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tered, not as to what it shall be in the future, would do that. The court can not go beyond but what it has been in the past, been so since that in any case; but the court is not bound to the time of the enactment.

do that; it is bound to exercise its own Well, another position is assumed, that this judgment in a particular case. It may fine as defendant consulted counsel, and counsel advised low as a penny, or imprisonment for twenty him that the law was different from what minutes, or either one. It is a matter within this court instructs you that it is. Well, gentle-| the discretion of the court. There is no minimen, the legal fraternity to which I have be- mum of punishment, but there is a maximum, longed for forty-one years contains a good many beyond which the court can not go; and we are, sensible and good useful men; contains a great gentlemen, all under obligations to avoid, as far many men competent to advise, and honest as possible, anything like personal feeling, any enough to give correct counsel ; but then it con- personal interest. We are under oath both the tains a great many more charlatans, superficial court and jury, to administer the law just as we lawyers, honest or dishonest, as the case may be, find it. The court is to determine the law and and I think I may say that my observations in the jury is to pass upon the fact. courts for forty-one years leads me to believe that Now the issue, and the only issue, is, whether this at least one half of the litigation that we are colored school that had been provided, and which troubled with in the courts, arises from the mis- the statute had authority to provide, was reasonadvice of counse). Nevertheless the law, in its ably accessible, and gave to this boy the same tenderness, in some respects gives force and ef- facilities, educational facilities that he could fect to the advice of counsel. If A has B arrested have obtained at the other, or something apupon the charge of larceny, and B is tried and proaching it. If it did, then this defendant is acquitted, and B then sues A for what is termed not guilty; if it did not, then the court instructs a malicious prosecution, that is for prosecuting you that, upon your finding that fact, he would him when he was innocent, and without suffi- | be guilty as he is charged in the indictment. cient probable cause to justify the prosecution, Take the case gentlemen. A, the defendant in that civil suit, may show in The jury disagreed, and were discharged. his defense that he acted upon sufficient cause Channing Richards, for the Governmen". and in good faith, and in an action of that kind, if

John Johnston and H. J. Buntin, for defendA can show that he made a fair presentation of his case to an attorney in good standing, and

ant. that counsel advised him that it was sufficient ground for prosecution, and that he thereupon, RAILROAD COMPANY--DAMAGES--EMacting in good faith upon the advice of counsel, PLOYE-REASONABLE OR UNREAinstituted the prosecution, why, that would be a

good defense. But that has not been carried into
the criminal law. We don't seem to need it now.

We don't seem to need defenses of that kind.
They have got plenty of other defenses available.

But if it became necessary, a man might defend

COMPANY for murder, or assault and battery, or anything else, for I fancy that any one evilly inclined,

GEORGE HENDERSON. could find in Cincinnati or anywhere else in this broad country, some man to advise hiin to do whatever he wanted to do. That is the rule

February 28, 1882. which some counsel act upon. They generally 1. Where the superintendent of a railroad company find out what a man wants to be advised, and

has made an order as to the management of a particular

train, which order wiil be reasonable or unreasonable acthen they advise him; and he is the man that cording to the circumstances under which it is to be enpleases him. Now, it may be that this defend- forced, the question whether in any particular case such ant, and I expect he did, advised. with counsel,

order is to be deemed reasonable or unreasonable is a. and I expect his counsel instructed him that he

question of mixed law and fact, to be determined by the

jury under proper instructions. had a right to exclude this negro from the school, 2. Whero an action is brought against a railroad comand I take it, am willing to concede, that he

pany by one of its employes to recover damages for peracted in the matter in the utmost good faith;

sonal injuries sustained by the enforcement of an order

made by the superintendent of the company as to the that he thought he was doing what he had a management of a particular train, which order was unright to do; but the court charges you, gentle

reasonable and the enforcement of the same was dangermen, that notwithstanding all of that, if he did

