Lawrence Lewis.

American and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] online

. (page 23 of 73)
Online LibraryLawrence LewisAmerican and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] → online text (page 23 of 73)
Font size
QR-code for this ebook


common pleas was by the board of education of the village
against the board of education of the township, and the
object of it wac to enjoin the defendants from exercising any
control or direction over the school-house or over the school
held therein, and to prevent them by injunction from inter-
fering with the sole use, direction, and control of the school
by the board of education of the village. The district court,
upon a trial on appeal, found and decreed for the plaintiffs.
It is now sought to reverse this decree.

Dio Roger Sy Volney Roger Sy and C A. Harrington for plaintiffs
in error.

McCauley, J. — The board of education of the township
FACTS. legally established a central or high school, and

located the building for it in sub-district number 5 of the
township. The building must have been located in some one
of the sub-districts of the township. It is claimed by the
board of education of the village that because the territory
within sub-district number 5 was formed into an incorporated
village after this central or high school was established, and
prior to the passage of the act of May i, 1873, 70 Ohio Laws,
195, the 39th section of that act vested the board of education
of the village with jurisdiction and control of all school prop-
erty within the district. Section 4 of that act, now section
3888 Rev. Stats., provides : " That each village, including the
territory attached to it for school purposes, and excluding
the territory within its corporate limits detached for school
purposes, shall constitute a school district, to be styled a vil-
lage district." Section 39 of the same act, now section 3972
Rev. Stats., provides : " That all property, real or personal,
which has heretofore vested, and is now held by any board of
education or the council of any municipal corporation, for
the use of public or common schools in any district, is hereby



Digitized by



Google



STATE ex rel. fanger v. board of public works. 213

vested in the board of education provided for in this title,
having under this title jurisdiction and control of the schools
in such district.** The act of May i, 1873, repealed all pro-
visions relating to central or high schools existing at the
time of its passage ; but it provided for the establishment of
such schools, and provided, also, that obligations or liabilities
incurred and rights acquired under the provisions of any of
the acts repealed by it should be in no wise altered or
affected, but be enforced as if the act had not been passed.
70 Ohio Laws, 240. The township board of education had
established a central or high school according to the statutes
in force at the time the school was established. The act of
May I, 1873, fi^ave the board of education of the control of

•11 1 r 11 1 1 • I • 1 school PEOPKR-

viUage control of all school property withm the '^•
village district, and at the same time saved all rights which
had accrued under former statutes. The right of the town-
ship board to the school property, and to the control and
management of the central or high school, had accrued before
the act of May i, 1873 ; and the rights of this board were,
therefore, not affected by this act.
Judgment reversed.



State ex rel. Fanger

V.

Board of Public Works.

(42 Ohio State, 607.)

Under the provisions of the act of March 23. 1840 (3 Rev. Stats. 417, §§
20 to 23 inclusive), relating to the canals of the State, it is the duty, as
well as the right, of the board of public works to resume the privilege or
right to the use of surplus water, leased or sold for hydraulic purposes, or
any portion thereof, whenever, at any time, it may be deemed necessary
for the purposes of navigation, or whenever its use for hydraulic purposes
shall be found in any manner to interfere with and injuriously affeqt the
navigation of the canal, feeder or stream from which such water is taken.

The board of public works is not authorized by said statute to in any
manner surrender, abridge, restrict or limit its power to resume, at any
lime, the surplus water leased or sold for hydraulic purposes, whenever it
may be deemed necessary for the purposes of navigation ; nor to create or
impose any burden or obligation upon the State, by reason of the exercise



Digitized by



Google



214 STATE ex rel. fanger v. board of public works.

of such right of resumption, other than is authorized by the 23d seaion of
said act.

Hence, a clause providing that on such resumption of surplus water and
termination of the lease, the board of public works shall pay to the lessee
the value of the lasting improvements erected for the use of such water, is
a restriction on the performance of a public duty, and is unauthorized and
void.

Mandamus.

