author: Wanamaker, J.

text:
    The State, ex rel. Ach et al., v. Evans et al.

      Constitutional law—Jung small school-board act—Sections 4698 to 4707, General Code—Section 26, Article II, and Section 3, Article VI, Constitution.

    The Jung small school-board act, as found in Sections 4698 to 4707, General Code, inclusive, is a valid exercise of legislative power agreeable to the constitution of Ohio. .
    (No. 14466
    Decided June 11, 1914.)
    In Quo Warranto .
    Facts are stated in opinion.

      Mr. Walter M. Schoenle, city solicitor-; Mr. Saul Zielonka, assistant city solicitor; Mr. John R. Schindel; Mr. Timothy S. Hogan, attorney general, and Mr. James I. Boulger, for plaintiffs in error.

      Mr. Simeon M. Johnson and Mr. William Thorn-dyke, for defendants in error.
   Wanamaker, J.

This is a suit in quo warranto, originally filed in the supreme court of Ohio by the relators, Samuel Ach and others, for the purpose of determining the respective rights of the relators and the defendants to be and constitute the board of education of the school district of the city of Cincinnati.

Two questions are here involved:

1. Is the Jung small school-board bill, as it is popularly known, as found in Sections 4698 to 4707, inclusive, and 4745, 4949, .4992 and 4997 of the General Code of Ohio, constitutional?

2. Whether or not the proceedings had by the large, or old, school board of Cincinnati were regular and valid under and pursuant to said sections so as to make the small school board, composed of the relators, a legal and valid board ?

Excepting Sections 4949 and 4992, General Code, the foregoing sections were passed May 2, 1913.

The defendants claim that the Jung school-board act is unconstitutional by reason—

1. That it violates Section 26 of Article JI of the Constitution, which reads: “All laws, of a general nature, shall have a uniform operation throughout the state.” It is admitted of course that legislation pertaining to the public schools of Ohio is of a general nature and must have a uniform operation throughout the state. Does the Jung act violate this provision? It is claimed by the defendants that it does wherein it attempts to classify city school districts. That the legislature has the right to classify school districts as much as it has to classify municipalities, so long as it is agreeable to the constitution, there can be no doubt. That has been so often held in so many cases that it would be superfluous'to give any Ohio citations in support of it.

What is the classification provided for in these sections ?

First class: City districts having a population of less than fifty thousand persons.

Second class: City districts having a population of fifty thousand persons but less than one hundred and fifty thousand persons.

Third class: City districts having a population of one hundred and fifty thousand persons or more.

It would seem that some classification was necessary in order that the legislature shall properly exercise its functions under Article VI, Section 3, of the Constitution, which provides: “Provision shall be made by law for the organization, administration and control of the public school system of the state supported by public funds.” Manifestly an organization for a village school district should be radically different from the city school district in the larger cities of the state, and for that purpose a proper classification is essential. Our courts have repeatedly held that the matter of classification based on population is a proper standard, so long as such classification is not a false, unnecessary, arbitrary and evasive one. See Board of Health v. City of Greenville, 86 Ohio St., 1.

Now, can it be fairly said that these lines and limitations of fifty thousand, of one hundred and fifty thousand and those in excess of one hundred and fifty thousand are arbitrary, unreasonable and evasive ?

All the courts of all the states, including the federal courts as well, have laid down the sound rule that a legislative enactment is presumed in law and in fact to be constitutional; that such acts should not be declared unconstitutional by a court unless they be “clearly” so. Some of the courts have used the words “unless it be unconstitutional beyond a reasonable doubt.” Inasmuch as the Jung act operates uniformly upon all school districts in excess of one hundred and fifty thousand population, to-wit, Cleveland, Cincinnati, Columbus and Toledo, how can it be said that it is “clearly-unconstitutional” upon that ground?

2. The second objection raised by the .defendants-to the constitutionality, of the-act. relates ,to the “referendum” provision of the various sections of the act. These sections are as follows: • Section 4704, Section 4705, Section 4706 and Section 4707. The section specially complained of is Section 4705' which reads: “Said commission shall prepare and submit to the electors at the next general school election, if one occur not less than one hundred and twenty,days after the. passage of said resolution, otherwise, at the second general school election, Two or more plans for the organization of .the .board of’ education in such district, but in.no event shall less than two plans be submitted. Each plan shall provide for the number :of members, the length of term of the members and the organization of .the board; one plan so submitted shall provide for a board of-the same number and of the same organizations as the board existing in said district at the-time of -said election. Said plans shall be submitted to the elect-' ors of said district on a.separate ballot, bearing no . party designation and in such form as said commission may determine.”

Now, the act was. approved May 2, 1913. Being-subject to the general, referendum provision of the-constitution- it could not become a law until ninety days had elapsed, which would .be - substantially1 August 1, 1913.

Sections 4704 and 4705 provide for. ^..appointment of a commission of seven members to.prepare and submit to the electors at the riext general school election “if dne occur not less than one hundred and twenty days after the passage of said resolution,otherwise, at the second general school election,” etc. The particular grievance of the defendants, which is alleged as the basis of the claim of unconstitutionality concerning the referendum provisions of the act, is that the one hundred and twenty days’ limitation, within which the referendum may not be held, renders by its own force these1 sections unconstitutional.

The constitutional provision relating to such a Referendum is' as follows: “Article VI, Section 3: 1 Provision shall be made by law for the organization,-administration and control of the public school system of the state supported by public funds: provided, that each school district embraced wholly or in-part within any city shall have the power by referendum vote to determine for itself the number of members and the organization of the district board ■of education, and provision shall be made by law ■ for the exercise of this-power by such school dis- ■ tricts.”

• Now, it has always been recognized as a proper exercise of legislative power for the legislature to determine for itself when the act or part thereof - shall] go into effect. This the legislature undertook to do by-putting into the act the “one hundred and ■ twenty ..day”'provision. The only limitation upon the legislature in this behalf would be a constitu- ■ t-ional limitation, and there is' none suggested in this ..case-

The. mere, suggestion by counsel that this necessarily carries a referendum election beyond the time of the-first regular November-election for members of the school' board cannot be used as the- basis of- a claim of unconstitutionality. Statutes cannot be held unconstitutional upon the ground that somebody disagrees with the legislature as to the time at which an act should take effect. The legislature is presumed to have acted in good faith, and there is nothing in the record to overcome that presumption.

The legislature may well have concluded that the fact that the late date at which such act could go into effect under the general referendum provision, to-wit, August I; that the time allotted for the resolution by the old board of education fixing the membership of the new, to-wit, thirty days additional ; the time allotted for the appointment of a proper commission to submit plans; the time allotted for proper consideration by such committee of the matters pertaining to a proper membership and a proper organization of the district board, together with adequate time for the consideration of such plans so submitted to the electors of the city district—that all these things combined might readily, and indeed would, require that a referendum election on such important concerns of the voters of such a city school district would necessitate a postponement of such election at least one hundred and twenty days that the work might be wisely and well done. The legislature did nothing more nor less than to authorize the old board, as they had a right to do, to fix the membership of the new temporarily, until such referendum election could be held agreeably to the provisions of the statute.

We are unable to see here any valid objection so far as the constitutionality is concerned. The language of the constitution touching the referendum is: “Provided, that each school district * * * shall have the power by referendum vote to determine for itself the number of members and the organization of the district board of education, and provision shall be made by law for the exercise of this power,” etc.

It is obvious that this provision of the constitution does not require that, before any change shall be made in the old board, a referendum shall be provided determining what change shall be made. The change in membership is provided under the general exercise of legislative power, while the referendum is provided for under the new constitutional amendment and the new Jung school-board act passed pursuant to such new constitutional provision. The constitutional provision granted the legislature the power to provide by law for the exercise of the referendum power.

This the legislature has done agreeable to the constitution.

The change made by the Jung school-board act is subject to be unmade by the referendum sections of said act at the next ensuing school-board election.

We hold that the Jung school-board act is entirely agreeable to the referendum provision of the constitution.

We come now to consider some of the questions as to whether or not the old board of education under the foregoing sections of the General Code, known as the Jung small school-board act, with a view of determining whether or not there is any basis for the claim made by the defendants that the small board, so called, is invalid and illegal by reason of the old or large board failing to act regularly and lawfully, pursuant to the various sections of such act.

A great many questions are made in the briefs of the defendants, but the only ones meriting-serious consideration are the two following:

1. Was the meeting of the old board of'education held on August 30, at which the resolution was - passed fixing the number of members of the smallJ board at seven, a legal and valid meeting ?

Objection is made to this meeting' upon the ground that it was not a regular meeting .of the board, and if a special meeting, the statutory notice ' to each and every member of the board* was'not ■ given pursuant to law. ! ' .

