text:
    AN INVALID ACT RELATING TO SEWAGE DISPOSAL.
    Circuit Court of Darke County.
    The City of Greenville v. M. G. Demorest et al.
    Decided, April 28, 1911.

      Constitutional Law — Invalidity of the Act Requiring the Purification of Sewage and Protection of Streams from Pollution — Classification of Subjects and Uniformity of Operation — Sections 12J/0 et seq:, General Code, and Section 26', Article II of the Constitution.

    1. Section 1249, et seq., General Code, authorizing the state board of health to require the purification of sewage and public water supplies and to protect streams against pollution, lacks uniformity of operation by reason of the exception which is made of Ohio river cities from the operation of the law under certain conditions; and the invalidity of the exception is of such a character-as to affect the entire act and bring it within the inhibition of Section 26 of ' Article II of the Constitution.
    ■ 2. Moreover the penalty clause, directed at members of council for failure to take the steps required to carry out the. orders of the state board of health, is also open to constitutional objection for the reason that it is directed against a legislative body and is destructive of the fundamental theory of government in that it substitutes to that extent the state board of health as the governing board in the place of council.

      I). W. Botvman and J. G. Elliott, City Solicitor, for plaintiff.
    . T. S. Hogan, Attorney-General, and Chas. G. Marshall, special counsel for' defendants. ,
    Allread, J. (orally); Dustin, J., and Fernbding, J., concur.
   This action is bro.ught in behalf of the city of Greenville by its city solicitor against the members of council, and certain other administrative officers of the city, the state board of .health, and its members, to enjoin action to establish and construct a sewer disposal plant and make the levy of taxes and issue of bonds therefor,'under authority of the act of April 7th, 1908 (99 Ohio Laws,.74;' General Code, 1249, et seq.), the act being entitled, “Ah act to authorize the State board of health to' require the purification of sewage and public water supplies and to protect streams against pollution.”

This action originated in the court of common pleas, and upon final judgment in that court was brought here on appeal. The case stands upon demurrer to the amended petition.

The amended petition is in three causes of action and goes into detail as to proceedings and the situation of the sewage, water supply, and stream into which the sewage flows, and the .effects thereof upon the health and comfort of the citizens in the vicinity of the stream.

Among the averments of the petition under consideration it appears that the city of Greenville in the years 1890 and 1891 constructed and has since maintained a system of sewers emptying into Greenville creek, and that upon petition of the township trustees of Greenville township proceedings have been had under the act of 1908 resulting in an order of the state board of health, approved by the Governor, and Attorney-General, to the city of Greenville “to purify its sewage in a manner satisfactory to the state board of health.” That the plans contemplated by the state board of health is a “sanitary sewage disposal plant,” involving an expenditure of about $35,000 and a maintenance cost of about $3,000 annually. That this expenditure -can only be met by a bond issue, and that the members of council and city officials are about to act solely in obedience to the orders of the state board of health and in fear of the penalties provided for in the act.

The main question argued and presented by counsel relates to the constitutionality of the act. The act contains in section one the following exception or proviso:

“Provided that no city or village that is now discharging sewage into any river which separates the state of Ohio from another state shall be required to install sewage purification works as long as the unpurified sewage of cities or villages in any other state is discharged into said river above said Ohio city or village.”
It is contended that this exception brings the act within the inhibition of Section 26, Article II of the Constitution, which , provides-that “all .laws of a general nature shall have a uniform ••operation throughout the state,” • -. •

' That this act in relation to the public health is one of a general nature is clear, and the question in this respect is whether the act has a uniform operation throughout the state. To have a “uniform operation throughout the state” does not prevent reasonable and just classification of subjects. To hold against reasonable and just classification would greatly restrict the efficiency of legislation.

It is also clear that in testing legislative classification doubt must be resolved in favor of the act; but where the classification is colorable, arbitrary, and not founded upon reasonable distinction, the courts are bound to enforce the constitutional provision and declare the repugnancy of the act.

The case of City of Cincinnati v. Steinkamp, reported in 54 Ohio State, on page 284, involving an act of the Genéral Assembly in reference to fire escapes on buildings of three or more stories, was limited to cities of the first grade of the first class. It was contended in that case that the act was invalid because of the drastic terms of its provisions and also because it was in violation of the uniformity clause of the state Constitution. The court held in favor of the act upon the first contention, but held it to be uncoústitutional because it was in violation of -the uniformity clause, being confined to the city of Cincinnati. It was distinctly held that the law, affecting the public safety, was one clearly of a general nature and should have a uniform operation throughout the state, and that a classification of a single city, would not be reasonable in view of the fact that other three story buildings in other cities throughout the state were just as much entitled to the protection of this act as the city of Cincinnati. Judge Spear in the opinion in this case cites from Boynton, Judge, in the case of McGill v. State, 34 Ohio State, in relation to the drawing of juries, as follows:

‘ ‘ The difficulty encountered in all cases where a legislative act is alleged to contravene the provisions requiring the uniform operation of law of a general nature, lies in determining what constitutes a law of that nature, within the meaning of the Constitution. The test is said to depend upon the character of its subject-matter; that if that is of a general, as distinguished from a local or special nature, existing in every county throughout the state, a subject in which all the citizens have a common interest, then the law is one of a general nature, requiring a uniform operation throughout the state.”

Says Judgé Spear:

“ ‘Existing in every county throughout the state’ means, we suppose, only in every county where the conditions of the statute exist, for in order to be general and uniform in operation it is not necessary that the law should operate upon every person in the state, nor in every locality; it is sufficient, the authorities coincide in, holding, if it operates upon every person brought within the relation and circumstances provided for, and in every locality where the conditions exist. But, upon the other hand, it seems equally well settled, a law is not of uniform operation if it exempts a portion of those coming within its terms; that is; if it confers privileges, or imposes burdens, upon some of a class answering a description which are not conferred or imposed upon all others belonging to the same category.”

. In the case of Costello v. Wyoming, reported in the 49th Ohio State, page 202, a case arose under an act of the General Assembly providing for a special method of constructing sidewalks and assessing the cost in villages situated within a county having a city of the first grade of the first class. In other words, the Legislature undertook to classify villages because of their location in a county in which a city of the first grade of the first class was located. The Supreme Court held that that was unreasónáble classification. That there was no reason why a village should have a different system of sidewalk construction from other cities and villages simply because of the fact that it was located in the samé county with a city of the first grade of the first class. In discussing this proposition Judge Diekman, on page 208 of the opinion, says:

“It has.been said that, ‘The mode and éxtent of. classification is' left to the conscience of the Legislature — its sense of right and public necessity.’ But it is now settled beyond controversy that the constitutional provision above referred to is má’; 'datóry and. that a failure on the part, of the Legislature to obs’erve it will' be fatal to" the validity of a statute.' Whether or not the classification is authorized by the Constitution is for the courts to determine. The people in their wisdom, by prescribing in the Constitution a fixed rule of uniformity for the operation of laws of a general nature, have thereby imposed a limitation upon special legislation, and such limitation can not be broken down or overstepped under the guise of classification. In affirming the principle that classification can not be sanctioned as a pretext for evading the limitation upon special legislation, it was said by Sterritt, J., in Ayer’s Appeal, 122 Pa. State, 266, 284, in language pertinent of this case: ‘Whether, in any given case, the Legislature has transcended its power and passed a law in conflict with that limitation is essentially a question of law and must necessarily be decided by the courts. ’ ’ ’
' On page 211 he says: ‘ ‘ The requirements for village classification in view of the enactment of laws which shall have a uniform operation throughout the state, will not be satisfied by adopting any common mark or feature that will serve to classify. It was stated by Beasly, C. J., in State v. Hammer, 42 N. J. Law, 435, 440, that a law may be general in its provisions, and may apply to the whole of a group of objects having characteristics sufficiently manifest and important to make them a class by themselves, and yet, the marks of distinction on which the classification is founded may be such, that the law may be in contravention of a constitutional provision prohibiting the enactment of special laws which regulate the internal affairs of towns and cities. If all that is requisite for the purpose of legislation is to designate villages by some quality, no matter what it may be, 'which will so distinguish them as to mark them as a distinct class, the constitutional restriction in regard to the uniform operation of laws of a general nature, would be of no avail, as there are few objects that can not be arbitrarily associated. The objects grouped for classification should be distinguished by character isties sufficiently marked and important to make them a class by themselves. ’ ’

In the case of Gentsch v. State, 71 Ohio State, 151, Judge Davis of the Supreme Cuort discusses this same question. From the syllabus we find this rule to be laid down:

“Classification is often proper and sometimes necessary in legislation, in order to define the objects on which1 a general law is to take effect and in order to definitely apply and effectuate the purposes of the legislation; but when classification is unnecessary, arbitrary, fictitious or otherwise falsely made, and is used to evadé the constitutional limitations under the form of general legislation, such legislation in relation to a'class may Be both special and unconstitutional.”

And in the opinion on page 165 he says:

“The reported decisions of this court abound with cases of false classification in acts obviously drawn with the purpose of enacting special laws under the guise of general laws. ’ ’

We have taken some pains to cite from the authorities upon this proposition because it is important to know how far the courts are required to go in the‘consideration of special acts to enforce the uniformity clause of the state Constitution and to determine when classification is justifiable and when it is not justifiable.

