text:
    JUDGMENTS AND DECREES — LIENS.
    [Wood (6th) Circuit Court,
    April Term, 1903.]
    Parker, Hull and Haynes, JJ.
    A. J. Steel v. Jacob Katzenmyer et al.
    1. Satisfaction ok Dormancy, Only, Kills Judgment Lien — Effects Thereof.
    The satisfaction or dormancy of a judgment are the only contingencies upon which a judgment lien created under favor of Sec. 5375 Rev. Stat, ceases to exist against the real estate of the judgment debtor. The effect of such satisfaction and dormancy is to release the land of the judgment debtor, both in the counties wherein the judgment was rendered and in those into which it has been extended by the issuing and levying of a foreign execution".
    2. Issuing Second Execution, Without New Levy, Sufficient to Keep Judgment Lien Alive.
    The issuing of a second execution to, and placing it in the hands of the sheriff of a county other than that wherein the judgment was rendered within five years from the date of the issue and levy of the first execution will prevent the judgment from becoming dormant as a lien against the real estate of the judgment debtor in such county, Whether issuing the execution to the sheriff of the county wherein the judgment was rendered, and having it there returned, instead of to the sheriff of the county wherein the land was situate, would keep the lien alive, quaere.

    3. Issuing of Second Execution Need not be Entered on Foreign Docket— Purchaser must Search Records.
    There is no statutory requirement that an entry he made upon the foreign execution docket of the issuing of a second or subsequent execution from the county wherein the judgment was rendered; and when the record shows that a judgment lien has been acquired, the duty devolves upon a prospective purchaser to search the .records of the latter county, and ascertain whether the lien has been kept alive or is dormant.
    Fries & Painter, for plaintiff.
    Baldwin & Harrington and J. E. Schatzel, for defendants.
    Appeal from Wood common pleas court.
   PARKER, J.

(Orally.)

The case comes into this court on appeal. One of the defendants is the First National Bank of North Baltimore, Ohio. The proceeding is to marshal liens, and the controversy L about the priority of liens. The First National Bank obtained a judgment in the court of common pleas of Hancock county, Ohio, against the defendant Jacob Katzenmyer on March 31, 1896, and forthwith caused an execution to be issued upon the judgment to the sheriff of Hancock county, and which execution was immediately thereafter received by the sheriff of Wood county and levied by him upon certain lands owned by said Jacob Katzenmyer in Wood county, and the execution was duly returned.

On November 27, 1901, tbe plaintiff A. J. Steel obtained a judgment in tbe court of common pleas of Wood county against'Jacob Katzenmyer, •and caused an execution to be issued and levied upon this same real estate. Tbe defendant L. D. Langmade also obtained a judgment in the court of common pleas* of Wood county on December 11, 1901; an execution was issued upon the judgment and a levy was made upon this land. Tbe defendant Michael Auverter took from Jacob Katzenmyer a mortgage on tbis land on July 3, 1896, and tbis mortgage was duly filed for record, and recorded in Wood county, Ohio. Walding, Kinan & Marvin also obtained a judgment in tbe court of common pleas of Wood county upon April 30, 1900, against tbe defendant Katzenmyer.

It will be observed that one of these judgments was obtained and tbe mortgage was taken before five years bad expired from tbe time of tbe taking of tbe judgment in favor of tbe First National Bank of North Baltimore, Ohio, and tbe levying of tbe execution issued thereon, and two of the judgments were taken after tbe expiration of the five years. It is urged as against tbe levy for the bank, which if it has been kept alive is tbe first and best lien, that its priority has been lost by reason of tbe fact that an execution was not issued upon tbe Hancock county judgment within the five years' succeeding tbe first levy, and levied upon this land, it being insisted that that was necessary to keep tbe judgment alive. Tbis statement of fact is denied by the First National Bank. It insists that it caused an execution to be issued on March 14, 1901, to tbe sheriff of Wood county, which was by said sheriff levied upon tbis land upon March 15, 1901, although it was not returned to tbe clerk of tbe court of Hancock county until July 11, 1902. About tbis dispute there is some confusion in the evidence, but we háve arrived at a conclusion upon the law which makes it unnecessary for us to determine this issue of fact. It is clear that the first execution upon the judgment in favor of the First National Bank was promptly issued and levied upon this land; that another execution was issued upon March 14, 1901, and that it came into the hands of the sheriff of Wood county; and we find that the receipt of the second execution was duly endorsed upon the foreign execution docket, but we are in doubt about when the levy of that execution was made, i. e., when the endorsement of a levy was entered thereon.

Now we are of the opinion that sufficient was done to keep alive the judgment lien in favor of the First National Bank of North Baltimore, and that therefore said bank has preserved and still holds its first lien upon this property.

The statute bearing upon this subject, Sec. 1212 Rev. Stat. provides; for the keeping by the sheriff of each county of a “foreign execution docket,” for the entries to be made therein by the sheriff and the effect of such entries, to wit, “and such entries so made, shall be notice to> subsequent purchasers and creditors of the matters contained therein.” Section 5375 Rev. Stat. provides that “lands and tenements, within the county where the judgment is entered, shall be bound for the satisfaction thereof from the first day of the term at which judgment is rendered ; but judgments by confession, and judgments rendered at the same term at which the action is commenced, shall bind such lands only from; the day on which such judgments are rendered; and all other lands, * # * shall be bound from the time they are seized in execution. ’ ’

There is no provision that the effect of this seizure shall cease at any future time, or that the lands shall cease to be bound, though it is reasonable, and has been decided, that if the judgment becomes dormant the lien ceases to be operative; and as we understand it, the satisfaction, or dormancy of the judgment are the only ways by which, or contingencies upon which the judgment ceases to operate as a lien.

Section 5380 Rev. Stat. provides when and how a judgment .may-become dormant, and impliedly, how dormancy may be prevented, as follows:

“If execution on a judgment rendered in any court of record in this state, or a transcript of which has been filed as provided in Sec. 5377, be not sued out within five years from the date of the judgment, or if five years intervene between the date of the last execution issued on such judgment and the time of suing out another execution thereon, such judgment shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor. ’ ’

Such dormancy would affect the lien of the judgment upon lands in the county where the judgment was entered as well as the lien upon lands in another county to which it has been extended by the issuing and levying of an execution; but in this case, as I have indicated, the second execution was issued within the five years from the issuing of the first execution. Five years were not allowed to elapse without the issuing of an execution. It is contended that the issuing of an execution within the purview - of the statute, consists in having the execution go out of the clerk’s office into the hands of the sheriff and the making of a levy by the sheriff, but we think that is not the true rule. In the case of Kelley v. Vincent, 8 Ohio St. 415, 416, it is held that :

“Taking a writ of execution from the clerk’s office by the judgment creditor of his attorney, and returning the same to the clerk, without delivery to the sheriff, is not suing out an execution within the meaning of Sec. 101 of the statute of March 8, 1831 [29 O. L. 73; see Sec. 5380 Rev. Stat.], so as to prevent the judgment becoming dormant.
The suing out execution expressed by the statute requires an actual or constructive delivery of the writ to the sheriff.”

