text:
    VALIDITY OF ACT LICENSING MONEY LENDERS.
    Circuit Court of Franklin County.
    F. F. Cain v. Peoples Salary Loan Company; and Homer H. Sharp v. State of Ohio.

    Decided, October 8, 1912.

      Constitutional Laio — Requirement that Brokers Dealing in Chattel Loams and Assignment of Wages he Licensed — Not Rendered Invalid hy the Excepting Clauses — Uniformity of Operation — Police Power — Section 68J/6-1.

    1. The exception in favor of banks and building associations, found in the act licensing money lenders, does not violate the equality provision of either the Federal or the state Constitution, nor does it disregard the requirement of the state Constitution that laws of a general nature shall be of uniform operation throughout the state.
    2. Nor is the provision requiring an assignment of salary by one who is married to be signed by the husband and wife making the application for such assignment, a violation of the right of separate contract, inasmuch as it is within the police power of the state to protect families from the improvidence of one member.

      E. C. Morton, Q. B. Lane and Crumble & Gumble, for plaintiffs in error.

      Timothy 8. Hogan, Attorney-General, Geo. B. Ohey, H. B. Jones and B. W. Gearhardt, contra.
    Dustin, J.; Allread, J., and Ferneding, J., concur.

       Affirming Cain v. Peoples Salary Loan Co., 12 N.P(N.S.), 441.

   These cases were brought to test the constitutionality of an act entitled, “An act to regulate and license the loaning of money upon chattels or personal property of any kind, and the purchasing or making of loans upon salaries or wage earnings,” being Section 6316-1, et seq., General Code.

Section 1 of the.aet provides that “No person, firm or corporation, except banks and building and loan associations shall engageor continue in the business of making loans upon chattels,” etc., without first having obtained a license so to do from the Secretary of State.

But, no applicant is entitled to a license until he has given a bond in the sum of $2,000, which shall be available to any aggrieved person who shall procure a judgment against the lender and fail to collect same on execution. Further, a license fee is to be paid, certain records kept, copies of contracts given to borrowers, a limitation placed on the total fees and interest to be charged, a restriction against a married person assigning wages or a salary for security without the written consent of husband or wife, and a provision made for fines for violation of the provisions of the act, and, on second conviction, a revocation of the license.

It is contended that the exception in favor of banks and building associations violates the equality provisions of the federal .and state Constitutions, and the requirement of the state Constitution that laws of a general nature shall be of uniform operation throughout the state ;■ also that the provision requiring the signature of wife or husband to an assignment of his or her salary as security is a violation of the right of contract.

At first blush there would seem to be much force in the first contention, and that the discrimination between banks and building and loan associations on the one hand and all other persons, partnerships and corporations on the other is fatal. But reflection upon the reasons for the law .and the legislative knowledge upon which it was based places the matter in a differ'ent light.

The extortion practiced by a class of money lenders is a matter of common knowledge. And to prevent and punish such practices was the evident purpose of the enactment.

Now, it is just as notorious that banks and building associations, when making such loans, do so upon a reasonable interest, and without charges for alleged services,' or other subterfuges, to increase the interest; and there are no complaints of their unlawful practices.

Furthermore, banks-and building associations are under government and- state control, are subject to inspection, and must make reports from time to time.

On the other hand, the lenders on chattels and salaries are often uncertain as to responsibility, residence, and management, and of their practices there are frequent complaints.

It has been held in several states, and by the United States Supreme Court, that such conditions and distinctions may be recognized by the Legislature, without violating the- equality provisions of the Constitution, and it may make a law applicable only where needed, the only requirement being that there should be no unreasonable or arbitrary classification.

It has been already held in Ohio that:

“The state may, in the exercise of the police power, license and regulate chattel mortgage and salary loan brokers.” Sanning v. Cincinnati, 81 O. S., 142.

We think it may, in the just and reasonable exercise of that power, exclude a class of lenders who are already under state and federal supervision and who habitually observe the proprieties of conduct.

In the state of Delaware a similiar law-, with similar exceptions, was under consideration by the Supreme Court in the case of State v. Wickenhoefer, 64 Atl. Rep., 273. The court, in its opinion, said:

“The Legislature were the judges of the existence of such a condition, and, acting upon the belief that it did exist, had the power to enact such legislation as would be necessary to regulate the business, provided it did not make any arbitrary or unreasonable classification of the persons affected. * * *
“It unquestionably had the right to determine where and by whom the injurious business was engaged in, and confine the operation of the law to such place and such persons, provided the act affected all of such persons alike :and did not make any arbitrary and unreasonable classification of them.”

A law of Wyoming which was applicable only to loan's of less than $200, was not thereby unconstitutional, since it recognized the fact that the abuses which the act was intended to correct were confined to small loans.

Parties who were able to borrow larger sums usually gave other security than household chattels and were able to protect themselves.

See, also, State v. Hurlbut, 82 Conn., 232; Mutual Loan Co. v. Mastell, 200 Mass., 482.

In the latter case the court said:

“The Legislature might decide that the dangers that the statute was intended to prevent would not exist in any considerable degree from the business of national banks or other companies and institutions under the supervision of the bank commission,” and “may be supposed to be aware of business done or likely to be done by these corporations, and they may have believed rightly that the business done by them would not need regulation in the interest of employer and employes. ’ ’

Other citations, quite in point, are given by Judge Rathmell in his decision of this case in the common pleas court, published in 12 N.P.(N.S.), 441.

As to the ground urged against the law that the provision requiring an assignment of salary to be signed by the husband or wife is a violation of the right of separate contract, we think it is fully within the police power of the state to thus protect families from the improvidence of one member, as in the enactment of homestead and similar laws.

The judgment of the common pleas court in each case will be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    ACTION TO ENFORCE AGREEMENT TO ASSIGN PATENT.
    Circuit Court of Stark County.
    Frank Tyson et al v. Miller-Tyson Co. et al.
    Decided, March, 1912.

      Specific Performance — Parol Agreement to Assign Deeds for Patents Held Not EnforciMe — Consideration to Inventor Looking in Mutvr ality and Definiteness.

    Specific performance does not lie to enforce a parol agreement to assign deeds for certain patents to a company engaged in the exclusive manufacture and sale of the inventions on a royalty basis and in which company the inventor held stock and was employed as superintendent and to make experiments and secure new patents, where the elements of mutuality and definiteness are lacking, and no action was taken by the board of directors to carry the agreement into effect or authorizing any to make such an agreement, and the only consideration moving to the inventor was his interest in •dividends earned and the assurance that the company would be financed and continued in business and he would be kept permanently in its employ.

      Pomerene, Ambler <& Pomerene and Parry Frease, for plaintiff in error.

      Lynch eft Pay, Taylor eft Stewart and George P. Clark, contra.
    Niman, J. (of the Eighth Circuit, sitting in place of Shields, J.) ; Powell, J., and Voorhees, J., concur.
    Error to court of common pleas.
   This proceeding in error had its inception in an action brought in the court of common pleas by the Miller-Tyson Company against the plaintiffs in error, Frank Tyson, J. C. Corns and At-lee Pomerene, as trustee, to enforce by specific performance an alleged parol- contract, whereby it is claimed the said Frank Tyson agreed to assign to the said Miller-Tyson Company his interest in certain letters patent.

The said J. C. Corns and Atlee Pomerene, as trustee, were made defendants in said action, on account of interest claimed by them in certain of the patents in controversy, and filed separate answers setting up the assignment to them by the- said Frank Tyson of his interest in such of the patents as are therein enumerated, as collateral security for certain indebtedness, and asking that their respective interests be protected.

Shortly after the filing of the petition in the court of common pleas, said the Miller-Tyson Company became bankrupt, and the defendant in error, the Miller Pasteurizing Machine Company, subsequently acquired by valid assignment from the trustee in bankruptcy for said Miller-Tyson Company all such right as that company had in the patents described in the petition, and was duly substituted as plaintiff in said action.

The finding of the court below was in favor of the plaintiff and a decree of specific performance was entered against the defendant, Frank Tyson, except as to certain pending applications for patents, and the defendants, J. C. Corns and Atlee Pomerene, as trustee, were found to have no interest in the letters patent referred to in their respective answers as against the plaintiff.

A reversal of the finding and decree of the common pleas court is sought by this proceeding in error.

