Hamilton Circuit Court. "6. In all actions under said section, in which the plaintiff shows a right to recover damages actually sustained, the jury may also assess exemplary damages without proof of actual malice or other special circumstances of aggravation. The court, in its opinion, on pages 113 and 114, says: "3rd. Whatever may be the rules of the common law, as to the state of facts necessary to justify the assessment of exemplary damages, it is clear to our minds that exemplary damages may be recovered in any action brought under this section in which the evidence shows a right to recover actual damages. The amount of such damages is left to the sound discretion of the jury, subject to be controlled by the court when such discretion is abused. In actions under this statute the jury, in the exercise of its discretion as to exemplary damages, ought to consider all the circumstances properly before them tending to aggravate or mitigate the conduct of the wrongdoer." As I stated a moment ago, this is a very thin case, and the court below, probably considering that the plaintiff's expenses and counsel fees would be worth $150.00, reduced the verdict to that amount. We think we would not be justified in disturbing the verdict now, since the action of the common pleas court. We therefore think the jury was warranted in giving exemplary damages. The judgment will be affirmed, with costs. A. T. Holcomb and Duncan Livingstone, for plaintiff in error. J. L. Dodge, for defendant in error. LIBEL-SCHOOLS. [Hamilton Circuit Court, January Term, 1897.] Smith, Swing and Cox, JJ. MARY D. NOLAN V. MICHAEL KANE. A COMMUNICATION MADE TO THE APPOINTING POWER CONCERNING AN APPLICANT FOR POSITION AS TEACHER IS PRIVILEGED, A citizen interested in the public welfare, not only has the right, but it is his duty as a citizen to communicate to the appointing power whatever he knows for good or ill concerning one who is an applicant for a position as teacher, and, when such communications are made in good faith, the citizen is protected, even though the statements contained in the communication be not true. ERROR to the Court of Common Pleas of Hamilton county. SWING, J. This is a proceeding in error to reverse the judgment of the court of common pleas. The action below was brought by the plaintiff in error against the defendant in error for libel. The charge of the plaintiff was that defendant, Kane, did publish and present to the superintendent of the public schools and board of examiners for teachers in said schools a communication for the purpose of injuring her, in which were certain false, malicious and defamatory words, viz.: "The Misses Kate and Molly Nolan (meaning thereby the plaintiff and her sister, Katherine C. Nolan) are applicants for teachers' certifi Nolan v. Kane. cates; they (meaning the plaintiff and her sister) have been guilty of unladylike conduct. See the testimony against them." The petition further states, "meaning and charging and intending to charge that this plaintiff has been guilty of unladylike conduct." The petition further alleges that the statements were false; that they were known to be false, and that they were made with express malice against the plaintiff. The defendant answered, setting out that he was a citizen and taxpayer of the city of Cincinnati; that on the 12th day of March, A. D. 1891, he united with other citizens and taxpayers in a petition to the board of examiners of the board of education of the city of Cincinnati, which communication is as follows, to-wit: "In view of the fact that the Misses Kate and Mollie Nolan have made applications for certificates, to entitle them to teach again in our public schools, we believe that their usefulness as teachers has been destroyed by the very fair and impartial hearing before a committee of twelve honorable members of the school board and conviction of the charges produced by the ten or fifteen witnesses. The charges of unladylike conduct were established beyond a question. We therefore ask your honorable body to examine the charges and testimony of said witnesses before granting certificates to the above mentioned parties. (Signed) M. Kane (and eighteen other citizens)." Defendant said, in signing and presenting said petition to said board, he was acting solely for the good of the public schools, and without malice; that he had reason to believe, did then, and still believes the statements therein contained to be true. Plaintiff admitted that the libel charged in her petition is contained in the communication set out in defendant's answer, which was as alleged therein. On the trial of the case, plaintiff offered evidence to prove that she had been a school teacher; that she depended on that vocation for her support; that she was a lady of the highest character, and that she had never been guilty of unladylike conduct; that the defendant had been unfriendly to her; that he had circulated the said petition to said board and presented the same, and that she had failed to be examined for a teacher's certificate. At the conclusion of plaintiff's evidence the court, on motion of the defendant, directed the jury to return a verdict for the defendant. In doing this it is claimed that the court erred. is pro This communication was, in its nature, a privileged one. The citizen, if he acts in good faith, and in a reasonable way, tected. As a citizen he is interested in the public welfare. He not only has a