It is contended on the part of the state that the exception of-the Ohio river cities is legitimate classification for two reasons: (1) Because the boundary of the state being at low water mark on the northwest of the Ohio river, it has no proprietory interest in the waters of the river; and (2) because the exception is based upon the contamination of the waters of the Ohio river by flowage from the cities and villages upon the other shore. As to-the first, it clearly appears from the title of the act and its context that the purpose of the act was to purify the water sup-’ ply and protect the inhabitants from noxious odors .and the impure water. The state of Ohio has riparian rights in the waters of the Ohio river. Many cities and villages are located upon the Ohio river and the state is bound ¿to protect those of its citizens who live along the Ohio river as well as those living on other rivers, streams and waters throughout the state. Furthermore, the exceptions exist only so long as other “unpurified sewage of cities and villages of any other state is discharged” in the river. It is therefore apparent that, the manifest purpose of this act was not to exclude Ohio river cities upon the ground that it had no jurisdiction over the waters of the Ohio, but because of the facts stated in the second ground. It follows therefore that the classification can not be sustained upon the first ground, but must be upheld, if at all, upon the second ground stated, -namely, the fact that the waters are eontaminated by the sewage from other cities and villages over which the state of Ohio has no. jurisdiction. .

It must be conceded that' the contamination- of a water supply from the other shore over which the state has no jurisdiction, and so that the purification of sewage on this side would be of little or no avail, would justify an exception. A good ground for the classification and exception would be found in the futility of the proceeding.

But an analysis of the excepting clause carries the exception far beyond any reasonable necessity.

The Ohio, which is the only boundary river, extends for three hundred or more miles along the eastern and southern boundary of the state and along thirteen counties, and upon its banks are many large and populous cities of this state. The exception exempts all these cities from the act so long as the '‘unpurified sewage of cities or villages in-any other state is discharged into said river above said Ohio city or village.”

Now, we may take judicial notice that three states lie along the Ohio river whose cities may and do discharge sewage into the Ohio river above Ohio cities. Under this exception if the cities or villages of any other state flow sewage into the river the cities below, regardless of distance or possibilities of contamination, are included in the exemption. Take for instance the city of Cincinnati. If all the Kentucky cities and villages are prevented from flowing sewage into the Ohio, yet the fact of flowage from-West Virginia or even Pennsylvania exempts Cincinnati. Besides, the act exempts those Ohio cities “now flowing sewage,” etc. A city hereafter constructing a sewer system draining into the Ohio river comes within the provisions of the .act and is bound to purify its sewage, notwithstanding contamination from the other states, and although another city of the same character is exempt.

This classification can not, in our opinion, be sustained.

It is urged that the exception and not the act should be stricken down as unconstitutional. Some difficulty- always arises in de: eiding when an exception or limitation should be held void and when the main act is to fall.

In the case of State, ex rel Wilmot, v. Buckley et al, 60 Ohio State, 296, there is a discussion of this question. The question there was as to the validity of the registration law, which was confined to all of the cities of the state except Mansfield and the cities of the fourth grade of the first class, and the court held that the act was not of uniform operation throughout the state. In the opinion it is said:

"It is urged, however, that if this exception makes the act unconstitutional, the exception should be disregarded, and the act held valid as operating uniformly throughout the state. The answer to this is that the court has no law making power, and can not extend a statute over territory from which it is excluded by the General Assembly. A court can hold a whole act unconstitutional because it is not broad enough, that is, because it is not of uniform -operation throughout the state; but it can not extend an act which is too narrow, so as to take in territory which was left out by the General Assembly. In the case of an exception, the General Assembly never enacted the statute in the excepted territory, and the court has no power to enact it therein.”

The same proposition was up in the case of State v. Lewis, reported in Vol. 74 Ohio State, page 403, involving the validity of the tax inquisitor law. Under an act of 1885 the county commissioners were authorized in certain counties of the state to employ a tax inquisitor on certain terms. The act of 1888 created a general authority for the commissioners in any county of the state to appoint a tax inquisitor at a certain compensation, but in Section 4 of the act there was a provision that this act of 1888 should not affect the provisions of the act of 1885. Now, it was contended that inasmuch as this was a separate section which provided that it should not affect the provisions of the act of 1885, the separate section should be declared invalid, -and the main act extended to cover the entire state, just as it was argued in this case that we should hold this provision excepting the Ohio river cities unconstitutional and eliminate it from the act and leave the act one in general operation throughout the state. The court held in that case that Section 4 was manifestly an exception and qualified Section 1. In this case the exception^ is in Section 1 and manifestly an exception. The reason for this is given in the ease of Friend v. Levy, 76 Ohio State, page 50, That was a repeal of the direct inheritance law. In the repeal it was provided that estates in which the inventory had been filed were excepted from the repeal. The Supreme Court held that that exception was invalid, and this observation is made:

“The exception being void, the question arises whether the whole act must be declared unconstitutional. The rule of construction is that, where the void parts of a statute were evidently designed as a compensation for, or inducement to, the-valid portions .thereof, so that the whole taken together warrants the belief that the Legislature would not have passed the valid portions alone, the whole statute should be held inoperative.”

So in this case we are not able to say that the Legislature would have passed this bill if the Ohio river cities had not been exempted' from its burdens.

We are therefore of the opinion that the last clause of Section 1 is an exception and not a limitation. That there is a clear intention in the act not to extend its provisions to the Ohio river cities, and that to do so by interpretation would be judicial legislation.

The duty of the court is to construe the act as.clearly intended, and so construed it is not of uniform operation throughout the state and is therefore unconstitutional.

There is still another constitutional objection. The penalty clause (Section 6) prescribes a penalty of $500 against individual members. of council for failure to take the steps required or to carry out any order of the state board of health. This in effect stifles the judgment of the local governing board and taxing authority. Such a penalty might legally be charged against an-administrative officer, having only administrative duties, but to do so against members of a legislative body is destructive of the fundamental theory of our government and substitutes the state board as the real governing board. (Sanning v. City, 81 Ohio State, 142.)

It is true that the penalty clause is not directly in issue in this case, but it is properly before the court by the averment that the state board is '-threatening to resort to the penalty clause and that members of the council are about to act solely under force of such threats.

We do not express an opinion as to whether or not the unconstitutionality of Section 6 destroys the whole act, yet conceding that it only applies to the penalty clause we feel justified in expressing our opinion as to this section, in view of the allegations of the amended petition above referred to.

It is not necessary to express an opinion as to the other points made in argument further than to say that the court is inclined to uphold drastic measures provided by the General Assembly for the public health and public safety where the enactment is made in pursuance of the general grant of legislative authority, but such enactment must not be repugnant to any specific provision of the Constitution designed for protection of the people at large.

It follows that in our opinion the act under consideration is unconstitutional and void.

The demurrer to amended petition is therefore overruled.


source: Caselaw Access Project

license: Public Domain

text:
    ALLEGED UNFAIR. IMITATION OF A BRAND OF SOAP.
    Circuit Court of Hamilton County.
    The M. Werk Company v. The Ryan Soap Company.
    Decided, May 13, 1911.

      Unfair Competition — Brand of Soap Identified by a Tag — Imitation of the Tag and Markings Charged — Failure of Evidence that the Public Were Deceived by the Alleged Imitation.

    Unfair competition is not established by proof of similarity in form, dimensions or general appearance, or where the.features imitated were those shared with the trade generally, and there is a failure to show that the public was deceived by the said imitation.

      Hosea & Knight, for plaintiff in error.

      Gogan & Williams, contra.
    Smith, P. J.; Swing, J., and Jones, J., concur.
   Upon a careful consideration of the evidence together with the pleadings and the numerous authorities cited by counsel for plaintiff and defendant in error, the court is of the opinion that the judgment of the trial court is correct and that the same should be affirmed.

The claim of the plaintiff in error is, that for a long period of time prior to the filing of its petition herein for injunction it manufactured soap of a yellowish brown color with its name stamped thereon, and as its business increased it adopted and applied to the face of the soap of its manufacture a tag of harder material and differing in color from the soap, impressed.in the face of the bar, and caused it to be identified by this tag; and that the public generally have come to know and call for plaintiff’s, goods as “Tag Soap,” and .to further protect tself-and the public, it devised a method of redeeming the said tags in the. hands.of the purchasers of its product. That by this means this tag soap has become familiar throughout the’ country for the good quality of the»article manufactured by it and that the means of thus identifying its goods is the exclusive property of' plaintiff.

That the defendants in error are the manufacturers of a soap called “White Home,” and for the purpose of obtaining an unfair advantage over plaintiff, placed upon the market and are still maintaining a soap closely resembling plaintiff’s products in color, form and size of cake, and containing on one side or face thereof a tag of hard material impressed in the bar in connection with letters sunken into the face in such a way as is calculated to deceive an intending purchaser desiring to purchase tag soap, and that the defendant has o adopted the method of redemption of its tags in the same manner as done by plaintiff, all of which acts, on the part of defendant, cause the public to regard defendant’s soap as tag soap, tending to the confusion of the trade and deception of the public, and that these acts on the part of the defendant constitute unfair competition in trade.

