author: PER CURIAM.

text:
    RELIGIOUS SOCIETIES.
    [Stark (5th) Court of Appeals,
    February Term, 1917.]
    Shields, Powell and Houck, JJ.
    Lucy Haas v. State of Ohio.
    1. Section 13145 G. C. Prohibiting Practicing Astrology, etc., Held Constitutional.
    Section 13145 G. C. providing that “whoever, not having been legally licensed so to do, represents himself to be an astrologer, fortune teller, clairvoyant, or palmister, shall he fined, etc.,” does not violate Art. 1, Sec. 7 of the hill of rights of the constitution of Ohio hut is a valid enactment and is constitutional.
    2. Religious Freedom of Spiritualist Church not Interfered with by Statute.
    Section. 13145 G. C. is a rule of conduct having reference to an individual unlawfully representing himself to he a fortune teller, clairvoyant, etc., not being legally licensed so to do; it is the nature of the business of the accused, not the tenets of her church that is prohibited. Laws cannot interfere with mere religious beliefs and opinions but may with unlawful practices.
    3. Not Error to Exclude Exhibits Showing Tenets of Church.
    This statute not being aimed against any church or society but against the accused as an individual, it was not error for the trial court to exclude exhibits offered on her behalf which exhibits tended to show that the actions of the accused were not contrary to the Ohio Spiritualist Association.
    ErroR to common pleas court of Stark county, affirming judgment of criminal court of Canton.

      M. J. Braucher, for plaintiff in error.

      Clarence A. Fisher and Walter 8. Ruff, for defendant in error.
   PER CURIAM.

Error is prosecuted to reverse the judgment of the court of common pleás ■in-.affirming1 the judgment of the criminal court of the city of Canton, Ohio, wherein the State of Ohio, defendant in error herein was plaintiff and Lucy Haas, plaintiff in error herein, was defendant, for a violation of See. 13145 G. C.,. by the plaintiff in error.

It appears that an affidavit was filed before the judge of' said court, charging that on March 24, 1916, in said county and state, “One Lucy Haas not being then and there legally licensed so to do, did unlawfully represent herself to be a fortune teller- and! clairvoyant to one Yelva Benson.” Upon trial had the said Luey Haas was’found'guilty and fined $25 and costs, and ordered to stand committed until said fine and costs were paid, “and that said defendant be imprisoned in the Stark county workhouse and kept at hard labor for the term of thirty days, said workhouse sentence only however is suspended',' such suspension to be in effect during the good behavior of the defendant, to all of which the defendant excepts.”

As already stated error proceedings were prosecuted to the-court of common pleas to revérse the foregoing judgment of the said criminal- court and it will be noticed that the first nine grounds of error assigned and passed on by the court of common pleas are identical with those set .forth in the petition in error filed in this court, the only two grounds of error added being that the common pleas court erred “in not sustaining the several grounds of error set out in the petition in error,” and that said court ‘ ‘ erred in overruling the petition in error filed herein and erred in affirming the judgment and sentence of the police court below,” so that the same questions raised before said criminal court are raised here. There seems to be no room for dispute as to what the facts are in this case, the testimony of the witnesses for the State on the trial below showing that the occupation of the plaintiff in error at the time and on the occasion mentioned was in fact as alleged in said affidavit, as'evidenced by her “readings” to one Velva Benson and several others, for which a compensation was paid in each instance to the. said Lucy Haas through one John Mohler, acting as an officer of' the First. Spiritualist Church of Canton, Ohio, who assumed to and did issue a certificate for such “readings” for and on behalf of the said Lucy Haas. That the statute in question aims to protect the general public from imposition of questionable practices of persons claiming to have the power to foretell future events, etc.,, is apparent, but we are here met with the proposition that one who without having been licensed so to do represents himself or herself to be a fortune teller or clairvoyant does not fall under the ban of said See. 13145 G-. C., unless such representation is accompanied with some overt act to carry the same into execution. Said Sec. 13145 reads as follows:

‘ ‘ Whoever, not having been legally licensed so to do, represents himself to be an astrologer, fortune teller, clairvoyant or palmister, shall be fined, etc. ’ ’

No aids in interpretation or construction need be invoked to understand the full meaning of this section. It means just what it says. It is the representation, when the license is lacking, that is sought to be punished. Here it is clear, that it was prearranged between the plaintiff in error and the said John Mohler that applicants for “readings” should first apply to and pay said Mohler for a certificate for said “readings,” that said certificate entitled each applicant to a “reading” to be given by the plaintiff in error as a spiritual medium, that the said Velva Benson paid for and received such certificate and was given such “reading” by the said plaintiff in error acting as a spiritual medium but had not been legally licensed so to do. Under' this showing we have no hesitancy in holding that the requisites-of the offense as defined by this section were fully proven, both the representation and the overt act of undertaking to reveal' the unseen and unknown future.

It is also urged that said Sec. 13145 is unconstitutional., being in violation, as it is claimed, of Art. 1, Sec. 7, of the bill of rights of the constitution of the state of Ohio, which provides: that:

“That all men have a natural and indefeasible right to wcnrship Almighty God according to the dictates of their conscience. ’ ’

Although probably couched in somewhat different language the above just and humane rule of religious liberty has been a part of the constitution of this state from the time of its formation as a state and so remains today. The people of the state approve and practice it, and the courts of this state uphold it. There is no room for discussion as to what the constitutional provisions and settled law of this state are as to the rule referred to, but if there were, we could not be otherwise than entertained and enlightened by the able and comprehensive discussion of the subject contained in the brief of counsel for plaintiff in error herein, but as we view the case before us, the question raised here on the record is not an attack upon the religious freedom of what is known as the First Spiritualist Church of Canton, 0., but upon the conduct of the plaintiff in error as an individual in unlawfully representing herself to be a fortune teller and clairvoyant, not being legally licensed so to do. This is the sole question raised by said affidavit and, as stated, we do not consider the constitutionality of said section as affecting any church organization or society in issue here. It is the nature of the plaintiff in error’s business, not the tenets of her church, that is in controversy here. In this country laws are made for the government of actions, and while they cannot interfere with 'metre religious belief and opinions, they may with "practices. If it were otherwise, the professed doctrines or religious beliefs would be superior to the law of the land, and in effect to permit each citizen to become a law unto himself. As was said in State v. Neitzel, 69 Wash. 567-569 which was a prosecution against one engaging in fortune telling under the code of that state, where the constitutionality of the statute was attacked, the court held that:

‘ ‘ He was engaged in fortune telling, for he was professing to tell events in the life of the witness. The statute is clearly valid.
“The faet that the defendant was a regularly ordained minister in ‘National Astrological Society,’ and that the principles of religion laid down by that society include the practice of casting and reading horoscopes, was equally unimportant, because while religious beliefs and opinions may not be interfered witb, harmful ‘practices’ may be prohibited, and cites Reynolds v. United States, 98 U. S. 145 [25 L. Ed. 244].”

Again, in Smith v. People, 51 Colo. 270 [117 Pac. Rep. 612; 36 L. R. A. (N. S.) 158], also a prosecution for practicing medicine without a license, for treating and healing the sick, etc., Mr. Justice G-arrugyes, delivering the opinion of the court, in this case, on page 277 says:

“Defendant claims he comes within the exemption which says: ‘Nothing in this shall be construed to prohibit- — the practice of the religious tenets or general beliefs of any church whatsoever, not prescribing or administering drugs.’ The constitution provides, there shall be no interference with the ‘ free exercise and enjoyment of religious profession and worship.’ The statute does not interfere with the free exercise of religion or worship. Any persons, individually or collectively, any minister, or any church congregation may resort to prayer whenever they wish for the healing of the sick. No attempt is made to interfere with religion or religious devotions. This does not, however, authorize one under the cover of religion or a religious exercise, to go into healing commercially for hire, using prayer as the curative agency or treatment. Religion cannot be used as a shield to cover a business undertaking. Defendant was engaged in a business venture, not a religious exercise.”

