author: McIlvaine, J. Longworth, J.

text:
    Carpenter v. Warner.
    1. In an action on the bond of a justice of the peace for neglecting to issue an execution as required by law, the amount of the judgment is prima facie the measure of damages.
    2. Such damages may be reduced by showing that the judgment debtor did not possess property, subject to levy and sale, sufficient to satisfy the judgment.
    3. The burden of proving facts in mitigation of damages, rests on the defendants.
    4. Personal property which becomes exempt from execution only when selected by the judgment debtor, is, until such selection be made, subject to levy and sale.
    5. There is no presumption of law, that a judgment debtor has selected or will claim to hold any particular item of personal property as exempt from execution, in lieu of a homestead, although he may not own any other property from which selections might be made.
    6. Where a court is requested, under the statute, to find and state the facts and law separately, and no objection is made at 'the time to the sufficiency of the facts found, a party cannot avail himself of a defect in the findings, in a court of error ; but must submit to such judgment as the facts found require.
    Error to the District Court of Pichaway couuty.
    The original action was brought by defendant in error against John Wehe, B. C. Carpenter and Jethro Denton, on the official bond of Wehe as justice of the peace. Said bond was conditioned that said Wehe should -well and truly perform every ministerial act enjoined upon him by law, by virtue of said office. The breach of the bond alleged whs the failure of the justice to issue execution upon a judgment recovered by the plaintiff before said justice against one Ross for $101.90, upon the failure of the judgment debtor to put in stay bail.
    Several questions were raised by Carpenter and Denton, sureties on the bond, upon the pleadings, but as we find no error therein, and as it is not disputed that the principal in the bond failed to issue execution as he was required by the statute to do, it is sufficient to state the case in respect to the question of damages, the only question considered in the opinion.
    Upon the trial in the common pleas, the defendants (plaintiffs in error) requested the court to state the conclusions of facts found, separately from the conclusions of law, whereupon the court stated in writing as follows:
    “ 1st. That the judgment debtor, James R. Ross, was, at the time of the rendition of the judgment in favor of plaintiff, and for more than sixty days thereafter, a married man, the head of a family, a resident of Ohio, and not the owner of a homestead.
    “ 2d. That Ross had the title to the store-house occupied by him at the time, upon which he had paid $100.00, being the hand payment; and that the remaining purchase money, to wit, $200.00, was then undue and unpaid.
    “ 3d. That he owned no other real estate or personal estate, except that stated below.
    “ 4th. That his household property was all exempt from levy and sale under the homestead acts, and did not exceed $200.00 in value.
    “ 5th. That at the time referred to, Ross was engaged in keeping a saloon or grocery.
    “ 6th. That the value of his personal property, stock in trade, store furniture used in said business, was of the value of $50.00.
    “7th. That his personal property, stock in trade, and store furniture used in said business, were not exempt from levy or sale, except upon demand made to the constable, or officer holding a writ of execution against the judgment debtor.
    “ 8th. The plaintiff is entitled to judgment in the sum of $50.00, the value'of stock in trade and store furniture.
    “ 9th. The court finds as a matter of law that the said stock in trade and store furniture, named in item 7th of this finding, was liable to seizure on plaintiff’s judgment, and that the plaintiff is entitled to a judgment for the value of the same, as the measure of damages.”

      On these findings judgment was rendered in favor of the plaintiff for $50 and costs.
    On error, the district court affirmed the judgment of the common pleas.

      Henry F. Page, for plaintiff in error,
    on the question of presumption, cited:
    StarMe on Ev. 846 ; Pinch’s Law, 37; State v. Haggard, 1 Humph. 390; Camfrance v. Pilie, 1 An. 197; Green v. Fonbene, 2 An. 957.
    A. T. Wall'mg and C. Curtcdn, for defendant in error :

      Gresham v. Walker, 10 Ala. 374; Lindley v. Miller, 67 Ill. 254; Twinam v. Smart, 4 Lans. 263; Dains v. Prosser, 32 Barb. 291; Seaman v. Luce, 23 Barb. 250; Strouse's Ex'r v. Becker, 44 Pa. St. 206; Bair v. Steinman, 52 Pa. St. 423; Frost v. Shaw, 3 Ohio St. 270; Conley v. Chilcote, 25 Ohio St. 320; Foss v. Stracher, 42 N. H. 42; Allen v. Cook, 26 Barb. 374.
   McIlvaine, J.

In Gaylor v. Hunt, 23 Ohio St. 255, it was decided “that the neglect of a justice of the peace to issue an execution when required by law, is the breach of a ministerial duty for which an action may be maintained by the judgment creditor on his official bond. The measure of damages is not necessarily the amount for which the execution should have issued, but the loss suffered by the creditor from the neglect.” And in speaking of the measure of damages, it is said in the opinion: “ If the judgment debtor be insolvent, and thus the issuing of the execution could not have benefited the creditor, no more than nominal damages would be recoverable, in the absence of malice or corrupt motive.”

In Hootman v. Shriner, 15 Ohio St. 43, which was an action against a sheriff for the escape of a party under arrest in a’ civil action, the following propositions were laid down :

“ 1. On proving the judgment, arrest and escape, the plaintiff is, prima facie, 'entitled to recover the whole amount of his debt.
“ 2. To reduce tlie recovery below the amount of the debt due from the escaping prisoner, the onus probamdi rests upon the defendant.
3. For this purpose the defendant may not show that the amount of the debt is still capable of being collected from the escaped prisoner; but may show his partial or total insolvency or pecuniary worthlessness at the time of the escape.
“4. That on proving judgment, arrest and escape, the plaintiff, in all cases, is entitled to recover at least nominal damages.”

The principles of this case apply to the case before us ; so that, the neglect of the justice to issue execution as required by law being admitted, the plaintiff below was prima facie entitled to cover the whole amount of his judgment, to wit: $101.90 and interest; and the burden of showing that the judgment debtor was partially or totally insolvent, by way of mitigating damages, rested on the defendants. The sole question now under consideration relates to the pucmi/um of damages.

The facts specially found by the court of common pleas show that the judgment debtor was possessed of no property subject to levy and sale on execution, at the time of the breach of the bond, except certain goods employed in the debtor’s business, of the value of $50, and that these goods might have been exempted under the 8th section of the Homestead act. This section, as amended in 1873 (70 Ohio L. 51), provides that it shall be lawful for any resident of Ohio, being the head of a family and not the owner of a homestead, to hold exempt from levy,and sale as aforesaid, personal or real property, to be selected by such person, his wife, agent or attorney, at any time before sale, not exceeding $500 in value.”

Before property is exempted from levy- and sale under this section, it must be first selected, &c. No such selection is shown in this case. The defendants, therefore, having failed to show that this property was, in fact, exempt from levy and sale on plaintiff’s execution, have failed, to the extent of its value, to defeat the plaintiff’s prima tfacie right to recover.

It is suggested that the findings of fact by the court below are defective, that it should have been found definitively whether this property was subject to execution, or was exempt. Admitting this to be true, the plaintiffs in error, having made no objection to the findings at the time, cannot object now, but must submit to such judgment as the facts found (in connection with admissions by the pleadings), required. 31 Oal. 591; 2 Nevada, 47. But if the ultimate fact had been found against plaintiffs in error, the question of difficulty would only have been shifted. The question then would have been, was the fact as found supported by the evidence % instead of, is the judgment supported by the facts found ?

The contention on behalf of ¡plaintiffs in error is, admitting that the judgment debtor did not select this property to hold exempt from levy and sale, in lieu of a homestead, for the reason that no execution was issued and no opportunity was afforded him to make the selection and claim the exemption, therefore, the law will presume that he would have made the selection and claimed the exemption if an execution had issued.

If such conclusion be regarded as a mere inference of fact, such as a jury or the court, as a trier of facts, might have drawn from the circumstances, it cannot avail the plaintiffs in error, as no such fact was found by inference or otherwise. As a mere matter of law we think it cannot be maintained. It is inconsistent with the legal presumption heretofore stated, to wit: that upon a breach of such a bond being shown, the law presumes the loss of the plaintiff to be the whole amount of his judgment. Nor is it sustained by sound reason. It is the duty of every man to pay his debts to the full extent that he has the ability to do so. And where a statute gives a. debtor the privilege to select and claim ceitain property as exempt from execution, the law will not presume that he will prefer the privilege to the duty. In Conley v. Chilcote, 25 Ohio St. 320, it was held that this right to hold property exempt from execution under this section, was simply a personal privilege, to be asserted or not at the will of the person in whose favor the right existed; and that, in an action against a garnishee who had paid money attached, to the debtor after notice of garnishment, it was not an available defence to show that the defendant in attachment might have held the money attached under the exemption laws of the state.

On the whole case, a majority of the court are of opinion, that there is no error in the judgment of the district court.

Judgment affirmed.

Longworth, J.

(dissenting). My mind has not come to the conclusion at which the majority of the court has arrived, and I am unable to conclude that the judgment of the court below was warranted as a legal conclusion from the facts as found. I do not doubt but that those facts showed the plaintiff to be entitled to a judgment upon his cause of action for nominal damages ; but how he became entitled to recover the sum of $50,1 confess myself unable to see. The rule is well settled in Gaylor v. Hunt, cited in the opinion, that the measure of damages, in actions of this character, is not necessarily the amount for which execution should have issued, but the loss suffered hy the creditor from the neglect, and in that case it is said that, where the judgment debtor is insolvent, only nominal damages are recoverable. To justify the judgment under consideration, therefore, it must have appeared to the court below, that the property of the debtor would have been applied to the satisfaction of the execution, had it issued, to the extent of $50. I am not now discussing what evidence, inferences or presumptions would have warranted this conclusion, nor upon which party rested the burden of showing that the fact did, or did not, exist; I simply assert that, to justify the judgment, the fact must lime arpjpea/red. The distinction between a fact and evidence of its existence is well understood. We have before us the facts found, but we do not know what the evidence was, what presumptions may have arisen, and what inferences may have been rebutted; nor are we at liberty to add to or change the facts as found by the trial court*; our office being simply to determine whether the judgment follows as a legal conclusion from the facts as found.

