tered, not as to what it shall be in the future, but what it has been in the past, been so since the time of the enactment.

Well, another position is assumed, that this defendant consulted counsel, and counsel advised him that the law was different from what this court instructs you that it is. Well, gentlemen, the legal fraternity to which I have belonged for forty-one years contains a good many sensible and good useful men; contains a great many men competent to advise, and honest enough to give correct counsel; but then it contains a great many more charlatans, superficial lawyers, honest or dishonest, as the case may be, and I think I may say that my observations in courts for forty-one years leads me to believe that at least one half of the litigation that we are troubled with in the courts, arises from the misadvice of counsel. Nevertheless the law, in its tenderness, in some respects gives force and effect to the advice of counsel. If A has B arrested upon the charge of larceny, and B is tried and acquitted, and B then sues A for what is termed a malicious prosecution, that is for prosecuting him when he was innocent, and without sufficient probable cause to justify the prosecution, A, the defendant in that civil suit, may show in his defense that he acted upon sufficient cause and in good faith, and in an action of that kind, if A can show that he made a fair presentation of his case to an attorney in good standing, and that counsel advised him that it was sufficient ground for prosecution, and that he thereupon, acting in good faith upon the advice of counsel, instituted 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 for murder, or assault and battery, or anything else, for I fancy that any one evilly inclined, could find in Cincinnati or anywhere else in this broad country, some man to advise him to do whatever he wanted to do. That is the rule which some counsel act upon. They generally find out what a man wants to be advised, and then they advise him; and he is the man that pleases him. Now, it may be that this defendant, and I expect he did, advised. with counsel, and I expect his counsel instructed him that he had a right to exclude this negro from the school, and I take it, am willing to concede, that he acted in the matter in the utmost good faith; that he thought he was doing what he had a right to do; but the court charges you, gentlemen, that notwithstanding all of that, if he did what the act of Congress forbids him to do, and did it under color of authority, and because this boy was a colored boy, that it would be no excuse; he would still be guilty. It would be a matter to address itself very strongly to the consideration of the court. The punishment prescribed by the statute is that the court may inflict a thousand dollars fine and twelve months imprisonment; and in a proper case this court

would do that. The court can not go beyond that in any case; but the court is not bound to do that; it is bound to exercise its own judgment in a particular case. It may fine as low as a penny, or imprisonment for twenty minutes, or either one. It is a matter within the discretion of the court. There is no minimum of punishment, but there is a maximum, beyond which the court can not go; and we are, gentlemen, all under obligations to avoid, as far as possible, anything like personal feeling, any personal interest. We are under oath both the court and jury, to administer the law just as we find it. The court is to determine the law and the jury is to pass upon the fact.

Now the issue, and the only issue, is, whether this colored school that had been provided, and which the statute had authority to provide, was reasonably accessible, and gave to this boy the same facilities, educational facilities that he could have obtained at the other, or something approaching it. If it did, then this defendant is not guilty; if it did not, then the court instructs you that, upon your finding that fact, he would be guilty as he is charged in the indictment. Take the case gentlemen.

The jury disagreed, and were discharged. Channing Richards, for the Government. John Johnston and H. J. Buntin, for defendant.

RAILROAD COMPANY--DAMAGES--EMPLOYE-REASONABLE OR UNREASONABLE ORDERS.

SUPREME COURT OF OHIO.

PITTSBURGH, CINCINNATI & ST. LOUIS RAILWAY COMPANY

2.

GEORGE HENDERSON.

February 28, 1882.

1. Where the superintendent of a railroad company has made an order as to the management of a particular train, which order will be reasonable or unreasonable according to the circumstances under which it is to be enforced, the question whether in any particular case such order is to be deemed reasonable or unreasonable is a. question of mixed law and fact, to be determined by the jury under proper instructions.

2. Where an action is brought against a railroad company by one of its employes to recover damages for personal injuries sustained by the enforcement of an order made by the superintendent of the company as to the management of a particular train, which order was unreasonable and the enforcement of the same was dangerous to such employe, the fact that the negligence of a fellow servant of the injured person, while executing such order, contributed in producing the injury, affords no defense to the action.

Error to the District Court of Harrison County.

Henderson brought suit in the Court of Common Pleas of Harrison County against the Pittsburgh, Cincinnati & St. Louis Railway Company. He was a laborer in the employ of the company upon a construction train which was.

