Opinion of the Court.

It is contended by the plaintiffs in error that in the original suit against the Glass Company jurisdiction was not obtained of that company, it being claimed that service was made on one Edgar Berry as the duly elected president of the company, whereas it was claimed that, in fact, no president had been elected. As to this, it is sufficient to say that it appears from the record that the service on the Glass Company was not attacked or questioned in the original action in any manner. On the contrary, that company filed an answer in which it admitted that it was a corporation duly organized under the laws of Ohio, and proceeded to set up matters of defense to the action. This was a general appearance by the defendant, and amounted to a waiver of service.

It is also insisted that the circuit court erred in entering judgment against the incorporators, because it is claimed that no certificate of the subscription of ten per cent. of the capital stock of The Vernonview Glass Company was ever signed by the incorporators and filed with the secretary of state. As already stated, the court found in the original case, and also in the subsequent equity case, that The Vernonview Glass Company was a corporation duly created and organized under the laws of Ohio, and that it became indebted as such to the Foundry & Machine Company in the amount stated. In such circumstances the presumption is that the organization was made in accordance with legal requirements.

But it is contended by plaintiffs in error that this finding and judgment can create no presumption that anything more was done than was neces

Opinion of the Court.

sary to legally organize the company. That is, that under Section 8633, General Code, ten per cent. of the capital stock was subscribed, of which portion, ten per cent., or $650, was payable at the time of the subscription, and that under Section 8634, General Code, the liability of the incorporators is for the amount of any deficiency in the payment of ten per cent. on the stock subscribed, and, therefore, could not exceed $650.

However that may be, in a case in which the question is presented, it cannot avail plaintiffs here. The statute, as it stood at the time of the occurrence of the transactions involved in this proceeding, was included in Section 3244, Revised Statutes, and provided that as soon as ten per cent. of the capital stock was subscribed, the subscribers to the articles of incorporation, or a majority of them, should so certify in writing to the secretary of state, and also contained the provision: "The incorporators of the company shall be liable to any person affected thereby to the amount of any deficiency in the actual payment of said ten per cent. at the time of so certifying." In Hessler v. Cleveland Punch & Shear Works Co., 61 Ohio St., 621, it was held that the liability of the incorporators under Section 3244, Revised Statutes, is for the amount of any deficiency in the actual payment of ten per cent. of the authorized capital stock of the corporation at the time. of their certifying as therein provided, and not merely one-tenth of that amount. In the opinion it is stated that the incorporators are, in effect, made guarantors of the corporation to that amount. The duty of the incorporators, as to the filing of

Syllabus.

the certificates and their liability with respect thereto, is, in addition to the personal liability of each stockholder, to pay for the stock subscribed by him..

The constitution confers upon the legislature authority to provide means to secure the creditors of a corporation. Such provisions are necessary to insure good faith and to secure protection to persons dealing with such organizations.

The judgment of the court below will be affirmed.

Judgment affirmed.

JOHNSON, DONAHUE, WANAMAKER, NEWMAN and WILKIN, JJ., concur.

THE STATE, EX REL. SCHREIBER, CITY SOLICITOR, v. MILROY, PROSECUTING ATTORNEY.

Section 1d, Article II, Constitution-Laws providing for tax levies not subject to referendum-Does not apply to act amending Sections 5649-2 and 5649-3b, General Code-Relative to limitation of tax rate and reorganization of budget commissions-Such enactment not effective for ninety days, when-Constitutional law.

An act to amend Sections 5649-2 and 5649-3b and repeal Section 5649-3, General Code, relative to the limitation of a tax rate, passed April 16, 1913, approved May 6, 1913, and filed in the office of the secretary of state May 9, 1913, is not a law providing for tax levies within the meaning of those words, as used in Section 1d of Article II of the Constitution, and the same cannot go into effect until ninety days after it was filed in the office of the secretary of state.

(No. 14210-Decided June 27, 1913.)

Opinion of the Court.

IN QUO WARRANTO.

Mr. Cornell Schreiber, city solicitor, and Mr. Alonzo G. Duer, assistant city solicitor, for relator.

Mr. Charles M. Milroy, prosecuting attorney; Mr. Timothy S. Hogan, attorney general; Mr. Clarence D. Laylin; Mr. Thomas L. Pogue, prosecuting attorney, and Mr. John V. Campbell and Mr. Charles A. Groom, assistant prosecuting attorneys, for respondent.

BY THE COURT. This is a proceeding in quo warranto brought in this court by Cornell Schreiber, as city solicitor of the city of Toledo, against Charles M. Milroy, as prosecuting attorney of Lucas county.

It is alleged in the petition that the budget commission of Lucas county met on the first Monday in June, 1913, and there were present the mayor of the city of Toledo, the county auditor and the prosecuting attorney of Lucas county and the relator herein, Cornell Schreiber, city solicitor of the city of Toledo; that Schreiber, as such solicitor, demanded that he be recognized as a member of the board of budget commissioners, which right was denied, and it is alleged further that the prosecuting attorney, defendant herein, was illegally recognized as a member of said commission; that he has no right to act as such, but has usurped, intruded into and unlawfully holds and exercises said office. The relator asks that de

Opinion of the Court.

fendant be ousted and excluded therefrom, and that he, the relator, be inducted into said office.

The relator claims the right and title to the office in question under and by virtue of the provisions of an act of the general assembly, passed in April, 1913, approved by the governor May 6, 1913, and filed in the office of the secretary of state May 9, 1913.

This act amends and repeals certain sections of an act known as the "Smith One Per Cent Law." It repeals Section 5649-3 and amends Sections 5649-2 and 5649-3b.

Section 5649-3b, as amended by this act, provides that the budget commission of each county shall consist of three members-the county auditor, the mayor of the largest municipality in the county, and, in counties in which the amount of taxable property in the cities and villages thereof exceeds the amount of taxable property of territory outside of the cities and villages, the third member shall be the city solicitor of the largest municipality in the county.

Defendant denies the right of the relator to act as a member of the board of budget commissioners for the reason that the act in question is not, at present, in effect. In support of his contention, he calls attention to the provisions of Article II of the Constitution. This article provides for the initiative and referendum, and contains the provision that no law passed by the general assembly shall go into effect until ninety days after it shall have been filed by the governor in the office of the secretary of state, except as provided in said article.