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Executors and Administrators-Fees.
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.
State v. Board of Ed.
The term "officer" as used in Sec.
20. Art. 2 of the constitution, pro-
viding 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, treas-
urer, etc., but to those created and
whose salaries are fixed by the gen-
Sections 1716 and 1717, Rev. Stat.,
amount to a legislative construction
of Sec. 20, Art. 2 of the constitution,
indicating that officers referred to
in the statutes are not those refer-
red to in the constitutional provi-
sion; otherwise legislation
have been unnecessary.
Members of a board of school ex-
aminers are not within Secs. 1716
and 1717, Rev. Stat., which provide
that municipal councils shall pre-
scribe 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.
The Pickaway county law, 92 O.
L., 597, in providing that the excess
of fees collected over and above the
compensation to be paid the various
officials, shall go into the county
treasury to the credit of the general
county fund, is not in violation of
the constitutional provisions relat-
ing to taxation, the object of the
act not being taxation for the pur-
poses of general revenue, but to re-
duce the expense of official service
to the public. State v. Yates. 298
The duties of the various county
officers are of such a character that
the citizens of every county of the
state have an interest in them and
the laws relating thereto should be
of a general nature, but laws relat-
ing to the compensation of such of-
ficials are matters of local interest.
Act of 92 O. L. 597, as amended
March 29, 1898, 93 O. L. 507, does
not contravene the constitution.
The purpose of the Pickaway county
act, 92 O. L., 597, is compensation of
its county officials and notwithstand-
ing certain of its features may be
unconstitutional, the act will not be
declared invalid where the general
scheme of the act can be adopted
without the questionable features,
and especially where such features
are not required to be passed upon.
The term "actually collected" as
used in Sec. 1365-1. Rev. Stat., 93 0.
L.. 446, upon which the clerk is en-
titled to a percentage as compensa-
tion and the word "collected" in Sec.
1365-6, Rev. Stat., requiring the pay-
ment of certain moneys "collected
by him to be paid in the fee fund"
are synonymous terms, and it fol-
lows that he cannot "collect" that
which he does not "actually collect."
State v. Board of Com.
The enactment of Secs. 1365-1,
Rev. Stat., et seq., providing for the
compensation of the county clerk
of Cuyahoga county does not affect
the duty imposed upon him of collect-
ing fees and costs. Before the enact-
ment of this statute when the clerk
was paid in fees he was required to
collect fees and costs from the state
and county treasuries in payment
Under Sec. 1365-1, Rev. Stat., 93
O. L., 446, fixing the compensation
of the clerk of the court of common
pleas of Cuyahoga county and al-
lowing him as extra compensation
ten per cent. of all fees actually col-
lected by him and paid into the fee
fund of the county he is entitled to
such allowance out of all fees col-
lected by him under the statute
whether paid to him out of the state
treasury under Sec. 7336, Rev. Stat.,
the general fund of the county treas-
ury, under Secs. 1261, 1262, and
1701v, Rev. Stat., and by him paid
into the fee fund of the county, or
from other or ordinary sources au-
thorized by law.
Under Secs. 1365-3, and 1365-6,
Rev. Stat., 93 O. L., 446, the
of the court of com-
pleas of Cuyahoga county
is compelled to make a report
monthly of all fees, costs, etc., col-
lected by him from the state and
county treasuries during the month
and pay the same to the county
treasurer for the use of the fee fund.
sound, it can only be presented by
a taxpayer in a proper suit for that
purpose. Beamer v. State.
See also CONSTITUTIONAL LAW.
See OFFICES AND OFFICERS; PEN-
FRAUD AND FRAUDULENT CON-
The discharge of the bankrupt by
the bankrupt court does not affect
the right of the trustee to bring an
action to set aside the fraudulent
transfer. Nye v. Hart.
