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widow and son, who have succeeded to his rights, quest it, with the view of excepting to the have occupied in the same manner that part of decision of the court upon the questions of law the premises for which the suit is brought. involved in the trial, in which case the court

During the time that Dana Columbia occupied shall state in writing the conclusions of fact the premises he claimed to be in

found separately from the conclusions of law."

pos3ession as owner under the State. This Civil Code, 8 280; Rev. Stats. $ 5205, note. This is shown by the testimony of several wit. provision is one of much importance, and it is nesses. Judge Latty, a witness called by the in no sense directory. That there was no proper plaintiffs, testified: "Columbia called on me and

compliance with the request is admitted; and wanted to know if there was any difficulty in

it is clear to us that the action of the court in the title of the State, or what was the difficulty: be shown that the plaintiffs were not prejudiced


that respect affords ground of reversal, unless it * I told him I did not know;

* he might not be disturbed. He told me he was

thereby. But we are of opinion that it is shown about to purchase it at a certain price. * * * that there was no such prejudice as to call for a My recollection of the date of the conversation

reversal on that ground. The record contains with Columbia is, that it was about 1852 when all the testimony offered on the trial, and objeche spoke of purchasing the land. This may

tion is made that the judgment helow is opposed have been a second conversation when he told

to the weight of the evidence. In deciding the me he was about to purchase it at a certain price.

case, therefore, we necessarily ascertain the facts. Afterward he told me he had purchased it. ***

2. If a patent for the lands in dispute could My impression was that he had surrendered his be properly issued by the President, under the first certificate and taken a second." This sec

act of Congress approved in 1839 (6 Stats. at ond certificate issued by the State to Columbia, Large, 773), that patent was, probably, properly is dated June 2, 1854, and the purchase

the purchase issued “unto the trustees of the township of money, $328.38, having been paid in full by Oxford and county of Butler, in the State of him, the Governor, on January 9, 1855, executed Ohio, for the use of schools,” for the title, under and delivered to him a deed for the premises.

the act and patent, would, it seems, pass to the He also paid during his life all the taxes as

trustees and not the State, notwithstanding the sessed against the lands, and the defendants,

remarks in Trustees v. Campbell, 17 Ohio 267, since his death, have regularly paid all the taxes affirmed, 13 Howard 244. But we do not find it assessed against that portion of said lands in

necessary to determine whether a patent for the controversy in this case. In 1866, the widow

lands was or could have been properly issued ; and heirs, being in possession of the whole tract

nor is it necessary to decide whether the Staté purchased by Dana Columbia, conveyed to was or was not, at any time, clothed with the Calvin L. Noble the north half of the tract, legal title to the premises. Assuming, without and he has remained in possession ever

deciding, that the trustees of Oxford township since, paying taxes and farming the lands,

became clothed with the legal title to the premand it is agreed that he has succeeded to

ises in 1841, we all unite in holding that they the rights of Dana Columbia and his widow and

are barred from maintaining this suit by the his heirs therein.

limitation of twenty-one years prescribed in the Other facts with respect to the title which

statute as the period within which actions to appear in the record, and have been commented recover the possession of real estate may be on by counsel, need not be here stated, in view brought. This action, 's already stated, was of the grounds upon which the court has placed brought in 1875. But Dana Columbia was in the decision of the case.

possession of the premises from 1852 until his The District Court of Putnam County affirmed

death in 1865, and the defendants who succeeded the judgment of the court of common pleas,

to his rights have been in possession ever since, and this petition in error was filed to reverse the

and that possession has been, during the whole judgment of the latter court as well as the

judg- period, in the largest sense open, notorious, adment of affirmance.

verse, uninterrupted and exclusive. It has been

held and maintained, moreover, from the beginH. Newbegin and A. S. Latty, for plaintiffs in ning, under a purchase from the State, and the

purchase money and all taxes have been paid. *C. H. Scribner and $. T. Sutphen, for defend- Large and valuable improvements were made ants in error.

by Columbia u pon the premises as early as 1852,

and he resided thereon at the time of his death; OKEY, C. J.

and if it is true that the trustees became the In disposing of this case, it is necessary to owners of the premises for school purposes in determine two questions. 1. The plaintiffs re- 1841, there was no time from 1852 until 1873, quested the court to state separately, in writing, when they were not clothed with the power and the conclusions of law and fact. That request charged with the duty of prosecuting an action was made under the statute, which provided: to recover possession. is. & C. 1577.