If the constitutionality of this section was an issue, we would refer to the case of State v. Marble, 72 Ohio St. 21 [73 N. E. Rep. 1063; 70 L. R. A. 835; 106 Am. St. Rep. 570; 2 Ann. Cas. 898].

Exceptions were taken to the court below in excluding, on motion the following:

Defendant’s Exhibit No 2, called “An Associate Minister’s Certificate,” pp. 37, 38, 39 of the record; defendant’s Exhibit No. 3 “Articles of Incorporation of the Ohio Spiritualist Association,” as the same appears on pp. 40, 41, 43 of the record, and defendant’s Exhibit No. 4 called “Constitution and By-laws of the Ohio Spiritualist Asociation,” as the same appears on pp. 43-44 of the record. ,

If we are correct in our views hereinbefore stated as to the proceeding not being against any church or society but against the plaintiff in error as an individual, then the exclusion of the exhibits offered on behalf of the defendants below was proper and we therefore' hold that the court below did not err in «xluding them.

Also, on page 48 of the record, it appears that the following •question was asked of the defendant:

“Q. I would ask you further, Mrs. Haas, whether at the time you gave these readings to Mrs. Manderbough and to Miss Benson, or at any other time, you did or said anything to these people contrary to or outside of the constitution and by-laws of .your organization, The Ohio Spiritualist Association?

Objection. Objection sustained. Defendant excepts.

We d.eem the objection to this question, apparent upon its face, and that the action of the court below was therefore proper in excluding it.

A reading of the record shows that there were other exceptions taken to the admission and rejection of evidence during the trial, all of which we have examined together with all the -other errors alleged in said petition in error, and upon such examination we find no such error in the record herein as to .justify a reversal of the judgment of the court of common pleas in affirming the judgment of the criminal court of the city of Canton, Ohio; and said judgment of the said court of common pleas will therefore be affirmed and said cause remanded to said criminal court of said city for execution. Exceptions.


source: Caselaw Access Project

author: GORMAN, J.

license: Public Domain

text:
    RAILWAYS.
    [Hamilton (1st) Court of Appeals,
    July 12, 1916.]
    Jones, E. H., Jones, O. B., and Gorman, JJ.
    Virginia M. Flannery, Admrx. v. Cleveland, C. C. & St. L. Ry.
    1. Locomotive Engineer Momentarily Sitting on Another Track Not Trespasser.
    A locomotive engineer, who leaves his engine for a few moments and walks a short distance to another track where he sits down on the end of a tie, does not thereby become a trespasser upon such other track, nor cease to be acting in the course of his employment.
    S. Duty of a Railway Company Toward Locomotive Engineer on its Track Before an Approaching Train.
    Railways will be held, to at least as high a degree of care in the avoidance of injury to human beings as in the case of live stock trespassing upon their right-of-way; hence, where it appears that the engineer of the train, which killed the decedent while running at very high speed, failed to blow his whistle as soon as he discovered the decedent, is sufficient to send the case to the jury.
    Error.

      Sanford A. Headley and Charles Sawyer, for plaintiff in error.

      Harmon, Colston, Goldsmith & Hoadly, for defendant in error.
   GORMAN, J.

This is a proceeding to reverse a judgment of the superior court of Cincinnati. At the close of all the evidence offered by the plaintiff and defendant below the court, upon a motion by the defendant, arrested the case from the jury and instructed a verdict for the defendant. It is claimed that the court erred in so doing.

The facts brought out by the evidence necessary to be set out-in order to show error, are as follows:'

Edward Flannery on November 9, 1913, was in the employ of the Cleveland, Cincinnati, Chicago & St. Louis Railway Company as an engineer, engaged in .the switching of cars in the company’s yards at Sharonville in- this county. About three o’clock in the afternoon, while he was engaged in switching a cut of cars containing some interstate cars, his engine passed the switch from the siding 'to the lead track and Flannery climbed off the engine, walked a short distance east from his locomotive and sat down on the end of a tie on the westbound main track, at a point within the yard limits of the defendant company. There was a conflict of evidence as to whether or not he threw a switch before he sat down. White sitting on the end of the tie on the westbound main track he was struck and killed by passenger train No. 19 from Columbus, which was an hour and a half late .and running at a speed of between sixty and eighty miles an hour.

The defendant company has a double main track through the village of Sharonville — one known as the westbound track and the other as the eastbound track. The Sharonville yards of defendant company' are located along the west side of these two main tracks, extending for a distance of a mile or more. There were employed in and about the yards, at the time Flannery was killed, about one hundred and fifty men who frequently used the yard tracks and also the main tracks in crossing and re-crossing, during ¿11 hours of the day, while engaged in their occupations as employees of the railroad company. There was no speed limit prescribed by rule or otherwise for trains running on the main tracks alongside of the yard. There was no rule or direction given to engineers running through the yards on the main tracks to keep a lookout for men who might be on the tracks within the yard limits.

Flannery, from the position where he was sitting, could have seen the engineer on the train which killed him at a point at least seven hundred feet east of the point where he was sitting. There is a conflict of testimony as to the length of time Flan-nery sat on the track, one witness testifying that he sat there for a minute, and another that he sat there for a period of from five to eight minutes. The testimony is undisputed that Flannery was getting up off the track when he was struck by the engine of the fast train. There was a conflict of testimony as to whether or not the engineer blew his whistle before he struck Flannery and after be saw Mm. The engineer testified that be did not see Flannerj7- until he was within one hundred and fifty feet of him, and that he then did everjdhing he could to stop his train.

The evidence discloses that the engineer could have seen Flannerj7 from the cab of the engine at least seven hundred feet east of the point where Flannerj7 was killed.

The deceased left a widow and three children, and the action was brought for their benefit under the statute to recover for the wrongful death of the husband and father.

The sole question submitted to this court is whether or not the trial court erred in arresting the ease from the jury.

The fact that the decedent was engaged in interstate commerce, in that he was switching cars used in interstate com merce, brings his ease within the federal emploj7er’s liability act, found in 35 U. S. Stat. at L., 65, approved April 22, 1908. Under this act of Congress:

“Every common carrier by railroad while engaged in commerce between any of the states or territories * * * or. between any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such emploj7ee. to his or her personal representative, for the benefit of the surviving wudou7 or husband, and children of such employee, and if none, then to the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier,” etc.

The act further provides:

“That in all actions brought against any such common carrier by railroad under or by virtue of any of the provisions of this act to recover damages for personal injuries to an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recoverj7, but the damages shall be diminshed by the jury in proportion to the amount of negligence attributable to such employe,” etc.

The act further provides that in an action to recover damages for injury or death of an employee—

“such employee shall not be held to have assumed the risks of his employment in any ease, where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employees. ’ ’

It was claimed by- counsel for defendant in this case that, because Flannery was a trespasser upon the railroad, the engineer of the train which killed him owed him no duty until after he saw him, and that inasmuch as the testimony shows that the engineer did everything he could to avoid killing Flannery after he saw him, no liability arose against the defendant company, and that the court was warranted in arresting the case from the jury. Counsel for defendant do not claim that the plaintiff was precluded from recovery if Flannery, the deceased, was guilty of contributory negligence, but plant their defense squarely upon the position that Flannery was a trespasser, and that no duty was owing to him until after he was seen by the engineer of the train which killed him.

In the case of Cincinnati & Z. Ry. v. Smith, 22 Ohio St. 227 [10 Am. Rep. 729], the Supreme Court says, in the syllabus:

“The servants of a railroad company, in operating its trains, are bound to use ordinary care to avoid injury to domestic animals trespassing on the railroad.
“Where such trespassing animals were killed by a train, if the servants of the company having the train in charge, by the exercise of ordinary care and with due regard to their duties for the safety of the perspns and property in their charge, could have seen such animals on the track in time to have saved them, it was their duty to have done so, and for their negligence in this respect, where the owner is not guilty of contributory negligence, the company will be liable.”