ous to such employe, the fact that the negligence of a fel

low servant of the injured person, while executing such what the act of Congress forbids him to do, and order, contributed in producing the injury, affords no did it under color of authority, and because this

defense to the action. boy was a colored boy, that it would be no ex- Error to the District Court of Harrison cuse; he would still be guilty. It would be a County. matter to address itself very strongly, to the Henderson brought suit in the Court of Comconsideration of the court. The punishment mon Pleas of Harrison County against the Pittsprescribed by the statute is that the .court may burgh, Cincinnati & St. Louis Railway Cominflict a thousand dollars fine and twelve months a

pany. He was a laborer in the employ of the imprisonment; and in a proper case this court company upon a construction train which was.

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be proven.

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duced him to exclude the jurors--of course the

court was bound to pass upon the faet whether UNITED STATES

he did exclude them from that motive or some

other motive. JOIN M. BUXTOX.

Well, again. in another case, a man is indicted for passing counterfeit money. The statute, I

believe, in all cases speaks of a man passing it JUDE BAXTER'S CHARGE TO THE JURY.

knowing it to be counterfeit, because any of us The prosecution was instituted against defend

may pass a counterfeit bill inadvertently and ant as Superintendent of a District, School in without any knowledge of the fact. In that case Clermont County, for refusing to admit the son

the crime consists not simply in the passage of of a colored man to the school, which is attended

the bill or offering it in payment to some one by white children, the defendant claiming that edge that it was counterfeit

. Then the party

but in the passage of the bill with the knowl. there was a school for colored children in the

can not be convicted unless there is proof of vicinity, accessible to the boy, and to which he what the law, the books, call the scicnter-that is, should be sent. The case was tried last week

the knowledge--and that is the proper inquiry before Judge Baxter, at Cincinnati, who charged dictment for forgery. The mere fact that I sit

to be made in case of that kind. So in an inthe jury as follows:

down here and draw a note for a thousand dolGENTLEMEN OF THE JURY—It is a great relief lars, and sign A. B.'s name to it, is not a crimito a court, and a great relief to a jury, to have a nal offense of itself; and the law says, “If done case tried' by counsel who understand what the with intent to defraud," if used with the controlling question is and who are frank

are frank knowledge of the fact that it was spurious-the enough to move right up to the question and kņowledge or the intent, in that particular inpresent that case. Upon that the decision of the i stance, is a necessary element to constitute the jury turns, without making it necessary for the crime, and in that instance the knowledge must court to go back, as it were, and traverse all the law in order to show you what the ruling Now we will come down to this case. question in controversy is. If this case had cited to a great many other cases of similar charbeen met in that spirit we would have been acter, and in the discussion upon the books, the through it before dinner, but it is a very small author is treating upon some particular proposicase and in a very narrow compass. There is tion, and his language is applicable to that propreally but one question for the jury, which I will osition, and hence when you turn over very ofpoint out after a while.

ten a page or two forward or a little back you A good deal of discussion has been gone into, find something to the unthinking mind, whose and a good many books have been read in order business it has not been to study law or to disto satisfy the court, for it was addressed to the criminate, that seems apparently in conflict court and properly to the court, as it is a ques- with this proposition, but when you look to the tion which the court has to decide and not the facts and the difference in principle they are jury, that there must be a criminal intent to harmonious, and they are both correct. The constitute a crime. In the broad sense in which crime in this case is, after the slaves were emanthe books intend it, that proposition is true. cipated by a military force and through an But what constitutes a criminal intent in one amendment of the Constitution of the United case is very different from what it is in another States they were made citizens; they were in