We think that a fair construction of the statute on this question leads to the conclusion that all that is required is the placing of the writ in the hands of the sheriff. In aiming at this conclusion we have considered the cases of Coal Co. v. Bank, 55 Ohio St. 233 [45 N. E. Rep. 630] and Mason v. Hull, 55 Ohio St. 256 [45 N. E. Rep. 632], which we think sustain our view of the statute. We will not take time to read from them at this time, but simply call attention to them. It is urged that a great deal of inconvenience may result from holding this way,- that a person examining the foreign execution docket would be required to go back in the chain of title and find out whether any foreign execution had ever been levied upon the lands, the title to which he is examining, during the time they were owned by the person against whom the foreign execution was issued, and no matter how far back in the history of the title he'might find such a foreign execution issued and levied upon the land, he must then go to the county where the judgment was entered and ascertain whether that judgment had been kept alive so that he may know whether the lien is still in force. It is insisted that it would be more reasonable to hold that there must be a fresh levy every five years, or at least there must be something upon the foreign execution docket indicating that there had been an execution issued within the five years; but we are of a different opinion; we think the statute does not require it, and it is not unreasonable to require the search of the record which it is said would be required. When it is shown by the record that a lien upon the land has been acquired, it devolves upon the person buying the land to ascertain whether that lien has been kept alive or lost. In this instance the second execution was issued to the sheriff in this county, and the fact that an execution was received was entered upon the foreign execution docket. Our view is that that is not required, and the judgment might be kept alive by simply issuing an execution to the sheriff of Hancock county, and having it there returned; though it is not necessary to decide that point in this case.

We hold that the lien first acquired by the First National Bank has been preserved and kept alive, and the decree will be accordingly.

Hull and Haynes, JJ., concur.


source: Caselaw Access Project

author: PARKER, J.

license: Public Domain

text:
    MANDAMUS — ACTIONS—SHERIFFS-ERROR.
    [Lucas (6th) Circuit Court,
    May 31, 1904.]
    Parker, Hull and Haynes, JJ.
    State ex rel. Burtscher v. Sereno B. Chambers (Sheriff).
    1. Mandamus to Comped Sheriff to Levy Execution Refused, When Adequate Remedy at Law foe Failure.
    Mandamus will not lie wher^ there is a plain and adequate remedy by due course of law; the fact that the remedy by mandamus is more speedy than an action at law is not, alone, a sufficient reason for issuing the writ. Section 6744 Rev. Stat. which adopts this rule, is only declaratory of the common law. Hence, as an action-at law may he maintained against a sheriff on his official bond for the damages resulting by reason of neglect to levy an execution against the property of a judgment debtor to satisfy a money judgment; and as the sheriff may also be amerced therefor under Sec. 5594 Rev. Stat., and as the measure of - damages in such case is clear and free from difficulty, where it also appears that the judgment debtor will, in all probability, continue solvent so that its property may be reached during the life of the writ, and the execution satisfied; in such case, a writ of mandamus will not issue to compel the sheriff to make” the levy.
    2. “Adequate Remedy at Law” Defined.
    The existence of a right of action at law to recover a personal judgment, where the measure of damages is clear and free from difficulty, and the ultimate right and purpose is to obtain pecuniary satisfaction, constitutes an “adequate remedy at law.”
    3. Judgment Debtor may Take Full Time to File Petition in Error.
    As a judgment debtor has four months within which to file a petition in error in the circuit court, it may pursue any legitimate means to avail itself of all the time allowed by statute. In so doing it cannot be said to be guilty of culpable conduct.
    MANDAMUS.
    C. A. Thatcher, for plaintiff.
    E. D. Potter, for defendant.
   PARKER, J.

This is an application by petition and motion for a writ of mandamus to issue to command the sheriff to levy upon certain property belonging to the Lake Shore railroad company which it is said had been pointed out to the sheriff for that purpose by the relator.

It appears from the petition that the relator recovered a judgment at the January term, 1904, against the Lake Shore & Michigan 'Southern Ry. Co. for the sum of $7,500 and costs. The judgment is in full force. On April 25, 1904, an execution was issued on that judgment by the clerk of the court of common pleas of Lucas county, and placed in the hands of the sheriff. It is averred in the petition herein that the railroad company bas abundant personal property in Lncas county, out of which to satisfy the judgment; and, as I have said, it is averred that the relator has pointed out to the sheriff certain personal property, and has-, requested the sheriff to make a levy thereon. The petition further' states that the sheriff has failed and refused to make said levy, and still fails and refuses to make the same, without any reason for such refusal and failure; that no proceedings have been taken by the said defendant', to prosecute error from the said judgment, and no bond has been given! in stay of execution thereon. The relator says that because of this action, or nonaction, upon the part of the sheriff, he is unable to realize the amount due him upon said judgment; that he is without remedy in the premises, unless it be afforded by the interposition of this court. Therefore he prays for a writ commanding the sheriff to levy upon this property which he says he has pointed out.

The ease comes up upon an application for either an alternative or a peremptory writ, whichever may be deemed proper.'

It was suggestéd by counsel who appeared on behalf of the sheriff and as well upon behalf of the railroad company, that an alternative writ might be issued, and the questions made upon the answer to that writ. But it seemed to the court from the first that whether even an alternative writ should issue was exceedingly doubtful. Therefore we thought proper to have the matter presented upon motion, and we have concluded that the writ should not issue.

The statute provides, in accordance with the well-settled rules of the common law upon the subject that have been in force for a long time, that the writ shall not issue if there is a plain and adequate remedy in the premises by due course of law. Section 6744 Rev. Stat. It will be observed that the petition does not set forth that the railroad company (the defendant in the other suit) is insolvent, or that there is any danger that this abundance of property, which the relator says the defendant has in this county, will he gotten out of the reach of the sheriff during the life of this writ, or any time in the future, so that the sheiff vjill not have an opportunity to obtain satisfaction of the writ out of this property. But the relator insists that the statute requires that the sheriff shall pro-ceed immediately, under his writ, to levy upon the property of the defendant that can be reached, and obtain satisfaction of the writ. The statute on the subject contains language indicating that the sheriff should proceed promptly. "The word “immediately” is used in the statute. It appears that the writ has sufficient time yet to run, so that the sheriff may wait several weeks, and yet' have time to levy upon personal property and expose it 'for and bring it to sale during the life of the writ. But the relator insists that the sheriff must proceed at once, and he insists through his attorney that the railroad company is backing the sheriff in such a way as to encourage him to delay action upon this writ, with the ulterior purpose of having the matter drag along for a while, and then file his petition in error and bond in this court, for the purpose of having the matter go over the summer adjournment; whereas, the relator is anxious to have the matter brought to a speedy hearing in this court before the summer adjournment.

Since the law provides that the defendant railroad company may have four months within which to file its petition in error, and it may pursue any legitimate means to avail itself of all the time allowed by the statute, of course it cannot fairly be said that in so doing it it is guilty of ¿anything culpable. On the other hand, it is quite apparent, in the .■absence of averments that the railroad company is insolvent or that this .property is likely to get beyond the reach of the sheriff, that the complainant here has an ulterior purpose, which may be entirely proper and laudable, to compel the defendant below to file its petition in error and bond in a shorter time than the four months which the statute gives it.

But laying aside those considerations, which can; have little if any influence upon our determination of this matter, the real question is, whether the relator has a right under the law to this writ, under these circumstances. It is insisted upon by the relator that he should not be driven to an action for damages against the sheriff, because that might result in his being compelled to enter upon further litigation to obtain another judgment upon which he might have the same trouble about obtaining satisfaction, and so on without limit. He insists, therefore, that he should have this right of requiring the sheriff to proceed to obtain satisfaction of the judgment which he has already obtained. Ordinarily, as we read the law, the right to an action at law to recover a personal judgment, where the measure of damages is clear, and there can be no difficulty about it, and the ultimate right and purpose is to obtain pecuniary satisfaction, is an adequate remedy at law.

