Page images

Ohio law Journal.


Law by the punishment of any breach of faith therein, under the name of adultery or bigamy;

and by making illicit loving a crime-fornicaCOLUMBUS, OHIO, : APRIL 27, 1882. tion. No other contract and no other relation

has ever held so high a place under the law as We desire it to become a matter of record that the contract of marriage and the marriage relathe Ohio Law JOURNAL is sorely puzzled by the tion, yet we see a long continued violation of the inconsistencies and incongruities in the admin-laws of God and man and of the State, rewarded istration of justice; and the eccentricities of law- by being declared to be not only right and propmakers; and of those who execute the laws, now er, but within the law, and to be rewarded by 80 undeniably and prominently a part of the the law! If 30 years of fornication are cqual to leading events of the present age.

the solemn rites of the altar-under the law, why We do not attack these stupendous mysteries ;

not 29 years? Why not 28? Why not 2? Why we do not shout for them or condemn them; nor

not 1? Why not a single act of fornication? yet hold up our hands in holy horror at the

Is it not barely possible that there are cranks

still at large ? thought that they exist. We simply confess to being-overcome. The chief executive of a great State with all

NEW BOOKS. the police power of a nation, directly or indirectly at his command-with the army within his

DIGEST OF THE AMERICAN DECISIONS control for the preservation of peace and the defense of the lives and property of his people and

VOLS. 1 to 30 INCLUSIVE; AND INDEX TO THE for the execution of the laws, conspiring with

NOTES THEREIN CONTAINED; WITH TABLE OF cut-throats to work out plans of assassination

. CASES RE-REPORTED. 8 Vo. Pp. 825. A. L. Ban

croft & Co. San Francisco. 1882. which would disgrace even Thuggery is a spectacle well calculated to excite-surprise.

If any excellence had been omitted from the

AMERICAN DECISIONS, it is fully supplied by this And to see that same executive afterward Digest, which is, of course, of great value to those wrangling with his hired assassins as to whether

who have the volumes digested in this work. It his pardon, promised before the bloody work was

is likewise valuable to others. The systematic done, did or did not extend to all the previous arrangement of all the subjects of judicial demurders of his co-conspirators is not very sooth- cision, and the full statement of the rulings, ing to that surprise.

make it next in value to a complete library of Another source of wonderment lies in the or

the hundreds of volumes from which the cases ganization and attempted incorporation of a

are taken. To those who can not afford to buy company to resist and violate the laws of our

all the volumes of the AMERICAN DECISIONS, but own state!

can have access thereto in public libraries, this It has remained for the saloon keepers of a

book is worth many times its price, (which we great city-Cincinnati-to write this most sin

believe is only $5.00) and it ought to be in the gular chapter in the history of modern times. An | library of every lawyer in the land. incorporated company—that is, a body borrowing the semblance of life and individuality from the Law-having for its avowed object, resist- THE SUPREME COURT TRANSCRIPT OF DECISIONS ance to and violation of the Law is certainly an

IN THE SUPREME COURT OF Iowa; No. 2. anomaly never before dreamed of !

We have received from the publishers of the We are not sure that the rulings of the New Western Jurist, Messrs. Mills & Co., Des Moines, York Court of Appeals in the Badger Case, do Iowa, this number of vol. 1, which is in reality not properly fall within this list of modern mar- only the advance sheets of vol. 56 of the low“. Revels in a legal way.

ports, bound and trimmed in good style. Marriage has long been supposed to be under Over forty cases are reported in full, and as the special guardianship of the Law. It has long the print is from the plates of the Reports as been regarded as the highest civil contract, ex- they will subsequently appear, the cases are of ecuted with all the formality and solemnity that interest and value. can possibly attend an occasion so momentous; The Transcript is furnished to subscribers of elevated to the highest honor as a ward of the the Jurist, at $1.50 per volume.

do so.

MANUAL FOR ASSIGNEES-A Manual for As- and management of common schools must have a uola Bignees, Insolvent Debtors and others affected by Assign

form operation throughout the State. ments in trust for thò benefit of Creditors, or by Assign- Quo Warranto. Bients to avoid Arrest, in Ohio, with Forms, Copious The defendants, having assumed to act as the Notes of Decisions, Practical Suggestions, and complete Board of Education of_The New London schon! Analytical Index. By Florein Giauque, Author of A district, New London Township, Huron County, Manual for Guardians and Trustees,” etc. etc. 8vo. pp.

are called upon in this proceeding to show 429. Cloth, $2.00 net. Sleep, $2.50 net. Cincinnati.

by what title or warrant they assume to Robert Clarke & Co. 1882.

