pos

widow and son, who have succeeded to his rights, have occupied in the same manner that part of the premises for which the suit is brought. During the time that Dana Columbia occupied the premises he claimed to be in session as owner under the State. This is shown by the testimony of several witnesses. Judge Latty, a witness called by the plaintiffs, testified: "Columbia called on me and wanted to know if there was any difficulty in the title of the State, or what was the difficulty. * * * I told him I did not know; * * * he might not be disturbed. He told me he was about to purchase it at a certain price. *** My recollection of the date of the conversation with Columbia is, that it was about 1852 when he spoke of purchasing the land. This may have been a second conversation when he told

me he was about to purchase it at a certain price. Afterward he told me he had purchased it. *** My impression was that he had surrendered his first certificate and taken a second." This sec

ond certificate issued by the State to Columbia, is dated June 2, 1854, and the purchase money, $328.38, having been paid in full by him, the Governor, on January 9, 1855, executed and delivered to him a deed for the premises. He also paid during his life all the taxes assessed against the lands, and the defendants, since his death, have regularly paid all the taxes assessed against that portion of said lands in controversy in this case. In 1866, the widow and heirs, being in possession of the whole tract purchased by Dana Columbia, conveyed to Calvin L. Noble the north half of the tract, and he has remained in possession ever since, paying taxes and farming the lands, and it is agreed that he has succeeded to the rights of Dana Columbia and his widow and his heirs therein.

Other facts with respect to the title which appear in the record, and have been commented on by counsel, need not be here stated, in view of the grounds upon which the court has placed

the decision of the case.

quest it, with the view of excepting to the decision of the court upon the questions of law involved in the trial, in which case the court shall state in writing the conclusions of fact found separately from the conclusions of law." Civil Code, § 280; Rev. Stats. § 5205, note. This provision is one of much importance,, and it is in no sense directory. That there was no proper compliance with the request is admitted; and it is clear to us that the action of the court in that respect affords ground of reversal, unless it be shown that the plaintiffs were not prejudiced thereby. But we are of opinion that it is shown that there was no such prejudice as to call for a reversal on that ground. The record contains all the testimony offered on the trial, and objection is made that the judgment below is opposed to the weight of the evidence. In deciding the case, therefore, we necessarily ascertain the facts.

issued 66

2. If a patent for the lands in dispute could be properly issued by the President, under the act of Congress approved in 1839 (6 Stats. at Large, 773), that patent was, probably, properly unto the trustees of the township of Oxford and county of Butler, in the State of Ohio, for the use of schools," for the title, under the act and patent, would, it seems, pass to the trustees and not the State, notwithstanding the remarks in Trustees v. Campbell, 17 Ohio 267, affirmed, 13 Howard 244. But we do not find it necessary to determine whether a patent for the lands was or could have been properly issued ; nor is it necessary to decide whether the State was or was not, at any time, clothed with the legal title to the premises. Assuming, without deciding, that the trustees of Oxford township became clothed with the legal title to the premises in 1841, we all unite in holding that they are barred from maintaining this suit by the limitation of twenty-one years prescribed in the statute as the period within which actions to recover the possession of real estate may be brought. This action, as already stated, was brought in 1875. But Dana Columbia was in possession of the premises from 1852 until his death in 1865, and the defendants who succeeded to his rights have been in possession ever since, and that possession has been, during the whole period, in the largest sense open, notorious, adverse, uninterrupted and exclusive. It has been held and maintained, moreover, from the beginning, under a purchase from the State, and the purchase money and all taxes have been paid. Large and valuable improvements were made by Columbia upon the premises as early as 1852, and he resided thereon at the time of his death; and if it is true that the trustees became the owners of the premises for school purposes in 1841, there was no time from 1852 until 1873, when they were not clothed with the power and charged with the duty of prosecuting an action to recover possession. 1 S. & C. 1577.

The plaintiffs insist, nevertheless, that the title to the premises, under the act of Congress of 1839, was in the State, and that the statute of limitations does not run against the State: We

have held, however, that the position that the title was in the State, under that act, is not tenable. But if the title had been vested in the State, the result would have been the same, for the State would have been estopped by its deed to Columbia. Branson v. Wirth, 17 Wall. 32, 42. And see 3 Pick. 224; 7 Cal. 527; 4 Peters 87. It is also said that the plaintiffs are the trustees of an express trust, and that the action is not barred for that reason. Civil Code, §§ 6, 27; Rev. Stats. SS 4974, 4995. But this is not an action between trustees and beneficiaries.