The answer of the defendant and the evidence discloses that the bars of soap of the plaintiff bear the words sunken in the face thereof “Werk Co. Soap, Cincinnati, Ohio,” and also a round metal tag which is sunken into the face of said bars near the lower right hand corner, and that the metal tag bears the words “Werk Soap”; that upon the face of the defendant’s soap there is sunken into the face of each, the words “Ryan’s White Home, Device Pat. App’d For,” together with a paper tag square in shape sunken into, the face of the bar near its center, in such a position as to give the appearance of a diamond shape, blue in color, and with, the words printed upon it together with a picture of a house “Save the Home,” “For Presents,” “Ryan Soap Co. ”; that its bars are standard size and that the color of its soap is lighter than that of plaintiff’s.

Unfair competition is not established by proof of similarity in form, dimensions or general appearance alone. Where such similarity consists in construction, common to or characteristic of the article in question, and especially when it appears to result from an effort to comply with the physical requirements essential to commercial success and not to be designed to misrepresent the origin of such articles, the doctrine of unfair competition can not be successfully invoked to abridge the freedom of trade competition. Nims on Unfair Business Competition, Section 130, and cases cited.

It is not contended that the color of the soap, its shape, size, etc., can be exclusively appropriated, but that the unfair competition is in the use of the tag adopted by the defendant.

The evidence does not bear out the contention of plaintiff in error that the public were deceived by' the use of this tag upon defendant’s soap, and indeed, we can not see from the appearance of 'the bars of soap themselves with the sunken words and tags, that anybody should be deceived thereby; that a seller might deceive, or that an occasional purchaser might be misled, is not sufficient. The evidence nowhere shows that the defendant company passed off or attempted to pass off upon the public the soap it manufactured as being the soap of plaintiff in error, and this is what constitutes unfair competition. 28th Am. & Eng. Ency., 2d Ed., 410.

And again to constitute unfair competition features imitated must be such as distinguish plaintiff’s goods from others; not such as he shares with the trade generally. Nims on Unfair Competition, Section 157.

We feel that under the evidence the markings upon the soap are not at all similar or would tend to deceive any one seeking to purchase either one of the soaps in question; that the defendant company has not conducted its business or attempted to so conduct it as to pass off its goods for those of plaintiff, and that upon the entire ease the equities are with the defendant in error and judgment will be affirmed.


text:
    LIMITATION OF CARRIER’S LIABILITY TO SIX MONTHS.
    Circuit Court of Richland County.
    Pat Gatton v. The United States Express Co.
    Decided, January 25, 1911.

      Carriers — Stipulation Limiting Liability to Six Months — Bar to an Action for Damages Suffered Through Fault of the Carrier, When— Contracts Will be Held to Have Been Executed With Full Knowledge, When — Release Must be Set Aside Before Action Can be Maintained.

    A shipper hy express, who signs a contract which limits the liability of the company to six months in so far as the commencement of an action for damages is concerned, is barred from maintaining such an action begun more than six months after the shipment was made, notwithstanding his allegation that he signed, the contract hurriedly, and without examining it, and supposing it was the hill of lading.

      Farter <& Yoegele, for plaintiff in error.

      Cummings, McBride & Wolfe., contra.
    Taggart, J.; Voorhees, J., and Powell, J., concur.
   This case had its origin in the court of common pleas. - Plaintiff in error was plaintiff therein and defendant in error was defendant therein. By his amended petition the plaintiff sought to recover, as he alleged, for a breach of a verbal agreement entered into between himself on the one part and the agent of the defendant company on the other part, for the transportation of .thirty-eight horses and mules, in first class condition, from Bell-ville, Ohio, to Pittsburg, Pa., upon an agreed price. He avers that the defendant company violated.its agreement to his injury in the sum .of $630 which he sought to recover in his first cause of action. He avers substantially the same facts in respect to his second cause of action, and seeks to recover back the money that he was compelled to pay in his compliance, with said contract, and which he was not entitled to pay in consequence of the failure of the company to.perform its part of the agreement..

. To the .causes .of action.thus .grounded in the petition, the defendant filed an answer admitting that it was an association ofganized under the laws of New York, admitting that it received certain horses and mules to be transported from Bellville, in the state of Ohio, to Pittsburg, in the state of Pennsylvania, and denying the remaining allegations in the amended petition. For its further defense to the claim of the.plaintiff, it avers that the horses and mules were delivered to it under and by virtue of the terms of a written contract that was signed by the plaintiff and defendant, which contract contains certain provisions' and stipulations set out in the answer, which purport to limit the' liability of the defendant company, and limit the plaintiff in the commencement and prosecution of the suit after the expiration of six months. It is then averred in the answer that six months had elapsed before the filing of the suit b3r the plaintiff herein, and specifies the date of the contract and the date of the filing of the suit.

It is necessary to look somewhat closely to the reply and to the amendment to the reply that was filed by the plaintiff to this answer. Ip the reply that was filed on the 10th day of February, 1909, the plaintiff, in the early part of his reply, denies that the horses and mules were delivered to the defendant under and by virtue of a written contract, denies that there was any contract, written or otherwise, entered into by plaintiff and defendant containing the provisions set forth in defendant’s answer, and plaintiff then sets out that the stock was shipped on the 24th of February, 1906, and admits that suit was not entered until the 15th day of December, 1906, and then seeks to excuse the delay in bringing the suit in- consequence of defendant’s representations that his (the plaintiff’s) claim would be paid without suit, and such representations were continued up until near the expiration of said time, and these representations led to the delay in bringing the suit.

On motion filed by the defendant all the portion of the reply except such as constitutes the denial was stricken out by the 'court. Thereupon plaintiff filed an amendment to the reply, which was the issue tendered in the case. In the amendment to the reply, he admitted that after said horses and mules had been delivered by plaintiff to the defendant and. the-same had been loaded on board of the express car of the' defendant and accepted for shipment, the defendant by its duly authorized agent at Bellville presented to plaintiff a certain paper writing and requested the plaintiff to sign the same, representing that said paper writing was a bill of lading or receipt for his said horses and mules, which representations were false and known to be false, and no opportunity was given plaintiff to read the same or familiarize himself with the same; that the paper writing was not in fact.what it was represented to be, and was in truth and in fact a contract with exemptions from liability and limitations in bringing the suit; that the plaintiff relied on the false representations and was thereby induced to sign the paper writing.

On the issues thus made-up, the ease proceeded to trial and, at the close of plaintiff’s testimony, the court was asked by the defendant to direct a verdict for the defendant, which was overruled by the court; and at the close of all the evidence, the defendant renewed the motion to take the case from the jury and direct a verdict for the defendant. Thereupon the court instructed the jury to return a verdict for the defendant, which was accordingly done. A motion for new trial was filed and overruled and judgment rendered on the verdict.

It is contended by plaintiff in error that there were issues in this case that should have been submitted to the jury, and that the court was in error in directing a verdict for the defendant.

In the case of Perry v. O’Neill Co., 78th O. S., page 200, the court use the following language in the syllabus of the case: •

“A release of a cause of action for damages for personal injuries, that is void, is not a bar to such an action, and the plaintiff may, if it is set up by answer' as a bar to his right of action, by reply aver the facts that make it void; but if it is not void but only voidable, he can not maintain his action until the release is set aside.”

And the court in reviewing the authorities in this class of cases, quotes from the case of Cassily v. Cassily, 57th O. S., 528, where the court construes a written instrument signed by a mother and delivered to the son. .The second syllabus is as follows:

“'Where a mother and son. enter into a'written contract which is correctly read to her before execution and she then voluntarily executes it, she is bound by its terms until it is set aside by a proceeding brought for that purpose. The facts, if'satisfactorily established, that she could not read and write and, on account of the confidence reposed by her in her son, did not. carefully weigh, so as to comprehend the terms of the' instrument, when it was read to her, afford no ground to treat it as a'nullity, or to permit her to contradict its terms by parol evidenee, when interposed by the son as a defense to an action at law brought by her against him.”

Here the court lays down the rule, as we have indicated, that where the contract is not void but merely voidable, it must, be set aside before the party can maintain an action in contradiction of its terms, and the court in the case of Perry v. O’Neil & Co. above, at the close of the opinion on page 226, quotes with approval the following:

‘‘A person who without reading it, signs a written.contract releasing his. right to maintain an action for damages resulting from injiify caused by the negligence of his former employer, would be held to have executed the instrument with' full knowledge of its contents, when his only excuse for not 'reading it- was that he was ‘somewhat hurried.’ Such a contract can..not be voided by the party signing it because he relies upon, ‘allusions to future employment’ made by.the agent of his'former, employer in the negotiations 'consummated- by a'-:written 'felfease, which employment was not'furnished to him. ” :'

So that the record in this case, while, it indicates that there was some haste, we think it comes far short of showing that there was any active fraud, or any fraud, whereby the plaintiff was induced to enter into 'this contract. The' contract-' therefore, being in full force and effect, was a complete -bar; the stipulation of which was that unless suit was.brought within six monihs,.he would not be permitted to maintain his action. Qontrafefs .of this kind have received approval in the courts of this state'and .other states and are not contrary to public policy. . ..........

So that upon the undisputed facts in. this hase', as. shown' by the admissions in the pleadings'and'the testimony in the cáse, we tTiink the court was right in directing á 'yerdict in this'cáséj- and the judgment of the court of common pleas is affirmed with' costs and remanded for execution. Exceptions may bev-noted:;" -.' '


text:
    TITLE TO THE BANK OF A CANAL RESERVOIR.
    Circuit Court of Licking County'.
    The Columbus, Newark & Zanesville Electric Railway Company et al v. John Nelson et al.

