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and fit for navigation, and agreed to pay therefor the sum of $38,820 in three payments, to wit: $20,000 in cash and the balance in two equal payments in three and six months.

The property so purchased, having been on the day of sale delivered by the lessees to the board, on May 23, the board, by proper warrant upon the state treasury, did cause the said sum of $20,000 to be paid to the lessees; but upon maturity of said deferred payments, the board neglected and refused to pay the same, or cause the same, or any part thereof, to be paid, and have hitherto so' neglected and refused.

Whereupon, on this showing, and the further allegation that there is, in the treasury of the state of Ohio, subject to the order and control of said board, more than 840,000, applicable to the payment of said indebtedness, an alternative writ of mandamus, upon the relation of said lessees, has been issued by this court, commanding said board to issue its warrant to the auditor of state in favor of said relators for the amount due them (including interest) on said contract, or show cause why the same is not done.

By answer, the board of public works shows for cause why they have not complied with the command of this writ, certain matters which are sufficiently stated in the opinion of the court.

The cause is now submitted on demurrer to this answer.

J.T. Holmes and George K. Nash, attorney-general, for defendant.


In the first place, the defendants claim that, at the time the agreement was made, there was no authority or power in the board of public works to purchase dredges, boats and other implements at a price in excess of $20,000, and, therefore, the agreement to pay in excess of that sum is void. This claim is based on an act passed May 13, 1878, entitled, “An act to appropriate money to repair the public works and render them fit for navigation.” By this act, in addition to tolls, fines and water-rents of the pablic works, the sum of $30,000, from the general revenue of the state, was appropriated "for the purpose of putting said works in such state of repair as will prevent an overflow, and render them fit for use at the opening of navigation," and it was provided, that of said sum of $30,000, " that not exceeding $20,000" *

may be used in leasing or purchasing the necessary dredges, and other boats, implements, tools, horses and mules, required to keep said works in repair." In this statute we find no limitation upon the power of the board in making such purchases. The limitation is solely upon the use of the appropriation from the general revenue. If necessary, any sum in excess of $20,000, to be paid for such implements, might have been taken from the tolls, fines and water-rents of the public works. So that, in this act of appropriation, there was ample provision made for the payment of the whole amount of relator's claim, provided only, that in addition to the $20,000, the receipts of tolls, fines and water-rents should prove sufficient to make up the amount.

Ample power to enter into the contract with the relat. ors was conferred upon the board of public works, by the act of April 4, 1859, entitled, “An act conferring certain powers on, and prescribing certain duties of, the board of public works." Although the necessity for the exercise of the powers berein conferred was, in a great measure, suspended during the time the lossees were in possession of the public works, it was fully revived (the act not having been repealed) as soon as the board was again put in

possession of the works, under the resolution of May 11, 1878. And here it may be remarked, that the necessity and propriety of making the purchase, at the time and under the circuinstances, are not questioned; while, on the other hand, it appears that the purchase was very ad. vantageous to the state.

In the next place, it is claimed that the funds in the treasury, subject to the control of the board, are not applicable to the payment of relator's deinand. It is true that the special appropriation act of May 13, 1878, cannot now be looked to as an authority for using the funds in the treasury for such payment, as section 22 of article 2of the constitution provides, “No inoney shall be drawn from the treasury except in pursuance of a specific appropriation made by law; and no appropriation shall be made for a longer period than two years." But section 2 of the general appropriation act of April 15, 1880 (77 Ohio L. 254) provides, " That thero is hereby appropriated from any money coming into the treasury, as receipts from the public works, the following suns, to wit: For the maintenance, repairs, compensation of superintendent, and other employes of the public works, not otherwise herein provided for, the receipts from tolls, rents, fines aud other income, heretofore, and since the 15th day of November, 1879, received or hereafter arising from the use of the public works, not otherwise appropriated.” The funds in the treasury sought to be reached are of this description, and we see no reason why they should not be used for the payment of relator's claim. To hold that this appropriation can be applied only to liabilities incurred after the passage of the act, would be unjust and unwarranted.

The answer further sets up, that on May 23, 1878, the contract with relators was modified by the board of public works, by the following action, as recorded upon its minutes :

“ Board met. Present, Messrs. Thatcher, Schilder and Evans.