This is a leading ease, not only in this state, but outside of this state, upon the question of the duty owing to animals trespassing on a railroad. The rule laid down in this case was approved by the Supreme Court in the case of Lake Erie & W. Ry. v. Weisel, 55 Ohio St. 155 [44 N. E. Rep. 923], 159. So that it appears to be the rule, in this state at least, that the engineer of a railroad company does owe some duty to trespassing animals before he has seen the animals.

If tbis be a sound rule to apply to a cow or horse or hog, it would seem to this court to be a much sounder rule to apply to a human being. We think the duty rested upon the engineer of this railroad company to exercise ordinary care, with due regard to his duties for the safety of persons or property in his charge, to keep a lookout for persons upon the track, even though they were trespassers thereon.

The question of the contributory negligence of Flannery in this ease could not preclude a recovery for his death, because of the modification of the rule laid down in Cincinnati & Z. Ry. v. Smith, supra, by the act of Congress which enables a recovery notwithstanding the fact of contributory negligence. We think that at least as great care and duty rests upon persons operating railroad trains, to avoid injuring or killing human beings, as rests upon them to avoid killing or injuring domestic animals. According to the claim made by counsel for the defendant in this case, the engineer might close his eyes and run at a high rate of speed along his track, and if he injured or killed any person who happened to be a trespasser upon the railroad, the company employing him would not be liable. Such a doctrine is shocking to our sense of justice. The evidence in this case discloses that if the engineer of this train which killed Flannery had been in the exercise of ordinary care he could have seen Flannery sitting upon the tie at least seven hundred feet east •of the point where he was killed. If he had then blown the whistle or had slowed down his train, or attempted to stop the same, the probabilities are that Flannery would still be living to maintain and support his wife and children. The evidence discloses that Flannery required but a very small fraction of a minute, perhaps two or three seconds more, to have cleared himself from the track before he was killed. This time would have been given to him if he had been warned, or if the train had slowed down to a speed of twenty miles an hour, which the engineer testified could have been done if he had'made an effort at a point four or five hundred feet east of the point where Flannery was killed.

Counsel for the defendant have cited several eases in this state to the effect that no duty is owing to a trespasser upon the railroad company’s right-of-way until after the trespasser has been seen, and then the only duty owing to him is to use ordinary care not to kill or injure him. The case of Erie Ry. v. McCormick, 69 Ohio St. 45 [68 N. E. Rep. 571], at page 53, is cited in support of the contention of counsel for defendant. That was a case in which the ‘ ‘ last chance ’ ’ doctrine was involved; in Cincinnati, H. & D. Ry. v. Kassen, 49 Ohio St. 230 [31 N. E. Rep. 282; 16 L. R. A. 674]; was followed by the court in Eric Ry. v. McCormick. The ease of Railway Company v. Workman, 66 Ohio St. 500, is also cited in support of their contention. The ease Byrket v. Railway, 20 O. C. C. 614 (10 N. S. 73), is also cited, and the third paragraph of the syllabus, to the effect that—

“A railroad company owes no duty to an employe or other person, -who is using its tracks merely as a convenient path of travel, to give notice by bell or whistle of an approaching train, ’ * * *

¥e have read this case through, and there is not a word in the opinion of the court to support the third paragraph of the-syllabus in that ease. There has been no provision by our Legislature for the enunciation of a syllabus by circuit courts of this state, and therefore any purported syllabus by a circuit court can not be held to be the law of the case unless it be known that’ the syllabus was prepared and promulgated by the circuit court itself. The decisions of the circuit court are to be found in the reported opinions, not in any purported syllabi, unless the syllabus is approved and announced by the court as a part of the opinion. We can not believe that any court would support the rule laid down in the third paragraph of the syllabus of the case just cited.

But under our view of the evidence in this case Flannery was not a trespasser upon the railroad. Assuming for the purposes of this ease that he was not actually engaged in the performance of his duties at the time he was killed, he had a right nevertheless to be upon the tracks of the railroad company in the performance of his duty, and he had just left his engine temporarily and walked but a short distance therefrom and sat down upon a tie for some purpose unknown to the court. We ban not say that he was at the time not in the course of his employment. In our opinion be was still in the course of his employment and in the employ of the railroad company, although not actively in the performance of his duty at the instant he was killed.

Whatever may be the rule in Ohio with reference to liability of the defendant company ¿rising under the federal’employer’s liability act, we think it will not be disputed that the state courts in the trial of causes involving liability under this act should be governed by the rules laid down by the federal courts in construing the act.

There was in this ease evidence tending to show that the engineer did not blow his whistle immediately upon discovering Flannery. Even if Flannery was a trespasser and no duty was owing to him until he was discovered by the engineer, nevertheless we think this item of evidence was sufficient to warrant the court in sending the case to the jury to determine whether or not there was any negligence on the part of the engineer in the failure to blow the whistle. The fact whether or not he blew the whistle at a point one hundred and fifty feet or more away from Flannery, to warn him, was a question to be determined by the jury under all the evidence in the case, and when the evidence was conflicting upon this point we think it was error for the court to arrest the case from the jury. It will not be sufficient to say that even though a verdict had been rendered in favor of the plaintiff the court would be justified in setting the verdict aside, because, as has been repeatedly said by our courts, it was the province of the jury in the first instance to pass upon the facts whether or not they showed culpable negligence entitling the plaintiff to recover.

It was held in the case of Chicago, R. I. & P. Ry. v. Stepp, 164 Fed. Rep. 785 [90 C. C. A. 431], that.it is a question for the jury, where the evidence is conflicting, to determine whether or not the bell was ringing or the whistle blown by the engineer, even though the evidence which tended to show that he did -not blow the whistle or ring the bell was of a negative character.

In the case of Pennsylvania Co. v. Cole, 214 Fed. Rep. 948 [131 C. C. A. 244], where an employee was injured who negligently remained in the caboose when he should have gotten out and gone back to signal the train, the court held that while-at common law the negligence of the employee would defeat a recovery, nevertheless undei* the employer’s liability act, which expressly abrogates the rule with reference to contributory-negligence, or negligence of the plaintiff, the plaintiff was entitled to have his case go to the jury, and could not be defeated in the recovery because he had been guilty of contributory negligence.

As was said in the case of Grand Trunk Western Ry. v. Lindsay, 201 Fed. Rep. 836 [120 C. C. A. 166]:

“It is only when plaintiff’s act is the sole cause, when defendant’s act is no part of the causation, that defendant is free from liability under the act. ”

The evidence in this case discloses that the train which killed Flannery was traveling at a very high rate of speed, and we-are of the opinion that under the circumstances of this case, considering the fact that the Sharonville yards were alongside-of this main track, even if the tracks were not a part of the yard, it was a question for the jury to say, whether or not ordinary care required the engineer to slacken his speed in running through or alongside the railroad yards.

For the reasons stated we find that the court erred in arresting this case from the jury and instructing a verdict for defendant. The judgment is therefore reversed, and the cause remanded for a new trial.


author: GRANT, J.

text:
    ALIENS — COURTS—NATURALIZATION.
    [Cuyahoga (8th) Court of Appeals,
    October 20, 1913.]
    Winch, Meals and Grant, JJ.
    In re Naturalization of Vura.
    1. Naturalization Proceedings in State Courts Reviewable.
    State courts by virtue of acts of congress are invested with power to admit aliens to citizenship and to administer naturalization laws; hence, as an incident thereto, the power conferred may be exercised according to the laws of procedure governing the courts of the state, including the right of review, notwithstanding such appellate rights are withheld in the federal courts therein.
    2. Applicant for Naturalization Fraudulently Representing Himself as Lawyer to Defraud Helpless Countrymen, Rejected.
    Circulation by an alien of a business card falsely representing himself as a lawyer with the evident intent to injure helpless emigrant countrymen, is evidence of lack of good moral character justifying a rejection of his application for naturalization, especially since it appears that applicant sought citizenship to obtain a notorial commission to aid him in schemes to deceive and defraud.
    Error.

      Bartholomew, Beeper <fi White, for plaintiff in error.

