Page images

fect the communication between the past and portance embodied in twenty-nine volumes of the present interpretation of law, and open

State reports The Federal reports are not to the world of lawyers all the richness of in- included in the scope of the work. Mr. Prof. termediate legal lore. As the work advances

fatt's cleath occurring after the publication of

the eleventh volume, the work has since been the volymes of the American Decisions are

continued by Mr. A. C. Freeman.” more and more cagerly looked for.

We desire to add here that the distinguished We quote fronı an interesting paper written by J. L. High, Esq., of Chicago, and published querist, in all his principal suggestions pointing

to a reform in the matter of published reports in the American Law Reviru for June, under by which they are so furiously multiplici, simthe interrogative caption,

56 What sluill, oc do

ply reiterates some of the protests of the Ouio with the Reports ?the following, which sin

LAW JOURNAL, and the methods we have adply indicates the plan and scope of the Ameri

viscd as certain to bring about the desired recan Decreions, instead of adding frankly that

sult. The principal and first inauguration of the original intention has been so far fulfilled

reform must be within the bosoms of the to the letter.

judges themselves. “ In 1878 Mr. John Proffatt began the preparation of the American Decisions, which

We quote again: were intended to include all the cases of gen- * *“the judges themselves should be reminded eral value and authority in the courts of the

that the rapid accumulation of reports is, in several States from the earliest issue of their large measure, due to their own prolixity in reports down to the year 1869, the period the writing of opinions of undue length. The with which the series of Mr. Thompson's the time for learned and elaborate essuys, in American Reports, above mentioned, began. the form of judicial opinions, with exhaustive

reviews of all the authorities from the yearThe scope of the work as announced by the reporter, was to present all cases of established books down, has long since passed. Ilair-splitgeneral authority which had been indorsed by ting distinctions and exercises in dialectics subsequent decisions or cited by text writers. should no longer find place in the literature of Cases turning upon local statutory law and of the law. The overworked lawyer, in the no general authority beyond the particular hurry of active practice, reads an opinion for State, were to be discarded, as well as obsolete its pith and marrow, and for nothing else. A cases. The aim was to give, by a series of concise statement of the facts of the case, a continued, authoritative decisions, the system brief, pointed, and crisp enunciation of the of law in each of the States as compared with principle upon which it is decided, with a ciother States of the Union, and thus to show

tation of a few leading authorities, if any, bearby a compilation of contemporaneous decis- ing upon the question, are all that he desires. ions the structure and growth of American

And what more, it may be asked, is neceslaw, and to present in outline a system of com- sary, either for the student or practitioner? It parative American jurisprudence. The points is the boast of a learned judge of the writer's of counsel, are to some extent, preserved with acquaintance, who has occupied the bench for the authorities cited in support of them. a quarter of a century, that he has written When a decision embraces several points, more pages of judicial opinions than any judge some of which have no present value, or are

in America. Ît should rather be the height of merely local interest, or turn upon points of of judicial emulation to compress one's judicpractice, such parts of the decision are elimi- ial opinions into the shortest and most concise nated. These reports were intended to em

form consistent with clearness." brace all the American decisions of general This, with the added designation by the value down to the American Reports, which court of all cases which are of sufficient general were to be regarded as a supplement or con

interest to justify publication—excluding all tinuation of this series,—the two combined

cases where the decision is upon questions of thus presenting the entire body of American decisions of value in a condensed form. It fact—will dispose of half the difficulty met was estimated that seventy-five volumes would with by the attorney who attempts to “keep complete the work; bụt as thirty-one volumes

up with, or to purchase and store all the volhave already appeared, the last bringing the

umes of reports published by the various work down only to the year 1838, it is doubtful whether the original design can be com

States and Territories. These reforms, how pleted within the limits proposed. The last ever, are not yet inaugurated. Pending their volume comprises the decisions of general im- adoption the publishers of this paper have

nearly perfected arrangements by which even to practice his profession, and has ever since the great number of cnscs decided in all the except about one year when he resided in Ar

kansas, been a citizen of Columbus. He was courts of last resort in all the States may be

elected an honorary member of this Bar Associabrought within the means and control of all tion July 1, 1869. lawyers. The magnitude of the undertaking,

