board member — Section 4748, General Code — Absence from meetings — Time computed, how.

    (No. 15890
    Decided November 19, 1918.)
    In Quo Warranto.

      Mr. George W. Hoover and Mr. J. W. Craine, for relator.

      Mr. A. W. Agler and Messrs. Welty & Burt, for defendant.
   By the Court.

The validity of a proceeding of the Stark county board of education, whereby it attempted to remove the relator as a member of said board and elect the respondent to the vacancy thus created, is challenged by this suit in quo warranto.

A resolution, presented by a member of the board at its meeting January 17, 1918, recited in substance that the relator had been absent from every meeting of said board held between October 8, 1917, and January 7, 1918, which absence was caused by his wilful neglect to faithfully perform the duties of his office, and for no sufficient reason ever given to the board; and that it was. known to the board that he was not prevented from attending by reason of illness or other sufficient cause. It further declared vacant “the office as a member of this board held by said Elmer E. Leighley J’

This resolution was based on the provisions of Section 4748, General Code, which provides that a vacancy in any board of education may be caused by “absence from meetings of the board for a period of ninety days, if such absence is caused by reasons declared insufficient by a two-thirds vote of the remaining members of the board, which vote must be taken and entered upon the records of the board not less than thirty days after such absence.”

The record, if not the resolution itself, discloses that the facts relative to relator’s absence from the meetings of the board furnished no basis whatever for the proposed procedure. The regular meetings of the board were held on the s.econd Tuesday of each month. The relator was present at the regular meeting October 8, 1917. No subsequent meeting of the board was held and none called until the second Tuesday in November, 1917. The relator was* absent from that meeting. The next meeting was held on the second Tuesday in December, 1917. The relator was absent from that meeting! There was no quorum, only one member being present. The relator attended the next meeting, which was January 8, 1918. His absence does not date from October 8, for he attended the meeting then held, and he was not in default until the second Tuesday in November, when a meeting was held which he failed to attend. The ninety days would then begin to run, but only sixty days elapsed from that date to January 8, 1918, when he again attended and participated in the proceedings before the board.

The record disclosed that upon the question of the passage of this resolution the roll was called and three members voted in the affirmative. Relator after requesting his name to be called also voted in the affirmative. However, under the provisions of the statute, the relator had no right whatever to vote upon the proposition one way or the other. His vote was therefore a nullity and cannot be regarded either as a resignation or as an estoppel to prevent his challenging the, legality of the procedure by which his ouster was attempted.

The undisputed facts disclosed by the record show that there was no basis whatever for the resolution, and the proposed action of the board was wholly unwarranted. It is unnecessary therefore to consider any other questions in the case. A judgment of ouster is awarded against the respondent as prayed for by the relator in his petition.

Judgment of ouster awarded.

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