360

Jordan, Guardian, v. Dickson, et al.

court held that the statutory mode of acquiring jurisdiction was sufficient and that if the alleged lunatic was present in the court, it was immaterial whether he was produced by order of court, by the applicant or by voluntary appearance. Judge Elliott in refusing a rehearing, says: "Even if a notice had been necessary, as counsel insist, it could have done nothing more than secure the production of the person whose mental condition was the subject of investigation in open court, and this right was fully accorded him, as well as all rights consequent upon it." In Missouri the mode of acquiring jurisdiction is by production of the alleged lunatic in court, and there as in Indiana the finding of insanity by the court is conclusive upon the ward until reversed in a direct proceeding..

By secs. 703 and 739 of our statutes, when it is sought to have a person committed to an asylum for insanity, a warrant issues to the sheriff or some other suitable person commanding him to bring the person before the court on a day in such warrant named, not more than five days after the application. Subpoenas immediately issue to the witnesses named in the application and to a physician designated by the court to appear on the return day of the warrant and if any person disputes the insanity subpoenas shall issue for such as he demands. On the return day, unless the court adjourns it, the hearing is had. Now it is clear from these provisions that the notice intended is merely a production in court. The warrant need not be served, and probably is not generally served until the day of or the day before the return. certainly can not be claimed that the probate court does not obtain jurisdiction to commit a person to Longview because he is arrested and tried on the same day. The question of adjournment is left to the protecting discretion of the court. Judge Okey, in Ccx v. Cox & Anderson, 2 Dec. Re., 20, seems to think that the legislature intended the same sort of notice and hearing in applications for guardians as in inquests, and it is very apparent from a reading of that opinion that the judge deemed the presence of the alleged lunatic in court sufficient notice.

It

All the cases, with but two exceptions, cited by counsel as opposed to this view, are cases where the alleged lunatic had no notice, and was not present either in court or at the inquisition, as in Eddy v. People, 15 Ill., 386; Chase v. Hatheway, 14 Mass., 222. Or they are cases where the statute required a certain fixed notice in writing to be served, as in Shumway v. Shumway, 2 Vt., 339; Morton v. Sims, 64 Ga., 298; North v. Joslin, 59 Mich., 624. The cases in re Vanauken, 10 N. J. Eq., 186 and in re Whitenack, 2 Green's Ch., N. J., 252, were hearings before the Chancellor as to the granting of a traverse of an inquisition found. It was decided in the latter case that the appearance, without notice, of the alleged lunatic before the inquisition to attempt a defense, did not aid the defect of want of notice. In the former it was held that a notice from Saturday to Tuesday was not enough. These were decided without a statute, and support the plaintiff's claim. I am of the opinion, however, that the effect of the statute of Ohio in inquests of lunacy as to notice, together with the authorities cited, require me to hold that a presence in court of the subject of investigation for guardianship is sufficient. If I am right in this, it is not material that no formal order was made by the court for Harry's production in court under sec. 6406, Rev. Stat., which provides that the probate judge 4 I, B 22

Cuyahoga Common Pleas.

360

shall order notice to be given for such length of time as he shall deem reasonable, in any proceeding where notice is required by law, and the manner of giving it is not fixed by statute. When he was present in court and that gave jurisdiction, further action by the court to cause his presence would be superfluous and unnecessary. As was said in the Indiana case, formal action could have secured him no greater rights.

These conclusions make it unnecessary for me to consider whether Harry's conduct in requesting the appointment was a waiver of a want of notice as was held in Kimball v. Fisk, 39 N. H., 119, where the circumstances were similar, or whether the nunc pro tunc finding of the probate court as to notice can be used at bar to supplement the original record of the appointment. The order of appointment having been made in the exercise of jurisdiction, I am concluded in this action from inquiring into Harry Dickson's capacity at the time of appointment or now. His answer and cross-petition will be dismissed.

Isaac M. Jordan, for plaintiff.

Thos. McDougall, for H. R. Dickson.

364

TAXATION.

[Hamilton Common Pleas.]

+ JULIUS DEXTER ET AL. V. HAMILTON Co. (COMS.)

In counties within the purview of Revised Statutes, secs. 1005, 1006, 1007, 1008: (a.) The limitation fixed by the Revised Statutes, secs. 1005, subd. 5, and 1006, is intended to apply only to the current expenses of the county as ordinarily understood. The authority conferred by the several statutes to issue county bonds for the costs of improvements, evidence the legislative intent to withdraw such costs from the category of current expenditures of the county; the tax levy for sinking funds created for the redemption of such outstanding bonds is not subject to the above said limitations.

(b.) In the county of Hamilton the levy of 1888 for the road and bridge fund is without authority of law.