** Ti e attorney-general verbally submitted his opinion, as requested yesterday, to the effect that the board could not exceed in the purchase of the boats, tools, &c., of the lessees, the sum oi $20,000, appropriated for that purpose.

“On motion of Mr. Evans, the following preamble and order were then adopted by a unanimous vote of the board, to wit:

"Whereas, This board, on Saturday, the 18th inst,, resolved to buy the dredges, boats, tools, &c., belonging to the lessees of the public works of this state, at the sum of $38,820, under the erroneous impression that the board could use a part of the revenue of the public works, in their purchase, in part, and

Whereas, The attorney-general has given his opinion that no such use can be made of the revenues of the public works, under the existing laws; therefore,

Resolved, That the terms of said agreement to purchase be modified in this, to wit: That the board of public works will now pay to said late lessees the sum of $20,000 on account of said tools, &c., the saine being the amount appropriated for that purpose, May 13, 1878, leaving the lessees to depend upon the affrmance of said contract of purchase by the general assembly, and the making of the necessary appropriation to pay the remainder of said consideration to the general assembly.

“Thereupon, on motion of Mr. Schilder, the following order was adopted, to wit:

Ordered, That the president of this board isssue his check on the auditor of the state in favor of the lessees of the public works for $20,000, on account of the purchase

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of dredges, loats, horses, tools and implements, bought In view of these principles, we must hold that the state, of them on the 18th inst., as per schedule furnished.” as a debtor, is not within the purview of the statuto

And it is :: verred that relators, with full knowledge of above quoted, and cannot be adjudged to pay interest the above action of the board, acquiesced therein, and re- upon any claim against her in the absence of a promise, ceived the piyment of said $20,000.

expressed or implied, to do so; and it is not claimed that It is quite evident, that the sole inducement which led any such promise has been made to relators. Attorneyto the action of the board on the 23d inst., was the belief General v. Cape Fear Navigation Co. 2 Ired. Eq. 444; Au. iuduced by the opinion of the attorney-general, that the ditorial Board v. Arles, 15 Texas, 72 ; State v. Thompson, contract of the 18th inst, was void for want of power in 5 English (Ark.) 6l; 9 Opinions of Attorneys-General, the board to make it, and the sole object of such action 57. was to affirm the contract as far as was in the power of the It is suggested, however, that even in the absence of a board, leaving it to the legislature to ratify the unauthor

statute, or an agreement, requiring the state to pay iuterized stipulations.

est upon relator's claiin, that damages in place of interest, Except for this belief, which we have already shown might be awarded, under section 6753 of the revised statwas erroneous, no such action would have been taken hy

utes, which provides, “If judgment be given for the the board ; and certainly any acquiescence on the part of plaintiff, the relator inay recover damages which he has the lessees to a modification of the contract (if any were sustained, to be ascertained by the court, or a jury, or by shown) must be attributed to the same mistake. But the a referee, or master, as in a civil action." This section only fact, or act of the lessees tending to show acquies- certainly does not contemplate an award of damages cence in a modification of the agreement of the 18th inst. against the state, in whose name alone the writ of manwas the receipt of the $20,000, after knowledge of the ac- damus can be prosecuted. And to assess damages in tion of the board on the 23d. This is not sufficient to this case to be paid out of moneys in the treasury belongbind the lessees to such inodification. The payment and ing to the state, would be in effect an assessment against receipt of the $20,000 were in strict accordance with the

the state. And to asses thein against the members of the contract of the 18th. Plainly, there was no consideration board of public works would be unjust, for several reainoving to or froin either party, to induce or support a sons: Ist. The members now composing the board, and modification of the contract, and, for all that appears, the sued, are not the same members who composed the board relators may insist upon the original terms of the agree- during the greater part of the time during which payment.

ment has been delayed. 2d. The delay has been occaIt is also insisted by the defendants, that tlie claim sioned by an honest conviction that there was no authoof relators, being one against the State, interest thereon rity in the board to make payment. cannot be allowed.

