text:
    RIGHT OF OHIO CREDITORS TO SHARE IN THE STATE DEPOSIT OF A FOREIGN INDEMNITY COMPANY.
    Court of Appeals for Franklin County.
    Timothy S. Hogan, Attorney-General of the State of Ohio, on Behalf of the Superintendent of Insurance of Ohio, Robert M. Small, v. The Empire State Surety Company, William T. Emmet, Superintendent of Insurance of the State of New York, and Frederic G. Dunham, Special Deputy Superintendent of Insurance of the State of New York.

    Decided, April 1, 1916.

      Sureties — Deposit of Foreign Indemnity Company — Subject to' Claims of Creditors of Contractors Bonded by Such Companies — Regardless of Place of Execution of Either the Contract or the Bond.

    The federal act, extending the liability of a surety company upon the bond of a contractor to creditors for material and labor under his contract, fixes jurisdiction for enforcement of the rights of such creditors at the place where the contract is to be performed, and taken in connection with the evident purpose of Section 9510 to protect rights growing out of contracts so covered, the deposit of a foreign indemnity company, made with the superintendent of insurance as a condition of doing business within this state, must be held to inure to the benefit of creditors for labor ■and material under contracts to be performed within this state and covered by a bond of such company, notwithstanding the contract and the bond guaranteeing its performance were executed outside of the state.

      M. J. Wright and Booth, Keating, Peters & Pomerene, for the insurance department of the state of New York.

      Tolles, Hogsett, Ginn & Morley, Hughes & Tripplehorn, Russell K. Bedgood, Cable & Cable, Mackenzie & Weadock, Ralph Mackenzie, C. J. Brotherton and Paul T. Landis, for intervenors.

      For similar holding, see Hogan v. Empire State Surety Co., 18 N.P. (N.S.), 380.

   Kunkle, J.

This is an action wherein Timothy S. Hogan as Attorney-General brought suit under Section 641, General Code, to determine the rights of all persons claiming an interest in and to a certain deposit of $50,000 made by the Empire State Surety Company, a New York corporation, with the superintendent of insurance of the state of Ohio, in order to obtain the right to transact the business of indemnifying employers and others in the state of Ohio.

Certain parties intervened claiming to be creditors of Mark P. Wells, a contractor under the United States Government for the construction, extension, remodelling and repair of a post office building at Lima, Ohio, and that said the Empire State Surety Company had become surety for said Mark P. Wells upon a bond given to the United States Government in pursuance to an act of Congress approved February 24, 1905, which said bond, .was among other things, conditioned that said Mark P. Wells should promptly make .all payments to persons supplying him with labor and material in the prosecution of the work contemplated in said contract.

Some of the intervening creditors, among whom was Grainger & Company, reduced their claims to judgment in an action in the United States District Court, Western Division, in the Northern District of Ohio.

To the intervening cross-petitions Frank Hasbronek, superintendent of insurance of the state of New York, and Frederic G. Dunham, special deputy superintendent of insurance of the state of New York, filed a joint answer claiming the right to receive and administer the said fund of $50,000.

Grainger & Company demurred separately to each paragraph and defense of the joint answer of said Hasbrouck and Dunham.

This demurrer was sustained by the lower court. Final judgment was rendered and thereupon the case was appealed to this court.

We have carefully considered the authorities cited in the very exhaustive briefs which have been filed by counsel.

We shall not attempt to discuss or distinguish in detail the authorities so cited, but will merely announce the conclusion at which we have arrived after a careful study of such authorities.

The federal statute referred to by counsel extends the liability of the surety upon a contractor’s bond to the payment of the claims of the creditors of the contractor for labor and material furnished under the principal contract. In view of the federal statute and the liability thereby created, such creditors of the principal contractor would become policy holders within the purview of Section 9510, General Code.

It is evident, however, that the deposit provided for in Section 9510, General Code, was intended to be held for the benefit of the policy holders whose rights grow out of contracts made and business transacted within the state of Ohio.

It is true the contract between Wells and the United States Government for the improvement of the post office building at Lima and the contract of the Empire Surety Company guaranteeing the performance thereof were, according to the averments of the said answer, executed outside the state of Ohio.

These contracts were, however, to be performed within the state of Ohio, and the parties contemplated that the contracts for labor and material would be performed within the state of Ohio.

The federal act extending liability of the surety, upon the contractor’s bond, to the creditors of the principal contractor for material and labor under the principal contract fixes the jurisdiction over the enforcement of the rights of the creditors of the place where the contract is to be performed.

The fact that the United States Government has control over the post office site in question by cession from the state of Ohio does not supercede the jurisdiction of the state over the business involved in the performance of the contracts for labor and material.

Under this situation, we think the contract of Wells with the Empire State Surety Company should be regarded as the tran. saction of business in Ohio, and that the creditors of Wells growing out of the performance of the contract in question -are entitled to the benefit of the deposit made by the Empire State Surety Company under the provisions of Sections 9510 and 641, General Code.

We have carefully considered all of the questions discussed by counsel for the insurance department of the state of New York in their brief, but are of opinion that the demurrer to the answer of Hasbrouck and Dunham should be sustained.

Demurrer sustained.

Ferneding, J., and Allread, J., concur.


source: Caselaw Access Project

author: Chittenden,. J.

license: Public Domain

text:
    NATURE OF TITLE PASSED BY A WILL.
    Before Judges Chittenden, Kinkead and Rickards, of the Sixth District, ■ sitting in place of the Judges of the Fifth District.
    Court of Appeals for Kn-ox County.
    Robert S. Hull v. George William Chisholm, and The Sun Lumber Company v. George William Chisholm.
    Decided, April 14, 1917.

      Title — Determination of, by Construction of a Will — Title in Dee Simple Passes — Under a Devise With Absolute Power of Disposal — limitation Over Inconsistent and Without Effect.

    Where by the terms of a will a fee is clearly given, a limitation over of the remainder is void as inconsistent with the fee granted.

      Edward Killer, F. O. Levering and Greer & Cromley, for plaintiffs in error.

      A. A. Stasel, J. B. Graham and W. A. Hosach, contra.
   Chittenden,. J.

Error to the court of common pleas.

The same question is involved in these two actions. They were argued together and will be disposed of together.

The actions are brought to recover possession of specific real estate, the title to which is determined by a construction of the will of Sarah Hutchinson. Sarah Hutchinson died on October 23, 1895, leaving a last will and testament which was duly probated. The will reads as follows:

“In the name of the benevolent father of all:' — ■
“I, Sarah Hutchinson, of the city of Mount Yernon, Ohio, do make and publish this my last will and testament, viz.:
‘ ‘ Item 1st. I will that all my just debts and funeral expenses be first fully paid; and if I have not erected a monument for my late husband and myself I direct that such monument be erected at a cost not to exceed the sum of two hundred and fifty dollars.
‘1 Item 2d. I will and bequeath to Alice Y. Hutchinson of the City of Mount Yernon all the property of which I may die seized or possessed, both real and personal, to her and her heirs and assigns forever, subject to payment of the debts, expenses and cost of monument mentioned in Item 1 above.
“Item 3d. I will and direct that in case of the death of the said Alice Y. Hutchinson without leaving any child or children that whatever may remain of the property willed to her in the 2d item of this will shall be equally divided between my nephews George B. Stahl of Mount Yernon, Ohio, and Osear S. Blaney of Marshalltown, Iowa, and in ease of the death of the said Osear S. before the said Alice Y. Hutchinson then the share of said Oscar S. in said residue shall go to the said George B. Stahl.
“In witness whereof I have hereunto set my hand and seal this 22d day of July, A. D. 1882.
“Sarah Hutchinson.
‘ ‘ Signed, sealed and acknowledged by the said Sarah Hutchinson as her last will and testament in our presence and signed by us in her presence and in the presence of each other and at her request.
“Wm. McClelland,
“W. C. Culbertson.”

