(148 N.E.) The case comes into this court upon al- H. P. Eastman, of Toledo, for defendants in error. as follows: 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 schools and was eligible for admission to high school work under the laws of Ohio; that he and his 4 children resided more than 4 miles from any high school, to wit, a distance of 41⁄2 miles from the nearest high school; that the defendant in error, the township 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 councase of State ex rel. Masters v. Beamer, 109 ty, Ohio, a distance of 42 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 Riley township either to furnish high school work within 4 miles of his residence, or to furnish transportation for his 4 children to and from its high school at Pandora, Ohio, or to furnish and provide board and lodging for his children in Pandora, Ohio, within such township district, which request was by the defendant in error township board refused; that, upon such refusal by the defendant in error township board of education, plaintiff in error appeared before the defendant in error Putnam county board of education, and, advising it of the request made to and the action by said defendant in error township board, requested the defendant in error Putnam county board of education, either to furnish high school work within 4 miles of his residence, or to transport his 4 children to some high school, or to provide and furnish board and lodging for his children in Pandora, Ohio, within such township district, which request the defendant in error Putnam county board of educa tion also refused. "(3) If a board of education in a district all the youth of school age in the district, infails to provide sufficient school privileges for cluding the privilege of having high school branches offered at some school within 4 miles of the the district, including the privilege of having high school age in the district, or of having such branches made accessible to such children by transportation to or board and lodging within a district which offers such high school branches, under section 7610-1, General Code, a mandatory duty rests upon the county board of education of the county to which such district belongs to perform the acts necessary to provide such high school branches or to make the same accessible to all children of school age within the district." As written and correctly published in the Ohio Law Reporter and in the Northeastern Reporter (141 N. E. 851), the third paragraph of the syllabus in the Masters Case is as follows: fails to provide sufficient school privileges for "(3) If a board of education in a district all the youth of school age in the district, including the privilege of having high school branches offered at some school within 4 miles of the residence of each and every child of compulsory school age in the district, or of having such branches made accessible to such children by transportation to, or board and lodging within, a district which offers such high school branches, under section 7610-1, General Code, a mandatory duty rests upon the county board of education of the county to which such district belongs to perform the acts necessary to provide such high school branches or to make the same accessible to all children of school age within the district." The petition further avers that, by reason of the failure, neglect, and refusal of said defendants in error, and each of them, to provide high school work within 4 miles of his residence, or to transport his 4 children to high school, or to provide and furnish board and lodging for his children in Pandora, Ohio, within such township district, plaintiff was compelled to and did transport his 4 children to and from his residence to said high school in Pandora, Ohio, between the 3d day of September, 1922, and the 23d 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 children by transportation to, or board and lodging within, 4 miles of the school where The demurrer to the petition was sustained in the court of common pleas, and final in such high school branches are offered.efit of the children and of the public. As That case, therefore, while holding that the several duties enumerated were optional with the local and with the county board of education, held specifically that it was mandatory upon the local board, and, in case of its default, upon the county board of education, to perform one or the other of these duties. [1] In the instant case the record shows that both the local board of education and the county board of education have refused to perform any one of the several optional duties resting upon them. The record discloses that the district in question did not provide high school work in high school branches within 4 miles of the residence of the plaintiff. The duty of providing such high school work is enjoined upon the local board by section 7764-1, General Code. Since the local board has failed to provide these high school branches, the same duty, or the duty of making such high school work accessible to children of compulsory school age, is imposed upon the county board of education under section 7610-1, General Code, [2] This duty does not include that of furnishing the cost of room and board in Pandora, upon the facts in this immediate case, because the Riley township board of education does maintain a high school within this particular district; hence section 7749— 2, General Code, does not apply. But the county board of education is authorized under section 7731, General Code, to transport the children to a school where high school branches are provided. If the township board fails to perform its mandatory duty under section 7764-1, General Code, to provide work in high school branches within 4 miles of the residence of children of compulsory school age and of high school grade, the county board of education rests under a mandatory duty, either to provide such work in high school branches, or to make such work in high school branches accessible to the children by transportation. While the board of education has an option as to the method by which it will make high school branches accessible to school children in the district, it cannot, by refusing to