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239; Wolff Packing Co. v. Court of Indus-
trial Relations, 262 U. S. 522, 536, 43 S. Ct.
630, 67 L. Ed. 1103, 27 A. L. R. 1280; Mich-
igan Public Utilities Comm. v. Duke, 45 S.
Ct. 191, 69 L. Ed. -, not yet [officially] re-
ported, decided by the Supreme Court of the
United States January 12, 1925. The Mich-
igan statute construed in that case is quite
similar to section 614-2, General Code, and
its pertinent provisions are as follows:
"Any and all persons

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engaged in the transportation of persons or property for hire by motor vehicle, upon or over the public highways of this state shall be common carriers, and, so far as applicable, all laws of this state now in force or hereafter enacted, regulating .*

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trans

portation
by other common carriers,
including regulation of rates, shall apply with
equal force and effect to such common car-
riers
by motor vehicles.
Pub. Acts 1923 (Mich.) No. 209, § 3.

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will be made to apply only to motor-vehicle transportation which comes within the purview of the common-law definition of common carriers.

[3] This case cannot be disposed of without some reference to the following provi sions of section 614-88, General Code:

"Except as provided in section 614-84, no corporation or person, their lessees, trustees, receivers or trustees appointed by any court whatsoever, shall operate any automobile, jithire car, for the transportation of persons or ney, bus, truck, stage, auto stage, or rent for property or both, for compensation, over any between fixed termini or public street, road or highway in this state irregular route, over which any motor transover a regular or tificate of convenience and necessity issued by portation company is operating under a certhe commission as provided in this act, until such corporation or person, their lessees, trustees, receivers or trustees appointed by any court whatsoever, shall have secured a certificate of public convenience and necessity or permission from the commission to so operate, and then only in strict accordance with such rules as the commission may prescribe for such operation."

That section performs a very useful function, and is quite necessary to be employed in giving complete protection to motor trans

The business of Duke, which the Commission sought to regulate in that case, was that of hauling motor trucks and trailers over the public highways of Michigan from Detroit to Toledo. He had no other business, and did not hold himself out as a carrier for the public. He had three contracts with three manufacturers of automobile bodies in De-portation companies which have been fur troit to transport their product to an auto- nished certificates of convenience and necesmobile manufacturer in Toledo. It was held sity against the aggressions of other motor by the Supreme Court of the United States transportation companies which are in fact that the provisions of the act above quoted common carriers, and that section should could not be enforced against him. Duke be employed by the courts in a proper case. was further declared to be a private car- The courts may not, however, employ the rier, having no power of eminent domain, ex-provisions of that section as an instrument ercising no franchise under the state, and of oppression against a private carrier, even possessing no greater right to use the highways than any other member of the public. [2] For the foregoing reasons, and upon the foregoing authorities, any interpretation of section 614-2 which would give state agencies any authority to regulate motor-propelled vehicles employed only in private service would constitute a violation of section 10, art. 1, and of the Fourteenth Amendment, of the federal Constitution.

though the business operated by the private carrier might prove to be ruinous to a public carrier operating over the same routes and between the same termini, even though he has made full compliance with all the requirements of the act, and even though he may have been subject to all of the charges, taxes, and expenses incident to regulation at the hands of the Public Utilities Commission. The judgment of the Court of Appeals

Judgment affirmed.

Section 614-2, being a part of a general and of the common pleas will therefore be scheme of legislation to regulate motor-ve-affirmed. hicle transportation, and essential to the other provisions of the Freeman-Collister Act, this controversy can be disposed of by an interpretation of that section whereby it

JONES, MATTHIAS, DAY, ALLEN, KINKADE, and ROBINSON, JJ., concur.

(146 N.E.)

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er, to wit, A. R. Zimmer, and at the time the note and mortgage were purchased by the finance company the car appears to have been in the actual possession of Bender, although afterwards turned over to Cooper of the Columbus Haynes Company for the purpose of demonstration.

On the date of May 3d, this particular car, which had been delivered to the possession of the Columbus Haynes Motor Company by Bender, was demonstrated to the plaintiff in error, Leo Katz, and, as a result thereof, the Columbus Haynes Motor Company sold the car to Katz at a consideration of $2,700, and an allowance of $1,200 on an old car which Katz owned, the difference, $1,500, being paid in cash by Katz to the Columbus Haynes Motor Car Company. Katz delivered his old car and took the new Haynes sport model under the sale. A bill of sale dated May 5, 1923, was executed to

Error to Court of Appeals, Franklin Katz, but it does not appear to have been County.

Action by the American Finance Company against Leo Katz and others. Judgment for plaintiff was affirmed by Court of Appeals on appeal of defendant named, and the latter brings error. Affirmed.-[By Editorial

Staff.]