Alice Y. Hutchinson was the daughter of a servant of Mr. and Mrs. Hutchinson and lived with them from the time of her birth. She took the name of Hutchinson and was never known by any other name until her marriage. After the death of Sarah Hutchinson, Alice Y. Hutchinson was in possession of the real estate in question until the 6th day of June, 1904, when she sqld and conveyed the property to one Banner Allen, from whom the title passed through other parties to the defendants in these actions. Alice Y. Hutchinson had no child or children, and died on the 15th day of April, 1915, without leaving any property of any kind or nature.

It is the contention of the plaintiff that Alice Y. Hutchinson took only a life estate in the property that remained after the payment of the debts and funeral expenses of Sarah Hutchinson .and the erection of the monument provided for -by the will.

The defendants contend that Alice Y. Hutchinson took a title in fee simple and that the devise of what remained of the property at the death of Alice Y. Hutchinson, to the nephews of Sarah Hutchinson, is void.

The case has been skillfully argued both orally and by brief. The questions involved are so manifestly controlled by judicial decisions in this state that we think it unnecessary to discuss the cases and the opinions cited, in an opinion in this case.

We hold that Alice Y. Hutchinson took a title in fee simple and that the defendants hold the property by a valid title, upon authority of The Widows’ Home v. Lippardt, 70 O. S., 261; Cora Blee Tracy et al v. Miranda Blee et al, 22 C.C.(N. S.), 33; and Bteuer v. Steuer, 8 C.C.(N.S.), 71. We also call attention to the statement of the law as found in 40 Cyc., 1587.

The judgment of the court of common pleas in each case will be reversed; and, inasmuch as the title to the property de^ pends upon the construction of the will, and a remanding of the case for new trial could result in nothing other than a decree in favor of the defendants, this court will proceed to enter the decree that should have been entered by the common pleas court, dismissing the petition of the plaintiff in each case, at his costs, and quieting the title of the defendants in the property in question.

Kinkade, J., and Richards, J., concur.


author: Farr, J.

text:
    LIABILITY OF COUNTY FOR DEATH OF ONE KILLED BY A MOB.
    Court of Appeals for Mahoning County.
    Irene Davis, as Administratrix of Robert Davis, Deceased, v. the Board of Commissioners of Mahoning County, Ohio, et al.
    Decided, September 28, 1917.

      Mobs — •Statutory Remedy for Violence — County Not Liable, When — . Section 6283, General Code, Construed.

    In an action to recover damages against a county under favor of Section 6283, General Code, for the death or injury of a person by a mob, it must appear from the evidence that death or the injury was inflicted by the mob while attempting to lynch another person, and such person must at the time be the definite object of the mob’s violence. The phrase “another person” can not be construed to mean “no one in particular” but a person certain and definite.

      Franklin B. Powers, for plaintiff in error.

      J. B. Huxley, Prosecuting Attorney, and H. H. Hull, Assistant Prosecuting Attorney, contra. '
   Farr, J.

This is an error proceeding prosecuted in this court to reverse a judgment of the court of common pleas of this county. The parties sustain the aame relation here which they sustained in the court below.

On the 18th day of January, A. D. 1916, the plaintiff in error began an action in the lower court seeking to recover against the county of Mahoning for the death of her decedent on or about the 7th day of January in said year, A. D. 1916, which it is claimed resulted from a bullet wound or injury received on said date, while decedent was in the employ of the Pittsburg & Lake Erie Railroad Company, and while walking along its tracks adjacent to Broad street in the municipality of East Youngstown, this county.

The petition among other things avers that at and immediately prior to the hour of midnight on said date there was a collection of people upon and near to said Broad street, in and near to the business district of said village, assembled for an unlawful purpose and intending to do damage and serious injury to divers persons and pretending to exercise correctional power over divers persons by violence and without authority of law, and that said assemblage of people were intending to and did cause damages to buildings and the contents thereof, within the business district of said village and to do violence to the owners of said buildings, also to the police officers and divers good citizens of said village and to do or cause damage to the buildings, properties and bridge of the Youngstown Sheet & Tube Company, and to exercise correctional power over the servants, agents and employees of said company, and were acting with reckless and lawless disregard for the safety and lawful rights of any and all persons; that her decedent while about the performance of his duties as a ear repairer and while walking along the tracks of said railroad company, adjacent to said Broad street as aforesaid, suffered a bullet wound by the act or acts of such collection of persons, acting as aforesaid, from which he soon thereafter died, and by reason of which plaintiff claims damages against said county of Mahoning in the sum of five thousand dollars.

To said petition an answer was filed, admitting the immaterial allegations thereof and denying each and every other averment, and chai’ging that decedent’s death was brought about as the direct and proximate result of his own willful, negligent and criminal conduct, and that decedent took an active part in the criminal and riotous conduct of said collection or assemblage of people and that while so engaged he was shot and his life thereby taken, and if not so taken, that it was taken at the hands of those who were lawfully attempting to quell said riot and to bring the persons so collected for' riotous and criminal purposes to order and justice.

Trial was had in the court below, in which a verdict was directed for defendants, upon which judgment was entered and from which error is prosecuted in this court. The action below was brought under favor of Sections 6278 to 6289, General Code, inclusive.

The record discloses that in the evening of said 7th day of January, A. D. 1916, a collection of people had assembled in said Broad street of said village of East Youngstown and were rioting by looting and burning buildings and discharging firearms promiscuously; there was also rioting and lawlessness in other parts of said village which continued at intervals throughout the night. At about midnight an armed party of some fifteen persons .approached Broad street from a westerly direction and they were also discharging firearms somewhat promiscuously. At or near that time the fire by the rioters or mob at Broad street became more rapid, then lessened somewhat. It was about this time that said decedent Davis was walking along said railroad tracks adjacent to said Broad street. Three persons, Mike Cushner, Joseph Danko and Joseph Cramer, were likewise walking along said tracks and about ten feet behind Davis when he suddenly fell to the ground, and when they approached and raised him up he said that he was shot. They then placed him aboard an engine which conveyed him to the hospital where he later died. The record does not disclose who fired said shot nor from what direction it came; nor does it disclose that at the time the wound was received that said mob or party approaching from the west and who were also discharging firearms had any particular person or persons in view or as the object of their lawlessness. The record does disclose, however, by the testimony of MY Voltz, that near five o’clock in the evening rioters were shooting at the bridge of said Youngstown Sheet & Tube Company and that men employed by said company were on said bridge at the time. This is practically the only testimony as to any definite object of the mob’s violence.

It is urged, however, that liability attached as against said county by provision of the above sections, 6278 to 6289, General Code, and especially Section 6281, which provides that a person assaulted and lynched by a mob may recover from the county in which such assault is made, etc., and it is conceded that the action below rests largely witbin the authority vouchsafed by Section 6283, which reads as follows:

"See. 6283. A person suffering death or injury from a mob attempting to lynch another person shall come within the provisions of this chapter. He or his legal representatives shall have a like right of action as one purposely injured or killed by such mob.”

And it is further urged that in construing the above section it is necessary to read in connection therewith Section 6278, General Code, which provides as follows:

"Sec. 6278. A collection of people assembled for an unlawful purpose and intending to do damage or injury to any one, or pretending to exercise correctional power over other persons by violence and without authority of law, shall be deemed a ‘mob’ for the purpose of this chapter. An act of violence by a mob upon the body of any person shall constitute a ‘lynching’ within the meaning of this chapter.”

