author: Summers, J.

text:
    Executors of Eury v. The State.

      Inheritance tax act — of April 25, 1904 — Went into effect May 1, 1904 — Is not retroactive.

    The act passed and approved April 25,1904 (97 O. L., 398), entitled “An act to impose a tax upon the right to succeed to, or inherit, property,” is not retroactive, and applies only to such rights arising on a death occurring on or subsequently to that day.
    (No. 9293
    Decided May 23, 1905.)
    Error to tbe Circuit Court of Darke county.-
    Tbe State of Ohio and tbe executors, S. A. Hostetter and David W. Smith, of tbe last will and testament of David Eury, deceased, submitted an agreed case to tbe court, of common pleas of Darke county. Tbe question to be determined was whether that part of tbe estate of tbe decedent unadministered when tbe inheritance tax law, passed April 25, 1904 (97 O. L., 398), took effect was subject to tbe tax.
    David Eury, a resident of that county, died in 1884, testate. Tbe plaintiffs in error were duly appointed executors and still are acting as such. By bis will be gave and devised to bis executors in trust all of bis real and personal estate not otherwise specifically disposed of to be by them held to and for tbe uses and purposes and trusts therein set forth. His' wife was to have the use of the real estate and interest on the personal estate, and at the decease of his wife his executors were directed to convey the undivided one-half of said real estate to the then surviving children of Andrew Kershner, deceased, “and to the issue of such of his children as may then he dead as the parent would have if living in fee simple in equal rights, and in like manner and time to convey to Sarah Elizabeth Eichards for life and after her death to her children in fee simple” the other undivided half, and “if any of her children then be dead and left issue, then be living they have the share their parent would be entitled if living.” And “after the death of my wife, out of the monies in my executors’ hands arising from my estate, I direct my said executors to pay the following specific legacies, viz.: To each of the children of Delila Johnson, or afterwards Delila Lime, the sum of six hundred dollars ($600). If any of her five children should have died before this and 'left children, they to have the share their parent would have been entitled to if living. To Lidia Margaret Miller, daughter of Sarah E. Bertram, three hundred dollars ($300); and to Sarah E. Bertram twelve hundred dollars ($1,200); and to David W. Smith fifteen hundred dollars ($1,500) ; and to each of the living children, and to the issue of any that may be dead, of my brothers, Jesse Eury and Noah Eury, fifteen hundred dollars ($1,500); and on final settlement of my estate all the rest and residue thereof to be divided and distributed and paid to my heirs-at-law in the same proportion that the same would have been paid to them if I had died without a will. All of the former legacies and specific and residuary to be paid after the death of my wife.”

      The widow died in July, 1904, and the value of several of the legacies in the hands of the executors is more than the amount exempt from the tax.
    The court found that the real estate specifically devised was not subject to the tax, but, with that exception, that the real and personal estate in the hands of the executors for distribution was subject to the tax, and it ordered and adjudged that the executors pay the tax on each such legacy and distributive share in excess of three thousand dollars.
    The executors prosecuted error in the circuit court. The State filed a cross-petition in error, assigning error in the judgment that the real estate specifically devised was not subject to the tax.
    The circuit court affirmed and error is prosecuted in this court.

      Messrs. Anderson, Bowman & Anderson, attorneys for plaintiffs in error,
    cited and commented upon the following authorities:

      State ex rel. v. Guilbert, Aud., 70 Ohio St., 229; Dallinger v. Rapello, 14 Fed. Rep., 33; Sewall v. Jones, 9 Pick., 412; Green v. Holway, 101 Mass., 243; 27 Am. & Eng. Ency. Law (2 ed.), 341; In re Lambard, Appellant, 88 Me., 587; Howe v. Howe, 179 Mass., 546; Hospital v. People, 198 Ill., 495; Garfield v. Bemis, 2 All. (Mass.), 445; Folsom v. United States, 21 Fed. Rep., 37; sec. 28, art. 2, Const. of Ohio; Linton v. Laycock, 33 Ohio St., 128; Doe v. Considine, 4 O. F. D., 94; 6 Wall., 458; Tindall v. Tindall, 167 Mo., 225; Letchworth’s Appeal, 30 Pa. St., 175; Heilman v. Heilman, 129 Ind., 59; Harris v. Carpenter, 109 Ind., 540; 4 Kent’s Commentaries (4 ed.), 203; 2 Jarman on Wills (5 ed.), 153; Mc

      Arthur v. Scott, 5 O. F. D., 357; 113 U. S., 340; Ducker v. Burnham, 146 Ill., 9; Reed’s Appeal, 118 Pa. St., 215; In re Young, 145 N. Y., 539; Richey v. Johnson, 30 Ohio St., 288; Loder. v. Hatfield, 71 N. Y., 100; 24 Am. & Eng. Ency. Law, 394; Rand v. Butler, 48 Conn., 293; Garner v. Lawson, 3: East, 278; Bolton v. Bank, 50 Ohio St., 290; People. v. McCormick, 208 Ill., 437; Sayles v. Best, 140 N. Y., 368; Byrne v. France, 131 Mo., 639; Smith v. Bell, 6 Pet., 68; 24 Am. & Eng. Ency. Law (2 ed.), 436; Carstensen’s Estate, 196 Pa., 325; Seller v. Reed, 88 Va., 377; State ex rel. v. Ferris, 53 Ohio St., 314; Magoun v. Bank, 170 U. S., 283; Minot v. Winthrop, 162 Mass., 113; State v. Alston, 94 Tenn., 680; In re Wilmerding, 117 Cal., 284; State v. Dalrymple, 70 Md., 294; United States v. Perkins, 163 U. S., 628; Cooley on Taxation, 292; Rairden v. Holden, Admr., 15 Ohio St., 207; Commissioner v. Rosche Bros., 50 Ohio St., 103; Sturges v. Carter, 5 O. F. D., 428; 114 U. S., 511.

      Mr. H. L. Yount, prosecuting attorney, and Mr. A. C. Robeson, attorneys for defendant in error,
    cited and commented upon the following authorities:

      Linton v. Laycock, 33 Ohio St., 128; Knowlton v. Moore, 178 U. S., 41; State v. Guilbert, Aud., 70 Ohio St., 229; In re Bushnell Estate, 50 O. L. B., 87; State ex rel. Gelsthorpe v. Furnell, 39 L. R. A., 170 (20 Mont., 299); Ferry v. Campbell, 110 Ia., 290; Herriott v. Potter, 115 Ia., 648; Gilbertson v. Ballard, 101 N. W. Rep., 108; Carpenter, Exr. v. Commonwealth, 17 How., 456; Orr v. Gilman, 183 U. S., 278; In re McPherson, 104 N. Y., 306; Wallace v. Myers, 38 F., 184; State v. Ferris, 53 Ohio St., 314; Plumber v. Coler, 178 U. S., 115; Commonwealth’s

      Appeal, 127 Pa., 435; In re Short, 16 Pa., 63; Jackson v. Tailor, 88 N. Y. S., 1104; In re Estate of Prife, 136 N. Y., 347; People v. McCormick, 208 Ill., 437; In re Line, 155 Pa., 378; Bailey v. Drane, 96 Tenn., 16; In re Sloane, 154 N. Y., 109; In re Davis, 149 N. Y., 539; Jenney et al. v. Gray, 5 Ohio St., 48; Quigley v. Graham, 18 Ohio St., 42; Gilpin v. Williams, 25 Ohio St., 283; Kent v. Bentley, 6 Circ. Dec., 457; 10 C. C. R., 132; Caruthers v. Tarvin, 8 Dec. Re., 344; 7 W. L. B., 127; In re Delano, 176 N. Y., 492; In re Will of Vassar, 127 N. Y., 1; 97 O. L., 398.
   Summers, J.

The act to be construed was passed and approved April 25, 1904. It is entitled “An act to impose a tax upon the right to succeed to, or inherit, property” (97 O. L., 398). The act provides that the right to succeed to or inherit property which shall pass by will or by the inheritance laws of this state, or by deed, grant, sale or gift made or intended to take effect in possession or enjoyment after the death of the grantor, to the use of certain persons, or to any one in trust for such persons, shall be taxed as follows, to-wit: “Upon the value of the property exceeding three thousand dollars, succeeded to or inherited by any person, two per centum on such excess ; such tax to be borne by the person so succeeding to or inheriting the same in the manner herein provided. ’ ’

It is contended for the State that the interest passing by the will did not vest until after this act took effect, that until after the death of the widow neither the persons who would take nor the value of the interests could be ascertained, that the succession is not complete until the property is distributed, and that the succession is subject to the tax in force at the time of distribution.

The contention on the part of the executors is, that the interests vested at the death of the testator prior to the time that the act took effect, that the act. is not retroactive and therefore does not apply to rights that vested prior to the time it took effect.

Man’s dominion over his property ceases at his death, wherefore in all civilized countries the state provides how he may devolve it to others at his death and what shall become of it when he dies intestate.

The right so given either to devolve or to succeed to property is subject to the power of the state to tax, and generally is taxed. To use a homely simile it may be likened to the taking of toll from the grist that is sent to the mill, and aside from considerations of convenience it is immaterial whether the whole toll be taken as soon as the grist is received or proportionately as the flour is delivered. Generally, but not necessarily, the amount of the tax is measured by the value of the property. Our state, however, deeming it to the interest of the public not to make the tax oppressive has imposed jt upon the right of succession, and has exempted to three thousand dollars the value of the property in determining the amount of the tax.

But while the tax has been likened to the toll that is taken for the grinding of a grist, it must not be overlooked that it is the right to devolve or to succeed to property that is taxed, and that an additional exaction might be made as is done in some states for the service in passing the property, sometimes, as in England, called probate duties. So that the right of the state to and the liability of the successor for the tax generally arises upon the death of the owner of the property and is not dependent upon the right of succession ripening into possession or enjoyment, and the fact, if it be a fact, that the state may have, by measuring the amount of the tax by the value of the property succeeded to, made it impracticable or difficult to collect the tax until the right has ripened into possession, does not change the subject of the tax, but merely postpones its collection.

Counsel are agreed that the law should be given a prospective and not a retroactive effect, and if we accept as correct their test that the liability of these interests to the tax depends upon whether they are vested or contingent at the date the act took effect, we probably should conclude that they are vested though some of them were defeasible. For it is the rule no longer that where there is no gift but by a direction to pay, or divide and pay, at a future time, or on a given event, the vesting will be postponed until after that time has arrived, or that event has happened, but the test is the reason for the postponement, and if that was that the property had- been given to another for life the bequest vested. But the occasion of the tax being the devolution of property it ought to attach to such interests only as arise by reason of a death subsequent to the act, and such clearly appears to have been the legislative intent, for not only is the act not expressly made retroactive but its words are all prospective. The right to inherit shall be taxed. The tax shall become due and payable immediately upon the death of the decedent, and shall at once become a lien upon said property, and if not paid within one year after the death of the decedent interest at six -per pent is to be collected, qnd if paid prior to the expiration of one year a discount of one per cent per month, shall be allowed, and all administrators, executors and trustees shall be liable for all such taxes. Other provisions that would be difficult of application if the act is-retroactive are contained in it, so that it would be unreasonable to conclude that the legislature, in the absence of any suitable provisions for a retroactive operation of the act, intended it so to operate. The conclusion reached finds more or less support in the following cases: Matter of Seaman, 147 N. Y., 69; Matter of Pell, 171 N. Y., 48; Matter of Vanderbilt, 172 N. Y., 69; Matter of Delano, 176 N. Y., 486.

The judgments below are reversed and judgment is entered for the plaintiffs in error in accordance with this opinion.

Reversed.

Davis, C. J., Si-iauck, Price, Crew and Spear, JJ., concur.


source: Caselaw Access Project

author: Crew, J.

license: Public Domain

text:
    The State of Ohio ex rel. Ellis, Attorney General, v. The Union Terminal Railroad Company.

      Railroad company may construct railroad — With doth terminals in same city — Authority of section 3270, Revised Statutes.

    A railroad company duly incorporated, is authorized under the provisions of section 3270, Revised Statutes, to construct, maintain and operate a railroad having both of its terminal points wholly within the same city.
    (No. 9448
    Decided May 23, 1905.)
    Error to the Circuit Court of Franklin county.
    The plaintiff in error as relator instituted a proceeding in quo warranto in the circuit court of Franklin county against the defendant in error, The Union Terminal Railroad Company, for the purpose of testing the light of said company in and to certain privileges and franchises claimed and about to be exercised by it in the construction of a steam railroad in the city of Cincinnati, the termini and the entire line of said proposed railroad lying and being wholly within the corporate limits of said city. In said proceeding the defendant, The Union Terminal Railroad Company, filed the following answer to relator’s petition:
    “Defendant, for answer to the petition herein, admits that the relator is the duly elected, qualified and acting attorney general of the state of Ohio, and that the defendant is a corporation formed under the laws of the state of Ohio, and doing business in such state, with its principal office and place of business located in the city of Cincinnati, Hamilton county, Ohio; that in its applications made to, and filed with, the secretary of state of the state of Ohio for its articles of incorporation, the said corporation by its incorporators represented to the said secretary of state as alleged in the petition, and that the secretary of state issued a certificate or articles of incorporation, and that the same were recorded in the office of the secretary of state, as set forth in the petition.
    “Defendant further says that it does claim to have and possess the rights, privileges and powers conferred upon railroad companies by the revised statutes and laws of the state of Ohio, and it claims such powers, rights and privileges, under and by virtue of its articles of incorporation herein and in the petition set forth; and that it does particularly claim the right, privilege and power to construct, maintain and operate, a steam railroad with a single or double track, with branches, side tracks, turnouts thereto and in connection therewith, together with depots, round houses, machine shops, water tanks, telegraph lines and other, appliances used and operated by steam railroads, with its termini both within the corporate limits of the city of Cincinnati, in Hamilton county; and that said defendant does not by its purposes, as expressed in its articles of incorporation, or by any other authority, claim the right to, nor does it intend to extend its line of railroad, or any part thereof, to any point or place beyond the corporate limits of said city of Cincinnati.
    “Defendant further says that it does claim by virtue of the power conferred upon it by its articles of incorporation, and the statutes and laws of this state, the right to construct, maintain and operate a steam railroad with termini as hereinbefore described for the purpose of transferring freight, passenger, express and mail cars, and the transportation of freight of all kinds in cars between the various lines of railroad now dr hereafter entering and doing business in the said city of Cincinnati, and of receiving from said lines of railroad shipments of freight for the public in general; but this defendant says that it does not claim that by its said articles of incorporation, it is authorized to, nor does it propose to limit its operation to such transfer of freight, but, on the contrary, says that it expects to, and will, wherever on its line or lines freight or passengers may be offered to it, receive and transport the same as a common carrier for the public. Defendant says that the service proposed to be rendered by it in transferring freight, passengers, express and mail cars, and freight of all kinds, between railroads, as hereinbefore set forth, would he of assistance to such other railroads,. and it further says that said services, together with all other services rendered by it, would be public services and would be for the benefit, and to the advantage of the public generally.
    ■ “Defendant says that it admits that, in order to carry out the powers and purposes claimed by it, and for the purpose of constructing and maintaining its line of railroad with branches, side tracks, turnouts, depots, round houses, machine shops, water tanks, telegraph lines, and other necessary appliances, it is vested with the right and power to take and appropriate to its own use property of the citizens of said city of Cincinnati by the exercise of the right of eminent domain, as conferred by the constitution and statutes of the state of Ohio upon railroad companies; and defendant admits that it is ábout to proceed to exercise said, right of eminent domain for the purposes above set forth.
    “Defendant says that it claims no other powers than those in this answer set forth, and that the powers so claimed by it are authorized by its articles of incorporation, and by the statutes, constitution and laws of the state of Ohio.
    “Wherefore, defendant having fully answered, asks to be hence dismissed with its costs.”
    To this answer the relator filed a general demurrer, which demurrer was overruled by the circuit court, and the relator not asking or desiring to plead further, the cause was submitted to the court upon the issues joined by the petition and answer. Whereupon the court, on the issues so joined, found for the defendant and dismissed the relator’s petition. This judgment of the circuit court in overruling the ■demurrer and' dismissing said petition iso here assigned by the relator as error.