The alleged parol contract which formed the basis of plaintiff’s action below is set forth in the petition in the following language:

. "That the said Tyson then and there, to-wit, on or about June 14, 1909, was the owner of a large amount of the capital stock of the plaintiff company, and that he then and there verbally .agreed with the plaintiff in consideration of the fact that the plaintiff had paid all the fees and expenses of every kind necessary or useful for obtaining said last named letters patent including as well patent office fees as fees paid the solicitor employed to attend the work incident to the procuring of said letters patent, and in consideration that the plaintiff would continue manufacturing, experimenting, development and sale of said devices for pasteurizing milk under said letters patent, and all brine ice cream freezers under said letters patent respectively, and in consideration that plaintiff would defend suits brought for the infringement of said letters patent, to convey, transfer and assign to the plaintiff by proper instrument or instruments of writing his undivided half interest in the letters patent first above mentioned, to-wit:
"Nos. 804,687 and 804,688 and the said letters patent last abové mentioned, to-wit: Nos. 903,030, 855,364, 903,028 and' 923,609 for brine ice cream freezers and Nos. 853,659 and 896,959, 903,029 and 887,712 for pasteurizers together with any-pending applications for patents or for any patents that he might thereafter secure upon their pasteurizers or brine ice cream freezers.”

It appears from the evidence that the Miller-Tyson Company, the original plaintiff below, was organized in January, 1906; that at that time Frank Tyson and IT. B. Stewart were the joint owners of letters patent No. 804,687 for pasteurizing apparatus, and No. 804,688 for -pasteurizing- liquids, and Tyson was the owner of an invention for which letters patent 855,364 for ice cream freezers were subsequently secured; that on January 27, 1906, Tyson and Stewart entered into a written agreement with said Miller-Tyson Company whereby it was given the exclusive right to manufacture and sell in the United States the pasteurizing apparatus and pasteurizing liquids covered by said letters patent, together with all article or articles which are used or designed to be used in the pasteurizing, creamery, dairy, milk, butter or ice cream business which might be invented by said parties or either of them, or upon which they might obtain letters patent; that said Tyson and Stewart received as payment for the rights given under this agreement $100,000 of the common stock and $20,000 of the preferred stock of the said company; that they were further to receive a royalty of 10 per centum per annum of the gross sale price of the article or articles covered by the agreement; that said agreement provided that should the company fail for six consecutive months to manufacture a reasonable number of said pasteurizers or fail or discontinúe manufacturing or go out of business, then in either event, all rights under said agreement should cease and determine as to the company and the interest in said patents revert to said Tyson and Stewart.

It further appears that Tyson became the superintendent of said Miller-Tyson Company and w'hile in its employ made certain inventions and obtained letters patent therefor, and made application for others, all of which are included in the enumeration set forth in the petition; that the expense of experimenting and obtaining letters patent was borne by the company; that during the first year of the company’s business, it was fairly successful, but in 1908 losses were incurred in excess of $35,000; that the company continued in financial trouble until on or about January 8, 1910, when bankruptcy proceedings were instituted against it and its affairs subsequently administered in the bankruptcy court.

The evidence discloses further that when the company began to lose money and its affairs became involved, the various persons who had invested money in the concern and who were members of the board of directors, became dissatisfied with the license agreement with Tyson and Stewart and expressed a strong desire to have the company acquire the absolute ownership of the patents described in the petition. Efforts were made through the agency of Mr. Stewart, who was the president of the company, to induce Mr. Tyson to agree to assign all of his interest in said patents to the company. Arguments of various kinds based chiefly upon the financial condition of the company and the benefits that would accrue to all concerned if such assignment were made, were advanced by Stewart and finally a conversation took place in the summer of 1909 between Stewart 'and Tyson, which together with a subsequent report thereof by Stewart to the members of the board of directors made in Tyson’s presence, and with his claimed assent, constitutes the contract which it was sought to enforce- in the court below by the decree of specific performance. Mr. Stewart’s testimony of this conversation is as follows:

“It finally got to the point to where I said to Mr. Tyson some time in the latter part of May that the company could not proceed any further unless the patents were deeded over by him. At the time I told Tyson that it was the way to look at it; that the company would have to liquidate one way or the other and he wanted to know what assurances he would have and what benefit he would get out of it, and I said that he was a stockholder the same as we were and we would do the best we could to finance it; that if his machine that he was experimenting with would work, I felt that it would be a much easier matter to carry the thing along than if it did not work. I afterwards reported that to the board meeting. ’ ’

In response to the question, “Did Mr. Tyson make a reply to that ? ’ ’ Mr. Stewart testified:

“He finally said that he would do what they wanted, transfer all his patents to the company that he had gotten up in this line of business. I told him that it would be more satisfactory to go ahead and that that would include anything he got up in the future pertaining to ice cream freezers or pasteurizers. ’ ’

Mr. Stewart testifies concerning his report of this conversa,tion to the board of directors in the following manner:

“Q. Did you repeat to the board the conversation you had with Mr. Tyson? A. I did.
‘ ‘ Q. Tell what you said to the board ? A. I said that I had a number of conversations with Mr. Tyson; that he objected very seriously at first in turning these patents over, by reason of the fact that he did not know where he was going to stand; that he had offered to give us those patents with a trustee, to be used as collateral, and he made several other propositions but it was impossible to borrow money on the patents, and 1 explained that to Mr. Tyson and after we had gone over the situation, he consented to transfer the patents. * * * I took about a half hour to go over the whole thing and explained the negotiations, and I explained it very carefully and told them what Mr. Tyson’s contention was. That he wanted to know if the company was going ahead and do business if he was assured of a position, and I stated to the board that I told him that the company would go ahead and that if his new device would work, we owed him everything that we could to finance it and keep it going, and that he could afford to do business with that understanding as well as we could, and if there was any way to finance it that everybody would make an effort. Different plans were discussed at the same meeting afterwards.
“Q. Let’s not go to financing but continue with these negotiations you had with Mr. Tyson, and what you reported to the board? A. I have given the substance of it.
“Q. When you stated the circumstances to the board of your negotiations with Mr. Tyson, what if anything further was said? A. They seemed to be satisfied with the negotiations I had with him, and I asked Mr. Tyson if I stated it correctly and he said yes.”

The testimony of Mr. Stewart as to his negotiations with Mr. Tyson for a transfer of the patents, while repeated and amplified in other portions of his direct and cross-examination, does not materially modify that which is above quoted, and the testimony of the witnesses, other than Mr. Tyson, who heard •the report to the board of directors, does not in our opinion substantially differ from the testimony of Mr. Stew'art on that subject. Mr. Tyson, himself, has a different version of what was said between him and Mr. Stewart and as to the things said and done at the meeting of the board of directors. We do ■not deem it necessary to attempt to reconcile the conflicting testimony.

Accepting Mr. Stewart’s testimony as above quoted, and considering all the other testimony bearing on the making of the alleged contract and the terms thereof, we are of opinion that the agreement relied upon is totally lacking in the essentials of a contract enforceable by a decree of specific performance and that there has been no such performance, in whole or in part, by said Miller-Tyson Company to require or justify such a decree.

It is a question of grave doubt whether the evidence established any agreement whatever with the company. No action was taken by the board of directors, by resolution or other formal notice, and the negotiations carried on with Mr. Tyson seem to have been as much on behalf of the members of the board of directors, as individuals and stockholders seeking to protect their own investments, as with the corporation. Mr. Stewart was asked the question: “Did you receive any orders or instructions from the board as to what you should do touching the further negotiations with Mr. Tyson?” ITis answer was: “T had been requested by each member of the board to see what I could do with Mr. Tyson. ’ ’

This clearly shows no official authority to act on behalf of the company.

Again, in his testimony already quoted, Mr. Stewart said: “I said that he was a stockholder the same as we-were and we would do the best we could to finance it. ” .

However, if the doubt expressed be resolved in favor of the view that such agreement as was made was with the company, rather than with the individuals in control of it, the objection above indicated still exists.

The consideration claimed to be found in this agreement for Tyson’s promise to assign his interest in the patents consists of the promise of the company to continué in business and to do the best it could to finance itself.