Now what is the controlling fact which is to determine the liability of the judgment debtor? Clearly, as before stated, that this property would have been reached by the execution, had it issued; but whether it would or would not, we are nc-t told.

The court below, it is true, sets out in it's written findings certain items of evidence, which tend to show, that the debtor would have had the right to exempt his property from execution had he so desired; but what he did, or would have done, we have no means of knowing.

This finding of facts is said to be imperfect, and cases are cited to show that advantage of this should have been taken in the court below. I submit, with deference to my brethren, that upon this fact or point the finding is not imperfect, but that there is no finding. I concede that, wherever the judgment follows as a legal conclusion from the facts found, it cannot be claimed in a court of error that, had the findings been more thorough and complete, this would not have been the result. This is precisely the doctrine of the cases cited, and is its extent. I concede further, that in case of ambiguity in the findings that construction will be adopted, if possible, which will support the judgment (see Jack v. Hudnall, 25 Ohio St. 255); but I deny, that the judgment can stand, where the fact, which is its foundation, is not found at all; and I cannot admit, that we have the right to consider any evidence set forth in the findings in order to infer therefrom the existence or non-existence of the absent and all-important fact. This view is authoritatively supported in Leach v. Church, 10 Ohio St. 148, th? syllabus of which is as follows : “ No judgment can be rendered upon a finding of facts which are in the nature of evidence only, and are not, in 1cm, conclusive upon the question at issue.”

But if it were allowable for us on error to draw inferences of fact from the evidence found, as to whether the debtor would or would not have exercised his right of exempting his property from execution,'had it issued, the probabilities were, and the inference of fact should be, that he would have claimed the exemption.

"White, J., concurs in the dissent.


source: Caselaw Access Project

author: "White, J.

license: Public Domain

text:
    Robb v. Brachman.
    In an action by a part owner of a partition fence, against another part owner, to recover half the value of the fence awarded by the township trustees, an objection that one of the trustees making the award was a son-in-law of the plaintiff, is waived, where the defendant, knowing such relationship, made no objection untij after the award was made.
    Error to the District Court of Highland county.
    The original action was commenced by the plaintiff in error against the defendant in error under the first section of the act relating to fences and enclosures (S. & O. 548), to recover one-half the value, as awarded by the township trustees, of a fence erected by' him, and which constituted, as he alleged, a partition fence between his and the defendant’s inclosures.
    In his amended petition, the plaintiff states his cause of action as follows: That he had theretofore erected, on one of the lines of his land, in Dodson township. Highland county, a fence, in all respects such as a good husbandman ought to keep ; that the defendant is the owner of the land adjoining thereto, and has an enclosure on the opposite side of said fence, so that said fence answers the purpose of enclosing the defendant’s field; that the defendant has not, at any time, paid to the plaintiff one-half the cost and value of said fence, as he' is required to do by the statute in such case made; that for the-purpose of ascertaining one half the value thereof, the plaintiff duly notified the defendant, in writing, seven days previous-to September 9, 1865, that on said day he would require the township trustees of said township of Dodson, to determine and fix such value on actual view; that on said day, the- said trustees, on actual view of said fence, and, in the presence- and by consent of the agent of the -defendant, did determine and fix one-lialf the value of said fence to be $118.63, and. did, by-writing under their hands (a copy whereof is attached), adjudge the defendant to pay the plaintiff said sum; whereby the defendant became indebted to him in said sum> of money, and which the plaintiff avers was then due and. payable ; yet the defendant, though often requested, has not paid the same nor any part thereof.
    Issue was taken on the petition by answer. The trial resulted in a judgment for the defendant.
    On error, this court reversed the judgment and remanded the case for re-trial. The case is reported in 24 Ohio St. 3. On further proceedings in the common pleas, the defendant, on leave, filed an additional answer, setting forth the following facts: That said award was made by two only of said township trustees — to wit, Eli Roush and 13. A. Selph; that the award was irregular and invalid for the reason that said Selph was, at the time of viewing said fence and making said award, the husband of one of the plaintiff’s daughters. Wherefore, the defendant alleged said Selph was incompetent to act as trustee in viewing said fence and making said award; that there was no legal quorum present at the view of said fence and making of said award; and that the award is invalid and of no force or effect in law.
    The court, having overruled a demurrer to this answer, gave the plaintiff leave to file a reply, which -was filed accordingly.
    The reply avers that said Selph’s alleged relationship to the plaintiff was known to the defendant at the time of making said award, and that no objection was then, or afterward, made to said Selph acting as such viewer. It also avers that both the defendant and his attorneys well knew of said alleged relationship when the original answer was filed, but did not allege the same as an objection to the plaintiff’s recovery.
    A. general demurrer'to this reply was interposed and sustained; whereupon, the plaintiff not asking leave to plead further, the defendant moved for final judgment in his favor against the plaintiff; and judgment was rendered accordingly.
    The judgment was affirmed-by the district court; and the object of the present petition in error- is to obtain the reversal of these judgments. .

      Harrison, Olds & Marsh, for plaintiff in error,
    as to waiver cited: Crow v. Daniels, 20 Conn. 331; Sherwood v. Steven
      son, 25 Conn. 432; Kellogg v. Brown, 32 Conn. 108: Hollister v. Hollister, 35 Conn. 241; Ipswich v. Commissioners, 10 Pick. 519; 5 Pick. 483; Fox v. Hazelton, 10 Pick. 275; Shoemaker v. State, 12 Ohio, 43; Hayward v. Calhoun, 2 Ohio, St. 164; Eastman v. Wright, 4 Ohio St. 156; Beck v. State, 20 Ohio St. 228; Young v. State, 23 Ohio St. 577; Kenrick v. Reppard, 23 Ohio St. 333; Hull v. Ambro, 2 Disney, 147; Williams v. True, 1 C. S. C. R. 321; Lowe v. McCorble, 8 W. L. J. 64.

      UlrieJe Sloan, for defendant in error,
    insisted that the action of the trustees was judicial, and hence the inability of one of them to act could not be waived.
   "White, J.

The judgment of the court of common pleas is sought to be supported on the ground that the award of the township trustees was not merely voidable but absolutely void. We cannot assent to this proposition. There was no statute incapacitating Selph from acting in the matter. The objection related to the regularity of the action of the trustees, which objection it was competent for the parties to waive if they saw proper to do so. Had the objection been seasonably made, it may be that Selph would not have acted, and that the services of the other trustee would have been obtained, against whom the objection might not exist. In the Inhabitants of Ipswich v. County Commissioners (10 Pick. 519), it was held that “ if a party to the proceedings of county commissioners in laying out a highway, has notice that one of them is not disinterested, but takes no exception to such commissioner’s acting, until after the highway is established, he will be deemed to have waived any exception on that account.”

It was said in the opinion by Shaw, C. J., that, “ By consenting to proceed with full knowledge of the ground of exception, the exception was'waived.”

And in Wakefield v. Railway Co. (6 B. & S. *794, 802), Cockburn, C. J., in speaking to this point, said : “Nothing is better settled than this, that a party aware of the objection of interest cannot take the chance of a decision in his favor and afterwards raise the objection.” See, also, Kellogg v. Brown, 32 Conn. 106 and note; Matter of Hilltown Road, 18 Pa. St. 233; Road in Allen Township, Id. 463.

We do not mean it to be implied that such an objection, if not waived, would be available in cases where a competent number of trustees cannot be had free from the objection, and the function to be performed by the trustees can be exercised by no other body. But where a competent body can be had, not subject to the objection, such body ought to be obtained when the objection is made.

Judgments reversed, demurrer to the reply over-, ruled, and cause remanded.


author: Longworth, J.

text:
    Bowen v. Bowen.
    1. Previous to the act of May 27, 1879 (76 Ohio L. 113), an action by the next of kin of a testator against his executors to obtain a decree declaring the residuary clause of the will void for uncertainty, and not showing plaintiffs to be entitled to any relief beyond such adjudication, cannot be maintained prior to the settlement of the estate.
    2. The act of April 17, 1857 (1 S. & C. 619, Rev. St. §§ 6195-6201), furnishes a complete and adequate remedy to the next of kin to recover their distributive shares of the estate where it can be shown that, in respect to any portion of his estate, the testator died intestate.
    Error to the District Court of Washington county.
    Charles Bowen died, owning a large estate, principally personal property. He made a will whereby, after several bequests to relatives and friends named, he provided as follows :
    “ After my decease and all debts and expenses are paid, and all of the above bequests are paid off, I empower my executors to dispose of any remainder at their discretion; and as I owe no debts save those of love and gratitude to my friends I authorize my executors to settle and compound with my debtors as in their judgment shall seem for the best of all concerned. I hereby appoint and constitute George Bowen, Hiram F. Devol, and Charles L. Bowen, executors of my last will and testament; and having full confidence that all trusts will be fully carried out and all bequests paid, it is my will that they proceed to settle the same without being required to make a schedule of my assets; and as I wish no auctioneer over my property, I wish them to dispose of the same by private sale or as to them may seem best; and if there should be a residue, I wish to have the same divided amongst my relatives and friends or given to charitable purposes or given to the poor as they see fit.”
    This suit was brought by the children and representatives of his brother, Ebenezer Bowen, who assert that they are entitled to a distributive share of the estate after payment of the debts and legacies. Ebenezer, had he lived, would have been entitled to a one-sixth share in a final distribution of the estate if no will had been made. Plaintiffs filed, a petition in the court of common pleas of Washington county, wherein they alleged that the disposition attempted to be made of the estate, after payment of debts and legacies, was ineffectual, and that the residuary clause of the will, above quoted, was void for uncertainty. They prayed that the legal effect and operation of the will as respects said residuary estate, the rights of plaintiffs and the duties of the executors, should be judicially settled and expounded; that such of its provisions as are void should be so declared; that the rights of plaintiffs, as heirs at law, or next of kin, should be established, and especially that the rules governing the executors in the final distribution of the estate should be determined and settled by decree. They also prayed for general relief.
    The executors answered denying that, as to any part of his estate, Charles Bowen died intestate, and they denied that any questions had arisen under said will, as to its construction or as to the powers and duties of the executors thereunder, except such as might have arisen in the minds of the plaintiffs. A demurrer to this answer was overruled, in the district court, the cause being in that court on appeal, and the judgment was that defendants go thence without delay.

