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for this reason the companies are not within on the subject may be more rigid since 1873 the section in question. An examination of than it was under the former legislation. I do the provisions relating to the power of rail- not think it is necessary to determine how that road companies to lease, does not lead us to a was, nor is it necessary to express any further different conclusion. True, by the act of 1851, opinion upon the question how far section 3300 it was not provided in express words that the might be regarded in determining this cause. fact that the lines of two companies were paral- A fatal defect in the organization of this lel and competing should be a bar to a lease company is found in the fact that under Rev. by one to the other, or to a consolidation of Stats. & 3381, the directors of the consolidatthe companies; nor was there any such express ing companies must set forth in their joint provision in the act of 1852 (3 Čurwen, 1884), agreement the places of residence of the new or the act of 1869 (3 Sayler, 1760), with re- directors, as well as their number. This prospect to ieasing. Express provision, however, vision of the statute has not been complied prohibiting one company from leasing to an- with. There is no designation of any such other where their lines were competing, was place of residence. We are not to speculate made by the act of 1873 (4 Sayler, 2950), and as to the propriety of this provision, nor 88 that provision was carried into the Rev. Stats. to the manner it became incorporated into & 3300. From the absence of any such ex- the statutes in its present form. It is suffipress prohibition with respect to consolidation, cient to say the provision is in no sense diit is argued that here is a legislative expres- rectory, and that a compliance with it is insion that the fact that lines are competing is dispensable. Atlantic, etc. R. Co. v. Sulli
. no objection to consolidation. But that con
vant, 5 Ohio St. 276; The State v. Lee, 21 clusion, in my judgment, is altogether errone
Ohio St. 662; Raccoon Co. v. Eagle. The ous. By the act of 1852 (3 Curten, 1877),
State v. Cen. 0. Association, 29 Ohio St. consolidation was provided for in section 21, 238, 399; People v. Chambers, 42 California, and leasing in secton 24. When section 24
201. was repealed and re-enacted with certain Judgment of ouster. changes in 1869, it was left in the respect men- All the judges concurred with the Chief tioned, unchanged, and such prohibition was Justice as to the third proposition of the introduced, as we have seen, in 1873, when syllabus. White and McIlvaine, J. J., conthe section was amended. Perhaps this latter curred with him as to the first point, but amendment was introduced by reason of some not as to the second; and Johnson and Longabuse which had no direct relation to consoli-worth, J. J., concurred with him as to the
. dation, and hence the propriety of amending second, but not as to the first point.
, the section on that subject was not considered. [This case will appear in 37 O. S.] But, however this may be, it does not follow that such change in the language of the act worked any radical change in the law. The Separate opinions by Johnson and Long. presumption, as we have seen, is the other worth, J J., in this case, will appear next way, unless the purpose to require a change week-EDITORS LAW JOURNAL. in the construction is clear. Notwithstanding the act of 1873, the question still is as to the fair interpretation of the section relating to
SUPREME COURT RECORD. consolidation previous to that time, which section is still in force in substantially the same form. Rev. Stats $ 3300. That it does [New cases filed since last report, up to March 7, 1882.) not authorize a consolidation of lines bearing
a to each other the relation borne by these roads, Mo. 1067. William McHugh v. The State of Ohio. Eris a proposition to which I fully assent.
ror to the Court of Common Pleas of Hamilton County. W. H. & R. C. Pugh and E. P. Dustin for plaintift; Gen
eral Geo. K. Nashr for the State. Entertaining these views, the question how far this consolidation may be affected by the
1068. Amos Ainsworth v. The State of Ohio. Error to
the Court of Common Pleas of Van Wert County. I N. clause in the act of 1873, incorporated into Alexander for plaintiff; General Geo. K. Nash for de section 3300 of the Revised Statutes, is not
fendant. with me a vital one. But the policy of the
1069. City of Tiffin v. Rezin W. Shawban. Error to State, as declared in that enactment, cannot
the District Court of Seneca County Perry M. Adams
for plaintiff; N. L. Brewer for defendant. be in dcubt. Since 1873, at least, there can be
1070. 8. O. Lattimer et al. v, A. B. Reed. Error to the no lease where the lines of the lessor and lessee District Court of Ashtabula County. S. A. Northway for are competing, and it is admitted that if there plaintiffs; N. L. Chaffee for defendant. can be no lease, there can be no consolidation
1071. James P. Gray v. Benjamin M. J. Pratt et sl. of such lines leased since then. The rule up
Error to the District Court of Hamilton County, Taft &
Ohio Law Journal.