The remaining question, then, is whether the statute of limitations applies, assuming that the plaintiffs, as trustees of Oxford township, acquired title to the premises, by donation from the general government, in 1841, for the benefit of schools. That the maxim, nullum tempus occurrit regi, is applicable to the general and State governments, is not denied; but it was held in Čincinnati v. First Presbyterian Church, 8 Ohio 298, upon the fullest consideration, that the maxim did not apply where a city prosecuted an action of ejectment to recover possession of lots dedicated to public use, the defendants in the action having been in the adverse possession of the lots for more than twenty-one years. I am aware that cases may be found in opposition to that decision. Several of them are collected in a note to the case as reported in 32 Am. Dec. 718, 721. But that decision has been repeatedly approved in this court, and, as applied to a case like the one under consideration, it is amply supported here and elsewhere. Williams v. First Presdyterian Church, 1 Ohio St. 478, 510; Trustees v. Campbell, 16 Ohio St. 11; School Directors v. Georges, 50 Mo. 195; 2 Dillon on Mun. Corp. (3d ed.) §§ 668, 674; and see note above referred to. As to the application of the rule to adverse possession of public ways, see Cincinnati v. Evans, 5 Ohio St. 594; cf. Fox v. Hart, 11 Ohio 414; Lane v. Kennedy, 13 Ohio St. 42; McClelland v. Miller, 28 Ohio St. 488; Railroad v. Commissioners, 31 Ohio St. 338.

Judgment affirmed.

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

QUO WARRANTO- POWER OF MAYOR TO REMOVE MUNICIPAL OFFICER.

SUPREME COURT OF OHIO.

THE STATE OF OHIO EX. REL. ATTORNEY GEN

ERAL. V.

HENRY HEINMiller.

April 25, 1882.

Under section 1749, of Revised Statutes, the mayor of a city has power to suspend officers appointed by him under an ordinance, for neglect of duty, misconduct in office or other sufficient cause, "and may appoint other persons to fill the temporary vacancy occasioned thereby; and all such suspensions, and the cause thereof, and all such appointments, shall be by him reported to the council for their action at the next regular meeting thereafter." Held: 1st. That the council may, in its discre

tion, approve or disapprove such suspension. 2d. That the action of the council may be had upon such information as may come to its knowledge. 3d. That disapproval of such suspension by the council terminates the vacancy occasioned thereby. 4th. Upon the termination of such vacancy, the person appointed to fill it, ceases to be an officer of the city.

2. A petition in quo warranto prosecuted on behalf of the State by the Attorney General to oust an incumbent of an office, need not set forth the name of the person claiming to be entitled thereto, as is required by section 6766 of the Revised Statutes in cases prosecuted by a person claiming to be entitled to the office.

Quo Warranto.

The case is stated in the opinion.
MCILVAINE, J.

By this proceeding, the defendant is called upon to show by what authority he assumes to hold and exercise the office of Fire Engineer of the city of Columbus.

This office was created by an ordinance of the city, passed on the 8th of May, 1871, which was amended June 8, 1874. This ordinance, which was fully authorized by the statutes of the State relating to the organization and government of municipal corporations, provides, among other things as follows:

The

"SECTION 1. Be it ordained by the City Council of Columbus, That it is deemed expedient to create, and there is hereby created, the office of fire engin eer of the city of Columbus; that such officer shall be appointed by the mayor, by and with the advice and consent of the city council of said city, on the first Monday of June, A. D. 1871, and annually thereafter, and shall hold his office for the period of one year, and until his successor is appointed and qualified, and all vacancies in said office shall in like manner, immediately upon the vacancy occurring, be filled by ap pointment for the unexpired term, and until a successor is appointed and qualified. mayor shall immediately upon making any such appointment, report the name of such appointee to the city council of said city for its action thereon; the fire engineer shall perform the duties prescribed in the act entitled, "An act to provide for the organization and government of municipal corporations, passed May 7, 1869, and the acts amendatory thereof, and supplementary thereto, as well as the duties prescribed by this or any other ordinances of the city; the person so appointed shall be an elector of the city of Columbus, and before entering upon the duties of his office shall take an oath or affirmation to support the Constitution of the United States and the State of Ohio, and also an oath or affirmation of office, and shall also execute a bond to the city of Columbus in the sum of $5,000, to be approved by the mayor, conditioned for the faithful performance of the duties of his office, which bond shall be deposited with the clerk of the corporation and shall be by the clerk, with the approval endorsed thereon, recorded, filed and preserved in his office: the said fire engineer shall receive as compensation for his services the sum of $1,000 payable monthly from the city treasury."

