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State v. Board of Education.

SCHOOL DISTRICTS-CONSTITUTIONAL LAW.

[Summit (8th) Circuit Court, April Term, 1901.]

Caldwell, Hale and Marvin, JJ.

[Judge Haynes of the sixth circuit sitting in the place of Judge Marvin.]
STATE EX REL. BOARD OF ED. v. Board of ED.

1. SPECIAL SCHOOL DISTRICTS-Not Entitled TO TOWNSHIP FUNDS. No provision having been made under Secs. 3946 Rev. Stat. et seq., authorizing proceedings in the probate court for the creation of special school districts out of territory within township, for a division of the school funds, a special district so set off and created May 12, 1898, is not entitled to any portion of the funds held by the township board of education September 1, 1898, notwithstanding the same have been raised for school purposes by levies upon the property of the whole township, including that within the special school district.

MANDAMUS.

2 ACT 94 O. L. 563, EX POST FACTO And Void.

The special act of the legislature of April 12, 1900, 94 O. L. 563, authorizing the board of education of a certain township to pay to the board of education of a special school district set off and created therein a sum of money equal to the equitable share due the latter from the township school fund, is an ex post facto law in that it attempts to create and enforce a liability that did not before exist, and violates Sec. 28, Art. 2, of the constitution.

HAYNES, J.

A petition has been filed for mandamus. A writ has been allowed, and upon the service of that writ a demurrer has been filed to the petition, and the case stands here upon demurrer to the petition.

It appears from the petition that proceedings were had in the probate court of Summit county, under Secs. 3946, Rev. Stat. et seq., to set off and create the school district of Macedonia, and such proceedings were had; that May 12, 1898, the district was created and set off, and it was set off in territory situated in Northfield township in said county. The petition further states that on September 1, 1898, the September following, said board of education of said Northfield township had on hand and in its treasury the sum of $2,700, which money had been raised for school purposes by levies theretofore made upon the property of said township including the property embraced in said special school district of Macedonia, and after September 1, there was demanded of the defendant, the board of education, that it should give to it, the board of education of the special district of Macedonia, its equitable and pro rata share of said sum of $2,700, which was denied. The statute under which said special school district of Macedonia was created made no provision for a division of said special school funds which might be in the treasury of said township board, and that, thereafterwards, on April 12, 1900, 94 O. L. 563, the general assembly of the state of Ohio passed an act which (after reciting the facts of the case, as they appeared to the legislature)-provided that the board of education of said Northfield township be hereby authorized to pay to the board of education of said Macedonia special school district the sum of $885.62, as the equitable share of said surplus found due said special school district, being based upon the relative value of said taxable property in said school district, and the taxable property of the entire

Summit Circuit Court.

township, and they aver that by virtue of that act they had become entitled to the money, and they pray that a writ of mandamus may issue, and that the defendant may be ordered and directed to pay, or cause to be paid, to the plaintiff the sum of $885.62 with interest on the same from September 22, 1900, and to draw its warrant upon its treasurer to draw out of said board from the funds belonging to said board the sum of $885.63.

This demurrer has been very ably argued upon several points that are supposed to arise upon the demurrer, and we have endeavored to give the matter very full consideration, and have endeavored to examine the authorities that have been cited by respective counsel.

case.

The question, in our judgment, will turn upon a single point in the It will be seen that while this act speaks of this as a surplus fund, it is, in fact, a fund that was in the hands of the board of education of Northfield township arising from the levies that had been made for the year 1897, the latter part of 1897, or the last half, would fall due, of course, finally in June, 1898.

It seems that the school board had paid for the maintenance of the school in Macedonia school district up to the conclusion of the school year for 1898, the summer of 1898, but in September, when the schools were opened again, the board refused to appropriate any money or to pay over what it is said was surplus money of the school district, to enable them to carry on the schools. The fund remaining was about $2,700. Out of that, of course, was to be paid the cost of maintaining the schools until they could realize on the levy of 1898, which would be collected during the fall of 1898 and be ready for distribution, perhaps in the January following, or the first of February. So that the real matter that they were after, the real thing that they were looking for was a division of the school fund that was then in the treasury for the purpose of carrying on the schools for the current year. It may be doubted whether there was any surplus,-strictly surplus; it was a fund that was raised by taxation for school purposes.

