Opinion, per WANAMAKER, J.

day has gone by, and gone for good, and the state. is only held now to the substantials of its case, those things that meet the constitutional requirement as to indictments, that the defense has a right to know "the nature and cause of the accusation against him and to have a copy thereof."

The question, after all, is as to whether or not there was a fatal variance between the pleading and the proof as to ownership. Section 13582, General Code, reads:

"When, on the trial of an indictment, there appears to be a variance between the statement in such indictment and the evidence offered in proof thereof, in the christian name or surname, or both or other description of a person therein named or described or in the name or description of a matter or thing therein named or described, such variance shall not be ground for an acquittal of the defendant, unless the court before which the trial is had, finds that such variance is material to the merits of the case or may be prejudicial to the defendant.

The court made no finding "that such variance is material to the merits of the case or may be prejudicial to the defendant," and by virtue of this statute the variance is not fatal until such finding be made.

Greiwe in this case owned and operated a garage. The car in question was stored there, as thousands are every day in Ohio. The real owner of the car may have been out of the city, may have been in a foreign land; but he is entitled to the benefit of the laws of the state for the protection of his car while in the temporary custody of the garage owner,

Opinion Per Curiam.

and indictments that allege ownership in the name of such garage owners are sufficient in law. Greiwe was owner enough to be lawfully possessed, and that is sufficient under this statute as well as under the larceny statute. There was no legal variance. The court was wrong in so finding. The exceptions are sustained.

Exceptions sustained.

NEWMAN, MATTHIAS and DONAHUE, JJ., concur.

THE STATE, EX REL. SYMONS, v. RICE, CITY

AUDITOR.

Municipal corporations — Ordinances — Repeal and enactment Merger of offices of clerk and auditor - Section 4276, General Code (106 O. L., 483) — Bond - Quo warranto.

(No. 15595-Decided July 3, 1917.)

IN QUO WARRANTO.

Mr. D. B. Symons; Mr. G. R. Walsh; Mr. F. M. Stevens and Mr. W. D. Meals, for relator.

Messrs. Stroup, Fauver & Rice and Mr. C. G. Washburn, for respondent.

BY THE COURT. In the absence of a valid provision to the contrary, the council of a municipal corporation having authority to legislate upon any given subject may exercise that authority at will by

Opinion Per Curiam.

enacting or repealing an ordinance in relation to such subject-matter.

The question of the constitutionality of Section 4276, General Code, as amended 106 Ohio Laws, 483, under authority of which the council of the city of Elyria passed the ordinance of November 23, 1915, merging the duties of the office of clerk of council with the duties of the city auditor, is of no importance in determining the rights of the parties to this controversy, since it appears that the council of Elyria passed a later ordinance repealing the provisions of Sections 4, 6 and 10 of the original ordinance providing for the merging of the duties of these offices.

The city council having the right to pass the repealing ordinance, the present rights of the parties to this action must be determined with reference. to the provisions of the existing ordinance, regardless of the provisions of the ordinance repealed, where there are no vested rights under the latter ordinance.

In an action in quo warranto brought by a person claiming to be entitled to an office wrongfully held by another, it is sufficient if the relator shows that he was duly and legally elected or appointed to the office, and gives bond and otherwise qualifies, after the judgment of the court finding that he is entitled to such office, and that the same is wrongfully withheld from him by the defendant, and before he is inducted into office.

This is especially true where the relator has tendered bond as required by the statute, which bond has not been approved for the reason that in the

Opinion Per Curiam.

opinion of the officer authorized to approve the same the relator was not legally entitled to the office.

Judgment of ouster and an order inducting the relator into office.

Judgment of ouster.

NICHOLS, C. J., WANAMAKER, NEWMAN, JONES, JOHNSON and DONAHUE, JJ., concur.

THE STATE, EX REL. MCGHEE, ATTORNEY GENERAL, V. STRAWSBURG ET al.

Small school boards-Short and long terms. - Election of mem

-

Failure to designate period of service.

Sections 4698

to 4702, inclusive, General Code -Interpretation of school laws.

(No. 15600-Decided July 3, 1917.)

IN QUO WARRANTO.

Mr. Floyd A. Johnston, for relator.

Messrs. Zimmerman & Zimmerman and Mr. John M. Cole, for defendants.

BY THE COURT. In this proceeding challenge is made of the authority of the defendants, Benjamin F. E. Strawsburg, Henry L. Schaefer and J. Forest Kitchen, to act in the capacity of members of the board of education of the city of Springfield, it being averred that the defendants have no legal right to hold such office or exercise any of the func

Opinion Per Curiam.

tions thereof, and the prayer is that they be ousted therefrom.

When the law known as the Jung Small School Board law became effective, which was on August 2, 1913, the board of education of Springfield consisted of seven members, the terms of four of whom were to expire in January, 1914, and the terms of the other three in January, 1916. The portions of that law pertinent to the consideration of this case are now Sections 4698 to 4702, General Code. The Springfield city school district comes within the class, which, under the provisions of Section 4698, General Code, is required to have a board of education consisting of not less than three nor more than five members.

By a resolution passed July 14, 1913, said board of education attempted to meet the requirements and comply with the provisions of that act. It was therein determined that the number of members of said board should be five, who should be elected at large; that the three members whose terms did not expire until January, 1916, should hold their positions until that date; that at the general election in November, 1913, there should be elected two members to serve the full term of four years; and that at the election in November, 1915, two members. should be elected for the full term of four years and one for the fractional term of two years. Two members were elected for the full term of four years at the election of November, 1913.

In the election of November, 1915, the defendants and five others were candidates for the office of members of the board of education of such dis