text:
    PROSECUTIONS FOR. VIOLATION OF THE ROSE LAW.
    Circuit Court of Wyandot County.
    State of Ohio v. Charles Hinkelman.

    Decided, February 4, 1910.

      Liquor Laws — Prosecution Under the Search and Seizure Law — Illegal Sales of Intoxicating Liquor — Failure to Attach Exhibits to Bill of Exceptions — Proof that a Gounty Has Toted, “Dry” — Effect of an Objection Based Upon a Wrong Reason — Evidence of Detectives and of Saloon Keepers — Sections 610S and 6169. 1. The mere facts that exhibits offered in evidence are of considerable bulk or weight does not excuse a failure to attach them to the bill of exceptions or to properly mark them for identification on review on the weight of the evidence. 2. The failure of a. county clerk to sign his certificate attached to the record of a local option election, showing the result to have been that the county was voted “dry,” renders the certificate invalid as evidence; but the contention that the county was in fact voted “dry” may be sustained by other evidence. 3. The evidence of detectives, offered in a prosecution for violation of the Rose county local option law, is governed by the same rules and entitled to the same credence as that of other witnesses under like conditions, and this is particularly true where detectives testify whose compensation is not dependent upon the conviction of •the accused; but where the accused is a saloon keeper who operated a saloon prior to the local option election and is charged with continuing to conduct the business in the same manner after the county was voted “dry,” his testimony may properly be viewed with caution and measured by his bias in his own favor.

      L. M. Bowers, J. A. White and H. E. Newell, for plaintiff in error.

      Meek c§ Stalter, contra.
    Hurin, J.; Kinder, J., concurs; Donnelly, J., dissents.
    Error to Wyandot County Common Pleas Court.

       Affirmed by the Supreme Court without opinion, 83 Ohio State, -.

   These cases — thirteen in all — brought by the state against the following defendants, respectively: No. 402, Charles Hinkelman; No. 403, John Snyder; Nos. 404, 405, 406, Ed. Ritter; No.. 407, Charles Feeley; Nos. 408, 409, Nicholas Wagner; No. 410, Frank Haupt; No. 411, Theodore Bolish; No. 412, Joseph Bolish; No. 413, John Scheidegger; No. 414, Anthony Strasser, arose out of alleged violations of the liquor laws applicable to dry territory.

All of the defendants in error were convicted before the mayor and fined in varying amounts. All of these judgments of conviction were reversed by the court of common pleas, on the ground that the trial court erred in overruling the motions for new trial and that the finding and judgment of the mayor were not supported by the evidence.

In all the eases except those against Hinkelman and Snyder a third ground is assigned, viz., that the mayor erred in restricting the cross-examination of the witnesses for the state, W.B. Drake and J. A. Reasoner. The state now prosecutes error in this court seeking to reverse the judgments of the mayor.

While the cases are all liquor cases and many of them are based upon very similar evidence, they appear upon examination to differ in certain particulars, and for convenience they may be classified in various groups, yet all considered together.

The cases of Charles Hinkelman and John Snyder arose under the search and seizure law (act 98 O. L., 12), this charge being in effect that certain intoxicating liquors, etc., were kept in buildings occupied by defendants, and for the purpose of being sold, furnished or given away as a beverage in violation of the county local option law (99 O. L., 35) in Wyandot county. In all the other cases the offense charged is the unlawful selling of intoxicating liquors as a beverage.

In the cases against Ed. Ritter 'and Nicholas Wagner, two or three separate sales made within a few minutes of each other are made the 'basis of separate charges, and in the case of Joseph Bolish four such separate sales, though originally alleged as separate complaints, were afterwards consolidated by agreement as separate counts in the same indictment.

As the motions for new trials were practically identical in all the cases and as the overruling of these motions by the mayor is assigned in each case as one cause of the reversal of the mayor’s judgment, and as in all of the cases, the judgments were found by the court of common pleas not to be supported by the evidence, it has been necessary for this court to examine all of the bills of exceptions in order tó determine whether the court of common pleas was justified in so reversing the judgments of the mayor.

An examination of those bills of exceptions shows at once that in three of the cases, viz., the Hinkelman, Snyder and Feeley eases, the bills of exceptions were incomplete and did not contain all of the evidence and hence, that the court of common pleas could not properly reverse any of these cases on the weight of the evidence, as it assumed to do.

In the Hinkelman case the bill of exceptions shows on its face that eleven exhibits were offered and admitted in evidence, none of which were attached to the bill or filed with the clerk in due form.

In the Snyder case, the bill of exceptions shows that at least fifteen exhibits were offered and admitted in evidence, none of which were attached to the bill or otherwise properly brought before the reviewing court.