This case comes into this court upon proceedings in error from the Court of Appeals of Franklin county. The facts incident to the transaction out of which the controversy grows may be stated as follows:

Prior to the 28th day of April, 1923, the Columbus Haynes Motor Sales Company was the owner of a certain Haynes automobile, sport model Haynes motor car 77, motor number 76958. On that day the company claims to have sold the automobile to one L. E. Bender, and to have received as part consideration therefor a promissory note for $2,022.84, to secure the payment of which Bender executed a chattel mortgage upon the machine, which was filed for record on May 3, 1923, in the recorder's office of Franklin county. Upon the same date, May 3, 1923, the Columbus Haynes Motor Sales Company issued for delivery to the defendant, L. E. Bender, a bill of sale on said automobile, which was also duly entered of record, according to law, on May 4, 1923. On the 28th day of April, the Columbus Haynes Motor Company offered the note and mortgage in question to the American Finance Company of Dayton, Ohio, a concern which was in the business of loaning money on automobiles. A representative of the finance company investigating the parties and the property in question found that no bill of sale had been given by the Columbus Haynes Motor Company to Bender, which, as above related, was accordingly done on May 3, 1923. It also, before purchasing the note and mortgage, required the signature of an additional mak

placed on record until 45 days later. The Columbus Haynes Motor Company went into the hands of receivers, and the American Finance Company, on July 31, 1923, began an action upon the promissory note of Bender and Zimmer, which it had purchased from the Columbus Haynes Motor Company. As a second cause of action it asked for a foreclosure of the chattel mortgage, averring that the defendant, Katz, was in possession of the automobile and that he refused to surrender the same to Bender, as the owner, or to the plaintiff, as mortgagee. Katz was made a party to the proceeding and the court was asked to require Katz to surrender the automobile in question, a sale was prayed for, and it was asked that the proceeds be applied to the payment of plaintiff's claim.

The answer of the defendant, Katz, put in issue the good faith of the purchase of the note and mortgage by the finance company, to which answer the plaintiff filed a reply, and upon the issues thus joined a trial was had in the court of common pleas, resulting in a decree of foreclosure in favor of the American Finance Company.

The matter was taken to the Court of Ap peals upon appeal, where a hearing was had and the same decree entered in behalf of the American Finance Company that was entered in the court of common pleas. Error is now prosecuted to, this court to reverse that decree.

Harry Kohn, of Columbus, for plaintiff in

error.

Robert J. Beatty, of Columbus, for defendant in error.

DAY, J. The paramount question in this case is the good faith of the American Finance Company in acquiring the note and mortgage signed, executed and delivered by Bender to the Columbus Haynes Motor Car

For other cases se same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Company. Both courts below, upon full the finance company was an innocent purhearing, found that the American Finance chaser before maturity for value. The recCompany was the holder of the note and ord so showing, we cannot disturb that findmortgage in good faith, for value, before ma- ing. turity, and that it was an innocent purchaser in the premises.

This issue of fraud and bad faith upon thé part of the finance company was the chief issue litigated in the courts below, and involves a question of fact; so that, so far as this court is concerned, the question is simply this: Is the finding of the courts below that the American Finance Company was an innocent purchaser, before maturity, for value, sustained by some evidence in the record?

[1] As to the question of the right of trial by jury, urged by the plaintiff in error, this, in the courts below, was an action for judgment on a promissory note and foreclosure of a chattel mortgage. The plaintiff in error, Katz, was only interested in the foreclosure feature. That being purely an equitable action, we cannot find that he was deprived of any right by being denied a trial by jury.

The rule being that this court is not to pass upon the weight of the evidence and is only permitted to ascertain from the record whether there is some competent evidence therein to sustain the findings of the court below, we are constrained to the conclusion that such evidence does exist and that it is our duty to affirm the judgment of the Court of Appeals rendered herein, which we accordingly do.

Judgment affirmed.

MARSHALL, C. J., and JONES, MATTHIAS, ALLEN, KINKADE, and ROBINSON, JJ., concur.

The record shows the note and mortgage were dated April 28, 1923, that the delivery of the car was made to Bender on May 3d, which was the date of the bill of sale. When the agent of the plaintiff finance company came to inspect the property he was shown the bill of sale and found the machine in the actual possession of Bender. The bill of sale was recorded on May 4th, within the time prescribed by law. The mortgage and its assignment were filed by the finance company with the county recorder of Franklin county on May 3, 1924. The fact is that this chattel mortgage could have been known by Katz by an examination of the record. The bill of sale to Katz, while dated May 5th, was not recorded by him until 45 days later. While sales were made of like character by the Columbus Haynes Company to other employés, and numerous other evidences of fraud upon the part of the Columbus Haynes Company are shown in the record, the record also discloses some evidence substantiating the finding of the courts below that the fraud, in so far as the Bender car was concerned, was not known to. the finance company.