The levy of 1898, of course, was made, and the levy of 1899. The levy of 1898 was presumably collected, and the levy for 1899 for the first half of the year was collected, and in April, 1900, the legislature passed the act in question. And they undertook to declare that there was a surplus fund in the hands of the board of education of Northfield township in May, 1898, to a portion of which the board of education of Macedonia school district was entitled-a portion of which was raised by levies upon property in Macedonia school district, and they undertook to order imperatively the payment of $800 of that money to Macedonia special school district. It is urged here before us that this act was retroactive in its character, in its nature. It is admitted that there was no law which authorized the school board of Northfield township to pay over that money to Macedonia school district on May, 1898. And there was no obligation either at law or in equity that could be enforced in any court of justice for the transfer of that money. By the laws of the state of Ohio that was in the hands of the board of education of Northfield township to be used for school purposes, and although a portion of the territory of the township had been withdrawn from their jurisdiction and placed in another school district, still that money remained in their hands to be disposed of and used for school purposes in accordance with the statutes that were in force at the time, and presumably they so used

In all human probability there is not to-day any portion of that

State v. Board of Education.

fund, strictly speaking, in the hands of the board. There is no allegation of that kind in the petition, and the petition proceeds upon the theory that they should be ordered to draw a warrant upon the treasurer, upon the current school funds, of the Northfield township school district.

Now, it seems to us very clear that what the statute is intended to create, what it tries to create, is an indebtedness as of the date of May, 1898; that while there was no obligation at that time to pay or transfer this property, or pay it over, the law steps in now and says to the board, you must pay this sum over, it is an indebtedness, and it is argued here if the order is made and there is no money to pay it, then that legal steps may be taken in a court of justice to enforce payment of that claim as an indebtedness resting upon the board of education of Northfield township.

Now, most assuredly, we think that creates a liability that did not exist before, and brings the act within Rairden v. Holden, 15 Ohio St., 207, 210, the definition there of an ex post facto, to-wit: the creation of a legal liability that did not before exist, and an attempt to enforce that legal liability.

And we therefore hold that the statute is unconstitutional, that it is in violation of the second article, section twenty-eight, of the constitution of the state, and the demurrer to the petition is sustained.

CONTRACTS-PLEADING

VERDICTS.

[Lucas Circuit Court, June 18, 1901.]
Haynes, Farker and Hull, JJ.

WILLIAM M. WICKER ET AL. V. ROSWELL E. MESSINGER ET AL.

1. PLEADINGS-CONSIDERATION OF ON MOTION FOR JUdgment.

Upon a motion for judgment on the ground that the petition does not aver sufficient facts to entitle plaintiff to recover, the court will consider the petition as it would consider it if submitted upon general demurrer.

2. CONTRACTS-PLEADING-ARCHITECTS' REFUSAL TO FURNISH CERTIFICATES. Where a building contract specifies that "all payments shall be made upon written certificates of the architects to the effect that such payments have become due," an averment in a petition, in an action for an unpaid balance on such contract, that the architects of the building at the express direction and request of the owners, have failed, neglected, and refused to furnish plaintiffs with further certificates, is equivalent to an averment that the architects, at the express direction and request of the defendants, and wholly on that account, refused the certificates, and that there was no reason or justification in the facts for such refusal, and is sufficient to entitle plaintiff to recover under the rules laid down in Ashley v. Henahan, 56 Ohio St. 559, especially where no motion was made to make more definite and certain.

3. ORDER PERMITTING AMENDMENT SUBJECT TO REVIEW.

Under Sec. 5114, Rev. Stat., a petition may be amended to conform to the facts as found by the jury in special findings, after the expiration of the three days, within which a motion for a new trial may be filed, and although no motion for a new trial was made. In making such amendment the court proceeds as if the evidence was then before it, precisely as if the evideece were then repeated, and the order is subject to review or error.

Lucas Circuit Court.

4. PRESUMPTION AS TO Regularity of Order.

The authority under Sec. 5114, Rev. Stat., to allow amendments in the interests of justice, is broad, and in the absence of evidence to the contrary, a reviewing court will assume that the court was justified by the evidence in permitting the amendment; and if a party, by failing to make a motion for a new trial, is prevented from presenting the question to a reviewing court, it is his misfortune; he should not, if such motion is required, rely entirely on the special findings.

6. General Verdict and SPECIAL FINDINGS.

A general verdict should stand unless the special findings are necessarily repugnant to it.

6. FINDINGS NOT INCONSISTENT WIth Verdict.

In an action on a building contract providing that payment shall be made upon architects' certificates in which the petition contains allegations that the architects, without justification, refused to furnish such certificates, a general verdict for the plaintiff is not inconsistent with special findings that the architects refused to furnish the certificates and that the reason for such refusal was "not satisfied with the work," inasmuch as such findings are not inconsistent with a determination by the jury that the view entertained by the architects was not justified by the facts.

