National Tube Co. v. Eastern Tube Co.

[Vol. III, N. S.

skilled workman; that is to say, there would be no functional differences whatever. There might be a flange here or a flare there, but the idea, the central, main idea has been in use, to the common knowledge of man, for at least seventeen years, according to the evidence. So, therefore, we find that there was no trade secret here, nothing that this court could protect, as a property right, in a secret.

It is contended further, on the part of the plaintiff, that there was such confidential relation existing between the defendant, Nuttall, and the plaintiff company, at the time that he procured these patterns, that a court of equity ought to enjoin from the use and benefits of the same. We think plaintiff is right in that contention. We believe this is a violation of his plain common duty to his master, such that a court of equity ought to reach out and stop by injunction. But stop what? Why, stop the use of these patterns, not the use of the idea, because we have now held that there is no property in the idea. Harry Nuttall, by his delinquency to his master, by his fraudulent conduct, by his breach of confidential relations, gave to this defendant company the patterns for castings. He did not give to them an idea that belonged to the plaintiff. If he had, this court would not hesitate a moment to grant the injunction prayed for, and to order every one of these castings broken, because, in such event, the company must bear the loss; it acted at its own peril; but he gave to this company the use of these patterns, and when he did that, if we had been called upon to enjoin it from using them, and to enjoin him from using them, we would have done so without hesitation; but when this action was planted, the use was over, the thing was accomplished that they sought to accomplish. Therefore, while the contention of plaintiff's counsel is right as to the law, the application of it is wrong, because it goes no further than to the thing that Nuttall's wrongful conduct gave to the defendant company, and he gave them only the use of these patterns. Now that exhausts the inquiry as to the question of an injunction being granted in this case.

That there has been a wrong committed here and that plaintiff has a remedy is equally certain. On the one hand, it is con

tended that the plaintiff should be sent out of court into another forum for that relief, and again it is urged that we should retain this case for relief, even though an injunction is not granted. We do not agree with this theory of counsel. An inquiry as to damage is the merest incident of a court of equity. It is simply because it is incidental to some other relief that a court of equity will take jurisdiction of it at all. It is because the experience of man has proven it to be better to dispose of a whole controversy in one court, if it can be done; but when the main reason for which the aid of a court of equity is sought has vanished, as we hold it has in this case, under our theory of it, there is no reason why we should retain it for the assessment of damages. The question of damages must be determined in some other forum, and with an order so that the question shall not be res adjudicata against this plaintiff, and so that it shall have a right to inquire as to damages in a suit at law, this petition is dismissed at the costs of the plaintiff and a motion for a new trial will be overruled, statutory time given for bill of exceptions, and thirty days for finding of facts. That will be the order and judgment of the court.

Sullivan & Cromwell and Garfield, Garfield & Howe, for plaintiff.

F. A. Durban and Willis F. McCook, for defendants.

State, ex rel, v. City of Toledo.

[Vol. III, N. S.

EDUCATIONAL INSTITUTIONS MAINTAINED BY ENDOWMENTS AND TAXATION.

[Circuit Court of Lucas County.]

STATE, EX REL ATTORNEY-GENERAL, V. CITY OF TOLEDO.

Decided, February 1, 1902.

Municipal Corporations—May Receive Property in Trust—Restrictions upon Trusts for Educational Purposes-Trustees under Section 4099 not a Corporation-Conveyance of Trust Property to City-Aid by Tax Levy not Unconstitutional-Broad Meaning of the Words "Arts and Trades"-Quo Warranto-Parties—Jurisdiction. 1. An act of incorporation for the purpose of carrying out a trust is subordinate and subsidiary to the trust, and where the gift is for the establishment of an institution of learning, the purpose and object of the donor must govern; the Legislature has no power to change the trust; that can only be done by some act of those who have power over it.

2. Although such power is not expressly conferred, a municipality has authority to receive property in trust for educational and other purposes beneficial to its inhabitants.

3. Section 4105, as amended (94 O. L., 241), extending the provisions of Sections 4095 to 4104 to cities of the grade of Toledo, is not unconstitutional on the ground of special legislation nor for want of corporate power on the part of the municipality to receive and execute the trust.