How long it was to continue in business and the extent of the financial aid it undertook to secure, is left wholly to conjecture. Could Tyson have compelled the company to specifically perform its part of the agreement by continuing in business, or by financing itself ? Obviously, he could not, not only because it is impossible to say how long the business should be carried on, or the amount and character of the financial assistance the company should gather to itself, but because the undertaking is of such a character that a court of equity would not attempt to supervise its execution. The law governing such a situation is laid down in the syllabus of Matthews v. Traction Co., 5 C.C. (N.S.), 179, affirmed without opinion, Matthews v. Traction Co., 70 Ohio St., 436, as follows:

“A decree of specific performance will not be granted by a court of equity, where, in order to make the performance effective, continuous supervision will be required over personal acts of faith and diligence, and an exercise of judgment in meeting and adjusting relations to new conditions as they arise.”

See, also, Marble Co. v. Ripley, 77 U. S. (10 Wall.), 339.

It is well established that specific performance will not be decreed where the remedy is not mutual. This principle is clearly stated in the syllabus of Cooper v. Pena, 21 Cal., 403, in the language following:

“Equity will not enforce the specific performance of a contract where the party asking the enforcement can not from the nature of the contract be compelled to perform it specifically on his part. In order that a specific performance of a contract •may be compelled, the remedy, as well as the obligation, must be mutual, and as a general" rule the question of mutuality is. to be determined by the contract itself and is not affected by circumstances arising after the contract is made and the rights of the parties fixed.”

See, also, State v. Baum, 6 Ohio, 383; Chadwick v. Chadwick, 121 Ala., 580; Anson v. Townsend, 73 Cal., 415.

The agreement relied upon in this case is clearly lacking in the element of mutuality of remedy, if not in mutuality of obligation. But it is- claimed on behalf of the defendant in error .that the Miller-Tyson Company performed its part of the agreement and that by reason of such performance the objection to want of mutuality of remedy which existed at the time the agreement was made is not available.

It is urged that the company did not go out of business, but continued until the institution of bankruptcy proceedings and that some money was put into the company after the agreement was made, and this is said to constitute such performance as will overcome the objection of want of mutuality.

It does not appear that prior to the negotiations resulting in the alleged agreement with Mr. Tyson the company took any action toward going out of business and afterwards its affairs seem to have drifted along in the same manner for a few months until the failure came.

Mr. Stewart in his direct examination was asked the question: “I will ask you what the company did by way of continuing business, its manufacturing and business obligations?” His answer was: “It continued as before.”

After the agreement was made some money was borrowed by the company. Mr. Corns put in $3,870, but took collateral security therefor in the form of bills and accounts receivable. Mr. Stewart advanced $400, but the greater part of this was used to pay interest on one of the company’s obligations on which he was also bound.

We fail to find any satisfactory proof that the company’s continuance in business and the obtaining by it of the advencement of the sums of money mentioned were in performance of the terms of the agreement. All that the company did is as clearly to be referred to the performance of its obligations under the written contract hereinbefore mentioned and to the pursuit of its business in the regular and customary manner, as to performance under the parol agreement. The language of the court in Dayton, W. V. & X. Tpk. Co. v. Coy, 13 Ohio St., 85, is applicable to this state of facts. On page 94 it is said:

“It may be true, that, ‘if a contract has been executed by the performance of the act forming the consideration for the promise, then it is no answer to an action to say that the plaintiff was not, by the terms of the original contract, bound to do the act, and there ivas consequently no mutuality of obligation’ (Addison, Contracts, 35). But this rule does not appear to be applicable where the act done only constitutes a part of the consideration and shows no assent to the terms of the contract. The objection of the want of mutuality is avoided, because the contract shows a request to do the act and an agreement to be bound upon its being done, and the doing the act is an assent to those terms. This can not be said, where the terms of the contract require more than a silent performance of a part of the consideration, and shows that there was no intention to be bound, unless there was a mutual obligation to perform the other part of the consideration, in its nature concurrent. The rule certainly can not apply in this case, where that which is alleged to have been part of the consideration and to have been performed, does not necessarily connect itself with the defendant, and may or may not have been done with the view of assenting to the promise of the defendant.”

If, however, what was done by the company after the parol agreement was made is to be considered as having been done pursuant to the terms thereof, and that it would not otherwise have been done, there still remains the objection that it was at most only part performance. The nature of the undertaking on the part of the company is so vague and indefinite as to render it impossible to say what acts would constitute full performance by it, and for this reason alone, a decree of specific performance against the other party might well be refused. It certainly can not be said, in any event, that the Miller-Tyson Company, by merely passively continuing in business for a few months and then ending its existence in the bankruptcy court, has so far performed what was agreed by it to be done as to establish its right to a decree for specific performance.

Equity will decree specific performance to one party to a contract only when the other contracting party is tendered full perfonnance or can be made secure in the benefits of his contract. Richards v. Doyle, 36 Ohio St., 37.

In Marietta & C. Ry. v. Telegraph Co., 38 Ohio St., 24, it was held that:

“Equity will not compel specific performance, where the benefits of the contract can not be realized in accordance, with its terms.”

It is not claimed that any further performance of the agreement to continue in business and to exert efforts in improving the financial affairs of the company is possible, or that such further performance was tendered and a willingness and ability .shown to perform fully. The contention of the defendant in error is that the mere continuance in business of the Miller-Tyson Company, with such acts- on its part as were incident thereto, constituted full performance.

As already indicated, we are not prepared to say how long a continuance in business and how great and successful an effort to raise money would support the claim of full performance, but we are strongly of the opinion that what was done by the company did not amount to such performance.

The right of the plaintiff below to the relief sought must rest upon the contract set forth in the petition and the proof in support thereof and is not in any way affected by any equitable features that may have existed under the written license contract before referred to. Much evidence was introduced as to the condition of the company prior to the making of the alleged parol agreement and the considerations thereof, and intimations have been made in the arguments and briefs of counsel for defendant in error that the unfortunate condition of the company was due to some fault on the part of Mr. Tyson. The only possible bearing these matters can have in this case is in connection with the determination', of the question whether the agreement on which the action is based was made, and incidentally it is supported by a consideration. No equity can be enforced in this action against Mr. Tyson arising out of his dealings with the company under said written contract.

For the reasons assigned, we are of opinion that the court of common pleas erred in finding for the plaintiff and in entering a decree’ of specific performance against the defendant, Frank Tyson, and in finding that the defendants, J. C. Corns and Atlee Pomerene, trustee, had no interest in the patents described in their respective answers, as against the plaintiff. The judgment of the court below is, therefore, reversed, and the judgment which said court ought to have rendered will be rendered by this court, and the petition dismissed.


text:
    POLICE JURISDICTION IN MISDEMEANORS.
    Circuit Court of Hamilton County.
    In Re George Hildebrand.

    Decided, August 3, 1912.

      Criminal Law — Misdemeanors—Waiver in Writing by Accused Necessary to Dispense with Jury — Sections 4577 and 13511.
    A police court lias the same jurisdiction in misdemeanor cases as a justice of the peace, and can not enter final judgment, without the intervention of a jury, against one charged with a misdemeanor, unless during the examination he has signed a waiver in writing of a jury in his case.

      B. G. Fox, for plaintiff in error.

      Robert A. Black, contra.
    The issue in this case was as to the proper interpretation to be placed on the law as to final jurisdiction of the police court in violations of state laws wherein the accused is entitled to a jury trial.
    Smith, P. J.; Swing, J., and Jones, J., concur.

       Affirming a similar holding in the case of In re Zacharow, 13 N.P.(N.S.), 119.

   Section 4577 of the General Code provides:

“The police court shall have jurisdiction of, and to hear, finally determine, and to impose the prescribed penalty for, any offense under any ordinance of the city and of any misdemeanor committed within the limits of the city, or within four miles thereof. The jurisdiction of such court to make inquiry in criminal cases shall be the same as that of a justice of the peace. Cases in which the accused is entitled to a jury trial, shall be so tried unless a jury be waived. ’ ’

Section 13511 of the General Code provides as follows:

“When the accused is brought before the magistrate and there is no plea of guilty, he shall inquire into the complaint in the presence of such accused. If it appear that an offense has been committed and that there is probable cause to believe the accused guilty, he shall order him to enter into a recognizance, with good and sufficient surety, in such amount as he deems reasonable, or for his appearance at the proper time and before the proper court, unless he shall discharge him from custody. If the offense charged is a misdemeanor and the accused, in a writing subscribed by him and filed before or during the examination, waive a jury and- submit to be tried by the magistrate, he may render final judgment. ’ ’

It is apparent from the above two sections that the jurisdiction of the police court in misdemeanors is the same as that of a justice of the peace.