      J. B. Waterworth, for defendant in error.
   GRANT, J.

This is a petition in error, the object and prayer of which is to reverse the judgment of the court of common pleas of this county refusing the application of Stephen Vura for admission to citizenship of the United States, under the laws permitting-the naturalization of aliens.

The assignment of error is that the finding of the court below, that the applicant was not entitled to be admitted as a citizen, and the judgment of that court dismissing his application are contrary to the weight of the evidence.

The government of the United States has intervened in this proceeding, and has been heard at the bar, objecting in limine to this court entertaining the petition in error, on the ground that it has no jurisdiction to hear the controversy arid no power to determine the applicant’s contention.

We are first to dispose of this preliminary question. Our immediate jurisdiction, if there is any, is conferred by the organic law of Ohio, under which this court is organized and proceeds.

By that law, constitution of 1912, Art. 4, Sec. 6, the right and duty of this court to review upon petition in error the action of inferior courts extends to all judgments and final orders of the courts of common pleas. This provision, it is believed, comprehends the case brought before us for review by the present record, the court below being one that has common law jurisdiction, a clerk and a seal.

The right to naturalize foreigners in the first instance is reserved to the United States by its constitution, which is the source and foundation of authority in the whole matter. The language of that instrument in this respect, Art. 1, Sec. 8, is:

“The congress shall have power * * * to establish an uniform rule of naturalization, * * * to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.” * * *

By adopting the constitution, including this provision, the states have made congress the exclusive depositary of the power to clothe aliens with the rights of citizenship. But it does not follow from this assent that congress must employ only federal courts or other agencies in its exercise of the power thus reserved. .It is a constitutional principle, too plain for dispute, that even without express authority from congress the states through their courts or otherwise, may occupy a field of jurisdiction by the federal constitution reserved to the general government, when and so long as the latter does not occupy it. Says Cooley, Principles of the Constitution (3d ed.), p. 35:

“The mere grant of a power to congress does not of itself necessarily imply a prohibition upon the states to exercise the like power. The full sphere of federal powers may, at the discretion of congress, be occupied or not, as the wisdom of that body may determine. ’ ’

And again, page 70, when dealing with the right of congress to regulate interestate commerce, the same learned author says:

“But the mere existence of this power in congress does not necessarily exclude the states from all authority whatever which might affect the commerce falling within the control of congress, provided no actual legislation of congress is interfered with.”

And he mentions as allowable action by the state, laws establishing quarantine against noxious diseases from foreign ports, and those requiring locomotive engineers to be examined for color-blindness, even while engaged in interstate commercial traffic. The federal constitution does not, by its own force, completely provide for the exercise of the powers created by it, except in the relatively few eases of which the Supreme Court must take cognizance.

“For other eases,” says Cooley, p. 124, “it is necessary that courts shall be created by congress, and their respective jurisdictions defined; and in creating them congress may confer upon each so much of the judicial power of the United States as to its wisdom shall seem proper and suitable, and restrict that which is conferred at discretion. In doing so it may apportion among the several federal courts all the judicial power of the United States, or it may apportion a part only, and in that case what is not apportioned will be left to be exercised by the courts of the states. Thus the states may have a limited jurisdiction within the sphere of the judicial power .of the United States, but subject to be further limited or wholly taken away by subsequent federal legislation. Such is the state of the law at this time: many cases within the reach of the judicial power of the United States are left wholly to the state courts, while in many others the state courts' are'permitted to exercise a jurisdiction concurrent with that of the federal courts, but with a final review of their judgments on questions of federal law in the United States Supreme Court. ’ ’

We do not, however, have to rely on this idea — negatively postulated — -of the failure of the general government to occupy the entire field of jurisdiction. We may conceive that if by non-user the United States may thereby impliedly allow state tribunals to act in exercising a power which the constitution has created, not' vainly but to be exercised, with better reason it may reach the same end affirmatively by abdicating in favor of tKe state courts, by surrendering to them, in whole or partly, or by parceling to them, together with its own judiciary, the exercise of the powers created by the constitution of the United States in respect of naturalizations. We submit that as matter of history congress has done both of these things. First, it abdicated to the states. It surrendered to them the entire exercise of the right to admit aliens to citizenship. By the act of 1790, jurisdiction in matters of naturalization was conferred upon state courts exclusively. And, second, it was not till 1802 that the power was extended to federal tribunals, to be shared by them with the state courts. This duality of jurisdiction has continued unimpaired and unquestioned up to this moment. Indeed it is not, per se, called in question now. The claim of the district attorney’s office, if we understand the argument made at the bar, is this: The right of the state courts to grant or deny naturalization in the first instance is conceded; but it is-denied that the right of review at the instance of an aggrieved applicant exists. In other words, while congress has adopted the state courts as its judicial agents in the matter of admitting aliens to citizenship, it refuses to recognize the procedure of those courts, as prescribed in the statutes by which they are created, and which they are bound to follow and obey. The idea seems to be that up to the point of admitting or refusing to-admit the foreigner as a citizen the state courts may act, but. that when it comes to the question of a review of their action at the suit of an aggrieved applicant the forum must be changed and the matter disposed of according to the course of procedure of the federal tribunals, which it is said do not allow a review of the case.

It is hardly conceivable, we think, that a state court clothed with jurisdiction, with the power to hear and determine, can be compelled by construction only to carve up this power and deny a remedy to which he thinks he is entitled to the man of whose petition it has taken jurisdiction and which the law to which that court owes not only its allegiance but its existence gives bird. And especially is this difficult to conceive when we consider that be wbo advanees this claim, be wbo serves this writ of prohibition, gives notice that if the point is yielded and the wronged suitor is turned over to the federal jurisdiction no review will be given him. If the position taken is tenable, then between 1790 and 1802 there was no right of review in naturalization eases. For if the jurisdiction of the state courts was cut- off at the point of review, and the federal courts had been given no jurisdiction at all in this class of cases, neither the applicant who considered himself wronged, nor the government which might have thought itself saddled with a bad citizen, had any remedy in law. In our estimation, when congress selects a state court as its agent it takes the court and all its appropriate and necessary machinery along with it, for better or worse. It thus accepts an indivisible situation on the same ground that the common' law of England compels a man to take his wife— “for that he hath adopted her and her circumstances together.” Another conclusion would be worse than illogical; it would be a denial of justice in many cases and would tend to destroy the necessary unity and entirety of its due and orderly administration.

Beyond this, although far inferior to it in point of importance, the case relied on at the bar in support of the district attorney’s opposition to our entertaining this petition in error does not in our opinion support the contention. It is the case of United States v. Dolla, 177 Fed. 101. The first point of departure between it and the case here, and it is a wide one, is that the appeal there was not that of an applicant to whom citizenship had been denied by the inferior court, but an appeal of the government, which was urging a reversal, so that his application might be denied. The alleged grievance • was not that of a perhaps poor and oppressed alien, but that of a powerful but overreached sovereign. The real point of the appeal is suggested in the bill of exceptions as that of the color line. There seems to have been a suspicion of the old “visible admixture” days; but the bill discloses as an apparently redeeming feature that the applicant had bought a lot in a Savannah graveyard, in which none but whites were allowed to be buried, thus evincing an unwillingness to enter the Jim Crow heaven reserved for those whose color is accidentally black and for those numerous ones of intermediate shades, who did not grow upon trees and whom their white “uncles” were desirous not to have as fellow-citizens here nor as brother saints ‘ ‘ over there. ’ ’

However, the right of review was refused on two grounds by the United States circuit court of appeals. One was that an application for naturalization is not a “case,” within the meaning of the federal statutes allowing appeal and error. Instead, it was held to be a “ special proceeding, ’ ’ for a review in which case those statutes make no provision. “Special proceedings” in Ohio law are, as we think, the subjects of review in this court by the comprehensive terms of Sec. 12247 G. C., already referred to.