A decision is read here by Judge Rives, vested with all the rights of citizenship. They of Virginia. That case was upon the trial of a have, under the Constitution, the same rights juror commissioner, who was indicted because he

precisely as you and I have, but being an unedurefused as jurors—he excluded from the jury cated race just withdrawn from under the yoke box-two colored men because or on account of of bondage and turned loose upon the world as their color, the law denouncing that act as a full-fledged citizens of the United States, the crime, and authorizing parties to be prosecuted Government, or a majority of the people of the who did that. Now you will see that the essence United States who did this thing, felt that it of that crime consisted not in his excluding the was their duty to throw around the ignorant jurors-I mean persons from the jury-box-but slave such protection as would be sufficient to for doing it on account of their color. The ex- guarantee to him the rights with which the clusion of colored men from the jury-box might Constitution has invested him; because a right, have been because they were regarded as incom- although it be a constitutional right, unless petent to serve as jurors, as not having sufficient there is some means provided by which to intelligence, or for some other good and reasona- protect that right and protect the parble cause. He could not be indicted for that ; ties in the exercise of that right, is en but if he did it simply and solely on the ground tirely valueless. Several provisions of law have that they were colored persons, then the law ap- been made in order to give this protection. plied, and as in that particular instance the evi- | Among others it has been enacted that every

, dence consisted in the motive--not in the exclu- person who, under color of any law, statute, ordision of the jurors, but in the motive which in nance, regulation or custom, deprives a person


property owners and had petitioned the council knowing that others, to the full amount of the for permission to make the same, by using the authorized capital, could be associated with him track of the West Side company for that pur

in the business of the company. pose. It further appears that two ordinances Before the organization, the incorporators are auwere pending before the city council, in each of thorized by statute to open books, receive subwhich it was proposed to grant such permission, scriptions and the first payment thereon, and on condition only, that the right to use the give notice for the election of directors. They track of the West Side Street Railroad Company are empowered to place all the authorized capishould first be acquired by consent of said cor- tal. After the directors are elected and qualified, poration or by lawful appropriation.

"the corporate powers, business and property," JOHNSON J.

of the corporation, "must be exercised, conThe plaintiffs as stock holders in the Brooklyn ducted and controlled by the board of directors. Street Railroad Company seek equitable relief (R. S. 3248.). What power and control the stok

(8. . against the action of its board of directors. holders, in their capacity as such, in a stockhol

They ask: 1st. To enjoin the board from is- ders' meeting duly held, may exercise over the suing to defendant, Johnson, certificates of stock business of the corporation, and over the board for $8.250 subscribed and paid for, and to declare of directors, we need not determine, as in the said contract of subscription void :

case at bar, they have taken no action. 2nd. To enjoin the city of Cleveland from pass- The books for the subscription of stock were ing an ordinance granting to said company per.opened by the corporatore. Neither stockholders mission to use the track of the West Side Street or directors had ordered them closed. If tbe Railroad to extend its line to the business centre stockholders had the power to dispose of this of the city.

unsubscribed stock they never sought to exer3rd. To enjoin the directors from taking any cise it. In the absence of such action of the steps, or instituting any proceedings to obtain stockholders as would control the directors, (if the right to such use, or to make such extension. any such could be taken) the right to place the

1. Are the plaintiffs entitled to an injunction unsubscribed stock vested in the board of direcagainst the issue of this stock, and to have the tors. They represented the corporation in all its contract of subscription therefor declared void ? business affairs, and were authorized to transact

The authorized capital was $30.000, of which all the corporate business within the scope of its all had been subscribed and paid for except authority. In the exercise of these powers the $8.250. Repeated efforts had been made by the directors are, at all times, subject to the equity board to place all the stock but with little success. jurisdiction of the courts, on the application of The books for the subscription of stock had been à stook holder or a minority of stockholders, to formally opened by the incorporators, and most restrain all breaches of trust, or the exercise of of the stock had been subscribed and paid fro powers not delegated to them, to the injury of after the organization of the company and while stockholders. these books were in the possession and under If, however, the directors, who are presumed the control of the directors. They had never to represent the will of the majority, act within been closed by any action of the board, or of the the scope of their powers, their will must govern stockholders.

in the absence of fraud or breach of trust. The financial condition of the company was Dodge v. Woolsey, 18 How. S. C. 342; Ware o. such that additional capital was necessary.