      A proceeding in error in this court Was dismissed on the ground that the summons in error was issued and served more than three years after the rendition of the judgment below (36 Ohio St. 312); but, upon application, leave was given to amend, and it now appears that one of the plaintiffs in error is within the saving clause of the statute of limitations applicable to the proceeding ; and the question made is whether the saving of the statute as to this one plaintiff in error will inure to the benefit of all. If it does, this court is asked to construe this will and determine the rights of the parties under it.

      Jolvn Welch and Ewa/rt, Sibley da Ewa/rt, for plaintiffs.

      William B. Loomis and Harrison, Olds da Ma/rsh, for defendants.
   Longworth, J.

If we concede, for the purposes of this decision, that all proper parties are before this court, within time, we are still unable to see that the plaintiffs were entitled to any equitable relief in the court below. If Charles Bowen died intestate as respects his residuary estate, as claimed by plaintiffs, their rights are those of distributees or next of kin, and for the purposes of this discussion we may treat the will as though it contained no such clause as that above quoted.

The plaintiffs would be entitled to their respective distributive shares upon final settlement of the estate, and not until then. It could not be claimed that, in respect to the assets in their hands before final settlement, the executors stand as to them in the relationship of trustees. It is not questioned but that a suit may properly be brought in equity to establish the existence of a trust and to enforce its provisions, but here no trust exists, nor could a court of chancery, having declared the residuary clause of the will void, make any order against the executors, for the sufficient reason that the estate has not been settled.

It is true that in one sense an executor may be called a trustee, as any man may be so called who is bound to apply property for the benefit of others; but he is not a trustee in the technical sense. It is his duty to pay the creditors and legatees out of the assets, and he is personally liable if he neglects to do so. But there is no trust which affects the assets themselves.” Adams Equity, 251.

"Where no trust is involved, and no advice or guidance to an executor or other trustee is required, parties claiming under or against a will cannot maintain an action for the mere purpose of obtaining the court’s opinion as to its meaning or legal effect. Corry v. Fleming, 29 Ohio St. 147. A court of law is as competent as a court of equity to construe a will or other written instrument when rights sought to be asserted are dependent upon its construction. Here nothing seems to be asked of the court further than to expound the will and, to declare the rules by which the executors are to be governed in the discharge of their duties; and this request comes not from the executoi’s themselves but from the next of kin claiming as distributees. We ask, Gui "bono ? Most ample provision is made by statute for the assertion of these rights by action in the probate court or court of common pleas to recover the distributive shares to which plaintiffs may be entitled upon final settlement of the estate. 1 S. & C. 619. It is there provided that if the amount coming to any heir, legatee, widow, or other distributee shall be uncertain or in dispute, depending upon the construction of any devise, bequest, or upon any other question, these courts shall have full power to bring in all interested parties and to settle finally all matters in controversy, to render judgment, and to award execution. These provisions are incorporated in the Revised Statutes now in force. It may be observed that no claim is here made that the executors are insolvent, or that their bond is insufficient, or that the rights of plaintiffs are in danger of being lost to them.

We find it unnecessary to dispose of any of the questions argued by counsel, being satisfied, as we are, that, prior to the settlement of the estate, the interposition asked would be premature. The executors have the right under the statute to protect themselves by obtaining the direction and judgment of the court upon the meaning or effect of the will; but- this they do not ask, and therefore, of course, act upon their own risk and responsibility. We find no error in the action of the district court in dismissing the petition, for the reasons above stated.

Judgment affirmed.


author: MoIlvaine, J.

text:
    Newton v. Hammond.
    1. It is made tlie duty of guardians, by statute, when their wards arrive at age, to make final settlement of their accounts in the probate court.
    2. The jurisdiction of probate courts over the settlement of such accounts is óxclusive.
    3. A right of action on a guardian’s bond to recover from the sureties the amount remaining in the hands of the guardian, first accrues to the ward when such amount is ascertained by the probate court on the settlement of the guardian’s final account. Bartlett v. Humphries, 7 Ohio, part 1, 223, explained.
    4. Mere delay of a ward, on his arriving of age, to compel his guardian to settle his accounts in tbe probate court, does not discharge the sureties, notwithstanding the guardian may, in the meantime, have become insolvent.
    Error to tbe District Court of Summit county.
    On November 12, 1861, William C. Weld was appointed, by the probate court of Summit county, guardian of Karl J. Hammond, and gave bond conditioned for tlie faithful discharge of the duties devolving upon him as such guardian, with James W. Weld and Marcus Newton as sureties.
    James W. Weld afterward died testate, and on March 31, 1863, his last will and testament was duly probated, and on. December 24, 1864, his estate was finally settled and distribution made to the legatees and devisees.
    Marcus Newton died in January, 1874, intestate, and on October 27, 1876, his estate was finally settled and distributed among his heirs.
    On July 2,1876, the ward, Karl J. Hammond, arrived at full age.
    On January 17, 1878, the guardian, William O. Weld, filed in the probate court, his final account, and on March 15, 1878, the account was duly examined and a balance found in his hands belonging to said ward, of $668.82, which was ordered by said court to be paid by the guardian to the ward according to law.
    On May 28, 1878, the original action was commenced by Karl J. Hammond, on said bond, against the legal representatives, heirs and legatees of the sureties, to recover the amount due and unpaid as found by the probate court on such final settlement, less certain payments admitted to have been made.
    The defendants, namely, the heirs of Marcus Newton and the devisees and legatees of James W. Weld (now plaintiffs in error) defended on the ground that the plaintiff’s cause of action was barred as against them by the statute, in one year, and that the time of the statute commenced running at the date of the plaintiff’s majority, and not at the date of the final settlement of the guardian’s account.
    This defense, on demurrer was held insufficient, and judgment was rendered in favor of the plaintiff, by the court of common pleas.
    This judgment, on error to the district court, was affirmed.

      Oviatt Allen, for plaintiffs in error:
    The “ right of action ” in favor of the ward accrued, and the statute began to run, when the guardian had failed to perform his duty at the expiration of his trust, and the ward had the power by judicial process to compel the performance of such duty upon the part of the guardian.
    By the 5th section of the act relating to guardians and wards, the trust expires when the ward becomes of age. S. & C. 675; Favorite v. Booker, 17 Ohio St. 548; Hall v. Bumstead, 20 Pick. 2.
    Defendant in error arrived at the age of majority nearly two years before he moved for a settlement, and liis guardian was perfectly solvent and would have paid at any time prior to October, 1877 — over fourteen months after defendant in error became of age — if pressed to do so. All the above facts appear in the petition and answer, which are a part of the record.
    Now if he may delay about two years after majority, before he calls upon his guardian for a settlement and payment, may he not delay twenty ? in fact, is there any limit fixed, of a time within which the ward is called upon to enforce a settle-, ment and finding ? Defendant in error says no. And in this we claim that error has occurred.
    The statute referred to S. &■ S. 381, 4th paragraph, § 14: “ It shall be the duty of every guardian at the expiration of his trust, fully to account for and pay over to the proper person,” &e., and one condition of the bond is if he shall faithfully discharge the duties devolving upon him as such guardian, then to be void, otherwise, &c. Bartlett v. Humphries, 7 Ohio, pt. 1, 223; Cochran v. Taylor, 13 Ohio St. 382.

      Voris de Voris, for Caroline Newton, one of the plaintiffs in error.

      Marvin, Grant <& Foote, for defendant in error.
    The cause of action did not accrue until the final settlement of the guardian in the probate court. Robertson v. Robertson, 1 Root, 51; Smith v. Philbrick, 2 N. H. 395; Critchfield v. Hall, 56 N. H. 324; Judge v. Rodgers, 1 Greenleaf, 185; Stillwell v. Mills, 19 Johns. 203; Salisbury v. Van Hocsen, 3 Hill, 77; Anderson v. Maddox, 3 McCord, 237; Probate Court v. Slason, 23 Vt. 306; Chapman v Chapman, 32 Ala. 106; Sebastian v. Bryan, 21 Ark. 447; O’Bryan v. Strang, 42 Iowa, 643; Nutz v. Reuter, 1 Watts, 229; Dennison v. Cornwall, 17 S. & R. 378; Raser v. Raser, 62 Pa. St. 436, and cases there cited;
    In closing our citation of authorities in support of our proposition, we undertake to say that one clear principle runs through them all, and that this principle remains substantially unaffected by variant statutory provisions in the different States from which they are taken. That principle is this: It must be the finding of a court of probate, or of a court of equivalent functions, — whatever its name, — which fixes the liability of the guardian for any balance due to the ward, and not the judgment of a court of law. Such finding is reached in one of two ways: either by such court passing upon the guardian’s final account and ascertaining the amount due thereon, or by the same court citing the guardian to make such final account, and, upon his failure to do so, passing a decree against him as by default. One of these two modes must furnish the only basis upon which the ward can, in the first instance, support an action at law upon his guardian’s bond, where the alleged breach consists only in a failure to pay over the money or property claimed by the ward.
    As to the alleged negligence of the ward in bringing his action, we say that by the statute it is made the “ duty” of the probate court, to enforce the settlement of all guardians’ accounts, and when such duty is enjoined upon the court, a failure in its performance cannot be imputed to the ward as an omission for which he should be made to suffer. Least of all, ought the sureties to complain. The contingent liability, constituting the very purpose and object of the bond, rested upon them, and they, if they feared the insolvency of their principal, had at least equal opportunity with the ward to call upon the probate court to perform its duty in the matter of compelling the final settlement. The ward rested, and had a right to rest on the bond. See Curtis v. Bailey, 1 Pick. 199.
   MoIlvaine, J.