CIVIL RIGHTS.

UNITED STATES

v.

JOHN M. BUNTON.

JUDGE BAXTER'S CHARGE TO THE JURY. The prosecution was instituted against defendant as Superintendent of a District, School in Clermont County, for refusing to admit the son of a colored man to the school, which is attended by white children, the defendant claiming that

there was a school for colored children in the vicinity, accessible to the boy, and to which he should be sent. The case was tried last week before Judge Baxter, at Cincinnati, who charged the jury as follows:

GENTLEMEN OF THE JURY-It is a great relief to a court, and a great relief to a jury, to have a case tried by counsel who understand what the controlling question is and who are frank are frank enough to move right up to the question and present that case. Upon that the decision of the jury turns, without making it necessary for the court to go back, as it were, and traverse all the law in order to show you what the ruling question in controversy is. If this case had been met in that spirit we would have been through it before dinner, but it is a very small case and in a very narrow compass. There is really but one question for the jury, which I will point out after a while.

A good deal of discussion has been gone into, and a good many books have been read in order to satisfy the court, for it was addressed to the court and properly to the court, as it is a question which the court has to decide and not the jury, that there must be a criminal intent to constitute a crime. In the broad sense in which the books intend it, that proposition is true. But what constitutes a criminal intent in one case is very different from what it is in another case. A decision is read here by Judge Rives, of Virginia. That case was upon the trial of a juror commissioner, who was indicted because he refused as jurors-he excluded from the jury box-two colored men because or on account of their color, the law denouncing that act as a crime, and authorizing parties to be prosecuted who did that. Now you will see that the essence of that crime consisted not in his excluding the jurors-I mean persons from the jury-box-but for doing it on account of their color. The exclusion of colored men from the jury-box might have been because they were regarded as incompetent to serve as jurors, as not having sufficient intelligence, or for some other good and reasonable cause. He could not be indicted for that; but if he did it simply and solely on the ground that they were colored persons, then the law applied, and as in that particular instance the evidence consisted in the motive-not in the exclusion of the jurors, but in the motive which in

duced him to exclude the jurors-of course the court was bound to pass upon the faet whether he did exclude them from that motive or some other motive.

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 knowing it to be counterfeit, because any of us may pass a counterfeit bill inadvertently and without any knowledge of the fact. In that case the crime consists not simply in the passage of the bill or offering it in payment to some one but in the passage of the bill with the knowl edge that it was counterfeit. Then the party can not be convicted unless there is proof of what the law, the books, call the scienter-that is, the knowledge-and that is the proper inquiry to be made in case of that kind. So in an indictment for forgery. The mere fact that I sit down here and draw a note for a thousand dollars, and sign A. B.'s name to it, is not a criminal offense of itself; and the law says, "If done with intent to defraud," if used with the knowledge of the fact that it was spurious-the knowledge or the intent, in that particular instance, is a necessary element to constitute the crime, and in that instance the knowledge must be proven.

Now we will come down to this case. I am cited to a great many other cases of similar character, and in the discussion upon the books, the author is treating upon some particular proposition, and his language is applicable to that proposition, and hence when you turn over very of ten a page or two forward or a little back you find something to the unthinking mind, whose business it has not been to study law or to discriminate, that seems apparently in conflict with this proposition, but when you look to the facts and the difference in principle they are harmonious, and they are both correct. The crime in this case is, after the slaves were emancipated by a military force and through an amendment of the Constitution of the United States they were made citizens; they were invested with all the rights of citizenship. They have, under the Constitution, the same rights precisely as you and I have, but being an uneducated race just withdrawn from under the yoke of bondage and turned loose upon the world as full-fledged citizens of the United States, the Government, or a majority of the people of the United States who did this thing, felt that it was their duty to throw around the ignorant slave such protection as would be sufficient to guarantee to him the rights with which the Constitution has invested him; because a right, although it be a constitutional right, unless there is some. means provided by which to protect that right and and protect the parties in the exercise of that right, is en tirely valueless. Several provisions of law have been made in order to give this protection. Among others it has been enacted that every person who, under color of any law, statute, ordinance, regulation or custom, deprives a person

property owners and had petitioned the council for permission to make the same, by using the track of the West Side company for that purpose. It further appears that two ordinances were pending before the city council, in each of which it was proposed to grant such permission, on condition only, that the right to use the track of the West Side Street Railroad Company should first be acquired by consent of said corporation or by lawful appropriation. JOHNSON J.