Grand Junction Co., 2 Russ. & Mylne. 470; GifThe directors allowed defendant, Johnson, to ford v. N. J. R. Co., 10 N. J. Eq. 171; Byron Ste subscribe and pay for this untaken stock, at its phens v. The Rutland & B. R. R. Co., 29 Vt. 545; par talue. It is not claimed that it was worth Russell v. The M. S. & N. I. R. R. 'Co, 22 N. Y. more than par. ' Indeed from the allegations of 258; Kean v. Johnson et al, 1 Stock Ch. R. 401; the petition it was worth much less.

Field on corporations, sec's 141, 142. The consideration received was of the full Applying these principles to the case before value of said stock. The property and money us we hold: 1st. That the act of disposing of received was necessary and proper for the use of this stock at par, for a full and valuable considthe company In short, the transaction was eration, was not in excess of the powers inbona fide and beneficial to the company, and the trusted to the directors; and 2nd. That the contention is, that it was unauthorized, and transaction being free from fraud and beneficial therefore, that the contract was void. In this to the company, it was not such an abuse of the we do not concur.

trust reposed in the board as warrants the interThis was not an increase of capital stock, be- ference of the chancellor. yond the amount authorized by the certificate of The objection made, that Johnson was the incorporation, hence the numerous authorities President of the board, and that his associates cited as to the power of the board to increase could not dispose of this stock, is not well taken. the capital stock, or to dispose of increased capital | The majority of the board, excluding Johnson, do not apply. This stock was part of the au- agreed to this contract. At most it was thorized capital, which each subscriber for stock, voidable and not void. If in all respects fair and each holder of stock had expressly agreed and beneficial a court of equity will not avoid it. should be taken at par, at an open public sub- It being within the scope of the powers vested scription. Each stockholder took his stock, in the directors, in the absence of any controlling


* *


astion by the stockholders, the contract to dis- & venues

specified in the certficate * pose of their stock to a director or stockholder, if between the points of termini named in the certificate, made in good faith, and is beneficial to the com- and transport thereon passengers and their packpany, will not be set aside at the instance of a ages and baggage.' minority of stockholders. In such a case there Section 5, required the consent of the city is not auch an abuse of corporate power, nor is council to be first obtained before a street rail. there an exercise of power3 not granted as will road could be commenced or constructed. This authorize the intervention of the chancellor. section was repealed by the act of May 27, 1866, Smith v. Skeary, 47 Conn. 47.

(63 O. L. 55) (S. ú8. 137–8), and sections 1 and II. As to the prayer for an injunction against 2 of the latter act were substituted. Section 1 the city of Cleveland.

of this act provided that no street railroad should All the city is asked to do, or proposes to do, I be constructed or commenced until the consent is, to grant permission to the Brooklyn Street of council be obtained, and authorized the counRailroad Company the privilege of occupying cil to agree upon the terms and conditions upon certain streets, and to use the track of another which the street should be occupied. railroad company for its contemplated extension. Section 2, requries the council to prescribe by The city does not propose, if it has the power, to ordinance the terms and conditions upon which invade or interfere with the private rights of the the streets and avenues of the city may be occuWest Side Street Railroad company to the exclu- pied by street railroads. sive use of its track. The permission to occupy Up to this time there was no authority vested the street and to use this track, is upon the ex- in the city council to allow street railroad compapress condition, that the company acquire of the nies to extend their tracks beyond the limits West Side Company by mutual consent or by ap named in this certificate of incorporation. propriation, whatever property rights the West May 7,,1869, an act supplementary to the act Side Company have therein. The statute vests of March 27, 1866, was passed, which in terms in the city council the power to grant the use of authorized such an extension, (66 O. L. 140). the streets to any street railroad company, if ben- It reads as follows: “ It shall be lawful for the eficial to the public. A court of equity will not in-council of any city or incorporated village to

