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Cuyahoga Circuit Court.
judgment of the circuit court, and, in the opinion of Judge Spear, this language from Pomeroy Contr., Sec. 163, is quoted :
The peculiarly distinctive feature of the equitable doctrine is, that the remedial right to a specific performance must be mutual. If, therefore, from the nature or from the contract itself, from the relations of the parties, from the personal incapacity of one of them, or from any other cause, the agreement devolves no obligation at all upon one of the parties, or if it cannot be specifically enforced against him, then and for that reason, he is not in general entitled to remedy of a specific performance against his adversary party, although otherwise there may be no obstacle arising, either from the terms of the contract or from his personal status and relations, to an enforcement of the relief against the latter individually."
Again the court quotes from Sec. 165, Pomeroy on Contr.:
"It is a familiar doctrine that if the right to the specific performance of a contract exists at all, it must be mutual; the remedy must be alike attainable by both parties to the agreement."
The opinion then contains this quotation from the language used in the opinion of the circuit court in the same case:
"Where there is a clear and continuing breach of a negative covenant in a contract, and where an injunction against the breach of it will do substantial justice between the parties by obliging the defendant to carry out his contract or lose the benefit of a breach of it, and the remedy at law is not adequate, or the damages for such a breach are not susceptible of proper assessment by a jury, a court of equity may properly restrain the defendant from such a breach, though the court might not be able to enforce a complete specific performance of the contract against the other party."
In reference to this language, the court say:
"There are cases both in England and in this country, which sustain the holding of the circuit court.
However, after a somewhat careful examination of the numerous cases cited by counsel, and many others, we are inclined to the conclusion that the general doctrine laid down by Mr. Pomeroy is sustained by the apparent weight of authority.
Applying the principle announced in the quotations from Pomeroy, to the case at bar, it is difficult to understand how the injunction prayed for by plaintiffs can be sustained. Surely no injunction could compel the plaintiffs to receive the power to be furnished.
Again, the effect of an injunction, such as prayed for by the plaintiffs, would be to undertake to enforce by injunction an affirmative covenant of the contract for the rendition of service; that is what is sought. We know of no case where any such relief has been granted. Indeed, if the injunction had been sustained by the court, the remedy of the plaintiffs would have been wholly inadequate to accomplish the purpose sought, for it would have profited them nothing to refasten the pulley upon the shaft, unless thereafter the defendants should have kept the shaft in motion; to accomplish it, their engine must have been made to run, and to completely give to the plaintiffs what they sought would have required that all the means necessary, including fuel, repairs upon the engine, and proper connections between the engine and main shaft should have been maintained.
We think a remedy in damages is much more nearly adequate than the remedy sought in this action.
Sipe v. Bartlett.
In the case of Manhattan Manufacturing Co. v. Stockyard Co., supra, stress is laid upon the fact that it redress were to be sought at law, it would necessitate a multiplicity of actions. But that would not be true in this case, because it is settled in Ohio that for the violation of such a contract as this, a single action for damages is sufficient. See Steinau v. Gas Co., supra, and James v. Allen Co., 44 Ohio St., 226 [6 N. E. Rep., 246; 58 Am. Rep., 821].
Our conclusion, therefore, is that no error was committed by the court, in the order complained of, and the judgment is affirmed.
[Cuyahoga Circuit Court, June 21, 1901.]
Caldwell, Hale and Marvin, JJ.
STATE EX REl. v. Michael F. Barrett, Director of Police. 1. RULE AS TO EXERCISE OF POWERS BY Board.
In the execution of a power delegated for purposes merely private, it is necessary that all to whom such power is delegated should concur in the act, but if persons be entrusted with powers of a general nature, or for public objects, if all are acting, a majority will conclude the minority, and their act is the act of the whole. Young v. Buckingham, 5 Ohio, 485, followed.
2. POWERS of General and Public Nature.
The powers and duties of the tribunal created by Sec. 1545-24, Rev. Stat., 92 O. L., 446, the federal plan law of Cleveland, consisting of the mayor, director of law and president of the city council, to hear and determine charges preferred against officers who have been removed by the head of the department to which they belonged, are of a general nature and for public objects. 8. RULES Applied to TrIBUNAL UNDER SEC. 1545-24, REV. STAT.