The relator's intestate was the assignee of a lease, dated
June 27, 1853, made by the board of public works, to Riley
and Le Blond, whereby certain water-power, out of the Mer-
cer county reservoir, together with about one and three-
quarter acres of land adjoining the same, was leased to them
for the term of thirty years, from November i, 1853, with the
privilege of a renewal, on the terms as hereinafter stated.
The use of said water-power was to be subject to the restric-
tions, conditions, and limitations stated in said lease.

Among these were the following :

" It is expressly understood and agreed by and between the
parties that the party of the second part (the lessees) shall
not be entitled to any deduction from the rent hereby made
payable, unless said parties shall be deprived of the use of the
water for more than one month in any one year, and the
party of the first part reserves the right to resume, at any
time, the use of the water hereby leased ; and whenever, in the
opinion of the acting commissioner in charge of this canal,
the interests of the party of the first part require it, the water
hereby leased may be resumed, and then, and in that case, all
the rights and privileges derivable to said party of the second
part from this agreement shall cease and determine, provided
the party of the first part shall first pay or tender the party
of the second part the value of all lasting improvements now
made, or hereafter to be made, by said second party. - Said
value to be determined by three disinterested persons chosen
for that purpose. Each party choosing one, and the two thus
chosen to choose the third." Said lease also contains the fol-
lowing stipulations, touching the renewal of said lease for an
additional term of thirty years : " And it is further understood
and agreed that at the expiration of this agreement, the party
of the second part shall be entitled to a renewal of this lease
for the like term of years, for such annual rent as may be of-



Digitized by



Google



STATE ex rel fanger v, board of public works. 215

fered by the highest bidder, who shall also agree to purchase
of said party of the second part all permanent and valuable
buildings necessarily erected by said party, for the convenient
use of the water-power hereby leased, at such price as such
buildings shall be adjudged to be worth by three judicious,
disinterested freeholders, to be chosen as hereinbefore speci-
fied, provided such buildings shall be erected on land belong-
ing to the State, or land which can be purchased by said bidder
at a reasonable price, to be deternoined by said appraisers.
And if no such bids shall be made on the terms aforesaid, at a
higher rent than is herein specified, said party shall be en-
titled to such renewal on the terms of this lease."

The first term of thirty years expired on the first day of
Novenaber, 1883. Prior to that date the board of public
works notified the assignee of said lease that said board would
not renew said lease for an additional term after the expira-
tion of the first term, for the reason that said leased water
was necessary for the purposes of navigation, and its use for
hydraulic purposes interfered with the navigation of the
canal, and said board proposed to resume the same. On the
sixth day of May following, the board passed an order for-
nially resuming the use of the said water.

The petition avers that the said relator and those under
whom he claims have performed all the conditions of said
lease on their part to be performed ; that lasting and valuable
improvements have been placed upon the lands of the State,
described in said lease ; and that the board of public works
has resumed the water-power so let, but has neglected and re-
fused to renew said ' lease or to appoint an appraiser of said
improvements, though often requested so to do. The prayer
of said petition is for writ of mandamus commanding the de-
fendant to select an appraiser so as to ascertain the value of
said improvements, and for general relief.

The parcel of land included in said lease, as is expressly
stated therein, was leased for the purpose of enabling the
party of the second part to use and enjoy the use of the
water-power thereby leased. The land was a mere incident
to the use of the water, and, independently of that, is of com-
paratively small value. The lease provided that upon re-
sumption of the use of the water the entire lease should cease
and determine.



Digitized by



Google



2l6 STATE ex rel. FANGER V. BOARD OF PUBLIC WORKS.

The main question in this case is the proper construction
of the statute authorizing the lease of water-power by the
board of public works — being sections 20 to 23, inclusive, of
the act of March 23, 1840, found in volume 3 (Supplement),
Revised Statutes, page 417. These sections are as follows:

" Sec. 20. Whenever, in the opinion of the board of pub-
lic works, there shall be surplus water in either of the canals,
or in the feeders, or at the dams erected for the purpose of
supplying either of said canals with water, or for the purpose
of improving the navigation of any river, and constructed at
the expense of the State, over and above the quantity of
water which may be required for the purpose of navigation,
the said commissieners may order such surplus water, and
any lands granted to, or purchased by the State, for the pur-
pose of using the same, or such part thereof as they may deem
expedient, to be sold for hydraulic purposes, subject to such
conditions and reservations as they may consider necessary
and proper, either in perpetuity or for a limited number of
years, for a certain annual rent, or otherwise, as they may
deem most beneficial for the interests of the State.