ing upon side issues instead; by quashing indictments which contain an uncrossed "t" or
an undotted “i”; to say nothing of plain bullCOLUMBUS, OHIO, : : MARCH 16, 1882. headed disregard of all law or justice in matters
where discretion gives full play to fell design; The Supreme Court made no report of cases
there are so many of these cases, we say, that the disposed of during the past week.
election of a judge is like an investment in a lot
tery, so often(alas!) unsuccessful as to prizes NEW LAW MAGAZINE.
that an undoubted good drawing is productive The American Law Magazine, published at 46 &
of real satisfaction and deserved self gratulation. 48 Clark St. Chicago, Ill., is a new monthly can
We are impelled to these remarks (which are didate for the honors and emoluments sometimes local, and have no antithetical reference), by the
undoubted ability and firmness displayed by His visited upon law journals. It is under the direct editorial care of J. B. Martindale who is now
Honor, Judge Wylie, of the Franklin County
Common Pleas. It is a matter of common reassisted by a corps of twenty-seven able-bodied gentlemen in various states with eleven states
mark among law-respecting people, that crime to hear from. The first number is full of good
will henceforth have but a slight chance to esreading matter.
cape its proper reward in this county, and that
public boasts of ability to buy courts, prosecutNEW LAW FIRM.
ing attorneys and grand juries will no longer be
attended with unblushing and defiant violations The late law firm of Banning & Davidson of of law, and the constant and repeated failure to Cincinnati, dismembered by the untimely death indict or punish the persons so boastful and lawof General Banning, has been reorganized, and defying. We do not pretend to locate the reason is now under the firm name of “ Davidson, Groes- of, or the responsibility for the fact, but it is well beck, Conway & Gabler.” Mr. Davidson is well
Mr. Davidson is well known that palpable and flagrant violations of and favorably known to our readers. Of the law, affecting the health and comfort of thounew members, an exchange has the following: sands of our citizens, have been perpetrated and
“Mr. Groesbeck is the son of Hon. Wm. S. boasted of for a dozen years past in the face of Groesbeck, is now twenty-eight years of age; a all effort to punish the same. graduate of Princeton College and of the Cam- We venture the prediction that when these bridge Law School; has until recently been same law-breakers come before Judge Wylie, travelling abroad but has now settled to hard there will be occurrences profoundly astonishing work and will make his mark. Mr. Conway was to their sense of fancied security. educated under the care of Bishop McKale of Ireland, and takes charge of the probate busi
JURY TRIALS. ness of the firm; while Mr. Gabler is a graduate of Bethany College, and will look after the in- They are indeed becoming a farce if not so alsurance cases on the docket of the m. These ready. Inherently, trial by jury has from deep gentlemen are all capable of hard and effective antiquity received the endorsement of the wisest work and will achieve success.”
of the age, and it will be difficult to deny that if
fairly tried it is the safest guard against the cenPERSONAL MENTION.
tralizing tendency of power.
Fair minded men of reasonable intelligence · A Judge with a Backbone. In this age of greed actuated by the ordinary impulses to do right,
for office, and of fawning and temporizing to se- taken by lot and almost by accident from the cure the support of powerful and influential per ranks of the industrious, economical, moral class
, sons or classes, the discovery of a man fearless es as a rule is as safe a guard over the property. and true when first tried in the harness of a ju- character, liberty and life of a people as can well dicial position, gives a sensation of genuine be devised. The trouble with juries and the inpleasure. There are so many ways in which a efficiency of their actions may be traced to the weak and vacillating judge can evade the full bold and undisguised usurpation of the judges discharge of his duties, by ambiguous charges; of courts where juries are employed. . by deferring action upon important cases sub- Gradually and imperceptibly as the silept upmitted; by avoiding the main question and rul- | rising of the coral reef, common pleas judges have
absorbed the high and independent power and duty of juries, and centering in themselves the functions of both judge and jury, have estab lished a tyrannical power in the person of the judge, the most oppressive and dangerous exercise in a free land, and that would have met with resistance even to arms in the far off time of King John.
This power must be curbed, and juries by force of public sentiment made to understand that they are not mere automatons for the judge to direct in the determination of the facts as well as the law, and it is time the people, the press, and the bar, use their power to mould the true relations between the judge and jury as co-elements in the constitution of our courts, and firmly establish the proud and independent functions of twelve intelligent freemen when impanneled as a jury.
JOHN W. CANARY. BOWLING GREEN, O., March 9, 1882.