    Decided, March, 1910.

      Canals — Nature of the Title Acquired by the State to Lands Occupied by Canals, Feeders, Reservoirs, Dikes, Locks and Dams — Title After Abandonment for Canal Purposes — Extent of the Land Comprised in the Banks of a Reservoir — Conversion- of the Licking Reservoir Into a Park. ...
    1. A reservoir used as a feeder for an Ohio canal became a. part of the canal system of the state, and the occupation of the land by the state for such a purpose amounted to an appropriation of the land, ■ the fee simple title passing to the state regardless of failure on the part of the owner to make application for compensation therefor.
    2. The abandonment of a canal does not cause the title’ to the land belonging thereto to revert to - the original owners, their heirs or devisees, but the title remains in the state until granted out by proper conveyance.
    3. The banks of a canal, and of its feeders and reservoirs, constituted a necessary part of the canal, and in the absence of an agreement to the contrary ’ formed a part of the original appropriation by the state; and the continued use of this land to the water’s edge by the abutting owners was not a matter of right, but of sufferance on the part of the state.
    4. The appropriation of land for the banks of a canal reservoir included a space of a sufficient width to hold the waters up to the storage' level and protect surrounding property and afford the agents of - the state a right-of-way over and around the property . ■■ --for purposes of maintenance.
    5. The General Assembly having set apart the Licking reservoir as a public park and pleasure resort for the people of the state generally, the state board of public works is without authority to • grant a ■ lease of its banks for’ building purposes that will interfere with the- 'free, and uninterrupted use thereof by the people and the • -agents.of the state. ’ . ' ' ’ '

      Fiizgibbon & Montgomery, W. B. Pomerene and Dicrban & King, for plaintiffs in error.

      Flory' & Flory, contra.

       Affirming C., N. & Z. Electric Ry. v. Nelson, 9 N.P.(N.S.), 56; affirmed by the Supreme Court, Railway v. Nelson, 83 Ohio State, —.

   By the Court

(Taggart, J., Donahue, J., and Voorhees, J.).

The Columbus, Newark & Zanesville Electric Railway Company and the Ohio Electric Railway Company filed their joint petition in the common pleas court of this county against John Nelson and Lena Nelson and asked that -said defendants be enjoined from bringing building material upon certain real estate described in the petition and from digging up, cutting or destroying the ground or soil thereof, and from erecting thereon buildings, constructions or frame works of any kind, and averring that the plaintiffs are the owners of said ground upon which the defendants .purpose to erect such buildings and structures, said land having been conveyed to said plaintiffs by Lindsay Bounds and others, and that it constitutes a part of what is now commonly known as Buckeye Lake Park.

To this petition Lena Nelson filed an answer and cro'ss-petition admitting that the plaintiff; the Columbus, Newark & Zanesville Electric Railway Co., is a corporation and owns certain real estate known as Buckeye Lake Park, located in Buckeye Lake, admitting that the Ohio Electric Railway Company is a corporation, and denying all the other averments of the petition, and particularly that the plaintiffs or either of them have any interest in or to the land described in the petition upon which she was conducting building operations, and averring the deed from Lindsay Bounds and others did not convey said lands to said plaintiff, but on the contrary expressly and definitely excepted the same therefrom in the following language, to-wit, “Excepting from the above real estate any right, title or interest that the said state of Ohio may have acquired in or to the second parcel herein by reason of the location of the' Licking Reservoir thereon; excepting also from said covenants whatever right or title the’State of Ohio has in the first parcel above said water liné herein mentioned for retaining banks of the waters of said reservoir”; and further averring that she is the owner by lease from the state of "Ohio of the premises in dispute so- excepted from the operations of said deed. And for cross-petition the said defendant avers that Buckeye lake, formerly known as the Licking reservoir, constitutes a part of the canal system of the state and that said body of water and lands covered by said waters and the lands adjacent thereto, are all owned by the state of Ohio and under the management of the state, board of public works. That by recent legislation said Buckeye, lake and lands .adjacent thereto have been dedicated to the public as public parks for pleasure resort, fishing, boating and other recreations, and that the said board of public works has executed a lease to this defendant for the property so owned by it, and that it is upon this land and not other land that she had started the construction of the same and had largely accomplished said construction when' the plaint-' iffs with a large force of workmen by force and violence entered upon these premises, tore up the platform of the pier, pulling up the tiling and stakes which constitutes the lower part and support of the pier, destroying the lumber out of which it was constructed and carried the same away and converted it to their own use, and tore the cottage and boat house from their .foundations and moved the same from the land of this defendant to lands owned by the plaintiffs. And that .the plaintiffs threaten and will unless restrained by the court again enter upon the lands of this defendant and destroy any buildings or piers she may erect thereon, and thereby deprive her of the use and profits of the same to her irreparable injury, for which she has no adequate remedy at law, and prays for a perpetual injunction and for .a decree quieting her title in said premises.

To this cross-petition the plaintiff filed an answer averring the ownership of these premises in plaintiffs and denying that defendants have any right, title or interest thereto. The cause was heard upon evidence in the court of common pleas and now comes to this court upon appeal, and has been submitted upon the transcript of the evidence taken in the common pleas court with all the exhibits and such additional-evidence as parties desired to offer.

It appears from the evidence that' the. state ' of Ohio commenced about the year 1828 and completed about 1832.the Licking reservoir as a feeder to the canal system wider the authority óf an- act of the General Assembly of Ohio, passed April 4, 1825. By the provisions of Section. 8 of that act, it appears that the state might lawfully enter upon and take possession of and use all and singular ,any lands or water, streams or materials necessary for its canal system, for the purpose of making any and all such canals, feeders, locks, dams, etc., and that where such property taken should not be given or granted to the state that it should' be the duty of the canal commissioners on application by the owners of said lands, waters, streams and materials to appoint a board of appraisers to make a just and equitable appraisal of the'loss and damages to such private owners, and it was made the duty of said appraisers to enter an apt and sufficient description of the premises appropriated for the purposes aforesaid-in-a book to be provided for that purpose. It further provided that the -fee simple of said premises should pass to and be!vehted in the state. '

In the case of Ohio, ex rel, v. Railway Company, 53 Ohio State, page 189, it is: held that by force and provisions of Section 8; above referred'to, that wherever the state actually occupied a parcel of land for cañal purposes, a fee simple title thereto at onCe añd by virtue aloñe of such occupancy, vested in the state. It is said however by counsel for the plaintiff that this reservoir is'not a canal, and therefore it is not within the provision of this legislation, but Section 8 not only provides for canals, but' for feeders, dikes,' locks, dams and such other works and devices as the canal commissioners may think proper. So that this reservoir being used as a feeder of the canal becomes a part of the canal-.-system of Ohio", and the occupation of said land by the State of Ohio for such purposes is an appropriation of the land, and -the fee simple passed to the state with the right only in the original owner to make application for damages and compensation therefor, and his failure to make such application for damages- and compensation would in no'wise -affect the title of the state thereto. It -is suggested, however, that before such title could pass to the state that there must be an apt’ and sufficient description, of the' premises; but. the statute does not so provide; • The' statute' provides that.the'canal-commissioners .and each .of..them or .any superintendent,, agent..or.'engineer employed by them might enter upon and take possession of lands, waters, streams.and materials necessary for canal purposes and does not seem to provide that a description thereof shall be given, and nothing further is required beyond 'the actual occupation of the same, but where damages and compensation have been demanded and the board of appraisers have considered such claims then it becomes the duty of such board of appraisers to make an apt and sufficient description of the premises in a book to be provided for that purpose.

So that unless the owners of this property actually apply to the state for compensation and damages there would not be any description of the land as a matter of necessity, but only such description as the canal commission might have for its own use and convenience. The appropriation consists in the taking possession of the land and the mere fact of taking possesion for the purpose mentioned in the statutes passed the fee simple title to the state, and a later abandonment of the canals would not revest the title in the original owner or divest the state of its title thereto. The fee simple having once lodged in the state remains there until it be granted out of the state by proper conveyance.

Another contention is that actual occupancy and actual taking is required in order to vest the title in the state, and therefore the adjacent banks which confine the waters in the canal were not actually or physically in possession of the state, and the title did not pass to the state and it can claim no more than the lands actually covered by the waters.

In the case of Hatch v. Railway Company, 18 Ohio State, page 92, the Supreme Court of Ohio held in the case of' a private canal company that an appropriation of land by a canal company for the purpose of a canal in the absence of any contract or statute to the contrary will be presumed to have included land for a berme bank as well as a tow path and the exclusive power of the company over the land necessary for such bank is the same whether it consists of a natural or artificial deposit of earth. It would seem to us that the power to appropriate land upon which to store water without carrying with it the right to the retaining banks would be a useless grant of power. In the case of Hatch v. Railroad Company, the Supreme Court, page 125, says:

“A berme bank is necessary for the use of the canal, and whether it consists of the natural or artificial deposit of earth can make no difference; it must have formed a part of the original appropriation for the canal unless there was a special agreement to the contrary. The plaintiff had full opportunity to show a special agreement to the contrary, if such existed, and if during the existence of the canal the adjoining proprietor .use the land up to the water’s edge it was a matter of sufferance and not a right. ’ ’

In the ease of Carpenter et al v. State, 12 Ohio State, page 457, it is held that no record or writing is necessary to show the appropriation of such berme bank by the state; on the contrary it is presumed in the appropriation of land for canal purpose. It is claimed that this is not a canal proper, but only a reservoir, and was not intended at the time of the appropriation to be used for navigation but for supply water only. The statute however included feeders as well as the canal proper; and feeders or reservoirs equally require retaining banks — otherwise the appropriation is useless.