The facts in the case are agreed upon, and, in so far as they are deemed material, are as follows;

On the 6th of September, 1880, one David Tresenrider was duly appointed, confirmed and qualified as Fire Engineer, whose term of office would have expired in June following, if a successor had been appointed and qualified; but inasmuch as no successor was appointed, confirmed and qualified, he continued to execise the functions of the office until the following occurrences, which are thus stated in defendant's answer:

That previous to the second day of March, A. D. 1882, specific charges of neglect of duty and misconduct in office on the part of said David D. Tresenrider, were filed with George S. Peters, then the duly elected and qualified and acting mayor of said city, and that thereupon such proceedings were had before said mayor after reasonable notice to said David D. Tresenrider to appear and answer said charges; and after a hearing upon testimony, at which the said David D. Tresenrider was present in person and by counsel, that said mayor, upon the testin.ony adduced before him, found said charges to be true, and on said 2nd day of March, A. D. 1882, for such neglect of duty and misconduct on the part of said David D. Tresenrider, suspended him from said office of fire engineer; and immediately thereafter appointed this defendant, who was then and is now an elector of said city, to fill the vacancy occasioned in said office by such suspension; and that said defendant immediately after said appointment accepted said office, and immediately took an oath to support the Constitution of the United States and the state of Ohio: and an oath of office faithfully and impartially to discharge all and singular the duties pertaining thereto, and immediately gave bond with good and sufficient sureties to said city of Columbus in the sum of $5,000, conditioned according to law and the ordinances of said city, which bond was approved by said mayor as required by said ordinance regulating and defining the duties of said office, and that immediately thereafter said defendant entered upon the discharge of all and singular the duties pertaining to said office of fire engineer of said city of Columbus, and has ever since continued, and now continues to discharge such duties under and in pursuance of said appointment.

In reply to this answer, the relator states the following facts, among others, to wit:

"That on the 6th day of March, A. D. 1882, at a regular meeting of the city council of said city of Columbus, duly and lawfully assembled and held, being the next regular meeting of said council after said 2d day of March, A. D. 1882, the said George S. Peters, mayor of said city of Columbus, reported to said city council in writing the said suspension of said David D. Tresenrider as fire engineer of said city, the cause thereof, and the appointment by him of said Henry Heinmiller, the defendant, to fill the temporary vacancy in said office caused thereby; that the said city council thereupon entered upon the investigation and consideration of the matter of said suspension, the cause thereof, and said appointment so reported as aforesaid, and,

pending said investigation and consideration, the council adjourned its said session until the succeeding day, March 7, 1882; that on said 7th day of March, A. D. 1882, at said adjourned meeting of said city council, duly and lawfully assembled and held, the said council resumed and continued the investigation and consideration of said matters aforesaid, and upon the conclusion thereof, the said council, on the 7th day of March, 1882, by a majority vote of all the members elected thereto, passed and adopted a resolution, of which the following is a true and correct copy, to wit:

"Resolved by the City Council of the City of Columbus, That the order of the mayor of said city suspending D. D Tresenrider from his office of fire engineer of said city, and appointing Henry Heinmiller to fill the temporary vacancy occasioned thereby, be not concurred in; that said. order be set aside and held for naught, and that said D. D. Tresenrider be, and he is hereby directed to proceed at once to discharge the duties of said office and take control and command of the fire department of said city the same as if said order had not been made."

The facts stated in reply are admitted to be true; but it is agreed that the testimony heard by the mayor, was not reported by him to the council. A large portion, however, but not the whole, of such testimony reported by an unauthorized stenographer, was considered by the council, but no witnesses were examined before the council, nor is it known what inquiry, if any, was made by individual members of the council, concerning the truth of the charges preferred against Tresenrider.

Upon this state of facts, the question is, has the defendant shown a right to hold the office?

In the first place it is claimed on behalf of the defendant that the finding and judgment of the mayor on the hearing of the charges preferred against Tresenrider were the exercise of judicial powers. Wherefore the finding that Tresenrider was guilty of neglect of duty in office and the order of his suspension from office can not be reviewed by this court upon this proceeding in quo warranto.