If the relators have been injured by delay in making On the other hand, it is claimed that the relators are payment, they can look only to the general assembly for within the terms and meaning of the statute which pro- redress. vides “That all creditors shall be entitled to receive in- Peremptory writ awarded. terest on all money after the same shall become due, (This case will appear in 36 0. S.] either on bond, bill, promissory note, or other instrument of writing, or contract for money or property.” That A SOLICITOR STRUCK OFF THE ROLLS. the words of this statute are broad enough to embrace the claim of relators is not disputed ; but it is contended

"In the Queen's Bench Division, on Saturday that the state is not embraced within the general words

the 21st inst., an application was made, at the of a statute, and can be held to be within the purview of

instance of the Incorporated Law Society, to statute only when so declared expressly or by necessary

strike William Henry James Pook, solicitor, of implication.

Greenwich, off the rolls for misconduct. He had The doctrine seems to be, that a sovereign state, which

received for his client a considerable sum of can make and uninake laws, in prescribing general laws intends thereby to regulate the conduct of subjects only,

money-about £400—for payment to his credand not its own conduct.

itors, and though he had, with his client's sub

sequent assent, applied part of the money to the It is a familiar doctrine, that a state is not affected by the statute of limitation, however general its terms may

payment of a debt due to himself, and had also be. Green Township v. Campbell, 16 Ohio St. 11; Josse applied a small portion to the payment of other lyn v. Stone, 28 Miss. 753. Upon the same principle, it creditors, he had applied the larger portion to

his own use. But he had, since these proceedhas been held, that a statute providing that “costs shall follow the event of every action or petition," does not ap

ings, made full restitution. Lord Coleridge said ply to a party prevailing against the state even in a civil

that he and his brother Bowen, having taken cause. State v. Kinne, 41 N. H. 238. Indeed, the doc

time to consider the case, had come to the contrine of the common law expressed in the maxim, “The

clusion that there was nothing to mitigate the king is not bound by any statute, if he be not expressly

sentence they felt compelled to pronounce. It named to be so bound” (Broom Leg. Max. 51), applies to was obvious that the restitution so recently made states in this country as well. Moreover, upon the same was made under pressure and from fear, and principle rests the well-settled doctrine that a state is not

could not be taken into account. He was a perliable to be sued at the instance of a citizen. Not be- son clothed with a character of exceptional recause a citizen may not have a just claim against the state sponsibility, and invested by the court itself or may not suffer injury at the hands of the state; but with powers which might be abused. He was because it must be assumed that the state will ever be the officer of the court, and was accredited to the ready and willing to act justly toward its citizens in the world by the court itself, and in that character absence of statutes or the intervention of courts. Coster

he was intrusted with the confidence of clients v. Mayor, 43 N. Y. 399.

in matters often of the most delicate and im

was per se culpable negligence contributing to bewhere a person engaged as an agent in the sale of

portant nature. Honor and honesty, therefore, While the cause of action in such a case is technically were of the very essence of the character of a the loss of service, the jury are not contined to the actua! solicitor; and if a person showed by his conduct damages; and evidenco is admissible to show the de.

pecuniary loss, but may award exemplary or punitory that he was unfit to exercise those exceptional fendant's pecuniary condition. powers with which he was entrusted, the court

It is no objection to the inaintenance of an action for had no alternative but to take those powers

seducing the plaintiff's daughter that defendant pro

cured the sexual intercourse by force. Lavery v. Crooks. from him. Sorry as they were, therefore, to have Supreme Court of Wisconsin. to take such a course, they had no alternative but to order that Mr. Pook's name be struck off Partnership.-Bank Deposit in the Name of One partthe rolls.- Law Journal, London, May 28, 1881.ner:-? 'se of Firm Name by Surriving Partner.- Partner

ship of Agents.-Where one of two partners carrying Infant— Injury to while on the Track— Qruestion of on business in his own pame deposits moneys of the

firm in his own name in bank, such funds belonging to Contributory Negligence.-- Where a child two roars

the tirm, the other partner will have the right to change old strays away from his home, without the

the account during the life of the partner in whose name knowledge or consent of his parents, and goes the deposit was marle, and place it to the credit of the upon a railroad track, which is about one hun

firmi areout, and, after his death, to check it out as dred feet from his home, and within three min

surviving partner. But if the same was the private

means of the partner so depositing, the other will have utes after leaving his home he is injured by a no power to control it or check it out during the life of car belonging to the railroad company, running

the depositor, or after his death.