They answer by showing an elecWe have looked for the appearance of this tion under the act of the General Aseemwork with more than ordinary interest. The

bly of March 31, 1879, entitled “an act to congreat favor in which Mr. Giauque's Manual for

solidate the territory comprising the Township

of New London, in Huron County, Ohio, into a Guardians &c. is held by the profession, and the

special school district : great necessity existing for a convenient hand

The provisions of the statute are as follows: book, wherein should be collected the statute

Section 1. Be it enacted by the General Aslaw and decisions relating to assignments, com- sembly of the State of Ohio: That upon a vote bined to arrest the attention and ground a hope as hereinafter provided for, the territory comthat the work before us, which for some time prising the Township of New London, in Huron has been promised, would speedily appear.

County, Ohio, now consisting of the New London

Township school district, and the New London Its appearance now abundantly fulfills the ex

village school district, be and the same is hereby pectations regarding it, so far at least as the ar- organized into a special school district, to be rangement and full quotation of case and stat- known as the New London school district. ute law in Ohio is concerned. The title head- Sec. 2. The trustees of said township shall, ing gives a complete key to the plan and scope at least five days prior to the annual election ocof the work. We may have hoped that as an aid curring on the first Monday of April, A. D. 1879,

cause written or printed notices to the qualified to a more complete understanding of the law of

electors of said township, of an election to be assignments, and the involuntary creation of held at the same time and place of said annual trusts by fraudulent debtors, the editor had election, to determine the question of the progiven a full history of the various changes in the posed consolidation, to be posted in at least five law since the enactment of the old English Stat- conspicuous places in said township, and at such

election the said trustees shall provide a separate ute of Frauds, and particularly of the re-enact

box to receive the ballots cast. The electors of ment of that statute in Ohio, and the subsequent said township in favor of such consolidation shall legislation in its successive steps, with reasons have written or printed upon their ballots the therefor. The Statute of Frauds and the Insolv- words “Special School District-Yes”; and

those opposed thereto the words "Special School ent debtor laws, have insensibly become confused

District-No"; and the majority of the ballots or interchanged in the minds of many otherwise cast shall determine the question of such consol. good lawyers; and a complete history of these idation.

legislative changes and enactments would have Sec. 3. The board of education of such spe

found a proper place in this book, and would cial school district shall consist of six members, have wrought much good by disentangling this

who shall be apportioned to the same as follows:

Two shall be residents of the territory now comconfusion. But taken altogether, the work is a

prising the said village district, two shall be resicredit to the editor and to the publishers as dents of the territory now comprising the townwell.

ship district, and two shall be chosen from the

territory of the township at large; and said COMMON SCHOOLS-LAWS RELATING TO, board of education shall be elected in the manUNIFORM THROUGHOUT STATE. per now provided by law for the election of

boards of education in village districts, except SUPREME COURT OF OHIO.

that on the first Monday following the affirma

tive determination of the question of the proTHE STATE OF OHIO ON RELATION CF TAE ATTOR- posed consolidation, the board of education NEY GENERAL.

each of said districts shall meet,

and each choose three persons to serve as memROLLIN C. POWERS AND OTHERS.

bers of the board of education of such special dis

trict as follows: Two persons, resident electors

April 18, 1882. of their respective districts, one to serve for one 1. Common school districts and boards of education year, and one to serve for three years; and one are not corporations within the meaning of section 1 of person, a resident elector of said township at article 13 of the Constitution. 2. Under section 28, article 2, and section 2, article 6

farge, to serve for two years; and the six 80 of the Constitution, laws regulating the organization

chosen shall constitute the board of education of





buch special district, and shall serve until their section of 13th article of the Constitution, which Buccessors are elected and qualified.

provides, “ The General Assembly shall pass no Sec. 4. The said special district shall be gove special act conferring corporate powers.' " erned and controlled in every manner now by the Whether powers conferred by the legislature laws of Ohio now in force relating to village dis- upon a common school district be corporate or tricts; and the board of education may appoint not, within the meaning of this provision a board of examiners, in the manner provided the Constitution, cannot

deterby law for city and village districts having a mined definitely by the mere fact that such dispopulation of twenty-five hundred inhabitants; trict or its board of education is declared by statprovided, however, that no change shall be made ute to be a corporation, but rather by the object in any of the joint sub-districts of said township, of its creation and the nature of its functions. except in the manner now provided by law; but The district is organized as a mere agency of the in such of said joint sub-districts where the school State in maintaining its public schools, and all buildings are now situated in said township, no its functions are of a public nature. The evils, local director shall be elected, but the same shall which this provision was intended to prevent, are be under the supervision of the board of educa- not found in the special privileges conferred tion of said special district.