2. That the record discloses that a majority of ■ the entire board did not vote for such resolution.

As to the first objection we believe that the meet- ' ing might be cohsidered either an adjournment of the regular meeting or a special meeting. But in either event, each and every member had notice of the meeting by reason of the fact that copies of the: minutes of each previous meeting had been regu1 larly mailed to the proper address of each and 'every member of the board. The • presumption ofy course follows that they received the notice,'and' there is nothing in the record to the contrary:

As to the second objection, Section 4752, General - Code, settles that question. This section-reads : ■ “A majority of the members of a board of education shall constitute a quorum for the transaction1 of business. ■ Upon a motion to adopt a-resolution ' authorizing the purchase or sale of real or personal * "property or to employ a superintendent' or teacher, ■'janitor or other employe or to elect or appoint an "officer * * * the clerk of the board shall publicly call the roll of the members composing the board and enter bn the record the names of those voting ‘aye’ and the names of those voting ‘no.’ . If a - majority of'all the members of the board vote ‘aye,’ the president shall declare the motion carried,” etc. The statute having provided that in certain cases a majority of the entire membership is necessary to pass.certain motions or resolutions, the inference is very clear that as to all matters, motions or resolutions other than those specially mentioned in the . statute a> majority of the quorum is sufficient. Indeed-this is an elementary rule of-parliamentary ■'law. The agreed facts admit that there was a. ma-j’brity of the .quorum voting for the resolution'providing for a membership of seven for the small board. This action was afterwards read and approved at the next meeting on September 10, 1913, With nineteen members present. Obviously, the proceedings of boards of education, of county commissioners, township trustees and the like, must not ■ be judged by the same exactness and precision as would the journal of a court.

But in this case there can be no doubt from the -record that the meeting held on August 30, 1913, ■ at 8 o’clock, was regularly called, that proper notice ' was given to' each and every member of the board, agreeably to the statute, and • that the. action of i such board with reference to fixing the membership of the new or small school board was regular and legal.

There are many other questions presented by the record and'briefs of counsel, but we do not deem them of sufficient importance to merit any further discussion.

Writ allowed.

Nichols, C. J., Shauck, Johnson, Donahue, Newman and Wilkin, JJ., concur.


source: Caselaw Access Project

author: Johnson, J.

license: Public Domain

text:
    Green v. The State Civil Service Commission et al.

      Constitutional law—State civil service law (103 O. L., 698)—Not delegation of legislative powers—Nor exercise of power of law suspension—Does not deny equal protection, nor abridge privileges or immunities—State civil service commission cannot investigate mayor, when—Right of taxpayer to injunction against public officers and commissions.

    1. A taxpayer may maintain an action to enjoin public officers or a public commission from the commission of acts in excess of legal authority, which contemplate the expenditure of public money.
    2. The provisions of the civil service law (103 O. L., 698), authorizing the civil service commission to prescribe, amend and enforce rules with reference to the civil service of the state and the several counties and cities, do not constitute a delegation of power to enact laws, nor are the provisions of that statute, which authorize the commission under certain defined circumstances to omit competitive examinations, repugnant to Section 18, Article I of the Constitution, which prohibits the exercise of the power of suspending laws except by the general assembly.
    3. The act referred to does not deny the equal protection of the laws nor abridge the privileges or immunities of citizens of the United States,

      4. The civil service law (103 O. L., 6SS), does not confer power on the state civil service commission to investigate the acts and conduct of the mayor of a city with reference to the enforcement by him of that enactment.
    (No. 14561
    Decided June 11, 1914.)
    Error to the Court of Appeals of Franklin county.
    This was a proceeding to enjoin the state civil service commission from conducting a contemplated investigation concerning certain acts of the plaintiff, David M. Green, who is mayor of the city of -Urbana. The petition avers the official title of the plaintiff as such mayor and also that he is a taxpayer, and brings this suit as such. From the petition and an agreed statement of facts it appears that on January 17, 1914, certain citizens of the city of Urbana filed written charges with the state civil service commission, in which they complained that the plaintiff in error had removed the municipal civil service commission of the city without any real cause, but for political and personal private reasons, on certain pretended charges made by him against them; that said removal was made without any public hearing, and that another municipal civil service commission was appointed by the mayor for the purpose of having it to do his will in the removal of subordinate officers, etc.; that said mayor, without any just cause but for political reasons, suspended William F. McGree, the chief of police of said city, upon charges having no foundation whatever in fact, and caused the same to be heard before the municipal commission appointed by him; that said commission assumed and pretended to remove said McGree as chief of police, he being guilty of no offense justifying such removal. The complaint contained other similar charges against the mayor. The state civil service commission thereupon notified the plaintiff that on the 27th of January, 1914, a hearing by the commission would be held to investigate the substance of the charges.
    The plaintiff was elected mayor of Urbana at the November election, 1913, to succeed himself as such mayor on January 1, 1914. It is averred in the petition as ground for the relief sought that the civil service law (103 Ohio Laws, 698 et seq.), being the statute under which the commission was proceeding, is unconstitutional, and that the. statute referred to does not .confer on the commission the authority to conduct the contemplated investigation.
    The answer of . the defendants denies that the statute .is unconstitutional and avers that the purpose of their proposed action was to investigate the enforcement and effect of the civil service act by. the plaintiff and the civil service commission of Urbana. The cause having been appealed to the court of appeals, that court entered judgment against the plaintiff and dismissed his petition. This proceeding is to reverse that judgment.

      Mr. A. Jay Miller; Mr. George W. Poland and Mr. J. W. Flaugher, for plaintiff in error.

      Mr. Timothy S. Hogan, attorney general; Mr. N. J. Weis end and Mr. L. D. Johnson, for defendants in error.
   Johnson, J.

In support of the judgment below it is insisted in the first place that a proceeding in injunction will not lie in a case such as is here presented. The ground upon which the relief prayed for is sought is that the defendants, as public officers, threatened to exercise powers not conferred upon them by law to the injury of plaintiff and others. The law is well settled that in such a case, where no other mode of protecting the rights of the complaining party is specially conferred, injunction is the proper remedy. A taxpayer has sufficient interest to maintain an action to enjoin public officers from the commission of acts in excess of legal authority and requiring the expenditure of public money. State, ex rel., v. City of Newark et al., 57 Ohio St., 430; Elyria Gas & Water Co. v. City of Elyria, 57 Ohio St., 374.

It is alleged in the petition and insisted here that the first paragraph of Section 7 of the act in question violates Section 1 of Article II of the Constitution in that it delegates to the state civil service commission legislative power to “amend and enforce rules for carrying into effect Section 10 of Article XV of the Constitution of Ohio and the provisions of this act, and such rules shall have the force and effect of law.” The last-named section of the constitution provides that'appointments and promotions in the civil service of the state, the several counties, and cities, shall be made according to merit and fitness, to be ascertained, as far as practicable, by competitive examinations’,' and that “laws shall be passed providing for the enforcement of Qhatjprovision." The legislature, one of the.coordinate branches of the government, cannot delegate its power to make laws. The recognition of this principle is vital to our system. But, although it is difficult to define the exact dividing line between legislative power to make laws and authority to make administrative rules, there is general concurrence in the view Lhat the authority to make administrative rules is not a delegation of legislative power. The United States supreme court in United States v. Grimaud, 220 U. S., 506, held that the making of such rules and regulations was not raised from an administrative to a legislative character because the violation thereof is punishable as a public offense. In the nature of things there must be many things on which the wisdom of legislation must depend, which can only properly be determined in the course of the administration of the legislative will as expressed in law. The statute in question provides for appointments and promotions in the civil service according to merit and fitness. It also provides for competitive examinations of applicants and that the commission may adopt rules to carry the provisions of the law into effect. There is in this no delegation of legislative power, but it is the imposition of an administrative duty in order to give practical effect to the enactment. The legislative power to prescribe this duty was exercised by the general assembly itself in keeping with constitutional requirement.

In 1 Dillon on Municipal Corporations (5 éd.), it is said, at Section 397, in discussing civil service laws: “Various objections to the constitutionality of these statutes have been considered by the courts and have generally been overruled. The ascertaining of the qualifications of appointees by competitive examination under these statutes is in no sense an illegal test. * * * Statutory authority conferred on commissioners appointed to carry the provisions of the law into effect, to make rules and regulations for the classification of offices and employments coming within its provisions, and for determining and ascertaining the qualifications of persons seeking office or employment in the public service, is not an unauthorized delegation of legislative power.”

In Opinion of Justices, 138 Mass., 603, it is said: “We >think the legislature has the constitutional right to provide for the appointment of such commissioners, and to delegate to them the power to make rules, not inconsistent with existing laws, to guide and control their discretion and the discretion of the officers of the state or of the cities in whom the appointing power is vested. This is not a delegation of the power to enact laws; it is merely a delegation of administrative powers and duties.” These principles are also sustained in Opinion of Justices, 145 Mass., 587; Gregory v. Kansas City, 244 Mo., 523; Board of Education v. The State, ex rel., 80 Ohio St., 133; Union Bridge Co. v. United States, 204 U. S., 386.

It is also contended that the second paragraph of Section 14 of the civil service law violates Section 18 of Article I of the Constitution, in that it authorizes the commission to suspend laws. The paragraph referred to provides: “Positions in the competitive class may be filled without competition only as follows: * * * 2. In case of vacancy in a position in the competitive class where peculiar and exceptional qualifications of a scientific, managerial, professional, or educational character are required, and upon satisfactory evidence that for specified reasons competition in such special case is impracticable and that the position can best be filled by a selection of some designated person of high and recognized attainments in such qualities, the commission may suspend the provisions of the statute requiring competition in such case, but no suspension shall be general in its application to such place, and all such cases of suspension shall be reported in the annual report of the commission with the reasons for the same.”

This does not confer power upon the board to suspend the law, but the law itself defines certain circumstances and conditions which, when the administrative commission finds them to exist, shall constitute a situation, in which the requirements of the statute may be omitted. The part of the board in the matter is simply to ascertain whether such a situation exists. When that fact is ascertained and properly authenticated by the board, the law authorizes the board to follow the procedure prescribed in the statute itself.