"He began the practice.of law under the most

favorable circumstances. His family connection and the great expense, as well as the number- | brought him into close relations with the largest less difficult matters of detail to be first fully business interests of the city at that time. He arranged has already delayed the work far showed fine abilities for professional work. He beyond the expectations of the projectors. tion of his cases and active and energetic in

was painstaking and industrious in the prepara IIowever, cach (lay brings us nearer to the ac- presenting them and had unusual elegance of complishment of our purpose, and then a manner and diction in addressing court and proper and fitting supplement to the Ameri-jury. His management of his early practice can Decisions will be in the hands of the pro- high position in our profession. But he was

gave assurance of attaining great success and a fession, and the query of the writer above drawn from its steaily pursuit by large business quoted, fully and practically answered. Vol. interests other then professional and the great ume 34 of the American Decisions contains so

temptation of public affairs. He was a favorite

public speaker and the people in 1848 called many valuable cases and such an array of him into their service as State Senator, and in notes and citations on so many different and

1859 he was electeil Civvernor of Ohio. interesting topics, that it must be seen to be

“ IIe thus found himself a leader in a great

party at a time of unusual excitement, and on fully appreciated.

the breaking out of the war in 1861 he was in

a place of great responsibility. He acquitted WILLIAM DENNISON.

himself in these important positions with honor,

ability and distinction. The death of Ex-Governor William Dennison, “He was afterwards, in 1864, called by Presiat his home in this city, Thursday morning dent Lincoin to the office of Postmaster General last, was the cause of a universal feeling of re

of the United States, and was one of the Cabinet

officers who stood by the death bed of Lincoln gret at the loss of one of Ohio's truest and best

as he passed from earth to take his place among statesmen and citizens. Many eulogistic words the immortals. have been spoken and written of him but none

“ He was also a Commissioner of the District better set forth general sentiment than the

of Columbia under an appointment of General

Grant. On returning from public office he conmemorial adopted by the Bar of this city, which

tinued his interest in public affairs to the end. we give below

“He retained his law office and library, and A committee of seven, consisting of Hon. his title as a lawyer until his decease. Allen G. Thurman, Hon. R. A. Harrison, Hon.

“Governor Dennison was a man of the rarest Henry C. Noble, Hon. Chauncey N.Olds, General kindness of heart, and treated all men with such

courtesy of manner, springing from unaffected James A. Wilcox, Edward L. Taylor, Esq., and

grace as won their love. B. F. Martin, Esq., were appointed a commitee “He was a pleasant companion, a generous to draft resolutions. Senator Thurman from

and loyal friend, of noble charity and high the committee, reported the following:

moral courage, an earnest patriot, and a true

Christian gentleman, whose memory we are “The Bar of the Capital of the State of Ohio, proud to cherish as a member of our Bar. Assembled upon the occasion of the death of

Resolvell, That a copy hereof be presented to their brother Dennison, in testimony of their respect and cstcem for him in life, and of their this Association.

the family of the deceased by the Secretary of sense of the loss which they in common with

Resolved, Farther, as a token of our respect, the citizens of Columbus, and of the State at

that we will attend the funeral of the deceased large suffer in his death, adopt the following in a body." memorinl : “William Dennison, who died in this city on

TUESDAY morning last, Attorney General the morning of June 15, 1882, has been a mem

Nash appeared before the Supreme Court and ber of the Bar of Franklin county since 1840. in very fitting words moved that the said meHe was born in Cincinnati, November 23, 1815; morinl be spread upon the Journal of the Court. was graluated from Miami'University at Oxford, Chief Justice Okey replied that the Court con0., in 1835; studied law at Cincinnati with the Hon. Nathaniel G. Pendleton; was admitted to

curred in the just and appropriate estimation the Bar in 1840, and soon after married Miss set forth, of the deceased, and the motion would Ann Eliza Neil, of this city, and removed here be granted.

MANDAMUS_TAXES DUE STATE COL- 1881, leaving a balance due of $11,534.60. That LECTED BY COUNTY TREASURER. said 'draft had been duly presented for payment

by the relator to the defendant, the Treasurer of SUPREME COURT OF OHIO.

Hamilton County, and payment of said balance

of $11,534,60 demanded, which has, and ever THE STATE OF OHIO ON RELATION OF JOSEPH since has been refused. TURNEY, STATE TREASURER,

Wherefore said relator prays for a writ of man0.

damus to compel the defendant, the Treasurer of LUKE A. STALEY, TREASURER OF HAMILTON Hamilton County, to pay and deliver to the state COUNTY.

treasury the said sum of $11,534.60, and other re


June 13, 1882. Upon this petition an alternative writ of man1. Proceedings by mandamus, on the relation of thy

damus was issued as prayed for, and thereupon Treasurer of State, will lie to compel the treasurer of a

the defendant filed an answer containing several county to transfer to the state treasury the state's pro- alleged defenses, to the first and fourth of which portion of taxes collected by such county treasuror.

