Ohio Law Journal.

COLUMBUS, OHIO, : : APRIL 27, 1882.

We desire it to become a matter of record that the OHIO LAW JOURNAL is sorely puzzled by the inconsistencies and incongruities in the administration of justice; and the eccentricities of lawmakers; and of those who execute the laws, now so undeniably and prominently a part of the leading events of the present age.

We do not attack these stupendous mysteries; we do not shout for them or condemn them; nor yet hold up our hands in holy horror at the thought that they exist. We simply confess to being-overcome.

The chief executive of a great State with all the police power of a nation, directly or indirectly at his command-with the army within his control for the preservation of peace and the defense of the lives and property of his people and for the execution of the laws, conspiring with cut-throats to work out plans of assassination which would disgrace even Thuggery is a spectacle well calculated to excite-surprise.

And to see that same executive afterward wrangling with his hired assassins as to whether his pardon, promised before the bloody work was done, did or did not extend to all the previous murders of his co-conspirators is not very soothing to that surprise.

Another source of wonderment lies in the organization and attempted incorporation of a company to resist and violate the laws of our own state!

It has remained for the saloon keepers of a great city-Cincinnati-to write this most singular chapter in the history of modern times. An incorporated company-that is, a body borrowing the semblance of life and individuality from the Law-having for its avowed object, resistance to and violation of the Law is certainly an anomaly ever before dreamed of!

We are not sure that the rulings of the New York Court of Appeals in the Badger Case, do not properly fall within this list of modern marvels in a legal way.

Marriage has long been supposed to be under the special guardianship of the Law. It has long been regarded as the highest civil contract, executed with all the formality and solemnity that can possibly attend an occasion so momentous; elevated to the highest honor as a ward of the

Law by the punishment of any breach of faith therein, under the name of adultery or bigamy; and by making illicit loving a crime-fornication. No other contract and no other relation has ever held so high a place under the law as the contract of marriage and the marriage relation, yet we see a long continued violation of the laws of God and man and of the State, rewarded by being declared to be not only right and prop: er, but within the law, and to be rewarded by the law! If 30 years of fornication are equal to the solemn rites of the altar-under the law, why not 29 years? Why not 28? Why not 2? Why not 1? Why not a single act of fornication? Is it not barely possible that there are cranks still at large?

NEW BOOKS.

DIGEST OF THE AMERICAN DECISIONS VOLS. 1 To 30 INCLUSIVE; AND INDEX TO THE NOTES THEREIN CONTAINED; WITH TABLE OF CASES RE-REPORTED. 8 Vo. Pp. 825. A. L. Bancroft & Co. San Francisco. 1882.

If any excellence had been omitted from the AMERICAN DECISIONS, it is fully supplied by this Digest, which is, of course, of great value to those who have the volumes digested in this work. It is likewise valuable to others. The systematic arrangement of all the subjects of judicial decision, and the full statement of the rulings, make it next in value to a complete library of the hundreds of volumes from which the cases are taken. To those who can not afford to buy all the volumes of the AMERICAN DECISIONS, but can have access thereto in public libraries, this book is worth many times its price, (which we believe is only $5.00) and it ought to be in the library of every lawyer in the land.

THE SUPREME COURT TRANSCRIPT OF DECISIONS IN THE SUPREME COURT OF Iowa; No. 2.

We have received from the publishers of the Western Jurist, Messrs. Mills & Co., Des Moines, Iowa, this number of vol. 1, which is in reality only the advance sheets of vol. 56 of the Iow. Reports, bound and trimmed in good style.

Over forty cases are reported in full, and as the print is from the plates of the Reports as they will subsequently appear, the cases are of interest and value.

The Transcript is furnished to subscribers of the Jurist, at $1.50 per volume.

MANUAL FOR ASSIGNEES-A Manual for Assignees, Insolvent Debtors and others affected by Assignments in trust for the benefit of Creditors, or by Assignnients to avoid Arrest, in Ohio, with Forms, Copious Notes of Decisions, Practical Suggestions, and complete Analytical Index. By Florein Giauque, Author of "A Manual for Guardians and Trustees," etc. etc. 8 vo. pp. 429. Cloth, $2.00 net. Sheep, $2.50 net. Cincinnati. Robert Clarke & Co. 1882.