"Sec. 21. The provisions of the foregoing section shall
extend to and include the water passing round locks, from
one level to another, on either of the canals of the State.

" Sec. 22. No hydraulic power, nor right to the use of any
water, shall be sold, leased or conveyed, except such as shall
accrue from the surplus water of the canal, feeders or dams,
or from the water passing round any lock, after supplying the
full quantity necessary for the purposes of navigation.

"Sec. 23. Every lease, grant, or conveyance of water-
power shall contain a reservation and condition that the State,
or its authorized agents, may at any time resume the privily
or right to the use of water, or any portion thereof, whenever
it may be deemed necessary for the purposes of navigation,
or whenever its use for hydraulic purposes shall be found in
any manner to interfere with and injuriously affect the navi-
gation of either of the canals, feeders, or streams from which
the water shall be taken for such hydraulic purposes ; and,
whenever such privilege shall be resumed, in whole or in
part, the sum paid therefor, or the rent reserved, or such rea-
sonable portion thereof as shall be determined upon, agreea-
bly to the conditions and stipulations of the lease or deed of



Digitized by



Google



STATE ex rel. fanger v, board of public works. 217

conveyance aforesaid, shall be refunded or remitted to the
purchaser or lessee, his heirs, or assigns."
Zl J. Godfrey and Marsh & Loree for plaintiff.
Jantes Lawrence^ attorney-general, for defendant*

Johnson, C. J. — The twentieth section of the above-recited
statute authorizes the board of public works to facw.

sell, for hydraulic purposes, the surplus water in the canals of
the State, their feeders, dams, and locks, " subject to such
conditions as they may consider necessary and proper, either
in perpetuity or for a limited number of years, for a certain
annual rent, or otherwise, as they may deem most beneficial
for the interest of the State.*'

By section 22, the board is expressly limited to a sale of
such surplus water as may remain " after supplying the full
quantity necessary for the purposes of navigation."

And to make this limitation effective, section 23 requires
that " every lease, grant, or conveyance of water-power shall
contain a reservation and condition that the State or its
authorized agents may at any time resume the privilege or
right to the use of water, or any portion thereof, whenever it
may be deemed necessary for the purposes of navigation, or
when its use for hydraulic purposes shall be found in any
manner to interfere with and injuriously affect the naviga-
tion of either of the canals, feeders, or streams from which the
water shall be taken for such hydraulic purposes."

The admitted facts of this case show that the lease before
us contains such reservation and condition, and that the au-
thorities of the State have properly resumed the right to
the use of the water granted by this lease. The sole ques-
tion involved is as to the validity of a proviso annexed to
said reservation and condition, which reads as follows :

" Provided the party of the first part shall first pay or ten-
der to the party of the second part the value of all lasting
improvement now made or hereafter to be made by said sec-
ond party, said value to be determined by three disinterested
persons chosen for that purpose, each party choosing one and
the two thus chosen to choose the third.'*

If the clause thus quoted is valid, the relator is entitled to
the relief sought, otherwise not. Had the board £>^";^ p^Jf
of public works the power to bind the State to pur-
chase the improvements, should it be deemed neces-



Digitized by



BOABD or PUB-
UO WORKS TO
PURCHA8&
WATCBIMPROTS-



Google



2l8 STATE ex rel FANGER V. BOARD OF PUBLIC WORKS.

sary to resume the use of the surplus water for the purposes
of navigation or when its use by the lessees will be found
injuriously to affect navigation ? We think not. The latter
clause of section 23 provides what shall be the right of the
lessees in case of such resumption. Whenever such privilege
shall be resumed in whole or in part, the sum paid therefor,
or the rent reserved, or such portion thereof as shall be deter-
mined upon agreeably to the conditions and stipulations of
the lease or deed of conveyance aforesaid, shall be refunded
or remitted to the purchaser or lessee, his heirs or assigns."