Before a justice of the peáee can render final judgment against one charged with a misdemeanor without the intervention of a jury, the one so charged must waive in writing^ signed by him, and filed before or during the examination, a jury, and submit to be tried by the justice.

In the record of the case before us, it does not affirmatively appear that at the trial of the cause a jury was waived in writing as required by law, and therefore the police court acting as the magistrate, and in so acting having only the jurisdiction conferred upon magistrates, had no power to enter final judgment committing the petitioner to prison. Being without jurisdiction his judgment was void.

The judgment of the court below is therefore affirmed.


text:
    REGULATIONS FOR THE SALE OF MILK AT RETAIL.
    Circuit Court of Cuyahoga County.
    Frederick H. Staas v. State of Ohio.

    Decided, November 4, 1908.

      Constitutional Law — Measures for Protection of the Public Health — Sections 1536-780 and 1586-781, Revised Statutes.

    1. An ordinance forbidding the sale of milk at retail unless contained in sealed glass bottles is not unreasonable in its general operation,' and' a conviction of violating such an ordinance will not be set aside on the ground that some other regulation might better serve the public welfare.
    2. Nor is authority to pass such an ordinance an unwarranted delegation of legislative power.

      L. Z. Tánney, for plaintiff in error.

      Sylvester V. McMahon, contra.
    Henry, J.; Marvin, J., concurs; Winch, J., not sitting.
    Error to common pleas court.

       Affirmed without opinion, Staas v. State, 81 Ohio St., 497.

   Plaintiff in error was convicted under Sections 2118 and 2119, Revised Statutes (General Code, 4413, 4414), of violating a regulation of the board of health of the city of Cleveland forbidding the sale of milk at retail except in sealed glass bottles.

The grounds for reversal relied upon are, that the regulation is unreasonable and therefore void, and secondly, that it exists only as the result of an unwarranted delegation by the General Assembly of its legislative power,- contrary to Article II, Section 26, of the Constitution of Ohio.

Upon the first point we are asked, to infer -from the evidence in the bill of exceptions that other means providing for the public health and welfare of the inhabitants of this city in the matter of the sale of milk at retail are better suited to that end than the regulation in question; that glazed paper bottles, destroyed when once used, are in vogue in other cities and are sanitary, whereas bottles used again and again are apt to disseminate impurity and disease. It is also argued from the evidence that it is useless, unduly expensive and merely arbitrary that bottles be required rather than any other convenient receptacle, that they be made of glass rather than of any other convenient material, and that they be sealed, even when delivery is made at a milk depot to- the purchaser personally, in his own receptacle and for immediate use.

We recite the argument at length without deeming it necessary to refute it in detail further than to say that the regulation seems to us to be entirely reasonable. We can not say but that bottles are, all things considered, the most convenient kind of a receptacle, and, for the sake of uniformity and the proper enforcement of the law, reasonably necessary. The transparency of the glass is a reason for requiring that material. Sealing aids in the prevention of the contamination of the milk by dirt or other impurities. Nor is it necessary that we should be convinced that the regulation is the best and wisest possible. It must be shown to be affirmatively unreasonable, not in extreme cases, but in its general operation, to warrant us in setting it aside.

Neither can we agree that it is incompetent for the'Legislatnre to empower municipal health boards to make such regulations, the violation whereof is penalized by general statute. By Article XIII, Section 6, the General Assembly is specially enjoined to provide for the organization of cities and incorporated villages; and it has been again and again adjudged that municipal ordinances and by-laws enacted or ordained, pursuant to general law, by councils or other constituted representatives of the inhabitants of such municipalities or other public corporations and gwsi-corporations, whether elective or appointive, imply no unconstitutional delegation of the state’s legislative power. Markle v. Town Council of Akron, 14 Ohio, 591; Perry Co. v. Railway, 43 Ohio St., 453; Zanesville v. Richards, 5 Ohio St., 589; Mays v. Cincinnati, 1 Ohio St., 273; State v. Toledo, 48 Ohio St., 132.

The judgment is affirmed.


text:
    REQUIREMENTS OF A CHARGE TO A JURY.
    Circuit Court of Hamilton County.
    Cincinnati Traction Company v. John Ruthman.
    Decided, August 3, 1912.

      Charge of Court — Relating to Negligence and Carelessness — Prejudicial Error in Failing to Define the Issues and Elucidate the Law Applicable Thereto — Burden of Proof

    Both parties to an action are entitled to a plain statement to the jury of the issues presented, together with a definite and unam-. biguous statement of the law as applicable to the case made by the proofs, and failure to give such a charge constitutes reversible error, as does also the reading of the pleadings to the jury without defining the issues.

      Kinkead & Rogers, for plaintiff in error.

      Thos. L. Michie and Frank Seinsheimer, contra.
    Smith, P. J.; Swing, J., and Jones, J., concur.
   It is error for the trial court to read the pleadings to the jury without defining the issues. R. R. Co. v. Lockwood, 79 O. S., 586.

It is also error for a court to charge the jury, “ It is for you to determine from all the circumstances surrounding the parties at the time, whether there was this alleged negligence and carelessness on the part of the defendant whereby, except for this negligence and carelessness, the collision would not have occurred. The defendant pleads that the accident, if it occurred, was due to the negligence and carelessness of the plaintiff,” without defining what “this negligence and carelessness” is, as alleged in the petition, and particularly in not explaining to the jury what in law'- constitutes “negligence and carelessness.”

A charge to the jury should be a definite, plain and an unambiguous statement of the law as applicable to the case made by the proofs. Parmelee v. Adolph, 28 O. S., 10.

It is also error for the court in charging the jury to propound to them certain questions, as for instance: “Was the plaintiff exercising due care, the care which an ordinarily prudent man would exhibit in driving his horse along Freeman avenue at the time and in the manner disclosed in the evidence?” and other similar questions pertaining to the evidence in the case without instructing the jury as to the effect thereof, should they find either affirmatively or negatively in respect to such questions or facts, and what the legal result thereof would be.

It is also error for the court in defining the burden of proof to instruct the jury that:

“By the burden of proof is meant that fair preponderance of the evidence which should be given to its merits and worth, and not necessarily to the number of witnesses on either side. ’ ’

Counsel for defendant in error admits that the matters set out herein are erroneous but claims they are not prejudicial. In this we can not agree, as both parties to a suit are entitled to a. plain and distinct statement of the issues in the case together with a lucid exposition of the law applicable to those issues and the proofs.

For tbe above reasons the judgment below is reversed.


text:
    ILLEGAL ACQUIREMENT OF STREETS FOR RAILWAY PURPOSES.
    Circuit Court of Cuyahoga County.
    The Cleveland & Pittsburg Railroad Company et al v. City of Cleveland et al.

    Decided, January 17, 1910.

      Streets — Form of Action for Recovery of Possession of, by a Municipality — Irregularities in Dedication — Sufficiency of — Doctrine of Stare Decisis Applicable — Effect of Power in City Charter to Establish Boundaries of Streets — Inconsistent Use of — Limitations as to Occupancy of, by Railways — Ineffectual Attempts by Municipality to Part with Title to — Statute of Limitations Does Not Run as to Nuisances Placed in — Equitable Estoppel Without Application Against Mu/nieipality — Competence of Evidence as to Permissive Occupation by Railway Tracks — Dicta of Supreme Court Inconsistent with Later Decisions Not a Basis for Property Rights— Governmental Functions Can Not be Impaired by Compromise Agreements.

    1. To recover possession of a city street an action for the recovery- of real property, under Section 5781, Revised Statutes of Ohio, is maintainable by such city, if it be otherwise entitled to the immediate possession and control of the street in question, whatever be the exact legal nature of its estate or interest, and despite any easement of the defendants for railroad purposes therein.
    2. Irrespective of any irregularities in the dedication of the original streets of the city of Cleveland, their long and uninterrupted use and enjoyment by the public for nearly half a century before the defendants’ use of the one here in question began, raises a presumption that such street was in early days, laid out and established by competent authority; and the conclusiveness of such presumption is emphasized by the further circumstance that the actual sufficiency of the dedication of all said original streets was long ago so settled by repeated adjudications as to be stare decisis.