(c.) Where an act provides for the construction of a road and the levy of a tax for the same, it does not thereby make such levy additional to that authorized by Revised Statutes, sec. 1006, unless by the express language of the act, or by the nature of the improvement or the amount of its costs or like circumstances, which disclose its extraordinary character, the legislative intent is shown to make the levy additional; the furnishing of highways for the public being one of the functions of the state ordinarily discharged by the agency of

counties.

(d.) The provisions of acts of March 21, 1888. and March 30, 1888 (85 O. L., 419. 491), requiring the levy authorized by each to be made in June, 1888, are directory. The delay to make such levies until September, 1888, does not invalidate them.

SHRODER, J.

The plaintiffs claim that at the end of the last week in March, 1888, the cash on hand in the county treasury, together with the taxes then to be collected in June, 1888, applicable to the payment of the lawful expenses of the county, amounted to $492,351.06; that the county commissioners and board of control have made levies of taxes and directed

*See State v. Hagerty, 3 Circ. Dec., 161; where this case is overruled in part, and approved in part.

364

Dexter et al. v. Hamilton County Commissioners.

the auditor to place on the tax duplicate for 1888, amounting in the aggregate to $580,500, which two sums are in the total $1,072,851.06; that said total levy, inasmuch as it is above the maximum limit allowed by law (that is $1,000,000), to be levied and placed on the duplicate for the twenty months following the first Monday in April, 1888, is illegal and void; that a levy for road and bridge fund has been certified to the auditor, and that this levy is illegal and void; that levy of taxes for the following funds have been certified to the auditor: North Bend road, Bridgetown road, Pleasant Ridge, and Columbia road, Lester road, Loveland and Madeira road, western avenue and Browne street bridge, and that these levies are unauthorized by law; that the western avenue and Browne street bridge levies were required by statute to have been made on or before the first Monday in June, 1888, but were not made until September 25, 1888, and are therefore void; that the auditor threatens to place these unlawful levies upon the tax duplicate, and that to prevent the same an injunction is prayed for.

Upon the hearing, the several levies which composed the aggregate of $580,500.00 to be levied, as well as the several funds which made up the aggregate of funds in the treasury, 492, 351.06, were offered in evidence, and it was claimed by the defendants that the plaintiffs are in error as to several of these items when they include them as among those intended by law to be within the one-million-dollar limit, and that if not thus included, the aggregate of the remaining levies, which defendants contended, are alone properly and lawfully within this limit, do not amount to one million dollars. The defendants also claimed that levies for the road and bridge fund, as well as for Western avenue and Browne street bridge, are lawful; that the other road funds are intended by law to be levied for in addition to the funds included within the one-milliondollar limitation.

Held. (1.) That by force of the Rev. Stat., secs. 1005, 1006, 1007 and 1008, the auditor is required to present to the county commissioners and board of control on or before the first Monday of April each year an approximate estimate of money needed for all lawful expenses of the county and its several departments, offices and institutions, for twenty months following the first Monday of April, but no greater sum than $1,000,000 shall be estimated; and that this shall embrace the moneys in the treasury, the taxes collectible in June following, and the probable proceeds of that year's taxes; that the commissioners are not authorized to determine i total levy for the purposes mentioned higher than the auditor's estimate, and consequently within $1,000,000; that the estimate and levy are intended to cover current expenses, as distinguished from the payments of the bond liabilities of the county, and to include such items as would constitute the legitimate expenditures of the county as may occur during the year.

(2.) That the several acts creating sinking funds, and interest and sinking funds. the act of May 41, 885 (82 O. L., 253), and the act of April 16, 1888 (85 O. L., 549, the latter, passed subsequent to the first Monday of April), being intended to make provisions for the future payments of outstanding bonds, do not contemplate the payment of debts and the accumulation of moneys for that purpose as among the current monthly or annual expenses of the county. These several items are therefore not to be included as under the limitations of Rev. Stat., secs. 1005 and 1006. (3.) That the effect of secs. 2 and 4, of act of May 4, 1885 (82 O. L., 253), and of the act of March 21, 1887 (84 O. L., 224, et seq), was to

Hamilton Common Pleas.

364

deprive the county commissioners of their authority which they had before March 21, 1887, to levy a tax for the road and bridge fund, and to limit their power to the bridge fund only; which whole bridge fund, until one-third shall be demanded by the city, is subject to the appropriation of the county commissioners; that the whole of this fund comes properly within the designation of county expenses. The levy for road and bridge fund is therefore illegal and void.