We are therefore of the opinion that the state acquired not only the land actually covered by these waters but also a berme bank of sufficient width not only for the purpose of retaining the waters but for such other legitimate purposes for which it may be used, including not only the duty to protect adjacent land owners, but also to protect the reservoir from invasion from adjoining proprietors from any natural cause that might affect the same, and also for the purpose of affording a right-of-way to the agent of the state over and around this property for the purpose oE proper maintenance thereof.

We are of the opinion that this appropriation by the state of lands for reservoirs or feeders for the canals included berme banks, and that they, would necessarily be included in ascertaining the compensation and damages that might be allowed therefor.

It is hard for this court to determine from the evidence before it what the actual width of this berme bank is. The survey the state made under the provisions of Section 218-223, Revised Statutes, is of no value whatever. The state at this time can not arbitrarily determine how much land was originally appropriated. If the surveys had been made at the time of the appropriation, then the land owners could have obtained compensation and damages therefor and such surveys might control, but at this time the court must determine as best it can from the evidence, considering the nature and extent of the improvement and requirements of the state, the minimum amount of land that would necessarily be included in the appropriation for berme bank purposes. It does appear from the evidence that the original provision for berme bank for canal purposes was never less than 12.12 feet, and it would seem reasonable to conclude that this minimum must have been recognized then as the amount necessarily included for this purpose, and in view of the purpose to be servéd that amount is not excessive. This reservoir was built for the storing of large quantities of water, and wherever it was necessary to construct an artificial berme bank the state did construct such a bank of this or greater width, and.this .alone ought to have been sufficient notice to the land owners that the state was claiming that a bank of this width was necessary for its purpose. Undoubtedly the owner could have recovered compensation and damage for that extent of bank in addition to the land actually covered by, the water, if such application had been made to the board of .appraisers.

It is further insisted that this appropriation was made by the state at the time the United States owned the land and therefore could not be operative as against sovereignity, but when the United States conveyed by patent deed to the original predecessor in title to the plaintiff such predecessor in title then had the right to make his application for compensation and damages, for at least the right of the state to appropriate would then obtain, and the state at that time was in possession of this property and has ever since remained in possession; the fact that he may have used or pastured this land to the water’s edge is not important; as said in the case of Match v. Railroad Company, if he did so' do it was by mere sufferance, and not of right.

Another question of considerable importance is the question as to the extent or line of appropriation. It is insisted on the one hand that, if there was an appropriation at all, that appropriation can not extend beyond the low water line and that if any berme bank is to be' added to that, the measurement therefor must be from that line. It is contended on the other hand that the measurement of this bank should commence at the flood water line; We can not agree with either of these contentions. This reservoir was built for a feeder to the canals, a place in which to store water in wet seasons to maintain the level of the canals in dry seasons.' That being true the reservoir would be useless if it-eo'uld only be maintained to .a low water'line; Undoubtedly in season of continued drought, water would be drawn from this reservoir to the level of the water in the canal and if that were all the land that the state acquired, then it would be useless as a s-torage reservoir. On the other hand when by heavy floods it is filled beyond the capacity of the reservoir and above the level of the waste weir so that these flood waters would waste until the level of its storage capacity is reached, the state could have no need or interest in such flood water only to the extent which the state had prepared to hold and retain the same for the use of the canals. Therefore it is the storage level that must obtain.

We have reached the conclusion first, that the state has the title in fee simple to not only the land covered by these waters but also to a berme bank around the same to the width of 12.12 feet; that this measurement of this berme bank commences at the water line at a stage of water to the limit of the storage capacity of the reservoir. The exact location of this level is one of the most difficult questions presented in this case. There seems to be no record of that level, and it may be said here that it is not important as to the level that is maintained at this time; it is the level which was originally established that marks and .defines the appropriation by the state by which title in fee passed to the state, for the title being once vested it becomes absolute, and even the abandonment of the canal system or of this reservoir would not affect it.

The data however from which the engineer of the board of public works has attempted to establish this level is fairly satisfactory. It seems to us that in the absence of evidence to the contrary, that must be accepted as the best evidence of which the ease is now susceptible. This evidence was given in the common pleas court many months ago, affording the plaintiff sufficient opportunity to further investigate and determine its reliability and if possible furnish better data to establish the storage level.

It is insisted that the evidence is too uncertain and unreliable to be adopted by the court in determining this controversy, but in view of the purpose for which this reservoir was built and the needs it was designed to serve, it seems to us that the result reached by the engineer is at least reasonable, and for lack of testimony in conflict therewith we were compelled to accept the same for the purpose of this case. It would further appear that, the purpose for which the berme bank was acquired by the state originally as well as its present needs not only for the board of public works, their agents and employes, and in view of the rights of the public therein under the act of Legislature establishing this as a public park and’ pleasure resort for all the people of the state, that the board of public works has no authority whatever to grant a lease of this berme bank for building purposes of for the purpose of placing any obstruction thereon that would interfere with the free and uninterrupted use thereof' either by the people or by the state and its agents.

Having reached the foregoing conclusion it follows that the petition of the plaintiff must be dismissed with costs of this suit, that the prayer of the defendant’s cross-petition must be granted as to all that portion of the property leased by her from the state not included in the limits of the berme bank, but as to that portion she is enjoined from constructing any building or other structures thereon that would in any wise interfere with the free and uninterrupted use of the same.


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    PROOF AS TO INTENTION IN HAVING BURGLARS’ TOOLS IN POSSESSION.
    Circuit Court of Lucas County.
    Ralph Martin, alias Howard Cox, v. The State of Ohio.
    Decided, April, 1911.

      Criminal Law — Prosecution for Having Burglars’ Tools in Possession with Burglarious Intent — Weight of Evidence as to Intention— Time and Place when it was Intended to Use the Tools Need Not he Shown. '

    In the trial of one charged with having burglars’ tools in his possession with intent to use them burglariously, it is not necessary that the state prove the exact time and place at which the defendant purposed to use the tools, or that he purposed to use them within the jurisdiction in which the arrest was made and the trial is held; but it is sufficient if the evidence convinces the jury beyond a reasonable doubt that it was his intention to use the tools found in his possession burglariously.

      Thos. H. Murphy, for plaintiff in error. '

      A. F. Connolly and Boy B. Stuart, Assistant Prosecuting Attorneys, contra.
    Kinkade, J.; Wildman, J.,’ and Richards, J., concur.
   Indictment for carrying burglar tools 'with the intent to use them burglariously.

The plaintiff in error here was indicted by the grand jury of this county for having burglar tools in his possession with intent to use them burglariously. He wás tried and the jury found him guilty as charged. The case is here on error to reverse the judgment entered upon this verdict of the jury.

It was said in opening the ease for the plaintiff in error here that another error was sought to be presented by the bill of exceptions, misconduct of counsel in argument,’ but the trial judge erased the statement placed in the bill by counsel, so that is not a matter for consideration here. The two grounds of error relied upon here are:

First. The charge of the court.

Second. Insufficiency of the evidence to sustain the verdict returned by the jury.

..It is said that there is no evidence in this record from which the jury could have found properly, that the defendant had these tools in his possession with intent to 'use them burglariously, and therefore that the verdict can not be sustained. And we were earnestly asked by counsel to, read this record with care to discover, as counsel stated he had discovered, that it was devoid of evidence justifying the finding of the jury. A serious thing if true. We have read the record as urged by counsel and have read it with care. The members of this court, while at the bar, have tried many criminal cases.' All of us have been upon the common pleas bench and have heard scores of criminal cases, so we feel qualified 'to judge of the character of the evidence presented here, as to whether it shows any intent or not in a case of this character.

This man was found upon the grounds -of the Lake Shore railroad at Air Line Junction, and he says at six o’clock in the evening. The state says something like seven o’clock in the evening. We think it is not material who is correct in this regard; he was there, and in company with four other men. He was there admittedly, by his own testimony, for the purpose of stealing a ride to Chicago. The other four men he said were there for a similar purpose; they had all discussed the going out of the trains, what they would do, and how they would do it, and where they would locate themselves in order to be at the best advantage in carrying out their purposes; and while there the officers of the railroad company came to them and ordered them off of the grounds; some dispute arose and they were all arrested, I believe — at least this man was — and on his person was 'found a bunch of keys, curiously constructed keys, quite a number of them. There was also found on his person a revolver and a chisel, described in the indictment and described in the record as a “jimmy” — a chisel so shaped that it might be used as a “jimmy” — a search light, and some cartridges were in the revolver.

We think it clearly appears from the record that the articles found on this man were articles of a kind commonly used by burglars in carrying on their trade. In fact, it is not seriously contended they were not.

When he was arrested with these things on him he was inquired of where he got them and what he had them for, and he declined to make .any statement at all. When he gets into the trial of his case he offers this as an explanation, that when the officers came to him they searched him, at least to some extent; as he says they “frisked” him. This is described to mean that the officers came near him and slapped him where he would have pockets to see if they could discover anything, but did not make a careful search. He says they “frisked” him and he says they discovered nothing for the very good reason he had nothing. He started away pursuant to the order of the officers, and was going to take a street ear and come back to the city; he says that after he had gone a distance he met a boy who said the street car was the other way and not that way, so he went back to the neighborhood of his companions, intending to go the other way to look for a street car, but the dispute between the officers and the other men had progressed to such a point that the officers had evidently determined to take them all in, or take some of them in I should say. It is said sometime during that movement one of the other men came to him and said to him, “Now you have been searched and they have not discovered' anything on you, and they will not search you again. Now here are these things that I have; if they find any of these things on me it will be a serious thing; therefore you take these things now and you keep them and they will not be discovered on us to our detriment.” He says this is the way he came to get these things, and when afterward they inquired of him where he got them he said he did not answer them for the reason that the other men were not then out of reach of the officers and that to have told them he got them from the other men would have been the same as to have permitted the other men to be found with them in their possession; therefore, to shield the other men (he did not say that, but that is the inference), to shield the other men he declined to tell where he got them; and when he was found and they were found on him, at no time did he offer any explanation where he got them until he comes into his trial, and then he tells this story as to where he got them and how. He seems to have had more concern about the welfare of the other men, who were practically strangers to him, than he had about himself. He now tells this story, that the reason he did not explain .to the officers was that-it would have been detrimental to his associates who were then trying to get away, but were not far enough away to make their escape.

He tells how he came to go to Air Line Junction; says he went up Broadway to the crossing of Broadway and the Wabash tracks prepared to take train No. 32 for Chicago; that he stepped into a saloon near there and found No. 32 had gone, and he then met these three or four men and expressed his disappointment to them that he should have thus missed his connection, and they said to him to come with them as they were going to Air Line Junction and they would all find a train out there. He then gives a curious account of how he got to Air Line Junction— curious to anybody who understands the geography of the situation, but at any rate he finally got to Air Line Junction, and then all of these things took place that he says took place.

It is argued here, that this story disposes of the question of intent. Well, if it were believed by the jury, perhaps it might, but it evidently was disregarded entirely by the jury, and after reading his story and considering its inconsistencies and improbabilities, we are unanimous in the opinion that the jury were quite justified in diregarding his story entirely, and, taking the case as it is with the goods found on him without any explanation, with himself in a railroad yard where many burglaries are committed on the railroad cars, in company with associates of doubtful character, we think the jury were justified in reaching the conclusion that they did, that this man had tools or implements upon his person for the purpose of using them burglariously.

It was said he might have had an intention to commit a. bur gla-ry in Chicago or some place else, and that it was incumbent upon the state to show he had an intention to use them burglariously and presently within Lucas county. We think the statute is .not limited.- The statute says, whoever has .in.his. possession such tools, etc., with the intention of using them burglariously; this is what makes the offense complete; there may be no occasion to use them at that precise time and place; in fact it may be impossible to use them at thé time and in the immediate locality where the party having them in his possession is arrested, and yet he may be guilty of the offense defined in the statute. The important inquiry is what is his intention with respect to the use of the tools found in his possession. If his intention is to use them burglariously, the exact time and place where he expects to go into business is not very''material. Both the possession and the intent must be found by the jury to have been shown by the evidence- beyond a reasonable doubt -to warrant a finding of guilty.

We find in the record, unobjected to, an inquiry of this man whether he had ever afterwards seen any of these associates after he was found with them in the railroad yard, and whom he described as “hoboes” (he said the act of the whole of them, stealing rides on'trains, is what is known as “hoboing”). He said yes, he had seen them, and- when asked where he had seen them he said he saw them in the county jail here when he was in the county jail.

Now we think the jury were entitled to take into account that fact and all the circumstances and surroundings of this case. This man testified he had worked for sometime at a restaurant here. He testified as to the length of time he had been in Toledo. He was a witness in his -own behalf but he called no one to testify as to his good .character. His defense rested entirely upon his own statements, and when they are rejected we think there is very little, if anything, left of his defense, and it impresses the members of this, court that he might have been in better standing with the jury had he omitted entirely his story or -testimony and left the case as the state rested it.

We think, taking the case as a whole, that there is abundant proof here-to justify the jury .in finding that he had these implements upon his' person with the intent prohibited by the statute.. .

• We have read the charge of the court and find no prejudicial error in-the'chargé. At one place the. court does say that a reasonable doubt is a doubt that a man can give a reason for; but in the very next sentence the court explains correctly and in detail what is meant by that expression. It has been held by the Supreme Court that that expression standing alone and unexplained does not state the rule correctly, but it has not been held that the form of'statement found in this charge presents prejudicial error. We have read the charge with care and we find no prejudicial error in it. The judgment of the court of common pleas will have to be affirmed.


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    COMPETENCY OF EVIDENCE.
    Circuit Court of Hamilton County.
    Walter Canfield v. Southern Film Exchange.
    Decided, January, 1911.

      Negligent Destruction of Property — Error in the Admission of Evidence —Remittitur.

    It was prejudicial error to overrule objections to questions and answers in this case which involved the very issue to be determined by the jury as to whether the destruction of the property in suit was due to the negligence of the defendant, and constituted the only evidence upon which a verdict for the plaintiff could be. based.
    Plaintiff sued below on two causes of action, one for $47.59 on an account and the other for $93.90 for picture films which were destroyed by fire. The verdict below was for the full amount claimed with interest.

      Snyder & Dickerson, for plaintiff in error.

      Wm. J; Bielly, contra. -
    Giffen, P. J.; Smith, J., and Swing, J., concur.
   There was no error in overruling the motion of the defendant, the Auditorium Theater Company,- to instruct the jury to .return a verdict in its favor, 'as liability upon the first cause of action is now admitted, whereas the motion was addressed to both causes of action. The following question and answer appear at page 26 of the bill of exceptions:

‘ ‘ Q. Now you have examined that magazine. Will you please state to the jury as an expert in your experience in operating machines how that fire occurred?
“(Objected to by counsel for defendant. Objection overruled and counsel for defendant excepted.)
“A. There is only one thing that can cause a fire, and that is by allowing the light from his lamp house to rest upon the film. 'If he allows the light to rest on the film eight or ten seconds it will burn.”

And again at page 47:

‘ ‘ Q. From your experience as an operator and your examination of the condition of that box, what in your opinion was the origin of the fire ?
“ (Objected to by counsel for defendant. Objection overruled and counsel for defendant excepted.)
“A. The cause of the fire would be in not sliding’his lamp house over in front of the machine. That would be the cause of the fire, and the cause of the real burning up would be from leavinjgdhis' door open.” ' '

. ..These,questions and answers involved the very, issue to be determined by the jury, whether the destruction of the film was the result of defendant’s negligence, and were prejudicial because they constituted the only evidence upon which the jury could base a verdict for plaintiff under the second cause of action.- The objection to the questions should have, been sustained. Runyan v. Price et al, 15 O. S., 1.

The testimony offered by the defendant, especially that of the operator in charge of the machine, tends strongly-to prove that the machine hired was itself defective, and that such defect was the direct cause of the fire.

Unless the defendant in error will consent to a remittitur of all the amount recovered except the account stated- in the first cause of action with interest, the judgment will be reversed because not sustained by sufficient evidence, also for error in .admitting aboyé testimony, and the cause remanded for a new .trial.


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    PARTICIPATION IN A LYNCHING.
    Circuit Court of Licking County.
    Montella Watha v. The State of Ohio.

    Decided, April, 1911.

      Criminal Law — Prosecution of Members of a Mob for Homicide — Aiding and Procuring the Commission of Crime — Legality of Jury Array —Prosecution Indirectly Involving the Liquor Interests — Competence of Jurors Who Participated Actively in a Recent Local Option Election — Weight of Evidence — Charge of Court — Riot Not Embraced in Section 18692.

    1. An accused person, who has been jointly indicted with others for murder in the first degree, can not complain of the overruling by the court of his challenge to the jury array, where this particular defendant has been brought to trial upon election of the prosecuting attorney, and a copy of the venire, summoned in the case as against all the defendants,, was served upon him three days before the day set for his trial.
    2. Error will not lie to the overruling of a challenge to the jury array, on the ground that names had been placed in the jury wheel of persons who were known to have actively favored the “drys” in a recent local option election and the crime of which the defendant was accused grew out of a contest over the illegal sale of liquor, if it appear that there was an entire absence of evidence of any kind tending to show that the jury commission placed in the jury wheel names of persons who did not fulfill the qualification of being judicious and discreet.
    3. The instruction given in this case relative to the reputation of the defendant for peace and quietness and its bearing on the question of his guilt or innocence, was not prejudicial to his interests.
    4. In a prosecution of one alleged to have participated in a lynching, it is not error to charge the jury that “any words, acts, signs or motions, done or made for the purpose of encouraging the commission of the crime” may be considered by- the jury in connection with the criminal character of the alleged acts of the defendant, and a verdict of guilty may be based on evidence, which the jury believed was entitled to credit, that the defendant mingled with the crowd some hours before the lynching occurred,'and engaged in conversation regarding the events which led up to the.'lynching, and was heard to urge the crowd to avenge the blood which had been shed and soon: afterward the doors of the jail were battered open, and the cell in which the decedent was confined was forced, and the deceased taken out and hanged to a telephone pole until he was dead.

