undertaken to control the entire subject. It | 1913, p. 120. They are exactly what they are has pointed out specifically the method by denominated in the statute, viz. "orders," and which claims against the municipality shall are specially designed to meet the require be paid ; and in the case at bar it is evidentments of the depository law. Nevertheless, it that the city officers followed the method des was the duty of the depository to exercise ignated in the act of 1907. It is unfortunate due care in paying them. If in truth the that the two statutes are not entirely har names written in the orders represented creamonious.

tures having no existence save in Bush's fanThe city officials were endowed with ample cy, and if in truth the controller believed power to make allowances and to issue or that he was making the orders payable to ders. They acted within the scope of their real persons, then the orders were not pay. authority and their action is binding upon able to bearer. They were payable to real the municipality. The action of the treas- persons, or not payable at all. That is the urer in stamping and countersigning the or- / rule applicable to.checks, and we perceive no ders was a positive direction to the deposi- reason why it should not be applied to these tory to pay them. It was not the duty of the orders. Snyder v. Corn Ex. Nat. Bank (1908) depository to inquire concerning the regulari- 221 Pa. 599, 70 A. 876, 128 Am. St. Rep. 780; ty of the allowances. Indeed, on the facts | Guaranty State ank & Trust Co. v. Lively disclosed in this action, it would have been (1912; Tex. Civ. App.) 149 S. W. 211; First an impertinence on the part of the deposito Nat. Bank of Hastings v. Farmers' & Merry, had it assumed to question the decision chants' Bank (1898) 56 Neb. 149, 76 N. W. of the city officials or to exercise supervisory 430; First Nat. Bank of Hastings v. Omaha power over their discretionary action. The depository was not the guardian of the city's Nat. Bank (1899) 59 Neb. 192, 80 N. W. 810.

[6] Now, is there any proof to support the officers. After payment by the depository,

theory of the complaint? The uncontrovert. without notice, then as between the city and ed evidence discloses that during the years the depository the city will not be permitted 1914 and 1915 labor conditions were such as to say that the allowances were obtained by that the board of public works evidently was the fraud of a city employee. It would be obliged to employ whomsoever it could gel unconscionable to allow the city to set up the to do the work of cleaning and repairing the fraud in order that the loss, if any, may be streets and sewers. The laborers who did shifted upon the depository. In determining that work constituted a motley crew. Many the rights of the parties, the element of fraud of them were transients who would work a must be wholly eliminated. The only legit- week or two and then disappear. Some of imate purpose of the averments of the com

them assumed false names, some for the purplaint relating to the alleged fraud is to ex

pose of avoiding the deduction of delinquent plain how the orders happened to be made taxes from their wages, others for reasons payable to alleged fictitious persons. To give known only to themselves. The number so those averments any other effect is not allow-employed ranged from 50 to 60 in the winter able; for it was not the duty of the deposito and from 300 to 400 in the summer. During ry to make an investigation for the purpose the week ending June 2, 1915, the number emof discovering the fraud which the city offi- ployed in the asphalt repair plant alone was cers failed to discover. If the opposite view 82. Among them were persons known by should be adopted, as a rule of law, no repu- such names as Stibby Staub, Goosie Costello, table bank would consent to accept deposits and Greasy Bob Walters. Walters was also of public funds. See Newburyport v. Spear known by two other aliases, viz. Ross Mills (1909) 204 Mass. 146, 90 N. E. 522, 134 Am. St. and Joe Merz. Stibby Staub also used the Rep. 652; Meyer v. Indiana Nat. Bank (1901) name of Joe Stark. 27 Ind. App. 354, 61 N. E. 596. It follows that The foreman of each gang recorded, in the depository is not liable in this action un- time sheets provided for that purpose, the less it is amenable to the city for negligence days and hours each man worked. From in the manner of payment.

those sheets the time clerk of the street de[5] The appellant concedes that the writ- partment made lead pencil pay rolls, which he ten instruments paid by the depository were turned into the office where they were typenot checks when drawn by the controller. written. The street commissioner certified It insists, however, that they became checks the correctness of the typewritten pay rolls, when stamped and countersigned by the which were then presented to the board of treasurer, and that therefore the duty of the public works. After allowing the items depository with respect to the payment of therein, the board certified the allowance of them was the same as the duty of a bank the pay rolls to the controller, as "warrants" with respect to the payment of checks. From for the issuance of orders thereon. When the face of the instruments themselves it is the orders came to the street department, obvious that they are not checks. 7 C. J. which was usually on Friday of each week, 673. Because the amount stated in each they were given to the timekeeper, who order is “subject to all delinquent taxes,” “would sort them out in little bunches for they are not even negotiable instruments. the different gangs, and deliver them to the Sections 9083a, 9089b, Burns' 1914; Acts foreman of each respective gang." Usually