      Mr. Wade H. Ellis, attorney general; Mr. Smith W. Bennett; Mr. O. E. Harrison; Mr. Morison B. Waite and Messrs. Dempsey & Fridman, attorneys for plaintiff in error,
    cited and commented upon the following authorities:
    Railroad act of 1852 (50 O. L., 2741); Railroad Co. v. Sullivant et al., 5 Ohio St., 276; In re Pittsburg Transfer Railway Co., 1 Pa. Co. Ct. Rep., 411; People v. Cheeseman, 7 Colo., 376; Lewis on Eminent Domain, 231; Hatch v. Railroad Co., 18 Ohio St., 92; Hickok v. Hine, 23 Ohio St., 523; Railroad Co. v. Dayton, 23 Ohio St., 518; Stanley v. Davenport, 54 Ia., 468; Railroad Co. v. Blind Institute, 43 Ill., 303; S. & C. Statutes, 378, art. 29; Eichles v. Railroad Co., 78 Ind., 261; Railway Co. v. Memphis, 10 Wall., 38-51; Davis v. Mayor, 14 N. Y., 506; Coleman v. Railway, 38 N. Y., 201; People v. Kerr, 27 N. Y., 188; In re Niagara Falls Ry. Co., etc., 108 N. Y., 375; Railroad Co. v. Brainard, 9 N. Y., 100; People v. District Court, 11 Colo., 147; In re R. H. & L. Railroad Co., 110 N. Y., 119; Sholl v. Coal Co., 118 Ill., 427; Stack v. St. Louis, 85 Ill., 377; Edgewood Railroad Company’s Appeal, 79 Pa. St., 257; Electric Co. v. Simon, 20 Ore., 60; 10 L. R. A., 251; Kyle v. Railway Co., 4 L. R. A., 275; Railway Co. v. Iron Works, 31 W. Va., 710; Smith v. McDowell, 148 Ill., 51; LeClercq v. Gallipolis, 7 Ohio (pt. 1), 218; Stevenson v. Mayor, 20 Fed. Rep., 586; State v. Berdetta, 73 Ind., 185; St. Paul v. Railway Co., 63 Minn., 330; Smith v. City of Leavenworth, 58 Kan., 81; Mikesell v. Durkee, 34 Kan., 509; 27 Am. & Eng. Ency. Law, 518; Minnesota v. Union Depot Co., 42
      Minn., 142; Union Depot Co. v. Morton, 83 Mich., 265; Coosaw Mining Co. v. South Carolina, 144 U. S., 550; McCandless’ Appeal, 70 Pa. St., 210; Freight Co. v. Mayor, 4 Cold., 423; Angell & Ames on Corporations (10 ed.), 810; In re N. Y. & H. R. R. Co. v. Kip, 46 N. Y., 546; Mills Eminent Domain, 46; Railroad Co. v. Met. Gas L. Co., 63 N. Y., 326; Wood Railway Laws, 643; Rorer on Railroads, 298; Cooley Constitutional Limitations (4 ed.), 660; Bloodgood v. Railroad Co., 18 Wend., 59; Currier v. Railroad Co., 11 Ohio St., 228; Coal Co. v. Wigton, 19 Ohio St., 560; 69 O. L., 163; 3 Sayler, 2751; State v. Liffring, 61 Ohio St., 39; Baldwin on American Railway Law; Act of April 10, 1861 (58 O. L., 66); Act of April 12, 1876 (73 O L., 229); Act of Feb. 11, 1848 (S. & C., 271); Act of May 1, 1852; Act of March 8, 1865; Act of April 29, 1872 (69 O. L., 203); 23 N. J. Eq.; 29 N. J. Eq.; secs. 3237, 3270, 3271, 3324, 3341, 3366, 3437, 3538, 3445-1, 3446, 3447, 3472 and 4475, Rev. Stat.

      Mr. Ellis G. Kinkead; Mr. Byron M. Clen Dening and Messrs. Galvin & Galvin, attorneys for defendant in error,
    cited and commented upon the following authorities:

      Commissioners v. Railroad Co., 29 N. J. Eq., 566; Railway Co. et al. v. Railroad Co., 32 N. J. Eq., 755; Railroad Co. v. State, 53 N. J. Law, 217; Ferry Co. v. Railroad Co., 107 Ill., 450; Railroad Co. v. Railroad Co., 41 Fed. Rep., 293; Railroad Co. v. Railroad Co., 109 Ga., 827; Ligare v. Railroad Co., 166 Ill., 249; Railroad Co. v. Railroad Co., 112 Ill., 589; Moses v. Railroad Co., 21 Ill., 516; Bridge Co. v. Railroad Co., 6 Paige (N. Y.), 554; Railroad Co. v. City of Brownsville, 45 Tex., 88; McCartney v. Railroad

      Co., 112 Ill., 611; Railway Co. v. Depot Co., 125 Mo., 82; 28 S. W. Rep., 483; Mason v. Railroad Co., 35 Barb. (N. Y.), 373; Railroad v. Adams, 40 Term., 596; Pittsburg Transfer Railroad Co., 1 Pa. Co. Ct. Rep., 411; In re Rapid Transit Co., 103 N. Y., 251; Railroad Co. v. Sullivant, 5 Ohio St., 276; People v. Cheeseman, 7 Colo., 376; 27 Am. & Eng. Ency. Law, 518; Collier v. Railway Co., 83 S. W. Rep., 155; Mills on Eminent Domain, see. 11; Stewart v. Railway Co. (Minn.), 68 N. W. Rep., 208; 33 L. R. A., 427; Bouvier’s Law Dictionary; Callender v. Railroad Co., 11 Ohio St., 516; Act of 1872 (69 O. L., 163); State v. Liffring, 61 Ohio, 39; Act of Feb. 11, 1848; secs. 23, 3237, 3270, 3271 and 3446, Rev. Stat.
   Crew, J.

In the petition filed by relator in this

case in the circuit court of Franklin county, it is alleged that the defendant, The Union Terminal Railroad Company, is a corporation formed under the laws of the state of Ohio and doing business in such state, with its principal office and place of business located in the city of Cincinnati, Hamilton county, Ohio. That in its application made to and filed with the secretary of state of the state of Ohio for its articles of incorporation, said corporation by its incorporators represented to the secretary of state that it was formed:

“For the purpose of constructing or acquiring, maintaining, .operating and owning a single or double track railroad, with all the necessary branches, side tracks, turnouts, depots, round houses, machine shops, water tanks, telegraph lines and other necessary appliances within the corporate limits of the city of Cincinnati, Hamilton county, Ohio, for the transportation of freight, passenger and express cars, and as a common carrier of freights of all kinds by means of the transfer of cars between all the various lines of railroads, now or hereafter entering and doing business' in the city of Cincinnati; also for the purpose of receiving from, delivering to, and forwarding over, said various lines of railroads shipments of freight for the public in general’ and to provide the yards and depots necessary for the storage, accommodation, and transfer of freight, express and passenger traffic, to, from and between all said railroads; the said railroad shall be constructed and operated between the points, to-wit, commencing in the western part- of the said city of Cincinnati, at or near the intersection of Jeptha and Budd streets, if said streets were extended to meet, and extending in an easterly and northerly direction throughout such streets, highways, and private lands, in the central portion of said city of Cincinnati, as may be the most eligible and suitable for a proper and convenient connection between the various - railroads now or hereáfter entering and doing business in the said city of Cincinnati, having reference to grades, the public use of streets, and the location of the shippers patronizing said railroads and this corporation, to a point in the eastern part of said city of Cincinnati, at or near the intersection of Court street and Eggleston avenue.”