Under Sec. 1545–24, Rev. Stat., 92 O. L., 446, the federal plan law of Cleveland' which provides for the creation of a tribunal consisting of the mayor director of law and president of the city council to hear and determine charges preferred against officers who have been removed by the head of the department to which they belong, in which no provision is made as to a quorum, a finding and sentence by two members of the board, made upon consideration by the whole board, is a finding by the board and is valid.
4. CHARGE OF Influencing Voters-Sufficiently SPECIFIC.
A charge against an officer on the police force of Cleveland, that he "did use his influence as an officer" while at a certain voting booth "to induce divers persons to vote for " a candidate named and also did distribute money to certain persons for purpose of influencing them to vote for such candidate, all of which is contrary to a certain rule governing the police force of such city, although it might have been better to have made a general charge as to the violation of the rule mentioned and then, under a specification, set out the facts constituting the violation complained of, is sufficiently specific, to charge him with violating a rule, prohibiting police from interfering or making use of the influence of their office in elections, but permitting them to quietly exercise their right of suffrage as other citizens.
5. FINDING OF TRIBUNAL CONCLUSIVE.
A finding by the tribunal created by Sec. 1545-24, Rev. Stat., 92 O. L., 446, the federal plan law of Cleveland, consisting of the mayor, director of law and president of the city council, that a police officer was guilty of using his influence in securing votes for a certain candidate at an election, is conclusive and the circuit court will not, in a mandamus proceeding seeking to reinstate such officer, go into the evidence as to what the real fact is as to the conduct of the officer, nor into facts as to what was done before such tribunal.
Dawley and Meals, for relator.
Hogsett, Beacom, Excell, Gage & Carey, for respondent.
Cuyahoga Circuit Court.
The relator was a member of the police force of the city of Cleveland. The respondent is the director of police of said city.
On May 2, 1899, the relator was charged by the defendant, in writing, in the following words:
"That the said Detective C. O. Klaue did use his influence as an officer, and while at voting booth, precinct A, second ward, to induce divers persons to vote for R. E. McKisson for mayor, also that he did distribute money to one Frank Harborgrass and James Cunningham for the purpose of influencing them to vote for R. E. McKisson's re-election, all of which is contrary to rule 28, book of rules and regulations governing the police force of the city of Cleveland, Ohio."
Sometime in the said month, said charge was referred to a tribunal provided by law, consisting of John H. Farley, mayor of the city of Cleveland, Thomas H. Hogsett, director of law of said city, and George H. Billman, president of the council of said city. Later in the same month, said charge came on for hearing before said tribunal and, having been partly heard, was continued from day to day; witnesses were examined from time to time before said tribunal; and, in August of 1899, said relator was, by a majority of said tribunal, to-wit, the mayor and the director of law, found guilty under said charge; and, thereafter, on September 19, 1899, the following notice was served upon the relator:
"September 19, 1899.
"LIEUT. CHARLES O. KLAUE, Central Police Station:
"In the matter of the charges preferred against you-the majority of the members of the tribunal found you guilty as charged in the fourth specification of said charge, in that you did use your influence as a police officer and while at the voting booth, precinct A, in the second ward, you induced divers persons to vote for one R. E. McKisson, then a candidate for mayor, and that you did interfere at said election and while on duty with divers voters of the city of Cleveland, contrary to the letter and spirit of rule 28.
"You are therefore notified that you are discharged from the Cleveand police force.
"By order of
"M. F. BARRETT,
Director of Police.
Since the date of said communication the relator has been deprived of his office upon the police force, and he seeks by mandamus, to be restored to the position which he occupied before he was discharged as already set out.
Rule 28 of the police force, referred to in the charge, reads:
"No one will be appointed on the police force for his religious or political opinions, and members of the force will avoid all religious or political discussions in the station house or elsewhere. They shall not interfere or make use of the influence of their office in elections, but may quietly exercise the right of suffrage as other citizens."
State v. Barrett.
On the hearing of this case, State ex rel. McKenzie v. Hyman, ante 000, we held that we could not inquire into the facts upon which the relator was tried, nor into the proceedings before the tribunal by which he was tried.
There remain, however, two questions to be determined:
First. Was the finding of the relator guilty by two members only of the tribunal such a finding by the tribunal as would authorize the punishment?
Second. Was the charge one of which the tribunal could take cognizance?
It is urged on the part of the relator, that, where a tribunal is fixed by law, to consist of a certain number of members, and no provision is made that any number less than the entire tribunal may act upon the matter submitted, or may determine the matter, that except all take part in the hearing, and all unite, or at least take part in the finding and sentence, such finding and sentence are invalid.