It is quite evident that the ultimate purpose here is to obtain a satisfaction in money of the judgment obtained in the court below. If the sheriff shall do any wrong, shall omit to perform any duty whereby the satisfaction of this judgment is not obtained or is lost, he is liable upon his bond. It is laid down by the authorities that the fact that the proceeding by mandamus may be a more speedy remedy than the action at law to recover a money judgment does not afford a sufficient reason for proceeding by mandamus ratber than by action at law. I cite on this point, Merrill, Mandamus Secs. 52, 53, in which is given a great many instances where one having an action at law to recover a money judgment is held to have an adequate remedy at law. I also cite State v. Meiley, 22 Ohio St. 534. The same matter is discussed in Moses, Mandamus 60. I call attention to State v. Craft, 17 Fla. 722. This is a casé that resembles the case at bar more closely than any other ease we have been able to find. It was a proceeding against a sheriff to compel him to execute a writ which called for satisfaction in money. We are cited to many eases, and find many cases, where the sheriff is required to proceed under a writ, of ■execution to do something else than to obtain pecuniary satisfaction, where he has been compelled to proceed by mandamus; for instance, to ■oust one from premises and deliver samé to another, and to give other •specific relief than money satisfaction. This, however, was an ordinary writ of execution upon which the sheriff was required to make the money. The chief justice in delivering the opinion points out that there was some difficulty, or possible difficulty, about the title to the property which the ■sheriff desired to levy upon in this case, and that, it was stated, would afford a sufficient reason for not issuing mandamus; but the court says this beside:

“Again, the proceeding by mandamus can only be resorted to where there is no other adequate legal remedy to accomplish the purpose. The plaintiff wants to make his money; he has nothing else in view. If a sheriff refuses to execute the writ, when it is his duty to execute it, the plaintiff may have his action at law against the sheriff.
“We have not found any case decided by the courts, allowing a mandamus to compel a sheriff to make a levy under an execution in his hands. The court has such control over its officers, and the plaintiff has such right of action for willful néglect'of duty, that it seems hardly possible that a mandamus should be resorted to, though Moses on Mandamus, page 60, suggests that such writ may lie when other remedies prove. to be inadequate. But that point has not been reached in this case.1J

Moses, Mandamus 60, says this:

“If a summons or execution is placed in the hands of a sheriff to.be served, and he neglects or refuses to serve it, the party in whose favor it was issued has a remedy by action against the sheriff, and therefore, as an ordinary rule, a writ of mandamus would not lie to compel him to serve them. There may, however, be cases, where such remedy by action would be inadequate, in which case no doubt a mandamus would lie to compel the sheriff to perform his duty. ”

We have no fault to find with that statement of the law; but we take it that where the ease is presented of an apparently solvent defendant, who is likely to retain the property, so that the sheriff may reach it during: the life of the writ, and where the proceeding is to obtain satisfaction in-money, so that an action may he had against the sheriff upon his bond,, and there will be no difficulty about the measure of damages, there is an adequate remedy at law, and the sheriff may not be proceeded against in this way.

There is another remedy at law provided by statute. Sec. 5594 Rev.. Stat. provides for a very summary process and remedy. It is as follows t

“If an execution or order of sale, directed to an officer, come to his-hand to be executed, and he neglect or refuse to execute it; or if he neglect or refuse to sell property of any kind which, by any writ or order, he is-, directed to sell; or fail to Call an inquest, or to return to the clerk's, office a copy of the certificate of appraisement made by the inquest; or neglect to return to the proper court an execution or order of sale to him directed, on or before the return day thereof; or neglect to return a correct inventory of personal property taken on execution, unless he return that the amount of the judgment, including costs, has been paid to him; or neglect, on demand, to pay to the person entitled thereto, any money by him collected or received for the use of such person, at any time-after he collects or receives the same; or neglect or refuse, on demand, to pay to the judgment debtor all money by him received on any sale made, beyond what is sufficient to satisfy the writ or order of sale, with, interest and costs, such officer shall, on motion in court, and notice thereof, in writing, as provided in the next section, be amerced in the amount of such judgment, including costs, with ten per cent thereon, to and for the-use of such plaintiff or defendant, as the case may be.”

Under this statute it is not necessary to bring another action. It is only necessary to proceed by motion in the court where the judgment is obtained, and if the sheriff is chargeable with declining to execute his writ, the remedy is very simple and very summary. It was adopted in Graham v. Newton, 12 Ohio 210 (for this is not a new statute) ; there the-sheriff was amerced for refusing to levy and obtain satisfaction of a judgment, and the ten. per cent was added. He instituted proceedings to obtain a reversal of the judgment, and the Supreme Court affirmed the judgment, saying that the only fault with it was that the lower court had failed to compute and add the interest before computing the ten per cent penalty; that the ten per cent penalty should have been computed upon the original judgment, interest thereon, and costs, and added thereto. If the sheriff is in fault in this matter, as complained by the relator, here is another very simple and very effective remedy afforded by the statute. ■

Whether he is in fact at fault in not making an immediate levy is a question about which we now express no opinion, leaving that for the court where the proceeding may be instituted.

For the reasons stated the writ will be refused and the petition dismissed.

Hull and Haynes, JJ., concur.,


author: PARKER, J. HULL, J.

text:
    DAMAGES — NEGLIGENCE —EVIDENCE —CHARGE TO JURY.
    [Wood (6th) Circuit Court,
    April Term, 1903.]
    Parker, Hull and Haynes, JJ.
    David W. Bowe v. Charles F. Bowe.
    1. Question as to Experience Necessary to Work at an Occupation Safely, Improper, When.
    In a suit for damages for personal injuries resulting from an employer’s negligence in permitting inexperienced plaintiff to perform a certain act in connection with the pumping of an oil well, the admission of questions as to the length of time it would require one of ordinary intelligence to acquire sufficient experience to pump a well with safety, etc., is error. Such questions are not only indefinite in meaning, but are too broad in application; they should have been directed to the particular act, which might in fact have required little or no experience.
    2. Physician’s Bill Paid by Defendant, not an Element of Damages.
    A charge to the jury in a suit for personal injuries caused by defendant’s negligence, that they should consider physician’s charges in making up the amount of damages, when it appears that defendant paid the bill, and plaintiff incurred no liability therefor, is improper.
    2. Minor Plaintiff Cannot Recover for Mother’s Services, Unless Manumitted.
    In such case, plaintiff cannot recover for the value of the services of his mother as nurse, in the absence of a special contract between them, or proof of his manumission.
    4. Minor Plaintiff not Entitled to Recover for Wages When not Emancipated.
    Under such circumstances, a charge which submits to the jury the consideration of the question of the length of time plaintiff had been earning wages, where it appears that plaintiff had not been emancipated and that therefore his time belonged to his parents, is improper.
    5. Immaterial Questions Concerning Defendant’s Conduct, Prejudicial.
    Under the above facts the admission of questions as to whether defendant employed “child labor,” concerning his financial responsibility, as to subsequent promises of employment made to plaintiff, as to his conduct toward plaintiff, etc., is prejudicial to defendant, and is error.

      ERROR to Wood common pleas court.
    James 0. Troup, for plaintiff in error..
    James & Beverstock, for defendant in error.
   PARKER, J.

(Orally.)

The action in the court below was 'by Charles F. Bowe against David W. Bowe; an action in which he charged the defendant below as his employer, with negligence in furnishing him with unsafe and improper machinery and appliances to work with, and putting him at a dangerous occupation without warning him of the dangers incident thereto, he, the plaintiff, it is said, being a youth and inexperienced in that kind of work.

The trial resulted in a verdict in favor of the plaintiff below for $3,500. A motion for a new trial was overruled and judgment entered upon the verdict.

Error is alleged in the action of the court in overruling the motion for a new trial, and in various matters upon the trial of the case.

It is charged in the petition in substance, that the defendant David W. Bowe bein'g the owner of a farm upon which oil wells have been drilled by him, and which he was operating, employed plaintiff and put him to work as a pumper; that one of the wells, No. 9, was not properly equipped; that is to say, that a certain part of the apparatus called the adjuster rod was too long, and that it was connected with another appliance called a “Dix grip,” so that in the ordinary operation of pumping the well it became unscrewed, and that one of the results of this unscrewing of the Dix grip from this too lengthy adjuster rod, was that the Dix grip would fall or be carried downward, and being connected by the rods to which it was fastened, the Dix grip would strike upon a certain other part of the apparatus called the stuffing box; whereas if it had been properly adjusted, it would not have struck upon this stuffing box but would have remained above it. It is also said that one of the duties of the plaintiff below was to turn the rods in the well; that it became necessary to do this every day, and that the proper apparatus for turning rods was either a wrench or £ £ Crombie ’ ’ tongs; that he was not furnished a wrench or Crombie tongs, but that he wras furnished with a stick and rope and instructed to use those in the operation, and that those were not safe nor proper appliances; also, that in this operation of turning .the rods by the use of the rope and stick, the plaintiff below was required to or would naturally put his hand upon a part of the apparatus called a polish rod, or.upon the lowér part of the Dix grip near the polish rod, and that while he was carrying on this operation with a stick and rope with his hand npon the lower part of the Dix grip near to or npon the polish rod, the Dix grip became unscrewed from the adjuster pipe, the weight of the rods in the well carried the Dix grip •down to and upon the stuffing box, and his right hand being in the position described, was caught between the Dix grip and the stuffing box in such a way as to lacerate it and sever the thumb and some of the fingers.

It is said that he was young and inexperienced and did not know that he was required to work with an unsafe appliance, and did not know ■of the danger of working with this device, or that it was dangerous for him to use it in the manner required; and the defendant being advised of his inexperience and being aware of these dangers, was guilty of negligence in failing to inform plaintiff and instruct him as to the proper method of doing this work, and the incidental dangers.

All this alleged negligence is denied by the defendant below. It is denied that the appliances furnished were unsafe or improper and that the connection and adjustment of the apparatus was wrong, and it is averred that the.plaintiff’s injury came about from his own negligence contributing directly thereto.

It appears that the plaintiff was nearly eighteen years old at the time of the accident. How long he had been working at operations of this kind is somewhat uncertain, but it was somewhere between two and five months. On the occasion in question he was working by himself, having no overseer or instructor. It does not appear that he. had ever before turned rods by the use of a rope and stick, but that part of the case may as well be disposed of at once, and it can be done in a very few words. "We find that it is very clear from the evidence that the rope and stick are as proper and as safe an appliance as either the Crombie tongs or a wrench. We find that any verdict of the jury based upon a finding that it was not as safe as either of the others, would not be supported by the evidence.

That leaves for consideration the, question of the alleged improper adjustment of the machinery and the alleged failure to warn the plaintiff below of latent dangers incident to the employment, even if that adjustment and appliance were proper, he being as alleged, young and inexperienced.

A great many witnesses were called on behalf of the plaintiff, and these were met by witnesses called on behalf of the defendant, to testify as experts upon various subjects connected with oil operations, as to the proper appliances and proper adjustments thereof; proper modes of operation, etc., and among other things asked of those so-called expert wi'nesses was a question respecting the length of time that one must be employed in work of this character in order to become so skillful and experienced as to enable him to do the work with safety. I will read the form of the question as stated in one or two places. It is not varied much. I read from page 79, A. J. Fowler testifying on behalf of the plaintiff is asked the question: “State, what, in your opinion, is the usual and ordinary time required for a person or ordinary intelligence to acquire sufficient experience to enable him to pump an oil well with safety?” Now with safety to what, or safety to whom is not suggested in this question. "Whether it meant with safety to the machinery, or safety to the operator, or with safety to someone else, or something else, is altogether uncertain. The uncertainty- is perhaps emphasized as the question is somewhat varied at pages 36 and 37 where there is another impropriety involved in the question in that it is not applied to the kind of apparatus 'that was in use upon this lease. This is the question: “State what in your opinion is a proper time required for a person of ordinary intelligence to acquire sufficient experience to enable him to pump am oil well with safety when that well is pumped from a power and with a Dix grip attachment on the polish rod and adjusting rod?”

It ap pears that the wells in this case were not pumped from a power. Now whether that would make any difference or not, whether it would take more or less time, of course we cannot say. The answer was: “It would be awing to how smart the man was. Some would not learn as quick as oihers, but I should think a man ought to have at least six months’ experience to be a pumper with safety;” and the answers generally were that it would take from six months to a year; one witness showing that he did not know whether it applied to a question of safety to the machinery or to the operator when he answered that he would not trust his machinery in the hands of a man who had not at least six months’ experience.

Now the real question here was on this branch of the case: What if any knowledge had the plaintiff of the defects in the machinery and the danger incident to operating the same, or if youthful and inexperienced, what if any knowledge of the dangers incident to the work at which he was put, independent of any question of defects. In this case the question should be directed to the particular defects alleged, or to the particular work and the dangers incident to that work.

How long it might take a person or ordinary intelligence and of the plaintiff’s age to learn to perform all the operations required upon a lease in pumping for oil, we think is too broad a question. How long it might take a person or ordinary intelligence, of the plaintiff’s age to learn the particular part of the duty in which he was engaged at the time he was injured, might do, but the question should not be broader than that. It is somewhat doubtful if this is at all a subject-matter of expert evidence. How can a so-called expert tell how long it will take a person of ordinary intelligence to gain such knowledge. There can be no rule upon it. It depends upon a great variety of circumstances. One person put to work pumping oil wells might learn it the first day and first hour of his employment as fully as if he had been at it six months; I mean the particular part of the work that the plaintiff here was engaged in perfoming at the time he was injured. On the other hand he might work his full six months and not learn it at all; might not learn a thing about it; indeed he might not be called upon to perform such service until near the end of the period. Such operations might not be carried on upon the lease, or if so, they might be carried on by someone else than him. Now it is apparent that if a person put to work upon an oil lease as a pumper should be required to toggle up the machinery and keep the surface rods in repair; to keep the steam boxes in repair, etc., and in performing that duty in attempting to drive a nail, should mash his finger, it would be altogether improper, if he were attempting to recover damages from his employer, to ask a person denominated an expert, how long it would take a person on an oil lease working as a pumper to learn all the intricate work incident to that employment. And that was substantially the course pursued here.

According to the testimony of the witnesses, this was a very simple •operation; and something which, with proper instruction and observation, a reasonably intelligent person ought to learn in a very short time; and yet witnesses are asked how long it will take a person to become competent as a pumper. We know from common experience, as well as the testimony of witnesses, that some of the duties of a pumper require a knowledge somewhat intimate, of machinery and appliances; of the proper firing of the boiler and the proper management and operation of an engine, and a great many things of that sort which are not to be compared of course to some of the simpler, ordinary duties devolving upon a pumper on a lease.

We think this was prejudicial to the defendant below for the reason that it is charged in the petition here that the plaintiff was inexperienced and that he received this injury somewhat through his inexperience, and by these questions and answers-the. jury are led to the thought and^ conclusion that a person who has not been upon an oil lease for at least sis months is an inexperienced person and is to be so considered by them, while as I say, it is apparent that as far as the particular operation is involved he might be a thoroughly experienced person in a very-short time. In .fact, some of the plaintiff’s own witnesses on cross-examination, testified that a person ought to learn how to perform the particular operation in fifteen minutes.

It appears that after the plaintiff had received this injury he required, and had the services of a physician and surgeon, and that the bill of the physician and surgeon was. $40, and that this was paid by the-defendant; also that the plaintiff incurred no liability and paid nothing,, and yet, the court submitted to the jury among other things for their consideration in making up the amount of damages resulting to the-plaintiff from this injury, the matter of the doctor’s bill. There was no evidence in the record authorizing a submission of that item.

Again, it appears that while the boy was disabled, his mother served him as a nurse and helper. The boy was a minor. He was living at home. It does not appear that he incurred any liability to any other person, and he could not incur any liability to his mother unless the circumstances were very special; unless he had been manumitted or there was some contract between them which was shown. A liability might arise then, but certainly not under circumstances like those appearing here. And yet the court submitted to the jury for their consideration the question of the value of her services and the liability incurred on that account.

Another, and still more serious error upon this question of damages, is this: It appears that something like three years intervened between the time the boy received this injury and the time he obtained his majority. It does .not appear that his time was his own. He was living at home with his father and mother; his time belonged to them, and yet, the court submitted to the jury for their consideration the question of. the time he had lost, including this period of minority. He had been. earning wages at the rate of $2 a day when at work. His time in three years would, if he were steadily employed, bring him therefor the sum of $1,878. If there was nothing else wrong in the case except this doctor’s bill; if there was nothing wrong besides his mother’s services, which I think it is indicated in the testimony were of the value of $100, the mischief might be obviated by a remittitur damnum; but in order to correct the verdict as to this matter of damage due to the supposed loss of earnings, the court would be required to make remittitur of the most that the testimony' shows he might have earned during that entire period, or $1,878, and that added to the $40 doctor’s bill, and the $100 for his mother’s services would require a remittitur of over $2,000, which might be very unjust to the plaintiff, if he should be entitled to anything.' We have never undertaken, and do not know of any case in which a court has undertaken to exercise the authority to require remittitur to that extent.

It appears to us also that there was considerable extraneous matter brought before the jury here that was immaterial and should not have been let in and was likely to be prejudicial to the plaintiff in error. He was asked, and required to answer whether he was not engaged in the employment of “child labor” down there on his lease. The fact had been brought out that he had one boy who had worked for him, and in addition to this, his own children when not at school. They were not of age, but at what particular employment they were engaged or what they were required to do, the evidence does not advise us. But we think that the court should not have required the defendant to submit to interrogation upon that point. He was not being prosecuted for employing child labor, and the result to the plaintiff below was the same and the liability of the defendant below was the same, whether he had employed child labor or not.

Another matter was the injection of the question of the wealth of the defendant. This was entirely improper. To be sure it was not excepted to, yet we think it proper to make mention of the fact that we regard it as improper, and we think it helps us to see how the result obtained was probably reached or brought about. The plaintiff was entitled to a judgment for as much, if the defendant were a pauper as he would be if the defendant were a millionaire. The question of defendant’s wealth had nothing to do with it. The question was the extent of the damage to the plaintiff below.

Another matter proved, was the fact that the plaintiff below cried in the presence of the defendant; that he cried about his injury, and that the defendant below promised him employment and did not give it to him. Defendant was not sued on a promise to give employment or for a breach of such promise. The damage was the same to the plaintiff below and the defendant’s liability was the same whether defendant had been guilty of a subsequent breach of promise 'of that character or not.

Another thing proved was the fact that the defendant failed to speak to the plaintiff. That, we think the court should have excluded. It was not a case where animosity or feeling on the part of the jury should have been stirred up on account of any bad treatment that the ■defendant below might have been guilty of after this injury was received; because plaintiff’s right to recover, if he had any right at all, ■occurred the moment his hand was mashed,- and his right to damages could not be increased or swollen by any contemptuous, ugly or unfriendly conduct on the part of the defendant thereafter. - ,

We speak of these things because the case must be sent back tó be retried, and I want to say in this connection that this criticism is not directed against counsel for plaintiff below only; because there is some excuse and possibly some measure of justification for this line of inquiry to be found in the fact that counsel for defendant below had inquired whether this suit had not been begun without any demand or anything of the sort; and it seems that to excuse the fact that no previous demand had been made, counsel for plaintiff undertook to show that the parties were not on speaking terms and that therefore there was no opportunity offered for a previous demand. The whole matter on both sides should have been excluded. The case is hot reversed on this point, but after consultation we deem it proper to say something about it so that if the case should come before us these same matters, or other like irrelevant matters may not again appear in the record.

In the motion for a new trial, one of the assignments of error is that the verdict is against the weight of the evidence, and we are required by law to pass upon this assignment. In view of the fact that we intend to reverse this judgment and-send the case back to be retried,

I shall not discuss this question, but will simply say that a majority of the court are of the opinion that the court below erred in refusing to sustain the motion on this ground.

We find no other errors in the record that we regard worthy of mention or sufficiently prejudicial to require a reversal of the judgment, but on account of those pointed out, the judgment will be reversed and the case remanded for a new trial.

Haynes, J., concurs.

HULL, J.

I concur with the rest of the court in the reversal of this judgment for the errors indicated in the opinion of Judge Parker, but I dissent j in the opinion that the court of common pleas erred in refusing to set aside the verdict on the ground that it was against the weight of the evidence.

In my judgment under the decision of the Supreme Court, it would have been an invasion of the province of the jury for the court of com-' mon pleas to have granted a new trial on that ground.


text:
    DESCENT AND DISTRIBUTION — STATUTES.
    [Wood (6th) Circuit Court,
    April 25, 1903.]
    Parker, Hull and Haynes, JJ.
    Robert Digby v. Willis J. Digby et al.
    1. Operation of Sec. 4162 Rev. Stat. may be Prevented by Changing Character of Property.
    A relict of a deceased husband or wife acquiring an estate from a former deceased husband or wife does not take it impressed with a trust, but with, an absolute right to dispose of and change the character of the property thus acquired so as to prevent the operation of Sec. 4162 Rev. Stat. upon it.
    2. Section 4162 Rev. Stat. Should not be Construed Upon Equitable Principles.
    The provisions of Sec. 4162 Rev. Stat. are not to be construed upon equitable principles in the determination of questions arising thereunder which involve the descent of property, but the rights of the parties are to be determined by the legal title and their legal status.
    3. Money Received Prom Oil During Lifetime of Decedent not Controlled by Sec. 4162 Rev. Stat.
    Money received during the lifetime of a deceased wife from the sale of oil from land which came to her from her husband, not being the identical property which came to her from him, its distribution after her death is not to be controlled by the provisions of Sec. 4162 Rev. Stat.
    ERROR to Wood common pleas court.
    Beverstock & Donahey, for plaintiffs in error,
    cited:
    Section 4162 Rev. Stat., 74 O. L. 81; 78 0. L. 107; 84 O. L. 134; 86 O. L. 87; 87 0. L. 66; Stembel v. Martin, 50 Ohio St. 495; [35 N. E. Rep. 208]; Russell v. Bruer, 64 Ohio St. 1 [59 N. E. Rep. 740]; Bruer v. Johnson, 64 Ohio St. 7 [59 N. E. Rep. 741]; Caruthers v. Tarvin, 8 Re. 344 (7 Bull. 127); Tarvin v. Broughton, 8 Re. 451 (8 Bull. 21); affirmed by Supreme Court, November 11, 1884, without report; McDermott, In re, 13 Dec. 390.
    The property at the time it came to Sarah A. Digby came to her as real estate for the reason that it is personal propety derived from the sale of oil received from the lands owned'by her husband, John E. Digby. At the time it was devised to her, it was real estate for the reason it was a part and parcel of the real estate and had not been separated therefrom. Kelley v. Oil Co. 57 Ohio St. 317 [49 N. E.. Rep. 399; 39 L. R. A. 765; 63 Am. St. Rep. 721].
    Baldwin & Harrington, for defendants in error.
   PARKER, J.