The other point in the case cited was that the allowance of the application for citizenship could be attacked by direct action to annul and cancel the order of allowance; And so the government had a remedy thus given by the act of 1906, and the right of review would be a barren and inappropriate right. This remedy, present in that case, would be wholly wanting in the proceeding at bar'; here, the error assigned is that of refusing to admit, and not of admitting, to citizenship. The reason of that case, therefore, fails; and if the case were to be applied as an authority it would defeat and not promote a remedy to which the applicant might in a proper ease be entitled.

The brief for the government in the case at bar says: “It is hardly conceivable that congress intended that appeals in naturalization cases should be taken in the state courts while it is not permissible in the federal courts.” We shall not stop to haggle over either the grammar of this argument or the meaning of the word “appeal” as we know it, and can not otherwise know it, under Ohio law; in strictness we know that neither in such cases is an appeal allowed in our state courts.

What we do say is that in our opinion it is quite inconceivable that a court which is allowed to advance a remedy bottomed on merit should refuse to do so.

We shall refuse the motion of the government to dismiss this petition without examination of its allegations of error, and shall take jurisdiction of the case.

In so deciding we are not only discharging our duty in administering the laws of our state in their integrity — laws indivisible in their administration, as from their nature and intendment they must be — but we are also elearng our oaths of office in seeing that justice is done and in not denying in a proper case the right of judicial review. We also vindicate the wisdom of the maxim, judicis boni est judisdiclionem ampliare; to enlarge his jurisdiction is the part of the good judge. It is not quite true to say that a rejected application may be at once made anew in the same or another court. As the record in the case is transmitted to the government, and by it sent to other courts for reference, the applicant stands before any later court as a blacklisted man and at a great disadvantage.

Coming now to the charge of intervening error in the action of the court below in refusing the application for naturalization,, we find the material facts to be these:

The applicant, Yura, circulated and used printed cards of the following form and words:

Real Estate and Insurance of All Kinds.

Cuy. Telephone Princeton 2365R.

VURA AND MESZAROS,

Law Offices.

8115 Holton Ave. Cleveland, Ohio.

, Neither of the men whose names appear on that card was a lawyer, nor had either-ever been admitted to the bar.

In the month of February last Yura handed one of these cards, on which the name of Meszaros had been erased and that, of Istvan overwritten in pencil, to the wife of one Szabo, and requested her to tell her husband to call at his office. This. Szabo had made an a da,vit in the federal court in this city,, before a United States examiner, in an investigation concerning one Steven Kadi. Szabo called accordingly at Yura’s office' and the latter told him that he was informed by people in the-neighborhood that he, Szabo, had been misinterpreted by the interpreter in the making of the affidavit in question; that Szabo had probably told the truth in what he said, but that having been interpreted wrongly he was likely to get into trouble about it: and that if he, Szabo, would make a signed statement before him, Yura, he could perhaps relieve him from, harm. Yura had such a statement already written out when Szabo called at his office, and the statement was of considerable length. Szabo did not read the statement further than to see that his own name was on it, and left without signing.

Yura explained this transaction by saying that he did what he did out of a desire to be well thought of by the Hungarians who dwelt in his neighborhood by being made to appear instrumental in getting a man out of undeserved trouble. He also claimed that his partner, Meszaros, was an Hungarian lawyer, by which it appears he meant a lawyer in Hungary but not in the United States. Yura produced several witnesses — perhaps five in all — who swore that he was a man of good moral character ; but we attach little or no importance to oaths of that kind, taking them as they run.

The judge of the common pleas court held that Yura had not shown himself to have been of good moral character during the whole of his residence in the United States, and in our opinion the record in the case sustains the finding. The card circulated by Yura held him out as an attorney at law, purposely, as we think, with the expectation that this false pretense would deceive others into intrusting to him business which he could not perform. It was a palpable deception, a badge of fraud, and an attempt to injure a class of people who would be helpless against his schemes for an ill-gotten gain. Naturalization would only put into his hands additional weapons for the perpetration of his frauds, such as the advantage of becoming a notary public, which we may suspect was a part of his design in seeking to be made a citizen. The calling of Szabo’s wife and of Szabo himself to his office was intended, we can not doubt, to stir up trouble instead of avoiding it. Any act of any person, whether judge or layman, which wdll render the helpless, because ignorant, stranger within our gates a less easy prey to the wolves in the shape of knowing but conscienceless countrymen, is to be commended by every lawful means at hand. The affirmance of disabling judgments in cases warranted by the facts and permitted by the rules of law should be included. ■ It is clear to our minds that the application of Vura was rightly rejected. A cloud of such witnesses as Vura brought, swearing on a cartload of Bibles, could not take off all the contrary conclusions which even this short record discloses or suggests.. . To admit such a man to become a citizen would be to swindle, .the-nation, which once was treason by law. . , . ■

Since this is a case of first instance in this court, and as like cases may come here for review from time to time, we deem it no impropriety to say, and we say it that it may be depended upon, that we should hesitate a long time before overruling in a matter of naturalization a judge who has had the applicant visibly before him. The right to become a citizen under free institutions and mild government is a • grave and important thing. The process should be regarded as the applicant’s civil sacrament. Before being granted it is a high privilege to him to ask for it, and on the part of the government a bounty or act of grace. When it is granted it assumes proportions of a much more imposing character. It confers upon the petitioner advantages beyond valuing or forgetting. On the admitting government it devolves serious duties of protection and immunity. Until within relatively recent times, naturalization in Great Britan could be accorded only by letters-patent under the great seal, or by act of parliament, and even then it conferred only qualified privileges, the right to sit in parliament not being among them.

In a government where the ballot of the felon goes into the box with as much potency as that of the saint, that of the deserved pauper with equal power to that of him who has the most momentous property stake in a government of law and order, it is doubly important that those charged with the high duty of making votes should be vigilant and watchful against unworthy appli'car/,». It was the reproach of Carlyle that he could have little //aith in the future of a country where Judas and Jesus are political equals. It is for admitting courts, among other ageV'd-es, to see that the Scotchman’s gibe is underserved by us-

The oath which the new-made citizen must take promises that he is “atached to the principles of the constitution of the United States, and well disposed to the good order and happiness of the same.” The trial court has many1 facilities, which a reviewing court can not have, for knowing whether that oath is likely to be kept or not. The demeanor of a loafer, the-avowal of the wish for anarchy, a whiskey breath, any of the many but undescribable-on-paper manifestations of general down-at-the heelness and bad citizenship, may be evidences why the vow will not be observed and why the applicant is not ‘ ‘ attached to the principles” of our government, and why he is not “well-disposed to the good order and happiness” of our people.

There is no more imperative duty laid upon the courts than that of doing their part in moulding to good citizenship such part of the material — much of it excellent material and much of it quite the reverse — that is being cast upon our shores every day. In this respect the courts can be to the political health of' the country what the medical profession at our ports is to its physical health. Rejection of improper naturalization attempts- and deportation of undersirable are both in the line of service to the present and future of America. .

For this reason, among others, we repeat that as the duty of review in such cases is cast upon this court, a large presumption in favor of the conclusion reached below will be indulged here. The judgment is affirmed.

Winch and Meals, JJ., concur.


author: ALLREAD, J.

text:
    WORKMEN’S COMPENSATION.
    [Franklin (2nd) Court of Appeals,
    February 29, 1916.]
    Jones, E. H., Jones, O. B., and Gorman, JJ.
    State ex rel. v. Percy Fassig.
    1. Constitutional Amendment Relating to Workmen’s Compensation Enabling Provision not Limitation.
    Tbe constitutional amendment, Art. 2, Sec. 35, relating to workmen's compensation is an enabling provision, as distinguished from a limitation, and should be liberally construed. Its obvious intent is to transfer the subject of workmen’s compensation to an administrative board with summary powers, and the power to' enact a compulsory law necessarily implies power to make it effective.
    2. Provisions for Enforcement of Award by Compensation Act Constitutional.
    The provisions of Sec. 27 of Act 103 O. L. 73 (Sec. 1465-73 G. C.) (workmen’s compensation act), authorizing an award against an employer who has failed to comply with the act and, in case of his refusal to pay, that an action be brought in the name of the state for the benefit of the person entitled thereto for recovery of the amount oL the award with a penalty of 50 per cent, added, is within the constitutional amendment relating to compensation acts.
    Error.