HEARD ON ERROR.

Swayne; Hayes & Tyler, for plaintiff in error.
King & Tracy, for defendants in error.

PARKER, J.

This is a proceeding in error brought to obtain the reversal of the judgment of the court of common pleas. The action in the court below was by Messinger and Hull, building contractors, against Wicker, to recover under a contract for the building of a certain structure in this city now occupied by the Lincoln club, and to recover as well for extras not provided for in the contract; the first cause of action setting forth that the amount to be paid for the construction of the building was $8,598; that plaintiff had finished the building, but that there was still < an unpaid balance due them under this contract of $1,589.20.

They set forth in the petition a copy of the contract, which contains a provision that the payments "shall be paid in current funds by the owner to the contractor in installments as follows: Payments shall be made upon the architect's estimates. The final payment shall be made within thirty days after this contract is fulfilled. All payments shall be made upon written certificates of the architects to the eflect that such payments have become due."

There is no averment in the petition that the plaintiffs had received from the architects a certificate for this $1,589.20, or any part of it, but the petition upon that subject contains this averment: "That since the making and payment of said estimate of November 29, 1898, (which was the last payment actually made,) the architects of said building, at the express direction and request of said defendants, and said defendants wholly without reason therefor, have tailed, neglected and refused, and fail, neglect and refuse to furnish plaintiffs with further certificates of estimates for materials furnished and labor performed upon and toward the construction and completion of said building, although plaintiffs duly requested and demanded that such certificates of estimates should be made and furnished to them, and said defendants have failed, neglected and refused, and fail, neglect and refuse to pay plaintiffs the balance of said contract price, to-wit, the sum of $1,589.20, although payment thereof

Wicker v.

Messinger.

has been duly demanded from said defendants by plaintiffs, and the amount is due," etc. That is the first cause of action.

The second cause of action is for extras.

No remarks need be made upon the third cuase of action, since there is no controversy respecting the matters therein stated.

To this petition the defendants filed an answer in which they make various denials and among them these:

"They deny that plaintiffs ever duly complied with or performed all the terms or conditions of said contract on their part to be complied with or performed; and

"They deny that these answering defendants, or either of them, ever directed or requested the architects of said building to neglect or refuse to furnish plaintiffs with estimates for materials furnished or labor performed for the construction of said building."

A reply was filed, which does not change the issues with respect to these questions that are made by the petition and the answer.

Upon these pleadings the defendants moved for a judgment, insisting that the petition did not aver sufficient to entitle the plaintiffs to recover; that it should have averred either that the architects had furnished these certificates or estimates or that they had fraudulently, or wrongfully, or wilfully and unreasonably withheld such certificates; that it was not sufficient that they had withheld them at the express direction and request of said defendants, for it is urged that even though they may have withheld them at the request and direction of defendants, and although the defendants may have had no reason to make such request, yet the architects may have had good and sufficient reasons, aside from this, which would justity them under the contract in withholding the certificates or estimates.

The case of Ashley v. Henahan, 56 Ohio St. 559 [47 N. E. Rep. 573], is brought to our attention by counsel for plaintiffs in error and very much relied upon. In that case the contract contained a provision that "the architect shall certify in writing, that all the work upon the performance of which the payment is to become due, has been done to his satisfaction." And the evidence in the case disclosed that that had not been done by the architect and that there was nothing in the case to show any waiver of that provision. The court says:

"Had the plaintiff shown that he had made application to the architect for the requisite certificates, and that he had obstinately and unreasonably refused to certify, he might then have established his case by other evidence. As said in Smith v. Brady, 17 N. Y. 173: The parties have seen fit to make the production of such certificate a condition precedent to the payment. The plaintiff is as much bound by this part of his contract as any other. It is not enough for him to bring his action and say he has completed the work which he undertook to do. He has agreed that the architects named should decide whether the work is completed or not. He cannot now withdraw the decision of this question from them and refer it to the determination of a legal tribunal.' He might, however, as suggested above, on an averment supported by evidence that the architect had fraudulently or unreasonably refused his certificate, recover by showing a substantial performance of the work as required by the contract, but in the absence of such a showing against the architect, a recovery cannot be had without his certificate."

So that we are called upon to place a construction upon this averment and decide whether it is sufficient to bring the plaintifs within

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