A surviving partner has the right to use the firm name over him. Held, that it cannot be said, as a in which to transact his business. A check ,drawn on a matter of law, that the failure of the parents to bank by him, either in the firin name or in his own keep the child away from the railroad track,

name as surviving partner, when paid, will protect the

bank. the injury. Smith v. Atchison, Topeka & Santa manufactured articles on a commission, forms a partnerFe Railroad Co., 25 Kans.

ship with another, and the firm continues the business,

it will be a continuance of the agency, not only to sell, Where a railroad track is constructed in a

but alsu to collect for articles previously sold, for the populous neighborhood, near a city, and chil- principal. And such money, when collected, over and dren and others often go upon the track, and a

above the coinmissions allowed, belongs to the principal portion of the track has a steep grade down

or original owner, and does not become the property of

the agents selling. The Commercial National Bank 1. which cars will run with great force when the Proctor. Supreme Court of Illinois. brakes are loosened ; and the persons operating the road loosen the brakes of a car loaded with

SUPREME COURT RECORD. coal, and let it run down this steep grade, without any person being on the car, or any means (New cases filed since our last report, up to Sept. 7, 1881. of stopping it, and without first looking to see whether the track was clear, or whether any 1151, John B. Jones v. Franklin Insurance Co. Frror person was on the track or not; and a child, who

to the District Court of Licking County. C. H. Kibler

for plaintiff; J. Buckingham for defendant. was on the track, was run over and injured; and

1152. J. B. Jones v. Clara Conley. Error to the Disthere is a conflict in the evidence as to whether

trict Court of Licking County. G. Atherton and J. B. the child could have been seen by the persons Jones for plaintifl'; Charles Follett, & Son for defendant. operating the road, before they loosened the 1153. William Campbell v. Ensley D. G. Campbell. brakes. Held, that the court cannot say, as

Error to to the District Court of Licking County. C. H.

Kibler for plaintiff. matter of law, that the persons operating the

1154. Elisha Wilkinson et al. v, Commissioners of road were not guilty of negligence; þut it is a Preble County. Error to the District Court of Preble question of fact which should be submitted to County. Robert Miller and M. L. Holt for plaintiff'; the jury.

Foos & Fisher and Thomas Millikin for defendants.

1155. Theodore W. Moore v. Wm. H. Given. Erroi to Where a railroad company owns a switch

the District Court of Muskingum County. T. J. Taylor track, constructed from the main track to a coal

for plaintiff. shaft belonging to a mining company; and 'the 1156. Plympton J. Liles v. Jacob J. Gaster. Error to railroad company furnishes cars to this mining the District Court of Wyandot County. John D. Sears company to be loaded with coal, and when loaded, for plaintiff; McKelly & Hare for defendant.

1157. Edward B. Clark et al. v. Maria McDonald. Erperinits the mining company to loosen the brakes

ror to the District Court of Ross County. Hall & Bostof the cars so that the cars will run down the wick for plaintiff. steep grade of the switch track to a point where 1158. John Rice v. George Rice et al. Error to the the track is level; and the mining company

District Court of Morrow County. Olds & Dickey for

plaintiff; H. L. Beebe for defendants. after loading a certain car, negligently loosens the brakes thereof and allows the cars to run down

1159. A. W. Thompson et al. v. Thomas Massie et al.

Error to the District Court of Ross County. P. C. Smith the steep grade of the switch track, and over a and Vanmeter & S. for plaintiffs; McClintick & Smith child, and thereby injures it. Held, that the for defendants. railroad company is responsible for the injury.

1160. Frank J. Bonewitz v, Van Wert County Bank

et al. Error to the District Court of Van Wert County. Master and Servant.-Action for Loss of Service of

W. J. Beers for plaintiff; I. N. Alexander for defendants. Daughter.- Exemplary Damages.- Evidence of Defendant's

1161. Theresa Eisenberg v. Marx Albert et al. Error Property.-A father may recover for loss of service of

to the District Court of Belmont County. J. H. Collins his infant daughter, caused by her being gotten with

for plaintiff. an illegitimate child, notwithstanding, she was not at the time actually in the service of the father (but in that 1162. The Baltimore & Ohio R. R. Co. v. Ira Lewis et of the defendant), if he still retained the legal right to

al. Error to the District Court of Belmont County. J. reclaim such service.

