Board of Education v. The State. well as the averments of his petition, negative such possession, and the defendant's consent thereto, both of which are essential to that part performance requisite to establish and give validity to the agreement. In regard to the possession of the corncrib, it may be remarked in addition to what has been said, that it appears such possession was not taken under the contract, nor in part performance of it, but on the contrary was an act outside of the contract, and merely in anticipation of a right to accrue under the contract at a future time. Judgment of the circuit court and court of common pleas reversed, and cause remanded with instructions to sustain the demurrer and for further proceedings. BOARD OF EDUCATION V. THE STATE. School and school districts-Separate schools for colored children-Revised (Decided February 28, 1880.) ERROR to the Circuit Court of Butler County. The original action was a proceeding in mandamus by which the relator sought to compel the board of education of the village of Oxford, to admit his children to a common school within the district where he resided, from which, as he averred, they had been wrongfully excluded by the board. At the final hearing the court made a finding of facts, from which it appears that the children of the relator belong to the colored race, and were excluded by the board under a resolution requiring all colored children to attend a separate school that had theretofore been established for them in the district; that the board acted in good faith, and upon what it deemed to be for the best interests of education in the district; and, upon its finding, awarded a peremptory writ, to reverse which judgment this proceeding is prosecuted. Railroad Company v. Hinsdale. Thomas Millikin, Alex. F. Hume and Palmer W. Smith, for plaintiff in error. Morey, Andrews & Morey, for defendant in error. The Board of Education of College Hill v. The State of Ohio ex rel. Wilson Hunter, on error to the Circuit Court of Hamilton County, was argued with this case. Attorneys for plaintiff in error, Davidson & Hertenstein; for defendant in error, Eugene Wambaugh. BY THE COURT. The power to establish and maintain separate schools for colored children was conferred on boards of education by section 4008, and not by section 4013 of the Revised Statutes. Whilst under the latter section power is conferred on boards of education to make such assignments of the youth of their respective districts, to the schools established by them, as will, in their opinion, best promote the interest of education in their districts, such power cannot be exercised with reference to the race or color of the youth; and section 4008 having been repealed by the act of the general assembly passed February 22, 1887 (84 Ohio L. 34), separate schools for colored children have been abolished, and no regulation can be made under section 4013, that does not apply to all children irrespective of race or color. Judgment affirmed. RAILROAD COMPANY v. HINSDALE. Railroad corporation-Conditional subscription to stock-Whether sale of road transfers subscriptions-Revised Statutes, secs. 3300, 3409. H. subscribed for a number of shares of the capital stock of a railroad company, the subscription being made payable on the order of the directors, in installments, and to be paid when the road was completed. The company being unable, from lack of means, to complete the construction of its proposed line of road, duly executed its deed purporting to sell and transfer its road-bed, right-of-way, subscriptions, and other property to another railroad company, which latter company Railroad Company. Hinsdale. completed the construction of the road, and was afterwards consolidated with another railroad company. Held: 1. That neither section 3300 nor section 3409 of the Revised Statutes conferred authority to sell and transfer the stock subscription of H.; and no ownership in the subscription passed to the company grantee, by virtue of the deed. 2. That the subscription of H. was conditional, and the company grantee did not, by performing the condition precedent named in the subscription, fix and make absolute the liability of the subscriber. (Decided March 13, 1888.) ERROR to the Circuit Court of Wood County. In the year 1876, the Toledo & Grand Rapids Railroad Company, a corporation organized under the laws of Ohio, was constructing a line of railroad from Toledo to Grand Rapids in Wood County, Ohio. George P. Hinsdale, the defendant in error, and other parties residing along the line of railroad, subscribed to its capital stock. The following is a copy of his subscription : We, the undersigned, agree to take and pay for the number of shares of the capital stock of the Toledo & Grand Rapids Railroad Company, set opposite to our respective names, each share being fifty (50) dollars and payable on the order of the directors in installments of not more than ten per cent. every thirty days. It is understood that the above-named road is to be