exercise any one of the options, absolve itself from liability. Plaintiff in error concedes that there is no contractual relationship existing between the school boards and the plaintiff in error, but contends that, under the familiar rule of quasi contracts, this action lies for money expended in transporting his 4 minor children to a high school outside of the 4-mile limit. With this contention we are in accord. The parent has discharged the obligation first of the local school board and next of the county school board. Moreover, this duty was imposed upon the board partly for the parent's benefit, as well as for the ben the performance of that duty by another is a benefit to the school boards, when he performed the duty the parent conferred a benefit upon the school boards. For this benefit the school boards ought in justice to pay, and hence the intervener, that is, the parent who performed the duty, is entitled to compensation therefor. [3] An act of beneficial intervention in the discharge of another's legal obligation, which results in a quasi contractual obligation, must contain the following elements: The obligation must be of such a nature that actual and prompt performance thereof is of grave public concern; the person upon whom the obligation rests must have failed or refused with knowledge of the facts to perform the obligation; or it must reasonably appear that it is impossible to perform it; and the person who intervenes must, under the cir cumstances, be not a mere intermeddler but a proper person to perform the duty. Woodward, Law of Quasi Contracts, p. 310; Forsyth v. Ganson, 5 Wend. (N. Y.) 558, 21 Am. Dec. 241; Rundell v. Bentley, 53 Hun (N. Y.) 272, 6 N. Y. S. 609. It is plain that the actual performance of this duty of making high school branches accessible to children is a matter of grave public concern. It is of the utmost importance that the coming race receive school training. The moral sense of the community requires that this obligation be actually performed, and the school boards, upon whom the obligation rested, failed to perform the duty. Passing to the question of the appropriateness of the intervention of the parent, the father was surely the proper person to perform the obligation. It is his obligation to see that his children attend school, and the fact that the transportation has not been supplied cannot be pleaded as an excuse for his failure to send such children to school, or as an excuse for the failure of the children to attend school. Section 7731-4, General Code (109 Ohio Laws, p. 290). The performance of this legal obligation was a benefit to the school boards because it saved them from the necessity of performing the duty themselves. Hence the retention of the benefit was inequitable, although there was no contract between the parties. It would be unjust to permit those who failed to perform a duty which was a matter of such public concern to retain the benefit bestowed upon them by the plaintiff in error. It is urged that, inasmuch as this court held in the Masters Case, supra, that an action in mandamus lay upon the failure of the local board and of the county board to perform the duty of making high school branches accessible to children of school age, an action does not lie herein to collect reimbursement for the money expended by the relator in transporting his children to the high (148 N.E.) school. No authority has been cited upon | fected rights involved in cause pending in court this proposition, but the defendant in error of common pleas, Commission was without jucontends that, since the right of mandamus risdiction. was granted in the Masters Case, necessarily no action for money exists herein. Error to Public Utilities Commission. Separate proceedings by property owners before the Public Utilities Commission to require the Federal Gas & Fuel Company to make service connection and furnish service to residence properties. Commission's order required respondent to establish service connections, and latter brings error. Order reversed.-[By Editorial Staff.] This specific question was reserved for decision in the Masters Case. However, the plaintiff in error here is in quite a different position from the plaintiff in the Masters Case. In the Masters Case the parent was endeavoring to make a school board perform its duty. In this case the plaintiff in error has proceeded to perform the duty enjoined by statute upon the school boards. He therefore, through no fault of his own, has been placed in a position where it would be futile and apply for similar relief. The complainto resort to mandamus. Under these circum-ants in the case before the Public Utilities stances the defendants in error cannot be Commission are all owners adjacent to and heard to say that, because mandamus would along property in which carrying lines of have lain if the father had not transported the Federal Gas & Fuel Company, the plainhis children, an action for money will not now lie. [4] The defendants in error seem to consider that an action for money is an extraordinary action which does not lie if an action for mandamus could be brought under the circumstances of the Masters Case. In other words, because mandamus is an extraordinary writ, the defendants in error apparently maintain that an action for money is an extraordinary remedy-surely a novel contention. Defendants in error, however, lose sight of the fact that, when the parent has actually transported his children, he can, of course, bring no action for mandamus to compel the school board to do the thing which he has done after their default. The fact that, at a little different stage in the proceedings, mandamus would lie is no answer to the argument of the plaintiff here that, when he has expended money, time, and effort in performing a duty enjoined by statute upon the boards, he is entitled to receive a money reimbursement. The demurrer will be overruled, and the judgment of the lower courts reversed. Judgment reversed. MARSHALL, C. J., and MATTHIAS, DAY, KINKADE, and ROBINSON, JJ., concur. JONES, J., dissents from proposition 4 of the syllabus and from the judgment. These three cases involve similar facts tiff in error, are located. In cases 18987 and 18989 a