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State v. Board of Ed.

OFFICERS SCHOOL EXAMINERS.

[Hamilton Circuit Court, 1901.]

Cox, Swing and Smith, JJ.

STATE EX REL. FENRY V. Board of EDUCATION.

1. "OFFICERS" NOT WITHIN SEC. 20, ART. 2 OF THE CONSTITUTION.

The term "officer" as used in Sec. 20, Art. 2 of the constitution, providing that the general assembly shall not affect the salary of any officer during his existing term, does not refer to such officers as members of a board of school examiners or to officers of a municipal corporation, such as mayor, marshal, clerk, treasurer, etc., but to those created and whose salaries are fixed by the general assembly.

2. SCHOOL Examiners-SALARY MAY BE CHANGED.

Members of board of examiners of teachers are provided for in Part 2, Title 3, Rev. Stat., under the head "schools," by which no provision is made prohibiting a change in the compensation during term of office. Hence a board of education has the right to reduce the compensatton of a member of such board during his term of office, but such change should not be retroactive.

3. SCHOOL EXAMINERS NOT WITHIN SECS. 1716 and 1717, REV. STAT.

Members of a board of school examiners are not within Secs. 1716 and 1717, Rev. Stat., which provide that municipal councils shall prescribe what fees or compensation officers of municipal corporations shall receive, and which shall in no case be increased or diminished during their terms of office.

4. LEGISLATIVE CONSTRUCTION OF CONSTITUTION.

Sections 1716 and 1717, Rev. Stat., providing that municipal councils shall prescribe what fees or compensation officers of municipal corporations shall receive, and which shall in no case be increased or diminished during term of office, amount to a legislative construction of Sec. 20, Art. 2 of the constitution, providing that "the general assembly, in cases not provided for in this constitution, shall fix the term of office and the compensation of all officers, but no change therein shall affect the salary of any officer during his existing term, unless the office be abolished," indicating that officers referred to in the statutes are not those referred to in the constitutional provision; otherwise legislation would have been unnecessary.

MANDAMUS.

Merrill & Kuehnert, tor plaintiff.

Horstman, Galvin, Whittaker and O'Connell, for defendant.

SMITH, J.

The petition of the relator alleges that on April 16, 1888, he was a membe of the board of examiners of eachers for the school district of Cincinnati, a city district of the first class, having been appointed and qualified for a term, which, by law passed April 16, 1888, would expire August 31, 1890; that the duties of said office were greatly changed by said statute, and that after the passage the board of education duly fixed the compensation of the relator and other members of the board at $300 per annum, such compensation to commence April 16, 1888; that he held such office and faithfully performed his duties until August 31, 1890, and that the duties of the office were in no way changed between the time of the fixing of his said compensation and the end of his said term.

That on September 9, 1889, the board, by resolution of that date, assumed to reduce the compensation of the relator and the other members of the board of examiners to $120 per annum, and from September 1,

Hamilton Circuit Court.

1889, till the expiration of said term, unlawfully withheld from him the difference between said amount and the lawful compensation, amounting to $180 due to him, and refuses to pay him the same, though demanded; that there are funds in the hands of the treasurer of said board, under its control, not otherwise appropriated, sufficient to pay relator's claim. Wherefore, he prays that a writ of mandamus issue, commanding the board to appropriate said sum of $180, and to provide for the payment of the same, with interest from August 31, 1890.

To this petition a general demurrer was filed, and the question is, Does it state facts sufficient to constitute a cause of action against the respondent?

The claim of counsel for the relator that the board of education, having, in pursuance of the requirement of the statute, fixed the compensation or salary of the members of the board of examiners, that it had no right during the continuance of his term to lower the same; and we understand that the claim (in part at least) is founded on the provisions of Sec. 20, Art. 2 of the constitution, which is as follows:

"The general assembly, in cases not provided for in this constitution, shall fix the term of office and the compensation of all officers, but no change therein shall affect the salary of any officer during his existing term, unless the office be abolished."