[2] We must take this record as we find it. Had the witnesses appeared in this court, and had testimony been taken from the lips of the witnesses, as was the privilege of the Court of Appeals and the court of common pleas, and were we to weigh such evidence, what this court's conclusion would have been is not for us to conjecture.

BOARD OF EDUCATION OF PUTNAM
COUNTY et al. v. BOARD OF EDUCATION
OF HARTSBURG RURAL SPECIAL
SCHOOL DIST. OF PUTNAM COUNTY.
(No. 18900.)

(Supreme Court of Ohio. March 3, 1925.)

(Syllabus by Editorial Staff.)

Schools and school districts 37 (3)—Electors signing remonstrance against creation of new school district cannot withdraw names after expiration of 30-day period.

Electors signing names to remonstrance against creation of new school district established under Gen. Code, § 4736, which is filed with county board of education before end of 30-day period, cannot withdraw names therefrom after period has elapsed, though official action has not been taken on remonstrance by county board.

2. Statutes 230—Legislative intent to change presumed where statute repealed and different statute enacted.

When existing statute is repealed and new and different statute on same subject is enacted, it is presumed the Legislature intended to change effect and operation of law to extent of change in language thereof.

If from the record it appears there was no evidence to sustain the finding of the courts below, this court has the power to set the same aside, but, not undertaking to weigh the evidence and pass upon its sufficiency, we cannot disturb the decree of the courts below unless there is no evidence to sustain their finding. While both courts below found that the Columbus Haynes Motor Company acted in bad faith, and was guilty of fraud, we cannot say that the conclusions reached below are not sustained by some evidence in the premises, to wit, that the pro- Action by the County Board of Education ceedings were regular on their face, and that of Putnam County and others against the

Certified by Court of Appeals of Putnam County.

(146 N.E.)

Board of Education of Hartsburg Rural Spe- | county board of education, under section 4736 cial School District of Putnam County. of the General Code, which remonstrance is Judgment for plaintiffs was affirmed on ap- filed with the county board of education bepeal by the Court of Appeals, and case was fore the end of the 30-day period, may withcertified to Supreme Court. Affirmed.-[By draw their names from the remonstrance aftEditorial Staff.] er the 30-day period has elapsed, but before official action was taken upon the remonstrance by the county board of education?

On May 6, 1924, the county board of education of Putnam county, under authority of section 4736, General Code, adopted a resolution, by the terms of which it created a school district embracing the Hartsburg rural special school district, the Monroe Township school district, and what was formerly the Continental Village school district, all in Putnam county, Ohio, and designated five of the defendants below to act as a board of education of the proposed new district. Eleven hundred and thirty-nine qualified electors

were located in the territory affected by the resolution and order of the county board.

Within 30 days from and after May 6,

1924, a remonstrance containing 651 names was filed with the county board of education. After May 6, 1924, and before the county board of education took action upon the remonstrance, a petition containing 161 names of the same persons who had signed the remonstrance was filed with the county board of education, withdrawing their names from

the remonstrance.

On June 18, 1924, the county board of education met to consider the remonstrance and found that it contained the names of less than a majority of the qualified electors of the territory affected, and the board of education of the newly created district, which was appointed by the county board of education, took charge of the affairs of the newly created district and began exercising authority and jurisdiction over the school affairs therein.

This action was brought in the court of common pleas of Putnam county, Ohio, to enjoin the newly appointed board from administering the school affairs of the newly created district. Upon hearing, a permanent injunction was granted.

An appeal was taken to the Court of Appeals, which court also rendered judgment for the plaintiffs and certified the case to this court as being in conflict with the decision of the Court of Appeals of Ashland county, Ohio, in the case of Montgomery Township Board of Education v. Board of Education, 8 Ohio App. 120, 29 O. C. A. 198. Knepper & Wilcox, of Cleveland, and Herbert Eastman, of Toledo, for plaintiffs in er

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The plaintiff in error claims that electors who have signed such a remonstrance may

lawfully withdraw their names therefrom at any time before the county board has taken official action thereon, even though the 30day period has expired.

The defendant in error claims that such withdrawals cannot be made after the 30 days have expired, upon the ground that the filing of the remonstrance signed by more than a majority of all the electors within the territory affected automatically renders ineffectual the action of the county board

purporting to create the new school district.

tion 4736, General Code (108 O. L., pt. 1, p. In so far as pertinent to this discussion, sec707), reads:

"The county board of education may create a school district from one or more school districts or parts thereof, and in so doing shall make an between the newly created district and any disequitable division of the funds or indebtedness tricts from which any portion of such newly created district is taken. Such action of the county board of education shall not take effect if a majority of the qualified electors residing in the territory affected by such order shall within thirty days from the time such action is taken file with the county board of education a written remonstrance against it."