18. "Upon the trial of questions of fact by the The plaintiffs insist, nevertheless, that the court, it shall not be necessarv for the court to title to the premises, under the act of Congress of state its finding, except generally for the plaint. 1839, was in the State, and that the statute of iff or defendant, unless one of the parties ro- limitations does not run against the State: We

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have held, however, that the position that the tion, approve or disapprove such suspension. 20. That title was in the State, under that act, is not ten

the action of the council may be had upon such informa

tion as may come to its knowledge. 3d. That disapable. But if the title had been vested in the

proval of such suspension by the council terminates the State, the result would have been the same, for vacancy occasioned thereby. 4th. Upon the terminathe State would have been estopped by its deed

tion of such vacancy, the person appointed to fill it,

ceases to be an officer of the city. to Columbia. Branson v. Wirth, 17 Wall. 32,

A petition in quo warranto prosecuted on behalf of 42. And see 3 Pick. 224; 7 Cal. 527; 4 Peters the State by the Attorney General to oust an incumbent 87. It is also said that the plaintiffs are the

of an ottice, need not set forth the name of the person

claiming to be entitled thereto, as is required by section trustees of an express trust, and that the action 6766 of the Revised Statutes in cases prosecuted by a peris not barred for that reason. Civil Code, SS 6, son claiming to be entitled to the office. 27; Rev. Stats. SS 4974, 4995. But this is not Quo Warranto. an action between trustees and beneficiaries. The case is stated in the opinion. The remaining question, then, is whether the

MCILVAINE, J. statute of limitations applies, assuming that the By this proceeding, the defendant is called plaintiffs, as trustees of Oxford township, ac- upon to show by what authority he assumes to quired title to the premises, by donation from hold and exercise the office of Fire Engineer of the general government, in 1841, for the benefit

the city of Columbus. of schools. That the maxim, nullum tempus occur- This office was created by an ordinance of the rit regi, is applicable to the general and State city, passed on the 8th of May, 1871, which was governments, is not denied; but it was held in amended June 8, 1874. This ordinance, which Cincinnati v. First Presbyterian Church, 8 Ohio was fully authorized by the statutes of the State 298, upon the fullest consideration, that the relating to the organization and government of maxim did not apply where a city prose- municipal corporations, provides, among other cuted an action of ejectment to recover pos- | things as follows: session of lots dedicated to public use, the de- “SECTION 1. Be it ordained by the City Council of fendants in the action having been in the Columbus, That it is deemed expedient to create, adverse possession of the lots for more and there is hereby created, the office of fire engin. than twenty-one years.

I am aware that cases eer of the city of Columbus; that such officer shall may be found in opposition to that decision. be appointed by the mayor, by and with the adSeveral of them are collected in a note to the vice and consent of the city council of said city, case as reported in 32 Am. Dec. 718, 721. But on the first Monday of June, A. D. 1871, and anthat decision has been repeatedly approved in nually thereafter, and shall hold his office for this court, and, as applied to a case like the one the period of one year, and until his successor under consideration, it is amply supported here is appointed and qualified, and all vacancies in and elsewhere. Williams v. First Presdyterian said office shall in like manner, immediately Church, 1 Ohio St. 478, 510; Trustees v. Camp- upon the vacancy occurring, be filled by ap bell, 16 Ohio St. 11; School Directors v. Georges, pointment for the unexpired term, and until 50 Mo, 195 ; 2 Dillon on Mun. Corp. (3d ed.) ss a successor is appointed and qualified. The 668, 674; and see note above referred to. As to mayor shall immediately upon making any the application of the rule to adverse possession such appointment, report the name of such of public ways, see Cincinnati v. Evans, 5 Ohio appointee to the city council of said city for St. 594 ; cf. Fox v. Hart, 11 Ohio 414; Lane v. its action thereon; the fire engineer shall perKennedy, 13 Ohio St. 42; McClelland v. Miller, form the duties prescribed in the act entitled, 28 Ohio St. 488; Railroad v. Commissioners, 31 "An act to provide for the organization und govOhio St. 338.