That the secretary of state thereupon, on the first day of July, 1904, issued to the said defendant a certificate of articles of incorporation and therein recited the purposes above set forth as those for which the said defendant corporation was formed; and the same was duly recorded in the office of the secretary of state, as by the statutes of. Ohio required. It is further averred that said Terminal Company by virtue of the powers conferred upon it by its said articles of incorporation claims to have and possess, and is about to exercise, the rights, privileges and powers conferred upon railroad companies created and organized under the laws of Ohio. In the answer of the Union.Terminal Railroad Company these several averments are expressly admitted, so that the sole issue presented by the pleadings in this case, and the only question now before this court for determination is, Is the defendant company, organized for purposes as shown and stated in its articles of incorporation, a railroad company, and as such entitled to have and exercise all the rights, privileges and powers conferred upon railroad companies by Part Second, Title II, Chapter 2, of the Revised Statutes of Ohio ? Considering the purpose of the incorporation of said Company, as set forth in its articles of incorporation, it must, we think, be conceded, that the answer to this question must be found in the construction proper to be given to the language of section 3270, Revised Statutes, which section is a part of the aforesaid Title II and Chapter 2, and reads as follows: “A railroad company now existing or hereafter created may maintain and operate, or construct, maintain and operate a railroad, with a single or double track, with such side tracks, turnouts, offices, depots, round houses, machine shops, water tanks, telegraph lines, and other necessary appliances as it deems necessary, between the points named in the articles of incorporation, commencing at or within, and extending to or into any city, village, town, or place named as a terminus of its road.” It is the contention of counsel on behalf of relator in this case, that because of the provisions of this section no corporation formed under and in pursuance of the railroad incorporation laws of this state is, or can he, authorized to construct, maintain and operate a railroad having both of its termini within the limits of the same city, village or town. This contention is rested upon the language found in the concluding paragraph of said section 3270, which authorizes a railroad company to construct, maintain, and operate a railroad between the points named in the articles of incorporation, “commencing at or within, and extending to or into any city, village, town, or place named as a terminus of its road.” It is insisted here that the meaning of the language last above quoted is, that each terminus must be at or within a different city, village, town or place, and that the requirement is that the road shall commence at or within one city, village, town or place, and extend to or into another city, village, town or place, and it is said in argument that: “it was the intention always of the legislature to have cities,” villages, towns and inhabited places used as termini, and even places of transition, but never the intention of the legislature that the same town, city, village or inhabited place should contain within itself the two termini.” Without attempting to follow counsel in detail through their review of the historical development of the Ohio railroad laws governing the subject matter now under consideration and leading up to the enactment of section 3270, in its present form, we think it enough to say that after a careful consideration of the same, we find nothing in the facts presented or the authorities cited that would seem to us to either require or warrant the restrictive interpretation or construction of this section for which counsel for plaintiff in error contend. This section in terms expressly authorizes the construction of a road by a railroad company “between the points named in the articles of incorporation. ’ ’ The points so named constitute the termini, and within the terms of the statute, may be at or within any city, village, town, or place. While this section, by the language employed, clearly evinces a legislative intent to require that definite termini be named in the articles of incorporation, that the termini named shall be points, and that these points shall be at or within a city, village, town, or place certainly designated, yet there is, in the language employed, no suggestion of any legislative design or purpose that the points named as the termini may not be within the same city, village, town, or place; except it be found in the phrase “commencing -at or within and extending to or into any city, village, town, or place named as a terminus of its road.” This language may not, we think, properly be construed as imposing a limitation or restriction upon the railroad company .in the matter of the selection and designation of the termini of its road; such is not its office or necessary effect, nor was it so used and intended by the legislature. But rather it was intended thereby only to give expression to the legislative intent, and to require, that the railroad to be constructed under this section should not only be constructed, or lie, between the points named in the articles of incorporation, but that it should actually commence at one, and extend to the other of the designated termini. This section' of the statute, prior to the commencement of the present proceeding has not so far as we are advised received a judicial construction in this state. W,e find, however, that in other states similar statutes, with like provisions, have been reviewed and have received construction by the courts of last resort. In New Jersey, a statute of that state containing almost the identical language found in section 3270 of the Ohio statutes, was construed and interpreted by the court of chancery of that state in the case of the Long Branch Commissioners v. The West End Railroad Company, 29 N. J. Eq., 566. The statute under consideration in that case, so far as its provisions are pertinent here, was as follows:

“It shall be lawful for every corporation formed under this act * * * to construct, maintain and operate a railroad with a single or double track, with such side tracks, turnouts, offices and depots, as they may deem necessary between the points named in the articles of association, commencing at or within and extending to or into any town, city or village named as the place of the termini of such road.” * * #

We quote the following from the opinion of the vice chancellor:

“The defendants are a corporation formed under the general railroad law. They acquired corporate powers for the purpose of constructing a railroad from a point in the line of the Long Branch & Sea Shore Railroad to a point in the line of the New York & Long Branch Railroad, and thus connect the two roads. The proposed road is about two miles long and both its terminal points are within the territorial limits of the town of Long Branch. The complainants seek to enjoin the construction of the proposed road, first, because, they say, no corporation formed under the general railroad law is authorized to construct a road where both of its termini are within the limits of the same town, city or village; and, second, because this road as now located, will occupy certain public highways to an unnecessary or unreasonable extent. ’ ’

Considering the first ground of objection, the court says, on page 567:

“The language which furnishes the basis of the first ground taken by the complainants, is found in the eleventh section (Rev., p. 927). That section authorizes a corporation formed under the act to construct a railroad between the points named in its articles of association, commencing at or within, and extending to or into, any town, city or village named as the places of the termini of such road. It is contended that these words plainly mean that each-terminus must be at or within a different town, city or village; in other words, that the road must commence at or within one town, city or village and extend to or into another town, city or village. The direction is in the disjunctive. The road may commence either at or within, and extend either to or into a town, city or village. A road commencing at a point in the western boundary of the city of Newark and extending to the city hall would be located strictly in accordance with the letter of this act. It would commence at a city and extend into a city. It is true, it would not.commence at one city and extend to or into another, but the law does not say that it shall, but simply that it shall commence at and extend into a city. I am unable to see a plain design in these words to restrict the termini of a road constructed under this act to two different towns, cities or villages.”

The same statute was again construed in The National Bocks Railway Go. et al. v. The Central Railroad Company of New Jersey, 32 N. J. Eq., 755.

In the opinion in this latter case Dixon, J., at page 766, says:

“Another objection raised is, that the general railroad law does not authorize the construction of a railroad which shall lie wholly within one city, as will the railway now enjoined. But upon this point we concur in the opposite views expressed, by the learned vice chancellor in Long Branch Commissioners v. West End Railroad, Co., 2 Stew. Eq., 566. If we remember the evil that called forth the statute, which was the incessant application to the legislature for special charters for all sorts of railroads, it will plainly appear to be our duty to construe it liberally with respect to the classes of railroads which may be built under it; and, as the vice chancellor shows, only a constrained and partial interpretation could lead to the conclusion of the complainants. We find no reason in the law to believe that the legislature had in mind to exclude this class of railways. ’ ’

We fully concur in the interpretation adopted by the court in the above cases, of the statute there under review. And we are of opinion that a like interpretation is required and should be given to section 3270, of the Ohio statute. In the present ease the articles of incorporation of the defendant in error, The Union Terminal Company, sufficiently show, we think, that it was incorporated for a public purpose, viz.:

For the transportation of freight, passenger and express cars, and as a common carrier of freights of all kinds by means of the transfer of cars between all the various lines of railroads, now or hereafter entering and doing business in the city of Cincinnati; also for the purpose of receiving from, delivering to, and forwarding over, said various lines of railroads shipments of freight for the public in general, and to provide the yards and depots necessary for the storage* accommodation, and transfer of freight, express and passenger traffic, to, from and between all said railroads.

And under and by virtue of its incorporation it became and is a railroad company, and as such is invested with the rights, privileges, and powers conferred upon railroad companies incorporated under the statutes of Ohio. The judgment of the circuit court in this case being in conformity with the views here expressed is

- Affirmed.

Davis, C. J., Shauck, Price, Summers and Spear, JJ., concur.


author: Price, J.

text:
    The Board of Education of Cincinnati v. Volk.

      Board of education not liable for damages — For negligence in-erecting school house, when — Section 2676, Revised Statutes, does not apply to school boards, when — Law of negligence and public corporations.

    1. A board of education is not liable in its corporate capacity for damages, where, in excavating on its own lots for the erection of a school building, it wrongfully and negligently carries the excavation below the statutory depth' of nine feet, thereby undermining and injuring the foundation and walls of a building of an adjoining owner.
    2. Section 2676, Revised Statutes, creating a liability against an “owner” or “possessor” of premises whereon such wrongful and unlawful excavation is made, does not apply to boards of education holding title to the lot or land being excavated, for school and school building purposes.
    (No. 8943
    Decided May 23, 1905.)
    Error to the Superior Court of Cincinnati.