(Orally.)

This action is brought to obtain a reversal of the judgment of the court of common pleas of this county.

The action was brought in the court below by the defendant in error, Willis J. Digby, as administrator of the estate of Sarah A. Digby deceased, asking the direction of the court in making distribution of' certain property in his hands as such administrator, which property came to decedent, as is averred in the answer, in the way of moneys, received from the sale of oil from lands owned by her husband John E. Digby, and which land came to her by devise from him.

John E. Digby died in the year 1891 without issue, but leaving a® his relict, Sarah A. Digby. Sarah A. Digby died intestate in the year 1901 without issue, possessed of the real estate which had been thus: devised to her and also, as is stated, of a large amount of personal property, or money derived from the sale of oil, crude petroleum, extracted from these lands.

A controversy having arisen between different sets of heirs as to. how this fund arising from the sale of the oil should be distributed, the-administrator has brought this action to obtain the advice and direction of the court upon it.

It is claimed by the heirs of Sarah A. Digby that the whole of this-fund, together with the lands and other property coming from her husband, should go to them. It is claimed by the heirs of John E. Digby that at least one-half of this fund should go to them, under and by virtue of the provisions of Sec. 4162 Rev. Stat. The heirs of‘John E. Digby have filed an answer setting forth their relationships; setting-forth thát this fund was derived in the manner I have stated and praying for distribution to them of what they claim is their share. To that, answer a general demurrer was filed and sustained, and judgment was; entered against them, and therefore the heirs of John E. Digby prosecute-error in this court to reverse that judgment. As I have stated, they claim under Sec. 4162 Rev. Stat. a part of the chapter of the Revised Statutes upon the subject, of descent and distribution, which reads as-follows:

“When the relict of a deceased husband or wife shall die intestate- and without issue, possessed of any real estate or personal property which came, to such intestate from any former deceased husband or wife by deed of gift, devise or bequest, or under the provisions of Sec. 4159, then such estate, real and personal, shall pass to and vest in the children of said deceased husband, or wife, or the legal representatives of such children. If there are no children or their legal representatives-living, then such estate, real or pérsonal, shall pass and descend, one-half to the brothers and sisters of such intestate, or their legal representatives, and one-half to the brothers and sisters of such deceased husband or wife from which- such personal or real estate came, or their personal representatives.

It is claimed by the plaintiff in error that with respect to this property, they come fully within the provisions of this statute. There has-been no trouble about the division of the land; no trouble, I believe,, about the distribution of certain personal property that the deceased,. John E. Digby had devised to his wife and which remained in her possession as personal property at the time of her decease; but here it will be observed, is property which if it can be said to have come from Johm E. Digby, has changed its form and character.

The land came to Sarah A. Digby by de-vise from her husband; she operated oil wells upon that land; whether this money represents royalty or product coming to her as an operator we are not advised, and we think it makes no difference; whether the wells were opened and in operation at the time of the decease of her husband or whether they were afterwards drilled by her or in pursuance of authority from her, in the view wre take of the ease, makes no difference. She acquired the real estate from her husband; from this land she extracted the oil and sold it, and converted it into money, and, of this fund she died possessed.

Now it is urged on the part of the plaintiff in error that this fund should be treated as land — a part of the land that came to her from her husband.' Of course it cannot be said that it is personal property that came to her from her husband by devise or bequest, because at the time of his death he was not possessed of any such property as personal property. If he may be said to have been possessed of it, it was a part of the land; it was then in the land; but it is said that the changing of its character by her from real estate into personal estate, should not change the course of its descent; that it should be regarded for the purposes of this case, and for the purpose of fixing the line or course of descent, as a part of the land which she derived from her husband, its character as land should not be lost by its conversion into money; and we are cited to certain nisi prius decisions which seem to give some support to this view. Some of them are at least based upon the conclusion that the property there in question was not changed in character; that substantially the identical thing left by the husband or wife as the ease may have been, was preserved intact by the surviving husband or wife until the decease of the latter.

It will be observed that this statute does not provide that the increase or profits of either real or personal property thus coming to the relict shall be impressed with the same character or shall descend in the way there pointed out. We look upon the statute as providing that the very thing left by the deceased husband or wife to the relict must be preserved in form; that its character or substance shall not be changed,.in order that the statute may operate upon it; and we. regard the statute as analogous to See. 4158 Rev. Stat. in that respect, and as being properly subject to the ¿ame construction in cases of this character as has been put upon that section.

Section 4158 Rev. Stat. provides for the descent of ancestral property. Now it is well known that where one takes property as ancestral property and does not change his title, but dies seized of the ;same, in the same form and by the same title he inherited, it -will descend under this section as ancestral property; but, should change in its form or title occur, it would not descend under this section, but under Sec. 4159 Rev. Stat. as nonancestral property. One taking an ancestral estate under Sec. 4158 Rev. Stat. does not take it as a trustee; lie does not take it so' that he is bound to preserve its character as an ¡ancestral estate in order that it may descend as provided for the descent ¡of ancestral .property; but he takes it absolutely, with the full and ^unqualified right of disposition or jus disponendi; and it has been held that where two persons take their estates in this way from the same ancestor, and then make an exchange of their property, the property they thus acquire in exchange they do not hold as ancestral property, but it becomes nonancestral property. It is so held in the case of Brower v. Hunt, 18 Ohio St. 311, the syllabus of which reads as follows:

“The title to real estate which must have come to an intestate by devise, or deed of gift from an ancestor, to constitute ancestral property, is the title under which the intestate immediately held.
, “Where specific tracts of land had been allotted to codevisees in pursuance of directions in the will of their ancestor, and, afterward, one conveyed his tract to a codevisee1 for a moneyed consideration as expressed in the deed, but in fact for a like conveyance, by the latter, of the tract he has received in the partition: Held, that the title of neither was derived directly by devise from the ancestor, and that, for the purposes of descent, each' was to be regarded as a purchaser."

They might, for the very purpose of changing the course of descent change it from ancestral to nonancestral property, and they would not be guilty of any legal wrong in so doing. A person receiving ancestral property in that way, would have a perfect right to do that, because he does not receive it as a trustee, He may sell it or convey it away, or so manipulate Ms affairs as to convey it, and have it reconveyed to himself, henceforth holding it as nonancestral property. Now it will be observed that these sections both appear in this chapter and that they read very much alike.

Section 4158 Rev. Stat. reads:

“'When a person dies intestate, having title or right to any real estate or inheritance in this state, which title came to such intestate by descent, devise, or deed of gift from an ancestor, such estate shall descend and pass,” etc.

Section 4162 Rev. Stat. reads:

“When the relict of a deceased husband or wife shall die intestate and without issue, possessed of any real estate or personal property which came to such intestate from any former deceased husband or wife by deed of gift, devise or bequest, or under the provisions of Sec. 4159, then such estate, real and personal, shall pass to and vest, ’ ’ etc.

We think what I have stated with respect to See. 4158 Rev. Stat. is true of Sec. 4162 Rev. Stat. that the person acquiring the estate from a deceased husband or wife, does not take it impressed with a trust — does not take it as a trustee, but takes it with an absolute right to dispose of it, and a right to change the character of the property so as to prevent the operation of this statute upon it; that he may rightfully change it so that it may not be said that the title of which the person died seized was derived immediately from a deceased husband or wife, and so that it may not be said that the property of which the person died possessed, was the personal property or real estate' which came from the deceased husband or wife, as the ease may be.