. terfere with the exercise of this discretionary grant permission by ordinance to any person or power in the absence of facts showing fraud or company, owning or having the right to con. bad faith. The State ex rel v. Gas Company, 37 struct, any street railroad, to extend their track on 0. St. 45.

any street or streets where the said council shall III. Should the company be restrained from deem such extension beneficial to the public. taking any steps, or instituting any proceedings And when any such extension shall be made the to acquire the right to extend its lines and use charge for carrying passengers on any street railthe track of the West Side company for that

pur- road so extended, and its connections made with pose.

any other road or roads, by consolidation under If it can be lawfully done the finding of the existing laws, shall not be increased by such excourt is, that it will be highly beneficial to the tension or consolidation.” This power of extension company. The right to the relief prayed for, de under this act was in addition to the power to pends therefore on the underlying question, has consolidate under sec. 4, of the act of 1861. The

4 the corporation the power to make the proposed right of extension was, by the act of April 10, extension. All questions of fraud or of injury to 1867, (64 O. L. 122) (S. & §. 138), so enlarged as

(& the stockholders are eliminated.

to provide, that thereafter any road constructed This corporation was incorporated and organ- in a city or village, may be extended without ised under the act of April 10th, 1861. (58 O. L. the limits thereof, along the public road, pro66) and acts amendatory and supplementary vided the proper authorities consent &c. thereto. The certificate was dated August 25, The certificate of incorporation was taken out 1869, and the organization was perfected by the after the supplementary act of May 7, 1869, was election of directors October 5th 1869.

in force. That act was as much the law governSection 1, of the act of 18si, prescribes the ing the corporation as the act 1861. When this minimum number of rútural persons required company became incorporated in August, 1869, to form a corporatiou, and describes the manner it was em powered to exercise all the powers and of executing the certificate, and states what it enjoy the franchises granted by the act of 1861, shall contain. It must specify, (1) “ The name and by the amending act of 1866, and also, by assumed by such company * * *. (2) The

(2) The the act supplementary thereto, of 1869. The name of the street, alley or avenue, with the de- franchises granted by this supplementary act scription of the locality thereon of each terminus of are as much a part of its chartered powers and said road, and the names of the streets, alleys privileges as those embraced in the original act. and avenues or other public grounds through its language is unmistakable. It shall be lawwhich such road shall pass."

ful for the council to grant permission by ordiSec. 2, among other things, provides" that nance, “to any person or company, pwning or when the foregoing provisions have been com having the right to construct any street railroad, plied with, * * * such corporations shall be to extend their track," &c. authorized to construct, operate and maintain a Section 5, of the act of 1861, and sections 1 and street railroad * * on the streets, alleys or 2 of tbe act of 1866, did not authorize the council



the Salt Co., being the owner of the land, sub- plaintiff, or at any time fail to provide the same,

, ject only to the easement, has the right to the the courts are open to hear the complaint. Inuse thereof in any manner not inconsistent with deed we see no reason to doubt the power of the the easement reserved. If then it is possible for court to enforce all reasonable conditions on the it to cross the entry of plaintiff in the manner part of defendant, by mandatory injunction even proposed, without destroying or substantially in- after the crossing has been completed and the terfering with his use of the same, its right to new entry used. do so is beyond question; and, if such right ex- Judgment affirmned. ists, we cannot see that the defendant's reason Johnson, J., did not sit in above case. for making the crossing, whether for the purpose This case will appear in 37 O. S.] of mining coal in its own tract or of obtaining coal from lands lying to the east, is a subject for REAL ESTATE-ADMINISTRATOR'S SALE the court's consideration. These are the prin

TO PAY DEBTS-FORMER SALE BY ciples applicable to rights of way upon the

HEIR AT PRIVATE SALEearth's surface and we are not aware that they lose their application where such rights of way

EFFECT OF. happen to be underground. It is claimed by plaintiff that it is impossible