Nor do the provisions of this statute deny the equal protection of the law in violation of the fourteenth amendment to the constitution of the United States. The right of the employes of a municipal government in any state to hold employment is not such a right as comes within the meaning of the words “privileges and immunities of citizens of the United States,” as used in that amendment. A state may pass laws to regulate the privileges and immunities of its own citizens provided in so doing it does not abridge their privileges and immunities as citizens of the United States. Presser v. Illinois, 116 U. S, 253; People v. Loeffler, 175 Ill., 585; Hope v. New Orleans, 106 La., 345; People, ex rel., v. Folks, 89 App. Div. (N. Y.), 171.

Suggestion is also made that some of the provisions contained in the civil service act under consideration provide for the fixing of rules and duties in an unreasonable way and with unreasonable penalties. None of such provisions can affect the rights of the plaintiff in this case and they are not involved here. If,' when a proper case is presented, any of these provisions should be found to be invalid for any of the reasons stated, such invalidity would not affect the constitutionality of the entire law. They might fall* and the general scheme of the enactment be still preserved and be. effective.

The duties imposed by these provisions, as well as those above referred to, undoubtedly assist in the effort to improve the civil service of the state, which is the desirable end sought to be attained in the passage of the law and in the adoption of the amendment to the constitution referred to.

The prescribing of the plan is a matter within the legislative will which, when exercised, must be judicially enforced. Every intendment must be indulged in favor of the validity of the act until it is disclosed that some constitutional requirement has been disregarded.

A serious question, however, is presented by an examination of the provisions of the law itself with reference to the relative powers and duties of the state and municipal commissions. This case directly involves the relation of the municipal commission to the state commission, and the general terms used in some of the provisions of the act make the interpretation of it somewhat doubtful. A careful examination, however, of these different provisions we think conducts to a correct conclusion. Section 1 is devoted to definitions, and subdivision 2 in that section provides: “The ‘state service’ shall include all such offices in the service of the state or the counties thereof, except the cities and city school districts.”

Section 7 provides for the powers and duties of the commission. Subdivision 3 enacts that the commission shall “make investigations, either sitting as a body, or through a single commissioner, the chief examiner, or through a local public official or other persons designated by the commission, concerning all matters touching the enforcement and effect of this act and the rules prescribed thereunder.” It is insisted by the defendant in error that under these provisions the state commission was clothed with full power to conduct the investigation proposed to be made in this case. It is claimed that “all matters touching the enforcement and effect of this act and the rules prescribed thereunder,” necessarily embrace matters connected with municipal as well as state service since all are covered by the act. It is not contended that the investigation so to be made by the átate commission is followed by the power of removal or that any definite action is authorized. This, however, would not be conclusive that the legislature did not intend to confer the authority claimed, because the investigation might be required for the purposes of publicity and to secure the beneficial results which attend sane and wholesome publicity as to the acts of public bodies and officials. It is hard to overestimate the advantages secured by the arousing of the interest and watchfulness of the citizen, which aré attended by a general restraining influence on public servants. The question is, Did the legislature confer that power on the state commission in such a case as here presented, or did it confer it on the municipal commission?

It is urged by plaintiff that the investigation, authorized to be conducted by the state commission in Section 7, subdivision 3, must be limited to matters touching the enforcement and effect of the act and the rules prescribed thereunder so far as they affect the state and county service as described in subdivision 2 of Section 1. The rules.which the state commission is "empowered to put into effect are described by Section 9 as being for the “classified service of the state and the counties thereof.”

The municipal civil service commission is provided for in Section 19. That section, after providing for the appointment of a municipal civil service commission of each city of the state, enacts : “Said municipal commission shall have and exercise all other powers and perform all other duties Avith respect to the civil service of such city and city school district, as herein prescribed and conferred upon the state civil service commission with respect to the civil service of the state; and all authority granted to the state commission with respect to the service under its jurisdiction shall be ■ held to grant the same authority to the municipal commission with respect to the service under its jurisdiction.” Therefore, it is clear that the power to make investigations conferred upon the state .commission by the third subdivision of Section 7 is by Section 19 conferred upon the municipal commission in respect to the service under its juris- . diction.

Section 22 of the act provides that “Whenever a civil service commission shall have reason to believe that any officer, board, commission, head of department or person having the power of appointment, lay off, suspension or removal, has abused .such power by making an appointment, lay off, suspension, or removal in violation of the provisions of this act, it shall be the duty of the commission to make an investigation, and if it shall find that any such violation of the provisions or the intent and spirit of this act has occurred, it shall make a report thereof to the governor, or in the case of a municipal officer or employe to the mayor or other chief appointing authority, who shall have the power to remove forthwith such guilty officer,” etc. It will be observed that this power is not confined to the state civil service commission, but is conferred upon “a civil service commission” which “shall have reason,” etc. There is a manifest intent and purpose to keep the municipal officer and employe separate from those who are in the “state serAnce.” subject to the rules prescribed and enforced by the state commission.

As above stated, Section 19 provides for the appointment and defines the powers and duties of a municipal civil service commission. In that section the relation of the state commission to the municipal commission is specifically referred to, and it seems to clearly define the scope of the state commission’s authority with reference to the municipal commission. It provides that on failure of the city authority to appoint a civil service co,m-mission within sixty days after he has power, to appoint, or on failure of the municipal commission to prepare rules and regulations as required by the act within six months after it goes into effect, the state commission shall make the appointment; or prepare such rules. The last paragraph but one in that Section (T9) provides: “Whenever the state commission shall have reason to believe that a civil service commission of any city is violating or is failing to perform the duties imposed upon it by law, or that any member of such municipal commission is wilfully or through culpable negligence violating the provisions of the law or is failing to perform his duties as a member of such commission, it may institute an investigation, and if it shall find any such violation or failure to perfom the duties imposed by law, it shall make a report of such violation in writing to the chief executivé authority of such city, which report shall be a public record.” It is then provided that the chief executive authority of such city may remove such municipal civil service commissioner after notice and hearing. The provision of the law last referred to is the only one in which special authority is conferred upon the state civil service to conduct an investigation with reference to the civil service of any city. Of course it is not claimed that the language quoted confers authority to conduct the inquiry here complained of.

In view of the comprehensive provisions of the statute with reference to the duties of the different commissions in all other respects, it would seem clear that the maxim expressio unius est exclusio alterius would here apply. The learned court of appeals did not give to this special provision the conclusive effect which we think is required by correct interpretation.

The enforcement of the view we have taken will not weaken in any way the arm of the state in the exercise of a supervisory power over the conduct of the mayor of a city. Section 4268, General Code, provides that “In case of misconduct in office, bribery, any gross neglect of duty, gross immorality, or habitual drunkenness of any mayor, upon notice and after affording such mayor a full and fair opportunity to be heard in his defense, the governor of the state shall remove him from office.” The section also provides for the procedure by which this result may be attained.

• The municipality of Urbana has not exercised its right under the recent amendment to the constitution to frame and adopt a charter for its government and is therefore subject to the general laws of the state touching that subject. State, ex rel. Toledo, v. Lynch, 88 Ohio St., 71.

• In this posture we are not aware of any provision of the constitution as amended which would prevent legislation clearly conferring the powers of intervention in local affairs which are claimed by the state commission. But, as indicated, we have not found such intention in the legislation involved in this case.

The judgment will be reversed and the cause remanded with instructions to enter judgment and decree for plaintiff.

Judgment reversed. .

Nichols, C. J., Shaucic,. Donai-iue, Wanamaicer, Newman and Wilkin, JJ., concur.


author: Donahue, J.

text:
    Elder et al. v. Shoffstall et al.

      Trial—Three-fourths jury law—Amended Section 11455, General Code—Applies to actions pending May 14, 1913—Regardless of when cause of action arose—Measure of damages—False and fraudulent representations.

    1. Section 11455, General Code, as amended February 6, 1913 (effective May 14, 1913), does not apply to causes pending in the common pleas courts of this state on the 13th day of May, 1913.

      2. This amended section relates to the remedy only arid applies to all actions commenced in the common pleas courts of this state on and after the 14th day of May, 1913, regardléss of the time when the cause of action arose.
    3. In an action to recover damages for false and fraudulent representation as to the value of personal property, made by the seller in order to induce the purchaser to buy, the measure of damages is the difference between the value of the property as it was represented to be and its actual value at the time of • the sale.
    (No. 14458
    Decided June 16, 1914.)
    Errot to the Court of Appeals of Sandusky county.