The plaintiffs as stockholders in the Brooklyn Street Railroad Company seek equitable relief against the action of its board of directors.

They ask: 1st. To enjoin the board from issuing to defendant, Johnson, certificates of stock for $8.250 subscribed and paid for, and to declare said contract of subscription void:

2nd. To enjoin the city of Cleveland from passing an ordinance granting to said company permission to use the track of the West Side Street Railroad to extend its line to the business centre of the city.

3rd. To enjoin the directors from taking any steps, or instituting any proceedings to obtain the right to such use, or to make such extension.

1. Are the plaintiffs entitled to an injunction against the issue of this stock, and to have the contract of subscription therefor declared void?

The authorized capital was $30.000, of which all had been subscribed and paid for except $8.250. Repeated efforts had been made by the board to place all the stock but with little success. The books for the subscription of stock had been formally opened by the incorporators, and most of the stock had been subscribed and paid fro after the organization of the company and while these books were in the possession and under the control of the directors. They had never been closed by any action of the board, or of the stockholders.

The financial condition of the company was such that additional capital was necessary.

The directors allowed defendant, Johnson, to subscribe and pay for this untaken stock, at its par value. It is not claimed that it was worth more than par. Indeed from the allegations of the petition it was worth much less.

The consideration received was of the full value of said stock. The property and money received was necessary and proper for the use of the company;

In short, the transaction was bona fide and beneficial to the company, and the contention is, that it was unauthorized, and was unauthorized, and therefore, that the contract was void. In this we do not concur.

This was not an increase of capital stock, beyond the amount authorized by the certificate of incorporation, hence the numerous authorities cited as to the power of the board to increase the capital stock, or to dispose of increased capital do not apply. This stock was part of the authorized capital, which each subscriber for stock, and each holder of stock had expressly agreed should be taken at par, at an open public subscription. Each stockholder took his stock,

knowing that others, to the full amount of the authorized capital, could be associated with him in the business of the company.

Before the organization, the incorporators are authorized by statute to open books, receive subscriptions and the first payment thereon, and give notice for the election of directors. They are empowered to place all the authorized capital. After the directors are elected and qualified, "the corporate powers, business and property, of the corporation, "must be exercised, conducted and controlled by the board of directors. (R. S. 3248.) What power and control the stockholders, in their capacity as such, in a stockholders' meeting duly held, may exercise over the business of the corporation, and over the board of directors, we need not determine, as in the case at bar, they have taken no action.

The books for the subscription of stock were opened by the corporators. Neither stockholders or directors had ordered them closed. If the stockholders had the power to dispose of this unsubscribed stock they never sought to exercise it. In the absence of such action of the stockholders as would control the directors, (if any such could be taken) the right to place the unsubscribed stock vested in the board of direc tors. They represented the corporation in all its business affairs, and were authorized to transact all the corporate business within the scope of its authority. In the exercise of these powers the directors are, at all times, subject to the equity jurisdiction of the courts, on the application of a stockholder or a minority of stockholders, to restrain all breaches of trust, or the exercise of powers not delegated to them, to the injury of stockholders.

If, however, the directors, who are presumed to represent the will of the majority, act within the scope of their powers, their will must govern in the absence of fraud or breach of trust.

Dodge v. Woolsey, 18 How. S. C. 342; Ware v. Grand Junction Co., 2 Russ. & Mylne. 470; Gifford v. N. J. R. Co., 10 N. J. Eq. 171; Byron Ste phens v. The Rutland & B. R. R. Co., 29 Vt. 545; Russell v. The M. S. & N. I. R. R. Co, 22 N. Y. 258; Kean v. Johnson et al, 1 Stock Ch. R. 401; Field on corporations, sec's 141, 142.

Applying these principles to the case before us we hold: 1st. That the act of disposing of this stock at par, for a full and valuable consideration, was not in excess of the powers intrusted to the directors; and 2nd. That the transaction being free from fraud and beneficial to the company, it was not such an abuse of the trust reposed in the board as warrants the interference of the chancellor.