The original action was brought under favor of section 233 of the act of March 23, 1840, to provide for the settlement of the estate of deceased persons,” as amended March 12, 1867 (S. & S. 354), which, in certain cases, gives a right of action against the heirs, devises and legatees of deceased persons, but provides, no such suit shall be maintained unless it be commenced within one year next after the time when the right of action first accrue,” &e. It is not disputed that this action was within the statute, if commenced within the time prescribed. If the prescribed time commenced running at the majority of the plaintiff, his action was barred; but if it commenced to run at the date of the final settlement of his guardian, the action was brought within the time limited.

Before discussing the merits of the case, a preliminary question of pleading should be disposed of. Caroline Newton, a defendant below, filed an answer in the following form, to wit:

“ And now comes the said Caroline Newton, and for answer to the said petition says :
“ I. She denies that the said plaintiff’s pretended cause of action first accrued on the 15th day of March, a. d. 1878, but she avers, that if the same accrued at all, it was on the 2d day of July, a. d. 1876, the day said plaintiff arrived at his age of majority.
“ II. That said plaintiff’s pretended cause of action did not accrue within one year before the commencement of this action.”

It is contended that the court of common pleas erred in sustaining a demurrer to the second defence set out in this answer.

The demurrer was in the following form :

“Now comes the said plaintiff and demurs to the separate answer of the defendant Caroline Newton, filed herein, for the reason that the said separate answer of said defendant states no facts which constitute a defence to the allegation in the petition herein set out.”

We do not understand this answer as containing two defenses, but only one, to wit, the bar of the statute of limitations, stated in two paragraphs. The first paragraph contains the premise, and the second, a conclusion resulting therefrom, so that the sufficiency of the answer, as a whole, depends on the solution of the question as to the time when the plaintiff’s right of action first accrued — which, upon the facts stated, becomes a mere question of law.

The plaintiffs in error contend that “the right of action” of the plaintiff below first accrued to him at his majority, at which time he undoubtedly had a right to compel his guardian, by judicial process, to perform his duty, to wit, to make final settlement and payment. We hold, that the “right of action ” meant by the statute is the right to prosecute a suit on the cause of action therein stated, and, as applied in this case, means a suit on the guardian’s bond. The right to sue on the bond, and the right 'to compel the guardian to render a final account are very different rights. The latter can be enforced only in the probate court, while that court has no jurisdiction over the former. Section 2 of the probate act (S. & C. 1212) gives to the probate court exclusive jurisdiction : To appoint and remove guardians, to direct and control their conduct, and to settle their accounts and by section 1, clause 4, of the act of March 26, 1872 (69 Ohio L. 50), it is made the duty of every guardian, at the expiration of his trust, fully to account for, and pay over to the proper person, all of the estate of his ward remaining, in his hands.” That the settlement of this final account is -within the exclusive jurisdiction of'the probate court is not disputed, but the claim of plaintiff in error is, that the failure to make the account and pay over the estate remaining in his hands, at the expiration of the trust, is a breach of the bond, for which a right of action immediately accrues to the ward. And in support of this claim, Bartlett v. Humphries, 7 Ohio, part 1, 223, is relied on, in which it was held, that a previous settlement of the accounts of a guardian was not necessary to an action on his bond. In that case, however, it was admitted that it had been settled by adjudications (3 Ohio, 225; 4 Ohio, 101, and 5 Ohio, 240), that an action on an executor’s or administrator’s bond would not lie until after settlement of accounts, in the absence of a statute on the subject ; yet as the legislature had subsequently adopted the rule as to executor’s and administrator’s bond, without including guardians, it was therefore held, that an action on a guardian’s bond might be maintained without a previous settlement of his accounts, in accordance with a practice which had obtained in respect to other official bonds, namely, in respect to an insolvent’s bond and a clerk’s bond (3 Ohio, 508; 6 Ohio, 150), cases, in which no accounting was required by statute. But Bartlett v. Humphries is of little or no weight on the question now under consideration, for, as we have shown by-reference to the act of March 26, 1872, every guardian is now required, at the expiration of his trust, to file a final account in the probate court, “ fully to account for and pay overthat is, to account first, so that the amount in his hands may be judicially ascertained, and then pay over, &c.

The settlement made in the probate court of the accounts of the guardian shall be final between him and his ward, unless an appeal be taken to the court of common pleas, or the same be set aside for fraud or manifest mistake. Section 31, of Guardian’s Act, S. & C. 677. And section 33 of same act provides: “When any guardian has died, or may hereafter die, before the settlement in court of his or her guardianship account, it shall be the duty of the executor or administrator of such guardian to settle up said account in the same manner as such guardian ought to have done.”

If an accounting cannot be obtained from the guardian in the exercise of the power and jurisdiction of the probate court, we do not deny that an action on the bond against the makers may be prosecuted in a court of equity for an account and other relief; otherwise, such final accounting being a duty enjoined by law, and the enforcement of it being entirely within the jurisdiction of the probate court, a jurisdiction declared by statute to be exclusive, and that court performing a judicial function in finding the balance due upon such accounting under the power conferred upon it by statute, no action will lie against the guardian and his sureties on his bond as for a breach thereof, for any balance due from the guardian to his late ward, in a court of law, until such balance shall have been fixed by final settlement in the probate court.

That an accounting must precede judgment is clear from the fact that the amount of the judgment cannot otherwise be ascertained. Exclusive jurisdiction in the settlement of the account is given to the probate court. The probate court has no jurisdiction in an action on the bond. The statement of accounts in the probate court must be verified by the oath of the guardian — a requirement alike important to the sureties and the ward. The probate'court has control and direction of the conduct of the guardian throughout the administration of the trust. The amount of compensation allowed the guardian is fixed by tbe probate court. The finding of the probate court on the account is final between the parties, and in adjusting the account the probate court may call to its aid the services of a master. All these considerations show the wisdom and propriety of the rule which requires the settlement of guardians’ accounts by the probate court, — which, for that purpose, possesses all the powers of a court of equity,— instead of a jury, which does not possess such facilities.

The conclusion to which we have arrived is abundantly sustained by the authority of decided cases. See Anderson v. Maddox, 3 McCord, 237; Critchfield v. Hall, 56 N. H. 324; Robertson v. Robertson, 1 Root, 51; Bailey v. Rogers, 1 Greenleaf, 185; Stilwell v. Mills, 19 Johns. 203; Salisbury v. Van Hoesen, 3 Hill, 77; Probate Court v. Slason, 23 Vermont, 306; Chapman v. Chapman, 32 Ala. 106; Sebastian v. Bryan, 21 Ark. 447; O’Brien v. Strong, 42 Iowa 643; Raser v. Raser, 62 Pa. St. 436.

The defendants below in their answer alleged the negligence of the plaintiff, for eighteen months after he arrived at full age, in failing to compel his guardian to account in the probate court,-within which period the guardian became wholly insolvent ; whereby, they claimed, the sureties of the bond became and were discharged. This answer contained no defense, and was properly held to be insufficient, on demurrer.

The mere neglect of a creditor to bring suit on his claim for a period less than the time prescribed by the statute of limitations, does not discharge the sureties, although, in the -meantime, the principal debtor becomes insolvent. The guardian might have been compelled to account, after it became his duty to do so, at the instance of the sureties on the bond, as well as by the ward ; hence, the failure to compel the accounting was as much the negligence of the defendants as of the plaintiff. Chapin v. Livermore, 13 Gray, 561.

We find no error in the record. The right of the plaintiff to prosecute an action on his guardian’s bond to recover the amount of money due to him from the principal in the bond, first accrued to him when the amount was judicially ascertained by the probate court upon the settlement of the final account, and the plaintiff below was guilty of no negligence which operated as a discharge of the sureties on the bond.

Judgment affirmed.


author: Johnson, J.

text:
    Rankin v. Hannan.
    Where an administrator in his own behalf testifies to a certain conversation and an agreement between his intestate and the opposite party, which was material to the issue, the other party may testify as to the same transaction and conversation, under the third exception to section 5242 of the Revised Statutes.
    Error to the District Court of Gallia county.
    The issues involved on the trial of this case are fully stated in 37 Ohio St. 113, and need not be repeated. This case was then here on the question' of whether it was one which Rankin could appeal from the common pleas to the district court. It was held that he could, and the cause was remanded to that court for trial upon the issues joined.
    For the present purpose it is sufficient to say, that the original action was brought by Hannan as administrator of James H. Guthrie, on a judgment and order of sale of real estate in favor of one Carter, of which Guthrie was the owner by purchase, to enable the administrator to enforce the same in his own name as the representative of Guthrie’s estate.
    Among other defences, Rankin pleaded payment, setting out sundry items sufficient to satisfy the judgment.
    One of the allegations of the reply was, that all payments made were, by agreements between Guthrie and Rankin, to be applied on other debts, which the latter owed the former, and that they were so applied. Upon this and other issues the court of common pleas referred the case to a master, who took and reported to the court a large amount of testimony, together with his findings. Upon this report, the court of common pleas rendered a judgment in favor of the plaintiff.