The issue raised here is, therefore, can recovery be had against the county for the death of Davis by virtue of the foregoing sections, when at the -moment the fatal wound was received the firing by the mob at Broad street, as well as by the party approaching from a westerly direction, was desultory and without any definite aim or object, so far as the record discloses, and in the absence of any positive testimony as to the course of the shot or the direction from whence it came? Two words are defined in the above Section 6278, namely, "mob” and "lynching,” and it was evidently not the legislative intent to permit the common law definitions to control. There is, therefore, no question in the instant case but that a "mob” had assembled; but was there a "lynching,” was Davis lynched? That is the real issue here. Lynching is defined in said Section 6278 as follows: "An act of violence by a mob upon the body of any person shall constitute a ‘lynching’ within the meaning of this chapter.”

Three things aré, therefore, necessary to constitute such lynching, a mob, a person, and an act of violence upon the body of that person by such mob, and whenever the act of violence is visited upon the body of any person, then it must be said that such mob has a definite fixed purpose as to such person; that is, it purposes to do the violent act and the person upon whom it is visited is the objective of the act. Such is clearly the legislative intent and as further indicated in Section 6283 as follows:

“A person suffering death or injury from a mob attempting to lynch another person shall come within the provisions of this chapter. ’ ’

An “attempt” is the effort or endeavor to carry into execution a previously conceived plan or purpose; therefore thq. phrase “another person” can not mean “no one in particular,” or “everybody in general,” but must be the subject of the plan, the object of the purpose, and such was the legislative intent. Said act, though liberal in its terms, was never intended to provide compensation for the indiscriminate, lawless, predatory acts of a riotous mob generally but not definitely on mischief bent, but to provide a remedy for damages suffered from definite, specific acts, and such is the reasonable import of the language used and easily deducible therefrom; and it is the ordinary and reasonable meaning which must control in its construction. Conrad v. Davies, Aud., 14 C.C. (N.S.), 477; Dorgan v. Columbus et al, 12 Dec., 128; Gas & Water Company v. Elyria, 57 O. S., 383.

Attention is .called to the case of Caldwell v. Commissioners of Cuyahoga County, 62 O. S., 318, which it is urged is helpful in the instant case, but which is found not well in point, as it determines principally a constitutional question. A very well considered ease, however, and one regarded as worthy of notice here is that of Gray v. Gibson et al, 12 N.P.(N.S.), 673, the first section of the syllabus of which reads as follows:

“The statutory provision for recovery of damages by persons who have suffered at the hands of a mob is limited to injuries, whether fatal or otherwise, suffered from a mob attempting to lynch another, and does not embrace injuries resulting from violence by a mob having no intent or purpose to lynch.”

The foregoing is well in point and involves the construction of some of the sections of the General Code.involved here.

In the case at bar there is no definite proof of the source from which the fatal shot came, or that at the timo Davis fell mortally wounded the mob had any object or aim except to burn, pillage and shoot aimlessly in its drunken frenzy, and for this reason the plaintiff faiied to maintain the action.

Therefore, in view of all the foregoing it must be held that the court below properly arrested the ease from the consideration of the jury, and the judgment is affirmed.

Pollock, J., and Metcalfe, J., concur.


author: Richards, J.

text:
    DAMAGES FOR. MISTAKE IN THE TRANSMISSION OF A MESSAGE.
    Court of Appeals for Allen County.
    The Judges of the Sixth District sitting in place of the Judges of the Third District.
    The Postal Telegraph-Cable Company v. J. A. Jones.
    Decided, March 16, 1917.

      Telegraph and Telephone — Validity of Limitation of Amount of Recovery for Mistake in Transmission of a Message — Rule of the Federal Courts, Excluding Liability Except for. Gross Negligence —Controls Where the Business Was Interstate.

    1. The validity of a limitation on the amount of recovery for mistake in the transmission of an interstate telegraphic message is to be determined by the federal law, and by that law a printed provision on the back of the blank, known to the sender, limiting the amount of recovery for mistake in the transmission of an unreported night lettergram to the amount received for sending the same, is reasonable and valid, and the company is not liable beyond such ■amount in the absence of willful misconduct or gross negligence.
    2. Evidence which shows a mere mistake in transmitting a message quoting the price of onions, whereby the word “one” is substituted for the word “two” does not show willful misconduct or gross negligence.

      Mackenzie & Weadock, for plaintiff in error.

      Hughes & Tripplehorn, contra.
   Richards, J.

Error to' the court of common pleas.

Suit was brought in the court of common pleas by Jones to recover damages of the Postal Telegraph-Cable Company in the amount of $240, arising from an error in the transmission of a telegraphic night letter message. The trial resulted in a verdict and judgment in the sum of $75, and to reverse this judgment this proceeding in error is brought.

Jones was dealing in onions at MeGuffey, Ohio, and desired to quote a price on same to Weinberg Brothers at Galesburg, Illinois, and in order to accomplish this purpose he telephoned the operator of the defendant company at Lima and dictated to him the message that he wished to have sent. That message as dictated over the telephone reads as follows:

“McGuffey, Ohio, 8-31-13.
“Weinberg Bros.,
“Galesburg, Ills.
‘ ‘ Offer car white onions two twenty-five cwt. sea grass bags delivered quick shipment subject prior sale.
“J. A. Jones.”

The message as delivered to Weinberg Brothers in Galesburg, Illinois, stated the price at one twenty-five per hundredweight instead of two twenty-five per hundredweight as stated in the original message.

The message was accepted at the office of the defendant company in Lima at night as a night lettergram and was not repeated nor was it asked to be repeated. The blank on which it was written by the operator at Lima contains a request that the same should be sent as a night lettergram without repeating, and subject to the conditions printed on the back which are stated to be agreed to. On the back of the blank among other conditions is found the following:

‘ ‘ 1. The company shall not be liable for mistakes or delays in the transmission or delivery, or for non-delivery of any unrepeated night lettergram beyond the amount received for sending the same; nor for mistakes or delays in the transmission or delivery, or for non-delivery, of any repeated night lettergram beyond fifty times the sum received for sending the same, unless specially valued and insured.”

The plaintiff testified on the trial of the case that he expected this message to be sent as a night lettergram on the regular blank used for that purpose by the company, and that he was familiar with the methods of doing that business as he had been a frequent patron of the company and had himself been a telegraph operator for the period of seventeen years. He must, under these circumstances, be held to have had full knowledge of the terms and conditions contained on the blanks used by the company for the transmission of night lettergrams and to have assented thereto.

Contention, however, is made by counsel for Mr. Jones that this condition is invalid, and the principal question is whether that is to be determined by the state or by the federal law. Of course, if the terms ¡and conditions are valid and binding, the amount of recovery could be only the sum paid for the transmission of the message, which was fifty cents. In furtherance of the enforcement of that limitation counsel for the company asked the trial judge to charge the jury before argument the following proposition:

“ Gentlemen of the jury, if you find from the evidence that J. A. Jones sent defendant’s Exhibit 'J’ to Weinberg Brothers from Lima, Ohio, to Galesburg, Illinois, or caused the same to be signed for him and sent for him, I charge you as a matter of the law that the defendant is not liable for mistakes or delays in the transmission or delivery, or for non-delivery of any unrepeated night lettergram beyond the amount received by defendant for sending the same.”

The court refused to give this instruction to the jury.