We are of the opinion that this section does not apply to a case like his; that the office and officers spoken of therein do not refer to such officers as a member of a board of examiners or to the officers of a municipal corporation, for instance, mayor, marshal, clerk, treasurer, etc., but to those created by the general assembly, and whose salary is to be fixed by that body. That this is the true meaning of this section and the legislative construction placed upon it, we think is shown by Sec. 1716 and 1717, Rev. Stat., which provide that the councils of municipal corporations shall prescribe what fees or compensation officers of municipal corporations shall receive for their services, which shall in no case be increased or diminished during the term for which the officer was elected or appointed. It such officers came within the provisions of Sec. 20, Art. 2, such legislation would be unnecessary. Nor does a member of a board of examiners come within the designation of officers of municipal corporations. They are provided for in Part 2, Title 3, under the head "Schools," and not under Part 1, Title 12, regulating municipal corporations. And we see no provision in the school laws prohibiting a change in the compensation of an officer during his term of office.

We think then that the board of education had the right to reduce the compensation to be paid to the relator during his term of office. But the change could not be retroactive. The allegation of the petition is that the change was made September 9, 1889, and that the board of education from September 1, 1889, withholds from the relator the difference between his salary at $300 and at $120.

We think he was entitled to the salary at the rate of $300 per annum until September 9, 1889, and the amount for those nine days so withheld should be paid to him. Unless the relator wishes to have the judgment of the Supreme Court upon this question, we have no doubt but that this matter can be arranged without further order of the court.

Railway Co. v. Roebuck.

BRIDGES-COUNTY COMMISSIONERS.

[Hamilton Circuit Court, January Term, 1901.]
Swing, Giffen and Jelke, JJ.

ELIZA F. SNOWDEN V. BADER ET AL. (COMRS.)

DUTY OF PROVIDING GUARD RAIls for Bridge ApproACH.

It is the duty of county commissioners to provide guard rails along the entire length of approaches to county bridges, and they are officially liable for injuries caused by reason of their failure so to do.

HEARD ON ERROR.

Wm. Worthington, for plaintiff in error.
Wilson, Cosgrave & Jones, contra.

The plaintiff in error, while driving along a "fill" on the Lower River road ten feet high, was thrown from her carriage and severely hurt by a cow climbing up the embankment and frightening her horse, which shied and went over the embankment on the opposite side. The accident happened five hundred feet from a bridge to which the embankment or fill led. Counsel for plaintiff in error contended that the fill constituted an "approach" to the bridge, and there was, therefore, a duty on the part of the county commissioners to provide guard rails along its whole length. Counsel for the commissioners denied that this fill was an approach to the bridge, but was a part of the turnpike road, and permitted the case to go to the jury upon the plaintiff's evidence, with the result that verdict was returned for the commissioners by the common pleas.

SWING, J.

The record in this case shows that the commissioners constructed this road as an approach to the bridge. They fixed the status of the road as an approach to the bridge. They had a right to do it, and are bound by it; and as a matter of law we can not say that it is not an approach to a bridge; being such, they were bound to provide guard rails.

We see no other inference to be drawn from the evidence but that the accident was directly caused by the want of guard rails. It guard rails had been properly placed, the cow could not have got upon the road, neither would the horse have gone over the embankment. The direct contributing causes are clearly shown to be the cow getting on to the road, the frightening of the horse by the cow and its going over the embankment.

Guard rails are designed to prevent this, and undoubtedly would have done so in this instance. We find no contributory negligence on the part of the plaintiff. The judgment and verdict was clearly against the evidence, and the judgment should be reversed and remanded for further proceedings.

Hamilton Circuit Court,

EVIDENCE.

[Hamilton Circuit Court, January Term, 1901.]
Swing, Giffen and Jelke, JJ.

STEPHEN HAUSER, SR., V. ANNA ASSEL.

NEGATIVE TESTIMONY AS TO SIGNATure to a NoOTE.

In an action upon a promissory note, the issue being as to whether defendant signed the note, negative testimony to the effect that defendant never denied the signature cannot be converted into positive testimony that she did sign it, unless attention was called to the matter in such a way as to call for an answer or statement.

HEARD ON Error.

George W. Hardacre, for Hauser.