Whether the powers exercised by the mayor were judicial or administrative is wholly immaterial, as it is not sought in this proceeding to review his acts for the purpose of approving or disapproving them. His finding and order must stand as incontrovertible facts in the case. The sole question before us as far as his actions are concerned, is as to their force and effect. And this brings us to consider section 1749 of the Revised Statutes, which constitutes the sole authority of the mayor for his action in the premises. This section provides as follows:

"Section 1749. He shall, unless otherwise provided, have power to suspend from office any lieutenant of police, or any officer appointed by him under the authority of any law or ordinance, for neglect of duty, misconduct in office, or other sufficient cause, and may appoint other persons to fill the temporary vacancy occasioned thereby; and all such suspensions, and

the cause thereof, and all such appointments, shall be by him reported to the council for their action at the next regular meeting thereafter."

That a suspension under this section cannot be rightfully ordered without cause, may be admitted; but the existence of sufficient cause will be presumed until it appears otherwise. But whenever a suspension is ordered, whether rightfully or wrongfully, it operates, as between the officer and the municipality, until the order be set aside, or the term of suspension expires. An exigency calling for the exercise of the power exists, whenever the existence of sufficient cause. comes to the knowledge of the mayor, and the means of acquiring such knowledge is not prescribed or limited by the statute: so that the exercise of the power is left to the sound discretion of the mayor, who is also responsible for its abuse.

That the duration of the suspension authorized by this section is to be measured by the duration of the vacancy occasioned by it, is a proposition too plain for discussion; and it is expressly declared that the vacancy occasioned by the suspension is temporary. A suspension from ofA suspension from office and a removal from office convey very different ideas; and it is very clear that the legislature recognized the difference, as by section 1685 of the same act, the power of removal from office in municipalities is conferred on the council alone. In the case of suspension it is contemplated that the suspended officer may be restored to his office and hold the same by virtue of his original title, while in case of removal the title of the removed officer is permanently lost to him. The vacancy in this case being temporary, and the suspension being for the same time, of course, the suspended officer is restored to his office at the expiration of that time, unless his right and title be impaired or taken away by some other

cause.

It has not and cannot be disputed that the title of the defendant to this office terminated with the termination of the vacancy which he was appointed to fill. The question therefore arises, when did such vacancy terminate? The statute requires the mayor to report "to the council for their action" at the next regular meeting thereafter, "all such suspensions, and the cause thereof, and all such appointinents" to wit: appointments to fill temporary vacancies occasioned by such suspensions. Now, it is claimed on behalf of defendant that the only action upon the report of the mayor, which the council is authorized to take, is to approve the suspension and to approve or disapprove the appointment. We are unanimous in the opinion that this claim cannot be maintained. The action of the council is unrestricted. It may act upon its own absolute discretion in approving or disapproving the whole or any part of the report. Discretion to approve implies discretion to disapprove. The action of the council is confided to its judgment and that judgment may be based upon such information and knowledge as it may obtain. No restriction or limitation is imposed

upon the council as to means of acquiring the knowledge by which its action must be controlled.

Whatever may be the effect of the action of the council in approving the action of the mayor in ordering a suspension, in the light of section 1685, which provides:

"Sec. 1685. An officer or agent, appointed by authority of this title, except as otherwise provided therein, may be removed from office at the pleasure of the council by a vote of a majority thereof; an officer elected may be removed from office by a concurrent vote of twothirds of all the members elected to the council and in case of elective officers, provisions shall be made by ordinance for preferring charges, and trying the party complained of upon the same; but in no case shall such removal be made, unless a charge in writing is preferred and an opportunity given to make defense"-a subject we need not now inquire into-it is quite clear to us, that the action of the council disapproving of the order of suspension, ipso facto, terminates the vacancy occasioned by it, and also terminates the suspension itself; so that, an appointee to fill such vacancy can no longer rightfully exercise the functions of the office.