      Rankin appealed from that judgment, but the district court dismissed his appeal.
    This court reversed that judgment and remanded the case for trial upon the issues involved. Rankin v. Hannan, 37 Ohio St. 113. On the subsequent trial in the district court upon the issues joined, by mutual agreement of the parties, “ the testimony taken before the master, while the action was pending in the court of common pleas, was used as testimony here, and such additional testimony as the parties desired to introduce, and the case was also heard upon the said master’s report and the exception taken thereto in the court of common pleas, upon said testimony so taken before the master, and the additional testimony taken in this court, and was argued by counsel.”
    On the trial, the defendant offered evidence tending to show sundry payments, which should be applied to the satisfaction of the judgment. To rebut that evidence, the plaintiff read from the testimony taken before the master, that of plaintiff offered in his own behalf. Among other things he testified that in December, 1869, in his presence “ it was agreed between Mr. Guthrie and Mr. Rankin that all payments made by Rankin to Guthrie should be applied to the payment of any debt due Mr. Guthrie at the time such payments were made, other than the Cai'ter judgment, till all other debts were paid ; there should be no payment on the Carter judgment till all other debts were paid.”
    Touching this agreement, the defendant Rankins placed, himself on the stand, and his attorneys proposed to, ask him,, whether there was such an agreement made between, him and. Guthrie as the one stated by the plaintiff, and also, what the-conversation testified to by Hannan, between Guthrie in his. life-time and said Rankin was, to which the plaintiff objected, and his objection was sustained, and the defendant was not allowed to give his version of said conversation and contract.
    The only question involved is, did the- court err in refusing to allow these questions to be put and answered ?

      Harrison, Olds do Marsh, W. H. C. Holier and D. A. Russell, for plaintiffs in error.

      W. J. Gilmore, Nash do Wdrdell and D. B. Heba/rd, for defendant in error.
   Johnson, J.

One of the issues was, whether certain payments made by Rankin to Guthrie in his life-time should be applied on the judgment on which the action was founded, or upon other debts due from Rankin to Guthrie.

Hannan’s testimony taken before the master was read,wherein he stated, that there was an agreement made in his presence, that these payments should first be applied to other claims due Guthrie. The court refused to allow Rankin to testify as to the conversation and agreement between him and Guthrie, in Hannan’s presence, concerning which Hannan had testified. The correctness of this depends on a construction of section 5242, Revised Statutes, which reads: “ A party shall not testify when the adverse party is . . . the executor or administrator . . of a deceased person, except . . . 3. If a party, or one having a direct interest, testify to transactions or conversations with another party, the latter may. testify as to the same transactions or conversations. 4. If a party offer evidence of conversations or admissions of the opposite party, the latter may testify concerning the same conversations or admissions.”

Before discussing the meaning of these provisions, it is proper we should notice a suggestion made by counsel for defendant in error. That suggestion is, that inasmuch as this .-evidence, which was taken before the master, was, by mutual ■consent, to be read on the trial, without any right reserved to contradict it, this was fairly a waiver of the right to impeach er contradict it. Such was not the effect of this agreement, as is manifest from the terms. It was merely a consent that each party might, instead of calling the witnesses into court again, read the testimony taken by the master, and also offer such additional testimony as he might choose. Neither party was bound to offer all the evidence before the master, or indeed any of it, and neither made the testimony read by the other, his own, so as to estop" him from contradicting or impeaching it.

This brings us to the direct question, was Rankin a competent witness as to the conversations and transaction of December, 1869, between him and Guthrie testified to by Hannan ? Hannan, though administrator of Guthrie, was a competent witness to testify on his own behalf as administrator to facts which occurred prior to the death of Guthrie. Doughman v. Doughman, 21 Ohio St. 658. The fact that he was a party as administrator, did not destroy his competency as a witness under the general provisions of the statute. Had some one else been administrator, Hannan could have been called in behalf of the estate. His being administrator did not deprive the estate of his evidence. The fact that he is such administrator, prevented Rankin from being a witness in his own behalf, except in the cases stated in the eighth exception to this general exclusion.

The 1st exception is, where the facts occurred since the death of the intestate; the 2d is, where the intestate has contracted through an agent who testifies; the 3d is, where & party, or one having a direct interest, testifies to transactions or conversations with another party, the latter may testify to the same transactions or conversations; the 4th is, where conversations or admissions of the opposite party are put in evidence by the administrator, the other party may testify concerning the same; the 5th relates to transactions or admissions of a deceased partner or joint contractor, in an action against the survivor, and excludes them against the survivor, unless made in his presence; the 6th admits account-books of original entries in certain cases against an estate; the 7th allows the former testimony of a deceased party on the further trial of the same case, and admits the opposite party to testify to the same matters; and the 8th is the same, where a deceased party’s deposition has been used.

All of these exceptions to the general rule of exclusion, save, perhaps, the 6th, can be based upon the principle of mutuality of right. If the representative party relies on the transactions, conversations or admissions of the opposite party and puts them in evidence against 'him, the object of these exceptions is to allow such party to be heard upon the same matters, otherwise he would be placed at a great disadvantage. As Hannan was the representative of Guthrie, Rankin could not testify in his own behalf unless within one or the other of the exceptions named. Hannan was a competent witness, to prove conversations, and transactions of Rankin with Guthrie, pertinent to the issue, as well as with others.

This made Rankin a competent witness as to the same transaction and conversations, under the third exception to section 5212 of the Revised Statutes.

Judgment reversed.


author: White, J.

text:
    Bank v. Cook.
    The character of the liability of the drawer of a bill of exchange must be determined from the instrument itself; and the addition of the word “ agent ” to his name, without anything else on the instrument indicating his principal, does not relieve him from personal liability as drawer of the bill.
    Error to the District Court of Cuyahoga county.
    The action was brought in the court of common pleas by the plaintiff, upon three several bills of exchange, substantially alike except as to date, amount, and acceptors. The following is a copy of the first described :
    “ $723.25. Cleveland, Ohio, Aug. 31st, 1876. « 'á “ Forty-five days after date, pay to the order of 3 ^ o W. P. Cook, Treas., seven hundred and twenty- | 43 three 25-100 dollars. Yalue received, and charge á § the same to account of “ g § “ W. P. Cook, Treas. | 8 3 “ , H. C.” f o « f “ To A. S. Mair & Co., | o “ Austin, Texas.”

      Indorsed as follows:
    “ Horace Wilkins. W. P. Cook, Treas. :
    “ Pay Poster, Ludlow & Co., or order, for collection, on account of The Ohio National Bank, Cleveland, Ohio.
    “John McClymonds, Cashier.”
    The action was brought against W. P. Cook as drawer, and Horace Wilkins as indorser.
    It is averred in the petition, and not denied, that each of the bills was presented for payment when due, and, payment being refused, each was protested for non-payment, of which the defendants were duly notified.
    Horace Wilkins answered, averring that said bills' of exchange were given by W. P. Cook as principal, and him as indorser. “ That said Cook was in fact the only person interested in obtaining the proceeds on said bills of exchange, and that this defendant was accommodation indorser and surety for said Cook, and indorser and surety for him alone.” There is no reply to the averments of this answer.
    W. P. Cook filed his separate answer, averring therein that he was the treasurer of the Missouri, Kansas and Texas Tank Line Company, a corporation duly organized under the laws of the state of Missouri, and as such was authorized to draw drafts and bills of exchange, and that the several drafts described in the petition, were by him drawn as such treasurer, for and on behalf of said company, as the plaintiff knew, and that the plaintiff had full knowledge that said drafts were by the defendant so drawn, solely on behalf of said company, as its said treasurer, etc.
    A demurrer was filed to this answer, which was sustained by the court. Thereupon the court rendered judgment against Cook and Wilkins.
    The defendant Cook, thereafter filed his petition in error in the district court to reverse said judgment, and the same was reversed by said district court; and to reverse said judgment of reversal, this petition is filed.

      Estep, Dicleey c& Squire, for plaintiff in error,
    cited: 1 Daniels on Neg. Inst. §§ 301, 303, 305; Hayes v. Mathews, 63 Ind. 412; Prather v. Ross, 17 Ind. 495; Sturdivant v. Hull, 59 Me, 172; Hayes v. Brubaker, 65 Ind. 27; Hayes v. Crutcher, 54 Ind. 260; Orchard v. Binninger, 51 N. Y. 652; Collins v. Ins. Co., 17 Ohio St. 215; Titus v. Kile, 10 Ohio St. 444. The liability of a drawer is fixed by liis contract. Miser v. Frovinger, 7 Ohio St. 281; Barnet v. Young, 29 Ohio St. 7. The contract cannot be varied by parol evidence. Anderson v. Shoup, 17 Ohio St. 125. There is no difference, in this respect, between the drawer of a bill of exchange and the maker of a promissory note. Bank v. Hooper, 5 Gray, 567; Bass v. O’Brien, 12 Gray, 481; Slawson v. Loring, 5 Allen, 342; Barlow v. Cong. Society, 8 Allen, 460; Arnold v. Sprague, 34 Verm. 402; Hypes v. Griffin, 89 Ill. 134.

      Henderson <& Kline and W. H. Gaylord, for defendants in erroi’,
    cited: Hicks v. Hind, 9 Barb. 528; 1 Wait’s Act. and Def. 528; Edwards on Bills, 81; 1 Parsons Notes & Bills, 96 ; Babcock v. Beman, 11 N. Y. (1 Kern.) 200; Mott v. Hicks, 1 Cow. 513; 17 Wend. 41; 3 Gray, 334-341; 36 Ind. 288; 7 Cal. 535; 89 Ill. 134. There is a well-defined distinction between the maker of a promissory note and the drawer of a bill of exchange. Collins v. Ins. Co., 17 Ohio St. 224.
   White, J.

The judgment of the district court must be reversed', and that of the common pleas affirmed.