It is too well settled in Ohio to merit discussion that a bill of exceptions is not complete unless all exhibits are either attached to it or marked for identification and duly filed with the clerk so that the reviewing court may have all the evidence (Hicks v. Person, 19 Ohio, 426, 446; Busby v. Finn, 1 Ohio St., 409). And it is equally well settled that unless such bill of exceptions is complete and contains all of the evidence (including such exhibits), a reviewing court can not lawfully reverse the judgment in such case on the ground that it is against the weight of the evidence. Hichs v. Person, supra; Cantwell v. Slate, 18 Ohio St., 477; Pitts., Ft. W. & C. Ry. v. Probst, 30 Ohio St., 104.

It appears, however, that in the Hinkelman and Snyder cases, the reviewing court decided that the omitted exhibits were too bulky to be conveniently attached, and were at any rate useless, and therefore should be disregarded.

There is no authority of law of which we are informed that justifies such a conclusion. The mere bulk or weight of an exhibit is no reason for disregarding the express terms of the statute. It is a matter of every day experience for flasks, furniture, machinery, specimens of bricks and all sorts of other heavy materials to be admitted in evidence, and the law provides for their attestation as evidence, and the disregarding of that law was error.

In the Feeley case, the defendant himself introduced certain bottles as exhibits and though they were of no great bulk or weight he failed to attach them to the bill of exceptions, and so in that case also there was no such bill before the court as justifies a reversal or a consideration of the bill as to the weight of the evidence.

But in all of these cases, the alleged error of the mayor in overruling the motions for new trials was assigned as a ground for reversal.

On an examination of the grounds assigned for these motions for new trial, we find that there was no error in the mayor’s refusal to grant a new trial on any of the grounds alleged unless it was on the ground of the admission or exclusion of evidence which includes the ground otherwise alleged, that there was an undue restriction of the right to cross-examine plaintiff’s witnesses.

In this connection it may be well to refer to one claim of error which is common to all of the cases now submitted to us except the cases against Joseph Bolish, John F. Scheidegger and Anthony Strasser, and which relates to the admission of evidence. In all the other ten cases it is claimed that the mayor erred in refusing to discharge the defendant because of the failure of proof that the county of Wyandot had ever voted dry. In the Jos. Bolish, Scheidegger and Strasser cases, the proof on that branch of the ease was complete.

In all of these other ten cases the state attempted to prove the fact by the certificate of the clerk of court as authorized by the statute.

But although that clerk in every case testified that he was ‘‘ clerk of the court of this county during the local option election held under the Rose law some time last fall, ’ ’ referring to the fall of 1908, thereby establishing the fact prima facie under the statute that there has been such ah election, and though he testifies that a certificate was forwarded to him from the deputy supervisors of election, showing the result of such election, and that he made a record of that certificate on the journal of the court of common pleas, and though he read into the record and there is attached to the bill a copy of a certificate of said clerk purporting to contain a copy of such recorded certificate showing that the county had voted dry, yet the clerk failed to sign his own certificate, and so it was claimed there is no certificate at all showing such election or its result.

Such a certificate is plainly defective, and this defect would be fatal to the claim of proof on the part of the state as to the result of that electon were it not for two reasons.

In the first place, every one of these ten bills of exceptions shows that at some point in the case, other evidence was admitted showing that this territory had been voted dry. Usually this was brought out by the defense in the cross-examination of the plaintiff’s witnesses; sometimes it was brought out by the plaintiff in chief.

For instance, in the Snyder, case on page 25 of the bill in the cross-examination of Thomas Agen, the state’s witness, he testified as follows: ‘ ‘ They sold beer there — they used to. ’ ’

“Q. 41. How long ago.? A. Probably just before the saloons closed up, before this dry business commenced.
“Q. 42. That was before they voted under the Rose law in this county? A. Yes, sir.”

And on page 74, defendant was asked: “What business were you in previous to the time in which this local option law went into effect ? A. I was in the saloon business. ’ ’

And in the Feeley ease on page 79 of the bill: Q. 73 of Feeley’s direct examination:

“How does this beer or whatever it was — this temperance beer that you sold to Reasoner and Drake on the fifteenth, compare in taste with the kind of beer we had here before the county voted against the use of intoxicating liquors? A. Well, if it is kept in good shape and cold, a fellow can’t tell the difference.
“Q. 1. (Cross-examination, page 80.) What business do you say you are in ? A. I run a restaurant and soft drink stand.
“Q. 2. What business were you in previous to the county voting dry? A. I was in the saloon business tending bar.
“Q. 5. Are the fixtures in that place the same as they were there previous to the voting of the county dry? A. No, sir.”

These or similar expressions appear in all .of the cases. While the plea of not guilty put in issue every material allegation of the affidavit and some proof was necessary to establish every such allegation, and while it is also true that if the result of the election which had been testified to by the clerk independently of his certificate, had been disputed by the defense, such evidence as this might not have been of great weight. Yet that result was not disputed and, in the absence of any question being made as to the fact that the county voted dry, but little evidence was necessary to establish that fact'prima facie, and this evidence was in each case supplied by the witnesses.