ADMITTED TO PRACTICE.
Fifteen applicants for admission to the Bar, of this State, were before the Supreme Court last week. The following obtained certificates :
Theodore Alvord, Conneaut.
in cities having a population exceeding eight thousand and not exceeding ten thousand, according to the Federal census of 1880, or in July of any year.
H. B. 132. An act to authorize the trustees of Miami township in Logan County, to levy & tax on the Quincy precinct of said township, and issue bonds for the purchase of cemetery grounds and the improvement thereof. H. B. 49. To amend section 5164 of the Revised Stat
March 3, 1882 utes to read as follows:
Section 5164. The trustees of each township and the councilmen of each ward, shall, on the second Tuesday of October, annually, select of good, judicions person's having the qualifications of an elector, and not exempt by law from serving as jurors, the number of persons designated in the notice to be returned for jurors therefrom, and shall make a list thereof, and deliver the same to the judge of election, who returns to the clerk of the court, the poll-book of election, and such judge of election shall deliver the list to the clerk at the time be returns the poll-book; and in selecting the jurors, if any person shall attempt, by request, or suggestion, to influ. ence said officers, or any of ihem, to select or not select himself, or any other person or persons as aforesaid, he shall be deemed guilty of a misdemeanor, and upon con. viction thereof, before any court of competent jurisdiction, shall be fined in any sum not exceeding fifty dollars, or imprisoned in the county jail not more than ten days or boib, in the discretion of the court.
H. B. 161. Making appropriations for the last three quarters of the Fiscal year ending November 15th, 1882, and the first quarter of the fiscal year ending February 15th, 1883.
H. B. 41., Authorizing the Commissioners of Lawrence County to levy an additional tax for certain purposes.
H. B. 80. To amend section 3977 of the Revised Statutes to read as follows:
Section 3977. The prosecuting attorney of the proper county, or in case of a city district, the city solicitor shall prosecute all actions which, by tbis title, inay be brought against any member or officer of a school board, in his individual capacity, and shall act in his official capacity as the legal counsel of such boards or officers in all civil actions brought by or against them in their corporate or official capacity, but no prosecuting attorney or city solicitor shall be a member of the board of education; provided, that in counties having a county solicitor, such officer shall prosecute all actions which may be brougbt against any member or officer of a school board in his individual capacity, and shall do and perform all the duties herein required of the prosecuting, attorney, as to schools, school boards, and officers of schools of the county, outside of said city; but for such services he shall receive additional compensation.
H. B. 145 Authorizing the city of Ironton to issue bonds, borrow money and levy a tax for the purpose of defraying the expenses incurred in suppressing the
LXVTH GENERAL ASSEMBLY OF OHIO.
H. B. 148. To amend section 5053 of the Revised Statutes to read as follows:
Section 5053. Where an heir or a devisee of a deceased person is a necessary party, and it appears by affidavit that his name and residence are unknown to the plaintiff, proceedings against him may be bad without naming him, and the court, or a judge thereof, shall make an or. der respecting the publication of notice, but the order shall require not less than six weeks publication.
H. B. 223. To amend sdction 6046 of the Revised Statutes to read as follows:
Section 6046. Before receiving said inventory by the probate court, the executor or administrator shall take and subscribe an oath or affirmation before the probate judge or his deputy, a justice of the peace, or other officer authorized to administer oaths required or autbor. ized by law, stating that such inventory is in all respects just and true; that it contains a true statement of all the estate and property of the deceased which has come to the knowledge of such executor or administrator, and particularly of all money, bank bills, or other circulating medium belonging to the deceased, and of all just claims of the deceased against such executor or administrator, or other persons, according to the best of his knowledge. Such oath shall be endorsed upon or annexed to the inventory.
H. B. 106. To authorize the village of Milford, Clermont County, to transfer certain funde.
BNY POSIS OF LAWS PASSED THIS SESSION.
March 2, 1882. House Bill No. 120. To amend section 3786 of the Revised Statutes of Ohio authorizing trustees of religious denominations, on the parish or congregation becoming extinct, to take possession of the church property, and to lease, sell, invest or otherwise dispose of the same.
H. B. 46. To amend section 4969 of the Revised Statutes to read as follows:
Section 4969. If the judge of a court having but one judge, or if a quorum of the judges of any court having iwo or more judges, fail to attend at the time and place appointed for holding the court, or if, after the calling of the court, the judge, or a quorum of the judges are unable, on account of sickness, or from any other cause, to attend the daily sessions thereof, the sheriff shall adjourn the court from day to day, until the single judge attend or a quorum is convened, but if the judge or judges be not present within two days after the first day of the torm, or if, after the court is called, the judge or judges are unable, on account of sickness, or from any other cause, to be present for ten days, the court shall stand adjourned for the term.