the relator demurs. 2. A petition for a writ of mandamus in such case, which shows the collection of such taxes by the county

The first defense is as follows: "That the treasurer, is not dofective for want of an averinent that plaintiff ought not to have its writ of mandamus the taxes so collected remain in the county treasury subject to the command of the writ.

herein, for the reason that plaintiff has a plain, 3. Under section 1043 of Revised Statutes, as amended adequate and specific remedy at law for the April 19, 1881 (78 Obio L. 226), the amount of taxes for grievance of which he complains." which the treasurer stands charged, is the whole amount of taxes levied on the duplicate, less the amount returned

The fourth defense is as follows: "This defenddelinquent and the collection fees allowed the treasurer. ant in further answer to said petition and writ

4. The amount of money in the treasury, for which issued herein says, that the Auditor of Hamilton the treasurer stands charged, cannot be increased or diminished by the exercise of the authority conferred on

County, Ohio, on the 23d day of September, 1881, the auditor by said section to corroct "any error which

at his office, made settlement with defendant may have occurred in the apportionment of taxes at any and ascertained the amount of taxes with which previous settlement." 6. In obedience to a writ commanding a county treas

he, as treasurer, was to be charged, and, after urer to pay into the state treasury a balance due the

making the deductions to which he was entitled, state on its portion of taxes collected by the county distributed in just and ratable proportion upon treasurer, and for wbich no provision has been made by

the several taxes charged on the duplicate, ascerthe County Auditor in his apportionment of taxes, any excess of money in the treasury over the sums ap

tained the balance for which said treasurer was portioned to other junds for which taxes were levied, to be held liable, and to whom, in their several may be used by the treasurer in making such payment. amounts, he was liable for such balance, and also Demurrer to 1st and 4th defenses sustained.

ascertained the amount remaining in the treasIn mandamus.

urer's hands belonging to each fund; and thereThe relator, in his petition, represents that on upon the said auditor, on said day, did issue to the 28th of October, 1881, the Auditor of State the treasurer, this defendant, a certificate and examined the certificate and abstract of the abstract of such settlement, and of the balance semi-annual settlement between the Auditor and of the amount of taxes received and charged to Treasurer of Hamilton county, made on the 23d him as due to the state, the balance thereof due day of September, 1881, which certificate and to the county, the balance due for road purposes, abstract were returned by said Auditor of Ham- and the balance due to the townships and the ilton County to said State Auditor on the 3rd other bodies and purposes to which said aggreof October, 1881, as required by law.

gate in his hands was found to belong, a copy of That upon such examination, the Auditor of which certificate and abstract of settlement, and State ascertained the exact sum of money paya- account with the state, is hereto attached and ble by the Treasurer of Hamilton County to the made a part of this answer. State Treasurer to be $291,698.19, and also that In pursuance of this settlement, and of the amount of Hamilton County's proportion of the provisions of law in that behalf, the state common school fund was $73,183,60 ; where- said treasurer forth with proceeded to upon the Auditor of State certified his findings transfer and did transfer and enter into to the Treasurer of State as required by law, and their several accounts the sums with which he issued his draft upon the Treasurer of Hamilton was charged in said settlement, in favor of the County in favor of the relator for $218,514.59, state, the county, the townships, corporations and the same being the difference_between the the said several funds as shown in said certificate amount so found due to the State Treasurer from

of settlement; and said several amounts became the Treasurer of Hamilton County, and the thereafter subject to draft upon said treasurer in amount of school fund due to said Hamilton favor of the several persons or corporations auCounty from the state treasury.

thorized to receive the same. And the said That prior to said 28th of October, 1881, the treasurer further says that he forth with, upon Treasurer of Hamilton County had paid into the said transfers of said several sums to their respectstate treasury on account of the amount so found ive funds, proceeded to pay them out upon the due from the Treasurer of Hamilton County to proper drafts or warrants of the county auditor said state treasury, the sum of $206,979,99, at to the corporations or uses to which they became the last semi-annual settlement in the year payable upon said settlement, and thereafter continued to pay them, up to the service of the the state treasury. Å suit on the treasurer's writ herein, and has ever since continued to pay bond would not accomplish that object. Although them as by law aird his obligation he is bound the state in an action on the bond might recover to do.

