Williams v. State of Georgia. to be patient, and hear what is said? When it is manifest that the discussion is complete, and the subject exhausted, a stop may be ordered. [Omitting minor points. J Judgment reversed. NOTE BY THE REPORTER In White v. People, 8 Cent. L. J. 273, the Supreme Court of Illinois held that upon the trial of an indictment the defendant has a constitutional right to ample time for the argument of his case before the jury, and that a limitation of five minutes to counsel for the defendant on a trial for larceny was unreasonable. The same court said in Meredeth v. People, 84 Ill. 480, that the argument of a cause was as much a part of the trial as the taking of evidence. In People v. Keenan, 13 Cal. 581, the defendant was tried upon an indictment for murder, and the trial court limited his counsel to a speech of an hour and a half, and to this action of the court an exception was taken; at the expiration of the hour and a half the prisoner's counsel applied for an extension of the time, so as to enable him to finish his argument to the jury, but his application was refused, and he again excepted. The case was one depending on circumstantial testimony. The Supreme Court reversed the judgment of conviction, on account of such limitation of the time allowed for argument, and they say: "It is impossible to deny that if the constitutional privilege of being heard by counsel be allowed at all, it must be so admitted as that the prisoner may have the benefit of a complete discussion of all the matters of law and evidence embraced by the case." In Hunt v. State, 49 Ga. 255; s. c., 15 Am. Rep. 677, it was held that it was error upon a criminal trial to limit the prisoner's counsel to forty minutes. In State v. Collins, 70 N. C. 241; s. c., 16 Am. Rep. 771, it was decided that the presiding judge had the right to regulate the arguments by reasonable rules and limita tions, and that restricting counsel upon the trial of an indictment for a capital felony tc one hour and a half was not so unreasonable as to justify granting a new trial. In Dille v. State, Ohio Supreme Court, April, 1879, it was held that the constitutional right of a person accused of a felony, "to appear and defend in person and with counsel," cannot be denied or its exercise unreasonably abridged; but the court may limit the argument of the accused or his counsel, provided the accused is not thereby deprived of a fair trial. So, where on the trial of one charged with a felony, eleven witnesses were examined, and the evidence, which occupied half a day in its delivery, was circumstantial and conflicting, and the accused was defended by two counsel, who were limited by the court to thirty minutes in the argument to the jury, held, that this was an abuse of power which prevented a fair trial. CASES IN THE SUPREME COURT or OHIO. FINCH V. BOARD OF EDUCATION. (30 Ohio St. 37.) Board of education — liability for negligence. A board of education is not liable in its corporate capacity for damages for an injury resulting to a pupil while attending a common school, from its negligence in the discharge of its official duty in the erection and mainten ance of a common school building under its charge, in the absence of a statute creating a liability.* A CTION for damages for personal injuries. The opinion states the case. Haynes & Potter, for plaintiff in error. C. H. Scribner, for defendant in error. ASHBURN, J. This case was disposed of in the Court of Common Pleas on the general demurrer to the reply to the answer. The demurrer was treated in that court, and has been argued here, as a demurrer to the petition. We will consider it in that light. See Hill v. Boston (122 Mass. 344), 23 Am. Rep. 332. Finch v. Board of Education. On the demurrer being sustained, plaintiff took the case on petition in error to the District Court. By that court the case was reserved for decision in the Supreme Court. The ruling error assigned is that the Court of Common Pleas erred in sustaining the demurrer. The question presented on the record is whether the board of education of the city of Toledo, as a corporation, is liable in damages to a scholar, lawfully attending one of the common schools therein, for injuries resulting to such scholar, without its negligence, from the alleged negligence of defendant in the construction and maintenance of the school building where the scholar was in rightful attendance. By the demurrer all facts well pleaded are admitted to be true. Not so, conclusions the pleader has drawn from the statutes, as facts. Will the admitted facts sustain an action against defendant? By article 6 of the State Constitution the State is charged with the duty of providing and maintaining a system of common schools for and throughout the State. In obedience to this constitutional mandate the general assembly, in 1853, passed an act, "to provide for the reorganization, supervision and maintenance of common schools." By its command, each and every organized township in the State is made a school district for all purposes connected with the general interest of education in the township. The general management and control of the common schools, in each of these political divisions of the State, is confided to a body styled a board of education. The constituent elements composing this board are the township clerk and that director of a sub-district who is appointed clerk of the sub-district. This body, and its successors in office, are declared to be a body politic and corporate in law, with capacity to sue and be sued, etc. The purpose of this is to give the common school system uniformity, harmony, unity, and