      3. Inasmuch as it is not and never has been in the power of the Legislature, unless in the exercise of the power of eminent domain, to authorize property dedicated to the public for a specific .purpose to be used for any other and inconsistent purpose, it is immaterial what limitations the city of Cleveland in early days sought to place upon the public use for street purposes of one of its dedicated streets, or to what other purposes it may have sought to divert it, either with or without color of legislative authority.
    4. ’The power conferred by Sections 6 and 8 of the first city charter of the city of Cleveland (34 Ohio Laws, 271), to settle and establish the boundaries of its streets and to make maps and surveys thereof that should be conclusive evidence of the position and limits of such streets, is to be construed as a power in substance to ascertain, not to alter street boundaries, and to establish the existing location of • streets, not to abandon or vacate them.
    5. 'It is not and never has been within the delegated powers of the city of Cleveland to part with its title held by dedication in trust for the public, to its properly established and opened streets otherwise than by compliance with the provisions of statutes ex- ■ pressly providing for their vacation or their appropriation to a paramount public use.
    6. Section 11 of “an act regulating railroad companies” (46 Ohio. Laws, 40), and the substantially similar provisions of Section 3283, Revised Statutes of Ohio, authorizing railroad companies, in the exercise of the power of eminent domain by agreement with municipalities or by. action for appropriation, to acquire the right to use and occupy public streets, when necessary in the location of their railroads, do not authorize the acquisition by such companies of an exclusive and permanent estate or easement, but of a right merely to the joint use and occupancy with the public, of lands already dedicated or appropriated to public use for street purposes; and this right is exercisable only in such manner as shall not destroy the street, nor exclude the public use and enjoyment of any and every part of it, nor cause any nuisance therein, nor . interfere with the full control and supervision thereof by the municipal authorities.
    7. The placing by railroad companies upon city streets of permanent structures that prevent the public use of all or part of such streets, being unauthorized by statute, constitutes the maintenance of public nuisances, in favor of which the statute of limitations does not run; especially if such structures when so placed were claimed by such railroads, however mistakenly to be subservient to the public use to which the premises had been dedicated as a street, and pursuant to a lawful agreement with such city to that end.

      8. The doctrine of equitable estoppel has no application in aid of the validity or extent of a grant to a railroad by a municipality of its streets, where there is an entire absence of power to make such grant originally.
    9. Where, in an action of ejectment brought by a city against railroad companies to recover possession of a city street, the defense of the statute of limitations is interposed by one of said companies, in aid of its color of title imperfectly derived from a source paramount to that of the city, an answer filed by such company in an' action to which said city was not a party and at a time when the alleged running of the statute of limitations was but just begun, averring that said company occupies the land in controversy by permission of and agreement with such city and in harmony with ■ the street purposes for which said land was originally- dedicated, is admissible- in evidence, not as tending .to prove any tolling of the statute of limitations, but as characterizing the said defend-' ant’s possession as permissive and consistent with the original, public úse.
    10. The fact that various dicta in the opinions of judges of the Su-. preme Court of Ohio, touching the proper construction of Section 3283 of the Revised Statutes of Ohio, are prior to and inconsistent with the first formal decisions by the same court upon that subject, , affords no basis for the application of the rule of property that -rights founded upon the adjudicated construction of a' statute can ■ not be swept away by later contrary decisions. .
    11. The implied authority, in all corporations with the power, of suing and being sued, to compromise and settle matters of dona fide dispute or limitation to' which they are parties, does not extend to the destruction or impairment of any governmental function of a municipal corporation (such as its duty to keep its streets open, in repair, and free from nuisance), by its alleged compromise settlement of a litigated title to one of its dedicated streets whereby it is. claimed to. have surrendered its title to a substantial part of such street; especially when its adversaries in such litigation are not parties to the alleged settlement of the consideration therefor, and '. are not concluded .thereby. .

      'Squire, Sanders & Dempsey, for plaintiffs in error.

      Newton T). Balter, City Solicitor. - Con)k, McGowan <& Foote and James Lawrence, contra,

      Henry, J.; Marvin, J., and Winch, J., concur.
    Error to court of common pleas.

       Affirmed without opinion, Cleveland & Pittsburg Railway Co, v. Cleveland, 87 Ohio State, p, —.

   This proceeding in error is brought to reverse the judgment rendered by the Cuyahoga Common Pleas Court in behalf of the plaintiff below in an action of ejectment begun by the city of Cleveland, under favor of Section 5781, Revised Statutes, to recover possession from divers railroad companies, defendants below, of the greater part of street on the lake front between the Cuyahoga river and the Union Station in said city.

The court below found:

“That the plaintiff has a legal estate in and is entitled to the immediate possession of, the premises described in the petition, subject to .all the rights which the defendants herein, and each of them, have in and to said premises, under and by virtue of a contract dated September, 1849, by and between the city of Cleveland and the Cleveland, Columbus & Cincinnati Railroad Company,” etc.

This judgment fails to define the rights of the defendants below thus reserved in such manner that a writ of restitution may discriminate what is to be restored to the city from what is not. Inasmuch as the controversy turns on the extent of the rights conferred upon the defendants below by the contract of 1849, the judgment begs the very question at issue.

Passing by this question, however, for the present, we hold, at the outset, that ejectment by the city to recover possession of its street is, however its estate or interest therein be defined, and despite any easement of the defendants below therein, a remedy both fitting and adequate. Paige v. Cherry, 17 C. C., 579, 582 (52 O. S., 644); Fulton v. Mehrenfeld, 8 O. S., 440 (1 Disney, 151; 2 Handy, 17); City of St. Louis v. Mo. Pac. Ry. Co., 114 Mo., 13.

Nor will we indulge any doubt as to the original validity of the city’s title to this street as such. Its long and uninterruped use and enjoyment by the public for half a century before the defendant’s use began, would raise a conclusive legal presumption, were resort thereto required, that this street was at some anterior period laid out aud established by competent authority. Railroad Co. v. Roseville, 76 Ohio St., 108, 117.

All the original streets and public grounds of Cleveland are in like case, -and the sufficiency of their dedication was long ago settled by repeated adjudications, both reported and unreported, and is therefore stare decisis. Holmes v. R. R., 8 Am. Law Rep., 716; City of Cleveland v. Ry. Co., 93 Fed., 113; Gleason v. Cleveland, 49 Ohio St., 431.

Inasmuch, moreover, as it is not and never has been in the power of the Legislature, unless in the exercise of the power of eminent domain, to authorize property dedicated to the public use for a specific purpose, as in this ease, to be used for a purpose inconsistent with that for which it was dedicated, it is immaterial what limitations the city sought to place upon the public use of said street for street purposes, or to what other purposes it may have sought to divert it, either with or without legislative authority during that early period. L. & N. Railroad Co. v. Cincinnati, 76 Ohio St., 481; Board of Education of Van Wert v. The Inhabitants et al, 18 Ohio St., 221; LeClercq et al v. Trustees of Gallipolis, 7 Ohio (part 1), 217.

Suffice it to say that in the very contract,' already alluded to, the parties themselves have referred to and characterized the premises in controversy, including much of the present large littoral accretion, as being at and prior to the date of said contract, a street of the city of Cleveland.

The city had always recognized the street as such; and the equivocal phrases in the early municipal records, “Bath street, so-called,” and “land known as Bath street property,” are referrable not to any uncertainty as to its legal status, but to the anomalous -littoral boundary and variable width. It is true that, pursuant to the provisions concerning streets contained in the city’s charter, enacted March 5, 1836 (34 O. L., 271), as amended by the act (irreconcilable, by the way, with the above decisions), passed December 21, 1844, the city council had, with respect to said premises, availed themselves of the qualified “power to lease any portion, or portions, of said streets, not in their opinion required for public use. ’ ’ The so-called Merchant Map, which the council procured and put on record, in order to facilitate such •temporary leasing, and which distinguishes the portions of Bath street allotted for that purpose from the residue then deemed to be required for public use and travel, was plainly not intended to be “conclusive evidence of the position and limits of such street, ’ ’ nor to ‘ ‘ settle and establish the boundaries ’ ’ thereof, under Sections 6 and 8 of the charter, in such manner as permanently to exclude from public use the premises in controversy. The power conferred by those sections is to ascertain, not to alter street boundaries; to establish the location of streets, not to abandon them. The settling of street boundaries is not a method available for vacating the major part of a street or for deliberately extinguishing the dedicated public use of any portion thereof.