4. A board of trustees appointed under Section 4099 and 4105 is not a corporation, but a legal board vested with certain powers; and the conveyance to the city of the trust property for the purposes for which it was originally dedicated does not deprive such trustees of the power vested in them under the original donation. 5. An institution founded for the purpose of promoting a knowledge of the arts and trades is within the line of that purpose when its curriculum of study qualifies those desiring to become artizans or artificers for the work they expect to do, and if this purpose is being accomplished it is immaterial whether the institution be called a university or a polytechnic school.

6. The fact that an institution, founded by private donation, receives money derived from a levy made by the board of education does not take the school out of the class known as private schools, nor is the levy of taxes as an aid in the support of such a school unconstitutional.

7. Quo warranto does not lie to prevent a board from exercising an excess of power; the remedy against such action is injunction, and the offending trustees are necessary parties.

HAYNES, J. (orally); PARKER, J., and HULL, J., concur.

In this case a petition in the nature of an information in quo warranto has been filed in the name of the state, by the attorney-general, against the city of Toledo, setting forth at great and proper length the history of what is called the University of Toledo, and at the conclusion prays "for the advice of this court in the premises, and that the defendant be compelled to answer to the state of Ohio by what purport it claims to have, use and enjoy the liberty, privilege and franchises of conducting a university in the city of Toledo, and of devoting the proceeds of the several trusts herein set forth, and of the funds derived from taxation to such purpose, and that the defendant be ousted and excluded from any and all authority to conduct and maintain said Toledo University under and in pursuance of the several acts and sections of the Revised Statutes of Ohio hereinbefore set forth, and that the said defendant be compelled to answer to the state of Ohio by what purport it claims to have, use and enjoy the liberty and franchises of conducting the so-called polytechnic school as a department of the said Toledo University, with the curriculum herein set forth, and of devoting the proceeds of the said respective trusts, and of the levies herein before mentioned, upon the property, real and personal, in the said city of Toledo for the said purpose; that the said defendant be ousted and excluded from any and all authority to use said fund, or any portion thereof, whether the same be derived from said trust, or from the proceeds of said taxation for the purpose of operating, maintaining and conducting said polytechnic school with said curriculum."

Counsel for the relator have, with commendable industry, set forth at length the various deeds, acts of incorporation, and statutes under which the present so-called university is conducted. A demurrer has been interposed by the city of Toledo to the petition, which raises substantially all the questions, I think, that can be raised in regard to the matters in controversy.

State, ex rel, v. City of Toledo.

[Vol. III, N. S.

We realize the importance of the questions involved to the institution and to the city of Toledo, and we have endeavored to give to them a very full, careful, and thorough examination. I shall not be able, however, to review at any very great length the various authorities cited, or, perhaps, the various questions that have been raised. I shall content myself with stating as briefly as possible the points upon which we think the case turns, and cite a very few authorities upon those points. I shall pecessarily be rather long. It may tire your patience, but there are so many matters involved it is impossible to state them clearly unless at some length.

The petition sets forth that the defendant "has heretofore misused and abused, and is now misusing and abusing, its franchises, privileges and rights conferred upon it by law, and claims to have, hold and exercise franchises, rights and privileges in contravention of law, as hereinafter more thoroughly and completely set forth. That on October 12, 1872, there was incorporated under the general laws of state of Ohio a corporation known as the Toledo University of Arts and Trades, the incorporators thereof being Jesup W. Scott, Frank J. Scott, William II. Raymond, Sarah R. L. Williams, Charles W. Hill, and Albert E. Macomber. That under said articles of incorporation there was then and there created for the purpose of receiving and executing certain trusts hereinafter mentioned and described, the following trustees: William H. Scott, Frank J. Scott, Maurice A. Scott, Richard Mott, Sarah R. L. Williams, William H. Raymond, Albert E. Macomber, Charles W. Hill; and the following ex officio members, to-wit, the superintendent of the public schools of Toledo, the mayor of the city of Toledo, and the governor of the state of Ohio."

It states that the third paragraphs of the articles of incorporation declared that the fund to accept the trust for which this corporation has been formed consists of 160 acres of land (describing it), the same being valued at $80,000, and being the gift of Jesup W. Scott; also such other funds or property as from time to time be given or acquired for the purpose of this trust. The sole object of said incorporation and of the trust set forth in the fourth of said articles of incorporation is as follows, to-wit: