#### Mary Diehm, an infant, by Frank Diehm, her next friend, *v.*The City of Cincinnati.

The city of Cincinnati is not liable for the negligence of the “hoard of fund trustees and visitors of common schools,” constituted under the act of January 27, 1853 (51 Ohio L. 503).

Motion for leave to file a petition in error to the Superior Court of Cincinnati.

This was an action brought by the plaintiff against the defendant to recover damages for injuries alleged to have been sustained by the plaintiff by reason of the negligence of the defendant.

The petition alleges that, on the 14th day of March, 1872, the plaintiff, Mary Diehm, was a scholar attending the eleventh district school in the city of Cincinnati, she having *306the legal right so to do ; that the defendant was the owner, possessor, and occupier, for public school purposes, of the building known as the eleventh district school-house; that there was a temporary wooden structure, or door frame, leading into and out of the school-house in that district, which house was undergoing repairs, and was dangerous, the wooden door frame being negligently placed and kept there; and that the plaintiff, in passing through the same, without fault or negligence on her part, but by the negligence of the agents of the defendant, was injured. Eor the damages sustained, judgment is asked for against the city.

It appears sufficiently from the petition that the schoolhouse in question was a common or public school-house, and the school which the plaintiff was attending, a common or public school in the city of Cincinnati. To the petition a general demurrer was interposed by the city. The ■demurrer was sustained by the court, and the petition dismissed.

I3y the provisions of section 32 of the general school law ■of the state, passed March 14, 1853 (2 S. & C. 1346, 1358), the city of Cincinnati is not governed by those provisions which relate to schools in cities and villages; but it is gov■erned by the act of January 27, 1853 (51 Ohio L. 503).

The act of January 27, 1853, in the first section, enacts that the city of Cincinnati is authorized and required, at the expense of the city, to provide for the support and regulation of the common schools of the city in the manner prescribed by the act. The second section of the act requires the election, in each ward of the city, of a trustee and visitor of the common schools of the city, which trustees and visitors, it is provided, shall compose a board of ■education for the city to be denominated “ the board of fund trustees and visitors of common schools.” The third section, among other things, requires this board to meet ■every week.

The fourth section requires such board, on or before the second Monday of May, annually to cause to be certified *307to the city council of Cincinnati an estimate of the amount necessary to he raised in said city for school purposes, not exceeding *two*mills on the dollar upon all taxable property in the city, and also provides that the city council *shall*certify the said amount, so to be raised, to the county auditor, etc.

The sixth section provides that such trustees and visitors shall have authority to purchase in fee-simple (subject to the confirmation of the city council), or receive as a donation for the use of said city, such additional lots of land or sites for school-houses as maybe required for the' several districts, and shall, by the concurrence of the city council, cause to be erected thereon good and substantial schoolhouses ; the purchase money of said lots, and the expenses of erecting buildings thereon, shall be paid out of the common-school funds provided for in the fourth section; and all property so purchased, and all other property heretofore purchased for school purposes shall be held exempt from the general debts of the city, and only liable for debts contracted for common-school purposes.

The seventh and eighth sections require the trustees and visitors to cause to be paid the school bonds and school debts; and all moneys raised in any way for school purposes, are to be kept as a separate and distinct fund, and not applied, paid over or pledged, under any pretense whatever, to any other use than that for which it was levied and collected, nor upon any other order or authority, than'that of the board of trustees and visitors, as certified to by their clerk; and that no money shall be paid out of the city treasury for school purposes, except on a vote of a majority •of all the members of the board.

Nowhere is power'given to the board to levy taxes and pay out moneys for damages sustained by persons injured under circumstances similar to those complained of by the plaintiff.

Another act was passed March 30,1857 (54 Ohio L. 73; 2 S. & C. 1530, sec. 118), giving the council of any municipal corporation, in addition to the foregoing powers, the right *308to borrow mcmey to purchase the necessary grounds, and' for erecting suitable school-buildings for the use of public schools; and requiring that the necessary grounds shall be procured, and such school-buildings constructed, “under the direction of and in accordance with a plan or plans furnished by the board of education of said corporation.”

*C. Yon Seggern*and *J. J. G-lidden,*for the 'motion.

*Warrington, Peek,*and *Kramer,*city solicitors, contra.

By the Court.

The demurrer was properly sustained. The school-house was under the care and supervision of the-board of trustees. This board is created and invested by the statute with the management of the schools and of the-school property. Under the state of legislation, it can not be regarded as the agent of the city, and consequently the city can not be made liable for its conduct.

*Leave refused.*