single complainant asks the Public Utilities Commission to order a single defendant, the Federal Gas & Fuel Company, to make service connections with and furnish service to his newly constructed residence. In case No. 18988 some 30 plaintiffs, joining four gas companies as defendants, ask relief similar to that prayed for in cases 18987 and 18989. The complainant in cases 18987 and 18989 prayed the Public Utilities Commission to order the Federal Gas & Fuel Company to invest additional capital into making new service connections with the residences of the complainants. The answer in each case alleged that the company ceased to be a public utility in Columbus upon November 10, 1924; that it had during all of the period in question no franchise contract with the city of Columbus; that since November 10, 1924, the gas company has been compelled by an injunction issued by the court of common pleas of Franklin county, Ohio, to continue to furnish gas to consumers then on its lines in Columbus, Ohio, and that the case is still pending in the court of common pleas of Franklin county. These facts alleged in the answer were admitted at the hearing. In each case the answer alleged that the proceeding before the Commission would directly affect the rights involved in the court of common pleas of Franklin county, that, therefore, the Commission had no FEDERAL GAS & FUEL CO. v. PUBLIC statement of the complaint, and that the UTILITIES COMMISSION OF OHIO. (Nos. 18987-18989.) (Supreme Court of Ohio. May 19, 1925.) (Syllabus by Editorial Staff.) Public Service Commissions l Public Utilities Commission held without jurisdiction of complaint affecting rights involved in cause pending in common pleas court. Where complaint filed with Public Utilities Commission, and order prayed for directly af statute under which the power of the Commission was authorized to be invoked was unconstitutional as being a derogation of judicial power. In case No. 18988 the complaint charged that the four named defendant companies are in effect and in law one public utility and that the real defendant is the holding company, the Ohio Fuel Supply Company, of which the other defendant companies are For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes arms or agencies, and that the Ohio Fuel Supply Company is guilty of unlawful discrimination in refusing to make the connections requested. Each of the four defendants filed a separate answer in the case, but in the answer of the Federal Gas & Fuel Company it was averred that an action was pending in the court of common pleas of Franklin county, in which rights were involved that would be directly affected by the complaint and order prayed for before the Public Utilities Commission. The Commission, upon hearing, granted the prayer of certain complainants; its order being in part as follows: "Said the Federal Gas & Fuel Company be, and hereby it is notified, directed and required, within ten days from the date of the service of this order, to establish, or cause to be established, the service connections necessary to inaugurate the furnishing of natural gas service and to thereupon inaugurate the furnishing of its said services, at the premises for which application has been made to it by the following named parties, and each of them, to-wit: all in the City of Columbus, Ohio. pleas of Franklin county, the Commission JONES, MATTHIAS, DAY, ALLEN, and ROBINSON, JJ., concur. KINKADE, J., not participating. STATE ex rel. LAMB v. SWISHER et al. (No. 19069.) (Supreme Court of Ohio. May 26, 1925. Rehearing Denied Sept. 29, 1925.) (Syllabus by the Court.) Mandamus 77 (4) — States 53-Reinstatement of employé after absence without leave held discretionary with civil service commission with consent of appointing officer; writ to compel reinstatement of civil service employé, absent without leave, denied, unless discretion abused. Reinstatement of an employé in the classi "And it appearing further that it would require extensions of the distributing lines of this defendant company in order to provide service connections for the other premises de-fied service under rule X, section 10, Rules and scribed in the complaint herein and, since this Commission has only reviewing jurisdiction in the matter of extensions and there is no evidence that the City of Columbus has initiated any legislation which would require the company to extend its distributing lines, the Commission is without jurisdiction at this time to order such extension to be made." It appears from the record that the petition filed in the court of common pleas is in language in great part identical with the language of the complaint filed before the Public Utilities Commission, charging that the four named defendant companies are in effect and law one public utility, and that the Columbus Gas & Fuel Company is but an arm of a public utility which comprises all of the four gas companies named as defendants. The case comes into this court upon petition in error. Regulations of State Civil Service Commission, and section 486-16, General Code, relating to absence from duty without leave for more than 10 consecutive days and failure to report within 10 days after revocation of leave of absence, is a matter in the sound discretion of the Civil Service Commission, with the consent of the appointing officer, and, unless some affirmative abuse thereof appears, a writ of mandamus to compel such reinstatement will be denied. Original action in mandamus by the State of Ohio, on the relation of Grace M. Lamb, agaist Rollin Swisher and another, as the State Civil Service Commission of Ohio. Writ denied.