Chris. Von Seggern, for defendant in error, cited: Jenz v. Gugel, 26 Ohio St. 527, (Syl. 2); Allison v. Porter, 29 Ohio St. 136; Levy v. Earl, 30 Ohio St. 147, 171; Avery v. Vansickle, 35 Ohio St. 270; Levy v. Earl, 30 Ohio St. 148; Payne v. Thompson, 44 Ohio St. 192, 205 [5 N. E. Rep. 654; Speier v. Opfer, 2 L. R. A. 345, notes [40 N. W. Rep. 909; 73 Mich. 35; 16 A. S. Rep. 556]; Logan v. Thrift, 20 Ohio St. 62; Davis v. Smith, 13 Central Law Journal 293; Hershizer v. Florence, 39 Ohio St. 516 and Phillips v. Graves, 20 Ohio St. 371 [5 Am. St. 675]; Williams v. Urmston, 35 Ohio St. 296 [35 Am. Rep. 611].

SWING, J.

An issue was raised on the pleadings as to whether Anna Assel signed the note which is the foundation of the action in this case. On this issue we find no evidence offered by the plaintif which tends to prove this issue. One witness testifies that the question of the signature of the note never was denied or questioned; but no facts are stated. which would naturally put in question her signature. The note was not shown her, and she was not asked whether she had signed it, and negative testimony to the effect that she never denied the signature could not be converted into positive testimony that she did sign it, unless her attention was called to the question as to whether she did sign it or not in such a way as to call for an answer or statement. There was therefore no affirmative evidence tending to show that Anna Assel ever signed this note. There was, however, evidence, which goes strongly to show that she did not sign it. The note was signed A. Assel. The action was brought against Anna Assel, and experts testify that it is not her signature; besides it does not appear to the court to be her signature.

It is not necessary to consider other questions involved in the case and argued to us, for even if plaintiff in error is correct in all of these, the judgment would have to be affirmed on the ground that the evidence tails to show that he has a cause of action against Anna Assel.

State ex. rel. Goff v. Board of Ed.

SCHOOLS.

[Hamilton Circuit Court, 1901.]

STATE EX REL. GOFF v. BOARD OF ED.

1. ACT AS TO PAYMENT OF TUITION OF HIGH SCHOOL PUPILS, DIRECTORY. The act of April 14, 1900, amending Secs. 4029-1, Rev. Stat. et seq., and providing among other things for the payment by the board of education of a township of the tuition of pupils of that township attending high school in the same or in an adjoining county is directory and not mandatory.

2. Use of WORD "SHALL "-NOT MANDATORY.

The word “shall" in the act of April 14, 1900, Secs. 4029-1-2-3, Rev. Stat., relating to the payment of tuition of students attending high school in town ships other than that in which they reside, does not make the act mandatory, no provision being made for the levying of taxes to meet such expense, and it being contrary to reason and the constitution to require the payment of such expense from funds levied for the common schools, and especially in cases where such depletion would impair the usefulness of the latter.

APPEAL.

R. A. LeBlond and Fred L. Hoffman, for the relator.
Louis Reemelin and H. H. Hosbrook, contra.

SWING, J.

We are of the opinion that Sec. 4029-1-2-3, Rev. Stat., construed together is directory and not mandatory. The language of Sec. 4029-1, as amended April 14, 1900, is certainly mandatory, but the third subdivision of said section remains, and it certainly is directory. To construe this section as mandatory for the sole reason that the word "shall " is used, when the statute makes no provision for the levying of taxes for the payment of this particular obligation, and when the effect might be, as in this case, to take from the funds levied for the common schools of said districts amounts sufficient to very seriously impair their usefulness, would be unwarranted. No conclusion of this kind should be reached except from necessity, for the common schools have their foundation in the constitution and the legislature is commanded to provide for their maintenance; and while high schools under the constitution are to be encouraged as a means of education, there is no mandatory provision as to their creation. Therefore it would not be reasonable to conclude that the legislature would pass a mandatory law, the effect of which would be that funds levied for the common schools should be devoted to high schools to such an extent as to injure the common schools. In order to make an act of this kind mandatory, it seems to us that the legislature should provide funds by taxation for this particular purpose, and otherwise make plain the duty to be performed by the officers charged with carrying out the law. These are wholly lacking in this law.

We therefore conclude that this law, being directory only, the writ should not issue in this case, and the petition will be dismissed.

22 O. C. D. Vol. 12

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