right, but it is his duty as a citizen to communicate to the appointing power whatever he knows for good or ill concerning one who is an applicant for a position as teacher, and when such communications are made in good faith, the citizen is protected, even though the statements contained in the communication be not true. No authorities need be cited to sustain this well settled principle of law. In order to create a liability of the citizen for the making of a communication under such circumstances, it is not only necessary to show the falsity of such utterances, but that it was done from malice. If either of these elements is lacking, there can be no recovery. These elements were set out in the petition, the charge, in substance, being that from malice the defendant charged to the board that the plain Cuyahoga Circuit Court. tiff had been guilty of unladylike conduct, which charge was false and known to be false by defendant. For the purpose of determining the question presented to us by the record, it must be taken for granted that plaintiff produced evidence tending to prove that the defendant was actuated by malice, and that she had not been guilty of unladylike conduct. But was this the issue? We think not. It is true that this evidence tended to prove the allegations of the petition, but plaintiff admits that if any libel was published, it was contained in the matter above quoted from defendant's answer. Does this contain a statement that the plaintiff was guilty of unladylike conduct? As we read it, it does not. The whole of the communication should be read together, and, so read, we think it in substance says that they believe that their usefulness as teachers has been destroyed by the hearing before the committee of the school board, wherein ten or fifteen witnesses were heard on the charge of unladylike conduct, and that the charge was established beyond a question, and the board is asked to examine the charge and the evidence before granting certificates. There was no evidence introduced which tended to prove that there had been no hearing before the board upon the charge of unladylike conduct, or that ten or fifteen citizens had not been heard, or that the evidence of the witnesses did not establish beyond question the conviction. The statement that there had been a "fair and impartial” hearing, and that the charges had been "established beyond a question," appear necessarily from the communication to be an expression of opinion upon the part of the defendant, for he asks the board to examine the charges and the evidence to see whether his statement is not true. A statement that she had been convicted of a charge of unladylike conduct by the evidence of witnesses cannot be construed in being a statement that she had not been guilty of unladylike conduct. It was the conviction beyond question that was charged, and not the truth of the charge that was made. If we are correct in our construction of this communication, there was no evidence which tended to prove its falsity, and the court of common pleas properly directed a verdict for the defendants. John W. Herron and Price J. Jones, for Plaintiff in Error. Thomas McDougall, Willis M. Kemper and Alfred C. Cassatt, for Defendants in Error. MUNICIPAL CORPORATIONS- QUO WARRANTO-LIMITATIONS. [Cuyahoga Circuit Court, June 24, 1897.] Hale, Marvin and Caldwell, JJ. THE STATE EX REL. THEODORE L. STRIMPLE, PROSECUTING THE STATE EX REL. THEODORE L. STRIMPLE, PROSECUTING 1 ACTION IN QUO WARRANTO AGAINST A MUNICIPIAL CORPORATION. If an action cannot be brought against a municipal corporation to oust it from the exercise of a franchise, which it is exercising under an alleged unconstitutional act, then such action cannot be brought against the officers appointed or elected to perform the duties imposed by such act. The State ex rel. v. McBride et al. 2. ACTION TO OUST THE MEMBERS OF THE SINKING FUND COMMISSIONERS OF THE CITY OF CLEVELAND. An action to oust the members of the sinking fund commissioners of the city of Cleveland from the offices which they are now filling, which action is based on the ground of the alleged unconstitutionality of the act of 1862, creating such office, cannot be maintained where the powers and franchises of such office have been exercised for over a period of twenty years since the right of action accrued. 8. VALIDITY OF THE OFFICIAL ACTS OF THE SINKING FUND COMMISSIONERS. If the sinking fund commissioners of the city of Cleveland hold their office by a title unassailable, then their official acts cannot be challenged in a proceeding in quo warranto to oust them from office, and therefore the appointment of the members of the board of park commissioners by such board was an official act which such board was authorized to perform, and the appointment will be held a valid one. 4. COLLATERAL ATTACK UPON THE VALIDITY OF A STATUTE. An action to oust the members of the park board because of the unconstitutionality of the statute creating the appointing board (the sinking fund commissioners) is a collateral attack upon the validity of such statute, and cannot be made in this proceeding. 5. CONSTRUCTION OF SECTION 6789, REVISED STATUTES. The limitation, as provided for in section 6789, Revised Statutes, applies to an action brought by the state, where the purpose and object of such action is simply to oust a corporation from the exercise of a franchise or power conferred upon it by an act of the legislature. 