      The defendant in error filed in the superior court his amended petition as follows:
    “Plaintiff, by leave of court, files this, his amended petition, and complains of the defendant, for that he is the owner in fee simple, and was for a long time prior to the happening of the injuries hereinafter complained of, to-wit, the premises with dwelling house situated thereon, and being on the west side of Orchard street (now called Steiner street) in the city of Cincinnati, county of Hamilton and state of Ohio, being the east half of lot number two (2), as designated on the plat of subdivision of Harry F. Sedam, as described in plat book No. 3, page 182, records of Hamilton county, Ohio.
    “Plaintiff says that on the--day of — — A. D. 18 — , the grade of said Orchard street was established by an ordinance passed by the council of said city of Cincinnati, and thereafter said street was improved and graded in accordance with said ordinance. That after said street was so improved, to wit*, during the year 18 — , the plaintiff erected on said lot at great cost a dwelling house, which same was constructed with reference to said grade of said street, and entirely in conformity thereto.
    “The defendant is a body corporate and politic under the laws of Ohio, and as such, is the owner in fee simple of the following described real estate situated on the west side of Orchard street (now Steiner street) and adjacent to the premises of plaintiff as hereinbefore described, and being lots 138, 139, 140 and 141 of subdivision of Harry P. Sedam’s estate as made in case No. 2957 of the probate court of Ohio.
    “Plaintiff says that long after he had erected the frame dwelling house upon the lot hereinbefore mentioned and described, the said defendant on or about the--day of February, A. D. 1892, proceeded to ■erect a school house upon the aforementioned premises owned by it, and commenced excavating upon ■said lots for the purpose of erecting a large school building thereupon.
    “Plaintiff says that said excavation was of such an extensive character and carried to a depth of more than forty feet below the established grade of said Orchard street, and wrongfully and unlawfully and in a careless and negligent manner, excavated to a depth below the foundation walls of plaintiff’s house and to a much greater depth than twelve feet below the established grade of said Orchard street, and negligently and carelessly caused the base of the hillside on said premises to be removed and cut away, thereby destroying the lateral and subjacent support to plaintiff’s premises upon which he had erected his said dwelling house, thereby causing the surface and loose strata of earth to remove, without shoring up or taking other reasonable precautions to support the house of plaintiff so as to prevent it from giving away on that occasion, and by reason of said neglect and said deep excavations in the earth near to the foundation of the house of this plaintiff so weakened the foundation and injured the building and destroyed the cistern connected with said dwelling house.
    “Plaintiff says that by reason of the wrongful, careless and negligent acts aforesaid of the defendant, the value of the plaintiff’s property has been diminished in the sum of three thousand dollars, and that he has been damaged by the carelessness, neglect and default of said defendant in the sum of three thousand dollars, for which sum he prays judgment with interest from the--day of October, A. D. 1893.”
    To this amended petition, the Board of Education filed the following demurrer:
    ‘ ‘ 1. The plaintiff has not legal capacity to sue this defendant.
    “2. The facts stated in the amended petition are not sufficient in law to constitute a cause of action against this defendant. ’ ’
    The court overruled the demurrer and the board answered, admitting it is a body corporate and politic under the laws of Ohio, and its ownership of the several lots as alleged in the amended petition. All of the other allegations of said petition are denied. On the issues thus made up, the parties proceeded to trial. The defendant board objected to the introduction of any evidence, on the ground “that the amended petition does not state facts sufficient in law to constitute a cause of action.”
    The objection was overruled and the case proceeded with the introduction of the testimony for each party. After arguments of counsel, the case was submitted to the jury under the charge of the court. A verdict for $550 was returned; a motion for new trial overruled, and judgment entered on the verdict.
    This judgment was affirmed at the general term of the superior court and error is prosecuted here to reverse both judgments.

      Mr. Charles J. Hunt; Mr. John V. Campbell and Mr. Albert H. Morrill, attorneys for plaintiff in error,
    cited and commented upon the following authorities:

      Finch v. Board of Education, 30 Ohio St., 37; State ex rel. v. Board of Public Works, 36 Ohio St., 409; Black on Interpretation of Laws, 119; Endlich on Interpretation of Statutes, sec. 161; Mississippi v. Joiner, 23 Miss., 500; Josselyn v. Stone, 28 Miss., 753; Raymond v. State, 54 Miss., 563; Rose v. Governor, 24 Tex., 496; Cole v. White Co., 32 Ark., 45; Maryland v. Milburn, 9 Gill (Md.), 105; State v. Kinne, 41 N. H., 238; People v. Herkimer, 4 Cow., 345; Commonwealth v. Johnson, 6 Pa. St., 136; Tiedeman on Municipal Corporations, sec. 339; Gibbons v. United States, 8 Wall., 269; Langford v. United States, 101 U. S., 341; Toledo v. Cone, 41 Ohio St., 149; Dillon on Corporations, sec. 22; Hamilton County v. Mighels, 7 Ohio St., 109; Hill v. Boston, 122 Mass., 344, 345; Dargan v. Mobile, 31 Ala., 469; Barbour County v. Brunson, 36 Ala., 362; Askew v. Hale County, 54 Ala., 639; Greene Co. v. Eubanks, 80 Ala., 204; Lee Co. v. Yarbrough, 85 Ala., 590; Granger v. Pulaski County, 26 Ark., 37; School District v. Williams, 38 Ark., 454; Huffman v. San Joaquin, 21 Cal., 426; Croswell v. Sonoma, 25 Cal., 313; Winbigler v. Los Angeles, 45 Cal., 36; Tranter v. Sacramento, 61 Cal., 271; Board v. Bish, 33 Pac. Rep., 184; Jewett v. New Haven, 38 Conn., 368; Torbush v. Norwich, 38 Conn., 225; Mead v. New Haven, 40 Conn., 72; Chidsey v. Canton, 17 Conn., 475; Ward v. Hartford Co., 12 Conn., 404; Carter v. Wilds, 8 Houst., 14; Grumbine v. Mayor, 2 McAr., 578; McElroy v. Albany, 65 Ga., 387; Bibb County v. Dorsey, 15 S. E. Rep., 647; Governor ex rel. v. Justices of Clark County, 19 Ga., 97; Seales v. Chattahoochee County, 41 Ga., 225; Wilson v. Macon, 88 Ga., 455; Kincaid v. Hardin County, 53 Ia., 430; Ogg v. Lansing, 35 Ia., 495; Colwell v. Boone, 51 Ia., 687; Packard v. Volts et al., 94 Ia., 277; Dashner v. Mills County, 88 Ia., 401; Bindley v. Polk County, 84 Ia., 308; Robinson v. Evansville, 87 Ind., 334; Abbett v. Johnson County, 114 Ind., 61; Vigo County v. Daily, 132 Ind., 73; White v. Sullivan County, 129 Ind., 396; Summers v. Commissioners, 103 Ind., 262; Wilcox v. Chicago, 107 Ill., 334; White v. Bond Co., 58 Ill., 297; Odell (Town) v. Schroeder, 58 Ill., 353; Elmore v. Commissioners, 135 Ill., 269; Greenwood v. Louisville, 13 Bush, 226; Pollock v. Louisville, 13 Bush, 221; Prather v. Lexington, 13 B. Mon., 559; Downing v. Mason County, 87 Ky., 208; Peters v. Lindsborg, 40 Kan., 654; LaClef v. Concordia, 21 Pac. Rep., 272; Marion County v. Riggs, 24 Kan., 255; Eikenberry v. Township, 22 Kan. 556; Coffey Co. (Comrs.) v. Venard, 10 Kan., 95; Stewart v. New Orleans, 9 La. An., 461; Lewis v. City of New Orleans, 12 La. An., 190; Bennett v. City of New Orleans, 14 La. An., 120; New Orleans v. Kerr, 50 La. An., 413; Sherman v. Vermillion Parish, 51 La. An., 880; Brown v. Vinalhaven, 65 Me., 402; Mitchell v. Rockland, 52 Me., 118; Cobb v. Portland, 55 Me., 381; Lynde v. Rockland, 66 Me., 309; Burrill v. Augusta, 78 Me., 118; Bulger v. Eden, 82 Me., 352; Goddard v. Harpswell, 84 Me., 499; Reardon v. St. Louis County, 36 Mo., 555; Murtaugh v. St. Louis, 44 Mo., 479; Rowland v. Gallatin, 75 Mo., 134; Clark v. Adair County, 79 Mo., 536; Cunningham y. Pi. Louis, 96 Mo., 53; Ulrich v. St. Louis, 112 Mo., 138; Bryant v. St. Paul, 33 Minn., 289; Grube v. St. Paul, 34 Minn., 402; Snider v. St. Paul, 51 Minn., 466; Miller v. Minneapolis, 75 Minn., 131; Barney v. Lowell, 98 Mass., 570; Tindley v. Salem, 137 Mass., 171; Fisher v. Boston, 104 Mass., 87; Howland v. Maynard, 34 N. E. Rep., 515; McCarthy v. Boston, 135 Mass., 197; Sullivan v. Holyoke, 135 Mass., 273; Detroit v. Blackeby, 21 Mich., 84; Larkin v. Saginaw County,
      11 Mich., 88; Commissioners v. Martin, 4 Mich., 557; Detroit v. Beckman, 34 Mich., 125; Sutton v. Board, 41 Miss., 236; Brabham v. Hinds County, 54 Miss., 363; Nugent v. Commissioners, 58 Miss., 197; White v. Chowan County, 90 N. C., 437; Clodfelter v. State, 86 N. C., 51; Threadgill v. Anson Co., 99 N. C., 352; Maxmilian v. Mayor, 62 N. Y., 160; Ham v. Mayor, 70 N. Y., 459; N. Y., etc., Co. v. Brooklyn; 71 N. Y., 580; Lewis v. State, 96 N. Y., 71; Sussex County v. Strader, 18 N. J. Law, 108; Cooley v. Freeholders, 27 N. J. Law, 415; Eastman v. Meredith, 36 N. H., 284; Griffin v. Sanbornton, 44 N. H., 246; Edgerly v. Concord, 62 N. H., 8; Wehn v. Gage County, 5 Neb., 494; Woods v. Colfax County, 10 Neb., 552; Morin v. Multnomah County, 22 Pac. Rep., 490; Lehigh County v. Hoffart, 19 N. W. C. (Pa.), 363; O’Rourke v. Sioux Falls, 54 N. W. Rep., 1044; Hill v. City of Charleston, 2 Hill, 571; Hill v. Laurens Co., 13 S. W. Rep., 318; Young v. Charleston, 20 S. C., 116; McKenzie v. Chovin, 1 McMull., 222; Coleman v. Chester, 14 S. C., 286; Black v. Columbia, 19 S. C., 412; Navasota v. Pearce, 46 Tex., 525; Baxter v. Winooski, 22 Vt., 114; Richmond v. Long, 17 Gratt., 375; Fry v. Albermarle County, 9 S. E. Rep., 1004; Smith v. Board of Carlton County, 46 Fed. Rep., 340; Clark v. Lincoln County, 25 Am. & Eng. Corp. Cas., 211; Overholser v. National Home, 68 Ohio St., 236; secs. 3971, 3987 and 3990, Rev. Stat.

      Messrs. Shay & Cogan, attorneys for defendant in error,
    cited and commented upon the following authorities:

      Railroad Co. v. Morey, 47 Ohio St., 207; Burkhardt v. Hanley, 23 Ohio St., 558; Board of Educa

      Mon v. Milligan, 51 Ohio St., 115; Shearman & Redfield on Negligence, par. 258; Finch v. Board of Education, 30 Ohio St., 37; Keating v. Cincinnati, 38 Ohio St., 141; City of Columbus v. Jaeger, 55 Ohio St., 644; Cohen v. Cleveland, 43 Ohio St., 193; Railroad Co. v. Pfau, 8 Dec. Re., 691; 9 W. L. B., 201; Birtwhistle v. Cincinnati, 8 Dec. Re., 453; 8 W. L. B., 26; Cummings v. Toledo, 5 Circ. Dec., 595; 12 C. C. R., 653; sec. 19, art. 1, Bill of Rights; secs. 2575, 2576, 2676, 2677, 2971 and 3987, Rev. Stat.
   Price, J.

The controversy between the parties was heard at the general term of the superior court, upon a petition in error and the bill of exceptions taken at the special term, but this bill is not a part of the printed record in this court, and the plaintiff in error here does not rely on any question of fact or law which may appear in it.

Among the errors assigned in the general term, are: ' “1. Said court in special term erred in overruling the demurrer of the defendant below to the petition of the plaintiff below to which exception was taken at the time by said defendant below. 3. Said trial court erred in overruling the motion of the defendant to exclude the evidence of the plaintiff on the ground that his petition did not state facts sufficient in law to constitute a cause of action against the defendant below. ’ ’

The judgment of the special term was affirmed on all points raised, including the above, and the plaintiff in error assigns in this court as errors complained of,— (1) “Said judgment is contrary to law; (2) The amended petition of the plaintiff filed in the special term of the Superior Court does not state facts sufficient in law to constitute a cause of action against the Board of Education of the School District of Cincinnati.”

Hence, it appears that the sufficiency of the amended petition was tested in each of the lower courts, and that is the only question presented in the record before us.

The plaintiff below alleges in substance, that he owns certain premises in the city of Cincinnati on the west side of Orchard street— (now called Steiner street) —the grade of which has been established by an ordinance of the city and that the street had been improved in accordance with said ordinance; that after the street was so improved, at great expense, he constructed on his lot a dwelling house with reference and in conformity to the grade established for the street; that after said house was erected in the year 1892, the Board of Education proceeded to erect a school house on the several lots owned by it which are adjacent to the plaintiff’s premises; that in making the excavation, the board wrongfully and unlawfully carried its depth below the grade of the street more than forty feet, and below the foundation walls of his house more than twelve feet, and negligently and carelessly caused the base of the hillside on said premises to be removed and cut away, thereby destroying the lateral and subjacent support to plaintiff’s premises, thereby causing the surface and loose strata of earth to remove, without shoring up or taking other reasonable precautions to support plaintiff’s house so as to prevent it from giving away, and that by reason of that neglect the foundation of his house was weakened and injured and the cistern connected with his house was destroyed. It is alleged “that by reason of the wrongful, careless and negligent acts aforesaid of the defendant, the value of the plaintiff’s property has been diminished in the sum of three thousand, dollars * *

The averments of this pleading make a clear case of tort, which,consists of the unlawful and wrongful acts of the Board of Education and of its negligence, want of care and precaution. The violation of hi.s rights is charged to consist in the unlawful and wrongful acts, negligence and want of care on the part of the board. Therefore we are to determine, whether, for such tort, the board can be held to respond in daniages.

It is sued and described as a body corporate and politic under the laws of Ohio. It is not a corporation for profit, nor does it own any property, except in a trust capacity and for the purposes defined by the statute creating it. Its purposes, and powers are likewise, defined and limited, and it can only own, manage or dispose of its property, for the uses and in the manner prescribed by law. Its general powers are conferred by section 3971, Revised Statutes, and this section is made applicable to all boards of education within the state. Such boards are “declared to be bodies politic and corporate, and, as such, capable of suing and being sued, contracting and being contracted with, acquiring, holding, possessing and disposing of property, both real and personal, and taking and holding in trust for the use and benefit of such districts, any grant or devise of land, and any donation or bequest of money or other personal property, and of exercising such other powers, and having such other privileges as are conferred by this title * * The other parts of the title, measure the duties and powers of the board in all respects, so much so, that nothing seems left to inference or implication. It may contract and be contracted with, but a contract not authorized by statute is ultra vires and can not be enforced, although the board is capable of suing and being sued. It has no power to bind the school district which it represents on contracts not authorized by íaw, and it has been so held repeatedly. If it cannot bind the district by such contracts, how can it be bound for unauthorized torts of the board?

It is true that boards of education are authorized, when necessary, to purchase grounds for school and school house purposes and to erect and maintain school houses; to enter into necessary contracts for the erection of proper school buildings and the purchase of school supplies, yet the method of making such contracts is prescribed by statute, so that it is the general assembly speaking through the board as to what may be done and how it must be done. The board is not authorized to commit a tort, — to be careless or negligent, and when it commits a wrong or tort, it does not in that respect represent the district,' and for its negligence or tort in any form, the board cannot make the district liable. It is without power to levy taxes except for school and school house purposes, and therefore no levy could be legally made to pay a judgment against it, if one should be recovered for its torts. The property belonging to the board and to which it holds title in its trust capacity cannot be seized or held to satisfy a judgment for damages, for it is declared in section 3973, Revised Statutes, that “all property, real or personal, vested in any board of education, shall be exempt from tax and from sale on execution, or other writ or order in the nature of an execution.”

Legislative control and limitation is further shown in section 3958, Revised Statutes, which provides that “each board of education shall annually, at a regular or special meeting to be held between the third Monday in April and the first day of June, determine by estimate, as nearly as practicable, the entire amount of money necessary to be levied as a contingent fund for the continuance of the school'or schools of the district, after the state funds are exhausted, to purchase sites for school houses, to erect, purchase, lease, repair and furnish school houses, and build additions thereto, and for other school expenses.”

It is therefore very plain that, neither by a levy of tax, nor levy of execution can the property of the district or its citizens be reached to satisfy a judgment for damages against the board of education, and it would follow that such a judgment would be a dead and barren letter. Surely the law does not contemplate a right of action in the plaintiff without any remedy to enforce it.

Moreover while boards of education are “bodies politic and corporate,” as declared by statute, yet like counties, they are but quasi corporations and differ materially from municipal corporations as they are organized in this state. School districts are organized to promote education and carry into effect the provision of section 2 of article 6 of our state constitution. It says “the general assembly shall make such provisions by taxation, or otherwise, as with the income arising from the school trust fund, will secure a thorough and efficient system of common schools throughout the state; * * *.” Boards of education for these school districts, are arms or agencies of the state for the promotion of education throughout the state, while “municipal corporations are called into existence, either at the direct solicitation or by the free consent of the people who compose them.” As said in Commissioners of Hamilton County v. Mighels, 7 Ohio St., 119, “a municipal corporation proper is created mainly for the interest, advantage and convenience of the locality and its people; a county organization is created almost exclusively with a view to the policy of the state at large for purposes of political organization and civil administration in matters of finance, of education, of provision for the poor, of military organization, of the means of travel and transport, and especially for the general administration of justice. With scarcely an exception all the powers and functions of the county organization have a direct and exclusive reference to the general policy of the state, 'and are in fact, but a branch of the general administration of that policy. ’ ’

In that case suit was brought against the commissioners for damages resulting from falling into an unguarded opening in the court house while the plaintiff was making his way from the court room, where he had been in attendance under process of the court. Negligence of the commissioners was charged in causing the opening to be there and remaining unprotected.

At that time the statute relating to county commissioners providéd ‘ ‘ that the board of commissioners in the several counties of the state, shall be capable of suing and being sued, pleading and being impleaded, in any court of judicature within the state. * * *.” The court there held that the board of commissioners of a county are not liable, in their quasi corporate capacity, either by statute or at common law, to an action for damages for injury resulting to a party by tbeir negligence in the discharge of their official duties. This was the law as to the liability of boards of county commissioners, until section 845, Revised Statutes, was amended and enlarged April 13, 1894 (91 O. L., 142), and we must notice the new language: — “and any such board.of county commissioners shall be liable in their official capacity for any damages received by reason of the negligence or carelessness of said commissioners in keeping any such road or bridge in proper repair. ’ Even this clause would not have aided the plaintiff in Commissioners v. Mighels, supra, if it had been in the statute when he was injured. The amendment seems a very sparing one, and makes the commissioners liable officially only for negligence as to roads and bridges, and no further.

There is no statute whereby a board of education can be made liable for damages for its negligence or want of care.

In Finch v. The Board of Education of Toledo, 30 Ohio St., 37, this court held that, “a board of education is not liable in its corporate capacity for damages for an injury resulting to a pupil while attending a common school, from its negligence in the discharge of its official duty in the erection and maintenance of a common school building under its charge, in the absence of a statute creating a liability.” The opinion of the court in that case is a full discussion of the authorities, and the statutes, under which boards of education are organized and which confer their powers and regulate their conduct. The facts of that case presented a strong appeal to the court for a redress of a wrong done to a pupil through the negligence of the board, having its education in charge, but under the law no relief could be obtained against the board for want of a statute creating a liability.

There is no liability at common law. In the case last cited on page 47, this court says: “Having already concluded that defendant, as a quasi corporation, is a public agent employed in administering the common school system of this state, there is no principle of common law by which this action can be supported;” and refers to Commissioners v. Mighels, supra, as authority.

Again, on pages 48-9, the court says: “this defendant is but a quasi corporation of inferior grade, acting for the public as one of the state’s ministerial educational agencies, with power to levy taxes for school and school building purposes, and no other. It was a public school agent in. the city of Toledo in the same sense that a township board of education is a public school agent in a township.”

The scope of this doctrine was further discussed and illustrated in Overholser v. National Home for Disabled Soldiers, 68 Ohio St., 236. That is a recent case and we need not extend this opinion by quoting from it. It fully sustains our present position.

But it is urged that there is a statute which creates the liability in this case. It is not in the statutes creating boards of education, or prescribing their duties and limiting their powers, but it is section 2676, Revised Statutes. This section and the next following have origin in an act passed April 28, 1854, found in S. & 0. Statutes, p. 1538, as a part of the chapter for the organization of cities and incorporated villages.

And sections 2676 and 2677, supra, at the time of the injuries complained of, were a part of the municipal code.

Neither they nor their original were ever a part of the school law. The organization of school boards and school districts was prior in time, but that is not of so much importance as the fact that sections 2676-7 are a part and quite distinct from the legislation for the organization of public schools and school boards.

Section 2676, supra, provides; “If the owner or possessor of any lot or land, in any city or village, digs or causes to be dug, any cellar, pit, vault or excavation, to a greater depth than nine feet below the curb of the street on which such lot or land abuts, or, if there be no curb, below the surface of the adjoining lots, and by such excavation, causes any damage to any wall, house or other building upon the lots adjoining thereto, such owner or possessor shall be liable, in a civil action to the party injured, to the full amount of the damages aforesaid.”

It seems that this statute influenced the judgment of the lower court, — the general term. In a portion of its opinion brought to our attention, it is conceded that boards of education cannot be held in damages for personal injuries, because there is no statute authorizing such actions; “but in respect of liabilities incident to the ownership or control of lands” the above statute section (2676) applies, and creates the liability in this case.

In so holding, we think the court erred. If we are correct in what we have already said as to the powers conferred upon boards of education and the limitations on those powers, the error of the general term is apparent, for the section relied upon must be construed with reference to what we have found to he the established law in this state. The title to school grounds, and other school property, is by express terms of the statute, vested in the board of education. But for what purpose?

It is not the private property of the board, but it is authorized to hold it for the state for the promotion and advancement of the education of the youth of the commonwealth, and jits control is limited according to the will of the sovereign power. The board is a mere instrumentality of the state to accomplish its purpose in establishing and carrying forward a system of common schools throughout the state. ' As heretofore stated, these boards are but arms of the sovereign, the state, and the latter has neither authorized, nor permitted, by any law, its agents to be sued for tort to either person or property.

As the citizen cannot sue the state without its consent, expressed by legislation, its agents, the boards of education cannot be sued and made liable for damages without consent of the sovereign, expressed by pertinent legislation. Such legislation exists as to contracts made within the scope defined, but it does not extend to official misconduct, negligence or want of care.

Therefore the words “owner” and “possessor” must be understood and construed with reference to this doctrine, for the board of education, is the “pos-, sessor” in the same sense, that it is or may be the “owner.” This being true, section 2676, supra, does not apply to boards of education and the property committed to their care.

If it be said that in the light* of the foregoing, the injured party has no redress, we answer in the language of the authorities: “Even the state or the general government may be guilty of individual wrongs, for, while each is sovereign, it is a corporation also, and as such capable of doing wrongful acts. The difficulty here is with the remedy, not with the right. No sovereignty is subject to suits except with its own consent. But either this consent is given by general law, or some tribunal is established with power to hear all just claims, or, if neither of these is.done, the tort remains; and it is always to be presumed that the legislative authority will make the proper provision for redress when its attention is directed to the injury.” Cooley on Torts, marginal page 123; United States v. Peters, 5 Cranch, 139; Osborn v. Bank of U. S., 9 Wheat., 738; United States v. McLemore, 4 How., 286; Hill v. United States, 9 How., 386.

In conclusion upon the subject of remedy, we do not mean it to be understood that the alleged excessive and wrongful excavation, without protecting the plaintiff’s property, might not have been restrained in a proper and timely action for that purpose.

The judgments of the lower courts are reversed, the demurrer to the amended petition sustained and that petition is dismissed.

Judgment reversed.

Davis, C. J., Shauck, Crew, Summers and Spear, JJ.. concur.


author: Shauck:, J.

text:
    The State of Ohio ex rel. Guilbert, Auditor, v. Shumate, Auditor.

      Act of May 10, 1902 — Creating bureau of inspection of public offices — XTnder administration of state auditor — Is a valid law —Expense of operating such bureau may be paid by county funds — Constitutional law.

    The act of May 10, 1902, entitled “An act to create a bureau of inspection and supervision of public offices, and to establish a uniform system of public accounting, auditing and reporting, under the administration of the auditor of state” (95 O. L., 511), is not rendered unconstitutional by the ninth section thereof. providing that the expense of maintaining and operating the bureau of inspection shall be paid by the counties of the state out of the general county fund in proportion to their population, nor by the tenth section thereof providing that each taxing body be chargeable with the expense of auditing the accounts under its jurisdiction.
    (No. 9047
    Decided May 23, 1905.)
    In Mandamus.
    The relator shows that pursuant to the provisions of the act of May 10,1902, entitled “An act to create a bureau of inspection and supervision of public offices, and to establish a uniform system of public accounting, auditing and reporting, under the administration of the auditor of state” (95 O. L., 511), he has caused to be made the required examination of the financial affairs of Jackson county through the bureau of inspection and supervision of public offices and audited the accounts of the public offices of said county; that the necessary expense thereof amounted to $413.80, which he. charged against said county as the taxing body liable therefor and certified the same to the defendant and demanded his warrant therefor on the treasurer of said county, which the defendant refuses. The relator prays for a peremptory writ of mandamus compelling the defendant to draw said warrant. In his answer the defendant alleges as reasons for not complying with the alternative writ heretofore issued that there is no valid law imposing upon him the obligation to draw said warrant; that at the time of the alleged examination into the affairs of the offices of Jackson county there was no condition justifying such examination; that such expenses are not payable out of the funds of the county; that the act upon which the relator counts in his petition, particularly the ninth and tenth sections thereof, are unconstitutional. To this answer the attorney general interposes a demurrer on behalf of the relator.