Attention is called to the fact that, under the statutes, in most cases where tribunals, consisting of a fixed number of persons, are established, it is specially provided what number shall constitute a quorum, and that the majority of such tribunal may act for the entire tribunal, and that no such provision is made in the statute under which the tribunal which tried the relator was organized.
This tribunal is provided for in Sec. 1545-24, Rev. Stat., 92 O. L., 446, and the part of such section, to which attention is called, reads:
"A public hearing, if demanded by the accused, before a tribunal composed of the mayor, who shall be chairman thereof, the director of law and the president of the city council."
No provision is anywhere made as to what number of this tribunal shall concur in its finding.
In Young v. Buckingham, 5 Ohio, 485, this language is used in the head note:
"Commissioners appointed to appraise lands to be condemned for public uses, the concurrence of a majority binds the minority."
A question under consideration in the case, was as to the valuation of lands taken for the use of the public. This was under the constitution of 1802, which did not require, as our present constitution does, the trial by jury to determine the compensation to be paid for such lands; and the statute then in force required that lands so taken, should be valued by three free-holders.
The court, on page 490, use this language: "The proceedings of the court show the valuation made and the amount tendered, but that although all the appraisers were present and acting, that two only united. in the appraisement. It is objected that the dissent of one invalidates the appraisal, for it is insisted that a strict execution of powers must be shown. * **The determination of this point depends upon the nature of the powers to be executed by the commissioners. In the execution of a power delegated for purposes merely private, it is necessary that all should concur in the act; as in cases of trustees, arbitrators, etc. But if the persons be entrusted with powers in some respects of a general nature, or for public objects, if all are acting, a majority will conclude the minority, and their act is the act of the whole. * * * It is evident that this power was confided to these commissioners for public objects, since the taking the land from McIntyre can be justified upon no other ground than that it was demanded by public interest."
Cuyahoga Circuit Court.
In the case now under consideration, all the members of the tribunal acted, but, so far as appears, but two united in the finding and sentence of the relator.
It can hardly be doubted that the powers and duties of this tribunal are of a general nature and for public objects, and that if the language used by Judge Lane in the case just quoted from is the law, then the concurrence of the two members who signed the finding of the tribunal was sufficient.
In Brophy v. Landman, 28 Ohio St., 542, the court had under consideration a report recommending a certain street improvement in the city of Toledo. The law required that the board upon whose recommendation the improvement might be made, should consist of three commissioners to be elected by the city, who, together with the mayor and the civil engineer, should constitute the board of city improvements. When the matter of passing upon whether this improvement should be made, was taken up, there were present only the mayor, engineer and one commissioner, being three out of five members of the board. Upon a vote being taken as to whether the improvement should be made, the mayor and the engineer voted for it and the single commissioner who was present voted against it; and the court held that this did not constitute a recommendation of the board.
It will be noticed that, in this case, only a majority of the entire board met, to-wit, three out of five, and only a majority of this majority voted in favor of the improvement; so that, only a minority of the entire board voted for the improvement.
The court does not determine in this case, whether, if all those present had voted for the improvement, it would have been sufficient, but, on page 545, this language is used:
"If the three elements of the board of improvements convened, the mayor and civil engineer and board of commissioners, it may be that a majority of those three elements can act in making the necessary recommendation, but these conditions are not satisfied, when only one of a board of three convene."
And, again, on page 546, the court say:
"We do not now decide that it is impossible for three of this board" (of five persons) "to transact its business. But whatever number is present at a meeting, in order to make a valid recommendation in the matter of public improvement, it is necessary that there should be at least three votes in its favor."
In the case of Britt v. Lewis, Auditor, 9 Circ. Dec., 166 (16R. 343), it was held that: "Where an authority had been delegated to a board or committee, permanent and continuous in its nature and organization, the authority thus delegated to such board or committee may be exercised and performed by a majority of the whole number, if all have been notified to attend the meeting. And if a majority do attend, their act will bind the whole body; and that where one member of the board of equalization of Cincinnati was absent for two weeks, by leave of the board after its organization for the year, and while it was holding regular meetings daily, the remaining members may meet and continue the work of the board, and their action will be the legal action of the board. " On page 167 of the opinion, in the case last cited there is a clear mistake, for Judge Douglass was made to say, "In Young v. Bucking ham, 5 Ohio St., 485, commissioners were appointed to perform a single