The character of the liability of the drawer of a bill of exchange must be determined from the instrument itself; and the addition of the word “ agent ” to his name, without anything else on the instrument indicating his principal, does not relieve him from personal liability as drawer of the bill.

The name of the alleged principal of Cook, — the Missouri, Kansas and Texas Tank Line Company, — nowhere appears on the bill as a party to it. Parol evidence is not admissible to add a party to the instrument who does not appear upon its face. Anderton v. Shoup, 17 Ohio St. 125; Arnold v. Sprague, 34 Verm. 402. Whoever takes negotiable paper enters into a contract with the parties who appear on? the face of the instrument, and can look to no other persons for payment. Bass v. O'Brien, 12 Gray, 481; Slawson v. Loring, 5 Allen, 341, 342; Beckham v. Drake, 9 Mees. & Welsb. 92, 96. Hence the only drawer of the bills in question is Cook, the defendant in error. The addition of the word “ agent ” to his name does not relieve him from personal liability. That is merely descriptio personas. Anderton v. Shoup, supra; Collins v. Insurance Co., 17 Ohio St. 215.

It is true, as claimed by the defendant in error, that the case last cited is where the word agent ” was added to the name of the maker of a promissory note; but there is no distinction In this respect between the drawer of a bill of exchange and the maker' of a promissory note. Tucker Manufacturing Co. v. Fairbanks, 98 Mass. 104.

Judgment of the district court reversed, and that of the common pleas affirmed.


author: Okey, C. J.

text:
    Kumler v. Silsbee.
    Tie act of March 25, 1880 (77 Ohio L. 83, § 2), “to authorize municipal corporations to use or grant the use of the streets, avenues, alloys and public places, for certain purposes,” is not in conflict with art. 2, § 28, or art. 13, § 1, of the constitution.
    Error to the District Court of Hamilton county.
    An ordinance adopted by the board of eouncilmen and board of aldermen of the city of Cincinnati, and approved by the mayor of the city, in January, 1880, purported to authorize Samuel Silsbee, his associates, etc., to lay pipes in the streets of Cincinnati, for the purpose of supplying the public with steam heat and power, in accordance with the method known as “The Holly System of Steam Heating in Cities,” and to provide in detail as to the manner and conditions of such use.
    Before any step had been taken by Silsbee, or any other person, in pursuance of the ordinance, it was provided by the act of March 25, 1880 (77 Ohio L. 83), as follows: § 2. “Ia all municipal corporations which may have heretofore, by ordinance, authorized the use, by any person or corporation, of the streets, avenues, alleys, lanes and public places of such municipal corporation, for the purpose of laying pipes and drains below the surface thereof to convey to and supply its inhabitants heat and power, — such ordinance shall be held as valid and binding as if the power in all such municipal corporations to so grant such use of its streets, avenues, alleys, and public places had been expressly enumerated in the general municipal corporation act now in force.”
    At the request of a taxpayer, P. H. Kumler, Esq., city solicitor, in pursuance of Rev. Stats. §§ 1777, 1778, filed a petition for an injunction in the court of common pleas of Hamilton county, against Silsbee, who was about to proceed under the ordinance and statute to lay such pipes. The court of common pleas held the ordinance and statute to be valid, and dismissed the action, the district court on appeal rendered the same judgment, and this petition in error was filed by the city solicitor to reverse the latter judgment.
    It is conceded by counsel that the authority of the city to pass such ordinance did not exist prior to the passage of the act of March 25, 1880.

      James H. Perldns and Mitchell <& Holmes, for plaintiff in error :
    1. The second section of the act of March 25, 1880, is in contravention of section 28 of article 2 of the constitution, because retroactive. Calder v. Bull, 3 Dall. 391; Society v. Wheeler, 2 Gall. 139; Potter’s Dwarris (ed. of 1878) 75; 1 Const. Debates, 278; Chesnut v. Shane, 16 Ohio, 599; 34 Ohio, St. 523; 2 Ohio St. 153; 5 Ohio St. 497; Goshorn v. Purcell, 11 Ohio St. 641; Miller v. Hine, 13 Ohio St. 565; Kairden v. Holden, 15 Ohio St. 207.
    2. It is in contravention of section 1, article 13 of the constitution, because the act confers corporate power. State v. Cincinnati, 20 Ohio St. 18; 23 Ohio St. 445; State v. Covington, 29 Ohio St. 102; State v. Mitchell, 31 Ohio St. 592.

      M. W. Oliver, for defendant in error,
    relied on Cooley’s Const. Lim. (4th ed.) 474, 475, 476, and eases there cited.
   Okey, C. J.

The cities of Ohio are public corporations, authorized and organized for convenient administration of the government. Their powers and duties are neither created nor regulated by contract, express or implied, but by statutes, Avhich may, from time to time, as occasion requires, be altered or repealed. And it is a general rule, subject to exceptions (as in Park Commissioners v. Detroit, 28 Mich. 288), that as to matters relating to the government of a public corporation, —concerning which the legislature' may authorize the corporation to make provision by ordinance, — the legislature may directly provide by statute, and a duty thus required of the corporation may be enforced by the courts. The State v. Commissioners, 35 Ohio St. 458. A statute granting authority to lay pipes, for the purposes specified, in the streets of municipal corporations, would be clearly authorized by the general grant of legislative power (Const, art. 2, § 1); and where a statute does not impinge upon any constitutional inhibition, the legislature is the sole judge as to the form it may be made to assume. Stall v. Macalester, 9 Ohio, 19; People v. Dana, 22 Cal. 11.

The claim is made, however, that the statutory provision in question is retroactive, and hence Avithin the constitutional prohibition on that subject. Art. 2, § 28. But “ the constitutional inhibition does not ajsply to legislation recognizing or affirming the binding obligation of the state, or any of its subordinate agencies, with respect to past transactions. It is designed to prevent retrospective legislation injuriously affecting individuals, and thus protect vested rights from invasion.” New Orleans v. Clark, 95 U. S. 644, 655; Rev. Stats. 99, note; State v. Hoffman, 35 Ohio St. 435. And the further claim is made, that the statutory provision confers corporate power, and, being special, violates the constitution, art. 13, § 1. But the statute is general and not special. Rev. Stats. 123, note.

Judgment affirmed.


author: McIlvaine, J.

text:
    Railroad Company v. Carr.
    1. A person owning land abutting on a river through which a creek flows and empties into the river, may, as against proprietors on the opposite side of the river, change the channel and mouth of the creek upon his own land and for his own protection or convenience, if, in so doing, both in the inception and execution of the work, he exercises reasonable care and caution not to injure the rights of others.
    3. If, however, the opposite bank of the river be subject to inundation and overflow in case of unusual but not unprecedented floods in the river, such change in the channel and mouth of the creek cannot be rightfully made, if thereby, in the exercise of ordinary prudence and foresight, increased danger of inundation and overflow on the opposite side of the river might be anticipated.
    3. When such change is made without fault or carelessness, and a levee on the opposite bank is broken and washed away by an unusual, but not unprecedented flood, whereby the crops growing on adjacent lands are destroyed, it is damnum sine injuña, notwithstanding a sand-bar in the river at the new mouth of the creek, caused by the change in the creek, may have contributed, in some degree, to the damage.
    Error to the District Court of Butler county.
    The original action was brought in the court of common pleas of Butler County by defendant in error against the plaintiff in error to recover damages for injuries to his crops from an overflow of the Great Miami river on or about the 1st of August, 18'75, caused, as alleged, by the wrongful act of the defendant.
    The following description of the locality is necessary to an understanding of the exact nature of the controversy. In the vicinity of the alleged grievance, the general course of the river is from north to south. Its natural banks are low, and, formerly, the level lands on each side were subject to frequent overflows. To guard against these overflows, a continuous levee was constructed, about the year 1854, over the lands of adjoining proprietors on the east bank, beginning at the, north on lands of Thornton, thence southward over lands of Cassidy, Henderson (formerly Dickey) Hargitt and Ryerson. The injury complained of was on the land of Hargitt, 160 acres, and of Ryerson, 30 acres, of which the plaintiff was lessee for a term of years.
    About the year 1851, the defendant built an embankment on the west side of the river and constructed its railroad thereon, and was also the owner of ten acres of land on the west bank, opposite the lands of Henderson, several hundred feet above the lands of Hargitt, diagonally across the river. Elk creek, a violent stream, about fifteen miles in length, emptied into the river from the west through the lands owned by the railroad company, flowing at its mouth in a northeastern direction, so that the current of the creek, at its mouth, was against the current of the river. In the construction of its railroad, the defendant had built a bridge over Elk creek, near its mouth. This bridge, from its peculiar location, and owing, as is claimed, to the conflicting currents of the river and creek, was difficult to maintain, and had, previous to 1868, several times, been badly injured, and once or twice totally destroyed by floods. In the latter year, for the purpose of securing a safer passage over Elk- creek, the defendant changed the mouth of the creek by excavating a new channel from a point west of its road to a point about forty rods below its natural mouth, thus causing the current of the creek at its mouth to coincide with that of the river. The new channel of the creek was bridged, and the old channel filled up. This change of channel was made by defendant entirely upon its own lands. The change in the mouth of the creek caused a bar of gravel and sand to be formed in- the bed of the river, on the west side, below the new mouth.
    The grievance complained of by plaintiff below was that the bar thus formed, below the mouth of the new ehannel, forced the current of the river against the bank and levee on the lands of Henderson on the east bank, undermining the bank and the levee, and during a high flood in the river, on August 1,1875, broke the levee on the Henderson land, whereby the waters of the river flowed through the breach and passing to the southeast over the lands of Hargitt and Ryerson, injured and destroyed his growing crops of corn, barley, grass and clover.