There is no pretense here that the disputed part of Bath street was ever formally vacated, -in compliance with the provisions of any statute expressly adapted to that end.. As stated in Lake Shore & Mich. Southern Ry. Co. v. City of Elyria, 69 Ohio St., 414, 429:

“We find nowhere any other method of-vacating such public highway, or any part of it. By the proper establishment and opening of the street the village or city becomes vested with the full title thereto, in trust for the public, and it is not within the delegated powers of the municipal council to barter or grant away such title, except in the mode provided for the purpose.”

The strength and character of the city’s ancient title being thus beyond question, what grounds had the defendants below for withholding possession of the premises? The answers plead the following contract, which admittedly inures to all the defendants, and binds the city so far as it had power so to contract:

“This indenture, made this thirteenth day of September, in the year of our Lord eighteen hundred and forty-nine, by and between the city of Cleveland, by F. W. Bingham, mayor of said city, thereunto duly authorized by resolution of the city council of said city, party of the first part, and the Cleveland, Columbus & Cincinnati Railroad Company, by John M. Woolsey, vice-president thereof, thereunto duly authorized by resolution of the board of directors of said company, party.of the second part, WITNESSETH;
“That said city of Cleveland, in consideration of the sum of fifteen thousand dollars, received by said city of said railroad company, in the capital stock of said company, for which a certificate for one hundred and fifty shares, of one hundred dollars each, full paid of said stock, hath been issued to said city, the receipt whereof is hereby acknowledged, and also in consideration of the covenants of said railroad company hereinafter contained, hath granted, and by these presents doth grant to said railroad company as fully and absolutely as said city or the constituted authorities thereof, have the power or legal authority so to do, the right to the full and perpetual use and occupancy for their railroad tracks, turn-outs, engine and car and passenger houses, turn-tables, water tanks, or stations, avenues to and from the same, leaving open spaces between when deemed expedient, and other purposes connected with, and necessary for the convenient use and working of said road, all of Bath street in said city of Cleveland, situated northwardly of a line drawn parallel with the southerly line of Bath street and one hundred and thirty-two feet northwardly at right angles therefrom — excepting and reserving therefrom a piece or parcel bounded southerly by the last described line — eastwardly by a line drawn parallel with the westerly face of the stone pier so-called, ánd one hundred (100) feet eastwardly therefrom — and northwardly by a line drawn parallel with the south line of Bath street and two hundred and eighty-two (282) feet northwardly therefrom, which is reserved for public use as a part of Bath street and also reserving and excepting therefrom a strip of twenty-five feet in width, bounded westerly by the west face of said pier and eastw’ardly by a line parallel therewith and twenty-five feet therefrom and extending from the northerly line of said last described parcel of land along said pier to the northwardly end thereof as it now is, or may be hereafter extended, which is to be kept as a public highway, and shall not be obstructed by said city, or by any person or persons, or company claiming through said city or by their permission.
‘ ‘ To Have and to Hold the same to the said railroad company, its successors and assigns, upon the terms and subject to the stipulations and conditions following, that is to say:
“Said company shall take and hold the same subject to all legal claims either in law or equity, of any person or persons, company or companies. It being expressly understood that the city does not guarantee nor warrant either the title or the right to occupy the same, the said railroad company to have all the money, compensation, interest, benefits and rights which the city could in any manner be entitled to on account thereof.
“Said company shall save said city harmless from all damages to persons holding any part or parts of the premises under leases from the city, consequent upon the taking possession of the ground so leased, or in any way depriving them of the full enjoyment of their leasehold interests before the expiration thereof, it being understood that this indemnification is to extend to such damages only as the city shall be legally holden to make good to the claimants thereof.
“All leases made by the city of the parts of said premises shall be assigned to said company — said company to have the right to collect and receive the rents hereafter accruing, and shall pay over to said city, two-thirds of all rents collected on land fronting on the river and lying between the south line of Bath street and a line parallel therewith and 282 feet northwardly therefrom, until said company shall deliver to said city the possession of said strip of 100 feet in width next to the pier hereinbefore reserved.
“And said company shall not renew or extend said leases, nor grant any new leases of any part of the premises which will interfere with the opening of Bath street to the width of 132 feet, or of the extension thereof on or near the stone pier as herein-before described.
“The said company shall not lease any part of the premises to any person or persons, company or companies, to be used for carrying or forwarding, storage or commission business, or for the erection of warehouses thereon, for the accommodation of such business, nor shall said company use said premises or any part thereof, for the purpose of engaging in, accommodating or aiding in the transaction of forwarding, commission or warehousing business, with a view either directly or indirectly of deriving profit therefrom, nor shall they grant the right to any railroad company, person or persons, or other company or companies so to do.
“But this prohibition shall not be construed to prevent said railroad company from erecting'on said premises a suitable warehouse or warehouses for the reception and- safe-keeping of such articles of property as may be entrusted to their care for transportation and not consigned to any person or persons or company in Cleveland having the means of storing the same. It being the object and intent of the parties to this agreement to provide that said premises shall not be so used as to interfere or come into competition with individuals, companies or firms engaged in forwarding, commission, storage or warehousing business in Cleveland, by carrying on or engaging in by said company, accommodating or aiding in forwarding, commission, storage, warehousing or other business not necessary to secure the transportation of property over their road, but may be used by said company for all purposes necessary for the convenient and profitable working of their road, subject to the restrictions aforesaid.
“Said company to take and hold said land subject to all the legal rights and claims of the Cleveland & Pittsburg Railroad Company upon the same, and to have all the benefits to accrue from such claimants as is before provided and as a further provision for same, shall upon reasonable and equitable terms, extend to said Cleveland & Pittsburg Railroad Company and the Cleveland, Painesville & Ashtabula Railroad Company; room for warehouse and passenger depots, and such facilities for coming on to said premises with their ears, engines and tenders, for the reception and delivery of passengers, baggage and freight, subject to the same restrictions as to warehousing, forwarding and commission business as are herein imposed upon the Cleveland, Columbus & Cincinnati Railroad Company, and for transferring them to or receiving them from other railroads, or from steamboats, either by independent tracks, or by use of the tracks laid by the Cleveland, Columbus & Cincinnati Railroad Company, as shall be found most convenient to all concerned, and in case the parties can not agree either as to the terms or manner of conveying such part of the premises as may be so required, the same shall be determined by three competent disinterested men; one to be chosen by each party and the third by the two so chosen. It being however understood that the Cleveland, Columbus & Cincinnati Railroad Company shall not be bound to permit either of said railroad companies to use for car, engine or warehouses, or grounds on which to place or dispose of cars, engines, tenders, or other furniture of their roads, any part of said premises which said arbitrators shall decide is necessary for those purposes to be used exclusively by said Cleveland, Columbus & Cincinnati Railroad Company. It being further understood and agreed that no part of said premises shall after two years from this date be used by said Cleveland, Columbus & Cincinnati Railroad Company, for forges, furnaces, work shops or anything of similar character for the manufacture of cars, engines or other machinery, so as to deprive either of said other railroad companies of the full benefit of the use of part of said' . premises intended by this agreement to be extended to them.
“Said Cleveland, Columbus & Cincinnati Railroad Company shall manage and take care of all suits, or actions now pending or which may hereafter be commenced for obtaining possession of said premises or any part thereof, and may compromise or settle such suits. And said company shall save said city liarmless from all costs and charges on account thereof, except such as have already accrued against the city, and in ease of settlement, shall save the city harmless from all legal costs in the ease in court in bank, except the costs made by the city. And shall further save the city harmless from all legal claims or demands which are now or may hereafter be set up against the city, growing out of the use or occupation of said premises by said city or its tenants or lessees. And to enable said company to compromise and settle with the claimants, Lloyd & Camp, and all other claimants for the extinguishment of their claims to said premises or any part thereof, they may allow them to retain such portion thereof as may be necessary to effect such settlement, and as shall not be deemed necessary to be used for railroad purposes.
“And the said Cleveland, Columbus & Cincinnati Railroad Company doth hereby covenant and agree to and with said city that said company will hold said premises upon the terms and subject to the stipulations and conditions herein recited, and will do and perform all and singular the acts required and abstain from doing and performing all and singular the acts prohibited by the terms and stipulations herein recited.
‘ ‘ In Witness Whereof, the city council of said city of Cleveland have caused to be hereunto affixed the seal of said city and these presents to be subscribed by the mayor thereof. And the Cleveland, Columbus & Cincinnati Railroad- Company have caused to be hereunto affixed their corporate seal and these presents to be subscribed by their vice-president the day and year first above written.
“The City of Cleveland,
“By Flavel W. Bingham, Mayor.
“ (Seal of the City of Cleveland, Ohio).
“Ti-ie Cleveland, Columbus & Cincinnati Railroad Company,
“By John W. Woolsey, Vice-President. “(Seal of the Cleveland, Columbus & Cincinnati Railroad Company).
“Signed, Sealed and Delivered (the words ‘Alfred Kelley’ in the sixth line of first page being first erased and the words ‘John M. AVoolsey Vice,’ interlined above such erasure. Also the word • ‘Vice’ being first interlined above the second line from the bottom of the last page) in the presence of
“Jas. D. Cleveland, “D. W. Crop.
“State oe Ohio, Cuyahoga County, ss:
“Before me, Jas. D. Cleveland, a justice of the peace in and for said county, personally appeared the within named John M. Woolsey as vice-president of the Cleveland, Columbus & Cincinnati Railroad Company, and Flavel W. Bingham, as mayor of the city of Cleveland, and severally acknowledge the signing and sealing of the within instruments to be their several voluntary act and deed for the purposes therein expressed this 14th day of September, 1849.
“Jas. D. Cleveland,
“Justice of the Peace.”