This clause, which section 23 requires shall be inserted in
RBSBRYiKa ooN. thc Icasc, aud which seems to embrace the only
totoT ^'■" right reserved to the lessee in case of the resump-
tion of the surplus water, is, strange to say, omitted from this
lease, and in lieu thereof is the proviso above quoted, which
requires of the State, as the condition precedent to the re-
sumption of such water-power, that the State shall first pay
or tender to the lessee the value of all lasting improvements,
and which further requires that the State shall pay such
amount as shall be fixed by arbitrators mutually chosen by
the parties. Whether we regard the obligation to purchase
as ^condition precedent or subsequent, the result is the same,
as in neither case is the power conferred to make such pur-
chase.

It may well be doubted whether the board of public works,
Board or pub- as the agcut of the State, has power to enter into
ooHTRA^"^ arbritration that will bind the State in any matter

PO8IKO OF BUR- . ■• 1 . , •11 i

PLU8 wAiBB. committed to their charge, m the absence of express
legislative authority. However this may be, it is quite
clear that no authority is delegated to them to contract away
or restrict the right to resume this surplus water whenever
its use for navigation is required. The power to grant or
lease water privileges is incidental and subordinate to the
public use. The duty of those having charge of the canals to
employ all the water, if needed for public use, is imperative.
The public right is paramount ; so important was this prin-
ciple deemed by the legislature that this right to resume the
surplus water was required to be inserted in every lease,
grant, or conveyance. The board possesses no power to
surrender this right or hamper themselves in its exercise. By
this so-called proviso they cannot resume this surplus water.



Digitized by



Google



STATE ex reL FANGER V. BOARD OF PUBLIC WORKS. 219

however much it may be needed for the public use, or how-
ever injuriously its use by the lessee may aflfect the naviga-
tion of the canals, without purchasing the improvements.
Such a restriction upon the performance by them of an impor-
tant public trust is clearly unauthorized, and is contrary to
that public policy under which the canals have been con-
structed and operated. They were constructed at great ex-
pense for the public convenience and welfare. They are
public navigable highways. The statutes in force from time
to time show how careful the State has been to preserve
these great highways free from all encroachments that might
interfere with their usefulness.

The board of public works have power to perfect, render
useful, maintain, keep in repair, and protect the
same. Revised Statutes, 7691. This is a power ^^J^-
of superintendence for the protection and main-
tenance of the canals, including everything that pertains to
them. They posses no powers except such as are expressly
conferred by law or that are necessarily implied,. the purpose
of which is the maintenance of the canals as public high-
ways.

It is said, however, in argument, that the 20th section in
the act of 1840 authorizes the board to grant this 5^^S>*5f p^
surplus water, "subject to such conditions and SE,
reservations as they may consider, necessary and SiJSl.
proper ;" and that this proviso, which makes it a condition
precedent that the State shall first pay or tender the value of
the permanent improvements upon the resumption of the
surplus water, is a condition within the meaning of that
clause, which the board could agree to if they deemed it
necessary and proper. It is further said that at that day it
was to the interest of the State to encourage the develop-
ment of manufacturing interests along the line of the canals
by oflFering favorable terms to lessees or grantees so that
their products would be transported over the canals, and thus
increase the revenue of the State. In reply to this it may be
said : ist. As already shown, the board possessed no power
to surrender the duty of performing the public trust com-
mitted to their charge, and the limitation, self-imposed, to
pay for these improvements before resuming the water,
though it may be necessary for the purpose of navigation.



BOARD OF FDB-
WORE8 TO
ORANT 8T7RPLU8
WATER OH COM-



Digitized by



Google



220 STATE ex rel FANGER V. BOARD OF PUBLIC WORKS.

was against the public policy of the State, which made it the
duty of the board to resume this water at any time when
needed for the public use, untrammeled by any condition or
any right of the lessee to prevent it.

2d. The phrase " subject to such conditions and reserva-
tions" has the same meaning as it has in section 23, where it
is provided that every lease, grant, or conveyance of water-
power shall contain "a reservation and condition that the
State or its authorized agents may at any time resume the
use of water, or any portion thereof."

What we mean to say is that these terms, " conditions, and
reservations" are such as are imposed upon the lessees or
grantees of water-power, and not upon the State.