The objection made, that Johnson was the President of the board, and that his associates could not dispose of this stock, is not well taken. The majority of the board, excluding Johnson, agreed to this contract. At most it was voidable and not void. If in all respects fair and beneficial a court of equity will not avoid it. It being within the scope of the powers vested in the directors, in the absence of any controlling

action by the stockholders, the contract to dispose of their stock to a director or stockholder, if made in good faith, and is beneficial to the company, will not be set aside at the instance of a minority of stockholders. In such a case there is not auch an abuse of corporate power, nor is there an exercise of powers not granted as will authorize the intervention of the chancellor. Smith v. Skeary, 47 Conn. 47.

II. As to the prayer for an injunction against the city of Cleveland.

All the city is asked to do, or proposes to do, is, to grant permission to the Brooklyn Street Railroad Company the privilege of occupying certain streets, and to use the track of another railroad company for its contemplated extension.. The city does not propose, if it has the power, to invade or interfere with the private rights of the West Side Street Railroad company to the exclusive use of its track. The permission to occupy the street and to use this track, is upon the express condition, that the company acquire of the West Side Company by mutual consent or by ap propriation, whatever property rights the West Side Company have therein. The statute vests in the city council the power to grant the use of the streets to any street railroad company, if beneficial to the public. A court of equity will not interfere with the exercise of this discretionary power in the absence of facts showing fraud or bad faith. The State ex rel v. Gas Company, 37 O. St. 45.

III. Should the company be restrained from taking any steps, or instituting any proceedings to acquire the right to extend its lines and use the track of the West Side company for that purрове.

If it can be lawfully done the finding of the court is, that it will be highly beneficial to the company. The right to the relief prayed for, depends therefore on the underlying question, has the corporation the power to make the proposed extension. All questions of fraud or of injury to the stockholders are eliminated.

This corporation was incorporated and organised under the act of April 10th, 1861. (58 O. L. 66) and acts amendatory and supplementary thereto. The certificate was dated August 25, 1869, and the organization was perfected by the

election of directors October 5th 1869.

Section 1, of the act of 1991, prescribes the minimum number of natural persons required to form a corporatiou, and describes the manner of executing the certificate, and states what it shall contain. It must specify, (1) 66 The name assumed by such company * * *. (2) The name of the street, alley or avenue, with the description of the locality thereon of each terminus of said road, and the names of the streets, alleys and avenues or other public grounds through which such road shall pass."

Sec. 2, among other things, provides "that when the foregoing provisions have been complied with, *** such corporations shall be authorized to construct, operate and maintain a street railroad * * on the streets, alleys or

avenues * ** specified in the certficate ** between the points of termini named in the certificate, and transport thereon passengers and their packages and baggage."

Section 5, required the consent of the city council to be first obtained before a street railroad could be commenced or constructed. This section was repealed by the act of May 27, 1866, (63 O. L. 55) (S. & S. 137-8), and sections 1 and 2 of the latter act were substituted. Section 1 of this act provided that no street railroad should be constructed or commenced until the consent of council be obtained, and authorized the council to agree upon the terms and conditions upon which the street should be occupied.

Section 2, requries the council to prescribe by ordinance the terms and conditions upon which the streets and avenues of the city may be occupied by street railroads.

Up to this time there was no authority vested in the city council to allow street railroad companies to extend their tracks beyond the limits named in this certificate of incorporation.

May 7,,1869, an act supplementary to the act of March 27, 1866, was passed, which in terms authorized such an extension, (66 O. L. 140). It reads as follows: "It shall be lawful for the council of any city or incorporated village to grant permission by ordinance to any person or company, owning or having the right to construct, any street railroad, to extend their track on any street or streets where the said council shall deem such extension beneficial to the public. And when any such extension shall be made the charge for carrying passengers on any street railroad so extended, and its connections made with any other road or roads, by consolidation under existing laws, shall not be increased by such extension or consolidation." This power of extension under this act was in addition to the power to consolidate under sec. 4, of the act of 1861. The right of extension was, by the act of April 10, 1867, (64 O. L. 122) (S. & S. 138), so enlarged as to provide, that thereafter any road constructed in a city or village, may be extended without the limits thereof, along the public road, provided the proper authorities consent &c.

The certificate of incorporation was taken out after the supplementary act of May 7, 1869, was in force. That act was as much the law governing the corporation as the act 1861. When this company became incorporated in August, 1869, it was empowered to exercise all the powers and enjoy the franchises granted by the act of 1861, and by the amending act of 1866, and also, by the act supplementary thereto, of 1869. The franchises granted by this supplementary act are as much a part of its chartered powers and privileges as those embraced in the original act. Its language is unmistakable. It shall be lawful for the council to grant permission by ordinance, "to any person or company, owning or having the right to construct any street railroad, to extend their track," &c.