ernment of municipal corporations, passed May Judgment affirmed.

7., 1869, and the acts amendatory thereof, und [This case will appear in 38 0. S.]

fupplementary thereto, as well as the duties

prescribed by this or any other ordinances of QUO WARRANTO– POWER OF MAYOR the city; the person so appointed shall be an TO REMOVE MUNICIPAL OFFICER. elector of the city of Columbus, and before enter

ing upon the duties of his office shall take an SUPREME COURT OF OHIO.

oath or affirmation to support the Constitution

of the United States and the State of Ohio, and THE STATE OF OHIO EX. REL. ATTORNEY GEN- also an oath or affirmation of office, and shall ERAL.

also execute a bond to the city of Columbus in

the sum of $5,000, to be approved by the mayor, HENRY HEINMILLER.

conditioned for the faithful performance of the du

ties of his office, which bond shall be deposited

April 25, 1882. with the clerk of the corporation and shall be by Under section 1749, of Rovised Statutes, the mayor of a the clerk, with the approval endorsed thereon, roolty bas power to suspend officers appointed by him un. corded, filed and preserved in his office : the said dor an ordinance, for neglect of duty, misconduct in office or other sufficient cause, "and may appoint other

fire engineer shall receive as compensation for persons to fill the temporary vacancy occasioned thereby;

his services the sum of $1,000 payable monthly and all such suspensions, and the cause thereof, and all from the city treasury." such appointments, shall be by him reported to the council for their action at the next regular meeting thereaf.

The facts in the case are agreed upon, and, in tof." Held: 1st. That the council may, in Its discro- 80 far as they are deemed material, ato as follows;



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On the 6th of September, 1880, one David Tres- pending said investigation and consideration, enrider was duly appointed, confirmed and quals the council adjourned its said session until the ified as Fire Engineer, whose term of office would succeeding day, March 7, 1882; that on said 7th have expired in June following, if a successor day of March, A. D. 1882, at said adjourned meet had been appointed and qualified; but inasmuch ing of said city council, duly and lawfully assemas no successor was appointed, confirmed and qual bled and held, the said council resumed and con. ified, he continued to execise the functions of tinued the investigation and consideration of the office until the following occurrences, which said matters aforesaid, and upon the conclusion are thus stated in defendant's answer:

thereof, the said council, on the 7th day of March, That previous to the second day of March, 1882, by a majority vote of all the members elected A. D. 1882, specific charges of neglect of duty thereto, passed and adopted a resolution, of which and misconduct in office on the part of said David the following is a true and correct copy, to wit: D. Tresenrider, were filed with George S. Pe- “Resolved by the City Council of the City of Coters, then the duly elected and qualified and act- lumbus, That the order of the mayor of said city ing mayor of said city, and that thereupon such suspending D. D Tresenrider from his office of proceedings were had before said mayor after fire engineer of said city, and appointing Henry reasonable notice to said David D. Tresen- | Heinmiller to fill the temporary vacancy occasrider to appear and answer said charges; and ioned thereby, be not concurred in; that said. after a hearing upon testimony, at which the order be set aside and held for naught, and that said David D. Tresenrider was present in per- said D. D. Tresenrider be, and he is hereby dison and by counsel, that said mayor, upon the rected to proceed at once to discharge the duties testin.ony adduced before him, found said charges of said office and take control and command of to be true, and on said 2nd day of March, A. D. the fire department of said city the same as if 1882, for such neglect of duty and misconduct on said order had not been made." the part of said David D. Tresenrider, suspended The facts stated in reply are admitted to be him from said office of fire engineer; and immedi- true; but it is agreed that the testimony heard ately thereafter appointed this defendant, who by the mayor, was not reported by him to the was then and is now an elector of said city, to fill council. A large portion, however, but not the the vacancy occasioned in said office by such whole, of such testimony reported by an unaubuspension, and that said defendant immediate- thorized stenographer, was considered by the ly after said appointment accepted said office, and council, but no witnesses were examined before immediately took an oath to support the Consti- the council, nor is it known what inquiry, if tution of the United States and the state of Ohio: any, was made by individual members of the and an oath of office faithfully and impartially council, concerning the truth of the charges to discharge all and singular the duties pertains preferred against Tresenrider. ing thereto, and immediately gave bond with Upon this state of facts, the question is, has good and sufficient sureties to said city of Colum- the defendant shown a right to hold the office? bus in the sum of $5,000, conditioned according In the first place it is claimed on behalf of the to law and the ordinances of said city, which defendant that the finding and judgment of the bond was approved by said mayor as required mayor on the hearing of the charges preferred by said ordinance regulating and defining the against Tresenrider were the exercise of judiduties of said office, and that immediately there- cial powers. Wherefore the finding that Tresenafter said defendant entered upon the discharge rider was guilty of neglect of duty in office and of all and singular the duties pertaining to said the order of his suspension fron office can not be office of fire engineer of said city of Columbus, reviewed by this court upon this proceeding in and has ever since continued, and now contin- quo warranto. ues to discharge such duties under and in pursu- Whether the powers exercised by the mayor ance of said appointment.

were judicial or administrative is wholly immaIn reply to this answer, the relator states the terial, as it is not sought in this proceeding to following facts, among others, to wit:

review his acts for the purpose of approving or “That on the 6th day of March, A. D. 1882, at disapproving them. His finding and order must a regular meeting of the city council of said city stand as incontrovertible facts in the case. The of Columbus, duly and lawfully assembled and sole question before us as far as his actions held, being the next regular meeting of said are concerned, is as to their force and effect. council after said 2d day of March, A. D. 1882, And this brings us to consider section 1749 of the said George S. Peters, mayor of said city of the Revised Statutes, which constitutes the sole Columbus, reported to said city council in writ. authority of the mayor for his action in the ing the said suspension of said David D. Treren- premises. This section provides as follows: rider as fire engineer of said city, the cause “Section 1749. , He shall, unless otherwise thereof, and the appointment by him of said provided, have power to suspend from office any Henry Heinmiller, the defendant, to fill the tem- fieutenant of police, or any officer appointed by porary, vacancy in said office caused thereby; | him under the authority of any law that the said city council thereupon entered or ordinance, for neglect of duty, misconduct in upon the investigation and consideration of the office, or other sufficient cause, and may appoint matter of said suspension, the cause thereof, and other persons to fill the temporary vacancy ocsaid appointment so reported as aforesaid, 'and, I casioned thereby; and all such suspensions, and the cause thereof, and all such appointments, upon the council as to means of acquiring the shall be by him reported to the council for their knowledge by which its action must be conaction at the next regular meeting thereafter." trolled.