The plaintiff in error cites certain Ohio cases, to the effect that persons who have subscribed to petitions may withdraw their names at any time before official action taknecessitate judgment in his favor. Hays v. en thereon, and urges that these decisions Jones, 27 Ohio St. 218; Dutten v. Village of Hanover, 42 Ohio St. 215; State ex rel. Kahle, v. Rupert, Aud., 99 Ohio St. 17, 122

N. E. 39.

We have read and carefully considered these decisions, but think that they do not apply in the instant case. There is a distinction between the filing of a petition and the filing of a remonstrance, under section 4736, General Code. It is true, as contended by plaintiff in error, that the petition, like the remonstrance, is a means provided for electors to express their will. But in other essential respects there is a marked difference between the remonstrance and the petition. In cases such as those cited above the filing of the petition merely invokes the jurisdiction of the board or tribunal, and therePER CURIAM. [1] One legal question fore the withdrawal of the names by the eleconly is involved in this case, which is wheth-tors who originally signed them to the petier qualified electors who have signed their tion is permissible until the time that official names to a remonstrance against the crea- action is taken upon the petition. The election of a new school district established by a tors, having a right to invoke the jurisdic

ror.

Winn & Goller, of Defiance, and B. A. Unverferth, of Ottawa, for defendant in error.

the original signers. But the specific question here is whether the withdrawal of names by the electors is allowable after the 30day period.

tion of the board or tribunal, are entitled time, if such cancellations were made by any time before jurisdiction is assumed by the board or tribunal to revoke their action. Withdrawal of the names does not render ineffectual the action of the board or tribunal because none has been taken, but simply nullifies the invoking of the jurisdiction. "The jurisdiction of the board of county commissioners to make the final order for the improvement, under these statutes, is special, and conditioned upon the consent, at the time the final order is to be made, of a majority of the resident landholders, who are to be charged with the costs of the improvement." Hays v. Jones, supra.

The filing of a remonstrance under section 4376, General Code, on the contrary, does not invoke the jurisdiction of the county board of education. The board of education in the first instance has power to create a school district from one or more school districts or parts thereof without the filing of a petition by the electors, but the remonstrance when duly filed makes ineffectual the action of the board.

Moreover, in none of the above cited cases was a statute involved which read in unambiguous terms, as does section 4736, that the action of the official board in question shall not take effect if a majority of the qualified electors residing in the territory affected, within 30 days from the date of the action, file a written remonstrance with the county board of education.

If this provision of the statute means anything, the action of the county board of education taken on May 6, 1924, was nullified at the end of the 30-day period by the filing of the remonstrance, and could not be resuscitated by the withdrawal of the names originally signed to the remonstrance after that period had expired.

We have no doubt that in the given case the signers to the remonstrance could have withdrawn their names before and up to the end of the 30-day period. It is only when the 30-day period has elapsed that the number of names upon the remonstrance is definitely fixed. The remonstrance must be placed in the hands of the county board of education within 30 days from the time of creation of the new school district by the county board, but the remonstrance cannot be considered as filed until the 30-day period has elapsed. Names could no doubt be added to the remonstrance within that time by qualified electors, and names could also be canceled upon the remonstrance within that

We are strengthened in our conclusion that the filing of the remonstrance within the statutory period makes nugatory the action of the county board, and renders it impossible to withdraw names after the 30-day period has elapsed, by the fact that section 4736, General Code (106 O. L., 397), formerly read as follows:

"The county board of education shall arrange the school districts according to topography and population in order that the schools may be most easily accessible to the pupils, and shall file with the board or boards of education in the territory affected, a written notice of such proposed arrangement, which said arrangement shall be carried into effect as proposed unless, within thirty days after the filing of such notice with the board or boards of education, a majority of the qualified electors of the territory affected by such order of the county board, file a written remonstrance with the county board against the arrangement of school districts so proposed."

By an act of the Legislature passed May 28, 1919 (108 O. L., pt. 1, 707), this section was amended to read as it does to-day, that:

shall not take effect if a majority of the quali"Such action of the county board of education fied electors residing in the territory affected by such order shall, within 30 days from the time such action is taken, file with the county board of education a written remonstrance against it."

[2] This amendment removed any uncertainty in the act, if any theretofore existed, and specifically gave the filing of the remonstrance the effect contended for by defendant in error. "When an existing statute is repealed and a new and different statute upon the same subject is enacted, it is presumed that the Legislature intended to change the effect and operation of the law to the extent of the change in the language thereof." Board of Education of Hancock County v. Boehm, 102 Ohio St. 292, 131 N. E. 812.

For the above reasons the judgment will be affirmed.

Judgment affirmed.

MARSHALL, C. J., and JONES, MATTHIAS, DAY, ALLEN, KINKADE, and ROBINSON, JJ., concur.

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