Now that being our view of the statute, and it being clear that this fund it not the identical property, whether real estate or personal property, coming from John E. Digby, but is issue therefrom, or something derived from changing the character of that property, this statute does not operate upon the fund.

In line with Brower v. Hunt, supra, and the views I have here expressed with respect to Sec. 4158 Rev. Stat. is the case of Patterson v. Lamson, 45 Ohio St. 77 [12 N. E. Rep. 531]. There was a case in which a father purchased a certain tract of land for his daughter, a house and lot, quite valuable; he furnished all the funds and made a gift of that property to his daughter. But instead of having the property conveyed to himself and then conveying it,to his daughter as a gift so she would have received it under this statute as a deed of gift from an ancestor, he caused the person from whom he purchased it to convey it directly to her; sbe died thereafter intestate and without issue, leaving her husband surviving her. It was urged that the land should be treated as ancestral property, as property which came from her father by deed of gift; that equity would look through the form and get at the substance of the transaction; and the circuit court of the Cleveland circuit so held, Judge Haynes of this bench delivering the opinion of .the circuit court; but the Supreme Court reversed that decision and held as follows:

“1. Under the statutes of descent and distribution, the course of descent of real estate is to be controlled by the legal title.
“2.' Where the intestate’s title to real estate is free from controversy, in determining its course of descent and whether it is ancestral or nonaneestral property, the statutes of descent and distribution are not to be construed and administered upon equitable principles, but by rules of law.
“3. In determining, in such case, whether an instrument for the conveyance of land is a deed of gift or a deed of purchase, its recitals of the payment and receipt of the consideration are material; and a recital in such deed that the conveyance by the named grantor to the grantee is made in consideration of a specified sum of money received by such grantor from the grantee, so far concerns the operation and effect of the deed as that it is not competent to show, by parol proof, that such instrument is, in fact, a deed of gift from a person not named in it, and that the named consideration was in fact paid by him.
“4. A father desiring to make his daughter a wedding gift, bargained for a tract of land, paid the agreed purchase price in money, and caused the vendor to convey it to the daughter just prior to her marriage. She died thereafter intestate, * * *: Held, the title to the land did not come to her ‘by deed of gift from an ancestor,’ within the meaning of See. 4158 Rev. Stat. * * * which provides that if the estate came not by devise, descent, or deed of gift, it shall, if there be no children or their legal representatives, descend and pass to the husband or wife relict of the intestate.”

That has been followed by the Supreme Court in a number of eases since then, one decided last winter.

We think and hold that what is true of Sec. 4158 Rev. Stat. is true as well of Sec. 4162, viz., that such questions thereunder are not eon-sidered or determined upon equitable principles; that the legal title and the legal status determine the rights of the parti when it comes to the matter off deseent of property, and so holding, we affirm the judgment of the court of common pleas. •

Hull and Haynes, JJ., concur.


author: VOORHEES, J„

text:
    INTERSTATE COMMERCE — EXCISE TAXES.
    [Coshocton (5th) Circuit Court,
    May Term, 1904.]
    Voorhees, Donahue and McCarty, JJ.
    Julius, for a Writ of Habeas Corpus, In re.
    .1. INTERSTATE COMMERCE, WlIAT IS — GOODS NOT SUBJECT TO STATE TAXATION, When.
    The negotiation of sales of goods which are in another state, for the purpose of introducing them into the state in which the negotiation is made, is interstate commerce. Such commerce is not subject to state taxation even thougn there be no discrimination between it and domestic commerce.
    2. Same — The Sale in One State ox Goods Manufactured in Another State is Interstate Commerce, and not Subject to State Taxation.
    A manufacturer of goods which are the legitimate subject of commerce, who carries on his business of manufacturing in one state, can send an agent into another state to solicit orders for the products of his manu-factory without paying to the latter state or a municipality within such state a license for the privilege of such soliciting to sell his goods.
    2. License Tax, a Tax on Goods.
    A license tax required for the sale of goods is in effect a tax upon the goods themselves.
    •4. Same — A Direct Burden on Interstate Commerce, When.
    A license tax imposed by a municipal corporation within one state upon an agent of a citizen of another state, for the privilege of selling or seeking to sell his goods in the former state, is a direct burden on interstate commerce, and, therefore, beyond the power of the state and of the municipality thereof.
    ¡5. Same — Ordinance ox Municipality in Conflict with Sec. 8, Art. 1 of the Constitution of the United States, When.
    An ordinance of a municipality of this state under which a license fee is required from the agent of a portrait company residing in another state for the privilege of canvassing for orders for the copying or enlarging of pictures to be manufactured by said company in said foreign state and delivered to customers in said municipality is in conflict with Sec. 8, Art. 1 of the constitution of the United States, and, therefore* void.
    Habeas Corpus.
    Charles B. Hunt and T. C. Roche, for petitioner,
    Howard E. Hahn, city solicitor, contra.
   VOORHEES, J„

This is an application on the part of Oscar Julius to the judges of the circuit court of this county for a writ of habeas corpus. The petitioner was arrested upon a warrant issued by the mayor of the city of Coshocton, in the county of Coshocton and state of Ohio, based upon an affidavit charging that:

“ Said Oscar Julius, on or about December 21, a. d. 1903, at the city and county aforesaid, unlawfully did violate the license ordinance of said city in this, to wit, by canvassing in the corporate limits of said city, for orders for the copying and enlarging of pictures in what is known as portrait photographing, which copying and enlarging was not to be the product of the hands of the said Julius, nor was said work to be done within the limits of said city, but was to be done by the Chicago Crayon Company, a corporation under the laws of Illinois and located at Chicago, Illinois, of which said Julius was an employe, no license having been obtained from the mayor of said city by said Oscar Julius or said corporation, which act was contrary to the ordinance in such case made and provided.”

To which affidavit the defendant demurred. The demurrer was overruled and exceptions taken. Thereupon the defendant entered a plea of not guilty, waived in writing a trial by jury and submitted to be tried by the mayor. Upon trial he was found guilty as charged in said affidavit, and it was ordered and adjudged by the mayor that defendant pay a fine of five dollars and costs of prosecution, taxed at .three dollars, and stand committed to the city prison until the fine and costs were paid, or discharged by due process of law. To which order and judgment of the mayor the defendant then and there excepted.

Defendant filed his motion for a new trial, which motion was overruled and exceptions taken. Thereupon the defendant applied by petition to this court for a writ of habeas corpus, on the ground that he was unlawfully restrained of his liberty by reason of such conviction, fine and imprisonment, for the reason that the ordinance and the statute of the state under which he had been arrested, tried, convicted and sentenced, were in conflict with the constitution of the state' of Ohio, and with the constitution of the United States.

A writ of habeas corpus was issued by one of the judges of this court at chambers for the production of the body of the said Oscar Julius before the circuit court in and for said Coshocton county, on the first day of its next term to be held at Coshocton, May 10, 1904. At said May term of the circuit court the cause was submitted upon the petition, exhibits, and an agreed statement of facts.

After what has already been stated, it will be sufficient for the determination of the law of this case to say, that from the agreed statement of facts it appears that the defendant was on December 21, 1903, canvassing said city of Coshocton, going from house to house, showing samples of portaits and soliciting orders for similar work to be sometime thereafter delivered and paid for; that he was acting as the agent and employe of the Chicago Crayon company, a corporation duly incorporated under the laws of the state of Illinois, and engaged in the making of portraits in oil, crayon, India ink, water colors and pastel, said portraits being made in the city of Chicago, Illinois, and sold by the agents of said company in various states of the United States, includng the state of Ohio; that no license was procured by said defendant or said company from the mayor of said city of Coshocton, as required by its ordinance; that said defendant did not deliver any goods, wares, or merchandise for any purpose in said city of Coshocton, nor did he receive any money in payment for any such articles; that said portraits were not to be the product of said agent’s own hands, nor was the work to be done in the corporate limits of said city, but the work was to be done in the city of Chicago, Illinois, where said corporation is located; that said portraits when made were to be shipped from the city of Chicago to the city of Coshocton, and there delivered to the persons ordering the same, and upon said delivery payment was to be made; that said Oscar Julius is a nonresident of the state of Ohio and is a citizen of the state of New York.