Where a person made and deliv-
ered judgment notes to another, for
the purpose of having such other
person take judgments thereon and
have executions issued, thereby
creating liens upon his real estate,
with the intent and purpose of de-
feating or hindering the collection
of apprehended judgments against
him, and judgments were according-
ly taken on said notes and execu-
tions levied on his real estate, and
afterwards the judgments were as-
signed for a valuable consideration
to an innocent purchaser, a court
of equity will not aid or relieve
such judgment debtor from the pay-
ment of the judgments to such pur-
chaser. Wright v. Snell.
It is only persons whose rights
are interfered with, those who are
injured by the transaction alleged
to be fraudulent, that have the right
to interfere to set it aside. Strang-
ers have no interest, and, therefore,
no right to question its validity.
Between the parties and their priv-
ies it is valid.
See also ASSIGNMENTS; HUSBAND
AND WIFE; PLEADING.
An absolute purchase of wheat,
corn and pork, to be delivered in
kind at a time certain, though
months in the future, would be legi-
timate and not a gambling transac-
tion under the laws of Ohio, but if
the purchases, though in the form
of a legal transaction, was made
without any intention of delivery,
but instead that the parties should
settle differences according to the
market price thereof when sold, it
is a gambling transaction, within
Secs. 4270 and 4271, Rev. Stat., and
it makes no difference how many
hands the transaction goes through
or that the transaction was consum-
mated upon the board of trade in
Chicago. Rogers v. Edmund. 291
When a party enters into a gam-
ing contract in violation of the laws
of the state and stakes his fate on
the doctrine of chances and loses,
and brings an action because he lost,
it does not present a state of facts
that comes to a court with any par-
ticular favor, but where a man put
his money with a broker to buy
grain, stocks, etc., on margins, an
action for its recovery does not pre-
sent any unmanly, puerile plea.
A transfer of a life insurance in
payment of a debt arising out of
transactions in stock on margins is
void at common law, and under the
statutes of Ohio can be set aside
at the suit of the assignee for the
benefit of creditors; a proceeding
under Sec. 6344, Rev. Stat.. by a
creditor is not necessary. Wachtel
See also CONTRACTS; LANDLORD
AND TENANT; PARTNERSHIPS; PLEAD-
GAS AND OIL WELLS-
The drilling and operating of an
oil well on a city lot, in close prox-
imity to a dwelling house on the
adjoining lot, is dangerous and an-
noying, practically destroying the
use of the adjoining property for
residence purposes, so long as the
well is operated; and where it ap-
pears that such injury will be con-
tinuous, and an action at law for
damages will not afford a complete
and adequate remedy, a perpetual
injunction against such use of the
property will be granted at the suit
of the adjoining owner. Cline v.
While oil leases are personal prop-
erty and subject to levy and sale
as ordinary personal property, such
leases are also subject to sale under
an order of court upon a decree in
foreclosure or mortgage or other
lien. Murphy v. Hardee.
See also PARTNERSHIP.
When a gift is made to persons
designated by name, it is a gift to
them as individuals and not as a
class even though the persons desig-
nated may constitute a class. Jewett
See also WILLS.
The township clerk is clerk of
the board of township trustees, and
filing a petition with the clerk, ad-
dressed to the trustees, when the
board is not in session, is a "filing
with the trustees." A petition, for
a hamlet, so filcd takes precedence
over another petition subsequently
filed with the trustees themselves,
and mandamus will lie to compel the
trustees to act on the first petition
filed. State v. Mitchell.
Where the trustees of a township
without authority or jurisdiction
acted on a second petition to incor-
porate a whole township into a ham-
let. after the first petition to form
part thereof into a hamlet, both be-
ing duly filed, and an election is
held incorporating the whole town-
ship, Sec. 1562. Rev. Stat., et seq..
was not intended to apply, and man-
damus to compel the trustees to call
an election upon the first petition is
the proper remedy.