      E. C. Turner, Atty-Genl., J. G. Price and Eugene Carlin, Spec. Cnsl.; R. P. Dunacn, Pros. Atty., and W. J. Ford, Asst. Pros. Atty., for plaintiff in error.

      Wilson & Redor, McGJiee, Davis & Boulger, J. F. Rogers, T. J. Keating and C. M. Yoorhees, for defendant in error.
   ALLREAD, J.

This action involves tbe constitutionality of Sec. 27 of the workmen’s compensation act of 1913 (103 O. L., 72), authorizing the industrial commission in cases where the employer has failed to comply with the act upon said application and hearing under rules to be prescribed, to make an award of compensation in favor of an employee (or his dependents, in case of death) for an injury not purposely self-inflicted, occurring in the course of his employment. It is further provided that the award shall constitute a liquidated claim for damages and that upon failure. neglect or refusal of tbe employer, after notice, to pay such award, an action may be'Jirought against tbe employer in tbe name of tbe state for theA|aefit of tbe person entitled thereto for tbe amount of the awlfei with an added penalty of fifty per centum.

The defendant, Fassig, was an employer of five or more employes and bad failed to comply with tbe provisions of the workmen’s compensation act.

Pond, for whose benefit tbe action was brought, was an employee, sustained an injury in tbe course of bis employment, and made application to tbe industrial commission to fix tbe amount of compensation for tbe injury. An award was accordingly made, and upon tbe refusal of tbe employer to pay, suit was brought for the amount of the award with penalty.

Tbe court below, upon motion, rendered judgment upon tbe pleadings in favor of the defendant upon tbe ground that Section 27 of tbe workmen’s compensation act was unconstitutional.

Tbe state prosecutes error.

The workmen’s compensation act rests upon tbe following constitutional amendment (Art. 2, See. 35) adopted in 1912:

“For tbe purpose of providing compensation to workmen and their dependents, for death, injuries, or occupational disease, occasioned in tbe course of such workmen's employment, laws may be passed establishing a state fund to be created by compulsory contribution thereto by employers, and administered by tbe state determining the terms and conditions upon which payment shall be made therefrom, and taking away any or all rights of action or defenses from employees and employers; but no right of action shall be taken away from any employee when the injury, disease or death arises from failure of the employer to comply with any lawful requirement for the protection of lives, health and safety of employees. Laws may be passed establishing a board which may be empowered to classify all occupations, according to their degree of hazard, to fix rates of contribution to such fund according to such classification, and to collect, administer and distribute such fund, and- to determine all rights and claims thereto.”

The constitutional amendment is an enabling provision, as distinguished from a limitation, and should be liberally construed.

Workmen’s compensation acts in this and other jurisdictions resting upon the general police power, were found to be somewhat fettered and restricted by general limitations of the Constitution.

The amendment under consideration was obviously intended to transfer the subject of workmen’s compensation to an administrative board with summary powers.

The details of construction within the reasonable scope of the amendment was necessarily left to the discretion of the Legislature.

The following statement of Bradbury, C. J., in Hubbard v. Brush, 61 Ohio St. 265 [55 N. E. Rep. 829], in respect to another section of the Constitution, is appropriate here:

“From the nature of its objects, and the brevity required of these fundamental instruments, they can not deal in definitions, but can lay down only general rules, and employ general terms, leaving questions of construction to the appropriate departments of the government.”

The purpose of the workmen’s compensation amendment as well as of the act adopted thereunder was to embrace a comprehensive scheme of relief for all occupational accidents, and not merely for those founded upon negligence. The amendment authorized a compulsory measure. The power to enact a “compulsory” law necessarily implies the power to make the act effective. This is the sum and substance of the great opinion of Chief Justice Marshall in McCulloch v. Maryland, 17 U. S. (4 Wheat.) 316 [4 L. Ed. 579].

Section 26 of the compensation act authorizes the employee to bring an action against the employer for injuries sustained by the employer’s negligence or default, but does not provide a remedy for cases of purely accidental injuries.

Section 27 of the workmen’s compensation act follows the general scheme and gives relief to employees for all accidental injuries arising in the course of employment.

The provisions of See. 27 are, therefore, reasonably necessary to make the act complete.

Section 27 of the workmen’s compensation act charges the-noncomplying employer with the amount the employee would have been entitled to receive under the regular system of workmen’s compensation in case the law had been complied with. This liability is in the nature of a penalty and may be sustained as a liability created by statute.

It was the legal duty of the employer to protect his employees under the workmen’s compensation act. Th'liability of' noneomplying employers prescribed in Sec. 27 is within the scope of the powers implied in the workmen’s compensation amendment and founded upon sound principles of justice.

This doctrine is well stated in Cincinnati, H. & D. Ry. v. Sullivan, 32 Ohio St. 152, 159, involving the statutory obligation of railroad companies to light their tracks within municipal corporations.

Judge Scott in the bpinion says:

“And if such a duty can constitutionally be imposed on a railroad company, its performance may be secured by necessary sanctions. And, certainly, no milder sanction could be effective, to secure the performance of the duty imposed, than that which authorized the performance of the duty required, by the municipality, at the expense of the delinquent railroad company.”

Statutes providing for double and even treble damages in favor of the injured party, and against the party in default have-been upheld. Jensen v. Railway, 25 S. D. 506 [127 N. W. Rep. 650; 35 L. R. A. (N. S.) 1015], and eases cited.

It is urged that See. 27 does not seek to compel a contribution to the state fund, but amounts to a liquidation of damages between employer and employee. But a statute should not be held unconstitutional merely because of its form. A court should’ look as well to its substance and effect. It -would seem reasonable that some relief be afforded the employee of the non-eomplying employer, ánd that such relief could not with justiee-be paid out of funds contributed by other employers. It would be rational to require such non-complying employers to contribute the amount required. This is the effect of Section 27, although the process is more direct.

It is also urged that the board of awards by Section 27 exercises judicial power.

The creation of administrative boards having guasi-judicial •duties is not unfamiliar. Commissioners of counties and trustees ■of townships have jurisdiction in ditch and road cases, and county auditors in matters of taxation. The fact, that- actions in review or on appeal are provided, meet the constitutional requirements. Taylor v. Crawford, 72 Ohio St. 560 [74 N. E. Rep. 1065; 69 L. R. A. 805].

But even if it is necessary to make the award of the industrial commission valid, that there be a provision for notice to the employer and an opportunity to be heard, we think both notice and a hearing are fairly inferred, if not expressly provided, in Sec. 27. The employee is required to file an application which “the board shall hear and determine.” To “hear and determine” implies procedure according to the rules of courts of equity. “Words and Phrases” sub nom. “Hearing.” Where a proceeding of this character is prescribed' by statute, the inference is that the hearing is inter partos and not ex parte. To hear and determine the application of the employees would under Sec. 27 involve a hearing in which the interested employer is brought in and given an opportunity to be heard.

If there be any doubt in respect to the intention.of the Legislature in this respect, it is dispelled by the following provisions in See. 27:

“And the state liability board of awards shall adopt and publish rules and regulations governing the procedure before the board provided in this section, and shall preserve forms of notices and the mode and manner of serving the same in all claims for compensation arising under this section.”

The fundamentals being provided for by statute, matters of form and detail may be delegated to the commission.

The pleadings are silent as to whether notice was given, but regularity is presumed, and in the absence of a showing to the contrary, we are bound to assume that notice was given and a hearing had in accordance with the statute.

The industrial commission, however, acts as an executive board rather than as a guosi-judicial tribunal. Their powers are conferred under authority of Art. 2, Sec. 35, of the constitution.