upon such public agencies. "The evils sought to Sec. 5. All school funds on hand belonging be prevented were such as resulted from special to either of said school districts shall be trans- privileges conferred upon private corporations. ferred to the treasurer of said special district, That the inhibition extends to municipal corpoand all school property, both real and personal, ration-cities and villages-has been settled belonging to either of said school districts, shall by adjudications. See State o. Cincinnati, 20 become the property of said special district; Ohio St. 18, and 23 Ohio St. 445; State o. Mitchprovided, however, that if the school funds on ell, 31 Ohio St. 592, and cases there cited. In hand of either of said districts should exceed reference to these decisions, it is proper to rethat in the other, the amount necessary to make mark that many of the powers and franchises of them equal shall be raised by taxation in the municipal corporations are of a private and lodistrict so deficient.

cal character essentially different from those of Sec. 6. This act shall take effect and be in mere political sub-divisions of the State, comforce from and after its passage.

monly called quasi corporations. And again The relator claims that this statute is uncon- cities and villages are classified as corporations stitutional; and upon this claim the case de- and provided for in the 13th article of the Condepends.

stitution which relates solely to corporations; MCILVAINE, J.

the 6th section of which provides for their orIn compliance with the second section of the 'ganization by general laws, so that the decisions Sixth Article of the Constitution, which pro- referred to, in which the inhibition of the 1st vides, “The General Assembly shall make such section is held to apply to municipal corporaprovisions, by taxation or otherwise, as with the tions, are of no weight on the proposition that income arising from the school trust fund, will school districts, or other political sub-division of

secure a thorough and efficient system of com- the State, are subject to the same inhibition. mon schools throughout the State," general laws On the other hand, school districts are constihave been passed from time to time for the or- tuted so as to partake rather of the character of ganization and maintenance of common schools counties and townships which are provided for in tbroughout the State.

the 10th article of the Constitution, not as corIn the system adopted by the general law of porations, but as mere sub-divisions of the Stato May 1, 1873, (in force when the act under con- for political purposes as mere agencies of the sideration was passed, and re-enacted in sub- State in the administration of public laws. stance in the Revised Statutes), the State was di- (Hunter v. Mercer County, 10 Ohio St. 515; State

v vided into school districts, styled respectively, v. Cincinnati, 20 Ohio St. 18.) In this article refcity districts of the first class, city districts of erence is also made to "similar boards” in connecthe second class, village districts, special dis- tion with the commissioners of counties and tricts and township districts, and for each dis- trustees of townships. trict was provided a board of education having the It is quite obvious to us, that county and general management of the schools in such dis-township organizations, although quasi corporatrict. And it was also provided that “the sev. tions, are not within the meaning of this provigeral boards of education, now organized and es- ion of the Constitution; and upin full considertablished, and all school districts organized un- ation, we are unanimous in the opinion, that der the provisions of this act, shall be and they school districts, as similar organizations, though are hereby declared to be bodies politic and cor- declared by statute to be bodies politicand corpo porato."; and the act under consideration de- rate, are not within the reason or meaning of clares, that the New London school district shall this inhibition of the Constitution. 11 Kansas, 23, be governed and controlled in every manner by which is a case exactly in the point.

a the laws of Ohio now in force relating to village It is also contended that the statute in quesdistricts : Hence, it is claimed by the relator tion is in conflict with section 26, article 2 of the that this act, being a special act assuming to Constitution, which provides, that "all laws of confer corporate powers, is in violation of the 1st | general nature shall have a uniform op

[ocr errors]

eration throughout the State." Confessedly this case. The constitution declares, not only that statute operates only in New London Township, the General Assembly shall pass suitable laws and, under it, the schools of the township are to encourage schools and the means of instrucorganized and supervised differently from those tion, (Sec. 7 Art. 1), but also, that it shall make of any other township in the State.