■Section 1 of the Interstate Commerce Act, as amended June 18, 1910, provides that the act shall ¡apply to telegraph, telephone and cable companies (whether wire or wireless), engaged in sending messages from one state, territory or district of the United States to any other state, territory or district of the United States or to any foreign country. This act further provides for reasonable charges for such services and authorizes classification of such messages. We have no doubt that Congress by enacting this statute has asserted complete control over the transmission and delivery of interstate messages, and Congress having so occupied this field brought the interstate business of such companies within the jurisdiction of the federal courts and left no room for the control of that business by the separate states. The entire field of the business of interstate messages is brought fully within the control of the federal law and is to be determined thereby as much as the liability of a railroad when one of its employees is injured, where the company and the employee are both engaged in interstate commerce in transacting the business in which the employee is injured. In determining, therefore, whether the limitation of liability contained on the form of night lettergram used by the company is valid we must look to the holdings of the federal courts on that subject.

The matter was fully considered by the Supreme Court of the United States in Primrose v. Western Union Telegraph Co., 154 U. S., 1, where a stipulation contained on the message, that the company should not be liable for mistakes in the transmission or delivery of the message, beyond the sum received for sending it, unless the sender should order the message to be repeated and pay half that sum in addition, was held to bé reasonable and valid. It is true that the message which was transmitted in that case was written in cipher and that the company was not advised of the import thereof, and some stress is laid on this, fact in the course of the opinion. But it is also true that the opinion of the court delivered by Mr. Justice Gray relies very largely on eases where the messages transmitted were not in cipher and where the courts had reached in such case a conclusion that the limitation was valid.

The case was cited with approval in Western Union Telegraph Co. v. James, 162 U. S., 663. It is also cited in Box v. Postal Telegraph-Cable Co., 91 C. C. A., 174; and in this latter case the circuit court of appeals states that the Primrose case settles the validity and binding effect of the rule in question and is an answer to all authorities which hold that the limitation is void as against public policy.

Among the authorities relief upon by the Supreme Court of the United States in the Primrose case cited supra, are decisions of the Court of Appeals of New York. Since that decision the New York courts have had the question before them in various forms, one of the latest eases being Weld et al v. Postal Telegraph-Cable Company, 199 N. Y., 88, in which the court say that the trial court properly charged the jury that the conditions printed on the blank or form upon which the message was sent were binding upon the plaintiffs and absolved the defendant from liability for damages unless they were occasioned by the defendant’s gross negligence.

Following, therefore, the holdings of the federal courts and the state authorities approved by the federal courts, we reach the conclusion that the limitation of liability contained on the printed form of the night letter used in transmitting the message is valid and binding, and that the extent of liability therefore is the amount paid for the transmission of the message. The trial court should have given to the jury in charge the instruction which was requested.

The rule of the federal courts excludes liability except in cases of gross negligence or willful misconduct on the part of the company. The only error in transmitting the message was in substituting the word “one” for the word “two,” and that alone does hot tend to show either gross negligence or willful misconduct upon the part of the company. See Halstead et al v. Postal Telegraph-Cable Co., 193 N. Y., 293, 19 L. R. A. (N. S.), 1021; Wheelock v. Postal Telegraph-Cable Co., 197 Mass., 119.

That the authorities are utterly irreconcilable is clearly shown in 37 Cyc., 1684, where they are collected. This condition of the authorities makes it absolutely necessary in deciding a case of this character to determine whether the same is controlled by the federal or state authorities. The message being an interstate one is clearly controlled by the federal law.

It follows that the judgment for seventy-five dollars rendered in favor of-the plaintiff below should be modified; and it is the order of the court that the same be -modified by reducing it to fifty cents, and as so modified it will be affirmed; each party to pay his own -costs.

Chittenden, J., and Kinkade, J., concur.


author: Houck, J.

text:
    SUFFICIENCY OF PROCEEDINGS ESTABLISHING “DRY” TERRITORY IN A RESIDENCE DISTRICT.
    Court of Appeals for Fairfield County.
    William Rider, Jr., v. H. F. Repass, Mayor of the City of Lancaster.

    Decided, October 31, 1917.

      Intoxicating Liquors — Proceedings Making Territory “Dry” Under the Jones Local Option Law — Requirement as to Attaching Maps to Petitions — Including o} Small Strip Outside of Corporation Treated as a Mistake — Exempted Blocks — Registered Voters Are Qualified Signers of Petitions — Sections 6067-8-9.
    1. The -provisions of the local option law, that maps shall be attached to petitions for establishment of a district in which the sale of intoxicating loquor is prohibited, has been -complied with where a second blank form was attached for additional names, instead of placing them on a blank piece of paper and -attaching that to t-he petition, no showing having been made of fraud or that any resident of the proposed -district was misled thereby.
    2. The requirement that the territory included in such a district be within the corporate limits is not satisfied, where a railway track is made one of the boundary lines and a strip of land forty feet in width, forming part of the railway right-of-way and lying between the track and the municipal boundary line, is thus included in the proposed district; hut the inclusion .of such a strip may be treated by a court as a mistake and the description ordered modified by striking out the territory thus wrongly embraced in the -district as described in the petition.

      3. A showing that those signing the petition are registered electors sufficiently establishes their qualification in that behalf.
    C. W. McCleery, for plaintiff in error.

      J. A. White, J. W. Deffenbaugh and Ben R. Dolson, contra.

      Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, January 22, 1918.

   Houck, J.

The proceeding before ns for review is one in error in which it is sought to reverse a judgment entered by Hon. John G-.< Reeves, Judge of the Common Pleas Court of Fairfield County, Ohio, in which the court on a petition filed under favor of what is known as the “Jones residence local option law,” ordered and directed that the prayer of the petitioners be granted, prohibiting .the sale of intoxicating liquors as a beverage in the residence district described in said petition, in the city of Lancaster, Ohio.

The errors relied upon by counsel for plaintiff in error are: first, that maps were not attached to the petitions, as required by law; second, that there is a defect in the description of the territory sought to be made dry, because it includes a strip of land about forty feet wide and eleven hundred feet in length on the southern boundary line of the proposed dry district or territory that is without the corporate limits of the city of Lancaster; third, that the district contains an exempted business block; fourth, that the required number of qualified electors did not sign the petitions.,

Counsel for plaintiff in error urges that there were nine petitions, executed in the usual form, and but five maps, and therefore Section 6146 of the General Code was not complied with. Said section reads:

“All petitions for signatures, under .the next six preceding sections, shall have a map or drawing attached, showing the outlines of the district, and location of all saloons within the district proposed.”

Upon an examination of the petitions and maps, we find that all of the petitions are in the usual printed form, and that four of the maps have attached to them two petitions each, and one of the maps has one petition. All are securely fastened by hooks or fasteners.

No complaint is made as to the one petition and one map, bilt it is insisted upon that because one map in four instances is attached to two petitions, such is not a compliance with the above statute. The same names do not appear on the second blank form of petition as on the first, and we do not see how any one could be prejudiced by this because for convenience a second blank form petition w.as used instead of inserting a blank piece of paper for signatures. The second blank form was no doubt used for convenience, and in the absence of a- showing of fraud, or that any qualified elector or resident of the district was misled thereby, or in some way prejudiced, we do not think that the plaintiff in error has any just cause of complaint in this regard.

Plaintiff in error insists that the petitions and maps upon their face show that -there is an entire failure to properly and legally describe a municipal district. It is claimed that the description includes a part of Berne township, without the corporate limits of Lancaster; that the south boundary line of the district is the north line of the C., A. & C. Railway, which includes a strip of land eleven hundred feet in length and forty feet in width, outside of the south boundary line of the corporation limits of the city of Lancaster. Section 6068, General Code, reads:

“The phrase, ‘residence distriót,’ as used in this chapter, and in the penal statutes of this state, means a clearly described, contiguous compact section or territory in a municipal corporation, bounded by street, corporation, or other well recognized lines or boundaries, and containing not less than three hundred qualified electors, nor more than five thousand qualified electors.”