It was competent for the Legislature under constitutional- authority to transfer the subject of workmen’s compensation to the administrative department. See Fairview. v. Giffee, 73 Ohio St. 183 [76 N. E. Rep. 865]; Miami Co. v. Dayton, 92 Ohio St. 215 [110 N. E. Rep. 726]; State v. Creamer, 85 Ohio St. 349 [97 N. E. Rep. 602; 39 L. R. A. (N. S.) 694].

The constitutional amendment expressly authorizes and the-workmen’s compensation act expressly confers upon the industrial commission power to determine all rights of claimants to the-state fund, and to fix the rates of contribution thereto. There is no question as to the power over employers who comply with the act. As to such employers and their employees, the constitutional authority is ample and the act is admittedly valid.

It would be unreasonable and illogical to confine this power to the willing and let the unwilling go “scot free.”

It is true that the annual contribution to the state fund might be directly enforced by penalties. The Legislature is not, however, confined to that remedy, but has a wider discretion.

It is also contended that Sec. 27 is repugnant to the constitutional provision guaranteeing the right of trial by jury.

There is no denial in the act of the right of trial by jury. The proceeding against the employer is required to be brought in a court of general jurisdiction in which a jury trial can be had as to every basic fact except the amount of the award. Reckner v. Warner, 22 Ohio St. 275.

The provision making the award in favor of the employee the measure of recovery in the action against the noneomplying employer is not in conflict with the right to a jury trial. The remedy prescribed in Sec. 27 is not a mere extension of the common law action involving employer’s liability. The .action is founded upon an entirely different basis. It is a statutory action and arises out of the workmen’s compensation amendment and act. The statute may properly prescribe the liability and the measure of recovery. Cincinnati, S. & C. Ry. v. Cook, 37 Ohio St. 265; Champaign Co. (Comrs.) v. Church, 62 Ohio St. 318 [57 N. E. Rep. 50; 48 L. R. A. 738; 78 Am. St. Rep. 718].

Tbe right of trial by jury is a favored right, but does not prevail over the workmen’s compensation provision expressly committing the subject-matter to an administrative board with power to make awards upon claims of injured workmen.

We should not overlook the force and effect of the amendment and treat the subject merely under the police powers.

Our duty is to consider the old law, the mischief and the ■remedy, and interpret the constitution broadly to accomplish the manifest purpose of the amendment.

Amendments plainly remedial should not be held merely declaratory of existing laws.

It is contended that'the attorney-general and-the prosecuting attorneys are not authorized to bring suit or prosecute the claims Of individual workmen against individual employers.

The duties of the attorney-general and prosecuting attorneys are left largely to the discretion of the legislature, and we can conceive of no constitutional reason why the attorney-general and prosecuting attorney may not, in eases where the employers fail to comply with the provisions of the workmen’s compensation act, be authorized to prosecute action and thereby enforce the workmen’s compensation act.

The conclusiveness of the award, the added penalty and the furnishing of the state’s counsel, do not violate the equal protection provision of the constitution, in view of the nature of the remedy and the purpose to be accomplished.

The workmen’s compensation amendment and act are based upon the general welfare, as are all the employers’ liability statutes.

For more than thirty years there has been progressive legislation regulating employer’s liability and the constitutional power to enact reasonable laws to better the condition of employees and to provide for their safety and welfare, has not been seriously doubted. The general police power has now been augmented by a constitutional amendment expressly providing for workmen’s compensation.

The cases holding that allowances of attorneys’ fees and penalties in favor of the plaintiff in civil cases are in violation of the equal protection provision of the constitution, involved no question of public policy behind the enforcement of the civil liability. See Jensen v. Railway, supra, and cases cited.

Counsel for the defendant have presented able and exhaustive briefs. Many cases have been cited and1 reviewed. The questions are new and not free from doubt.

Legislative acts are not however to be declared void unless clearly repugnant to the constitution. State v. Creamer, supra; State Bd. of Health v. Greenville, 86 Ohio St. 1 [98 N. E. Rep. 1019; Ann. Cas. 1913 D, 52n].

We have reached the conclusion that Sec. 27 of the workmen’s compensation ■ act is not so clearly repugnant to the Constitution as to justify us in holding it invalid.

The judgment of the court of common pleas is, therefore, reversed and cause remanded with instructions to overrule, the motion for judgment on the pleadings and for further proceedings.

Femeding and Kunkle, JJ., concur.


author: WALTERS, J.

text:
    AGENCY — MONOPOLIES—RESTRAINT OF TRADE.
    [Adams (4th) Court of Appeals,
    January 24, 1917.]
    Middleton, Walters and Sayre, JJ.

      W. H. Orebaugh v. W. C. Neu.
    Manufacturer Withholding from Agents Title to Patented Product, Limiting Power of Agents to Solicitation of Purchasers by Particular Bill of Sale not Monopolistic, in Restraint of Trade.
    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 thru 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.
    [Syllabus by the court.]
    ERROR.
    The plaintiff in error filed his amended petition in the court of common pleas, alleging that on October 3, 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, knqwn 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 third day of October, 1913, the plaintiff made application to the said Ford Motor Company to be 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 March 9, 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 ninth 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 March 9, 1914, while plaintiff and defendant, as such partners, had in their possession a large number of such ears 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 ears in good condition; Ore-baugh is to have all the balance of the machines, * *

      Also the following:
    “The said W. C. Neu is to sell all his cars in accordance with the terms of the contract between the Ford Motor Company and W. H. 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'March 9, 1914, and September 30, 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 plaintiff, 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 $400.00 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 $400.00.
    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, for defendant in error.
   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 Ford Motor Co. v. Union Motor Sales Co. 225 Fed. 373 (affirmed 244 Fed. 156) wherein it was held that the contract of the Ford Motor Company then existing and under consideration by the court was monopolistic, against public policy, and come 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 vests 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 receives 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 Avithholds 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 automobile to second party to be sold to users only, and not for resale, 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 per cent, 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 resale 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 per cent, 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:

“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 ease 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 malte 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 again 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 p'art 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 1 ‘ 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 is 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 case 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 cars. Therefore, Orebaugh could confer 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 betwen 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 territorv limited in the Ford Motor Company contract would make Ore-baugh liable for $250.00 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 that 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 'and Middleton, JJ., concur.


author: SHIELDS, J.

text:
    ACTIONS — PRINCIPAL AND SURETY.
    [Licking (5th) Court of Appeals,
    March Term, 1916.]
    Shields, Powell and Houck, JJ.

      J. W. Scott et al. v. Adam Emswiler.
    1. Joinder of Action on Note with Action on Bond Securing Payment not Prejudicial to Sureties.
    The rights of sureties on a bond, executed to secure payment of a promissory note, are not prejudiced by uniting an action on the bond with the action for recovery on the note.
    2. Rejecting Evidence of Violation of Terms of Bond Given to Secure Note Erroneous.
    In view of the express stipulation of a bond securing payment on a promissory note that the proceeds of the loan were to be used by the defendant in his business, one-half of the profits derived therefrom to be retained by the defendant as his compensation, and the denial of the answer that this agreement was carried out, refusal to permit the introduction of testimony as to the alleged violation of the terms of the bond is erroneous.

      ERROR.

      S. L. James, for plaintiff in error.

      Flory & Flory, for defendant in error.

      Motion to certify overruled by the Supreme Court, November 28, 1916, Emswiler v. Scott, 61 Bull. 389.

   SHIELDS, J.

This cause is in this court by petition in error seeking to reverse the judgment of the court of common pleas upon numerous grounds of error alleged therein.