A. B. 82. To regulate the constructii n, enlargement, changes in, conduct and management of water works
duced him to exclude the jurors-of course the court was bound to pass upon the faut whether he did exclude them from that motive or some other motive.
Well, again, in another case, a man is indicted for passing counterfeit money. The statute, I believe, in all cases speaks of a man passing it knowing it to be counterfeit, because any of us
JUDE DAXTER'S CHARGE TO THE JURY.
ant as Superintendent of a District School in without any knowledge of the fact. In thit case
Clermont County, for refusing to admit the son
the crime consists not simply in the passage of of a colored man to the school, which is attended
the bill or offering it in payment to some one,
but in the passage of the bill with the knowlby white children, the defendant claiming that edge that it was counterfeit. Then the party there was a school for colored children in the can not be convicted unless there is proof of vicinity, accessible to the boy, and to which he what the law, the books, call the scicnter-that is, should be sent. The case was tried last week
the knowledge—and that is the proper inquiry before Judge Baxter, at Cincinnati, who charged dictment for forgery. The mere fact that I sit
to be made in case of that kind. So in an inthe jury as follows:
down here and drair a note for a thousand dolGENTLEMEN OF THE JURY-It is a great relief lars, and sign A. B.'s name to it, is not a crimito a court, and a great relief to a jury, to have a nal offense of itself; and the law says, “If done case tried' by counsel who understand what the with intent to defraud," if used with the controlling question is and who are frank knowledge of the fact that it was spurious-the
— enough to move right up to the question and kņowledge or the intent, in that particular inpresent that case. Upon that the decision of the
stance, is a necessary element to constitute the jury turns, without making it necessary for the crime, and in that instance the knowledge must court to go back, as it were, and traverse all be
proven. the law in order to show you what the ruling Now we will come down to this case. question in controversy is. If this case had cited to a great many other cases of similar charbeen met in that spirit we would have been acter, and in the discussion upon the books, the through it before dinner, but it is a very small author is treating upon some particular proposicase and in a very narrow compass. There is tion, and his language is applicable to that propreally but one question for the jury, which I will osition, and hence when you turn over very ofpoint out after a while.
ten a page or two forward or a little back you A good deal of discussion has been gone into, i find something to the unthinking mind, whose and a good many books have been read in order business has not been to study law or to disto satisfy the court, for it was addressed to the criminate, that seems apparently in conflict court and properly to the court, as it is a ques- with this proposition, but when you look to the tion which the court has to decide and not the facts and the difference in principle they are jury, that there must be a criminal intent to harmonious, and they are both correct. The constitute a crime. In the broad sense in which crime in this case is, after the slaves were emanthe books intend it, that proposition is true. cipated by a military force and through an But what constitutes a criminal intent in one amendment of the Constitution of the United case is very different from what it is in another States they were made citizens; they were incase. A decision is read here by Judge Rives, vested with all the rights of citizenship. They of Virginia. That case was upon the trial of a have, under the Constitution, the same rights juror commissioner, who was indicted because he precisely as you and I have, but being an unedurefused as jurors-he excluded from the jury i cated race just withdrawn from under the yoke box-two colored men because or on account of of bondage and turned loose upon the world as their color, the law denouncing that act as a full-fledged citizens of the United States, the crime, and authorizing parties to be prosecuted Government, or a majority of the people of the who did that. Now you will see that the essence United States who did this thing, felt that it of that crime consisted not in his excluding the was their duty to throw around the ignorant jurors—I mean persons from the jury-box-but slave such protection as would be sufficient to for doing it on account of their color.
guarantee to him the rights with which the clusion of colored men from the jury-box might Constitution has invested him; because a right, have been because they were regarded as incom- although it be a constitutional right, unless petent to serve as jurors, as not having sufficient there is some means provided by which to intelligence, or for some other good and reasona- protect that right and protect the par
He could not be indicted for that; ties in the exercise of that right, is en but if he did it simply and solely on the ground tirely valueless
. Several provisions of law have that they were colored persons, then the law ap- been made in order to give this protection. plied, and as in that particular instance the evi- Among others it has been enacted that every dence consisted in the motive—not in the exclu- person who, under color of any law, statute, ordision of the jurors, but in the motive which in- nance, regulation or custom, deprives a person
on account of his color from his rights, is indict- ' has nothing to do with the proposition ? If the able and punishable in this court.