The only statute of this state then authorizing contracts between municipal and railroad corporations, for the use and occupation by the latter of streets belonging to the former is found in Section 11 of “An act regulating railroad companies” (46 O. L., 40, 45), passed February 11, 1848. Section.9 of that act provided that any “such corporation is authorized to enter upon any land for the purpose of examining and surveying its railroad line, and may appropriate so much thereof as may be deemed necessary for its railroad, including necessary sidetracks, depots, workshops and water stations,” etc.

The power of eminent domain was thus conferred upon railroads for the acquisition of private property for railroad purposes. For their acquisition of the right to use or occupy public property already devoted to public uses, Section 11 of the same act provided that:

“If it shall be necessary in the location of any part of any railroad to occupy any road, street, alley or public way or ground of any kind, or any part thereof, it shall be competent for the .municipal or other corporation or public officers, or public authorities, owning or having charge thereof, and the railroad company to agree upon the manner, and upon the terms and conditions upon which the same may be used or occupied: and if said parties shall be unable to agree thereon, and it shall be necessary in the judgment of the directors of such railroad company, to use or occupy such road, street, alley, or other public ground, such company may apply to the court of common pleas of the county in which the same is situate, setting forth the aforesaid facts,” etc.

The Revised Statutes of Ohio, Sections 3281 and 3283, now embody substantially similar provisions.

The latter of these statutes has since been construed to authorize the acquisition by railroad companies not of an exclusive and permanent estate or easement, but of a right merely to the joint use and occupancy with the public of lands which were already dedicated or appropriated to public uses. Such companies may, by agreement or action for appropriation, acquire the right to use a public street for such railroad purposes and in such manner as shall not destroy the street, or exclude the public use and enjoyment of any and every part of it for street purposes, or cause any nuisance therein, or interfere with the full control and supervision thereof by the municipal authorities. L. S. & M. S. Railroad Co. v. City of Elyria, 69 Ohio St., 414; Railroad Co. v. Defiance, 52 Ohio St., 262; Zanesville v. Fannan, 53 Ohio St., 605; L. & N. Railroad Co. v. City of Cincinnati, 76 Ohio St., 481.

It follows that unless the rights of the defendants below are otherwise enlarged, the contract of September 13, 1849, must be restricted in its operation to the limitations prescribed by the construction thus put upon the statute wherein it rests, and that as so restricted it could afford no defense to the action below.

A striking fact, however, in this case and one upon which the defendants below place much dependence, is the great interval between the accrual and the assertion of the city’s right, together with the defendants’ outlay in the erection of many large and costly structures upon the premises during that interval under color of absolute ownership thereof, for their railroad purposes.

If the city were asserting a merely proprietary title, its action' would scarcely lie after this lapse of time, but its title to its streets is held, as already noted, in trust for the public, whose sovereign right no prescription nor laches should abridge.

We are not unaware of the early decisions in this state affirming the application of the statute of limitations tu somewhat similar cases. -But the authority of those decisions is questioned in Heddleston v. Hendricks, 52 Ohio St., 460, where Minshall, J., says at page 467:

“More recent cases place the right of the public as against-encroachments on its highways, however long continued, on the ground that they are public nuisances in favor of which the' statute of limitations does not run. ’ ’

See also L. S. & M. S. Railroad Co. v. City of Elyria, 69 Ohio St., 414, 435; Wasteney v. Schott, 58 Ohio St., 410, 415.

Those early decisions are, moreover, contrary to the well-defined current of American authority, and this court has long since determined that their application must be restricted to the' particular facts upon which they -are founded, until they shall be, as they ought to be, overruled. Wright v. Oberlin, 23 C. C., 509; Morehouse v. Burgot et al, 22 O. C., 174.

So also the loss by mere abandonment, mere non-user, of the common right of highway rests finally on no other or better footing than loss by adverse possession, and is therefore equally illusory (Nail & Iron Co. v. Furnace Co., 46 Ohio St., 544). Nor does the doctrine of equitable estoppel, when invoked to accomplish the same result, occupy any firmer foundation. If, as already shown, the Legislature can not, unless in the exercise of eminent domain, authorize property to be diverted from the public use to which it was originally dedicated, it is, of course, beyond the reach of any subordinate agency of government so to do; and that which is thus incapable of direct accomplishment must be equally unattainable by indirection. So where there is an entire absence of power to make a grant originally, there can be no room for an estoppel to grow up afterwards (Railroad Co. v. City, 76 Ohio St., 481, 507). And this is so because whoever relies upon the conduct of public authorities must take notice of the limits of their power. Hubbard v. Fitzsimmons, 57 Ohio St., 436, 449.

It being once established that the premises in controversy were originally dedicated to the public for street purposes, no grant,' nor prescription, nor mere non-user, nor equitable estoppel can change its status.

In the case, however, of the defendant, the Cleveland & Pittsburg Railroad Company, the plea of the statute of limitations is said to rest upon a different footing, since it claims under a chain of title independent of the contract of 1849, and perhaps also of that on which the dedication of Bath street depends. The. intrinsic merits of this title need not be examined, for it is conclusively presumed, as already stated, to be inferior to the ancient title of the city of Cleveland, and its merit is moreover im-material to the application of the statute of limitations.

Unfortunately for this plea, however, the defeüdant inter-, posing it is confronted with its own formal public disclaimer-of. the color of title which it now claims then ripening into prescriptive right. After the contract of 1849 was entered into, this defendant was called upon to defend its right of possession and occupancy in an action brought by ITenry Iiolmes and Julius O. Sheldon et al, on behalf of themselves and the other heirs of the stockholders of the Connecticut Land Company to recover • the Bath street property. The suit was tried before Judge McLean in 1857, and is reported in 93 Fed. Rep.,-100. The claim of the plaintiffs was that the city of Cleveland had-abandoned Bath street, a?id that the plaintiffs, therefore,-as heirs of the original proprietors, had a right to recover possession of-the propei’ty. The Cleveland & Pittsburg Railroad Company by its answer, expressly repudiated the claim of title on which' it now seeks to found its prescriptive right, and it, and the-other defendant railroad companies planted themselves squarely and solely upon their rights as derived from the contract of 1849. These answers aver, as to each defendant:

“That it has the right as- a component part of the public, to occupy with the consent of said city said Bath street in the manner and for the purposes aforesaid; that such are a great public accommodation and not incompatible with the purpose intended by said Connecticut Land Company in dedicating the same to the public, as aforesaid, but consistent therewith, and that the city of Cleveland in permitting this defendant thus to use a limited portion of said street and thereby distributing its legitimate use so as to best subserve the convenience and business interests of its inhabitants and the rest of the public, has committed no breach of trust nor violated any public or private right, but performed rather a duty which it owned as well to the. forecast of said land company as to the public. ’ ’

This defense prevailed and the contract was upheld. The city was not a party to the action, and therefore is not bound by the judgment, but that fact affords no reason for refusing to give effect to the Cleveland & Pittsburg Railroad Company’s admission that it was not then holding adversely to the city, as it now claims to have done. Not only is its answer in the Holmes ease admissible in evidence now, but it is conclusive as against its alleged title by prescription, not indeed by any tolling of the statute, but by characterizing the defendant’s possession as permissive, and consistent with the original public use.