The amended petition of the plaintiff in the court below is founded upon a promissory note executed and delivered by the said J. W. Scott, one of the defendants, to the plaintiff on May 11, 1908, payable on demand, for $300, with interest, containing a power of attorney to confess judgment, on which various payments of interest are endorsed. Said petition further alleges:

“That before and at the time said note was given, said -J. W-. Scott was engaged in the business of loaning money at interest in the city of Newark, Licking county, Ohio. In order to secure the amount due upon, and evidenced by, said note, the said J. W. Scott, as principal, and the defendants, C. D. O’Hara and Phil. B. Smythe, both of Newark, Ohio, as sureties, executed and delivered to this plaintiff their bond or written obligation by which they were held and firmly bound unto the said plaintiff in the sum of $300, for the payment of which they bound themselves. The condition of said bond was, in substance: Whereas the said Adam Emswiler has deposited with the said J. W. Scott the sum of $300, in money, in trust, for the purposes of investing the same, i. e., loaning the same in connection with the conduct of the business now managed by the said J. W. Scott, located at 29% South Third street in the city of Newark, Ohio, it being agreed between the said parties that the said J. W. Scott shall loan said $300 for the said Adam Emswiler, and to pay to said Adam Emswiler one-half of the profits derived from said $300, the other half of said profits to be retained by said Scott as and for his compensation, the said profits to be determined upon the basis that said $300 bears to the total amount of capital invested in said business. The said $300 is to be returned to said Emswiler upon demand, or as soon thereafter as the same can be collected from said business at the option of said Scott.
“Now if tbe said Scott shall faithfully perform all the conditions by him to be performed as aforesaid, then this obligation to be void, otherwise to be and remain in full force and effect. ’ ’

To this amended petition a joint amended answer of the defendants, C. D. O'Hara and Phil. B. Smythe, is filed, in which they say:

“They deny that in order to secure the amount due upon, and evidenced by, the note set up in plaintiff’s petition, as sureties for the said Scott, executed and delivered to plaintiff their bond or written obligation by which they were held and firmly bound unto plaintiff in the sum of $300 or any other sum, for the payment of which said defendants bound themselves.
“They deny that they are indebted to plaintiff upon or by reason of said bond, or otherwise, in the sum of $300, or any other sum.
“Further answering these defendants say that plaintiff and said Scott were partners in the business of loaning said money, and in the business mentioned in said petition. These defendants say that said plaintiff has never made demand- upon said Scott for the payment of said sum of money, or any part thereof, according to the terms of said written obligation, or bond, and they deny that said Scott has ever made default in any of the terms or conditions of the same.
“Said defendants deny each and every allegation of said petition. ’ ’

A separate amended answer to said amended petition is also filed by the defendant, J. W. Scott, in which, after admitting the execution of said note and bond, he avers that no demand was ever made upon him by the plaintiff as contemplated by the express terms of said bond; that he has paid under said option upon said $300 all the moneys collected by him from said business of loaning money and which is the sum total owing by him to plaintiff under the terms of said bond, and he denies all the allegations of the plaintiff’s amended petition, except what is expressly admitted in said amended answer.

Separate replies to the joint amended answer of C. D O ’Hara and Phil. B. Smythe and to thé separate amended answer of the said J. W. Scott are filed by the plaintiff, denying all matters stated therein inconsistent with the allegations of said amended petition.

The ease was submitted to a jury, resulting in a verdict for the plaintiff. A motion for a new trial being overruled, judgment was entered upon said verdict and, as stated, error proceedings are prosecuted to this court for a reversal of said judgment.

The history of this ease leading up to the execution of the note and bond mentioned in the pleadings fully appears in the evidence contained in the bill of exceptions, which we have read with some degree of. care with reference to the claims of the respective parties as made in their respective pleadings.

Considering the manifest object in the execution and delivery of said bond by the plaintiffs in error to the defendant in error and the subsequent execution of said note by said Scott, one of the plaintiffs in error, to the defendant in error, and uniting both in one and the same cause of action, has been the subject of no little discussion by the court, but under the rule that the rights of the sureties on said bond were not prejudiced thereby, we hold that the action of the court below in overruling the motion and demurrer interposed to the amended petition was not erroneous.

It is averred in said amended petition that while said Scott was to invest or loan said $300 in his business and account to the defendant in 'error for one-half of the profits derived therefrom, the other half to be retained by said Scott as his compensation, he did not invest or loan the same or any part thereof in his business, according to the conditions of said bond. This averment in said amended petition is met by a denial in both the joint amended answer of the defendants, C. D. 0 ’Hara and Phil. B. Smythe, and in the separate amended answer of said J. W. Scott.

On pages 53 and 54 of the record we find that when the said Scott was testifying as a witness for the defense he was interrogated and answered as follows:

“Q. What did you do with that money? A. I put it in the safe. '
‘ ‘ Q. What did you do with it after that ? A. It was too ]ate to go to the bank. It was after three o’clock, and the next morning.I deposited it in the Licking County Bank.
“Q. Then what was done with it, if anything?
“Objected to as immaterial.
‘ ‘ The Court: I do not think it is material.
“By Mr. James: Exceptions, and we offer to show that he invested it in the business.
‘ ‘ The court refused to permit the defendant to so prove, to which refusal of the court counsel for defendant at the time excepted. ’ ’

As indicated, an exception was saved to the action .of the court in excluding the evidence offered and such action of the court is assigned as error. ■

It appears that the object in placing this money with said Scott was that he should employ it in his business, and that by the terms of said bond it is expressly stipulated that he should loan it in connection with his said business, and in said amended petition it is averred that he failed and refused to comply with said agreement and violated -the terms of said bond in this respect. As a party to said action wherein a recovery is sought against him and others, any violation of the terms of the instrument sued upon, we think was proper to have been shown, and he should have been given an opportunity of not only meeting said charge by a denial of the same, if true, but by stating all the facts and circumstances relating thereto, especially as bearing upon the option to be exercised by the said Scott under the terms of said bond. Under the charge made in said amended petition and the denial of the same in said answers, we think that the evidence offered was clearly competent, and that the action of the court below in excluding the same was erroneous and prejudicially so, because said evidence so offered and rejected was vitally related to the subject-matter affecting the legal rights of each of the defendants in said suit. As stated, the underlying agreement in the bond was that the money was to be employed in the business of the defendant in error, and that the latter was 'to share in the profits therefrom, and to be deprived of showing that it was so employed would be to deny to the defendants the benefits of the defense made. In excluding the evidence offered we think the court below erred to the prejudice of the plaintiffs in error and such error affords sufficient ground for the reversal of said judgment.

It was also argued that the court below erred in its instructions to the jury. As already, shown said bond provides that “the said $300 is to be returned to said Emswiler upon demand, or as soon thereafter as the same can be collected from said business at the option of said Scott.” As we interpret this clause of said bond, it is to the effect that said Scott was to return said sum of money to defendant in error upon demand, or as soon thereafter as the same could be collected from s’aid loaning business, as the said Scott might elect. The meaning of the bond is ascertainable from a history of the case. It is aided by a consideration of the object for which and the circumstances under which it was given. Evidently it was given to protect the defendant in error against the loss of his money, assuming that it was a loan, and it is equally evident that said sum of money was to be loaned out, hence it is not unnatural for the bond to recite and provide that said money shall be payable on demand, or if loaned out and not subject to such demand, that-he may take steps to collect it, and these methods of payment were at the option of said Scott. True, the sureties on this bond obligated themselves' to pay the sum named therein, but their obligation is to be determined by the conditions expressed therein. Their liability rests upon the letter of the bond. They make no absolute promise, or give any guarantee of the repayment of this sum of money to the defendant in error, unless said Scott makes default in the particulars named therein. In instructing the jury upon this branch of the case and referring to what the court below instructed them was a reasonable time after demand made to return this money to the defendant in error, the plaintiffs in error claim that such instruction was misleading and, therefore, erroneous. They claim that no such demand was made for this money as is contemplated by the provisions of said bond, but that if a demand was made, they further claim that said instructions to the jury were not warranted because, under the terms of said bond, the said Scott had the option to collect said money if loaned out, and that there is nothing affirmatively appearing in the record that he did not exercise such option. While we think the jury should have been more fully instructed upon this feature of the bond, we are not prepared to say that we deem this instruction sufficient ground for the reversal of this judgment, standing alone.

We have examined the other assignments of error in said petition in error and find no prejudicial error therein, but for the error in excluding certain evidence hereinbefore referred to the judgment of the court of common pleas will be reversed and said cause will be remanded to said court for a new trial.

Powell and Houck, JJ., concur.