That a suspension under this section cannot Whatever may be the effect of the action of be rightfully ordered without cause, may be ad- the council in approving the action of the mitted; but the existence of sufficient cause will mayor in ordering a suspension, in the light of be presumed until it appears otherwise. But section 1685, which provides: whenever a suspension is ordered, whether right- “Sec. 1685. An officer or agent, appointed fully or wrongfully, it operates, as between the by authority of this title, except as otherwise officer and the municipality, until the order be provided therein, may be removed from office set aside, or the term of suspension expires. An at the pleasure of the council by a vote of a exigency calling for the exercise of the power majority thereof; an officer elected may be reexists, whenever the existence of sufficient cause moved from office by a concurrent vote of twocomes to the knowledge of the mayor, and the thirds of all the members elected to the coun. means of acquiring such knowledge is not pre- cil: and in case of elective officers, provisions scribed or limited by the statute: so that the shall be made by ordinance for preferring charges, exercise of the power is left to the sound discre- and trying the party complained of upon th tion of the mayor, who is also responsible for its same; but in no case shall such removal be made, abuse.

unless a charge in writing is preferred and an That the duration of the suspension author- opportunity given to make defense ”—a subject

-a ized by this section is to be measured by the dura- we need not now inquire into it is quite clear tion of the vacancy occasioned by it, is a prop- to us, that the action of the council disapprovosition too plain for discussion; and it is expressing of the order of suspension, ipso facto, termily declared that the vacancy occasioned by the nates the vacancy occasioned by it, and also suspension is temporary. A suspension from of- terminates the suspension itself; so that, an apfice and a removal from office convey very differ-pointee to fill such vacancy can no longer rightent ideas; and it is very clear that the legisla- fully exercise the functions of the office. ture recognized the difference, as by section 1685 It is also claimed on behalf of defendant, of the same act, the power of removal from office that the petition in this case is defective in in municipalities is conferred on the council not setting forth the name of the person who alone. In the case of suspension it is contem- claims to be entitled to the office, as required plated that the suspended officer may be restored by section 6766 of the Revised Statutes. This to his office and hold the same by virtue of his section applies only to proceedings prosecuted original title, while in case of removal the title by the person who claims the office as provided of the removed officer is permanently lost to him. in section 6764, and such showing is certainly The vacancy in this case being temporary, and

necessary when a judgment of induction as the suspension being for the same time, of course, well as ouster is sought. The case before us, the suspended officer is restored to his office at however, is prosecuted by the Attorney General the expiration of that time, unless his right and on behalf of the State, as authorized by statutes title be impaired or taken away by some other in relation to the duty of the Attorney General,

and the only remedy sought is a judgment of It has not and cannot be disputed that the ouster. title of the defendant to this office terminated Judgment accordingly. with the termination of the vacancy which he [This case will appear in 38 0. S.] was appointed to fill. The question therefore arises, when did such vacancy terminate? The THE LAW OF LIBEL–MATTER PUBstatute requires the mayor to report "to the LISHED IN GOOD FAITH IN WHICH council for their action” at the next regular

THE PUBLIC HAS AN INTEREST. 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

EDWARD CRANE claiined on behalf of defendant that the only action upon the report of the mayor, which the

THE Boston ADVERTISER. council is authorized to take, is to approve the suspension and to approve or disapprove the ap- This was an action to recover damages for an pointment. We are unanimous in the opinion alleged libelous publication. A demurrer was that this claim cannot be maintained. The ac- interposed by the defendant to the plaintiff's dection of the council is unrestricted. It may act laration, which presented the question whether upon its own absolute discretion in approving or as a matter of law, the publication complained of disapproving the whole or any part of the report. was libelous. Discretion to approve implies discretion to dis- LOWELL, J. approve. The action of the council is confided to

For the purpose of deciding this deits judgment and that judgment may be based murrer it must be assumed that the plaintupon such information and knowledge as it may iff had conceived and begun to carry out obtain. No restriction or limitation is imposed & plan for making & railroad from Boston



to New York by the consolidation of certain I apprehend, that the legislatures of Massachushorter lines and otherwise, and that it was a setts and Connecticut would have power to perpart of his plan to obtain control of the New York mit, or to prohibit, or to modify a scheme such and New England, by electing directors favorable as is now in question. It interests the public, to his scheme; that the publication of the article consisting of the unascertained persons who will complained of, interfered with this plan to his be asked to take shares in it and those through prejudice, and that the statements of the article whose lands it may pass, or whose business will were not true, but were published in good faith, be helped or hindered by it, that such a line without express malice, and were, upon reason