      Chas.L. Flory and Thomas L. King, for plaintiff in error.

      Phil, B. Smythe, Prosecuting Attorney, Wm. H. Miller, Assistant Attorney-General, and Seth McMillen, contra.
    Shields, J.; Voorhees, J., and Powell, J., concur.

       Motion for leave to file petition in error in the Supreme 'Court denied June 27, 1911, . • ....

   At the April term 1910, of the Court of Common Pleas of Licking County, Ohio, the grand jury of said county returned an indictment against the defendant, Montelle' Watha, charging him, jointly, with some fourteen others, with the crime of murder in the first degree. To this indictment the defendant entered a plea of not guilty. A motion was made challenging the array, of the jury, which motion was overruled. Thereupon the defendant was' put upon trial to a jury, which returned a verdict of guilty against the defendant of manslaughter. A motion was filed by the defendant for a new trial, alleging various reasons why the verdict of the jury should be set aside and a new trial granted him, which motion-was overruled; to which action of the court the .defendant excepted. A motion in arrest of judgment was also filed by the defendant, which motion was overruled; to which action of the court the defendant excepted. Thereupon the court sentenced the defendant to the term of twenty years imprisonment in the Ohio Penitentiary.

A bill of exceptions was tendered and allowed, and a petition in .error is filed in this court to reverse the judgment of said court of- common pleas, which said petition in error recites the following grounds of error:

.. “1. That said court erred in ruling out relevant and. proper ;;.evidence offered in- behalf of .plaintiff in error on the challenge to the jury array. 2. Said court erred in overruling the; challenge to the jury array. 3. Said court erred in admitting improper and illegal evidence offered on behalf of the defendant in error. 4. Said court erred in excluding proper and illegal evidence offered on behalf of the plaintiff in error. 5. Said court erred in overruling the motion of plaintiff in error at the conclusion of the testimony of the defendant in error, to take the case from the jury and direct a verdict for the plaintiff in error. 6. Said court erred in refusing to give to'the jury, before argument, certain requests to charge offered by the plaintiff in error. 7. Said court erred in giving.to the jury certain requests to charge offered by the defendant in error. 8. Said court erred in its charge to the jury to the prejudice of the plaintiff in error. 9. Said court erred in refusing to give to the jury, after argument, certain requests to charge offered by the plaintiff in error. 10. Said, judgment is against the weight of the evidence. 11. Said judgment is contrary to law. 12. Said court erred in rendering judgment for the defendant in error when it should have been given for the plaintiff in error. 13. Said court erred in overruling the motion for a new trial made by plaintiff in error. 14. The sentence and judgment of the court is excessive and unwarranted by the evidence, 15. Other errors apparent upon an inspection of the record.”

"While the foregoing contain the assignments of error in the record on which the plaintiff in error asks for a reversal of the judgment and sentence, counsel for plaintiff in-error, in-their argument to the court, rely chiefly on the following assignments of error:

1st. That the jury was illegally selected, .drawn and summoned.

' 2d. That the number of names put in the jury box exceeded the number provided by statute. . :

3d. That only such names of persons who signed “dry” petitions were 'put in the jury box.

4th. That the court erred in overruling the challenge to the array by the plaintiff in error, for the foregoing reasons.-

' 5th. That the court érred in -its -charge to the jury on the -subject of' the' 'evidence introduced by the plaintiff in error, touching his reputation for péace and quietness.

- 6th. -'-That the court erred in its charge concerning an accessory after the fact

'' 7th. That the court erred in its charge to the jury upon the subject of words spoken, or acts done, or signs or motions made by the plaintiff in error, for the purpose of encouraging the commission of the crime. .

8th. That the court erred in refusing certain requests to the 'jury, requested by the plaintiff in error.

The preliminary steps necessary to be taken in the selection, drawing and summoning of a jury in a capital case are regulated wholly by statutory provisions. The- accused is entitled to have these provisions observed before he is placed upon trial.

' Section 7267, R. S. (13642, General Code), provides for the issuing of a venire by the clerk.

Section 7270, R. S. (13645, General Code), provides for the service and return of such venire.

Section 7271, R. S. (13646, General Code), provides that where two or more persons are jointly indicted for a capital offense, each person indicted shall be separately tried, -and the clerk shall make but a venire, as provided in said Section 7267, R. S., for the trial of each person indicted.

Section 7273, .R. S. (13648, General Code), provides that a copy of the panel of the jury returned by the sheriff shall be delivered to every person so indicted at least three days before the day of trial.

Section 7268, R. S. (13643, General Code)., provides that if it appear to the clerk, by the return of the sheriff, that any person named in the venire is dead, insane, absent, removed from the county, or not an elector of the county, or has been convicted of a felony, and not pardoned, the clerk shall draw from the box the number of ballots equal to double the number of such persons, etc. But the return of the venire in this case by the sheriff does not show the necessity for any such action by the clerk.

It is contended by the plaintiff in error that the court erred -in overruling the challenge to the array of the jury made on behalf of' the plaintiff in error before trial, because the venire was not issued,, or the selection, drawing and summoning of the .-jury made, f.or-the trial of the case as contemplated by the statute. It is contended that inasmuch as Section 7271, R. S., provides that the clerk shall make out a venire, as provided in Section 7267, for the trial of each person indicted, that therefore the accused was entitled to have a venire drawn and served upon him in his individual ease before trial. The record shows that the accused was jointly indicted for said crime with some fourteen others, under docket No. 2866; that a venire was issued by the clerk and served by the sheriff upon a precipe filed by the prosecuting attorney of said county in said case, as directed by Sections 7267 and 7271; and, upon the election of the prosecuting attorney to try the case,, a copy of the panel of the jury, returned by the sheriff, was delivered to and served upon the accused at least three days before the day of his trial. The prosecuting attorney had the right to make the selection, and, having exercised it, and the jury having been drawn and summoned in the case named, we think that the objection urged in this respect affords no ground of error.

It is further contended that the court erred in overruling the challenge to the array of the jury, made on behalf of the plaintiff in error before trial, because of the action of the court in excluding evidence upon the objection of the state, offered by the plaintiff in error, by which it was sought to show by one of the jury commissioners for said county that said jury commission placed in the jury box the .names, in part, of persons of known and pronounced opinions upon temperance, as evidenced by their signatures to certain “dry” petitions.

Section 5164, R. S. (11421 et seq., General Code), provides that the jury commission shall, before entering upon their duties, take an oath that they “will consent to the selection of no person as a juror whom they believe to be unfit for that position, or likely to render a partial verdict in any cause in which he may be called as a juror,” etc.' Said statute further provides that-said commissioners shall, at a stated time, “select such number of judicious and discreet persons having the qualifications of- electors.”

It thus appears that this commission is clothed with sole authority to select the names of persons for the performance of jury duty. They are to select the names of “judicious and discreet persons”; that is, persons who have, or as they have reason to believe have, the qualifications of sound judgment and discernment. The statute is silent as to the qualifications of jurors in. other respects. It does not provide that they shall be of one sect or another; of one belief or another; of one party or another; but simply provides that they shall be “judicious and discreet persons.” In the absence of a showing to the contrary, it is presumed that the jury commission performed its duty in this respect, as required by law.

An examination of the record shows that, in the impanneling of the jury, the plaintiff in error publicly announced, through his counsel, that he was satisfied with thé jury, and that no question was raised by him of the want of the requisite qualifications possessed by each and every-juror in the- panel. We are, therefore, of the opinion that there was no error upon the part of the court in this respect, in overruling the challenge to the array by the plaintiff in error.

It is further' contended by the plaintiff in error that the court erred in its charge to the jury upon the subject of the reputation of the plaintiff in error for peace and quietness. The testimony shows that testimony of this character was submitted to the jury. On page 1101 of the record, the court, in instructing the jury-on this subject, said:

‘ ‘ The defendant introduced evidence tending to show his good character for peace -and quietness. If, in the present case, the good character of the defendant for peace and quietness is proven to your satisfaction, then such fact should be kept in view by you in all your deliberations, and it is to be considered by you in connection with all the other facts in the case;' and if, after the consideration of all the evidence in the case, including that bearing upon the good character of the defendant, the jury entertain a reasonable doubt as to the defendant’s guilt, it is your duty to acquit him.- But if the evidence convinces you, beyond a reasonable doubt, of defendant’s guilt, you must so find, notwithstanding! his good character.”

Evidence of reputation and character is always admissible in a case' wherein a party is charged with a crime, and such evidence is proper to be considered by the jury in connection with all the proven facts and circumstances in such case, as bearing upon the guilt or innocence of the accused; but such evidence raises no issue, the burden of which is assumed or imposed upon the defendant. It is, in no sense, an affirmative defense. And while we think that this instruction to the jury, if standing alone and not qualified by any other instruction given to the jury upon this subject, either before or after it was so given, would perhaps be erroneous, an examination of the record shows that the following special charge was given by the court to the jury at the request of the plaintiff in error, before argument:

Request No. 20. ‘ ‘ If the evidence of good reputation, taken in connection with the other evidence, raises in your minds a reasonable doubt of Watha’s guilt of the murder charge made in the indictment, you can not find him guilty of such murder charge.”