An examination of the language ■ used in the above statute can lead us to but one termination, and that is that a “residence district” must be clearly described, and that the territory therein must be a compact section or part of a municipal corporation, etc. The territory can not legally embrace any territory outside of the corporate limits.

The territory in dispute is conceded to be the right-of-way of the C., A. & C. Railway Company; that no one lives upon it; that no one residing therein signed the petitions, or either of them, and no one having ,any interest in said disputed territory is claiming to be prejudiced by this proceeding.

How could any one be prejudiced thereby, whether he lived, within the boundaries of the parcel of land in question or in the corporate limits of Lancaster?

The only - power and authority given to the residents of a municipality under the Jones law for local option residence districts is contained in Section 6140, General Code. This statute applies to municipalities alone, and no jurisdiction is given them outside of such municipal corporations.

How can it with any force he urged that when the petition^ and'maps now under consideration were drawn that it was intended that, the disputed territory should be included ? To us it seems clear that it was included by mistake, because an examination of the Jones law plainly indicates that no territory can be legally included outside of the municipality. We hold the rule to be, as applied to the facts in this case, where outside territory is included, that all such territory so included in the description of the district lying outside of the corporate limits of the city of Lancaster, Ohio, should be excluded, but that fact does not within itself invalidate the district lying and being within the corporate limits.

Then let us. inquire, who can be prejudiced if the territory which has been included by mistake, and over which the municipality of Lancaster has no jurisdiction, is excluded? We are of the opinion that no one will suffer injury or prejudice thereby, and that the purpose and intent of all parties in interest will be fully carried out, and, further, that the legislative intent of the provisions of -Section 6068 will in no wise be violated. We believe that any other or different application of the provisions of this statute to the conceded facts in this case would be a strained one, and entirely out of tune with the well known rule as applied to the construction of and application of statutory-law.

Coming now to the next ground of alleged error: does the district contain an exempted block? An examination of the bill of exceptions discloses that the block in question is a vacant tract of land, .and if it is used for any purpose at this time it is for farming, which fact was conceded by counsel for plaintiff in error in oral argument. With this fact before us, we are inclined to believe that it will not now be urged that this alleged error is well taken.

The fourth and last error relied upon is as to whether or not the required number of qualified electors signed said petitions, and whether or not the evidence offered establishes the fact that they were qualified as required by Section 6067, General Code.

Learned counsel for the plaintiff in error maintains that “proving a petitioner was registered in a certain precinct does not show that he is .a citizen or entitled to vote. If it did, all that a man would have to do would be to get registered, and thereby prove his qualification or right to vote. The adjective ‘registered’ does not take away any of the qualifications necessary to be shown to prove that he is a voter; it only .adds another and further requisite to be proven; he must still be a voter, whether registered or not, and this can not -be done without showing that he is a citizen of the United States, in addition to the other qualifications mentioned.” We are not in accord with this claim of counsel, and can not .and do not subscribe to it, because it'is too narrow a construction placed upon Section 6067, General Code.

The Legislature, in enacting this section, saw fit to define therein ‘ ‘ qualified elector, ’ ’ and in order to make it clear, definite and certain as to meaning, and make a definition for the phrase “qualified elector,” as used in said statute with reference to petitions in a residence district of a municipal corporation, defines the same to be, “a registered male voter in a municipal corporation which has registration, or a male voter entitled to register therein, or a male voter of a municipal corporation which does not have registration, provided that in each case such qualified elector has been a bona fide resident of such residence district for four months before the filing of the petition upon which his name'appears. ”

It is therefore apparent that in the enactment of this statute the Legislature has settled some things which might otherwise be difficult of proof. This section clearly -and specifically defines who is a qualified elector. The statute is in no wise ambiguous. It was the purpose .and intent of the Legislature to so define "qualified elector,” which it did by language clear, plain and definite, and which needs no interpretation.

The record in this case shows that more than the requisite number of petitioners was obtained, and ’that they were qualified electors of the district, as required by law.

It is not our purpose or intention to discuss the questions involved in this case at further length, except to say that it is not within the domain, nor is it the duty of a reviewing court to reverse a judgment of a lower court for mere technical reasons, but a reversal must be based upon errors which are apparent •upon an examination of the record and found to be clearly prejudicial to the right or rights of those complaining; .and after a careful examination of the evidence in this case, as presented in the bill of exceptions, and from the entire record before us a majority of the court holds that -there are not such errors in the record affecting the substantial rights of the plaintiff in error as would warrant .a reviewing court in reversing the judgment of the common pleas court in this ease. But we do find, however, on the conceded facts in the ease as disclosed by the record, that the judgment entered below should be modified by striking out of or amending the description of the territory described in th¿ petitions, by excluding therefrom all that part of the territory included therein lying and being outside of the corporate limits of the city of Lancaster.

Judgment -affirmed as modified.

Powell, J., concurs; Shields, J., dissents.


author: Walters, J.

text:
    LIMITED CHARACTER OF THE FORD MOTOR COMPANY AGENCIES.
    Court of Appeals for Adams County.
    W. H. Orebaugh v. W. C. Neu.
    Decided, January 24, 1917.

      Agency — Character of the Contracts — Between the Ford Motor Company and Its Agents — Title Passes Directly from the Company to the Purchaser — Validity of the Contract — Damages for Violation of Its Terms by One Acting with Knowledge.

    The Ford Motor Company, in its limited agency contract, withholds the title to the machine in itself and the agent has the right only to solicit purchasers and no right to give complete title to the purchaser except by bill of sale signed by the Ford Motor Company, and its sales are made through its own agents under the contract, and it is protected in so directly selling by its patents, and its contract is not monopolistic, in restraint of trade, or in violation of the Sherman anti-trust law, or against public policy.
    The plaintiff in error filed his amended petition in the court of common pleas, alleging that on the 3d day of October, 1913, and for a long time prior thereto, the Ford Motor Company, a corporation duly incorporated under the laws of the state of Michigan and having its place of business in the city of Detroit, in the state of Michigan, was engaged in the manufacture and sale of a certain line of automobiles and automobile accessories, known as Ford automobile, of which it was the sole manufacturer ; that they were manufactured under letters patent of the United States, of which the Ford Motor Company was the sole and exclusive owner. On said 3d day of October, 1913, the plaintiff made application to the said Ford Motor Company to its agent in the following territory, viz., Winchester, Ohio, and Adams county, all in the state of Ohio, and said Ford Motor Company accepted said application and entered into a written contract. Then follows a copy of the contract.
    On the 9th day of March, 1914, the plaintiff and defendant, ■having full notice and knowledge of the existence, terms, provisions and conditions of said contract of plaintiff with said Ford Motor Company, entered into a partnership in the business of selling automobiles. Said partnership took over and assumed all the rights, powers and privileges contained in said contract between plaintiff and said Ford Motor Company, and prior to said 9th day of March, 1914, plaintiff and defendant, as such partners, ordered and requested a consignment to plaintiff from said Ford Motor Company under said contract between plaintiff and said Ford Motor Company of a large number of said Ford automobiles, to be sold under the provisions of said contract. That plaintiff and defendant; as such partners, advanced to said Ford Motor Company eighty-five per cent, of the full advertised list price of the consignment. That said cars so ordered were duly shipped by the Ford Motor Company.
    On the 9th day of March, 1914, while plaintiff and defendant, as such partners, had in their possession a large number of such oafs belonging to said Ford Motor Company, they dissolved said partnership.and entered into a contract of dissolution. Part of said contract is as follows:
    “* * * W. C. Neu is to have as his share in the division of the property eleven new motor cars in good condition; Orebaugh is to have all the balance of the machines, * # *”
    Also the following:
    “The said W. C. Neu is to sell all his oars in accordance with the. .terms of the contract between the Ford Motor Company and W. IT. Orebaugh and the said W. IT. Orebaugh agrees to sell on the same conditions, and neither of them is to interfere with the other’s sales.”
    Plaintiff says that the defendant, in violation of said written agreement of defendant with plaintiff, and with full knowledge of said contract between plaintiff and the Ford Motor Company,* between the 9th day of March, 1914, and the 30th day of September, 1914, and while both contracts were in full force and effect, which defendant well knew, sold a large number of said Ford motor cars so received by defendant under his written agreement with plaintiff, to-wit: six of said new Ford motor cars, outside of the specified territory mentioned in said contract of limited agency between this plaintiff and the said Ford Motor Company, by knowingly selling the same to persons who are, and then were, residents of Scioto county, Ohio. Thereupon said Ford Motor Company, through one W. J. Friel, its limited agent in said Scioto county, Ohio, called upon the pláintiff, and plaintiff under his said contract with the said Ford Motor Company was compelled to, and did, pay at the order of the Ford Motor Company to its limited agent at Portsmouth, Ohio, the sum of $400 damages by reason of such sale so made by defendant in violation of said contract between plaintiff and defendant.
    Wherefore, plaintiff claims a judgment against the defendant for the sum of $400.
    To this amended petition the defendant filed a general demurrer on the ground of insufficiency.