The statute pertaining to hamlets
was passed for the purpose of allow-
ing part of a township to become
incorporated because its needs were
different from adjacent territory,
and while it cannot be said to be
fraudulent, it is against public
policy to defeat the purpose of the
statute by allowing a whole town-
ship to become a hamlet for the sole
purpose of keeping the smaller ter-
ritory from forming itself into a
hamlet, especially where it desired
to retain the smaller part because
of the revenue arising from taxes.
Where at the time of filling the pe-
tition to form a hamlet, under Sec.
1561a, Rev. Stat., a map of the ter-
ritory sought to be included therein
is presented to the clerk of the board
of township trustees and returned to
the person presenting is as mere
convenience in carrying it to the
meeting of the trustees, it is duly
filed with the trustees; and where
no complaint was made at the time
of fling the same, if such map is
insuficient, it may be properly sup-
plemented by a better one before
action was taken thereon by the
Where the trustees of a township,
after the filing of a petition for a
hamlet with the clerk, acted first
on a second petition to form the
whole township into a hamlet, thus
defeating the purpose of the first
petition, an election held under
their irregular action should be set
aside and a new election ordered on
the first petition.
Where the commissioners were
authorized, under the constitutional
act of 1850, to employ such agents
as they might deem proper to oper
ate and control the road, the act of
1857, which seeks in a limited sense
to do the same thing and is merely
supplementary, or enabling, in its
operation, to the original act of 1850,
should also be held constitutional
under the rule in Cincinnati v. Taft,
63 Ohio St., 141, that court will fol-
low former decisions as to validity
of supplementary acts. although,
standing alone, the act of 1857 might
now be held unconstitutional.
Bader v. Lower River Road Co.
The act of April 15, 1857. 54 0.
L., 262, in surrendering the exten-
sion of the Lower River Road to
its bondholders, and providing for
its operation, is supplementary or
enabling in its operation to the orig-
inal act of March 22. 1850, and the
commissioners in turning it over to
its bondholders make them their
agents to operate and control the
road and limit this management to
a certain class of agents, the bond-
holders, instead of agents generally
as authorized by the previous acts.
Construction of the special act of
March 22, 1850, placing extension of
the Lower River Road in the hands
of the commissioners of Hamilton
The special act of April 15, 1857.
54 O. L., 268, authorizing the com-
missioners of Hamilton county to
surrender the Lower River Road
and the extension thereof to its
bondholders, and providing that they
may become incorporated according
to the act of 1852, relating to plank
road and turnpike companies, does
not require, as an essential element
in the provisions for the surrender,
control and maintenance thereof,
that the bondholders become an in-
corporated company; nor is such con-
56 O. C. D. Vol. 12
tract with the provision eliminated
in contrav ntion of law.
The contract of surrender author-
ized by the act of April 15, 1857, does
not vest any property right in the
bondholders that would authorize
them to deal with the land consti-
tuting the turnpike.
A contract between the bondhold-
ers and a village whereby the latter
was to pay an annual rental of $600
in consideration of which the resi-
dents of the village are exempt from
paying toll upon any part of the
turnpike within the village, amount-
ed simply to the collection of toll
for that part of the road in a way
different from the ordinary way and
is not in violation of the contract
between the bondholders and com-
Under the contract surrendering
the road to the bondholders they are
required to keep the road in reason-
ably good repair, but no high stand-
ard is laid down.
While $600 a year under ordinary
circumstances would not be extrav-
agant, under the circumstances of
this case one-half of such amount
may be approved, it not being ex-
pected that any of the officers of
such company should be allowed any
considerable salary for the manage-
ment of the road.
Sections 4670-1 and 4670-2, Rev.
Stat., known as the "Pudney Roard
Law," is unconstitutional and void.
State v. Cuyahoga Co. (Comrs.).
A trespasser upon a highway can
gain no rights unless the public
stands by in silence and permits
such trespasser to make a large out-
lay of money. Under such circum-
stances, the silence is the greater
wrong and may deprive the public
of its property by estoppel. More-
house v. Burgot.
County commissioners have au-
thority under the act of April 16.