should be well, and even that it should be honestable inquiry by the defendants, believed by them ly laid out, built and carried through. For this to be true. The contention then, is, on the part the character of the plaintiff as a constructor and of the defendants, that the subject matter is one manager of railroads seems to me to be open to in which the public has an interest, and that, in public discussion when he comes forward with discussing a subject of that sort, a public speaker so great and important a project, affecting many or writer is not bound at his peril to see that the interests besides the shareholders of one road, and statements are true, but has a qualified privilege, that, therefore, the defendants, or any other peras it has been called, in respect to such matters. sons, have the qualified privilege which attaches The modern doctrine, as shown by the cases cited to the discussion of public affairs. The distincfor the defendants, appears to be that the public tion is that when a railroad is to be built, or a has a right to discuss in good faith the public company to build it is to be chartered, the ques conduct and qualifications of a public man, such tion whether it shall be authorized is a public

a as a judge, an ambassador, etc., with more free- one; when the company is organized and the dom than they can take with a private matter, stock is issued, anything which merely affects or with the private conduct of any one. In such the value of the stock is private. The demurrer discussions they are not held to prove the exact to the answer is overruled. truth of their statements, and the soundness of their inferences, provided that they are not actuated by express malice, or that there is reason


-OFFICE FILLED-SALARY able ground for their statements or inferences,

DURING DISMISSAL. 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

N. Y. COURT OF APPEALS. servant in the office of the company is a matter for the clerk and the company only. The safety

TERHUNE V. THE MAYOR. of a bridge or the line is a subject of public moment. The public, in this sense, is a number

February 28, 1882. who are or will be interested and yet who are

A public officer, appointed by a department of a munl.

cipal government, who has been disinissed from his office at present unascertainable. All the future pas- by the department, though without any hearing, for any sengers on the road are the public in respect to alleged cause of dismissal, and whose office has been the safety of the bridge, and as they can not be filled by an appointee who has performed the duties of

the office and received the stipulated salary therefor, cau. pointed out you may discuss the construction of not after his reinstatement recover the salary for tbe the bridge in public, though you thereby reflect time he was out of position. upon the character of the builder. If this defini- Under SS 28 and 76 of the Act, c. 335 of the tion of the public is a sound one, the common- Laws of 1873, the fire commissioners of the city wealth, considered as a stockholder, is not the of New York were authorized to appoint an inpublic, for its interests are entrusted to certain spector of combustibles, who was to be the prinofficers, who are easily ascertained; nor would cipal officer of a bureau in the fire department, the interests of the shareholders become a public charged with the execution of all laws relating matter merely by reason of their number, unless to the storage and sale and use of combustible it were proved that it would be virtually im pos- materials in the city of New York, and they had sible to reach them individually. If, therefore, power to remove such officer at pleasure, pra the question was merely of the effect of the scheme vided prior notice of the cause of removal, and an upon the shares of the New York and New Eng- opportunity for making an explanation, were land Railroad Company, a corporation already first given. Under these provisions of law the chartered and organized, I should doubt some plaintiff was appointed inspector of combustibles what whether it would be of a public nature. in June, 1873, at a salary of $2,500 per year, and But, inasmuch as the project was one which af- he held his office until August 31, 1877, when he fected a long line of road, as yet only partly was dismissed by the fire commissioners, either built, and the consolidation of several companies, without sufficient cause or without having had it assumes public importance. Perhaps the right the prior notice and opportunity for explanation of legislative interference may be taken as a fair which the law entitled him to. He subsequenttest of the right of public discussion, since they ly took proceedings to have the action of the fire both depend upon the same condition. The leg- commissioners in removing him reviewed, and islature can not interfere in the purely private the supreme court decided that his removal was affairs of a company, but it may control such of unauthorized and illegal, and he was reinstated them as affect the public. It can not be doubted in his office. Immediately upon his removal the

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