      In the court of common pleas, a verdict and judgment were rendered in favor of the plaintiff for $1,998.76. A bill of exceptions containing all the evidence and charge of the court, as well as requests to charge, was made part of the record. In the district court the judgment below was affirmed.
    This proceeding is prosecuted to reverse the judgments below, for error in overruling a motion for a new trial and error in the charge to the jury and in refusing to charge as requested.

      Thomas MillUtin, for plaintiff in error :
    The railroad company had the right, in a prudent manner, to change the channel of Elk creek on its own land, for the protection of its property in times of great flood, and if plaintiff below sustained a loss it was damnum absque injuria. Sedgwick on Damages, 27, 28; Mahan v. Brown, 13 Wend. 261; Mullin v. Stricker, 19 Ohio St. 135; Ruffner v. Railroad Co., 34 Ohio St. 96; Tootle v. Clifton, 22 Ohio St. 247; Railway Co. v. Bingham, 29 Ohio St. 369; Burdick v. Cheadle, 26 Ohio St. 393; 1 Add. on Torts, 2, 9, 10; Waffle v. Railroad Co., 53 N. Y. 11; Goodale v. Tuttle, 29 N. Y. 467; Shearman & Redfield on Neg. § 580; Nichols v. Marsland, 14 Eng. Rep. (Moak) 539; Angell on Watercourses, § 334; Taylor v. Frickas, 18 Am. Law Reg. 249; Frazier v. Brown, 12 Ohio St. 294.

      SL Z. Gard, J. F. Neal, Morey, Andrews <& Morey, for defendant in error:
    The case under consideration involves no element of negligence, but the principle of “ sic utere tuo ut alienum non Icedas.” Angelí on Watercourses, §§ 99, 333 ; Wood on Nuisances, §§ 351, 352; Gerrish v. Clough, 48 N. H. 9; Cannon v. Railroad Co., 4 Ohio St. 415; Tiffin v. McCormick, 34 Ohio St. 644; Hay v. Cohoes Co., 2 N. Y. 159; Wallace v. Drew, 59 Barb. 413. The result of all the foregoing authority is: That the proprietors had a right to construct their levees on the east bank of the river to protect their lands from overflow; and that the defendant below had no right to change the channel of Elk creek, by digging the narrow trench, to be washed out by nature into the Miami river and there form á dam or bar, which obstructed the current of the Miami river and changed it from its ordinary course on the west side to the east bank, thus washing away the bank and levees. ■
   McIlvaine, J.

On the trial in the court of common pleas, for the purpose of showing negligence on the 'part of defendant in constructing the new channel or outlet for the creek, it was shown that the old channel was one hundred feet wide, and that the new, as constructed by the defendant, was only fifty feet in width; that the bed of the creek for several miles from its mouth was through sand and gravel as well as clay and rock; that the new channel through the action of the current was extended in width to one hundred and fifty feet; that the bar formed below the new mouth covered about three and one-fourth acres, and caused the current of the river to flow to the east side of the river bed, and that, in consequence, the east bank of the river and the levee thereon, has been undermined and washed away, whereby, the plaintiff’s crops were overflowed and damaged.

On the other side, evidence was given to show that, by the action of the creek at its old mouth, where the bed of the river was only three hundred feet in width, a bar was formed in the river, at the west side, and extended to the middle of the river bed; that the river bed rapidly increased in width below the old mouth so that at the new mouth of the creek, and below, it was four hundred and fifty feet in width; that a short distance above the old mouth of the creek, the bed of the river, on the west side, had been encroached upon by debris from a stone quarry there situate; that ever since the river had been hemmed in by the railroad embankments on the west, and the levee on the east, its banks had been subject to washings and inundations; that in 1866, the levee on the east bank had been broken by a flood of about the same flow as that of 1875 ; that by the same flood, in 1875, the levee on the lands of Thornton was washed away, at a point far above the influence of the bar at the new mouth of the creek; that previous to the flood of 1875, the levees on the east bank of the river, on the lands of Henderson had been suffered to get and remain out of repair; that by this flood, property on each side of the river was destroyed.

What interest, if any, the plaintiff or his lessors had in the levee above the line of their lands, or what damage would have been done to the plaintiff’s crops from back-water, if the levees had not been broken, were questions upon which the testimony was exceedingly unsatisfactory.

Without passing upon the weight of the testimony, we think the verdict in favor of the plaintiff, upon the state of facts above indicated, should not be allowed to stand, if any error or misleading direction be found in the instructions given to the jury, in respect to the legal responsibility of defendant.

Among other things, the court charged the jury as follows:

I say to you, that the defendant, in 1868, had the right to change the channel of Elk creek on its own land by digging a new channel and filling up the old channel, and to cause the water in the creek to flow through the new channel and empty out of it into the Miami river at a point different from where it naturally emptied into the same, if by so doing it did not injure the property of others ; but if by so doing it did injure the property of others, directly and immediately, or if it caused damage to be done to the property of others by maintaining the new channel after the change, and by causing the water of Elk creek to flow through the same, it became liable for the damage so done to persons whose property was so injured, notwithstanding it made the change in the channel skillfully and prudently, and the change greatly aided it in maintaining and protecting its railroad tracks; and its bridge across Elk creek could not be maintained across the old channel of Elk creek without great difficulty and expense.
“ Hence, if you find from the testimony in this case that the defendant by changing the channel of Elk creek in 1868, and turning the water thereof through the new channel, or by maintaining the new channel afterwards, and by causing the water of the creek to flow through the same, within four years next prior to the commencement of this suit, and prior to the injury complained of in the petition, it did cause damage to be done to the crops of the plaintiff in the manner stated in the petition, it will be your duty to render a verdict in favor of the plaintiff and against the defendant for the damage so done, unless you find that the plaintiff or his lessors immediately and directly contributed to the said damage by failing to take ordinary care, such care as an ordinary careful and prudent man under the same circumstances would have taken to protect his crops, and the land upon which they were raised, from said overflow and damage.”

By this charge, the liability of the defendant was not made to depend upon its failure to exercise any degree of care, prudence and foresight whatever; but was absolute, if the injury resulted from the change in the channel of the creek immediately or remotely. The theory of the case thus put to the jury was: the change in the channel of the creek caused the sand-bar in the river; the sand-bar changed the current of the water in the river; the change in the current weakened the levee on the opposite bank; then the flood, an irresponsible agent, intervened and broke down the weakened embankment and overflowed the plaintiff’s crops; and thus the defendant was held liable, excluding from the jury any inquiry into the fact, whether or not, by the exercise of reasonable and prudent foresight, such an injury might have been anticipated as a result from the original cause; namely, the change in the creek bed.

An actionable nuisance is defined by Mr. Cooley in his work on Torts, to be anything wrongfully done or permitted which injures or annoys another in the enjoyment of his legal rights; and, on page 566, he says: “As the definition assumes the existence of wrong, those things which may be annoying and damaging, but for which no one is in fault, are not to be deemed nuisances, though all the ordinary consequences of nuisances may flow from them.” And Mr. Addison, in his work on Torts (Dudley and Baylies’ ed. p. 3), says, “A man may, however, sustain grievous damage at the hands of another ; and yet, if it be the result of inevitable accident or a lawful act done in a lawful manner, without any carelessness or negligence, there is no legal injury, and no tort giving rise to an action for damages.” Such cases are within the rule of damnum sine injuria.

The question, therefore, arises, when is a person to be considered at fault, for changing the bed of a stream upon his own lands and for his own protection, where such change results in damage to another person?

In a recent case, some what analogous to the present (Law Reports, Appeal Cases, vol. 2, page 781), Fletcher v. Smith, where Fletcher, et al. had changed the course of a stream of water on their own lands, for their own convenience, in such a manner, that the new banks were overflowed by a flood, and the water passed into the mines of Smith to his damage, Lord Penzance, in delivering his opinion to the House of Lords, put these questions, as to the obligations of defendants, in diverting the stream — First, “Was it enough to make the new and artificial watercourse as efficient, but no more so, than the old and natural one, so that whatever defects, incapacity or otherwise, the old had, might, without responsibility, be reproduced in the new one ?

Or, secondly, were they bound (as they, for their own convenience, were making a new and artificial watercourse) to construct it in such a manner, that it would be capable of conveying off the water that might flow into it from all such floods and rainfalls as might reasonably be anticipated to happen in that locality ?

“ Or, thirdly, were they bound to make provision for any such quantities of water as might possibly be discharged into it from any mere rainfall, however heavy, however unusual, and however contrary to all previous experience ?”

Lord Penzance was .inclined to the second proposition as the measure of the defendants’ obligations. We are of the same opinion upon the facts of that case. The third proposition requires provision to be made against a state of things, which human foresight could not anticipate, and is, therefore, unreasonable. The first omits that degree of care which ordinary prudence would require.

The principle of the second proposition, above stated, applied to this case, would have forbidden the change in the channel of the creek, if common prudence would have anticipated increased danger to the opposite proprietors; but if, in the exercise of á sound and prudent judgment, no increased danger could have been anticipated, and the work was skillfully and prudently performed, the defendant below was without fault.

The difference between the case of Fletcher v. Smith, and the present, is this: in the former, increased care and skill would have enlarged and strengthened the banks of the new watercourse, so as to have prevented its insufficiency in case of any flood that could have been reasonably anticipated; but in the present, no human skill or labor could have prevented the formation of a bar at the new mouth of the creek. The question in this ease then lies back of the manner in which the new channel was constructed, and, we think it is the main question in the ease, namely: Was the railroad company at fault in undertaking to change the channel ?

And this is the test of that question. From all the known circumstances, would a person of ordinary prudence have anticipated increased danger to the banks on the opposite side of the river therefrom, in care of unusual, but not unprecedented, floods % If not, and reasonable care was exercised in the construction of the new channel, any damage resulting from the formation of the bar at the new mouth of the stream, is dam-mom sine injuria.