We have looked for the appearance of this work with more than ordinary interest. The great favor in which Mr. Giauque's Manual for Guardians &c. is held by the profession, and the great necessity existing for a convenient hand book, wherein should be collected the statute law and decisions relating to assignments, combined to arrest the attention and ground a hope that the work before us, which for some time has been promised, would speedily appear.

Its appearance now abundantly fulfills the expectations regarding it, so far at least as the arrangement and full quotation of case and statute law in Ohio is concerned. The title heading gives a complete key to the plan and scope of the work. We may have hoped that as an aid to a more complete understanding of the law of assignments, and the involuntary creation of trusts by fraudulent debtors, the editor had given a full history of the various changes in the law since the enactment of the old English Statute of Frauds, and particularly of the re-enactment of that statute in Ohio, and the subsequent legislation in its successive steps, with reasons therefor. The Statute of Frauds and the Insolvent debtor laws, have insensibly become confused or interchanged in the minds of many otherwise good lawyers; and a complete history of these legislative changes and enactments would have found a proper place in this book, and would have wrought much good by disentangling this confusion. But taken altogether, the work is a credit to the editor and to the publishers as well.

COMMON SCHOOLS-LAWS RELATING TO, UNIFORM THROUGHOUT STATE.

SUPREME COURT OF OHIO.

and management of common schools must have a uniform operation throughout the State.

Quo Warranto.

The defendants, having assumed to act as the Board of Education of The New London school district, New London Township, Huron County, are called upon in this proceeding to show by what title or warrant they assume to do so. They answer by showing an election under the act of the General Assembly of March 31, 1879, entitled "an act to consolidate the territory comprising the Township special school district: " of New London, in Huron County, Ohio, into a

The provisions of the statute are as follows:

Section 1. Be it enacted by the General Assembly of the State of Ohio: That upon a vote as hereinafter provided for, the territory comprising the Township of New London, in Huron County, Ohio, now consisting of the New London Township school district, and the New London village school district, be and the same is hereby organized into a special school district, to be known as the New London school district.

Sec. 2. The trustees of said township shall, at least five days prior to the annual election occurring on the first Monday of April, A. D. 1879, cause written or printed notices to the qualified electors of said township, of an election to be held at the same time and place of said annual election, to determine the question of the proposed consolidation, to be posted in at least five conspicuous places in said township, and at such election the said trustees shall provide a separate box to receive the ballots cast. The electors of said township in favor of such consolidation shall have written or printed upon their ballots the words "Special School District-Yes"; and those opposed thereto the words "Special School District-No"; and the majority of the ballots cast shall determine the question of such consolidation.

Sec. 3. The board of education of such special school district shall consist of six members, who shall be apportioned to the same as follows: Two shall be residents of the territory now comprising the said village district, two shall be residents of the territory now comprising the township district, and two shall be chosen from the territory of the township at large; and said board of education shall be elected in the man

ner

now provided by law for the election of boards of education in village districts, except that on the first Monday following the affirmative determination of the question of the pro

NEY GENERAL.

V.

ROLLIN C. POWERS AND OTHERS.

April 18, 1882.

1. Common school districts and boards of education are not corporations within the meaning of section 1 of article 13 of the Constitution.

2. Under section 26, article 2, and section 2, article 6 of the Constitution, laws regulating the organization

of each of said districts shall shall meet, and each choose three persons to serve as members of the board of education of such special district as follows: Two persons, resident electors of their respective districts, one to serve for one year, and one to serve for three years; and one person, a resident elector of said township at farge, to serve for two years; and the six so chosen shall constitute the board of education of

such special district, and shall serve until their successors are elected and qualified.

Sec. 4. The said special district shall be governed and controlled in every manner now by the laws of Ohio now in force relating to village districts; and the board of education may appoint a board of examiners, in the manner provided by law for city and village districts having a population of twenty-five hundred inhabitants; provided, however, that no change shall be made in any of the joint sub-districts of said township, except in the manner now provided by law; but in such of said joint sub-districts where the school buildings are now situated in said township, no local director shall be elected, but the same shall be under the supervision of the board of education of said special district.