a narrow guage railroad, and that said railroad is to cross the river at Grand Rapids. "G. P. Hinsdale, 30 shares..... (To be paid when the road is completed.) " $1,500.00 In the year 1881, the Toledo & Grand Rapids Railroad Company executed a deed of its road-bed and other property, to the Toledo, Delphos & Burlington Railroad Company, a corporation organized under the laws ofOhio. The Toledo, Delphos & Burlington Railroad Company thereafter consolidated with the plaintiff in error, the Toledo, Cincinnati & St. Louis Railroad Company, a corporation organized under the laws of Ohio. The Toledo, Cincinnati & St. Louis Railroad Company, claiming to be the owner of all subscriptions to the capital Railroad Company v. Hinsdale. stock of the Toledo & Grand Rapids Railroad Company, filed its petition in the court of common pleas of Wood county, in the month of April, 1882, against the defendant in error, on his stock subscription, praying judgment for the sum of fifteen hundred dollars, with interest thereon. The defendant-George P. Hinsdale-answered, setting up a number of defenses, which were denied in the plaintiff's reply. The cause was submitted to the court without the intervention of a jury, a jury being waived by both parties. At the request of the plaintiff, a special finding of facts and conclusions of law were made and stated by the court as follows: "This cause coming on for hearing on the petition of the plaintiff, the answer of the defendant, the reply of the plaintiff, and the evidence-on consideration whereof the court finds: "First. That the Toledo, Cincinnati & St. Louis Railroad Company, The Toledo, Delphos & Burlington Railroad Company, and the Toledo & Grand Rapids Railroad Company, are corporations duly organized under the laws of Ohio, and that the Toledo, Cincinnati & St. Louis Railroad Company is the successor of and owner by consolidation of the Toledo, Delphos & Burlington Railroad, and of all the rights, credits. subscriptions to capital stock, franchises and property of all kinds, which belonged to and constituted the said road. "Second. That at a meeting of the directors of the Toledo & Grand Rapids Railroad Company, a contract for the sale of the corporation known as the Toledo & Grand Rapids Railroad Company, its franchise as a corporation, its road-bed, rolling-stock, choses in action, subscriptions and personal property of every description to the said Toledo, Delphos & Burlington Railroad Company, whose lines of road were continuous and connected and not competing with the line of road of the said Toledo & Grand Rapids Railroad, for a valuable consideration was submitted to and approved by said directors, and the president and secretary of said Toledo & Grand Rapids Railroad Company authorized to sign the same. "Third.-That at a meeting of the directors of the said Toledo, Delphos & Burlington Railroad Company, the said contract was submitted to and approved by said directors, and Railroad Company v. Hinsdale. the president and secretary of said Toledo, Delphos & Burlington Railroad Company, were authorized to sign the said contract. "Fourth. That for the purpose of ratifying and perfecting said contract of sale and purchase, a meeting of the stockholders of the said Toledo & Grand Rapids Railroad Company, and of the said Toledo, Delphos & Burlington Railroad Company, was called by the directors of each of said companies on thirty (30) days' notice to each stockholder at such time and place, and in such manner as is provided for the annual meetings of the said companies, and the holder of at least two-thirds of the stock of each of said companies in person or by proxy at each of said meetings assented to said contract of sale and purchase. "Fifth. That the said Toledo & Grand Rapids Railroad Company, at the date therein named and in pursuance of said contract, executed and delivered to the said Toledo, Delphos & Burlington Railroad Company, its certain deed, of which the following is a copy: "Know all men by these presents, that, whereas the Toledo & Grand Rapids Railroad Company, a corporation duly incorporated under the general laws of the state of Ohio, are the owners of a road-bed and right-of-way for a railroad and other property in the county of Lucas and state of Ohio, which, from lack of means, it is unable to complete the construction of its proposed line of road thereon, and is desirous of selling the same. "And whereas, at a meeting of the board of Directors of Toledo & Grand Rapids Railroad Company, called for the purpose, held at the office of said company, at Toledo, Ohio, on the 4th day of March, A. D. 1881, the president submitted the following proposed contract between the Toledo & Grand Rapids Railroad Company and the Toledo, Delphos & Burlington Railroad Company, to-wit: "Contract of sale and purchase by and between the Toledo & Grand Rapids Railroad Company, a corporation incorporated under the general laws of Ohio, party of the first part, and the Toledo & Burlington Railroad Company, a corpora |