SUPREME COURT OF OHIO. to cross his entry, by another entry at the same level, without rendering his right of way useless

MARY SIDENER and the working of his veins impracticable; for the reason that the necessary breaking of the

JAMES E. HAWES, ADM'R, ET AL. continuity of his entry and windway will destroy the draft of air, by which his veins are

February 28, 1882. ventilated, and without which it is absolutely 1. The creditors of an estate are entitled to have the impossible to work them. He also says that the

same settled in due course of administration, and in case

of a sale of real estate to pay debts, that it be made by ordanger of collision between trains at the cross

der of a competent court. It is vo bar to an action by an ing would be very great, owing to the darkness administrator to sell land to pay debts, that the heir bas, of the entries and the impossibility of discern

without an order of court, sold the same at privato sale ing the approach of a crossing train until the mo

and applied the proceeds in satisfaction of preferred

claims. ment of contact. On the other hand it is claimed 2. An order of sale of real estate to pay debts, made that these are not necessary consequences of the

by the court of common pleas on a petition which states

facty suficient to warrant such an order, will not be reproposed crossing; but, on the other hand, that, if

versed for want of a journal entry showing that the facts the openings in the walls of plaintiff's entry stated in the petition were found to be true. In such a and windway are closed with air-tight doors,

anse the reviewing court will presume that the judgment which shall only be opened to admit the passage

was founded on proper proof.

3. If an heir, to whom lands descend subject to the of trains, and then closed, the ventilation will debts of bis ancestor, sells the same with covenants of not be interfered with, at least to any material general warranty at private sale, without administration degree; and that, by having a watchman con

on his ancestor's estate, to a bona fide purchaser who ap

plies the purchase movey to discharge liens thereon crostantly stationed at the point of crossing, all ated by the ancestor, and to the payment of preferred danger of collision will be avoided.

claims, auch purchaser is in equity entitled, in the disIn support of these several claims a large rights and equities of the holders of such claims.

tribution of the purchase money, to be subrogated to the amount of testimony has been taken, all of 4. In a proceeding to sell land to pay judgment credwhich is before us, and all of which we have ex- itors pending in the court of common pleas, it is compeamined with care.

tent for the heir, who still retains an interest in the sub

ject matter, by cross-petition to attack such judgments We are satisfied that the crossing of the en- on the ground of fraud. tries, if properly made by defendant, all reason- 5. A sale of the real estate by the heir with able means being used by it to prevent injury to

Dants of general warranty, before the commencement of plaintiff's right of way, such as have been re

proceedings to sell the same to pay debts, where the

purchase money, is applied to the payment of preferred ferred to, his use of his entry will not be seri- claims thereon, does not thereby divest himselt of such ously affected.

an interest in the subject matter, so as to defeat bis It will be observed that no charge is made that

right to file such cross-potition, and to protect his ven

dees. defendant proposes to cross plaintiff's entry in 6. If the allegations of the cross-petition implicates an improper manner; on the contrary the only the administrator, as well as the judgment creditors in claim of threatened injury is that defendant fraudulently obtaining such judgments, they are

against tbe heir, united in interest as to thesubject matproposes to make the crossing. This crossing ter of the controversy. we think, as before said, the defendant has the 7. On error by the heir to reverse a judgment dismingright to make, provided it protects plaintiff, at

ing such cross-petition, service upon the administrator

within the time fixed for the coinmencement of such proits own expense, from all possible injury; and ceedings, saves the action as to his co-defendants so we have no reason to suppose that it intends to united in interest, though not served within that time. do otherwise. These being the issues before the Error to the District Court of Greene County. district court we think that court was right in The following is a statement of facts so far as dismissing plaintiff's petition and refusing an is necessary to present the points decided. injunction. No injury was threatened. Should James E. Hawes, as administrator of Daniel the defendant, in effecting such crossing, fail to Sidener, filed a petition in the Court of Common use all proper means to protect the rights of Pleas of Greene County, to sell lands to pay debts

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