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(148 V.E.) each payroll contained several hundred | lar to, the names in some of the orders. One names, and the orders involved in this ac- of these witnesses, a post office employee at tion are based on items dispersed throughout the time of the trial, confirmed the genuinethe various pay rolls. It was the custom of ness of the order payable to him and of his the men in each gang to borrow money from indorsement thereon. The rest of these wittheir foreman. Some of them began to bor- nesses testified that they did not indorse the row on Monday, and continued borrowing orders, did not receive the proceeds thereof, small sums from day to day; and when pay and knew nothing about them--mere negative orders were received they would repay their testimony. loans by indorsing the orders and delivering Without reciting further details, we are them to the foreman. It was a common compelled to say that, when viewed in the practice for some of the workmen to have light most favorable to the plaintiff, the evitheir pay orders cashed at saloons, grocery dence wholly fails to support the averments stores, and other places. That the workmen of the complaint. If the jurors had returned would resort to such methods of obtaining verdict for the plaintiff, it would have cash might have been anticipated; for they been the duty of the trial court promptly to could not well go to the depository during have set it aside as being contrary to law. banking hours. Even if they had taken their [7] In view of the conclusion we have orders to the depository, who would have reached, it is wholly unnecessary to discuss vouched for their identity? Consequently the instructions. Where the jury returns the all of the orders, except nine, were paid only verdict that can lawfully be rendered through the clearing house. When the orders on the evidence, nothing in the charge can were thus paid by the depository, each one constitute reversible error. bore several indorsements, all of which were (8-10] The report offered in evidence and indorsements in blank. Eight of the orders excluded by the court is a voluminous docu. were paid by the depository over its own ment, comprising 148 pages of the transcript. counter. In some manner one order reached It covers all the financial affairs of the city, the treasurer's office, where it was confiscat- including every department of the city goved and applied to the payment of delinquent ernment; contains elaborate explanations, taxes.

recommendations, opinions, and conclusions The depository balanced the city's pass- of the examiners; recites a multitude of sins book and delivered it, together with the re- chargeable to the city officials, but not to the deemed orders, to the treasurer every three depository; and is certified by G. H. Hendren, or four months. The presumption is that the s state examiner. Only a very small part of treasurer took credit on his account with the it has any reference to the matter involved city for the amount of the orders, and re- in this litigation. While the bulk of it is turned them to the controller; that the con- utterly foreign to the controversy in the case troller laid them before the common council; at bar and might be available in an action and that the common council approved the against city officials, it contains statements whole matter. The record does not disclose that would be prejudicial to the depository. that any city official has ever claimed that the statute relating to public accounting conthe names written in the orders represented

tains the following: fictitious persons, or that the depository is “Any such report as described in this in any manner liable to the city. But in the section or a copy thereof duly certified by the year 1917 the bureau of public accounting any and all the courts of this state as evidence

state examiner shall be taken and received in made an examination of the office of the of the facts in such reports stated and concity controller. Field examiners checked tained." Section 75461, Burns' 1914; Acts the names in the orders with the names 1909, p. 136. in the city directory, in their effort to determine whether the orders were fraud

It is fundamental that the Legislature may ulently issued. Many persons were inter- not strike down the rights of citizens by inviewed, subpoenas were issued, and a grand vading the province of the judicial departjury investigation was conducted. A field ment of the state government. While this examiner laid the matter before the corpo- court is not authorized to declare a statute ration counsel, and requested him to insti- unconstitutional, nevertheless, where a stattute an action against the depository, but the ute is susceptible of two constructions, one of city's legal department ignored the request. which would render it constitutional and the A field examiner made the demand on the de- other one unconstitutional, it is our duty to pository, and this action followed. Although adopt the former. Therefore we hold that the name of the corporation counsel now in the Legislature intended to declare that such office appears upon the brief, no one repre- reports only as are found to be competent senting the legal department of the city gov- under the established rules of evidence and ernment has participated in the proceedings. in the particular kind of action authorized

