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. 333
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- eral assembly. Ib.
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. Ib.
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. Ib.
The term "actually collected" as used in Sec. 1365-1. Rev. Stat.. 93 O. 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.
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 ham paid into the fee fund of the county, or from other or ordinary sources au- thorized by law. Ib.
Under Secs. 1365-3, and 1365-6, Rev. Stat., 93 O. L., 446, the clerk of the court of com- mon 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.
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. 308
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. Ib.
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
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. Ib.
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 v. Campbell. 148
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. Kirkbride. 517
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 v. Jewett. 131
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. Ib.
Where at the time of filing 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 trustees. Ib.
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. 319
The act of April 15, 1857. 54 O. 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. Ib. Construction of the special act of March 22, 1850, placing extension of the Lower River Road in the hands of the commissioners of Hamilton county. Ib.
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-
tract with the provision eliminated in contravention 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- missioners.
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. 163
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 state and county roads notwith- standing parts thereof may lie with- in a municipal corporation. State v. Craig. 189 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. Ib.
The act of April 16, 1900, 94 O. L., 364, supplementing Secs. 2822 and 4637, Rev. Stat., authorizes county commissioners 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. .769
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.).
See also EASEMENTS; RAILROADS. HOMESTEAD-
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, In re. 731
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- cluding 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 other homestead. Ib.
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. State. 382
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 O. 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. 121
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
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