      On the 21st day of March, 1913, Frank S. Shoff - stall and Carrie A. Shoff stall filed their petition in the common pleas court of Sandusky county against R. A. Elder & Co., a partnership composed of R. A. Elder and Clara J. Elder, alleging fraudulent representation in the sale of a stock of dry goods, millinery and fixtures located in No. 104 Kilbourne street, Bellevue, Ohio, among other things averring that they purchased said stock of merchandise on the 24th day of August, 1912, for the sum of $4,500, which purchase price was paid by transferring to the defendants a house and lot in the city of Toledo valued at $4,500, subject to a mortgage of $2,000, which the defendants assumed and agreed to pay, and that plaintiffs as a part of the purchase price of said merchandise executed and delivered to the defendants a chattel, mortgage upon said stock of goods for the sum of $2,000; that said defendants represented that the merchandise sold was of good quality and would invoice $6,500, and that defendants had established a trade at the location above named and that their sales amounted to $12,000 per year, and that said purchase was made relying upon these representations, which were false in this, that said stock of merchandise did not invoice to exceed $1,516, that defendants had not established a trade to the amount of $12,000 per year and that defendants knew said representations were false at the time of making the same. Plaintiffs aver that by reason of the fraudulent misrepresentations they were damaged in the sum of $3,000 and asked, that said defendants be enjoined from transferring the notes given for the balance of the purchase price and secured by the chattel mortgage, and asked judgment against the defendants in the sum of $3,000.
    Defendants for answer admit the sale and pur-’ chase of said merchandise, the transfer to them of the house in Toledo, but aver that it was agreed' that the value of said house was $4,000, and that it was subject to the mortgage of $2,000 described in plaintiff's petition, and admit that the chattel mortgage was executed to them upon the stock and fixtures to secure notes aggregating $2,000 as the balance of the purchase price of said real estate; that on the 31st day of December, 1912, defendants paid the mortgage lien upon the real estate in Toledo transferred to them by plaintiffs.
    Defendants further aver that plaintiffs, in violation of the terms of the chattel mortgage, sold some of said goods and chattels without the consent of the defendants and shipped some of the same out of the state of Ohio without the consent of the defendants, and that the defendants thereupon elected to treat said chattel mortgage as absolute, and that plaintiffs on the 31st day of December, 1912, executed and delivered to defendants, a second chattel mortgage securing a series of eleven promissory notes aggregating $2,000 and executed and delivered to defendants another promissory note for $42 for accrued interest on ’ the original indebtedness of $2,000 from August 24, 1912, which said $42 note was not secured by chattel mortgage, and that thereupon the original notes and chattel mortgage were duly cancelled and delivered by defendants to the plaintiffs.

      Defendants further say that at the time of the sale and delivery of said merchandise to plaintiffs they had full opportunity to inspect same and did inspect same; that said exchange was made without warranty and without representation as to the value of said goods, or as to any other mattei;, but on prior inspection thereof. And for cross-petition defendants ask to recover upon the notes executed and delivered to them by plaintiffs on the 31st day of December, 1912, the sum of $2,042, with interest thereon from December 31, 1912, averring that the conditions of said chattel mortgage had been broken and that by reason of the breach of said conditions all of said notes have become due. Defendants also ask that a receiver be appointed and that the goods and chattels described in the chattel mortgage be sold and the proceeds applied to the payment of said judgment.
    . For reply to this answer and cross:petition the plaintiffs deny that it was agreed that the value of the Toledo property was $4,000. Plaintiffs also admit the execution and delivery of the notes and chattel mortgage, but deny all other averments of the answer and cross-petition, except that some of the goods were shipped to Indiana to be sold upon commission, but that the same was done because there was no sale for such goods in Bellevue and vicinity on account of the age and condition of the goods. They aver that the defendants waived any objection to said shipment.
    The answer and cross-petition of the defendants was filed on the 18th day of April, 1913. The plaintiffs’ reply was filed on the 5th day of May, 1913, and on May 6, 1913, a jury was impaneled and the trial proceeded and was continued from day to day until May 20, 1913, upon which day the court charged the jury, and on May 21, 1913, the jury returned a verdict finding on the issues joined for the defendants in the sum of $2,069.23. This verdict is signed by ten of the jurors, to which verdict the plaintiffs then and there excepted because said verdict was not concurred in by all the jurors, which objection was overruled and plaintiffs duly excepted. A motion for a new trial was overruled on the 5th day of July, 1913, and judgment entered on the verdict.
    ■ The court charged the jury that when nine or more of its members agreed upon a verdict those agreeing to the verdict should sign the same and return it into open court.
    The plaintiffs below filed a petition in error in the court of appeals of Sandusky county, and that c'ourt reversed the judgment of the common, pleas court for the reason that said court erred in instructing the jury that the verdict might be rendered when the same was concurred in by nine members of said jury, and that the common pleas court erred in receiving a verdict that was signed by only ten members thereof. Other errors were presented by the petition in error, but it does not appear from the entry .of judgment in the court of appeals .that these other errors were considered by that court.' The plaintiffs in error now prosecute this action in this court to reverse the judgment of the court of appeals.

      Messrs. Parkhurst & Vickery and Messrs. Garver & Garver, for plaintiffs in error.

      Mr. Jesse Vickery, for defendants in error.
   Donahue, J.

Section 5 of Article I of the Constitution of Ohio as amended September 3, 1912, provides that “The right of trial by jury shall be inviolate, except that, in civil cases, laws may be passed to authorize the rendering of a verdict by the concurrence of not less than three-fourths of the jury.” This amendment went into effect on the 1st day of January, 1913. It was not self-executing and required legislative action before it could become effective, and until the same became effective by legislative action litigants would be entitled' to the unanimous verdict of twelve jurors.

On the 6th day of February, 1913, the general assembly of this state amended Section 1*1455, General Code, by providing that “In all civil actions a jury shall render a verdict upon the concurrence of three-fourths or more of their number. The verdict shall be in writing and signed by each of such jurors concurring therein, * * * .” This act was approved by the governor of the state on the 12th day of February, 1913, and was filed in the office of the secretary of state February 13,1913. Under the provisions of Section lc of Article II of the Constitution, as amended in 1912, this law did not become effective until ninety days after it had 'been filed in the office of the secretary of state. The jury in this case was impaneled on the 6th day of May and its verdict returned into court on the 21st day of May, so that pending the trial of this cause amended Section 11455, General Code, became the law of this state.

The general assembly of the state in adopting this amendment acted within the scope of its constitutional authority, and, therefore, if this case comes within the operation of that amendment, the charge of the common pleas court was right. This act of the general assembly is remedial in its nature and must be considered and construed in connection with Section 26 of the General Code, for so long as that section remains the law of Ohio all subsequent legislation must be construed in accordance therewith. That section reads as follows: “Whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions, or proceedings, civil or criminal, and when the repeal or amendment relates to the remedy, it shall not affect pending actions, prosecutions, or proceedings, unless so expressed, nor shall any repeal or amendment affect causes of such action, prosecution, or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act.”

This act amending Section 11455, General Code, did not expressly provide that it should affect pending actions. It is clear, therefore, that it can have no application to this case, for this was not only a pending action, but the jury had been impaneled and the trial had proceeded for at least eight days before this law went into effect.

Our attention is called to the case of Warner v. Baltimore & Ohio Rd. Co., 31 Ohio St. 265, in which case the first proposition of the syllabus is as follows: “Where a jury of twelve men was selected and summoned for the trial of a cause before a justice of the peace, under the act of March 30, 1875, and before the day set for trial this act was repealed by another, which provided for a jury of six men for such trials; Held, That the act in force at the time of the trial governed, and that the justice erred in submitting the cause to a jury of twelve men.” That was a pending case. The court held that the law reducing a jury in the justice’s court from twelve to six was constitutional because the constitutional provision in reference to the right of trial by jury does not apply to trials before justices of the peace, for the reason that on appeal to the common .pleas court litigants will be entitled to the full constitutional jury. This act in question is clearly constitutional, and so far the cases are parallel except that in this case the jury was actually impaneled before the law became effective, but we do not distinguish these cases on that ground, although we think that might be sufficient for the purposes of this case, but rather do we distinguish these cases upon grounds that are applicable to all cases pending at the time this law became effective.

At the time the case of Warner v. Baltimore & Ohio Rd. Co., supra, was decided, the act of February 19, 1866 (63 O. L., 22), was then the law of Ohio. That act read as follows: “That whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions, or proceedings, civil or criminal; nor causes of such action, prosecution, or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act.” This court held in that case that this section, as it then read, had no application to the repeal or amendment of statutes relating to the remedy; that remedies always had been subject to legislative control, except to the extent which the constitution has limited such control; that statutes relating to proceedings before justices of the peace were remedial in their nature ■and might be given or taken away at the pleasure of the legislature.

Since that decision, however, this section has been amended by adding thereto the following; “and when the repeal or amendment relates to the •remedy, it shall not affect pending actions, prosecutions, or proceedings, unless so expressed.” • This ■amendment clearly evidences the legislative intent to distinguish between statutes relating to the remedy arid statutes that do not relate to the remedy. Construed in the light of the decision of this court in the case of Warner v. B. & O. Rd. Co., supra, this statute now provides that the amendment or repeal of statutes that do not relate to the remedy shall not affect pending actions, prosecutions, or proceedings, civil or criminal, nor causes of such action, prosecution, or proceeding, existing at the time of such amendment or repeal, unless it is otherwise expressly provided in the amending or repealing act. But, with reference to amendments or repeals of statutes that relate to the remedy, the provision is that such amendment or repeal shall not affect ‘pending ' actions, prosecutions, or proceedings, unless so expressed. In view of the plain and positive provisions of the law, it follows that causes of action, prosecutions or proceedings existing at the time of the amendment or repeal of statutes relating to the remedy are not exempt from the operation of such amendment or repeal.

