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State ex rel. v. Board of Education of Van Buren T'p.

safe, the board decided to build a new one; that plans and specifications were prepared, bids advertised for, and the contract let as provided by law; that to provide the means to pay for the building and to furnish it, the board had included in the levy, which it had made for that year, and which did not exceed the rate allowed by law, the sum of eighteen hundred dollars; that the board, at a regular meeting, had decided that it was a matter of urgent necessity that the building should be erected without delay and in time for the use of said sub-district within the coming school year, and that in order to accomplish this it would be necessary to borrow fourteen hundred dollars in anticipation of the amount which had been levied for that purpose; that the fourteen hundred dollars were obtained from the defendant bank, upon the bonds set out in the petition; that the building had been completed according to contract to the satisfaction of the board and the taxpayers of said district; that the same had been accepted by the board in October, and then was, and ever since had been, in use for school purposes; that the money so obtained from the bank had been used for paying for said school house and for no other purpose; that in obtaining said money upon said bonds in anticipation of taxes, the board had acted in good faith, to the best interests of the district, and in accordance with a custom which had not theretofore and was not then questioned by the taxpayers of said district; that the obtaining of the money and the use to which it was to be applied were known to the relator before any of it had been so expended, but that neither he nor any one else had taken any steps to prevent such expenditure.

To these answers, general demurrers were interposed and sustained, and the defendants not desiring to plead further, a decree was granted enjoining defendants from refunding the money, and they appeal to this court.

In passing upon the questions raised by the demurrers to

State ex rel. v. Board of Education of Van Buren T'p.

the answers, it is not necessary to determine whether the board proceeded in accordance with the provisions of section 3991 et seq., of the Revised Statutes. These sections are not a limitation upon the powers conferred by other sections, but were enacted to enable the board to provide the money necessary to accomplish the objects therein specified when it could not be done by levy; and the board here does not claim to have acted under these sections.

Nor is it necessary to determine whether the board had the implied power to borrow money and issue bonds therefor, for this is not a suit to enjoin the board from borrowing money, or to recover on the bonds, but an action seeking to enjoin the board from refunding money by it obtained, upon bonds, in anticipation of taxes lawfully levied, and used for a purpose and in a manner authorized by law.

The weight of authority is to the effect that while an action cannot be maintained upon bonds issued without authority by corporations of the character under consideration, yet it can be to recover the money actually received by the corporation when it remains in its treasury or has been appropriated by it to some authorized purpose. Dillon, J., in Gause v. Clarksville, Federal Cases No. 5276. Borough of Henderson v. County of Sibley, 28 Minn. 15. Pimental v. City of San Francisco, 21 Cal. 352, was an action to recover money paid into the sale of real estate by the city to the defenses was that inasmuch as the thority to make the sale, they had no authority to pay the money into the city treasury and that therefore no obligation could be fastened upon the city from such unauthorized act. Field, C. J., says: "The position thus restricted in its statement is undoubtedly correct, but the facts of the case go beyond this state-ment. They show an appropriation of the proceeds, and the liability of the city arises from the use of the moneys, or her refusal

city treasury on a void plaintiff. One of the city officers had no au

State ex rel. v. Board of Education of Van Buren T'p.

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to refund them after their receipt. The city is not exempted from the common obligation to do justice, which binds individuals. Such obligation rests upon all persons, whether natural or artificial. If the city obtains the money of another by mistake, or without authority of law, it is her duty to refund it, from this general obligation. If she obtains other property which does not belong to her, it is her duty to return it, or if used to render an equivalent therefor, from the like obligation. [Argenti v. San Francisco, 16 Cal. 282.] The legal liability springs from the moral duty to make restitution, and we do not appreciate the morality which denies in such cases any rights to the individual whose money or other property has been thus ap. propriated. The law countenances no such wretched ethics; its command always is to do justice.