Sec. 5. All school funds on hand belonging to either of said school districts shall be transferred to the treasurer of said special district, and all school property, both real and personal, belonging to either of said school districts, shall become the property of said special district; provided, however, that if the school funds on hand of either of said districts should exceed that in the other, the amount necessary to make them equal shall be raised by taxation in the district so deficient.

Sec. 6. This act shall take effect and be in force from and after its passage.

The relator claims that this statute is unconstitutional; and upon this claim the case dedepends.

MCILVAINE, J.

In compliance with the second section of the Sixth Article of the Constitution, which provides, "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," general laws have been passed from time to time for the organization and maintenance of common schools throughout the State.

In the system adopted by the general law of May 1, 1873, (in force when the act under consideration was passed, and re-enacted in substance in the Revised Statutes), the State was divided into school districts, styled respectively, city districts of the first class, city districts of the second class, village districts, special districts and township districts, and for each district was provided a board of education having the general management of the schools in such district. And it was also provided that "the several boards of education, now organized and established, and all school districts organized under the provisions of this act, shall be and they are hereby declared to be bodies politic and corporate"; and the act under consideration declares, that the New London school district shall be governed and controlled in every manner by the laws of Ohio now in force relating to village districts: Hence, it is claimed by the relator that this act, being a special act assuming to confer corporate powers, is in violation of the 1st

section of 13th article of the Constitution, which provides, "The General Assembly shall pass no special act conferring corporate powers."

Whether powers conferred by the legislature upon a common school district be corporate or not, within the meaning of this provision of the Constitution, cannot be determined definitely by the mere fact that such district or its board of education is declared by statute to be a corporation, but rather by the object of its creation and the nature of its functions. The district is organized as a mere agency of the State in maintaining its public schools, and all its functions are of a public nature. The evils, which this provision was intended to prevent, are not found in the special privileges conferred upon such public agencies. The evils sought to be prevented were such as resulted from special privileges conferred upon private corporations. That the inhibition extends to municipal corporation-cities and villages-has been settled by adjudications. See State v. Cincinnati, 20 Ohio St. 18, and 23 Ohio St. 445; State v. Mitchell, 31 Ohio St. 592, and cases there cited. In reference to these decisions, it is proper to remark that many of the powers and franchises of municipal corporations are of a private and local character essentially different from those of mere political sub-divisions of the State, commonly called quasi corporations. And again cities and villages are classified as corporations and provided for in the 13th article of the Constitution which relates solely to corporations; the 6th section of which provides for their organization by general laws, so that the decisions referred to, in which the inhibition of the 1st section is held to apply to municipal corporations, are of no weight on the proposition that school districts, or other political sub-division of the State, are subject to the same inhibition.

On the other hand, school districts are constituted so as to partake rather of the character of counties and townships which are provided for in the 10th article of the Constitution, not as corporations, but as mere sub-divisions of the State for political purposes as mere agencies of the State in the administration of public laws. (Hunter v. Mercer County, 10 Ohio St. 515; State v. Cincinnati, 20 Ohio St. 18.) In this article reference is also made to "similar boards" in connection with the commissioners of counties and trustees of townships.

It is quite obvious to us, that county and township organizations, although quasi corporations, are not within the meaning of this provision of the Constitution; and upen full consideration, we are unanimous in the opinion, that school districts, as similar organizations, though declared by statute to be bodies politic and corpo rate, are not within the reason or meaning of this inhibition of the Constitution. 11 Kansas, 23, which is a case exactly in the point..

It is also contended that the statute in question is in conflict with section 26, article 2 of the Constitution, which provides, that "all laws of a general nature shall have a uniform op

eration throughout the State." Confessedly this statute operates only in New London Township, and, under it, the schools of the township are organized and supervised differently from those of any other township in the State.

In

The true meaning of this constitutional provision is somewhat involved in obscurity, and has been questioned several times before this court. Two propositions, at least, involved in its construction may be said to have been settled. 1. That the general form of a statute is not the criterion by which its general nature is determined. several instances, portions of the State have been exempted from the operation of a statute, in form general, by the enactment of local and special laws. The State v. The Judges, 21 Ohio St. 1; McGill v. The State, 34 Ohio St. 228. 2. That whether a law be of a general nature or not, depends upon the character of its subject matter. Kelly v. the State 6 Ohio St. 272; McGill v. The State 34 Ohio St. 228. It follows, therefore, that if the subject matter be of a general nature, all laws in relation thereto must, have a uniform operation throughout the State, and if the subject matter be of a local nature, the legislature may provide therefor by laws either general or local in form.