Section 11455, General Code, as amended February 6, 1913, does not expressly provide that pending actions, prosecutions, or proceedings shall be affected thereby. Construing this section then in connection with Section 26, General Code, it follows that this amendment does not apply to cases pending at the time it went into effect, and, therefore, the trial court erred in instructing the jury that a verdict might be rendered when concurred in by nine members, and erred in receiving a verdict signed by ten members of the jury.

Counsel call our attention to the fact that the several causes of action pleaded in the answer and cross-petition of plaintiffs in error arose in March and April, 1913, and after the amendment to the constitution went into effect. Section 11455, as amended, ho-wever, relates to the remedy only, and therefore does apply to all actions commenced in the common pleas courts of this state after the 14th day of May, 1913, regardless of the time when the cause of action arose.

The judgment of the circuit court must also be affirmed for another reason, for k is not important what reason the court gave for reversing the judgment of the common pleas court if in fact the reversal of the judgment was right for any reason. The journal entry in the court of appeals does not refer to any other errors presented by the petition in error in that court except the question of the application of Section 11455, General Code, to this case, but in the opinion of that court, reported in 1 Ohio App., page 390, in the third paragraph of the syllabus it is held that the charge of the court was erroneous in reference to the measure of damages. The trial court charged the jury that the measure of damages was the difference in the value of the house of plaintiff and the value of the stock of goods of the defendant on the date of the exchange. The true measure of damages is the difference between the property as it was represented to be and its actual value at the time of the purchase, and for this reason, as well as the reason already given, the judgment of the court of appeals is affirmed.

Judgment affirmed.

Nichols, C. J., Shauck, Johnson, Wanamaker, Newman and Wilkin, TJ., concur.


author: By the. Court.

text:
    Napier v. The State of Ohio.

      Criminal law—Self-defense—Want of fear—Question of ordinary firmness—Charge to jury.

    (No. 14454
    Decided June 16, 1914.)
    Error to the Court of Appeals of Perry county.

      Mr. T. B. Williams, for plaintiff in error.

      Mr. Tom O. Crossan, for defendant in error.
   By the. Court.

Plaintiff in error was indicted by the grand jury of Perry county for shooting with intent to kill and shooting with intent to wound one Joseph Toth. He was convicted at the April term, 1913, of the common pleas of Perry, on the second count' of the indictment—that of shooting with intent to wound. On the trial the defendant relied on the defense of self-defense. The judgment of the common pleas was affirmed by the court of appeals..

The plaintiff in error urges that the court erred in its charge to the jury and no other error is suggested. The court charged as follows with reference to self-defense:

“A person who is assaulted and believes and has' good cause to believe that great bodily harm is. about to be done him and who acts in a moment of seeming impending peril need nor gauge nicely the quantum or amount of force necessary to repel his assailant. The question in such case is whether under all the circumstances he had reason to believe and did believe that the means or force exercised was necessary to protect him from impending danger or great bodily harm,.

“The degree of force and the nature or means which may be properly employed in self-defense must depend upon the circumstances of the case in hand. The danger must be either actual or apparent. If the appearances were such as voould have alarmed a man of ordinary firmness and would have impressed him that such danger was imminent and the party assailed honestly believed such to be the case it is not material whether the danger was real or not. Of this the jury must judge from the circumstances. Now, to apply the law to this case. If you should find that the defendant, Charles Napier, being in the lawful pursuit of his business and without fault on his part was attacked by Joseph Toth, and the defendant as would any man of ordinary firmness then honestly believed that he was in immediate danger of physical violence or injury to himself in such case the jury will determine whether the defendant then and there used such force and such only as was or appeared to him to be reasonably necessary to prevent such threatened injury. If so he would be guilty of no crime and your verdict would be not guilty. But if on the other hand you should find from the evidence that the defendant was not in any immediate danger either real or to him apparent of receiving any bodily injury or should find that he used such unnecessary, excessive or improper amount or kind of force as was plainly altogether disproportionate in violence to that of the attack and wholly unnecessary for his protection then in any of those cases you will find that the defendant had not acted in self-defense.”

It is insisted that the charge given is contrary to the law of self-defense in this state as declared in Marts v. The State, 26 Ohio St., 162, where the rule is stated as follows: “Homicide is justifiable on the ground of self-defense, where the slayer, in the careful and proper use of his faculties, bona fide believes, and has reasonable ground to believe, that he is in imminent danger of death or great bodily harm, and that his only means of escape from such danger will be by taking the life of his assailant, although in fact he is mistaken as to the existence or imminence of the danger.”

This rule has long been enforced in the courts of the state and has become firmly fixed as part of our criminal jurisprudence. A departure from it in the charge of a trial court to a jury, in a manner so substantial as to prejudice the rights of the defendant, would be error. In this' case, however, there was not such a departure as in the light of'the circumstances could have possibly worked prejudice to the defendant below. This situation is disclosed by the testimony of the defendant himself in describing the transaction and his own state of mind concerning it, viz.:

“Q. You knew that your brother, Tom, was behind you? A. Yes sir.

“Q. And you knew that Alec Toth was behind you? A. Yes sir.

“Q. Alec didn’t do a thing? A. No sir.

“Q. You did not have any fear of Alec Toth? A. No sir; my brother was there.

“Q. Consequently you had these two fellows in front of you ? A. Yes sir'.

“Q. And you were not scared of what was going to happen in front of you? A. No sir. Never was scared of a man in my life, when I was anyways near his size.

“Q. You didn’t have any fear of bodily harm ? A. I saw he was coming my way. I wasn’t afraid of getting killed, if I could take care of myself. I proposed to take care of myself the best I could and if I couldn’t would ha\ e to stand for it, that was all.”

And again:

“Q. How did you come to carry a gun? A. That man wanted to fight over there in the mine.

Q. You went down there prepared? A. Not to get hurt if I could possibly help it.

“Q. You armed yourself with the gun before you went down there with the expectation of using it? A. If it was necesssary, yes sir.”

We think it clear from the undisputed testimony in the case that the language used by the court, “If the appearances were such as would have alarmed a man of ordinary firmness” and “the defendant as would any man of ordinary firmness then honestly believed that he was in immediate danger of physical violence or injury to himself,” could not have prejudiced the rights of the defendant and did not require the jury to apply an improper test.

For these reasons the judgment of the court below will be affirmed.

Judgment affirmed.

Nichols, C. ]., Johnson, Wanamaker, Newman and Wilkin, JJ., concur.


author: Newman, J.

text:
    Hunt v. Held.

      Covenants—Building restriction—Doubts in conveyance resolved, how—Double house not prohibited—By "residence only” clause, when.

    1. Where the right to enforce a restriction contained in the conveyance as to the use of the property conveyed is doubtful all doubt should be resolved in favor of the free use thereof for lawful purposes by the owner of the fee.
    2. A clause in a conveyance restricting the use of the property conveyed “for residence purposes only” does not prohibit the. erection of a double or two-family house on-the premises.
    (No. 14476
    Decided June 23, 1914.)
    Error to the Court of Appeals of Cuyahoga county.
    This was an action for an injunction brought by defendant in error on the 28th day of July, 1913,-in the court of common pleas of Cuyahoga county. He sought to enjoin the plaintiff in error, Carrie E, Hunt, and one A. T. Sebek, a contractor, from any and all further work toward the construction of a two-family or double house on the real estate of said Carrie E. Hunt. He based his right of action , on a certain clause of restriction contained in the deed of purchase of the real estate owned by said Carrie E. Hunt.
    The matter was heard in the court of common pleas on the motion of Carrie E. Hunt to dissolve a restraining order theretofore allowed and was submitted to the court upon the petition, the answer of Carrie E. Hunt, the reply thereto and an agreed statement of facts. The motion to dissolve was sustained, an injunction denied and the petition dismissed at the costs of defendant in error.-

      Defendant in error thereupon appealed the case to the court of appeals and it was there heard upon the pleadings, the evidence and agreed statement of facts.
    It appears from the agreed statement of facts that the defendant in error, Francis Held, was the owner of the easterly twenty-five feet of sublot 160 and the westerly ten feet of sublot 161 in John W. Taylor & Company’s Douglas Park subdivision and that plaintiff in error, Carrie E. Hunt, was the owner of the easterly thirty feet of sublot 161 and the westerly five feet of sublot 162 in said subdivision, that both Francis Held and Carrie E. Hunt received their conveyances directly from the allotment company and in each of the deeds there was the following covenant of restriction: “This property is sold for residence purposes only.”
    It further appears that said plaintiff in error, Carrie E. Hunt, would construct on her property, unless enjoined, a two-family or double house, and that at the time the restraining order was allowed the excavation for said house had been made and a part of the easterly foundation constructed.
    The court of appeals found in favor of the defendant in error, and Carrie E. Hunt was perpetually enjoined from constructing or continuing the erection of any two-family or double house on her property and judgment was rendered against her for costs.

      Messrs. Thompson, Hiñe & Flory, for plaintiff in error.

      Mr. A. C. Waid, for defendant in error.
   Newman, J.

In addition to the claim that the erection of a double or two-family house is not in violation of the clause of restriction contained in her deed, plaintiff in error contends that, if the erection of such a house did violate the restriction, the right to enforce it has been lost to defendant in error through his own acts or those of the common grantor. These acts are pleaded in the answer and are referred to at length in the agreed statement of facts. In arriving at a decision of this case, however, we have found it necessary to consider only the meaning of the clause of restriction contained in the deed.