1900, 94 O. L., 364, Secs. 2822-1 and
4637-1, Rev. Stat., et seq., to improve
standing parts thereof may lie with-
in a municipal corporation. State
Section 4637-1. Rev. Stat., et seq.,
act of April 16, 1900, 94 O. L., 364,
are not affected by the apparently
conflicting Sec. 2822-2, Rev. Stat., as
to assessments, of the same act, it
not appearing what purpose there
was in adding such provisions to an
Highways-Husband and Wife.
already complete act; and as to im-
provements falling within Secs.
4637-1, Rev. Stat., the conflicting
provisions of Sec. 2822-2, Rev. Stat.,
should be disregarded.
The act of April 16, 1900, 94 O.
L., 364, supplementing Secs. 2822
and 4637, Rev. Stat., authorizes
county commissioners to improve
county and state roads where no priv-
ate property is taken.
An instruction, which, while en-
tirely proper in defining the rights
of the parties in the highway as a
whole was improper. Cleveland &
E. Ry. v. Hunter.
It is essential to the validity of
any act under Sec. 19 of the bill
of rights, authorizing county com-
missioners to take property for the
repairing or making roads, that it
contains a provision for fixing com-
pensation by a jury to the owner of
the property. In the absence of
such provision an action for dam-
ages cannot be maintained and no
other remedy except injunction is
afforded the property owner to pre-
serve his rights. Lloyd Booth Co.
v. Mahoning Co. (Comrs.). 706
See also EASEMENTS; RAILROADS.
In such case, where, after the as-
signment, the assignor and wife
moved temporarily into a house be-
longing to the wife, which was built
for sale and not for their residence,
and which was incumbered for
nearly its value, and which was
sold and vacated by them before
the hearing on the application for
the allowance in lieu of homestead,
such facts will not preclude the
granting of such allowance. Bell,
The homestead laws being de-
signed for the benefit of the debtor,
should be so construed as to ef-
fectuate and not to thwart its ob-
ject and policy.
An assignor for the benefit of
creditors and his wife are entitled
to $500 in lieu of homestead out of
the balance of the estate assigned,
when the homestead so assigned
was so incumbered with liens pre-
Icluding the allowance of a home-
stead, as to leave no balance, when
sold, in the hands of the assignee,
after the payment of such liens,
when neither of them have any
In the trial of a homicide case in
which the defense was insanity, a
request to charge that "man-
slaughter is the unlawful killing of
another without malice, either ex-
press or implied, which may be.
either voluntary upon a sudden heat
or inadvertently, but in the commis-
sion of some unlawful act," though
correct as a definition or an ab-
stract proposition of law, was prop-
erly refused where the trial judge
had, in his general charge, already
defined the different degrees of
homicide. Under such circum-
stances, the defense being insanity,
not sudden heat or passion, the
charge could have had no applica-
tion to the facts, and might have
been misleading. Reighard V.
HUSBAND AND WIFE-
A wife, in the absence of her hus-
band, having charge of the home
and general management of affairs,
is not by virtue of that relation,
and without any knowledge on his
part whatever, authorized in his
name to institute a criminal prose-
secution and thereby render him
liable for damages for malicious
prosecution. Miles V. Salisbury.
Sections 3111 and 3112, Rev. Stat.,
as amended March 19, 1887, 84 0.
L., 132, providing that husband and
wife shall have no interest in the
property of the other and giving
them power to contract between
themselves, established independent
business relations between husband
and wife. First Nat. Bank v. Rice.
Real estate purchased by a mar-
ried woman with money arising out
of her share of the profits and earn-
ings of a corporation of which she
was a member cannot be subjected
to the payment of her husband's
debts upon the ground that he gave
a portion of his time and attention,
at his wife's request, to the man-
agement and control of such busi-
ness and looking after her interests
therein, and by his skill or labor or
efforts helped to produce the valu-
able results. A wife has the right
to engage in business and employ