The difficulty, therefore, in all cases, is in determining whether the subject matter of a statute be of a general nature or not, and this difficulty, it seems to me, cannot be obviated by general rules, but by the consideration of each case as it arises. That courts, as well as legislators, will differ as to this question, in many cases, is to be expected. Hence, the presumption in favor of the constitutionality of statutes, when challenged under this provision, is entitled to peculiar weight. But, while this is so, courts dare not trifle with the guaranty of this Constitution, or fritter it away by holding the provision to be a mere direction to the General Assembly, whose judgment in the premises is final. That there are subjects for legislation of a general nature concerning which all statutes must have a uniform operation throughout the State, we entertain no doubt. And, although it would be presumptious to attempt an enumeration of them, I will venture to suggest the subjects of marriage and divorce, and the descent and distribution of estates, and others of like common and general interest to all citizens of the State.

In order, however, to avoid misunderstanding, I will here add, that on subjects concerning which uniformity is required, we have no doubt, that judicious classification and discrimination between classes, will not destroy the required uniformity.

Again, I assume that no one will dispute the proposition, that if the constitution declares a given subject for legislation to be one of a general nature, that all laws in relation thereto must have a uniform operation throughout the State, and courts should not hesitate to declare special and local enactments on such subject to be unconstitutional and void.

This brings us to the turning point in the

case. The constitution declares, not only that the General Assembly shall pass suitable laws to encourage schools and the means of instruction, (Sec. 7 Art. 1), but also, that it 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" (Section 2 Art. 6). A majority of the court are of opinion, that the subject of common schools is thus declared to be one of a general nature. These schools are sustained, in part, by a trust fund in which every section, as well as every individual of the State has a common interest. This is not all; the interest of every section and every individual is to be secured by a thorough and efficient system of schools, and as if it were to guard against such special and local legislation as we find in this statute, it is expressly declared that such system shall extend "throughout the State." It appears to me that no amount of logic could make plainer, the proposition, that the common schools of the State, as a subject for legislation, is one of a "public nature," and that all laws in relation to the organization and management thereof, must have a uniform operation throughout the State.

It is no answer to this objection to the statute, to say that the system inaugurated by the general law is not interfered with by this local act, inasmuch, as it is provided that the district of New London township shall be governed in every manner by the laws in force relating to village districts; for two reasons: 1st. Because under the general law there is no authority for extending the government of village districts over the sub-districts of townships, or for consolidating village and township districts in the manner provided in this act : and 2d. There is no authority under the general act for organizing a board of education, as under this local enactment, And surely it cannot be said that these matters are not parts and parcels of the system provided for in the general statute.

We will not undertake to compare the two systems as to efficiency. If the New London system is more efficient than that provided by the general law, it should be adopted throughout the State, otherwise it should not; but this is a consideration alone for the General Assembly. We are satisfied, however, that it was a wise provision in the Constitution that the system of common schools should be controlled and governed by general laws, so that the whole State may enjoy the benefits of the best system which the experience and wisdom of the legislature can devise. It does not require a prophetic eye to see, local legislation to suit the views of this locality and of that, would soon impair the efficiency of our public schools-that while in some places they might be elevated, in others they would be degraded. True, in some localities, from density of population and other causes, different necessities may exist requiring modification in the management of schools in order to attain the greatest efficiency; but for all such cases,

ample provision can be made by judicious classification and discrimination in general laws.

And I will add, in conclusion, that in expressing these views, the majority of the court should not be understood as holding, that, under peculiar circumstances, local legislation may not be resorted to for the purpose of enabling localities to discharge duties merely incidental, and such as would be incidental to any system; but would not either change or destroy the system itself, for instance, in the selection or change of school house sites, or the erection or repair of school buildings and the like.

Judgment of ouster.

[This case will appear in 38 O. S.]

CONCLUSIONS OF LAW AND FACT TO BE STATED BY THE COURT-STATUTE OF LIMITATIONS.