In an effort to prove that the indorsements by the statutes relating to the subject of pubwere forgeries 17 men

were called as wit lic accounting shall be received by the courts. hesses. Some of the names of these witness [11] A witness, who had been a member of es, were the same as, while others were simi- I two grand juries in 1916 and clerk of a grand

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jury in 1917 and had otherwise participated | high school or of studying high school branches in an investigation to determine whether or is one of the school privileges which a county not the orders were fraudulently issued was board of education of the county must provide asked the following "question":

for all youth of school age in the district, up

on failure of the board of education of the dis"You may state, Mr. Thomas, if your investi- trict to provide the same. gation disclosed that any of the persons whom you investigated in this matter-persons who 2. Schools and school districts Om 148Coun. were of the same name as the payees therein ty board of education by refusing to exerindorsed their names on these checks."

cise option cannot absolve itself from liability.

While a board of education has an option On what principle could the result of an

as to the method by which it will make high ex parte investigation of that character be in the district, it cannot, by refusing to exer

school branches accessible to school children admissible? Was the defendant not entitled cise any one of the options, absolve itself from to cross-examine the persons investigated on liability. the question as to whether they indorsed the orders? For other reasons the question is 3. Work and labor Om6—Beneficiary of duty

imposed, intervening to discharge another's so obviously improper that further discus

duty thereunder, is entitled to compensation. sion is useless. [12] The plaintiff offered a page of the city imposed, who intervenes to discharge another's

One for whose benefit a statutory duty is directory for the year 1915 for the purpose legal obligation, where the obligation is of such of proving thereby that no such person as

a nature that actual and prompt performance Frank Akers resided in Indianapolis. The thereof is of grave public concern, after the manager of the company that prepared and person upon whom the obligation rests has failpublished the directory testified that the ed or refused, with knowledge of the facts, to names appearing therein were procured by perform the obligation, is entitled to compena house to house canvass between October i sation for the performance of the service. and December 31, 1914. The order payable to 4. Schools and school districts w1591/2-Par. Frank Akers was issued June 2, 1915. ent residing more than 4 miles from high Therefore the fact that his name does not school, transferring children thereto, may reappear in the 1915 directory cannot serve cover for transportation. as a basis for the inference that the order A parent who resides more than 4 miles was not properly indorsed in the name of from any high school in a rural school district, Frank Akers, whether the name was real or compulsory school age who have finished the

who is compelled to transport his children of assumed.

ordinary grade school curriculum to a high [13] The right of the Attorney General to school more than 4 miles from his residence by institute and maintain this action has not reason of the refusal of the local board of edubeen questioned, and under certain provisions cation and the county board of education either of the Code it seems to be our duty to regard to provide work in high school branches at it as having been waived. Section 344, cl. 6,

some school within 4 miles of the children's and section 348, Burns' 1914; Acts 1911, p. from a high school, may recover in an action

residence, or to transport the children to and 415.

at law for such transportation. Judgment affirmed.

Jones, J., dissenting in part.

Error to Court of Appeals, Putnam County. SOMMERS V. PUTNAM COUNTY BOARD Action by A. F. Sommers against the PutOF EDUCATION et al. (No. 18894.)

nam County Board of Education and another. (Supreme Court of Ohio. June 16, 1925.)

Judgment for defendants was affirmed by

Court of Appeals, and case comes to Supreme (Syllabus by the Court.)

Court on allowance of motion to certify rec1. Schools and school districts Om 148–County ord. Judgment reversed.—[By Editorial board of education is under mandatory obli- Staff.] gation to provide school privileges, if district

The plaintiff in error was plaintiff in the board of education fails so to provide; privilege of going to high school or studying high court below. He filed a petition in the court school branches is one which county board of of common pleas of Putnam county, praying education must provide on failure of district for a money judgment against the defend. board so to provide.

ants, the Putnam county board of education Under section 761041, General Code, if and the township board of education of Riley the board of education in a district fails to pro- township, Putnam county, Ohio, in the sum vide sufficient privileges for all the youth of of $397, with interest from June 1, 1923, school age in the district, the county board and for costs. Defendants demurred to the of education of the county to which such dis

petition. trict belongs is under a mandatory obligation to provide sufficient school privileges for all

The petition avers that the plaintiff is a the youth of school age in the district.

resident taxpayer of Riley township, PutBy virtue of the provisions of section 7764– nam county, Ohio, and that at all times 1, General Code, the privilege of going to a'thereinafter mentioned he was the father of

en for other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


(148 N.E.) 4 children of compulsory school age, all of judgment was entered for the defendants. whom were under the age of 18 years, and This judgment was affirmed by the Court of each of whom had finished the elementary | Appeals. course of study in the Riley township The case comes into this court upon alschools and was eligible for admission to lowance of motion to certify the record. high school work under the laws of Ohio;

A. A. Slaybaugh, of Leipsic, for plaintiff that he and his 4 children resided more than

in error. 4 miles from any high school, to wit, a dis

J. S. Ogan, Sr., Pros. Atty., of Ottawa, and tance of 442 miles from the nearest high H. P. Eastman, of Toledo, for defendants in school; that the defendant in error, the townchip board of education of Riley township, Putnam county, Ohio, maintained at all times

ALLEN, J.' By an error of the printer, specified in the petition a first grade high the third paragraph of the syllabus in the school in the village of Pandora, Putnam coun- case of State ex rel. Masters v. Beamer, 109 ty, Ohio, a distance of 442 miles from plain. Ohio St. 133, has been incorrectly published tiff's residence; that prior to September 4, in that volume. The third paragraph of the 1922, plaintiff in error requested the defend-syllabus, as printed in 109 Ohio St. 133, is ant in error township board of education of

as follows: Riley township either to furnish high school work within 4 miles of his residence, or to

“(3) If a board of education in a district furnish transportation for his 4 children to all the youth of school age in the district, in,

fails to provide sufficient school privileges for and from its high school at Pandora, Ohio, cluding the privilege of having high school or to furnish and provide board and lodging branches offered at some school within 4 miles for his children in Pandora, Ohio, within of the the district, including the privilege of havsuch township district, which request was ing high school age in the district, or of havby the defendant in error township board re- ing such branches made accessible to such chilfused; that, upon such refusal by the de- dren by transportation to or board and lodgfendant in error township board of educa-ing within a district which offers such high tion, plaintiff in error appeared before the school branches, under section 7610—1, Gen

eral Code, a mandatory duty rests upon the defendant in error Putnam county board of county board of education of the county to education, and, advising it of the request which such district belongs to perform the acts made to and the action by said defendant in necessary to provide such high school branches error township board, requested the defend- or to make the same accessible to all children ant in error Putnam county board of educa- of school age within the district.” tion, either to furnish high school work with

As written and correctly published in the in 4 miles of his residence, or to transport | Ohio Law Reporter and in the Northeastern his 4 children to some high school, or to Reporter (141 N. E. 851), the third paraprovide and furnish board and lodging for graph of the syllabus in the Masters Case is his children in Pandora, Ohio, within such

as follows: township district, which request the defendant in error Putnam county board of educa- fails to provide sufficient school privileges for

“(3) If a board of education in a district tion also refused.

all the youth of school age in the district, inThe petition further avers that, by rea- cluding the privilege of having high school son of the failure, neglect, and refusal of branches offered at some school within 4 miles said defendants in error, and each of them, of the residence of each and every child of comto provide high school work within 4 miles pulsory school age in the district, or of having of his residence, or to transport his 4 child such branches made accessible to such children

by transportation to, or board and lodging dren to high school, or to provide and fur within, a district which offers such high school nish board and lodging for his children in branches, under section 7610–1, General Code, Pandora, Ohio, within such township district, a mandatory duty rests upon the county board plaintiff was compelled to and did transport of education of the county to which such dishis 4 children to and from his residence to trict belongs to perform the acts necessary to said high school in Pandora, Ohio, between provide such high school branches or to make the 3d day of September, 1922, and the 230 the same accessible to all children of school

age within the district." day of May, 1923; that in June, 1923, he presented and filed his itemized bill for such In the above paragraph of the syllabus in services with the defendant township board the Masters Case this court held that it was of education of Riley township, Putnam the mandatory duty of the local board of county, Ohio, for the sum of $397, and re-education, or, in case of the failure of the quested said defendant to allow and pay the local board to perform its duties, the mansame; and that said defendant township datory duty of the county board of educaboard refused to allow and pay the same or tion, either to provide work in high school any part thereof, and rejected said bill, and branches at some school within 4 miles of still refuses to pay the same or any part the plaintiff's residence, or to have such thereof.

branches made accessible to the plaintiff's The demurrer to the petition was sustain-children by transportation to, or board and ed in the court of common pleas, and final lodging within, 4 miles of the school where

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in such high school branches are offered. , efit of the children and of the public. As That case, therefore, while holding that the the performance of that duty by another is several duties enumerated were optional with a benefit to the school boards, when he per. the local and with the county board of edu- formed the duty the parent conferred a bencation, held specifically that it was man- efit upon the school boards. For this bendatory upon the local board, and, in case efit the school boards ought in justice to pay, of its default, upon the county board of edu- and hence the intervener, that is, the parent cation, to perform one or the other of these who performed the duty, is entitled to comduties.

pensation therefor. [1] In the instant case the record shows [3] An act of beneficial intervention in the that both the local board of education and discharge of another's legal obligation, which the county board of education have refused results in a quasi contractual obligation, must to perform any one of the several optional contain the following elements: The obliduties resting upon them. The record dis- gation must be of such a nature that actual closes that the district in question did not and prompt performance thereof is of grave provide high school work in high school public concern; the person upon whom the branches within 4 miles of the residence of obligation rests must have failed or refused the plaintiff. The duty of providing such with knowledge of the facts to perform the high school work is enjoined upon the local obligation; or it must reasonably appear board by section 7761-1, General Code. that it is impossible to perform it; and the Since the local board has failed to provide person who intervenes must, under the cirthese high school branches, the same duty, cumstances, be not a mere intermeddler but or the duty of making such high school work a proper person to perform the duty. Woodaccessible to children of compulsory school ward, Law of Quasi Contracts, p. 310; For. age, is imposed upon the county board of syth v. Ganson, 5 Wend. (N. Y.) 558, 21 Am. education under section 7610-1, General Dec. 241; Rundell v. Bentley, 53 Hun (N. Y.) Code,

272, 6 N. Y. S. 609. [2] This duty does not include that of It is plain that the actual performance of furnishing the cost of room and board in this duty of making high school branches acPandora, upon the facts in this immediate cessible to children is a matter of grave pubcase, because the Riley township board of lic concern. It is of the utmost importance education does maintain a high school within that the coming race receive school trainthis particular district; hence section 7749— ing. The moral sense of the community re2, General Code, does not apply. But the quires that this obligation be actually percounty board of education is authorized un- formed, and the school boards, upon whom der section 7731, General Code, to transport the obligation rested, failed to perform the the children to a school where high school duty. branches are provided. If the township Passing to the question of the appropriate board fails to perform its mandatory duty ness of the intervention of the parent, the under section 7761—1, General Code, to pro- father was surely the proper person to per. vide work in high school branches within 4 form the obligation. It is his obligation to miles of the residence of children of com- see that his children attend school, and the pulsory school age and of high school grade, fact that the transportation has not been supthe county board of education rests under plied cannot be pleaded as an excuse for his a mandatory duty, either to provide such failure to send such children to school, or as work in high school branches, or to make an excuse for the failure of the children to such work in high school branches acces- attend school. Section 7731–4, General sible to the children by transportation. Code (109 Ohio Laws, p. 290). While the board of education has an option The performance of this legal obligation as to the method by which it will make high was a benefit to the school boards because it school branches accessible to school children saved them from the necessity of performing in the district, it cannot, by refusing to ex- the duty themselves. Hence the retention of ercise any one of the options, absolve it- the benefit was inequitable, although there self from liability.

was no contract between the parties. It Plaintiff in error concedes that there is would be unjust to permit those who failed no contractual relationship existing between to perform a duty which was a matter of the school boards and the plaintiff in error, such public concern to retain the benefit be but contends that, under the familiar rule stowed upon them by the plaintiff in error. of quasi contracts, this action lies for money It is urged that, inasmuch as this court expended in transporting his 4 minor chil- held in the Masters Case, supra, that an acdren to a high school outside of the 4-mile tion in mandamus lay upon the failure of the liinit. With this contention we are in ac- local board and of the county board to per cord. The parent has discharged the obliga- form the duty of making high school branchtion first of the local school board and next es accessible to children of school age, an ar of the county school board. Moreover, this tion does not lie herein to collect reimburse. duty was imposed upon the board partly for ment for the money expended by the relator the parent's benefit, as well as for the ben- in transporting his children to the bigh

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