      Blair & Kimble, for plaintiff in error.

      Joseph W. Bagby and C. E. Roebuck, contra.
   Walters, J.

■ The question raised .is, whether or not the contract between Orebaugh and the Ford Motor Company is against public policy, monopolistic in'its tendencies, and in violation of the Sherman anti-trust law.

The former contract of the Ford Motor Company was under consideration and an opinion rendered by Judge Hollister, of the District Court of the United States for the Southern District of Ohio, Western Division, in cause No. 2174, Ford Motor Company v. The Union Motor Sales Company et al, and Judge Hollister held in the opinion in that case that the contract of the Ford Motor Company then existing and under consideration by the court was monopolistic, against public policy, and came within the provisions of the Sherman anti-trust law.

Whether or not the contract now under consideration' (or the contract under consideration by Judge Hollister) is a contract which the Ford Motor Company had no right to make with its agents depends upon whether or not the contract provides for the sale of the machines to the agents — whether or not the title to the machines vest in the agent.

After the said decision the attorneys for the Ford Motor Company drew up another contract, which they attempted to take out of the provisions of the decision of Judge Hollister. As to whether or not they have done so, is the principal question in this case.

Judge Hollister held that a patentee, when he sold his machines to a vendee and received the full purchase price therefor as such patentee and manufacturer, could not dictate the price at which his agent or vendee should sell the article. That under the patent laws of the United States when a man received a patent the object is to give him a monopoly and he may manufacture and sell direct for such price as he may fix, and he is protected by the law and his patents, but when he sells to an agent or other person and received the full price he asks for the article and all he expects to receive he can not say to the vendee or agent that he must sell it for a certain price. That is the extent of the protection afforded him by the patent laws of the United States.

Mr. Orebaugh’s contract was under the new form of contract provided by the Ford Motor Company, and if its terms withholds the title in the Ford Motor Company, and the agent has the right only to solicit purchasers for the Ford Motor Company, and has no right to give complete title to the purchaser except by bill of sale signed by the Ford Motor Company, it seems to us the Ford Motor Company is selling the machine direct through its agent, and that Orebaugh was simply a soliciting agent for the Ford Motor Company, and that' no title passed when Orebaugh secured a purchaser for. one of the machines until the Ford Motor Company executed a bill of sale.

Now let us examine some of the provisions of this new contract.

The preamble states:

“Whereas the second party has applied to the first party to be the agent in certain territory hereinafter described, for the sale of said Ford automobiles and parts, and the first party is willing to appoint second party, with certain limited authority and upon the following terms and conditions only:”

Condition No. 1 is as follows:

“That first party hereby appoints the second party its ‘Limited Agent,’ with certain authority as herein expressly stated only, for the purpose of negotiating sales of first party’s products to users only in the methods and upon the terms and within the territory herein specifically set forth.”

Condition No. 2 is as follows:

“That second party shall have no authority or power or duty whatsoever except as herein expressly conferred.”

Condition No. 3 is as follows:

That first party will consign its Ford automobiles to second party to be sold to users only, and not for re-sale, upon bills of sale to be executed by the first party only, as hereinafter provided.”

Condition No. 6 states:

“Second party shall arrange for sales of Ford automobiles.”

And in condition No. 7 we find the term:

“Second party shall arrange all sales.” * * *

Condition No. 9 provides:

‘ ‘ The first party may change the list price of any of its products at any time it may choose.” * * •

Condition No. 10 sets forth the second party’s lien, stating that he shall advance in cash 85% of the full list price of cars at the time of the consignment, and in condition No. 11 the word “consignment” is also used.

Condition No. 13 is as follows:

‘ ‘ First party shall retain all and complete title to each automobile until actual bill of sale, signed and executed by first party, or one of its factory branch managers, has been delivered to the vendee, who shall be only a user; that is, one who has purchased for. immediate use and not for re-sale the Ford automobile, at full advertised list price, plus freight and delivery charges, and without rebate, donation or drawback of any character whatsoever. And any attempt to sell or dispose of or deliver any Ford automobile at less than such price shall be utterly void and shall pass no title whatsoever.”

Condition No. 14 specifically gives the second party a lien on each Ford automobile consigned to him for the 85% advanced •by him on the sale. The consignee or limited agent could have no lien upon his own property.

Condition No. 15 states:

“* * # second party will make no arrangements for the sale of a Ford automobile without taking such written signed order.” * # *

Condition No. 17 states:

‘1 The dealings of the second party with a proposed purchaser of an automobile or the taking of a signed order blank as herein required or a deposit or both, shall not constitute a sale, nor shall first party be bound to accept such order. ” * * *

Condition No. 19 states:

“Second party shall have no authority to make any warranty whatsoever of Ford automobiles.” * * *

Warranty is an incident of ownership.

Condition No. 21 provides:

“In case of damages to automobiles by carriers in transit to second party collection from the carrier shall be made in the name of the first party as the owner of such automobiles.” # * *

In condition No. 23 second party guarantees to save first party harmless from theft and damage of any kind to Ford automobiles while in his possession under consignment.

In condition No. 25 second party agrees to.display signs and otherwise advertise as a limited agent for Ford cars, and thus establish himself with the public as being simply an intermediate agent between the seller and buyer, or, in other words, a means of communication.

Condition No. 32 is as follows:

“The first party hereby expressly reserves to itself the right to make direct sales to customers in the territory above described, and in such case will pay to the second party five per cent. (5%) of the list price of the automobile or automobiles so sold, after it shall have received the full purchase price in cash. This shall not include sales of parts or accessories, which are otherwise provided for herein.” * * *

Condition No. 43 agains reserves the right in the first party to change the price of the car at any time, and even after requisitions and deposits are accepted.

All of these provisions, and each and every one of them, are made in this contract with the intent on the part of' the contracting parties that the first party shall retain the title and ownership of all automobiles until the limited agent has secured a purchaser, and then not until the first party executes a bill of sale to the purchaser is the sale complete.

The first party reserves the right to make sales in the territory itself: provides that the second party shall not warrant any of the automobiles. If he owned them he could do as he pleased with them. The second party can make all the arrangements for a sale he pleases, but in the contract the Ford Motor Company reserves the right to make the sale by executing a bill of sale. The contract speaks of the second party making arrangements for the sale. Condition No. 13 provides that the Ford Motor Company “shall retain all and complete title to each automobile until actual bill of sale is signed and executed by the first party.” * * * Condition No. 9 gives the right to the first party to change the list price of any of the products. That is an index of ownership.

