Citations
- 152 Ohio St. 77
Full opinion text
Turner, J.
We are here presented with a shotgun attack on the Court of Appeals’ decision and judg- . ment.
At one point in the brief of appellant (who was plaintiff below) it is said:
“The original action by appellant, the plaintiff, was based on two principal contentions, first, that the proceedings of the joint township hospital district •board of trustees with reference to the organization of said district and the issuance of bonds were not in conformity with the statutes and were, therefore, unlawful and void and, secondly, that the provisions of General Code Sections 3414-1 et seq., providing for the creation of a joint township hospital district are unconstitutional and void.”
A little later in the brief appellant says:
“Plaintiff’s [appellant’s] contentions in the instant case fall under two main headings :
“1. That the defendant board [joint township hospital district board], in its proceedings for election and issuance of the bonds in question, has disregarded the mandatory provisions of the Uniform Bond Act, and that such proceedings are therefore unlawful and void.
“2. That the township district hospital act (G. C. Sections 3414-1 et seq.) are unconstitutional and therefore the proceedings thereunder for issuance of the bonds in question are unlawful and void.”
However, the actual challenge in the many pages of the briefs is still wider.
The case was tried de novo in the Court of Appeals. Even a new pleading to conform with the evidence in the Court of Appeals was filed. Where a transcript of the evidence in a tidal court is the basis of the decision in the Court of Appeals, the finding, opinion and journal entry of the judge of the Common Pleas Court, are usually helpful. However, as here, where the transcript from the trial court is abandoned and a new record is made, the proceedings in the Common Pleas Court are of little or no help. Notwithstanding, .appellant’s briefs contain much reference to what took place in the Court, of Common Pleas.
In its decision, the Court of Appeals said:
• “In consideration that grounds for injunction existed at the time the action was commenced in the Court of Common Pleas of Auglaize county, Ohio, * * * such grounds do not now exist by reason of correction of defendants’ records * *
Appellant’s contentions are based largely upon the claim that neither exhibit “7” nor exhibit “8” should have been admitted in evidence and that without such exhibits there was nothing upon which to base the judgment of the Court of Appeals. We hold that exhibit “7” was properly admitted as a part of the record and exhibit “8” was properly admitted as a nunc pro tunc correction of the record.
The Court of Appeals’ finding in regard to the record of the board’s proceeding is set forth in the decision as follows:
“Under the first complaint we find that at a special meeting of the joint township district hospital board, held at St. Marys, Ohio, on Friday, March 26, 1948, the records of the hospital board were corrected to conform with the actual truth. At this board meeting all of the members of the board present voted by unanimous action and the minutes were corrected in conformity to what had actually happened, and in •compliance with the statutes relating thereto. * * *
“This court specifically finds that the record, as •amended, presents the real facts and shows that the board acted in accordance with law. * * *
“No real defect existed in the original resolutions and the voters were not confused by the notice of •election or by the ballot issued to them which were in no wise contradictory.”
Much time was used in the argument and much space in the briefs is devoted to exhibits “7” and “8.” Exhibit “7” is a part of the record of the joint board. According to the testimony of the assistant to the secretary, the records of the board were kept in two books, the minutes of the board being kept separate from the resolutions. There is no provision which requires all the record to be kept in a single book. Indeed, keeping the minutes separate from the resolutions appears to be a reasonable practice.
While appellant claims that the connection between the different parts of the record was established by parol, appellant does not question the use of parol to identify an exhibit but does question the use of parol to supply an omission in the written record of reference to other exhibits which are sought to be linked by parol as a part of the same record. There was no violation of the parol-evidence rule but simply an identification of the different parts of the record.
Appellant contends that exhibit '‘7,” which was exhibit “B” in the Court of Common Pleas, and appellant’s exhibit “8” cannot be reconciled. This overlooks the fact that exhibit “8” is a nunc pro iunc record of what actually happened.
The Court of Appeals found specifically that the record as set forth in exhibit “8” presents the real facts and shows that the board acted in accordance with law.
Harry Freet testified that he was chairman of the hospital board and served as assistant to the secretary and as such had charge of the records of the board. On cross-examination Mr. Freet was asked:
“Q. Then you go through appellant’s exhibit 7 and tell the court which of those sheets constitute your original records other than your minute book? A. I will say all original record. ’ ’
Mr. Freet was also asked:
“Q. I now hand you defendants-appellants ’ exhibit ‘8’ and ask you to state what that is? A. This is the original copy of the meetings, resolutions and procedure of the hospital board * *
Later, Freet was asked by the court in respect of ex-Mbit “8”: “Does that correctly state the facts that actually happened on September 4? By the witness: Yes, sir.”
In the opinion in the case of Village of Vinton v. James, 108 Ohio St., 220, 231, 140 N. E., 909, Judge Allen made the following observations which are pertinent here and in keeping with the holding in that case:
“The question further arises whether, in such a case as this, where the court has specifically found that council did comply with the law, a record of that fact can be made after the proper time for record, in order that the action of council may have validity. * * *
“It is in accord with the spirit of-the law to permit the amendment of errors in records after the proper time for the making of the record has passed. Nunc pro tunc entries are authorized in courts when the proof is that the written memorial does not accurately reflect the facts, 15 Corpus Juris, p. 975, et seq.
“Records of administrative and legislative bodies are allowed to be changed, after the time when they should have been made, in order to conform with the actual truth.” See, also, 35 Ohio Jurisprudence, 27, 43, Sections 24 and 38.