6. JURISDICTION TO OUST A MUNICIPAL CORPORATION. Jurisdiction in quo warranto exists to oust a municipal corporation assuming to exercise a franchise not conferred on it by law, providing such proceeding is brought against the corporation within the time limited. After the time limited, it cannot be brought. 7. OFFICER DE FACTO. A person holding an office, the existence of which is supported by no color of law, is not an officer de facto, but one holding an office created, or attempted to be created, by an act unconstitutional may be an officer de facto. HALE, J. These cases are proceedings in quo warranto commenced in this court, the object of the first action being to oust the members of the sinking fund commissioners of this city from the offices which they are now filling; and in the second case, to oust from the office which they are now enjoying, the members of the board of park commissioners of this city. As the ground for the judgment asked in the first case, it is claimed that the act of the general assembly of 1862, by which the office of sinking fund commissioners was created and the incumbents appointed, is wholly unconstitutional and void, and therefore the different members of that commission hold their office without any warrant of law. In the second case, the members of the board of park commissioners, whom it is sought to oust from their office, were, under a statute of the state, appointed by the sinking fund commissioners, and the claim is that the latter, having no legal existence, had no power to act in the premises; and therefore the appointment of the members of that board is wholly illegal and void. Answers have been interposed in each case by each of the defendants, to which demurrers have been filed by the plaintiff; and the question submitted is, whether any of the defenses contained in these answers Cuyahoga Circuit Court. states facts sufficient to constitute a defense to the cause of action or information alleged in the petition to which answer is filed. The second and third defenses in the several answers of the members of the sinking fund commissioners, as appears in the answer of William Bingham, to which we refer, interposes the limitations to the authority to bring the action in quo warranto contained in section 6789, Revised Statutes of Ohio. That section reads: "Section 6789. Nothing in this chapter contained shall authorize an action against a corporation for forfeiture of charter, unless the same be commenced within five years after the act complained of was done and committed; nor shall an action be brought against a corporation for the exercise of a power or franchise under its charter which it has used and exercised for a term of twenty years; nor shall an action be brought against an officer to oust him from his office, unless within three years after the cause of such ouster, or the right to hold the office, arose.' It is asserted by counsel for the plaintiff that this statute has no application to the case at bar. It was claimed on the hearing, as we understood it, that there is no jurisdiction in quo warranto to proceed against a municipal corporation exercising a franchise not conferred upon it by law. This jurisdiction, however, has been twice, at least, exercised by the supreme court of the state: The State ex rel. Attorney General v. Cincinnati, 20 O. S., 18, and State ex rel. v. Cincnnati, 52 0. S., 419. In the first case, the information was filed in the supreme court on the relation of the Attorney General to test the right of the city of Cincinnati to use and enjoy certain privileges and franchises assumed to be conferred upon that city by an act passed April 16, 1870, and entitled, "An act to prescribe the corporate limits of Cincinnati." The court found the act to be unconstitutional, and entered a judgment of ouster. The case of State ex rel. v. Cincinnati, supra, was a proceeding to test the constitutionality of an act authorizing a city of the first grade of the first class to annex contiguous territory to the city. The court took jurisdiction of the case, sustained the law, dismissed the petition and refused the judgment of ouster. It would hardly do, then, for this court to adjudge that the supreme court in these cases acted wthout jurisdiction. Whatever may be the law elsewhere, certainly, in this state, jurisdiction in quo warranto does exist to oust a municipal corporation assuming to exercise a franchise not conferred on it by law. It is claimed, however, even if the action may be maintained against a municipal corporation for the purposes named, there is no limitation to such action when brought by the state That the statute above quoted does apply to actions brought by the state against corporations other than municipal, has been adjudged by the supreme court, in the case of State ex rel. v. Standard Oil Company, 49 O. S., 137, 158. It is said, however, that in the case of Ohio ex rel. v. Railroad Com pany, 53 0. S., 189, it has been determined otherwise. It is true that the court held that the statute, section 6789, did not apply to the facts of that case. The holding was that the city of Cincinnati was occupying lands belonging to the state without any color of right whatever; that the action was not to oust the city from the exercise of a power or franchise, but from the privilege to occupy land belonging to the state. On page 241, in a discussion of the case by Judge Bradbury, he |