And this is after all the common footing of all the railroads under the contract of 1849, the act of 1848, and the dedication of Bath street as such. It is doubtful if any unequivocal permanent exclusion of the public use or complete disseizin of the city ever occurred before this action vras begun. The contract of 1849 passed to the -railroads, so far only as the grantor had ‘ ‘ the power or legal authority so to do, the right to the full and perpetual use and occupancy for their railroad tracks, turn-outs, engines, and car and passenger houses, turn tables, water tanks or stations, avenues to and from the same, leaving open spaces between when deemed expedient,” etc. This appropriation of an easement for railroad purposes in part of Bath street .was valid in so far only as the parties had the corporate power and the lawful right to agree to it. The scope of the easement was expressly, left open to judicial construction, and no lawful right, either permissive or prescriptive, can spring therefrom to permanently exclude the public use of any part of Bath street for street purposes.

Another defense relied upon by the defendants below is the alleged change in the judicial construction of Section 11 of the act of February 11, 1848 (46 O. L., 45), and Section 3283, Revised Statutes, since the contract of 1849 was entered into thereunder. In fact, no judicial construction of said section was ever made prior to that time, for the original act had been in force but little more than a year, when the contract was made. It is said, however, that the same doctrine applies, where, on the faith of a construction judicially pronounced by the court of last resort in any state, upon a statute of the same state, property rights have grown up or been extended prior to a change in such construction as evinced in later decisions.

Whether this modification of the well-known rule of property be tenable or otherwise, it is not true that any such change of judicial construction of the statutes in question has taken place in the decisions of the Supreme Court of Ohio. It is true that various dicta appear in the opinions of judges of the Supreme Court touching upon the proper construction of this statute, prior to and inconsistent with the formal decisions by the Supreme Court above cited. But in no case were these dicta necessary to the decision of the cases in the report of which they appear, nor even essential to the lines of reasoning upon which these decisions of the court were founded and. forfeited. Little Miami Railway Co. v. Commissioners of Greene County, 31 Ohio St., 338; Cincinnati & Southern Railroad Co. v. Carthage, 36 Ohio St., 631; State v. Railway Co., 37 Ohio St., 158.

The rule of property which has been invoked in this connection has no application where the supposed rights that were swept awaj^ by later decisions have been founded upon no more substantial basis than mere obiter dicta. Friedman v. Suttle, 9 L. R. A. (N. S.), 933.

The principle, moreover, on which the present authoritative interpretation of Section 3283 rests, was foreshadowed as long ago as Hatch v. Railway Co., 18 Ohio St., 92, 119; and still more clearly in Hickok v. Hine, 23 Ohio St., 523. paragraph six •of the syllabus of which reads:

“Where the Legislature has power to require one public easement to yield to another more important, the intention to grant such power must appear by express words, or by necessary implication; and such .implication arises only when requisite to the enjoyment of the powers expressly granted, and can be extended no further than such necessity requires. ’ ’

So also in Little Miami and Columbus & Xenia Ry. Co. v. Dayton, 23 Ohio St., 510, paragraph 1 of the syllabus reads:

“Land appropriated to a particular public use is not thereby withdrawn from the liability-to be taken by legislative authority, in the exercise of the power of eminent domain, for another public use; but a subsequent grant can not be construed to authorize the destruction or subversion of the former use, unless such appears by express words, or by necessary implication, to be the legislative intent. ” . .

These cases are all prior to those relied upon by the defendants in this behalf.

And the answers of the railroads in the Holmes case, already referred to, show, moreover, a considerable appreciation, even at that early day, of the true-construction of the statute of which their rights are founded, and the perils which they would encounter should they undertake utterly to exclude the public from the street use to which the property in question had admittedly been dedicated.

As a last resource the defendants below invoke the doctrine of inherent corporate power to compromise and settle property-rights which are the subject of a bona fide dispute or- litigation. It is claimed that the contract of 1849 can and should be upheld as an agreement for the compromise and settlement of certain claims against the city of Cleveland to parts of the premises in-controversy upon grounds which went to the city’s title to the entire tract. One claim of this sort had indeed been so far prosecuted as to be in judgment against the city and to be pending on review in the Supreme Court of Ohio. The contract of '1849 refers to these claims in the concluding paragraph thereof, as already quoted at length.

The power to compromise and settle is doubtless inherent in all corporations as a corollary of the powers to sue and to sued. There are, however, several objections to the application of this doctrine to the facts of the present ease.

In the first place, the rights which the city is claimed to have parted with by virtue of its power to compromise and settle, are not of a merely proprietary nature. They are, in a sense, governmental. The defendants contend, however, “that a municipality in dealing with public grounds or streets has precisely the same power to protect herself against threatened loss through possible unfavorable results of litigation; precisely the same power to protect herself by compromising a doubtful right, that pertains to an individual dealing with property. Two well-considered cases illustrate the correctness of this proposition.”

The first of these cases, Mills v. Railroad Co., 47 Ia., 66, is not applicable to the distinction thus drawn, for the property there in question, though publicly owned, was neither dedicated nor appropriated to specific public uses.

The other case, City of St. Louis v. United States, 92 U. S., 462, though in point, is shorn of its force by the circumstance that the property, surrendered under the compromise, passed to the government; from which it was derived.

In Northern Pacific Railway Co. v. State of Minnesota, ex rel Duluth, 208 U. S., 583, 598, on the other hand, the incapacity of municipalities to exercise their implied powers of compromise and settlement in derogation of their governmental functions is illustrated by the statement that “the exercise of police power can not be limited by contract for reasons of public policy, nor-can it be destroyed by compromise; and it is immaterial upon which the contracts rest, as it is beyond the authority of the state or the municipality to abrogate this power so necessary to the public safety.”

But be this as it may, a conclusive objection to the application here of the doctrine of compromise is that no compromise was in fact effected by the contract. The claimants to the property as against the city of Cleveland were not parties to this agreement, and the city neither assured its peace nor its permanent title to any residue of the property by virtue of any covenant in the contract contained. The claimants were still at liberty to prosecute their actions and vindicate their claims without let or hindrance so far as any bar interposed by this contract was concerned. Clearly a city may not settle a litigated street title by getting someone to buy both street and lawsuit.

Upon the whole record we fail to find any reversible error. It is clear that the railroads have no right to maintain any permanent structures on these premises, except their tracks, and those only so far as they are compatible with the concurrent use of every part of the street and its accretions for public travel.

Recurring, however, to the uncertainty of the judgment below, we exercise our power to modify the same so that it shall read as follows:

“This cause coming on for hearing this day, and all parties hereto having waived a jury and submitted this case to the court, the same was heard upon the pleadings and the evidence; and upon consideration thereof the court finds that- the plaintiff has a legal estate in and is entitled to the immediate possession of the premises described in the petition, subject to all such contract rights as defendants, or any of them, may have under and by virtue of a contract, dated September, 1849, by and between the city of Cleveland and the Cleveland, Columbus & Cincinnati Railroad Company, which said contract is recorded in Vol. 51, pages 187, 188, 189 and 190 of the records of Cuyahoga county, Ohio, and being the same contract referred to in the pleadings of the parties herein, including such rights under and by virtue of said contract as any of said defendants have acquired by succession from or agreement with the Cleveland, Co-' lumbus & Cincinnati Railroad Company, its successors or assigns, to lay, maintain and use tracks over and across the portions of said premises hereafter designated as first, second and third parcels, without thereby or in any manner excluding free use of the whole and every part of said premises by the public for street purposes and full control and supervision of the same by the proper municipal officers of said city.
“And the court further finds that the defendants have unlawfully kept the plaintiff out of the possession of said premises,” etc.

The judgment will proceed as rendered below save that any further mention of said contract rights shall be qualified by the insertion thereunder of the words, as aforesaid.

As so modified, the judgment below is affirmed.