such provisions, by taxation or otherwise, 28, The true meaning of this constitutional provis- with the income arising from the school trust ion is somewhat involved in obscurity, and has fund, “will secure a thorough aud efficient sys been questioned several times before this court. tem of common schools throughout the State" (SecTwo propositions, ativast, involved in its construction 2 Art. 6). A majority of the court are of tion may be said to have been settled. 1. That opinion, that the subject of common schools is the general form of a statute is not the criterion thus declared to be one of a general nature. by which its general nature is determined. In These schools are sustained, in part, by a trust several instances, portions of the State have been fund in which every section, as well as every exempted from the operation of a statute, in individual of the State has a common interest. form general, by the enactment of local and spe- This is not all; the interest of every section and cial laws. The State v. The Judges, 21 Ohio St. every individual is to be secured by a thorough 1; McGill v. The State, 34 Ohio St. 228. 2. and efficient system of schools, and as if it were to That whether a law be of a general nature or guard against such special and local legislation not, depends upon the character of its subject as we find in this statute, it is expressly declared matter. Kelly v. the State 6 Ohio St. 272; Mc- that such system shall extend “throughout the Gill v. The State 34 Ohio St. 228. It follows, State.” It appears to me that no amount of logic therefore, that if the subject matter be of a gen- could make plainer, the proposition, that the eral nature, all laws in relation thereto must. common schools of the State, as a subject for leg. have a uniform operation throughout the State, islation, is one of a “public nature,” and that all and if the subject matter be of a local nature, laws in relation to the organization and manage the legislature may provide therefor by laws ment thereof, must have a uniform operation either general or local in form.

throughout the State. The difficulty, therefore, in all cases, is in de- It is no answer to this objection to the stattermining whether the subject matter of a stat- ute, to say that the system inaugurated by the ute be of a general nature or not, and this diffi- general law is not interfered with by this local culty, it seems to me, cannot be obviated by gen- act, inasmuch, as it is provided that the district eral rules, but by the consideration of each case of New London township shall be governed in as it arises. That courts, as well as legislators, every manner by the laws in force relating to will differ as to this question, in many cases, is village districts; for two reasons: 1st. Because to be expected. Hence, the presumption in under the general law there is no authority for favor of the constitutionality of statutes, when extending the government of village districts challenged under this provision, is entitled to over the sub-districts of townships, or for consolpeculiar weight. But, while this is so, courts idating village and township districts in the dare not trifle with the guaranty of this Consti- manner provided in this act: and 2d. There is tution, or fritter it away by holding the provis- no authority under the general act for organizion to be a mere direction to the General Assem- | ing a board of education, as under this local enbly, whose judgment in the premises is final. actment, And surely it cannot be said that That there are subjects for legislation of a general | these matters are not parts and parcels of the nature concerning which all statutes must have system provided for in the general statute. a uniform operation throughout the State, we en- We will not undertake to compare the two tertain no doubt. And, although it would be pre systems as to efficiency. If the New London sumptious to attempt an enumeration of them, system is more efficient than that provided by I will venture to suggest the subjects of marriage the general law, it should be adopted throughout and divorce, and the descent and distribution of the State, otherwise it should not; but this is a estates, and others of like common and general consideration alone for the General Assembly. interest to all citizens of the State.

We are satisfied, however, that it was a wise In order, however, to avoid misunderstanding, provision in the Constitution that the system of I will here add, that on subjects concerning common schools should be controlled and gorwhich uniformity is required, we have no doubt, erned by general laws, so that the whole State that judicious classification and discrimination may enjoy the benefits of the best system which between classes, will not destroy the required the experience and wisdom of the legislature can uniformity.

devise. It does not require a prophetic eye to Again, I assume that no one will dispute the see, local legislation to suit the views of this lo proposition, that if the constitution declares a cality and of that, would soon impair the effgiven subject for legislation to be one of a gen- ciency of our public schools—that while in some eral nature, that all laws in relation thereto must places they might be elevated, in others they have a uniform operation throughout the State, would be degraded. True, in some localities, and courts should not hesitate to declare special from density of population and other causes, difand local enactments on such subject to be un- ferent necessities may exist requiring modifica constitutional and void.

tion in the management of schools in order to at This brings us to the turning point in the tain the greatest efficiency; but for all such cases,

[ocr errors]

ample provision can be made by judicious class- or any part thereof, but that the defendants are ification and discrimination in general laws. seized in fee simple and are rightfully entitled to

And I will add, in conclusion, that in express- the possession of said lands. Thereupon the ing these views, the majority of the court should plaintiffs moved the court for a new trial for reanot be understood as holding, that, under pecu- sons stated in their motion, which motion was overliar circumstances, local legislation may not be ruled by the court. * * * It is therefore considresorted to for the purpose of enabling localities ered and adjudged by the court that the defendants to discharge duties merely incidental, and such go hence without day and recover of the plaintiffs as would be incidental to any system ; but would their costs.