It is the claim of counsel for defendant in error that in the erection of a double or two-family house on her property plaintiff in error would violate the restriction clause in her deed and that when the words “this property is sold for residence purposes only” were inserted in the deeds the sellers of the property clearly intended that single houses only should be built thereon and that the language used excluded the idea of a number of residences under the same roof or in the same house. They concede that the use of a double or two-family house is a use for residence purposes in one sense, but that it is not a use for residence purposes only, and say that therein lies the distinction. We are unable to see the distinction they would make. The word “only” in óur opinion does not change the meaning of the words “residence purposes.”

If there is any doubt as to the meaning of the words employed the doubt should be resolved in favor of the free use of the property by plaintiff in error for any lawful purpose and against restrictions, for it is a well-settled rule that in construing deeds and instruments containing restrictions and prohibitions as to the use of property conveyed all doubts should be resolved in favor of the free use thereof for lawful purposes in the hands of the owners of the fee. Ewertsen v. Gerstenberg, 186 Ill., 344. And again defendant in error acquired no greater rights under the restriction clause than his grantor had, and the rule that a deed is to be construed most strongly against the grantor applies here.

But is there any doubt as to the meaning of the words? The word “residence,” as we view it, is equivalent to “residential” and was used in contradistinction to “business.” If a building is used as a place of abode and no business carried on it would be used for residence purposes only whether occupied by one family or a number of families. Counsel say that the words were intended to describe a type of building. We think not. ' The word “residence” has reference to the use or mode of occupancy to which the building may be put. If it had been intended that the building was to be for the use of one family only, words indicating such an intention would have been used, as is frequently done, such as “a single residence,” “a private residence,” “a single dwelling house.” And it is to be noted that the common grantor here, in his deed to another lot owner in the subdivision, used the expression: “This property is sold for single residence purposes only.”

Counsel have cited a number of cases decided by courts in other jurisdictions, but an examination of them will disclose the fact that in those cases there was under consideration language in restriction clauses materially different from that in the case at bar.

In Round Lake Assn. v. Kellogg, 141 N. Y., 348, there was a restriction against the use of the property for business purposes and “residence purposes” does not appear. In Skillman v. Smathehurst, 57 N. J. Eq., 1, this language was used: “Any building other than for the use or purpose of a private dwelling.” In Schadt v. Brill, 173 Mich., 647, “other than a dwelling house with the usual appurtenances” was under consideration. But the supreme court of Michigan in Tillotson v. Gregory, 151 Mich., 132, had made a distinction between the words “residence purposes” and “dwelling house,” and held that while the latter words meant a single dwelling house the words “residence purposes” would not bear such construction.

But it is claimed that the question has been clearly decided in this state. In support of this they cite Rose v. King, 49 Ohio St., 213, and Linwood Park Co. v. Van Dusen, 63 Ohio St., 183. In the former case the question was not before the court, and in the latter the court was interpreting a provision in a lease that required the lessee to use the premises “for the purpose of a private dwelling or residence.” On page 200, the court say: “The plain provision of the covenant is that the leased premises shall be used for the purposes of a dwelling or residence only, not for a number of dwellings. More than that, they are restricted to the use of it for a private dwelling or residence; and that is not a private dwelling or residence which is used in the business of renting rooms to lodgers or tenants.”, The court seems to have laid stress on the use of the words “a” and “private,” these words appearing in the report italicized.

The only reported case to which our attention has been called where the language “for residence purposes only” is given the meaning claimed for it by defendant in error is Burton v. Stapely, 4 O. N. P., N. S., 65, and the case is discussed at length by counsel here. The common pleas judge, it seems, based his ruling on the language used by this court in Linwood Park Co. v. Van Dusen, quoted above. The language under consideration in the Van Dusen case was entirely different from that before the court in Burton v. Stapely, and the holding of the court, in the former case was not, we think, an authority for the position taken by the court in the latter, nor does it sustain the opinion of the court. In the Burton case the common pleas court granted an injunction in favor of the plaintiff and the case was appealed to the circuit court. There the injunction was denied. Error was prosecuted to this court and the judgment of the circuit court was reversed and judgment rendered in favor of plaintiff in error on facts found by the circuit court. Burton v. Stapely, 74 Ohio St., 461. In that case plaintiff had asked for an injunction upon the ground that there had been a violation of two restrictions in the conveyance and this court may have found that plaintiff was entitled to an injunction on account of the violation of the restrictibn in the conveyance other than the one restricting the use of the found that plaintiff was entitled to an injunction on account of the violation of the restriction in the conveyance other than the one restricting the use of the property for residence purposes only, for the circuit court found as a fact that there had been a violation of the restriction in reference to the location of the building on the lot. The reversal of the judgment of the circuit court does not signify necessarily that this court approved the holding of the court of common pleas as to the meaning of the clause restricting the use of the property for residence purposes only.

In Brown v. Huber, 80 Ohio St., 183, in the covenant in the deed it was provided “that the only buildings put upon said lot shall be a residence and the necessary attachments, and that it shall be used for no other purposes than that of a family residence, and shall cost not less than $5,000 for the residence alone.” The owner of the lot had constructed two dwelling houses and planned and purposed to construct two more. This the court said was prohibited by the restriction clause in the deed.

That the erection of a double or two family house is not in violation of a restriction that the property is to be used “for residence purposes only” is the holding in Tillotson v. Gregory, 151 Mich., 132; McDonald v. Spang, 105 N. Y. Supp., 617; McMurtry v. Phillips Invest. Co., 103 Ky., 308. In the latter case the language used was: “The property herein conveyed shall be used for residence purposes only, and that, in erecting a residence thereon, it shall be built of brick or stone.” The court say: “It is contended that the language of the restriction conveys the idea of a single residence for a single family or at any rate excludes the idea of a number of residences under the same roof or in the same house. We think, however, that to give the language used, this meaning, would be to extend its scope beyond the expressed intention of the parties. The purposes for which the houses to be erected on the court were to be used were ‘residence purposes only.’ And as the house in controversy is to be constructed for such purpose only and is not to be used for any other purpose, we do not think its construction is at all prohibited by the restriction clause.” See also note by annotator, 45 L. R. A. (N. S.), 726, 728.

If the common grantor in the case before us had in mind the exclusion of a building for the abode of more than one family he should have used language that would have expressed such an intention. The court cannot read it into the covenant.

We do not think the clause under consideration bears the interpretation given it by the court of appeals. Taking the language in its ordinary and popular sense, we are forced to the conclusion that it was not the intention of the common grantor to prohibit the erection of a double or two-family house on the premises. Defendant in error was therefore not entitled to the relief he sought and his petition should have been dismissed.

Judgment of the court of appeals reversed, and judgment for plaintiff in error.

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


author: Nichols, C. J.

text:
    The Colored Industrial School of Cincinnati v. Bates, Admr., et al.

      Wills—Failure to elect—Acts necessary to constitute election in fact.

    In order that acts or a course of conduct of the surviving consort ' of a deceased testator should operate to equitably estop such consort from claiming dower and a distributive share of the personal property under the law and to amount to an election . to take under the will, such acts must be of such an unequivocal character as will clearly and distinctly demonstrate a puroose to accept the provisions of the will.
    (No. 14404
    Decided June 23, 1914.)
    Error tó the Court of Appeals of Hamilton county.
    The facts are stated in the opinion.

      Messrs. Worthington & Strong; Mr. Willis M. Kemper and Mr. Robert S. Fulton, for plaintiff in error.

      Messrs. Healy, Ferris & McAvoy and Mr. William C. Cochran, for defendants in error.
   Nichols, C. J.

Sallie J. McCall, a resident of Hamilton county, Ohio, died March 6, 1909, leaving a last will and testament. She left surviving her her husband, William A. McCáll, and the important question in this case is whether or not William A. McCall elected to take under, her will.

■ The items of the will of testatrix pertinent to this question may be briefly stated as follows:

By item 1 the testatrix devised certain real estate known as the “Andover Building1” in Cincinnati to certain trustees in trust for the benefit of the (Colpred Industrial School of Cincinnati, said (rústéés to incorporate said school and convey said real estate to it.

,p By item '2 she devised certain real estate on the north side of Fourth street in Cincinnati to her hus^ band, William A. McCall, during his natural life, with remainder after his death to the said trustees in trust for the Colored Industrial School, of Cincinnati, in the same manner as .the property devised to said school by item 1.

'■ By item 4 she devised certain real estate on Clinton street in Cincinnati in. fee simple to the Ohio State Society for the Prevention of Cruelty to Children and Animals.

By item 8 she devised certain real estate on Main aVén'úe, Avondale, Cincinnati (being the homestead of herself and husband), to her husband, William A. McCall, in fee. , She also bequeathed to him all tlie furnilure and household belongings in said house, except such as were otherwise specifically devised. ’ .

'By item 13 of said will she provided that after the payment and discharge of all bequests made in the will, all bonds and the remainder of all stocks owned by her at the time of her death were bequeathed to the said trustees in trust for the Colored Iridtistrial School of Cincinnati, in the same manner as the property bequeathed in item 1.

By itenji 14 she appointed her husband, William A. McCall, executor of her will.

On the date of the probate of the will, March 25, 1909, William A. McCall was duly appointed and qualified as executor.

On September 5,1909, six months after the death of his first wife, William A. McCall was married to Mary A. Andrews, and on September 9, 1909, he died leaving the said Mary A. Andrews McCall, his widow, surviving him.