Section 5, of the act of 1861, and sections 1 and 2 of the act of 1866, did not authorize the council

the Salt Co., being the owner of the land, subject only to the easement, has the right to the use thereof in any manner not inconsistent with the easement reserved. If then it is possible for it to cross the entry of plaintiff in the manner proposed, without destroying or substantially interfering with his use of the same, its right to do so is beyond question; and, if such right exists, we cannot see that the defendant's reason for making the crossing, whether for the purpose of mining coal in its own tract or of obtaining coal from lands lying to the east, is a subject for the court's consideration. These are the principles applicable to rights of way upon the earth's surface and we are not aware that they lose their application where such rights of way happen to be underground.

It is claimed by plaintiff that it is impossible to cross his entry, by another entry at the same level, without rendering his right of way useless and the working of his veins impracticable; for the reason that the necessary breaking of the continuity of his entry and windway will destroy the draft of air, by which his veins are ventilated, and without which it is absolutely impossible to work them. He also says that the danger of collision between trains at the crossing would be very great, owing to the darkness of the entries and the impossibility of discerning the approach of a crossing train until the moment of contact. On the other hand it is claimed that these are not necessary consequences of the proposed crossing; but, on the other hand, that, if the openings in the walls of plaintiff's entry and windway are closed with air-tight doors, which shall only be opened to admit the passage of trains, and then closed, the ventilation will not be interfered with, at least to any material degree; and that, by having a watchman constantly stationed at the point of crossing, all danger of collision will be avoided.

In support of these several claims a large amount of testimony has been taken, all of which is before us, and all of which we have examined with care.

We are satisfied that the crossing of the entries, if properly made by defendant, all reasonable means being used by it to prevent injury to plaintiff's right of way, such as have been referred to, his use of his entry will not be seriously affected.

It will be observed that no charge is made that defendant proposes to cross plaintiff's entry in an improper manner; on the contrary the only claim of threatened injury is that defendant proposes to make the crossing. This crossing we think, as before said, the defendant has the right to make, provided it protects plaintiff, at its own expense, from all possible injury; and we have no reason to suppose that it intends to do otherwise. These being the issues before the district court we think that court was right in dismissing plaintiff's petition and refusing an injunction. No injury was threatened. Should the defendant, in effecting such crossing, fail to use all proper means to protect the rights of

2. An order of sale of real estate to pay debts, made by the court of common pleas on a petition which states facts sufficient to warrant such an order, will not be reversed for want of a journal entry showing that the facts stated in the petition were found to be true. In such a case the reviewing court will presume that the judgment was founded on proper proof.

3. If an heir, to whom lands descend subject to the debts of his ancestor, sells the same with covenants of general warranty at private sale, without administration on his ancestor's estate, to a bona fide purchaser who applies the purchase money to discharge liens thereon created by the ancestor, and to the payment of preferred claims, such purchaser is in equity entitled, in the distribution of the purchase money, to be subrogated to the rights and equities of the holders of such claims.

4. In a proceeding to sell land to pay judgment creditors pending in the court of common pleas, it is competent for the heir, who still retains an interest in the subject matter, by cross-petition to attack such judgments on the ground of fraud.

5. A sale of the real estate by the heir with covenants of general warranty, before the commencement of proceedings to sell the same to pay debts, where the purchase money is applied to the payment of preferred claims thereon, does not thereby divest himself of such an interest in the subject matter, so as to defeat his right to file such cross-petition, and to protect his vendees.

6. If the allegations of the cross-petition implicates the administrator, as well as the judgment creditors in fraudulently obtaining such judgments, they are against the heir, united in interest as to the subject matter of the controversy.

88

7. On error by the heir to reverse a judgment dismissing such cross-petition, service upon the administrator within the time fixed for the commencement of such proceedings, saves the action as to his co-defendants so united in interest, though not served within that time.

Error to the District Court of Greene County. The following is a statement of facts so far as is necessary to present the points decided.

James E. Hawes, as administrator of Daniel Sidener, filed a petition in the Court of Common Pleas of Greene County, to sell lands to pay debts