* And then came the not either change or destroy the system itself, plaintiffs and presented their bill of exceptions

, for instance, in the selection or change of school taken by them in this case, and the same is alhouse sites, or the erection or repair of school lowed and filed and ordered to be made part of buildings and the like.

the record in this case.” That bill of exceptions Judgment of ouster.

contains all the testimony offered on the trial. [This case will appear in 38 O. S.]

The facts, so far as it is necessary to state

them, are as follows: Under authority of an act CONCLUSIONS OF LAW AND FACT TO BE

of Congress approved March 3, 1839, “to authorSTATED BY THE COURT-STATUTE ize the trustees of the Township of Oxford, in OF LIMITATIONS.

the County of Butler, and State of Ohio, to enter

a section of land in lieu of section sixteen, in SUPREME COURT OF OHIO.

said township, for the use of schools” (6 Stats.

at Large, 773), the division of the south half of THE TRUSTEES OF OXFORD TOWNSHIP

section nineteen lying west of the river, in

township three north of range four east, in THOMAS H. B. COLUMBIA ET AL.

Paulding County, embracing the lands in dis

pute, was, on February 3, 1841, selected among

April 18, 1882. other lands by the trustees of Oxford Town1. Where a party requests that the court state sepa

ship, for school purposes. Subsequently, the inrately the conclusions of law and fact under the civil habitants of Oxford Township, at a meeting code, $ 280 (Rev. Stats. % 5205), and the request is not called, in pursuance of the statute, for such complied with, a judgment against such party should be reversed, unless it appear from the record that he was

purpose, agreed to accept such selection ; but it not prejudiced by the refusal.

does not appear when that meeting was held. 2. Trustees of a township holding title to lands On October 5, 1841, the President of the United granted to them by the general government for school purposes, are not exempt from the operation of the stat

States issued a patent, reciting the facts above ute of limitations, in an action to recover possession of mentioned, and granting said lands "unto the the premises.

trustees of the Township of Oxford and County Error to the District Court of Putnam County. of Butler, in the State of Ohio, for the use of

The trustees of original surveyed Township of schools.” This patent was delivered to the trusOxford, Butler County, Ohio, commenced an ac- tees, and upon it their right to recover is based. tion in the Court of Common Pleas of Paulding By virtue of acts of Congress passed in 1827 County, against Elsie Columbia and Thomas H. and 1828 (4 Stats. at Large, 236, 305), an act of B. Columbia, to recover possession of a tract of the General Assembly passed in 1828 (27 Ohio land in that county, alleging in the petition L. 16,) and other acts (Swan's C. S. 166, 169; that the plaintiffs have a legal estate in and are Swan's R. S. 137, 140; S. & C. 198, 200), and a entitled to the immediate possession of the selection made by John A. Bryan, special agent premises, and that the defendants wrongfully of Ohio, the State, it is claimed, became the and unlawfully keep them out of possession. owner of the premises in controversy, and clothed The summons served upon the defendants is with the legal title thereto, in 1841. dated May 25, 1875. The defendants admit that In 1852, Dana Columbia went into possession they are in possession of the premises, but they of the west fraction of said south half of section deny in their answer all other allegations in the nineteen, said fraction containing one hundred petition.

and sixty-four and nineteen-hundredths acres, The judge presiding in that county having an and during that year and the year following he interest in the cause, the same was by agreement enclosed nearly seven-eighths of it with a good of parties certified 'for trial and judgment to fence, cleared more than twenty acres, planted the Court of Common Pleas of Putnam County, an orchard, farmed the cleared lands, employed in which county a jury was waived and the cause workmen to assist in quarrying stone upon and submitted to the court. “Thereupon the plaint. clearing the lands, and kept cattle thereon. He

. iffs requested the court to find and state in writing continued to improve the lands, built a good the conclusions of fact found separately from the frame dwelling 'house thereon, built a barn, conclusions of law in this case, for the purpose of planted another orchard, made a cistern, and excepting to the decision of the court upon ques- moved upon the farm, where he resided until tionsoflaw involved in the trial. On consideration his death, which occurred in 1865. During all whereof the court finds that the plaintiffs are the time from 1852 until his death, his occunot seized of an estate in or entitled to the pos- pancy was open, notorious, continuous and exsession of the property in the petition described | clusive; and since his death the defendants, his

[ocr errors]
« PreviousContinue »