No citation was ever issued by the probate court to the husband to appear and make his election as provided by Section 5963, Revised Statutes (Section 10566, General Code), and no election was ever made by him in the probate court. He had not settled the estate of his deceased wife or filed an account as executor, at the time of his death. No children were born to either Sallie J. McCall or William A. McCall.

The estate of Sallie J. McCall consisted of the four pieces of real estate in Cincinnati specifically devised by the items of the will to which we have above referred, and a personal estate of the appraised value of $250,325.49; of this personal estate $245,584.25 was in stocks and bonds and the balance was in household furniture, money and overdue, coupons. The debts of the estate were comparatively small in amount.

. After the death of William A. McCall, an administrator de bonis■ non with the will annexed was appointed of the estate of Sallie J. McCall, and an administrator of the estate of William A. McCall.

The claim is made that William A. McCall having died without electing to take under the will of his wife, his estate is entitled to its statutory share of her estate. On the other hand it is claimed that, though'William A. McCall made no formal election to take under said will, yet by his acts he did, as a matter of fact, elect to take under the will of Sallie J. McCall, and his estate is entitled only to the property given to him by said will.

The acts of William A. McCall which are relied upon to establish an election upon his part are the following:

(o) William A. McCall, at the time of his wife’s death an,d the probate of her will, was a retired business man, seventy-eight years of age, in good health and full possession of all his mental faculties. Immediately after the death of his wife he employed counsel, proceeded with the administration of the estate, caused an inventory to be made and was advised by counsel as to his rights under the will and under the law.

(b) Early in April Mr. McCall gave the agent appointed by the trustees of the Colored Industrial School all necessary information concerning the tenants in and rentals of the Andover building, and also went with the rent collector of said agent to the Andover building, introduced said collector, to all the tenants in said building and instructed said tenants thereafter to pay their rent to said collector. From that time on all the rents from said building were paid to and collected by said agent without any objection whatever on the part of Mr. McCall.' Mr. McCall also turned over to the agent of the said tiustees the insurance policies on said building.

(c) Beginning with the rent due in April and Horn that time on until the date of his death Mr. McCall collected the rent from the Fourth street property and deposited it in his individual account in bank, and not in the account kept by him as executor,. though he gave receipts signed by himself as executor. This Fourth street property is the property, mentioned in item 2 of the will of Sallie J'.' McCall, which was devised to the said William A. McCall for and during his natural life, and after his death to the trustees for the said Colored Industrial School in fee. The policies of insurance on this Fourth street property were indorsed by the agent of the insurance companies'to the effect that Mr. McCall had a “life interest” in the property. This indorsement was made at Mr. McCall’s request. The sanie indorsement is made on the policies of insurance on the Avondale property, which had been devised to Mr. McCall in fee."

(d) Mr. McCall took possession of all the personal property in the Avondale house,' including property specifically bequeathed to thé.'Cíncimíáti Art Museum, the gift to become effective after the death of Mr. McCall. Mr. McCall1 during his life gave away some clothing which had belonged to his w.ife. 1 , •

(<?) Mr. McCall was elected as one óf the trfistees for the Colored Industrial School and atterided1 one meeting.

(/) He executed a quitclaim deed to' the púrcha'ser of the Clinton street property, when the 'purchaser declined to take the property from the devisee, the Ohio State Society for the Prevention of Cruelty to Children and Animals, unless Mr. McCall made his election tó take under the will or execute a quitclaim deed.

(g) Mr. McCall paid the taxes on the Andover building, Foürth street property and- the Clinton street property out of the funds of .the estate of Sallie J. McCall and credited, himself, as executor with such payments. The taxes on the Avondale property he paid out of his individual account'

(h) Mr. McCall had full knowledge of the extent of the estate of Sallie J. McCall and of his fights under the will at the time of the acts above relied upon.

Under the circumstances of this case, are any of of the above acts, or all of them taken together,' sufficient to constitute an election in fact on the part of 'William A. McCall to take under the will of Sállie J: McCall?

The statutes governing the matter of election under a will as they stood at the date1 of the dedth of Sallie J. McCall were Sections 5963 and 5964, Revised Statutes, which have been carried into the General Code as Section 10566 ef seq. These sections as they appeared in the Revised Statutes are as follows: :

“Sec. 5963. If any provision be made for a widow or widower in the will of the deceased consort, ' the probate court shall, forthwith/aftef the probate of such will, issue a citation to such widow ,or widower to appear and elect whether to take such provision or to be endowed of the lands of the deceased consort and take the distributive share of the personal estate; and such election shall be mad'e within one year from the date of the service of the citation aforesaid; proAdded, that such Avidow br widoAver may, dt any time before the period of such election has expired, file her petition in the court of common pleas for the proper county, making all persons interested in said will defendants to such petition, asking a construction of the provisions of said will in her or his favor, and to have the advice of said court, or of the proper appellate court on appeal thereon; and if proceedings for such advice, or proceedings to contest the validity of such will be commenced within such year, the' widow or widower shall be entitled to make election within three months’ after such proceedings shall have ■ been finally disposed óf, and said will shall not have been ‘set aside; but the widow or'widower shall not be entitled to both dower and the provisions of the will in her or his favor, unless it plainly appears by the 'will to have béen the intention that the widow or 'widower should have such provision in addition to the dower and such distributive share.”

■ “Sec. 5964. The election of- the widow or widower to take under the will shall be made in person, 'in the' probate court of the proper county, except as hereinafter provided; and on the application by ‘a widow or' widower to take under the will, it shall be the duty of the court to explain the provisions 0$ the will, the rights under it, and by law in the 'event' of a refusal to take under the will. • The election of the widow or widower to take under the will shall be entered upon the minutes of the court; and 'if''the widow Or' widower shall fail to make such election^ the widow or widower shall retain the dower, and such share of the personal estate- of the deceased- cónsort -as the’ widow or widower would ’be' entitled to by law in case the deceased consort had died intestate, leaving children. If the widow or widower elect to take under the will, the widow or widower shall be barred of dower and such share, and take under the will alone, unless as1 provided in the next preceding section; but such election by the widow or widower to take under the will shall not bar the right to remain in the matlsiori of the deceased consort, or the widow to receive one year’s allowance for the support of herself and children, as provided by law, unless the will shall expressly otherwise direct.”

These two sections are based upon sections 45 and 46 of the original act relating to wills, passed March 23, 1840 (38 O. L., 120). They.have been often amended and before the court many times.' As originally passed, the statute provided for an election within six months and made no provision for citation; and it was at one time'held,'at least by inference, that the only manner of making an election is that provided by statute. Stilley v. Folger, 14 Ohio, 610.

But in so far as that case held that the only-method of making an election is that "provided by statute, it was overruled by the subsequent ease of Lessee of Thompson v. Hoop, 6 Ohio St., 480; and. il has, at least since the decision of the last case, been settled in this state that an election to take under a' will can be made by a widow or widowér by acts-which would estop her or him from denying such election. Baxter, Admr., v. Bowyer, 19 Ohio St., 490; Stockton v. Wooley, 20 Ohio St., 184; Millikin v. Welliver, 37 Ohio St., 460; Posegate v. South, 46 Ohio St., 391; Mellinger v. Mellinger, 73 Ohio St., 221. We know, of no exceptions to this rule in, any of, the other states.

But while an election to take under the will may be made by acts of the party, it is settled that the act or acts relied upon as constituting an election b)r conduct mus.t be plain and unequivocal, done with k full knowledge of rights under the will and under the law respectively and of the true condition of the estate and generally be of such long duration ns clearly show;s a purpose to take under the will. Reed v. Dickerman, 112 Pick., 146; Delay v. Vinal, 1 Met. (Mass.), 57, 65; Lessee of Thompson v. Hoop, 6 Qhio St., 480, 485; Stark v. Hunton, 1 N. J. Eq., 216, 227; Caston v. Caston, 2 Rich. Eq., 1; Craig’s Heirs v. Walthall, 14 Gratt., 518, 525; Clay v. Hart, 7 Dana, 1, 6; Haynie v. Dickens, 68 Ill., 267; Cory v. Cory, 37 N. J. Eq., 198, 201; Rutherford v. Mayo, 76 Va., 117, 123; Exchange & Deposit Bank v. Stone, 80 Ky., 109; Clark v. Middlesworth, 82 Ind., 240, 247; Wilson v. Wilson, 145 Ind., 659; Cooper v. Cooper’s Exr., 77 Va., 198, 205; Hovey y. Hovey, 61 N. H., 599; English v. English’s Exr., 3 N. J. Eq., 504; Shaw's Devisees v. Shaw’s Ádmr., 2 Dana, 341; Forester v. Watford, 67 Ga., 508.

Our statute is different from that of many olhr-states in that by express terms of the statute itself' a failure to elect to take under the will within the time prescribed by law works a presumption that the party repudiates the provisions of the will and takes undej* the law.