The arrest was based upon an ordinance of the city of Coshocton passed April 29, 1902, and known as Sec. 125 of the revised ordinances of said city. Said section is as follows:

“ It shall be unlawful for any person, persons, firm or corporation to canvass within the corporate limits of the city of Coshocton, Ohio, for orders for the copying or enlarging of pictures in what is known as portrait photographing, except the same shall be the product of his or their own hands, and the work done within the limits of the city of Coshocton, without first procuring from the mayor of said city a license so to do, and shall pay for said license at a rate of not less than one dollar, nor more than twenty dollars per day, and any person, persons, firm or corporation who shall violate any of the provisions of this section shall be deemed' guilty of a misdemeanor, and upon conviction thereof before the mayor, shall be punished by a fine of not less than five dollars nor more than twenty dollars, at the discretion of the mayor.”

It is contended by counsel for the petitioner, that the ordinance, as well as the act of the legislature conferring licensing power upon mu-, nicipal councils, Sec. 2669-6 Ohio Rev. Stat., upon which act the authority to pass such ordinance is based, are in conflict with that part of Sec. 8, Art. 1 of the constitution of the United States, which provides: “ The congress shall have power * * * to regulate commerce * * * •among the several states.”

Counsel for the city contend that canvassing a city, showing samples of portraits and soliciting orders for similar work to be sometime thereafter delivered and paid for, although the canvasser is the agent and employe of a nonresident person or corporation, by whom the work is to be done out of the state of Ohio, do not come within the meaning of commerce as that word is used in the above section, and that the state, and by its authority a city council, by ordinance, has the right to protect their citizens, laborers and markets against an invasion of such products.

In Mobile Co. v. Kimball, 102 U. S. 691, 692 [26 L. Ed. 238, 241], commerce is defined as follows:

“ Commerce with foreign countries and among the states, strictly considered, consists in intercourse and traffic, including in these terms navigation and the transportation and transit of persons and property, as well as the purchase, sale and exchange of commodities.”

In Brennan v. Titusville, 153 U. S. 289 [14 S. Ct. Rep. 829; 38 L. Ed. 719], a maker of portraits and picture frames in Chicago, Ill., had sent his agent into the state of Pennsylvania to solicit orders for pictures and picture frames, by going personally to citizens and resid-dents of that state. Upon receiving orders for pictures and frames the agent forwarded such orders to the manufacturer in Chicago, where the goods were made and shipped by him to the purchaser in Titusville by railroad freight or express,' the express companies or the manufacturer’s agents collecting the price of the goods and forwarding the amounts to his at Chicago. The ordinance of the city of Titusville required that persons so employed in canvassing or soliciting in the city should procure a license from the mayor, paying therefor certain sums fixed by the ordinance, but providing that its provisions should not apply to persons selling by samples to manufacturers or licensed merchants or dealers residing or doing business in said city.

The court held that the license tax imposed by the ordinance was a direct burden upon interstate commerce and was, therefore, unconstitutional and void.

It is not competent for a state legislature or a municipality by ordinance to discriminate against such commodities or goods, or declare that they are not articles of traffic and commerce and by unfriendly legislation exclude them from the state. The sale and delivery in one state of goods manufactured in another state, by a citizen of that state, is interstate commerce. On this proposition it is sufficient to cite: Cooper Co. v. Ferguson, 113 U. S. 727 [5 Sup. Ct. Rep. 739; 28 L. Ed. 1137]; Robbins v. Shelby Co. 120 U. S. 489 [7 Sup. Ct. Rep. 592; 30 L. Ed. 694] ; Horn Silver Min. Co. v. New York, 143 U. S. 305, 314 [12 Sup. Ct. Rep. 463; 36 L. Ed. 164]; Brennan v. Titusville, supra; Colt v. Sutton, 102 Mich. 324 [60 N. W. Rep. 690; 25 L. R. A. 819].

The decisions of the Supreme Court of the United States are controlling, They forbid the exercise by the legislature or the municipality of the power claimed by the city solicitor in this case. Hence his construction of the statute and ordinance cannot be maintained, because it would result in a conflict upon a question where the authority of the general government is paramount to the governments of the state. To give a state legislature power to legislate in such cases requires an act of congress to that effect. Leisy v. Hardin, 135 U. S. 100 [10 Sup. Ct. Rep. 681; 34 L. Ed. 128]; Welton v. Missouri, 91 U. S. 275 [23 L. Ed. 347].

The police power is reserved to the states, and they have the right to regulate internal trade so as to protect the health and public welfare of the people, but this power cannot be so extended as to encroach upon interstate commerce. Whether any particular act does so encroach or not is a •question for the courts, and in the determination of that question the Supreme Court of the United States refuses to be bound by the opinion of the state legislatures or the state courts. If the act is in itself an encroachment upon interstate commerce, though expressed to be a regulation under the state'police power, the federal courts hold it unconstitutional. Leisy v. Hardin, supra; Minnesota v. Barber, 136 U. S. 313 [10 Sup. Ct. Rep. 682; 34 L. Ed. 455].

The ordinance in question is not a police regulation, but is an attempt to prevent, or at least discourage, the importation and sale of goods manufactured in ^mother state, and thereby protect citizens, laborers and markets within the limits of the municipality against such goods. If the municipality or its citizens are in a condition to require such protection, the appeal for relief must be made to congress, which body alone has the power to, legally grant such relief. Raher, In re, 140 U. S. 545 [11 Sup. Ct. Rep. 865; 35 L. Ed. 572].

It is urged by counsel for the city to relieve this ordinance from these constitutional objections that the license imposed is not a tax upon the goods, but only a license fee charged as a police regulation, and, therefore, does not come within the constitutional inhibition. It is well settled that in legal effect the money paid for a license to sell goods is a tax upon such goods. Brennan v. Titusville, supra; Brown v. Maryland, 25 U. S. (12 Wheat.) 419 [6 L. Ed. 678]; Welton v. Missouri, supra; Leloup v. Mobile, 127 U. S. 640 [8 Sup. Ct. Rep. 1380; 32 L. Ed. 311].

In the case of Caldwell v. North Carolina, 187 U. S. 622 [23 Sup. Ct. Rep. 229; 47 L. Ed. 336], it was held that: “An ordinance under which a license may be required from the agent of a nonresident portrait company, who receives from such company pictures and frames-manufactured by it to fill orders previously obtained, and after breaking bulk and placing each picture in the frame designed for it, delivers them to the respective purchasers, is invalid as an attempt to interfere with and regulate interstate commerce.” We think this case is on all fours with the question here and is conclusive against the validity of this ordinance.

We are not required in this case to pass upon the validity of this, ordinance so far as it might affect citizens of our own state. We are-disposing of the ordinance as one that interferes with interstate commerce, and for this reason we hold that it is in violation of Sec. 8, Art. 1 of the constitution of the United' States. The conviction of the petitioner herein is wrong; the affidavit does not charge him with any act in violation of any law of the state or ordinance of the city, that could be enforced against him. The writ is allowed. The petitioner is dismissed from custody at the costs of the state.

Petitioner discharged.

Donahue and McCarty, JJ., concur.