We do not decide whether the relation between the automobile company and the limited agent is that of bailor or bailee. But whatever the relation is, as evidenced by this ^contract, it may be termed, as it is in the contract, one of limited agency.

We are constrained to believe- that what we have quoted of this new contract steers clear of the objections pointed out In the opinion of Judge Hollister in the old contract, and each of the paragraphs quoted from the new contract show distinctly that the Ford Motor Company has simply given the right to its limited agents to procure purchasers; in other words, as is said in the contract, to arrange for the sale, and the company really makes the sale itself after the agent acts as a solicitor in procuring a purchaser. The Ford Motor Company manufactures these automobiles under its different patents issued by the United States, and under this contract it sells them directly through an agent, and that it has a right to do and protected by its patents in fixing whatever price it chooses so long as the title is not vested in the limited agent.

Having concluded this part of the questions that are made in this ease and finding that the contract is a valid one, is not against public policy, is not monopolistic, and is not within the provisions of the -Sherman anti-trust law, and that the patentee of these articles was discharging only his own legal rights protected by the patents, we now come to the question of the liability of the defendant to plaintiff under the contract of dissolution between them.

It is stated in the amended petition, and the language used in the contract of dissolution is, that Neu had explicit knowledge of all the clauses in the contract of Orebaugh with the Ford Motor Company, and that he agreed in the contract of dissolution he would sell all cars in accordance with the terms of the contract between the Ford Motor Company and W. H. Orebaugh. Now neither Orebaugh nor his partner according to our finding, had any title to any of the ears. Therefore, Orebaugh could cqnfer no title by selling the same to Neu, and in fact it was not a sale — it was a dissolution of the partnership and a division of the assets of the partnership between them upon amicable terms. But Neu, in violation of his contract of dissolution and in violation of the Ford Motor Company contract, of which he 'knew, as is alleged in the amended petition, sold machines in Scioto county, which he well knew he had no right to do, and he knew at the time of his selling of machines outside of the territory limited in the Ford Motor Company contract would make Orebaugh liable for $250 for each machine so sold. Orebaugh says he has paid the damages to the agent of Scioto county, through the Ford Motor Company, and he now asks the Neu, for a flagrant violation of his contract, pay to him the damages he has sustained thereby. If this was not a fraud on the part of Neu, when he had knowledge of the Ford Motor Company’s contract and its provisions against selling outside of certain territory and the penalty attached to Orebaugh for so doing, it certainly nearly amounts to a fraud. For such a violation of the terms of the partnership contract of dissolution and the Ford Motor Company’s contract, knowing of the damage that would result to Orebaugh, it seems to us that Orebaugh can maintain an action against Neu.

The judgment of the court below is reversed, cause remanded and the court instructed to overrule the demurrer to the amended petition.

Sayre, J., and Middleton, J., concur.


text:
    VALIDITY OF THE STATUTE REGULATING PRIVATE EMPLOYMENT AGENCIES.
    Court of Appeals for Lucas County.
    Frank Raabe v. State of Ohio.
    Decided, March 19, 1917.

      Constitutional Law — Section 886 et seg., a Proper Exercise of Police Power — Persons Receiving a Fee for Securing Employment Subject to Regulation Under the Act Regulating Private Employment Agencies — Act Not Invalidated by Failure to Provide for Judicial Review — Not Indefinite for Failure to Define the Phrase “Good Moral Character."

    1. A person who, claiming to have influence with a business company, furnishes and agrees to furnish to sundry persons employment with said company and for this service receives a fee from the persons for whom he agreed to furnish employment, and is not acting as agent for a charitable organization, is subject to the provisions of Section 886, General Code, and following sections regulating private employment agencies, even though he maintains no office and displays no sign or bulletin and transacts the business at his residence.
    2. Section 886, et seq., of the General Code, providing for the licensing and regulation of private employment agencies, is a constitutional exercise of the police power by the General Assembly.
    S. The failure to provide in the act for a review 'by the courts of a refusal of the commissioner of labor statistics to issue a license on his conclusion that the applicant has violated the law relating to private employment agencies, or is not of good moral character, does not invalidate the statute, since there is a presumption against wanton action by the commissioner, and if there should be such disregard of duty a remedy in the courts would be implied.
    4. The failure of the act to define what constitutes “good moral character” or to furnish a standard for determining it, does not render the statute invalid for indefiniteness or uncertainty.

      Friedman, Foster & Dixon, for plaintiff in error.

      Joseph MeGhee, Attorney-General, J. C. D’Alton, Prosecuting Attorney, and W. S. Connors, contra.
   Richards, J.

Error to the court of common pleas.

The plaintiff in error was arrested, tried, convicted and sentenced in the police court of the City of Toledo on a charge that he unlawfully operated and maintained a private employment agency for hire, in violation of the provisions of Section 886, General Code, and succeeding sections. He prosecuted error to the court of common pleas, where the judgment and sentence were affirmed, and he brings this proceeding in error to procure a reversal of these judgments.

It is earnestly contended that the affidavit on which he was arrested is insufficient; that the court erred in the admission of evidence; and that the judgment of conviction is not sustained by sufficient evidence. And it is also insisted that the section of the General Code already cited is in violation of various provisions of the Constitution of Ohio and the. Constitution of the United States.

A careful examination of the affidavit fails to disclose any defect therein. Neither have we found any prejudicial error in the admission or rejection of evidence on the trial of the ease.

The act of the General Assembly under which the defendant was prosecuted prohibits any person from operating or maintaining a private employment agency for hire, or in which a fee is charged an applicant for employment, without obtaining a license from the commissioner of labor statistics. The phrase private employment agency” is clearly defined in Section 893 of the General Code. That section provides in substance that, except an employment agency of a charitable organization, a person furnishing or agreeing to furnish employment or help shall be deemed a private employment agency.

The bill of exceptions contains all of the evidence which was introduced on the trial in the police court and the evidence disclosed therein is of such a character as would justify that court in finding that the defendant, pretending to have influence with a certain company, had on various occasions furnished and agreed to furnish employment to sundry persons with said company, and that for this service he received compensation from the persons for whom he agreed to furnish employment, and that he was not acting as agent of any charitable organization. It is true that the defendant maintained no office and displayed no sign or bulletin indicating that he was operating or maintaining a private employment agency, but various men seeking employment met him at his residence and the business was there ordinarily conducted, and this clearly brings him within the purview of the statute. We are of opinion that the judgment of conviction is not so manifestly against the weight of the evidence contained in the record as to justify a reversal.

The most important question in this case is the claimed unconstitutionality of the act providing for the regulation of private employment agencies. The first section of the act, being Section 886, General Code, prohibits any person, firm or corporation from opening, operating or maintaining a private employment agency for hire, or in which a fee is charged an applicant for employment or an applicant for help, without obtaining a license from the commissioner of labor statistics. The section also requires the payment of a fee by the applicant for license, which fee is graded according to the population of the municipality in which the licensee is to conduct business, the fee ranging from $25 in villages to $100 in cities having a population of fifty thousand or more. The section also provides that the commissioner may refuse to issue or renew a license to an applicant if, in his judgment, such applicant has violated the law relating to private employment agencies or is not of good moral character. The statute does not contain any provision for a review by the courts of the action of the commissioner of labor statistics in refusing to issue or renew a license to an applicant.

It is said that this statute is invalid because it bestows arbitrary power on the commissioner of labor statistics and contains no definitions or directions for the determination of what constitutes good moral character, or what constitutes a violation of the law relating to private employment agencies, by an applicant for a license; that the classification of municipalities in fixing the price of the license is arbitrary and unjustified; and because no provision is made in the statute for a review by the courts of the decisions reached by the commissioner of labor statistics.