proof is plain and indisputable that a man did Now, the mere fact that this defendant ex- do a particular act, if the party accused comes cluded this colored boy from the privileges of his into the court and admits the fact that he did do school would not constitute an offense. There a particular act-that is, that he did exclude must be more than that. He must have ex- this person; that he did do it under color of that cluded him from his school, and he must have law which has provided another place for them to done that under some color of law, or statute, or go to, and that he did do it upon that ground; ordinance, or regulation, or custom of the State. that he had not been employed to teach colored It requires an exclusion, and also that that ex- people, what use could you make of the fact that clusion should be for the reason which the law he was a man of good character-I mean in passsives, on account of his color, and the person ing upon the facts which constitute that part who thus excludes must be acting, or claiming of the case? He certainly is a man of good to act, under some authority of law of the State, character, but if he admits the offense, there is local law, custom, regulation, or statute or ordi- nothing for this evidence to operate upon. And nance. If, therefore, this defendant did exclude the court. instructs you that good character, in this colored boy from his school, if this colored this particular case, very proper and influential boy was a resident of the district, and if he had
in proper cases, has no application, no bearing, a right to go to that school, in reference to which and is entitled to no consideration at the hands I will instruct you directly, and if this defend- of the jury. If the defendant were to deny the ant excluded him from the school, claiming to do facts alleged, if he would say the testimony on 80 under the authority of the statute which pro- the part of the prosecution or Government was vided for a separate school for colored people, or not true, if he were to raise an issue between under some regulation, or custom, or ordinance of himself and the other witnesses, or even stand the State, and excluded him because he was a off and deny the truth of the indictment, then colored boy, or for same other reason-he might the jury, in passing upon the fact whether he have been spiteful towards him, and exclude was guilty of the particular matters alleged him for some other reason-if he excluded him
against him, or not guilty, would very properly minder color of authority, and because he was a be authorized to take into consideration that he colored boy, then the court instructs you that was a man of truth, a man of veracity, a good he would be guilty, and you ought to find him
citizen and a law-abiding man; but when they guilty, unless you should find in his favor upon
are called upon, first, to decide whether he.ex. the question of fact, which I would bring to your
cluded this colored boy ; secondly, whether he attention, but which the counsel for the defense
did it under color of authority, and thirdly, did not discuss. This only question in the case whether he did it because he was a colored boy, has not been discussed. Now, referring to some portions of the argu
and the defendant, himself, upon his oath, who
is examined as a witness in his own behalf, adment, and the positions assumed by counsel
mits these particular allegations are true, the in this connection, he proved by four witnesses
court instructs you that the question of good that defendant is a man of good character and a law-abiding citizen. The law presumed that be
character and law-abiding citizenship has nothfore he introduced the proof, and the proof only
ing to do with it.
Now, the same remark may be made in referconfirms that proposition. And then he reads authorities to the court in order to inform the court
ence to his motive. It is proper for you to inwhat the law is upon that question! Well, the
quire whether he was moved to exclude the boy authorities read are all correct enough, but let
on account of his color, and whether he assumed us see if they have any application to this case.
the right to do that, to exclude the boy under When a proposition of law is announced that is
any authority of the State Statute, custom, reg
ulation or ordinance. You have a right to look correct, it means that it is correct when there is anything for it to operate upon, when it is appli
at his motives in that particular, and if cable to the case that is under trial. The only
that he had another motive than that stated in thing which this defendant is accused of doing
the statute, why, then the Federal Courts would is that he excluded this boy from the school, and
have no jurisdiction over the question. They he did it under the color of the statute relating
could not try him for a bare assault and battery. to the subject, and did it because he was a col
They could not try him for a simple denial of a ored boy. The defendant is introduced as a wit
right unless it was a right arising under the ness himself, and that is his statement-that he
Constitution and the laws of the United States, thought the boy had been provided for at an
and unless that right was denied by color of auother school; that it was his right to apply at
thority, and because the party was a negro. In the other school; that he had no right to
that respect you have a right to look at his mocome to his school; that the other school had
tives, but if he has admitted that it was done on been provided for colored children, and money
that ground, why, then you have no inquiry set apart for that purpose. In other words, he
into his motives at all; he himself admits the admits every fact necessary to constitute this
motive. case. Now, doesn't the jury, in the exercise of its
I have stated to you, gentlemen of the jury, own good sense, see at once that good character
that under the Constitution and laws the negro