the full amount of damages sustained, it would This defendant further says, that by said set- leave in the county treasury the fund to which tlement he became charged in favor of the State it is entitled, and to which the county treasury of Ohio with the sum of $280,163.59, ascertained is not entitled. and certified by said auditor as aforesaid to be In deciding the question now before us, it is the amount and balance of taxes due the state of worthy of remark, that section 6744, above rethe moneys collected by said treasurer, which ferred to, is merely declaratory of the rule of the said balance so certified to be due the state he common law, which refused relief by the extracaused to be remitted to the Treasurer of State, ordinary writ of mandamus in cases where an as alleged in petition of plaintiff. All the bal- alequate remedy was afforded by the usual and ance of moneys in his hands as treasurer of said accustomed modes of procedure at law, and also, county he held—and in part holds-on account that section 168 does not declare a breach of an and subject to the claims of others than State official bond, that would not have existed withof Ohio, ascertained and determined by the said out the section, and for which an action on the county auditor in the settlement and certifiate bond is the exclusive remedy. Hence, no new aforesaid, and credited and transferred to them, rule has been established by this legislation, and and he is not authorized or permitted to apply it cannot be doubted that the jurisdiction by said funds to other uses, and is liable to the cor- mandamus to compel payment from the public porations and uses to which such funds treasury, where such payment is a mere minishave been transferred for

the amount terial act, is a common and acknowledged right. thereof remaining in his hands. Defendant .Sec High on ex. legal Rem., sec. 112, and cases holds no funds in his possession for the use of cited. the State of Ohio or to its crcdit.

The defendant relies on the case of The State The contents of the certificate and abstract of v. Meily, 22 Ohio St. 534, in which it was held settlement referred to and made a part of the that where money is wrongfully retained by a answer, are sufficiently stated in the opinion. probate judge from the party entitled thereto, The grounds of demurrer to these defenses are such party has a plain and adequate remedy by that the facts stated are not sufficient to consti- action on the official bond of the judge, or by an tute a defense to the action.

ordinary action against him for the money, MCILVAINE, J.

and therefore mandamus will not be allowed to

com pel payment until such ordinary remedy has The demurrer to the answer brings under re- been resorted to and proved ineffectual. In that view the sufficiency of the petition, and the de- casc it was said that the retention of the money fendant claims that the facts stated in the peti- by the probate judge was his individual act—a tion do not entitle the plaintiff to the writ of

con version of it to his own use-and, no doubt, mandamus, for the reason that there is a plain the identical money might be applied to the payand adequate remedy for the grievance com- ment of a judgment recovered against him; but plained of, in the ordinary course of the law.

on the facts before us, the money in the county Section 6744, of the revised statutes, provides treasury could not be withdrawn for the payment that “the writ must not be issued in a case

of a judgment on the treasurer's bond at the where there is a plain and adequate remedy in option of the treasurer. the ordinary course of law," and, it is claimed, payment would not transfer public funds from that such a remedy is furnished by an action on the county to the state treasury, and any remedy the treasurer's bond.

which will not accomplish such transfer is not It would seem that an action on the bond

adequate within the meaning of this rule. might be maintained under authority of section There is no suspicion that the defendant is a 168 of revised statutes, which provides, “That defaulter, or that he has embezzled public funds. if any county treasurer, or other officer con

To which treasury does this money belong is the cerned in the collection of the public revenue, only question in the case---a mere question of or authorized to collect and pay into the state. law. 'If to the state treasury, it should be transtreasury, money due or accruing to the state, fails ferred, and mandamus is the only specific and to pay over all moneys by him received and be appropriate remedy under the particular circumlonging to the state, at the time and in the man

stances of the case. ner required by law, the Auditor of State shall

It is also contended that the petition and writ immediately inform the Attorney General thereof, are defective in not alleging that the money who shall forth with institute and prosecute the claimed is, in fact, in the county treasury. proper suit against such officer and his suretics."

No doubt, a writ of mandamus should not be isThe question therefore arises, would such suit

sued unless it appears that the thing commanded afford"a plain and adequate remedy" within to be done is capable of being performed. The the meaning of section 6744? The object of the question, therefore, whether the funds sought to present action is to compel the transfer of certain be transferred from the county treasury to the funds belonging to the public revenues of the

state treasury, are, in fact, in the county treasstate from the treasury of Hamilton County to ury, is materal.

It appears plainly enough that

these funds, before the semi-annual settlement in been made from the amount of the duplicate, the September, 1881, had been received into the auditor found the balance, for which the treascounty treasury, and we think it must be pre- urer should be held liable, to be $2,811,649.74, sumed that they remain there until the con and that the proportion thereof due to the state trary is shown. In view of this presumption, for the sinking fund, general revenue and comthe petition in this respect is not defective. If mon school fund, was $291,658.63. But the the issuance of the writ be resisted on the ground certificate also shows that from the aggregate of that the funds claimed are not in the treasury of the treasurer's liability, the auditor further dethe county and under the control of the defend-ducted the sum of $73,413.09, (thus reducing the ant, such state of facts must be shown by the liability of the treasurer to the sum of $2,738,defendant in his answer.