We have no doubt that the General Assembly has ample authority to regulate the general subject of employment agencies under the police power possessed by the state. This subject has been many times discussed in the courts and with very few exceptions the conclusion reached has been in favor of the existence of this power in the state Legislatures. I need refer only to the following authorities: Wessell v. Timberlake, 95 O. S., 103; Moore v. City of Minneapolis, 43 Minn., 418; Price v. The People of the State of Illinois, 193 Ill., 114; The People of the State of New York, ex rel, v. The Warden of the City Prison, 183 N. Y., 223; People v. Brazee, 183 Mich., 259.

This latter case is one of very great importance in determining the questions involved in the case at bar and was affirmed by the Supreme Court of the United States in 241 U. S., 340. In the case last cited the statute limited the license fee of one hundred dollars to cities of over two hundred thousand inhabitants, and there was but one city in the state that came within that classification, and yet the act was held not to be thereby rendered unconstitutional.

In the case of Gundling v. Chicago, 177 U. S., 183, an .ordinance of the city of Chicago authorizing the issuance of a license to persons to sell cigarettes upon the payment of $100 was held valid although it delegated to the mayor the entire subject of granting and revoking licenses to persons engaged in the business. The .contention was made in that case that the ordinance vested arbitrary power in the mayor and that it was for this reason invalid.

The most recent utterance of the Supreme Court of the United States on the questions now under consideration may be found in a group of eases decided by that court on January 22, 1917, and entitled Hall, Superintendent of Banks of the State of Ohio, v. Geiger-Jones Company; also, Caldwell, as Attorney-General of South Dakota, v. Sioux Falls Stock Yards Co. et al; also, Merrick et al v. Halsey & Company et al. These cases may be found in 242 U. S., 539, and following.

Many of the cases which have been cited were based on statutes which contained provisions for a review by the courts of the decision made by the commissioner or board having charge of the issuing and revocation of licenses. Indeed it is probable that most of the statutes on this subject have a provision of that character; but all of the statutes do not have this provision. In the group of eases last cited such provision was found to exist in the statutes under review, and in some of those cases comment was made on that provision; but in the ease last cited the court held that the absence of such provision did not render the statute invalid since there is a presumption against wanton action by any commissioner, and if there should be such disregard of duty a remedy in the courts would necessarily be implied.

I call attention to Reetz v. Michigan, 188 U. S., 505, which was ,an action arising under a statute of that state for the appointment of a “board of registration in medicine,” and required a license from any person seeking such registration. I quote one proposition of the syllabus in that case:

‘1 There is no provision in the federal constitution forbidding the state from granting to ,a tribunal, whether called a court or a board of registration, the final determination of a legal question. Due process of law is not necessarily judicial process, nor is the right of appeal essential to due process of law.”

In the course of the opinion M!r. Justice Brewer uses the following language:

“But while the statute makes in terms no provision for a review of the proceedings of the board, yet it is not true that such proceedings are beyond the investigation of the courts. In Metcalfe v. State Board of Registration, 123 Mich., 661, an application for mandamus to compel this board to register the petitioner was entertained, .and although the application was denied yet the denial was based not upon a want of jurisdiction in the court but upon the merits.”

It is said that the statute is unconstitutional because it furnishes no standard for determining what constitutes good moral character as used in Section 886 of the General Code. The same objection was urged against the validity of a statute of Ohio providing for the creation of a board of censors of motion picture films (103 O. L., 399), which act was under investigation in Mutual Film Co. v. Industrial Commission of Ohio, 236 U. S., 230. Section 4 of the act provided that only such films as are in the judgment and discretion of the board of censors, of a moral, educational or amusing and harmless character shall be passed and approved by such board. Mr. Justice McKenna, speaking for the court, uses this language on page 245:

“The objection to the statute is that it furnishes no standard of what is educational, moral, amusing or harmless, and hence leaves decision to arbitrary judgment, whim and caprice-; or, aside from those extremes, leaving it to the different views which might be entertained of the effect of the picture, permitting the ‘personal equation’ to enter, resulting ‘in unjust discrimination against some propagandist film, ’ while others might be approved without question. But the statute by its provisions guards against such variant’ judgments, and its terms, like other general terms, get precision from the sense and experience of men and become certain -and useful guides in reasoning .and conduct.. The exact specification of the instances of their application would be as impossible as the attempt would be futile. Upon such sense and experience, therefore, the law properly relies.”

The act under which Raabe is prosecuted authorizes the commissioner to refuse to issue or renew a license to an .applicant if, in his judgment, such applicant has violated the law relating to private employment agencies, or is not of good moral character. If this language should be construed to vest arbitrary and absolute power in the official named, the statute must needs be held violative of the Constitution; ¡but we do not so read the statute in the light of the cases to which reference has been made. Discretion and judgment must be reposed somewhere in order to make effective a statute regulating employment agencies, and the General Assembly has placed the duty of exercising that judgment and discretion on the commissioner of labor statistics. It does not follow, however, that any conclusion which he may reach is beyond review in the courts. The phrase in the statute, “in his judgment,” must be held to mean a reasonable judgment. Even without those words the conclusion which he reached would naturally have to be his judgment. He can not under this statute act from caprice or whim, nor arbitrarily. If, for instance, the official named should refuse to issue' or renew a license on the ground that the applicant was not of good moral character, when in truth and in fact there was no foundation for such conclusion by the commissioner, manifestly the applicant who was refused a license would have a remedy in the courts, and the same may be said of that portion of the statute which gives the right of refusing to issue or renew a license if the applicant has, in the judgment of the commissioner, violated the law relating to private employment agencies, and it appears that the conclusion is merely an arbitrary or capricious one. The Legislature will not be held to have intended to confer arbitrary power unless the language of the statute is .such as to admit of no other construction.

The statute under review by the court in People v. Brazee, 183 Mich., 261, cited supra, authorized the revocation of the license by the commissioner of labor whenever, in his judgment, after full hearing, the licensed agency shall have violated any of the provisions of this act, and yet it was held that notwithstanding this language the courts have authority to review the conclusion of the commissioner if exercised arbitrarily.

Similar language is found íd the statute under review in Mutual Film Corporation v. Ohio Industrial Commission, 236 U. S., 240.

In the case of Harmon v. State of Ohio, 66 O. S., 249, the act of the General Assembly of Ohio providing for the licensing of steam engineers was held invalid, because it was held to grant legislative power and contained no criterion for determining when an applicant was “trustworthy and competent.” The decision just cited is not in conflict with those heretofore cited in this opinion. Indeed, the case was cited in 236 U. S., 246, and held to be distinguishable from the statute establishing a board of censorship of motion picture films. We think it is also distinguishable from the case at bar.

The liquor license code, 103 O. L., 222, provides that a license shall not be granted to a person who is not a citizen of the United States or who is not of good moral character. This phrase “.good moral character” has been used so many times in statutes and decisions of the courts that it would seem to be unnecessary' to attempt any definition. Indeed the term defines itself as accurately as the Legislature could define it by any other terms that it might employ along that line.

In Rose v. Baxter et al, 7 N.P.(N.S.), 132, Judge Dillon had under consideration a statute authorizing the revocation of a physician’s certificate for gross immorality and reached the conclusion that the expression “gross immorality,” was not so indefinite as to render the act invalid. We think the reasoning of the court in that case is sustained by the authorities already cited.

We are unanimously of the opinion that the statute under review is not in violation of any provision in either the state or federal Constitution, and the judgment will be affirmed.

Chittenden, J., and Kinkade, J., concur.