H. Collins for plaintiff.

Ohio Law Journal.



our sincerest sympathy, for we know how

greatly he will be missed. COLUMBUS, OHIO, : SEPT. 15, 1881.

The Supreme Court of Ohio will convene

September 26.
-Thomas H. Kelley, of the Cincinnati Bar, was in the

The time for business in our County Courts city Tuesday of this week and favored the Law Journal is at hand, but so great is the power of polioffice with a call.

tics over law and justice, that Courts must -Hon. Henry C. Noble has returned from his summer

give way to political pressure and allow the stay at Lake Chautauqua, where the pure air and pleasant surroundings must surely agree with him, judging from

channels of justice to remain closed until his hale and hearty looks.

after the election. -W. P. Richardson, Esq., of Marietta, stopped in Columbus a short time, the first of the week, on his way NUMBER one of “THE LAW-CENTRAL," a home from a summer's sojourn in the West. Mr. Richardson had some business with the Supreme Court,

monthly magazine devoted to the interests of which he transacted with his Honor, Judge Okey, who is

the legal profession, has just reached us from the only resident Justice of the Court to answer calls Washington, D. C. The CENTRAL is edited made here in vacation. The LAW JOURNAL was pleased

by William R. Smith, Esq., and starts out to meet Brother Richardson. -Hon. John McClure, Ex-Chief Justice of the Su

with sixty-four pages of valuable reading preme Court of Arkansas, spent several days in Colum- matter, which on its face will surely pilot bus, last week, visiting old friends. Judge McClure is this new monthly into the good graces of an old Ohio man, who was Chief Justice of his adopted State (Arkansas) at the time of the Brooks-Baxter ex

the profession at once.

Terms $5.00 per citement, a few years ago, when the Court was called annum.' Single copies 50 cents. upon to decide as to who was, in law, the Governor. The Judge now being clear of official duties, is enjoying

QUESTIONS IN THE LAW. the luxury of a handsome practice in the law, which his well-known ability righteously brings forth.

We have received the following queries from

subscribers : OBITUARY.

No. 1. A person is arrested for the violation Willis W. Powers, Esq., of the Mahoning of an ordinance of a village. The ordinance County Bar, died last week, and. was buried

does not make imprisonment a part of the punat Youngstown on Saturday.

ishment, but imposes a penalty not exceeding

fifty dollars. The accused demands a jury trial. Although young in years he was old and

There is another ordinance of the village prowell learned in the true principles of man

viding for impaneling a jury "in cases where the hood, honor and firm friendship. We were

party is entitled to trial by jury." Would the acboys together when he attended College in

cused in this case, under the Constitution, Art. Pennsylvania. We were together when he

1, § 10, and the Revised Statutes &$ 1823 to was a law student at Pittsburgh. We gave 1830, and $ 1839, be entitled to a trial by jury? him a hearty grasp of the hand, and bid him

No. 2 Has any Court decided that bees kept Goù speed when, crowned with the title of in proximity to the dwelling house of another attorney and counselor, he entered upon a are a nuisance before real injury is done by them? bright professional career. Within the last Would an injunction be granted to restrain the year he was admitted to the Ohio bar and keeping of the animals? located at Youngstown, where his prospects were most flattering. His love of home and

"Step by step," reads the French proverb, one family was one of the admirable character

goes very far.” “Nothing is impossible,” says

Mirebeau, "to a man who can and will. This is istics of his affectionate nature, and we know

the only rule of success.' “Have you ever en. how well he was loved in return by the mem

tered a cottage, or traveled in a coach; ever talked bers of that bright home circle, within which

with a peasant in a field, or loitered with a mewe were often gathered together in days past. chanic at the loom ?” asked Sir Edward Bulwer With the members of his family, we mourn Lytton," without finding that each of these men their loss, and in their affliction they have has a talent you have not?”

to take his life, the death of the victim does not

THE PUNISHMENT OF ATTEMPTS AND ment on others is immaterial here, because it THE DEFENCE OF INSANITY IN may be presumed that any punishment will

exercise some such effect, and because no one CAPITAL CASES.

attempts a crime without intending its success.