In 37 American Jurisprudence, 678, Section 65, it is said:
“After the record has been amended, it is entitled to the same respect as an original record. The only remedy of a person who is injured by such amendment and claims that the original entry was correct is by a direct proceeding to have the minutes as amended annulled, and the original minutes restored. While the amended minutes remain, they cannot be impeached or varied in a collateral proceeding.”
We have carefully examined the various claimed defects in respect of these exhibits and find no prejudicia] error in the action of the Court of Appeals.
The Joint Township District General Hospital Board of the Joint Township Hospital District Consisting of German, Jackson, Noble and St. Marys Townships in Auglaize County, Ohio, was organized under authority of Section 3414-1, General Code (119 Ohio Laws, 354), effective August 21, 1941, which provides:
“The trustees of any two or more contiguous townships in any county may by a two-thirds favorable vote of each of said board of trustees, form themselves into a joint township district hospital board for the purpose of establishing, constructing and maintaining a joint township district general hospital, and aforesaid contiguous townships wherein said two-thirds favorable votes shall have been taken, shall become and be a part of a joint township hospital district.
“Said joint township district hospital board shall organize within thirty days after the favorable vote shall have been taken by the last board of trustees joining themselves into said joint township district hospital board, and the president of the board of township trustees of the most populous township participating shall give notice of the time and place of organization, to each of the members of the boards of trustees of each and every township comprising said joint township hospital district, which notice shall be signed by the president of the board of trustees of said most populous township comprising the hospital district, and be sent by registered mail to each and every member of the boards of trustees of the townships affected, at least five days prior to said organization meeting, and said meeting shall be held in one of the townships participating. All members of the boards of township trustees of all the townships so participating, shall comprise the joint district hospital board. For the purpose of this act two-thirds of all the duly elected township trustees of the townships constituting said joint township hospital district shall constitute a quorum for the transaction of any and all business. Said members of the respective boards of township trustees shall proceed at said organization meeting with the election of a president, secretary and treasurer, and such other officers as they deem proper and necessary, and shall transact such other business as may properly come before said board.”
The hospital district board involved adopted resolutions providing for an election on a $500,000 bond issue at the regular election, November 5, 1946. Such election was held and resulted in the casting of 3,093 votes in favor of the bond issue and 1,393 votes against it.
While evidence and procedure in the Court of Common Pleas are argued extensively, it must be remembered that our review is limited to the record made in the Court of Appeals on the trial de novo.
We agree with the Court of Appeals wherein it is said in its decision:
“Records of administrative and legislative facts are allowed to be changed after the time when they should have been made, in order to conform with the actual truth. * * *
“Where there is a substantial compliance with the statutory requirement and there is nothing to indicate that the result of the election might have been different had there been full compliance the election will not he invalidated. ’ ’
The assistant to the secretary was asked:
“Q. At that meeting [March 26] your board passed or attempted to pass resolution correcting their minutes as of a date preceding the date the suit was filed? A. That’s right. Correct minutes of September 4.
“Q. Were the minutes of any other meeting attempted to be corrected at that meeting of March 26, last Friday? A. Of the fourth and also asked that our resolution — we passed the resolution to correct the minutes of September 4 so they would read in compliance with the resolution that was passed. 1 am only a layman and I did not get all the necessary facts of the meeting and I made some mistakes and I explained to the board and that was their resolution to go ahead and correct those minutes.”
Accepting the nunc pro tunc record as considered by the Court of Appeals, we pass to the question whether there was compliance with the Uniform Bond Act.
Section 3414-2, General Code, being part of the Joint Township Hospital Districts Act, provides in part :
“Such bonds shall be issued and sold under the same manner and conditions and within the limitations prescribed by the Uniform Bond Act, Sections 2293-1 to 2293-86, inclusive, of the General Code of Ohio.”
Appellant in argument proceeds upon the theory, contrary to the finding of the Court of Appeals, that there was an incorrect certification of the record and that the correcting of the record was a flaunting of the authority of the Court of Common Pleas. While it is hardly material here, it may be pointed out that the journal entry of the Court of Common Pleas does not forbid the board correcting its records or forbid the passing of a proper bond resolution.
Appellant says:
“Although the hospital sections (G. C. Sections 3414-1 ei seq.) are silent on this matter of records as well as on so many other matters, yet they do expressly require that the Uniform Bond Act be complied with.”
One of the sections of the Uniform Bond Act cited by appellant to be complied with is Section 2293-30, General Code, which provides:
“It shall be the duty of the clerk, or other officer having charge of the minutes of the taxing authority to furnish to the successful bidder for its bonds, a true transcript certified by him of all ordinances, resolutions, notices, and other proceedings had with reference to the issuance of said bonds, including a statement of the character of the meetings at which said proceedings were had, the number of members present, and such other information from the records as may be necessary to determine the regularity and validity of the issuance of said bonds; and it shall be the duty of the auditor or other officer, having charge of the accounts of said subdivision, to attach thereto a true and correct statement certified by him of the indebtedness, and, of the amount of the tax duplicate thereof, and such other information as will show whether or not said bond issue is within any debt limitation imposed by law.” (Italics ours.)
This section is for the benefit of the successful bidder of the bonds and no complaint has been made in this case on his behalf.
Appellant, upon examining the record to be as found by the Court of Appeals, claims the following errors:
“A. The corrected minutes show that all three of the initial and interdependent resolutions were passed at the same meeting contrary to the provisions of the Uniform Bond Act.
“B. The notice of election remains ambiguous and uncertain in a material matter.
‘ ‘ C. The resolutions, upon which the county officials acted and upon which the election was actually held, remain uncorrected and admittedly defective in a material matter. ”
As to the telescoping (i.