It is also claimed on behalf of defendant, that the petition in this case is defective in not setting forth the name of the person who claims to be entitled to the office, as required by section 6766 of the Revised Statutes. This section applies only to proceedings prosecuted by the person who claims the office as provided in section 6764, and such showing is certainly necessary when a judgment of induction as well as ouster is sought. The case before us, however, is prosecuted by the Attorney General on behalf of the State, as authorized by statutes in relation to the duty of the Attorney General, and the only remedy sought is a judgment of

to New York by the consolidation of certain shorter lines and otherwise, and that it was a part of his plan to obtain control of the New York and New England, by electing directors favorable to his scheme; that the publication of the article complained of, interfered with this plan to his prejudice, and that the statements of the article were not true, but were published in good faith, without express malice, and were, upon reasonable inquiry by the defendants, believed by them to be true. The contention then, is, on the part of the defendants, that the subject matter is one in which the public has an interest, and that, in discussing a subject of that sort, a public speaker or writer is not bound at his peril to see that the statements are true, but has a qualified privilege, as it has been called, in respect to such matters. The modern doctrine, as shown by the cases cited for the defendants, appears to be that the public has a right to discuss in good faith the public conduct and qualifications of a public man, such as a judge, an ambassador, etc., with more freedom than they can take with a private matter, or with the private conduct of any one. In such discussions they are not held to prove the exact truth of their statements, and the soundness of their inferences, provided that they are not actuated by express malice, or that there is reasonable ground for their statements or inferences, all of which is for the jury. Some of the affairs of a railroad company are public and some are private. For instance, the honesty of a clerk or servant in the office of the company is a matter for the clerk and the company only. The safety of a bridge on the line is a subject of public moment. The public, in this sense, is a number who are or will be interested and yet who are at present unascertainable. All the future passengers on the road are the public in respect to the safety of the bridge, and as they can not be pointed out you may discuss the construction of the bridge in public, though you thereby reflect upon the character of the builder. If this definition of the public is a sound one, the commonwealth, considered as a stockholder, is not the public, for its interests are entrusted to certain officers, who are easily ascertained; nor would the interests of the shareholders become a public matter merely by reason of their number, unless it were proved that it would be virtually impossible to reach them individually. If, therefore, the question was merely of the effect of the scheme upon the shares of the New York and New England Railroad Company, a corporation already chartered and organized, I should doubt somewhat whether it would be of a public nature. But, inasmuch as the project was one which affected a long line of road, as yet only partly built, and the consolidation of several companies, it assumes public importance. Perhaps the right of legislative interference may be taken as a fair test of the right of public discussion, since they both depend upon the same condition. The legislature can not interfere in the purely private affairs of a company, but it may control such of them as affect the public. It can not be doubted

I apprehend, that the legislatures of Massachusetts and Connecticut would have power to permit, or to prohibit, or to modify a scheme such as is now in question. It interests the public, consisting of the unascertained persons who will be asked to take shares in it and those through whose lands it may pass, or whose business will be helped or hindered by it, that such a line should be well, and even that it should be honestly laid out, built and carried through. For this the character of the plaintiff as a constructor and manager of railroads seems to me to be open to public discussion when he comes forward with so great and important a project, affecting many interests besides the shareholders of one road, and that, therefore, the defendants, or any other persons, have the qualified privilege which attaches to the discussion of public affairs. The distinction is that when a railroad is to be built, or a company to build it is to be chartered, the question whether it shall be authorized is a public one; when the company is organized and the stock is issued, anything which merely affects the value of the stock is private. The demurrer to the answer is overruled.

PUBLIC OFFICER-WRONGFUL DISMISSAL

-OFFICE FILLED-SALARY
DURING DISMISSAL.

N. Y. COURT OF APPEALS.

TERHUNE V. THE MAYOR.

February 28, 1882.

A public officer, appointed by a department of a muniby the department, though without any hearing, for any cipal government, who has been disinissed from his office alleged cause of dismissal, and whose office has been filled by an appointee who has performed the duties of the office and received the stipulated salary therefor, can. not after his reinstatement recover the salary for the time he was out of position.

Under $ 28 and 76 of the Act, c. 335 of the Laws of 1873, the fire commissioners of the city of New York were authorized to appoint an inspector of combustibles, who was to be the principal officer of a bureau in the fire department, charged with the execution of all laws relating to the storage and sale and use of combustible materials in the city of New York, and they had power to remove such officer at pleasure, provided prior notice of the cause of removal, and an opportunity for making an explanation, were first given. Under these provisions of law the plaintiff was appointed inspector of combustibles in June, 1873, at a salary of $2,500 per year, and he held his office until August 31, 1877, when he was dismissed by the fire commissioners, either without sufficient cause or without having had the prior notice and opportunity for explanation which the law entitled him to. He subsequently took proceedings to have the action of the fire commissioners in removing him reviewed, and the supreme court decided that his removal was unauthorized and illegal, and he was reinstated in his office. Immediately upon his removal the