Judgment reversed and cause remanded..


text:
    The State v. Baughman.
    By joint resolution of the general assembly (79 Ohio L. 246) the attorney general was directed to institute an action in quo warranto, against the police commissioners of the city of Xenia, who were appointed and acting under a special act entitled “ An act to establish a police force in the city of Xenia ” (77 Ohio L. 350), passed March 25, 1880 ; to inquire by what authority they held their offices or trusts, and also to procure if practicable a decision of the supreme court on several constitutional questions suggested in said resolution.

      Held: 1. That this court is limited in its powers to the decision of such questions as properly arise in the due course of law, in a judicial proceeding within its jurisdiction. Hence, in a proceeding in quo warranto to try the title of persons to an office, held under the provisions of an act of the general assembly, when its validity is questioned, it is only such provisions of said act as affect the title to the office, that are properly before the court for its judicial settlement.
    2. The provisions of said special act (77 Ohio L. 350), which authorize the court of common pleas of Greene county to appoint three police commissioners for the city of Xenia, and vest in them the police powers of said city, are not in conflict with the constitution of the state. The State ex rel. Attorney-General v. Covington, 29 Ohio St. 102, approved and followed.
    3. The validity of the provisions of the seventh section of said act relative to the duty of the city council to levy a tax, and to the temporary use of the general fund to defray the expenses of the police force created by said act, is not drawn in question in a proceeding in quo warranto, against the police commissioners, to inquire by what authority they hold their offices.
    Quo Warranto.

      George K. Wash, attorney-general; Coates Kinney, Horace Babin and James Winans, for plaintiffs.

      Little & Shearer, for defendant. *
   Johnson, J.

This petition was filed by the attorney-general in obedience to the following joint resolution of the general assembly, passed April 17, 1882 (79 Ohio L. 246) :

Joint resolution, directing the attorney-general to institute a suit in quo warranto.
Whereas, A special act entitled ‘ an act to establish a police force in the city of Xenia,’ passed March 25, 1880 (77 Ohio L. 850), withdrew from that city all the police powers vested in it by the general laws for cities of its grade (sections 2023-2030 revised statutes), and lodged them in a board of police commissioners appointed by the court of common pleas of Greene county ; abolished the office of marshal of the said city, without repealing the general law (section 1707, revised statutes), which provides that ‘the officers of a city of the second class shall consist of a mayor, marshal,’ etc.; and authorized the payment of salaries to the said police force out of the general fund of the city, and also the levy of a tax for sucli payment other than and additional to that provided for by the general law (section 2683, clause 21, revised statutes) ; and
“ Whereas, This special act raises constitutional questions whose judicial settlement would be of great value to the general assembly — namely :
“(1) Whether, while ‘the general assembly shall pass no special act conferring corporate powers,’ it may pass a special act withdrawing corporate powers ;
“ (2) Whether, while a city must be organized by general laws (Cons. Art. XIII. section 6), it may be or would be disorganized by a special law through the abolition of one or more of its organic offices;
“ (3) Whether a tax already levied and collected by a municipal corporation for one purpose can be diverted to another by a special act of the general assembly; and
“ (4) Whether the conferring, by special act, of a power of taxation on a municipal corporation other than and additional to that authorized by the general laws comes within the inhibition of section 1 of article XIII. of the constitution; therefore,
ResoT/oed by the General Assembly of the State of Ohio, That the attorney-general is hereby directed to institute a proper action in quo warranto against the police commissioners appointed under the said special act, inquiring by what authority they hold their offices or trusts, and to procure, if practicable and as soon as practicable, a decision of the supreme court on the several constitutional questions herein suggested.
“ Isaac N. Hathaway,
Speedier pro tern, of the Souse of Representatives.
R. G-. Richards,
Passed April 17, 1882. President of die Senate.”

The object of this resolution, as well as of the petition in this case is, to inquire by what authority the defendants are assuming to act as police commissioners of the city of Xenia. It is claimed, that the act of March 25, 1880 (77 Ohio L. 350), to establish a police force in said city, is unconstitutional; and hence that defendants are usurping their offices. The defendants allege, that they have been duly appointed and qualified, and are acting as such officers under authority conferred by said act. To this defense the state demurs, and the issue thus presented, involves the validity of the above named act, which in terms authorizes the appointment of a police board for said city, and vests in such board the general police powers of cities of that class. It is a special act, and applies to the city of Xenia only. It authorizes the court of common pleas of Greene county to appoint three commissioners, in whom are vested the power to appoint, control and discipline the police force of said city, and to make rules for their own government, have.an organization, keep records, hold regular meetings, appoint a chief of police and his subordinates and fix their compensation. The powers, which by law were vested in the city marshal, were transferred to the members of the police force so appointed, and the office of marshal was abolished. Section 7 of the act requires the city-council to levy and certify annually to the county auditor a tax not exceeding one mill on the dollar, to defray the salaries and expenses of the new police force, to be collected as other taxes, and provides that until a revenue is derived from this source, the salaries of the force are to be paid out of the general fund of the city.

The joint resolution, in obedience to which this action is commenced, is preceded by a preamble which recites that this special act raises several constitutional questions whose judicial settlement would be of great value to the general assembly.”

The questions suggested in the preamble, and on which the attorney-general is directed to procure a decision of the supreme court as soon as practicable, are four in number, the first and second of which involve the validity of those provisions of the act conferring upon the police commissioners the police powers of the city of Xenia, and withdrawing that city from the provisions of the general statutes governing like municipal corporations. The third and fourth questions involve the validity of the provisions of the 7th section, relating to the levy of a tax to pay the salaries of the new force, and to the temporary use of the general fund for that purpose until the tax can be collected.

It is only so far as these several questions are involved in the determination of the title to the offices in question that this court is authorized to answer them. It is by the organic law a court of limited original jurisdiction. By Article IY. section 2, its original jurisdiction is expressly limited to quo wa/rranto, mandamus, habeas corpus, and procedendo. The sole office of a judicial proceeding by quo wa/rranto in such a case is to inquire by what authority these defendants are exercising the functions of police commissioners. A decision on any of the questions suggested, not necessary to a determination of the right of defendants to exercise these functions, would not be a judicial settlement of such questions, but would be without authority conferred by the constitution to make it. To be a judicial settlement the question decided must arise in a judicial proceeding, properly before a court of competent jurisdiction. The division of the powers of the state into legislative, executive and judicial, and the confiding of these powers to distinct departments, is fundamental.

.It is essential to the harmonious working of this system that neither of these departments should encroach on the powers of the other. If the judiciary were to assume to decide hypothetical questions of law not involved in a judicial proceeding in a cause before it, even though the decision “ would be of great value to the general assembly ” in the discharge of its duties, it would, nevertheless, be an unwarranted interference with the functions of the legislative department that would be unauthorized, and dangerous in its tendency. ‘ Not only this, but it would be an attempt to settle questions of law inyolving the rights of persons without parties before it, or a case to be decided in due course of law, thus violating that provision of the Bill of Rights which declares 'that every person shall have a remedy for an injury done him by due course of law. Const, art. 1, § 16.

In some of the states, Massachusetts included, the constitution authorizes the legislature and the governor to require of their highest judicial tribunal its opinion on important questions of law, the decision of which become necessary to the discharge of their public duties. Even under such a provision the judiciary must confine itself to an opinion on such questions as are involved in or necessary to the discharge of a public duty by the inquiring body. This power does not include the right to require an opinion on abstract or hypothetical questions however valuable as a future guide, nor to such questions as affect private rights merely. Opinion of the Sup. Ct., Mass., 122 Mass. 600; Id., 126 Mass. 557.

The third and fourth questions suggested by the joint resolution are not involved in the issue before us. They are: 1st, whether that provision of the 7th section which authorizes the city council to use the general fund of the city to pay the salaries of the new force until funds can be realized from the special levy is valid; and, 2d, whether the power to make this special levy is valid.

It is claimed that these provisions are the conferring of corporate power by special act within the inhibition of section 1, article XIII., of the constitution.

The solution of this question is not involved in the case at bar. We may concede, for the purposes of this case, that the whole of section 7 is unconstitutional, and yet those provisions creating the board of police commissioners would not be affected.

The authority of the police board does not depend upon the power of the city council to levy this tax, nor to their temporarily using the general fund of the city until collections can be made of the special tax.

Again, no case is made for invoking judicial action on the powers conferred upon the city council by section 7. For aught that appears this section has been treated as null and void.

It is not asserted, either in the joint resolution or in the petition, that the city council has ever attempted to exercise either of the powers conferred by section 7. "When such an attempt is made, the law furnishes an ample remedy, if the section is invalid. That remedy is not by quo warranto against the police commissioners, but by a proper action against the city council or those engaged in the levying and collecting the tax. In this matter the police commissioners have no power, nor are they charged with any duty.

The first and second questions suggested by the resolution are, however, involved in this proceeding. They are the same in substance as were considered and decided in State ex rel. Attorney General v. Covington, 29 Ohio St. 102; where the power of the legislature to create such a board was directly presented. That case arose under an act to regulate the police force of Cincinnati (13 Ohio L. 10). The provisions of that act were substantially the same as the one now before us. Like this, it was a special act. The same constitutional objections were made to it, as are urged against this.

That act had similar jorovisions as to the appointment and powers of the commissioners and of the force under their control, and also as to raising money to defray expenses and salaries as this has. Its provisions, like the act before us, created a police board, and clothed it with power over the police; and it was held not to be a law of a general nature, nor one conferring corporate powers, nor in conflict with any clause of the constitution relied on here. That case was ably argued and maturely considered. It covers the whole ground. We see no reason to re-examine these questions.

As to the validity of the provisions of section 7 of this act no case is made, requiring judicial settlement, and the same was true in the Oovington ease under that act. The demurrer to the answer is overruled.

Judgment for defendants.