—[By Editorial Staff.] Arthur L. Rowe, of Coalton, and Joseph McGhee, of Columbus, for relator. C. C. Crabbe, Atty. Gen., and Arthur H. Wicks, of Columbus, for respondents. DAY, J. This is an action in mandamus brought by Grace M. Lamb against Rollin Freeman T. Eagleson, of Columbus, for Swisher and William S. Bundy, as the state plaintiff in error. C. C. Crabbe, Atty. Gen., and John W. Bricker, of Columbus, for Public Utilities Commission. Charles B. Cranston and Charles A. Leach, both of Columbus, for complainants in No. 18988. civil service commission of Ohio. The facts in the case briefly are that said Grace M. Lamb was appointed on June 13, 1922, to a position as stenographer in the classified service of the state, and was promoted on January 3, 1923, to the position of stenographer, grade II-B; the same being in J. M. Lewis, of Columbus, for complain- the classified service of the state. She conants in Nos. 18987 and 18989. PER CURIAM. Inasmuch as the record shows that the complaint filed with the Public Utilities Commission and the order prayed for directly affect rights involved in the cause pending in the court of common tinued in said position until on or about the 16th day of June, 1924, when, because of ill health, she was compelled to be absent from her position. She continued upon the pay roll at $90 per month from said June 16, 1924, to January 31, 1925, and received her salary down to the latter date. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (148 N.E.) On January 31, 1925, the civil service commission granted a formal leave of absence to the relator for one year, but, upon February 28, 1925, said civil service commission canceled and revoked the relator's leave of absence and so notified her. Said notification was in words as follows: "We regret to notify you that the condition of the work of the position of stenographer, grade II, in the examination division, has reached the point requiring the permanent assignment of the incumbent, and it has therefore become necessary that your sick leave be terminated by this commission as of February 28, 1925. "We regret extremely the necessity of this action, but feel that you will readily understand the difficult position of this commission in adjusting the work of this office over so long a period as has been necessary on account of your sickness. Miss Foster has been satisfactorily filling your position, and, inasmuch as we did not wish to lose her services since becoming so familiar with the duties of this position, it became necessary, in order to retain her in this office, to grant her this permanent promotion. "However, we will only be too glad, of course, able to return to her work, leaving the impres- At the close of said correspondence, the March 12th, placed the following upon their civil service commission, at a meeting of records: "In accordance with section 10 of rule X of the Rules and Regulations of this Commission, Grace Lamb, having been absent from duty without leave from her position of stenographer, grade II in this department, for 10 consecutive days from the expiration of her leave of absence as of February 28, 1925, the commission directs that her separation from the service be entered upon the official roster as an automatic resignation effective this date." 23d, notified the respondents that she was Subsequent thereto, the relator, on March ready and willing to return to her position, but respondents on said day refused to rec at such time as you desire to return to work, to effect your reinstatement and subsequent transfer to the same or similar position in another department of the state service, in case there is no vacancy in this office at that time."ognize the relator as entitled to the position On March 6 following, the relator, through her attorney, wrote the civil service commission as follows: that she formerly held, and still refuse to permit her to perform the work and duties of said position, although the relator claims to be now ready and willing and offers to perform said duties. . "Miss Grace Lamb of Middleport, Ohio, has It is the claim of the relator that under forwarded me letter signed by Mr. Forsythe, secretary of your commission, under date of section 486-14, General Code, the filling of February 28, 1925, notifying her that her sick the position of the relator could legally be an leave was terminated by the commission of that emergency appointment only and a temporary date. Miss Lamb, as you know, has been ill, one, made necessary by reason of the sickand will soon be able to go back to work. Willness and disability of the relator; that the she be restored to her former position, or shall respondents, the state civil service commisshe consider your letter of February 28th, as a sion, had no authority or right during the notice of discharge from which she must appeal? I trust you can arrange to restore Miss sickness of relator to "permanently" disqualLamb to her position. Awaiting your reply, ify her from said position and deny her the right to fill the same. This claim is chiefly based upon the letter of February, 28th wherein is used the expression: etc." Under date of March 10, the commission sent the following letter in reply to the letter written by the attorney for the relator: "The condition of the duties of the position of stenographer, grade II, in this office, occupied by Miss Grace Lamb prior to her illness, compelled this commission to revoke and cancel her sick leave, which had extended over a long period of time, effective as of February 28, 1925. "This commission feels that we have been unusually fair with Miss Lamb, and have given due consideration to her unfortunate illness. However, the conditions of the work in this office will not permit this situation to extend indefinitely, and, while we appreciate that her illness is unavoidable, it was our opinion, in the best interests of all concerned, that her leave be terminated, and she was so notified. "On frequent occasions in the past Miss Lamb has sent word to us that she will soon be "Miss Foster has been satisfactorily filling your position, and, inasmuch as we did not wish to lose her services since becoming so familiar with the duties of this position, it became necessary, in order to retain her in this office, to grant her this permanent promotion." The relator, therefore, claims that the "permanent promotion" of Miss Foster to the position formerly occupied by the relator is in violation of that portion of section 486-14, General Code, which provides: "In case of an emergency an appointment may be made without regard to the rules of this act, but in no case to continue longer than thirty days, and in no case shall successive appointments be made; provided, however, that interim or temporary appointments, made necessary by reason of sickness or disability of regu |