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So, in Bank of Chillicothe v. Mayor of Chillico he, 7 Ohio, pt. II. 35, decided at the December term, 1836, which was an action upon bonds of the town given for borrowed money, and in which it was held that the town had, by implication, the power to borrow money, and that a contract borrowing money for the use of the town, bound the corporation for repayment. Hitchcock, J., says: "I cannot see the great difference whether a corporation shall be indebted to A. for labor in repairing streets or buildings; or to B. for money borrowed to pay A. for this same labor. The moral obligation to pay would be the same in either case. In the cases now before the court, there is nothing illegal in the consideration, and there is no violation of any positive law or moral principle in the premises. The undertakings are not to do an illegal act, but to refund money actually borrowed. The plaintiff violated no principle of law in loannig the money, and certainly there would be nothing immoral in the defendants paying it. On the contrary, we think its payment is required by every principle of moral honesty, and prohibited by no arbitrary rule of law.''

It follows that the court erred in sustaining the demurrers to the answers.

The demurrers to the petitions, in addition to the general

State ex rel. v. Board of Education of Van Buren T'p.

ground, stated the following: "That said S. V. Hartman, as prosecuting attorney of said county, has no authority to institute said proceeding." It is claimed, on behalf of the relator, that if the statutes do not expressly confer the authority, they do so by implication, and that if he has not the authority, then there is no remedy, because the taxpayers cannot maintain the suit. We are referred to sections 366, 1273, 1277 and 3977 of the Revised Statutes. It is, perhaps, sufficient to say that the state is not a party to this suit, excepting as relator of his own motion has made it a party, and that in none of these sections is the power expressly conferred upon him to bring suit under such circumstances as are set up in the petition, and we do not think the authority is derived by implication. We are also referred to The State, ex rel. the Prosecuting Attorney v. The Treasurer of German Tp., 2 O. C. C. 363. That was a suit brought by the prosecuting attorney to enjoin the payment of a warrant, and the question of the authority of the prosecutor to bring the action was not raised, and the injunction was dissolved and the petition dismissed. As to the right to maintain such a suit by a resident taxpayer, while the absence of such right would not change our conclusions, it may be not improper to say that in view of the decision in Weir v. Day, 35 Ohio St. 143, we do not think the existence of such right would be denied.

We think, therefore, the demurrers to the petition should be sustained, the injunction dissolved and the petition dismissed, and such a decree will be entered.

Sater & Robeson, for Board of Education.

Knox, Martz & Rupe, for the bank.

S. V. Hartman, Pros. Atty., J. E. Breaden, Jr., and Anderson & Bowman, for plaintiff.

(The judgment in this case was affirmed by the Supreme Court, October 1, 1895, 34 W. L. B. 185.)

Cotton, Ex'x v. Ashley.

(Seventh Circuit-Ashtabula Co., O., Cir. Court--Sept. Term, 1895.) Before Laubie, Frazier and Burrows, JJ.

COTTON, Ex'x v. ASHLEY.

Common law remedy against attorneys who withhold money or papers from clients-Statutory remedy is cumulative.

Where an attorney has received, by reason of his employment, money or papers belonging to his client, which, after demand, he wrongfully withholds, courts of common pleas have, independent of statute, the right to compel him to pay over or deliver the same to the client, and upon refusal to comply with the order of the court, to punish him for contempt. And such right does not depend upon the fact that the money was collected upon a judgment, or received upon a claim upon which suit has been brought. The right of the court to compel its officers to do their duty has not been taken away by section 564 of the Revised Statutes, providing for summary proceedings against attorneys receiving money for clients and refusing or neglecting to pay the same when demanded.

Error to the Court of Common Pleas of Ashtabula County. FRAZIER, J. (orally).

The case of Alice S. Cotton, executrix of Marvin S. Cotton, deceased, against S. D. Ashley, Esq., attorney-at-law, is a petition in error to reverse a judgment of the court of common pleas.

The proceeding before the court of common pleas was commenced by he filing of a motion which sets out at great length, not only the facts claimed, but also the evidence by which it is proposed to support them; and asks that the defendant, Ashley, be ordered to pay to the plaintiff certain moneys, which it is claimed were received by him in his character of attorney-at-law, and to deliver up certain papers which it is claimed he wrongfully obtained from the minor son of plaintiff in her absence, and which contained memoranda left in possession of her deceased husband, relating to the claims placed in defendant's hands for collection; or that he show cause why he should not be attached for his refusal to do so. VOL. XI-5* (Copyrighted.)

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