(4.) That the following acts authorizing levying of taxes: For Bridgetown road, (March 21, 1888, 85 Ohio L., 425); for Pleasant Ridge and Columbia road (85 Ohio L., 475); for North Bend road (85 Ohio L., 496); for Lester road (85′Ohio L., 513), do not give authority to make levies in addition to that conferred by Rev. Stat., sec. 1,006; that these acts respectively were necessary in order to give these commissioners authority to improve these roads, and the power they conferred to levy taxes was but an auxiliary provision in order to make the authority effectual; the act related to a subject which would ordinarily be included within the item of current expenses of the county, and not to one of such extraordinary character as would compel the conclusion that the levy therefor was to be extra and outside the limit of general taxation under secs. 1005 and 1006. (U. S. v. County of Macon, 99 U. S. S. C., 590; Ralls County v. U. S., 105 U. S., S. C., 735), nor did they, like other acts, expressly provide that the authority to levy was an additional one to that already given to the commissioners.

(5.) That the following acts: For Western avenue, March 21, 1888; for Browne street bridge, March 30, 1888; for Loveland and Madison road, April 11, 1888 (85 O. L., 419, 491, 519), each expressly provides that the commissioners' authority to levy the tax is to be "in addition to the taxes now by law authorized to be levied." The plain meaning of these words would exclude these funds from the one-milliondollars limitation.

(6.) That the provisions in the acts for Western avenue and Browne street bridge that the levy is to be made on or before the first Monday of June, 1888, or at the June session, are directory; that the authority by each given to the board of public affairs to proceed to make expenses and contracts in anticipation of the levy and collection of the taxes makes the commissioners' duty mandatory; the delay until September on the part of the commissioners cannot defeat the law. (State v. Comrs., 35 Ohio St., 458-466; State v. Harris, 17 Ohio St., 608; People v. Supervisors, 8 N. Y., 317-320; 21 Pick., 64; 3 Mass., 230; 58 Ala., 562; 14 Cal., 155; 4 Nev., 789; 34 Pa. St., 513; Cooley on Taxation (5th ed.), 280, 289, 290; Burroughs on Taxation, 249.)

(7.) That according to these conclusions the evidence shows that as to the funds which are to be included in the one million-dollars-limit, there was on the first Monday of April, 1888, in the treasury, together with the June taxes, $381,965.64; that, excluding the unlawful levy for road and bridge fund, and including the levy for the four roads mentioned, the levy in question amounted to $538,351, the total being $920, 306.64.

The unlawful portion of the levy being distinct and separable, an injunction ought to issue against the auditor restraining him from placing that portion upon the duplicate, and it is so ordered.

I. J. Miller, for plaintiff.

Davidson & Hertenstein, county solicitors.

C. B. Matthews, Coppock & Gallagher, and Gorman & Thompson and Price Jones, contra.

McConnell keeps a saloon in the place, and the people there have been trying for a long time to get rid of it. They secured a prohibitory ordinance and were about to enforce it, when McConnell secured an injunction from Judge Irvine restraining the officials from enforcing the law. The attorneys for the hamlet demurred to the petition and injunction, taking the ground that McConnell should have waited until he had been arrested before he had anything done. Judge Buckingham decided the point well taken, and sustained the demurrer and dismissed the petition of McConnell at his own costs.-(Editorial.)

CORPORATION.

[Superior Court of Cincinnati, Special Term.]

ALFRED M. Allen v. J. De LagerberGER ET AL.

368

1. The voting power incident to ownership of shares of stock in a corporation is not lost when they become the property of the corporation, but their withdrawal from the number of voting shares is in effect an equal distribution of their voting power among the individual shareholders.

2. Therefore, when the directors of a corporation pledge its own stock to secure a loan, they may, if it will secure additional consideration for the benefit of the corporation in the contract of loan, confer on the pledgee the right to vote the stock.

TAFT, J.

This is an action brought by a stockholder of the C., H. & D. R. R. Co. to enjoin certain persons, in whose names are registered 650 shares in that company, from voting the same at the annual election, which is now at hand, on the ground that they are not the owners of those shares; that the company itself is the owner and that such shares are therefore, by law, withdrawn from the number to be voted. H. B. Morehead, another stockholder, on his own application has been made a party defendant, and files his cross-petition, in which he avers that the company is the owner of 4,182 shares of its own stock; that 650 shares are those mentioned in the petition, and that the remaining 3,532 shares have been pledged as collateral to secure a debt of the company owing to Post & Martin; that shortly prior to the closing of its transfer books, this stock was transferred into the name of Post & Martin by the procurement of the directors of the corporation, for the purpose of enabling them to vote this company stock, held in trust for the benefit of all the stockholders, in favor of themselves. Post & Martin are made parties; also the directors of the company; also the inspectors of election appointed by the common pleas court. The company was made a party originally. The facts appear to be, that these 3,532 shares were part of the holdings of Ives & Co. before that firm's failure, which the company was obliged to take up in order to retire certain shares of fraudulently