      Mr. Wade H. Ellis, attorney general; Mr. Roscoe J. Mauck; Mr. W. H. Miller; Mr. George H. Jones and Mr. John M. Sheets, attorneys for relator,
    cited and commented upon the following authorities:

      Gas Light Co. v. State, 18 Ohio St., 237; Cooley’s Constitutional Limitations (7 ed.), 284; 2 Municipal Affairs, 197; Beach on Public Corporations, sec. 722; People v. Morris, 13 Wend., 337; Railroad Co. v. Commissioners, 1 Ohio St., 77; Washington County v. Railway Co., 12 Grill & Johns., 436; People v. Power, 25 Ill., 187; Board of Supervisors v. City of Springfield, 63 Ill., 66; People v. Burr, 13 Cal., 343; 7 Am. & Eng. Ency. Law, 967; State v. Commissioners, 28 Kan., 431; State ex rel. v. St. Louis, 34 Mo., 572; State v. Rubey, 77 Mo., 610; Commissioners v. Commissioners, 50 Md., 245; Commissioners v. Holtz, 41 Ohio St., 423; Morris v. People, 3 Denio, 381; State ex rel. v. Bates, 20 Ohio St., 362; art. 10, sec. 7, Const. of Ohio; art. 12, sec. 2, Const. of Ohio; Cooley’s Constitutional Limitations (6 ed.), 294; Cooley on Taxation, 1297; act of April 23, 1904 (97 O. L., 271); secs. 364, 365, 894, 1129 to 1131, inclusive, 2822 and 2966-4, Rev. Stat.

      Mr. E. E. Eubanks, prosecuting attorney; Mr. T. S. Hogan; Mr. John Harper and Mr. John Bobbins, attorneys for defendant,
    cited and commented upon the following authorities:
    Act of May 10, 1902 (95 O. L., 511); Act of April 25, 1904 (97 O. L., 271); art. 3, sec. 1, Const. of Ohio; State v. Brennan, 49 Ohio St., 33; art. 12, sec. 4, Const. of Ohio; art. 12, sec. 2, Const. of Ohio; Wasson et al. v. Commissioners, 49 Ohio St., 622; Ohio ex rel. v. Brinkman, 3 Circ. Dec., 710; 7 C. C. R., 165; Zanesville v. Richards, 5 Ohio St., 590; Hill v. Higdon, 5 Ohio St., 243; Ohio ex rel. v. Kreighbaum, 9 C. C. R., 619; 6 Circ. Dec. 654; Root v. Board of Education, 52 Ohio St., 589; 95 O. L., 640; 96 O. L., 10; 97 O. L., 22; Hubbard, Treas. v. Fitzsimmons, 57 Ohio St., 436; Monroe v. Collins, 17 Ohio St., 684; State ex rel. v. Perry, 5 Ohio St., 497; Cass v. Dillon, 2 Ohio St., 608; Commissioners v. Mighels, 7 Ohio St., 119; art. 10, sec. 1, Const. of Ohio; Commissioners v. Pargillis, 6 Circ. Dec., 717; 10 C. C. R., 376; Bernier v. Becker, 37 Ohio St., 72; Gager v. Prout, 48 Ohio St., 89; Gas Light & Coke Co. v. State, 18 Ohio St., 238; Marmet v. State, 45 Ohio St., 63; Lima v. Cemetery Association, 42 Ohio St., 128; People v. Common Council, 15 Am. Rep., 216; Railroad v. Commissioners, 1 Ohio St., 77; Washington Ave., 69 Pa. St., 352; 8 Am. Rep., 257; art. 10, sec. 7, Const. of Ohio; State ex rel. v. Commissioners, 35 Ohio St., 458; Holtz v. Commis

      sioners, 41 Ohio St., 423; art. 2, see. 27, Const. of Ohio; art. 15, sec. 8, Const. of Ohio.
   Shauck:, J.

The sole reliance of the relator is on the act of May 10, 1902, entitled “an act to create a bureau of inspection and supervision of public offices, and to establish a uniform system of public accounting, auditing and reporting, under the administration of- the auditor of state” (95 O. L., 511), and the main reliance of the defendant is upon the proposition that the pertinent provisions of the act, particularly those of the ninth and tenth sections, are unconstitutional. Indeed the pleading of the defendant though in form an answer is in substance a demurrer to the petition upon the ground that it does not allege a cause of action because of the invalidity of the statute upon which it counts. Since there appears to remain but little occasion for doubt respecting the meaning of the constitutional provisions which the defendant invokes, an analysis of the statute is of chief importance. It provides that there shall be in the department of the auditor of state a bureau of inspection and supervision, that the auditor shall be chief inspector and supervisor with authority to appoint deputies and a clerk; and it fixes their salaries and provides for the payment of their expenses. It requires the auditor to prescribe and install a system of accounting and reporting, embracing specified requirements, to be observed by all public officers and taxing bodies and for the publication of such reports with comparative statistics derived therefrom. It also provides upon the installment of the bureau for the appointment of examiners by the auditor with compensation fixed by the statute and for the examination by him or his deputies into the financial affairs of all public offices and that reports of such examinations be made matters of record in said office. Section 9 provides that the expense of maintaining and operating the bureau shall be paid by the counties out of their general county fund in proportion to their population, and the auditor is authorized to make collection thereof. Séction 10 provides that the expense of auditing public accounts shall be paid by each taxing body for the auditing of all accounts under its jurisdiction, and the auditor is authorized to make collection thereof. On the twenty-third of April, 1904, section 10 was amended to read as follows:

“The expense of auditing public accounts shall be borne by each taxing district for the auditing of all accounts under its jurisdiction, and the auditor of state is hereby authorized and empowered to certify the expense of such audit to the auditor of the county in which said taxing district is situated, who shall promptly issue his warrant on the county treasurer, payable out of the general fund of the county, said fund, except as to auditing the financial affairs and making inspections and examinations of the county, to be reimbursed by the eounty auditor out of the moneys due said taxing district at the next semi-annual settlement of the collection of taxes.”

The warrant which the relator demands- of the defendant, the auditor of Jackson county, is for the expense of an examination made prior to the amendment of section 10 of the statute; and it is objected that such an application of the amended act would make it retroactive, and that the application is therefore forbidden by section 28 of article 2 of the constitution. But the objection is without merit, for the county is the taxing’ district or body having-jurisdiction of the accounts which were examined in this instance, and it was, by the terms of the original section, liable for the expense of the examination. If, therefore, it were made to appear that a political division of the state is within the protection of the section of the constitution referred to it would be unavailing. It is urged with much earnestness that sections 9 and 10 of the act are inseparable parts of the same scheme and alike obnoxious to the objection that they attempt to provide for the appropriation of the funds of a county for the accomplishment of a duty which rests upon the state, or which the state has assumed, and the expense of which must be met by the state out of its own funds derived from a tax upon property or upon some of the other recognized sources of state revenue. That the two sections must be tested by the same rules and subject to the' same judgment may be conceded without consideration. In support of this objection to the statute counsel cite Wasson et al. v. Commissioners of Wayne County, 49 Ohio St., 622, and Hubbard v. Fitzsimmons, 57 Ohio St., 436. "Whether attention is. bestowed upon the section of the present act which looks to the payment of the expense of maintaining- and operating the bureau of inspection or to that which looks to the payment of the expense of auditing the accounts of public officers there appear differences of an important and controlling character between them and the provisions of the acts-which were considered in the cases cited. In Wasson et al. v. Commissioners of Wayne County it was determined that the legislature cannot authorize the levying of a tax upon the property of one county, other property of the state being exempt, for the accomplishment of a purpose beneficial to the people of the state at large, and to be conducted under the authority of the state. In Hubbard v. Fitzsimmons the same conclusion was reached with respect to an act by which it was attempted to charge upon the property of one county the expense of constructing an armory for the use of the national guard, an organization provided to maintain the sovereignty of the state and to benefit its people at large. The present act provides for entire uniformity of its operation, the charge for the maintenance of the bureau being upon all the counties of the state in proportion to their population, and that for the auditing being, as provided in the tenth section, the particular expense incurred by the bureau in each examination. The latter section appears to find ample justification in facts which may be presumed, if we may not take notice of instances of their actual occurrence. In some of the counties of the state the public officers elected by the people are so efficient and scrupulous in the conduct of their affairs and in the keeping of their accounts that but little time is required and but little expense incurred in making the examinations by the bureau. Whatever may be the differences in this respect in the several counties of the state, they seem to be appropriately met by this section. The act by a uniform rule operating upon all the counties of the state, recognizes population as the logical basis of the contribution and no reason appears why it may not be exacted by that rule. But it is urged in this connection that a tax cannot be levied according to population, but is required to be according to the valuation of property by a uniform rule. The soundness of the proposition is more apparent than its relevancy. The act does no more in this respect than to provide for the application of a portion of the funds in the county treasury levied pursuant to the provisions of other statutes, without any provision whatever for the levying of additional taxes in any mode whatever.

No valid objection to the validity of the act appearing the demurrer to the answer will be sustained and a peremptory writ allowed.

Davis, C. J., Price, Crew, Summers and Spear, JJ., concur.