The statute was primarily intended to protect the interests of the widow. Since 1889 it has in-eluded, of course, widowers as well as widows. It provides that the surviving consort must have an opportunity of making definite choice whether acceptance will be made of the provisions of the will ,or'whether the rights accorded to the party by the law will be retained irrespective of the will. The law provides that the widow or widower shall have one year from the time of issuing of citation to elect, to make choice as to the alternative, and this time is granted so that opportunity may be given to ascertain all the facts in regard to the estate in arriving at a determination as to what may be to the best interest of the party electing. This is plain from the provisions of the act allowing the surviving consort to bring an action for the construction of the provisions of the will in his or her favor before exercising choice, and that when such action is brought the period for election is extended three pionths after final disposition of such proceedings for construction. There is no sentiment about the law. It presumes that the widow or widower in making election will be guided wholly by her ór his interests; in fact, the law provides (Sections 10574 and ip575, General Code) that in the case of a widow or widower of unsound mind the court, if satisfied that the provision made by the will is more valuable than the provision made' by law, shall el^ct for such incompetent widow or widower' to take under the will, and of' course, under the statute itself, the court can only make this election when it is satisfied that the provision made by the will is more valuable and better than the nrovision by law. The widow or widower can only take under the will by electing sq to do. If she or he does not elect, then she or he takes under the law. Therefore (as in the case at bar), when no citation has been issued land when the widower dies in less than a year after the probate of The will of his wife without having made a: formal election, it must take some clear and convincing act to constitute an election upon his part ,to take under the will; some act that is clearly inconsistent with an intention not to take under the law. It is impossible to prescribe any absolute rule under which to designate what acts are sufficient to constitute an election. Each case must be determined by the circumstances peculiar to it.

, :The fact that William A. McCall died within the period 'allowed for his election, that he made no formal election and that no citation was issued, brings him clearly within the statute as taking under, the law.

. i This, as we have pointed out before, can of course . be- controverted by clear proof that he in fact took ■■under the will, but in the absence of such proof the ■law. presumes that he elected to take under the law.

]• If there- is any presumption in the case the presumption is that he took under the law, for: the ¡reason that the law contemplates the widow or widower -will .accept the most valuable provision, and •from the'extent of this estate, as. shown by' the inventory, we have no doubt that it was clearly to Mr.' McCaU’s pecuniary advantage,not to accept the provision made for him by the will.

Now, considering briefly the facts relied upon in this -case, can any of them or all of them be considered as acts which show plainly -and unequivocally that Mr. McCall accepted the provision: made: ,- for' him by the will? We are of - the opinion that,! they do not. The estate was very large.. Mr. McCall • was appointed as executor. He knew that he had , a year in which to decide whether he would take under the will or under the law. As. executor it, was his duty to administer the estate and this he proceeded to do. The statute does not,provide that,, he must exercise his choice immediately upon being . advised as to his rights. On the contrary, it expressly. provides that he shall have one year after he is cited by the probate court in which to make his , election. The Andover building was, . given > ex- _ pressly to the trustees for the Colored Industrial School. These trustees were entitled, to the rents from it from the date of the death of Sallie J. McCall.. Mr. McCall had no interest whatever in these rents unless dower should be assigned. If he should decide to take under the law then he would have a claim for dower in said property. Neither did he have any right in the insurance policies upon this building. Whether he elected to take under the will • or under the law, the property went to the trustees • of the Colored Industrial School, the only difference being that in one event he would have a dower interest in the property and in the other event he would ■ have no interest in it. Therefore, what he did in , connection with this property does not amount to an acceptance by him of the provision made for him by the will.

His acts in connection with the Fourth street property we regard as the strongest upon which to base the contention that he elected to take under the will. If he took under the will he was entitled to rentals from this building for his life. On the, other hand, if he took under the law he would have. no right to these .vents—he.would only have á dower interest in the property. Therefore, the fact that he collected the rents and placed them in his own individual account was consistent with his taking under the will .and, disconnected, with the Qther circumstances as-to his situation and rights, inconsist- : erit .with his_taking under the law. But we cannot overlook the fact that Mr. McCall was acting as executor of his wife’s estate; that until he made his election there was no one else to collect these rents audit .was therefore proper for him to do so; that said collections were made during a period allowed him by law within which to come to a decision as to his election; that while he placed the money so collected in Jus own individual account, the record shows that at all times he had in his account a sum greater than the total amount of rents collected, and, therefore, had he elected to take under the law such amount would have been regarded as held by him in trust for the persons entitled to the same; and the fact that he had it in his possession at all times made it at all times possible for him to make . known his election to take under the law and that'hie held said money for the person or persons entitled to it.

In other words, while his collecting arid depositing of these rents to his own individual account was consistent with his taking under the will, it was riot inconsistent with his taking under the law if he elected so to do at any time while he lived. No ' rents were lost by his conduct as to this property, and so long as he did not appropriate and actually use the property it cannot be said that his acts constituted a clear and unequivocal election to take the provision made for him by the will.

We do not regard the indorsements on the insurance policies as material. These indorsements were made by the agent at Mr. McCall’s request! Neither Mr. McCall nor the agent seemed to be very clear as to the interest which Mr. McCall had in the properties.

As to the Avondale property, that was the homestead of Mr. McCall and he simply continued to reside there after his wife’s death. He had a right to'reside there for one year whether he took under the will or took under the law, and, as stated above, he knew that he had at least one year in which to. make up his mind whether he would take under the will or under the law, and his conduct with reference to this property shows nothing one way or the other.

We do not think, either, that the fact that he was elected one of the trustees of the Colored Industrial School and attended.one meeting throws any light upon the controversy. So far as the record shows he had nothing to do with his election nor did he take any active part in the proceedings of the trustees. ' There would possibly be nothing inconsistent in his taking under the law and also acting as one of the trustees for said school.

As to the execution of the quitclaim deed for the Clinton street property, this act could probably be construed either way; more logically perhaps as showing' an intention to take under the law. If he: had intended to take under the will then undoubtedly he would have complied with the request of the purchaser and filed his election and avoided the necessity of making a quitclaim deed. As he did not do this but made a quitclaim deed, it is presumed that he had some interest in the property, or supposed he would or might have, and thus released it. The only real significance of this act, as we view it, is that it shows that at the time Mr. McCall made this quitclaim deed he was undecided whether he would take under the will or under the law.

The above brief review of the acts relied upon gives our view of their significance as we understand said acts from the evidence disclosed by the record.

We have examined carefully all of the cases referred to in the briefs and many others, and it is clear that to establish by acts an election to take under the will, where the widow or widower dies within the period allowed by law to make such election, such acts must be plain, unequivocal, done with a full knowledge of all the circumstances, of the rights under the will, of the extent of the estate, and .must be such as would estop the widow or widower from denying, within such period, that she or he had so elected, had she or he lived and applied during such period to take under the law.

Practically all of the cases where an election to take under the law is involved are cases where the acts not only were plain and unequivocal but were also of long duration. After careful examination of all the cases referred to in the briefs as well as other cases cited by the text-writers, we are more than’ ever impressed with the language of Johnson, J., in the case of Millikin v. Welliver, 37 Ohio St., 460, 467, that-“It is believed no case can be found where the facts are held sufficient to amount to an election to waive the widow’s rights under the law, unless they are of such a marked character and of such long duration as will clearly and distinctlv evince a purpose to take the provisions of the will, and to operate as an effectual equitable bar to dower.”

We do not think it necessary to comment further upon the authorities cited. All of them are in accord with and none of them is contrary to the view that during the period given by the statute within which to make an election to accept the provision made by the will, unless the widow or widower makes a formal election, as provided by the statute, no act can be construed as such an election unless it be an act which would estop a widow or widower should she or he make application for an assignment of dower and distributive share of the personal property during such period.

The court of appeals found all of the bequests made in the will and the codicils of Sallie J. McCall, except the bequest to the trustees for the Colored Industrial School, were specific bequests and should be paid out of the estate before , the bonds owned by her and the. remainder of the stocks owned by her at her death should go to the trustees for the Colored Industrial School as provided in item 13 of said will, and that any deficiency in the share of William A. McCall, by reason of the delivery in full to said specific legatees of' their specific bequestSi should be borne by the said- tftistees of thfe Colored Industrial School. " 1 "

To this finding of the court of' appeals" special exception is' made by- counsel for the Colored Industrial School, and it is claimed that the legacy to the-Colored Industrial School by item 13 of "the will is also a specific legacy and is no more chargeable with the payment of claims and expenses than a'ny other specific-legacy.

It is also claimed that the legacy to the National American Woman Suffrage Association, given by item 10 of the will and item 7' of the first codicil, is a general and not a specific legacy. • ’ 11 '

■ Without making fine distinctions and comparing authorities as to what are and what are not specific legacies, it seems clear-that it was'the intention':of-the testatrix, ■ gathered from the whole will and from the language used in item 13, that’the bequest to the- Colored Industrial -School was only to be made after the payment-and discharge of all the ether bequests named in the will, and therefore the decision of the court of appeals in this respect is correct. - Nor does it- seem that there should be' any question but-that the-devise to the National American Woman Suffrage Association was specific-and was among the. legacies to be paid before the bequest to ■ the ■ Colored Industrial School given; by-item 13 of the will. ■ ■ • <

-The seventh item- of the firstcodicil plainly subst» - t-uted the stock-of The Cincinnati- Street-Railway» Company for the stock-of The Cincinnati,-Hamilton-&-Dayton-Railway.-Company bequeathed by item 10-“cf the will to the National American Woman Suffrage Association, such last-named stock having been disposed of by the testatrix subsequent to the time of making the will and prior to the date of the execution of the first codicil.

Judgment affirmed.

Shaucic, Johnson, Donahue,- Wanamaker, Newman and Wilkin, JJ., concur.