236.65), on account of “net balance of errors corAre the facts stated in the fourth defense rected," and thus reducing the amount due the sufficient? The object of the pleader was to state by the sum of $11,534.60, being its proporshow that defendant, as the Treasurer of Ham

tion of said deduction of $73,443.09, leaving a ilton County, had no funds in his possession, balance due the state of $280,124.03, from which or under his control, that were legally subject balance, the sum of $73,183.60, being the proporto the payment of relator's claim. The answer tion of the common school fund to which Hamcontains such specific averment; but we under- ilton County was entitled, was retained by the stand this averinent to be a mere conclusion treasurer, and deducted from $280,124.03, so based on facts set forth in the answer, and espec- found due to the state, and the remainder, plus ially in the certificate and abstract made by the $39.56 for special licenses, to wit: $206,979.99, county auditor upon the last semi-annual settle- was duly paid into the state treasury by the dement on account of the taxes of 1880, which are fendant, in full, as is claimed, of the state's profully set forth and made a part of the answer. portion of the amount for which the treasurer of This certificate and abstract, which are required Hamilton County is held liable on account of the and controlled by sections 1043, as amended April duplicate for the year 1880. 19, 1881, (78 Ohio L, 226), and 1044 of the re- the auditor of Hamilton County having transvised statutes, contain the controlling facts of mitted to the auditor of state a duplicate of said the case in so far as they are made in conformity certificate and abstract as required by section to law. Section 1043 provides that, “The aud- 1045 of revised statutes, the Auditor of State proitor shall attend at his office, on or before the ceeded to examine the same as required by sec15th day of February, and also on or before the tion 181 of revised statutes, which provides, “The 10th day of August, annually, to make settle

Auditor of State, immediately on the receipt of ment with the treasurer of his county, and ascer- the certificates and abstracts of each semi-annual tain the amount of taxes with which such treas- settlement between the auditor and treasurer of urer is to stand charged; and the auditor shall, each county, forwarded to him by the county at the August settlement, take from the dupli- auditor, shall proceed to examine the same, and cate, previously put into the hands of the treas- ascertain the exact sum or sums payable by each urer for collection, a list of all such taxes as such County Treasurer into the state treasury, and shall treasurer has been unable to collect. * * certify the same to the State Treasurer, specifyand after deducting the amount of taxes as re- ing in the certificate or certificates the amount turned delinquent, and the collection fees als belonging to each fund and the total amount to lowed the treasurer from the several taxes be paid into the state treasury; he shall also charged on the duplicate, in a just and ratable ascertain and certify to the State Treasurer the proportion, the treasurer shall be held liable for amount of such county's proportion of the State the balance of such taxes; and the auditor, after common school fund, and of schooi, ministerial first correcting any error which may have occurred and other trust funds, if any, due and payable in the apportionment of taxes at any previous to such county; and at the same time he settlement, shall certify the balance due to the

shall issue his draft or drafts upon the County state, the balance due to the county

Treasurer in favor of the County Treasurer, the balance due for road

purposes, and

for the sum or sums so found due and the balance due to the townships, &c. And sec- payable, after deducting the amount of the sevtion 1044, after giving more specífic directions as eral sums found due to the county on account of to the manner of making the settlement,

requires school, trust or other funds." that "the auditor shall also make outånd deliver On such examination the Auditor of State to the treasurer & certificate specifying the

ascertained the “exact sum” due to the state amount charged on the tax duplicate of the to be $291,658.63, and after deducting therefrom county for each of the several purposes for which the sum of $73,183.60, the county's proportion of taxes have been levied; and also a certificate or the State common school fund, drew his draft on an abstract of the taxes which have become due

the County Treasurer in favor of the State Treasand payable, and which remain unpaid,” &c. urer for the remainder, plus the sum of $39.56

Now, it appears from the certificate and ab- for special licenses, to-wit: for the sum of $218,stract of this settlement, as made by the auditor 514.59. The Treasurer of State having given a of the county, that after all proper deductions, credit, on this draft, of the money theretofore to-wit: the amount of delinquent taxes and paid into the state treasury by the defendant, the collection fees allowed the treasurer had prosecutes this suit for the balance, to-wit : $11,,


« PreviousContinue »