SUPREME COURT OF OHIO.

THE TRUSTEES OF OXFORD TOWNSHIP

บ.

THOMAS H. B. COLUMBIA ET AL.

April 18, 1882.

1. Where a party requests that the court state separately the conclusions of law and fact under the civil code, 280 (Rev. Stats. 5205), and the request is not complied with, a judgment against such party should be reversed, unless it appear from the record that he was not prejudiced by the refusal.

2. Trustees of a township holding title to lands granted to them by the general government for school purposes, are not exempt from the operation of the statute of limitations, in an action to recover possession of the premises.

Error to the District Court of Putnam County. The trustees of original surveyed Township of Oxford, Butler County, Ohio, commenced an action in the Court of Common Pleas of Paulding County, against Elsie Columbia and Thomas H. B. Columbia, to recover possession of a tract of land in that county, alleging in the petition that the plaintiffs have a legal estate in and are entitled to the immediate possession of the premises, and that the defendants wrongfully and unlawfully keep them out of possession. The summons served upon the defendants is dated May 25, 1875. The defendants admit that they are in possession of the premises, but they deny in their answer all other allegations in the petition.

The judge presiding in that county having an interest in the cause, the same was by agreement of parties certified for trial and judgment to the Court of Common Pleas of Putnam County, in which county a jury was waived and the cause submitted to the court. "Thereupon the plaintiffs requested the court to find and state in writing the conclusions of fact found separately from the conclusions of law in this case, for the purpose of excepting to the decision of the court upon questionsoflaw involved in the trial. On consideration whereof the court finds that the plaintiffs are not seized of an estate in or entitled to the possession of the property in the petition described

or any part thereof, but that the defendants are seized in fee simple and are rightfully entitled to the possession of said lands. Thereupon the plaintiffs moved the court for a new trial for reasons stated in their motion, which motion was overruled by the court. *** It is therefore considered and adjudged by the court that the defendants go hence without day and recover of the plaintiffs their costs. * * * And then came the plaintiffs and presented their bill of exceptions taken by them in this case, and the same is allowed and filed and ordered to be made part of the record in this case." That bill of exceptions. contains all the testimony offered on the trial.

The facts, so far as it is necessary to state them, are as follows: Under authority of an act of Congress approved March 3, 1839, "to authorize the trustees of the Township of Oxford, in the County of Butler, and State of Ohio, to enter a section of land in lieu of section sixteen, in said township, for the use of schools" (6 Stats. at Large, 773), the division of the south half of section nineteen lying west of the river, in township three north of range four east, in Paulding County, embracing the lands in dispute, was, on February 3, 1841, selected among other lands by the trustees of Oxford Township, for school purposes. Subsequently, the inhabitants of Oxford Township, at a meeting called, in pursuance of the statute, for such purpose, agreed to accept such selection; but it does not appear when that meeting was held. Oh October 5, 1841, the President of the United States issued a patent, reciting the facts above mentioned, and granting said lands "unto the trustees of the Township of Oxford and County of Butler, in the State of Ohio, for the use of schools." This patent was delivered to the trustees, and upon it their right to recover is based.

By virtue of acts of Congress passed in 1827 and 1828 (4 Stats. at Large, 236, 305), an act of the General Assembly passed in 1828 (27 Ohio L. 16,) and other acts (Swan's C. S. 166, 169; Swan's R. S. 137, 140; S. & C. 198, 200), and a selection made by John A. Bryan, special agent of Ohio, the State, it is claimed, became the owner of the premises in controversy, and clothed with the legal title thereto, in 1841.

In 1852, Dana Columbia went into possession of the west fraction of said south half of section nineteen, said fraction containing one hundred and sixty-four and nineteen-hundredths acres, and during that year and the year following he enclosed nearly seven-eighths of it with a good fence, cleared more than twenty acres, planted an orchard, farmed the cleared lands, employed workmen to assist in quarrying stone upon and clearing the lands, and kept cattle thereon. He continued to improve the lands, built a good frame dwelling house thereon, built a barn, planted another orchard, made a cistern, and moved upon the farm, where he resided until his death, which occurred in 1865. During all the time from 1852 until his death, his occupancy was open, notorious, continuous and exclusive; and since his death the defendants, his