force throughout the State. It is provided in this act, that cities and villages authorized by special acts to elect their own boards of education shall have the exclusive management of their own public schools. By section 67, the Akron school act and amendments together with all other acts, creating or authorizing special school districts, are continued in force. But all such school organizations are parts of the general common-school system of the State. The provisions of the statute preserving their autonomy clearly manifests such intention. Finch v. Board of Education. The school boards and other officers in all special school districts are required by section 67 to make annual reports, such as are required of township boards and other officers. They reach their respective shares of the general common school fund only. "on the order of the auditor of the proper county," who is expressly forbidden to issue such order, "unless the local treasurer, clerk, recorder or secretary of such board or other school officer" has deposited with the auditor the annual "abstract of the enumeration of scholars," etc., "as required by the act of 1853, of teachers, local directors, and boards of education in townships." Keeping in mind that the common schools in the State, whether located in city, village, or county, are the fruit of the Constitution, constituting a general educational system, and providing for the organization, maintenance, and unification of common schools in Ohio, we will examine the claim of the plaintiff and liability of defendant. Plaintiff claims substantially that defendant is a corporation, municipal in its character, so created by statute for the benefit of the city of Toledo, presumably at its request, and conferring upon the inhabitants of that city other and greater powers and privileges than upon the inhabitants at large; that it has power to raise and control the corporate and other school funds raised to carry out and defray the expenses of the common-school system of Toledo; and hence responsible in damages for private injury resulting from corporate negligence. Defendant controverts this claim of its power and liability. The city of Toledo was constituted a separate school district by an act passed March 9, 1849 (47 Ohio L. 207), extending the Akron school law to Toledo. The adopting act having some provisions in it inconsistent with the Akron act, to that extent the Akron statute did not apply to Toledo. April 2, 1866 (63 Ohio L. 200), an act was passed amending and supplementary to the act of March 9, 1849. By it sections 9 and 10, providing for the levy of taxes and their expenditures, were repealed, and supplied by sections one, two and three of the repealing act. As a distinct provision for taxation was made in the Toledo acts of 1866, it necessarily superseded section seven of the Akron act of February 8, 1847, upon the same subject. The two provisions were inconsistent, and both could not be in force in Toledo. Section one of the act of April 2, 1866, limits the levy for school Finch v. Board of Education. houses and sites to one mill on the dollar. Section two limits the annual levy for school purposes to four mills on the dollar. Section three allows an increased levy for the purchase, improvement, or building purposes, when, in the opinion of the board of education, the necessities of the schools under its charge "require the immediate enlargement, or purchase, or improvement of a site or sites, or the erection or enlargement of a school-house or school-houses, involving a required expenditure, in any one year, greater in amount than would accrue and be available for such purpose." Under the first section this necessitous levy is limited to two mills on the dollar, and is ordered to cease when the necessity no longer exists. Section four requires these levies to be certified to the county auditor, to be placed in consolidated form upon the general tax duplicate, to be collected as other taxes. These levies, when collected, were to be paid to the treasurer of the board of education; but, by reason of the requirements of section 67 of the common school act of 1853, no order was authorized to be drawn in favor of such treasurer until certain requirements of the school officers of all special school districts have been complied with. Counsel for plaintiff claim that section seven of the Akron school statute was in force in Toledo at the date of the alleged injury, "making defendant a corporation full and complete, and gives it full control of the corporate funds, including those raised to defray all the expenses of said school system." This claim is not founded on the true condition of the law. The original section seven of the Akron school law required the Akron school board to report to the town council of Akron "the amount of money necessary to be raised in addition to the money accruing to said town under the general school laws of the State, to defray all other expenses of said school system during the current year." Upon receiving this report from the Akron board of education, the town council was required to make the necessary levy, etc. The act of January 28, 1841 (Ohio, 1862, p. 33), amended the original Akron statute. Section 1 limits the levy of the tax to be thereafter "assessed to defray the expenses of the school system" to four mills, in any one year, on the "dollar of the taxable property" in the town of Akron. Section 3 requires the "board of education to make known to the auditor of the county of Summit the amount of tax which they may want levied for school purposes during the current year," etc. Section 4 VOL. XXVII — 53 |