3d. But if we are in error in this construction of the stat-
ute, and these words embrace conditions and reservations
imposed upon the State, they must be such as relate to the
use of the water for hydraulic purposes, which are in the
nature of the quantity used, the manner of its use, etc. It is
quite clear they are not broad enough to embrace conditions
to be imposed upon the State after the right to use the water
has expired, or after the State has abandoned the canal as a
public highway. By such resumption or abandonment,
which are identical in their results so far as lessees are con-
cerned (Hubbard v, Toledo, 21 Ohio St. 379), the State is not
liable to respond in damages to the lessee. If it were other-
wise the State would be compelled to maintain her canals at
any sacrifice for the exclusive benefit of the lessees of surplus
water, or become the purchaser of the property of the lessee,
thus making the incidental purpose paramount to the public
use.

If this obligation to purchase is valid in this instance, it is
within the power of the board of public works to bind the
State to become the purchaser of all the permanent improve-
ments in the State, erected for the use of surplus water leased
or granted. They cannot do this, although they might deem
it necessary and proper as a means of developing manufac-
turing interests along the line of the canals, and thereby in-
creasing transportation over them and thus enhancing the
revenues from the canals.

4th. This obligation to purchase, when the surplus water is



Digitized by



Google



STATE ex reL FANGER V. BOARD OF PUBLIC WORKS. 221

resumed, is in les^al effect a covenant to purchase, oblioatiok to

^7 PUIICBA8S WH Kil

and not a condition annexed to the use of the 2,''5S^\;i^^™
water* *" coKDmoM.

A condition in its legal signification is something annexed
to the grant, while this is in the nature of a stipulation bind-
ing the State to purchase when the lease is terminated. The
State covenants that upon the resumption of the surplus water
it will purchase the improvements at a price to be fixed by
arbitrators. If it be called a condition instead of a covenant,
it can only apply to the right of the State to resume water.

In this sense, it is a condition precedent to such resumption.
As such it would be clearly illegal,, for, as we have shown,
there can be no restriction on the right and duty to resume
the use of this surplus water whenever it becomes necessary
for the public use.

5th. The statute provides what shall be the relief to which
the purchaser or lessee is entitled on such resumption. The
last clause of section 23 reads thus : " Whenever such priv-
ilege shall be resumed in whole or in part, the sum paid there-
for, or the rent reserved, or such reasonable portion as shall
be determined upon agreeable to the conditions and stipula-
tions of the lease or deed of conveyance aforesaid, shall be re-
funded or remitted to the purchaser or lessee, his heirs or
assigns."

As was said in Hubbard v. Toledo, supra, this clause of
the statute expressly negatives the liability of the State for
the destruction of the privilege, by resuming the gjant, beyond
what is therein provided ; namely, in case of resumption of
such surplus water the sum paid therefor, or the rent reserved,
or a reasonable portion thereof, shall be refunded or remitted.
Hubbard v. Toledo, 21 Ohio St. 379; Elevator Co. v. Cin-
cinnati, 30 Ohio St 629 ; Fox . v. Cincinnati, 33 Ohio St.
492 ; Same case, 104 U. S. ; State v. Railway, 37 Ohio St.

157.
Writ refused.



Digitized by



Google



222 FULKERTH V. COUNTY OF STANISLAUS.

FULKERTH

V.

County of Stanislaus.

{Advance Case, Calif orma. August 22, 1885.)

A sheriff having furnished necessary food to prisoners in jail is entitled
to be paid a reasonable compensation therefor, to be determined by the
county board, subject to review by the courts in an action for such reason-
able compensation, if the sheriff be dissatisfied with what is allowed.

Appeal from a judgment of the superior court of Stanis-
laus county, entered in favor of the defendant. The opinion
states the facts.

C. C. Wright for the appellant.

Wtn. O, Minor for the respondent

Belcher, C. C— The plaintiff was sheriff of the defend-
FAon. ant county during the year 1881, and as such fur-

nished meals to the prisoners confined in the county jail.
For the meals so furnished he made out an account in proper
form and duly verified, and presented it to the board of



Online LibraryLawrence LewisAmerican and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] → online text (page 23 of 73)