On the other ground, that of the protection of The recent attempt upon the life of the society, it is as clear as anything can be that the President has naturally attracted attention to attempt deserves the same punishment as the the state of the criminal laws of the country crime. The theory here clearly is, that, in the with reference to the punishment of the crime case of capital offences, the existence of the crimcommitted and the effect of the defence of in- inal is a danger to society, which must be resanity. That there should be, as there clearly moved by his death ; and in other cases, that one is, general dissatisfaction with the law as it who is so depraved and dangerous as to commit stands upon these points is natural, and no time any given offence needs to have his dangerous could be fitter than the present for the consider- propensities restrained by the punishment atation of such matters.

tached to its commission by the law. Now these The law regulating the punishment of attempts views depend solely on the character of the crimto commit crime is, of course, chiefly statutory; | inal, and his commission of the act is only evibut all statutes, and the rules when the dence of such character. It is selected as the

offence attempted is not statutory, agree in only safe guide by which a government can pro| affixing a lighter punishment to the attempt ceed in administering punishment, as it is the

than to the completed crime. This distinc-only conclusive proof of that tendency which is tion seems neither logical nor sensible. Much punished as reprehensible. discussion has recently been had over the proper But an attempt is as conclusive evidence as is | definition of an "attempt," in which the late the committed crime. If an assassin shoots, stabs, Chief Justice of England, the authors of the or otherwise assaults another with evident intent proposed criminal code of New York, and numerous other persons figure; but the one

of point here material, and which is certainly un- tempt

, to prove the dangerous character of his disputed, is that an attempt only fails of being assailant. Nor in other cases of crime does the a crime by the operation of some cause outside accidental disappointment of the perpetrator of the act or control of the criminal; that he has take away from the proof of his criminal dispo done all that he could, with the intent of com- sition which his success would furnish. mitting a given offence, but that his endeavor There can be no just or rational system of punis rendered ineffectual in spite of himself. ishment for crime that is not based on the theory

Now it does not seem, on any just theory of of an evil and dangerous disposition in the crimcrimes and punishment, that such failure should inal, which is to be restrained or rendered imeffect the position of the criminal. The theory potent; and on any such system there can be of punishment for crime is twofold. In crimes no reasonable distinction between the punishwhere the penalty is not death it is designed to ment of the complete offence and the punishment deter the criminal from repeating the offence for of the attempt to commit it. which the punishment is imposed, and to deter The second point for consideration is the deothers, by the example of that punishment, from fence of insanity in capital cases. This defence committing similar offenses. In capital cases, has been in such frequent use of late years as to while the deterrent effect of the example is cer- bring it much into discredit, and very slight tainly one element, another, and an equally evidence has been sufficient to establish it. The important one, is the protection of society by States may be divided into three classes, accordthe destruction of one whose existence is a con- ing to the rule of evidence prevailing on this to .

point, which varies greatly. In some States, the In either view of the case, and whatever the rule is that a reasonable doubt of the sanity of punishment, can these reasons for enforcing it the accused is sufficient for an acquittal; in be less potent or effective in the case of an at- others, the prisoner must establish his insanity tempt than in that of a completed crime? To by a preponderance of evidence; while in New take the present case : the criminal, with the Jersey the late Chief Justice Hornblower laid design of committing murder, does an act which down the rule that the accused must establish is calculated to produce that effect, and which his insanity in the same way that the State under ordinary circumstances might do so. The must establish his guilt, i.e. beyond a reasonable victim, being a man of strong constitution, care- doubt. fully treated, and supplied with the best medical The reason for this difference is easily seen ; advice, recovers from the effect of the injuries the first view being based on the general prereceived. Does this in the mind of any one alter sumption of innocence, and the latter two on the the crimipal's guilt? Is he not equally danger- | technical theory of a plea of confession and ous to society? Or if he does not deserve the ex- avoidance. The syllogism in the first case is treme penalty of the law if his victim recovers, this : does he any more deserve it because, owing to A reasonable doubt of guilt must acauit; unskillful treatment or a feeble body, he dies ? A reasonable doubt of sanity is a reasonable The question of the deterrent effect of his punish- doubt of guilt; ergo,

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