Comparing this special charge with the court’s general charge upon the subject of reputation for peace and quietness, can it be said that the jury was thereby probably misled, or that the general charge was erroneous? 5 C. C. Rep., 375; 20 O. S., 508-514.

The charge of the court is to be construed as a whole. 33 O. S., 444; 61 O. S., 608.

Considering that part of the charge of the court referred to, in respect to the defendant’s reputation for peace and quietness, we think it excludes the possibility of prejudicial error, arising from the objection made to the charge of the court in this respect by the plaintiff in error.

Exceptions were also taken by the plaintiff in error to the court’s charge in respect to an accessory after the fact. An examination of the record shows that the court made mere mention of this, and nothing more; and we do not think that the jury could have been misled by the court’s reference thereto. We, therefore, .think that there was no error committed by the court in its charge in this respect.

Exceptions were also taken to the action of the court in admitting certain evidence offered by the state, against the objection of the plaintiff in error on the trial, in respect to certain disturbances occurring and assaults made during the day preceding the evening of the alleged lynching of Carl Etherington, when and where it is claimed that the evidence shows that the plaintiff in error was not present.

The plaintiff in error claimed upon the trial that he was not away from his home and about the square in the city of Newark during the day, at any time when any riotous disturbances were going on, except that he went up street on an errand in connection with his work at home. But the evidence for the state tends to show that he was up street, and in that part of the city where the ■riotous disorder was prevailing as the result of the arrival in said city of some twenty detectives, armed with warrants to search certain places in said city where it was alleged that liquor was being illegally sold, contrary to the provisions of the Rose local option law.

Referring to the record on page 699, Kenneth Black, a witness for the state, testified, among other things, as follows:

“Q. Were you in the city of Newark on July 8th, the day of this riot and lynching? A. Yes, sir.
“Q. Did you on that day see this defendant, Watha? A. I saw him in the afternoon, I believe between 1 and 2 o ’clock.
“Q. Where were you when you saw him? A. We were standing over here by the National Bank on the west side of the square.
‘ ‘ Q. State where you were. A. Not the First National Bank, but by the Franklin National Bank.
“Q. Were you standing on Third street? A. Yes, sir; on Third street.
“Q. Who was with you, if any one, and this man Watha? A. There were several of us in the crowd; Lansing Sutton, Sanford Henry and Uly Craig, and a fellow named Johnson,, from Granville. ' There were five or six of us.
“Q. State to the jury whether or not William Howard, at that time, had been shot at the park. A. .Yes, sir; Í think he had.
“Q. What, if anything, were you talking about? A. We were talking about the excitement.
“Q. About what excitement? A. The rioting.
“Q. What do you mean by ‘the rioting’? A. The shooting of Howard, and one thing or .another.”

Further referring to the record, on page 702, Lansing Sutton, a witness for the state, testified as follows:

“Q. Were you in the city of Newark on the 8th day of last July? A. Yes, sir.
“Q. State whether you saw this man, Montelle Watha, upon that day. A. Yes, sir; I did.
“Q. Where did you see him? A. Well, I met him over there by the express office;' right .across the street over here.
“Q. On what street? A. On Third street.
“Q. Who, if any one else, was with you? A. There was Sanford Henry, Uly Craig and Kenneth Black, and a man named Walter Johnson, as far as I can remember. I know there were a good many in the crowd.
“Q. Tell the jury about what time of day that-was? A. Well, it was about half-past one or two o’clock.
‘ ‘ Q. State to the jury whether or not you had any conversation with Montelle Watha, or the other man that you have mentioned. A. Not personally with him, but I had a conversation with all of them.
“Q. What was that conversation? What were you talking about? A. Well, we were talking about dry detectives being in town, and generally talking about the whole thing. About them doing the searching.
“Q. State to the jury whether or not, at that time, you knew that William Howard had been shot. A. Yes, sir; he had.
‘ ‘ Q. State to the jury whether or not there was anything said in that conversation — well, I will ask you this: state to the jury whether or not there was any conversation in that crowd about the death of William Howard at that* time. A. Well, I don’t remember whether there w.as or not.”

Further referring to the record, on page 711, Sanford- Henry, a witness for the state, testified as follows:

“Q. About how long have you known him?” (referring to Montelle Watha.) “A. I think between nine and ten years; possibly longer than that.
“Q. Were you in the city of Newark on July 8th, last? A. Yes, sir.
“Q. That was the day of the lynching and riot? A. Yes, sir.
“Q. Did you, upon that day, see this defendant, Montelle Watha? A. Yes, sir.
“Q. Where did you see him? A. I believe I saw him once on Third street.
“Q. Where upon Third street? A. About the corner of the Franklin National Bank.
1 “ Q. Who, if any one, other than yourself, was present ? A. Well, there was U. G-. Craig, Kenneth Black and Lansing Sutton, and a couple of young men from Granville.
‘ ‘ Q. Did you, at that time, have any conversation with Montelle Watha and the other men that you mentioned ? A. Yes, sir; we were talking together.
“Q. Tell the jury what you were talking about. A. Well, we were talking in regard to the events of the day.
‘ ‘ Q. Tell the jury what it was. A. In regard to the rioting.
“Q. What else? A. And the shooting of Howard.
“Q. State whether or not this defendant, Montelle Watha, was engaged in that conversation, and what he said, if you know. A. Well, he was with the crowd talking; but, in regard to what he said, I can not just remember. I can not just remember at that time what he said while we were talking there.
“Q. How long did you stay together there? A. I suppose we were together there possibly twenty minutes.
‘ ‘ Q. Were you waiting there for anything ? If so, what was it? A. We just simply met there and talked.
“ Q. What, if anything, did you hear this Montelle Watha say? If he did say anything to anybody, during that conversation. . A. I believe I heard him speak to Craig — to U. G. Craig.
“Q. What, if anything, did he say to Craig? Tell the jury what it was. A.. I think he asked Craig how many revolvers he had; and Craig answered: I haven’t got any.”

In the light of the foregoing evidence, we find no error in the action of the court in the* admission of this evidence.

Error is also assigned because the court instructed the jury that “any words, acts, signs or motions, done or made for the purpose of encouraging the commission of the crime, are sufficient” as bearing upon the criminal character of the alleged acts of the defendant.

Persons participating in the commission of a crime do so either as principals or as those who aid, abet, or procure the commission of a crime.

Section 6804, R. S. (12380, General Oóde), provides that whoever aids, abets, or procures another to commit any offense, may be prosecuted and punished as if he were the-principal offender.

After testimony was given to the jury tending to show the state of mind of the plaintiff in error in the afternoon of the day in question, as hereinbefore stated, the record shows that in the evening of that day, the plaintiff in error met with a large number of persons — perhaps thousands — who had assembled in and about the county jail where Etherington was confined, and, in the language of Joshua Hull, a witness for the state, at page 595 of the record, states that the plaintiff in error said, in addressing said assemblage:

1 ‘ I heard him say that he abhorred lynch law, but, in this case, he wanted the blood of Howard — Howard’s blood avenged; and he said: Come on, boys; come on.
‘1Q. What else did you hear ? A. I walked away.
‘‘Q. What was the last thing you heard him say? A..‘I want the blood of Howard avenged.’
‘ ‘ Q. What else ? A. ‘ In this ease. ’ And he says: ‘ Come on, boys; come on.’”

Soon afterwards, it appears that an assault was made on the county jail; that its doors were forced open; that Etherington’s cell was broken into; that he was removed therefrom, and was led to the corner of the public square of said city, where he was hanged to a telephone pole until he was dead.

If the jury believed the testimony of this witness and other testimony introduced in support of this issue of fact, -surely here was an active participation in a felonious plan, under concerted action, rendering the accused liable as an aider and abettor and procurer in the commission of a crime. 12 O. S., 214; 37 O. S., 179-184.

Exceptions were also taken to the action of the court in refusing to give to the jury the following requests submitted by counsel for plaintiff in error. The first request to charge, and refused, was request No. 22, on page 1062 of the record. An examination of the court’s charge shows that the substance of this request was repeatedly and variously given by the court to the jury, and other requests submitted by counsel for the plaintiff in error; we, therefore, find no error on the part of the court in refusing to give such request.

Request No. 3, on page 1060 of the record: The record shows that the court charged the jury on page 1082 on the proposition embraced in said request.

Request No. 1, on page 1058 of the record:' Section 7316, R. S. (13692, General Code), provides that when the indictment charges an offense including different degrees, the jury may find the defendant not guilty of the degree charged, and guilty of any inferior degree. The crime of “riot” not being embraced in the crime charged in the indictment, we think the request made was properly refused.

Requests Nos. 17 and 18, on page 1063, and request No. 4,. on page 1064 of the record, we think were properly refused.

Several other assignments of error are made upon the record, but we do not deem it necessary to notice them further than to say that, in our judgment, they are not maintainable; and, upon the whole record, we are of the opinion that there is no error in the record, prejudicial to the legal rights of this defendant. . The judgment is, therefore, affirmed, with costs. Exceptions noted, and said cause is remanded to the Court of Common Pleas of Licking County for execution.