We are cited in this connection in the case of Finney v. State, 54 Bull., 432, in which a very similar question arose. The certificate there introduced to prove that the county had voted dry was not signed by the clerk, but the name of the clerk was copied in typewriting merely. This was.relied upon by plaintiff in error as .a failure of proof under -the statutes, but the Supreme Court did not so regard it and refused permission to file a petition in error. The case was probably weaker for the state than the eases now before us, for a typewritten signature, to a certificate is certainly not such as the statutes usually contemplate, but the Supreme Court appears to have regarded it as sufficient in the absence of any dispute as to the fact’that the county had voted dry.

But for another reason no such proof was necessary in these cases.

The state had offered what purported to be a certificate of the clerk as to the result of the local option election. That certificate was in due form under the seal of the court, and was complete in every particular except that the signature of the clerk was absent.

Objection was made by the defense to the introduction of this certificate. The court asked on what ground objection was made. Mr. Meek responded: “Because it is incompetent.”

We claim that it does not lie within the power of the Legislature to say what would be prima facie evidence of any fact in a criminal case. The presumption of evidence is with the defendant forevermore, until conviction.

This ground of objection was properly held by the mayor to be ill-taken and the objection was overruled.

But having given a wrong reason for his objection, the defendant waived all other reasons under the rule cited in the case of Kent v. State, 42 Ohio St., 426, 430, and as the objection to this certificate was thus waived, the proof of the result of the election was complete.

In the three cases against Joseph Bolish, John Scheidegger and Anthony Strasser, the clerk’s certificate was duly signed and this question is not raised, and so in all of the thirteen cases, this question is eliminated.

Another objection to the evidence is that in all the eases except those against .defendants Hinkelman and Snyder, the only proof of a sale of intoxicating liquors is the testimony of two detectives, and this appears to have been the principal ground on which the court of common pleas based his judgment of reversal.

It appears not only from the bills of exceptions in all these cases, but from arguments of counsel that, throughout the trials of these eases, there has been a studied and determined effort on the part of counsel and certain witnesses to belittle the effect of all evidence of detectives and especially of detectives in prosecutions for illegal sales of liquor.

It appears that this disparagement had such great weight with the learned judge of the court of common pleas, that he refused to give any credence whatever to anything -testified to by either of the detectives in any of these cases; and principally because of his strong feeling against this kind of evidence, as appears from his written opinion submitted to us, he reversed all of these cases.

It may be well to say right here that there are certain legal rules relating to evidence which should be enforced in all cases. A liquor case should be tried under exactly the same rules as other cases. No public excitement or popular prejudice can for a moment be allowed to deflect a court from the well recognized rules of practice. Laws are made for the equal protection of all. If 'there has been a violation of law, it is the duty of all good citizens to aid in the punishment of the offender. To attempt to foster prejudice against officials who seek to enforce law is to nullify popular government. It destroys that protection which each citizen has the right to claim. It is anarchy. If the law is unjust, it should be repealed. While it is law, it should be enforced. Each person accused of crime is entitled to a fair trial under rules fixed and unchanging and well known. To attempt to apply one set of rules of evidence to one class- of eases and to deny their applicability to other cases is to destroy all respect for law and all safety in reliance on law for the protection of individuals and of the community.

In all of the cases now before us, the state relies upon the evidence of the two detectives. The defense has attempted to discredit them.

It is a well recognized principle of evidence that the weight which shall be given to any evidence depends upon its reliability.

In the prosecution of crime, it is often necessary to rely on deieeiive evidence, the evidence of men, who for a time conceal their true characters and circumstances, and do this deliberately for the purpose of misleading those who are suspected of crime. This is necessary because evidence of past crimes is always difficult to obtain and because no one intending to commit a crime or an offense .against the law, will do so in the presence of any one who is known to be law abiding and unfriendly to the commission of that crime or offense. It is also necessary because few citizens are willing to incur the ill-will of their neighbors- by reporting their violations of law and exposing them to punishment. Such exposure must come generally from strangers.

Detectives, therefore, are necessary, and to reject their evidence simply beause they are detectives and without regard to the inherent credibility of their story is without warrant .of law or reason. But the law recognizes the fact that the testimony of any man who habitually deceives his fellowman, is to be viewed with caution. Its weight must depend on the circumstances of each particular case. If his motives can be shown to be bad, his testimony will carry little weight. If otherwise, his testimony may be entirely convincing. Detectives’ testimony, therefore, must be judged exactly as any other evidence, being dependent for its effect on the circumstances under which it is offered.

In the cases before us, the state relies upon the testimony of two detectives who, in each ease, testify to the character of the liquor sold; that it was intoxicating.

In each case the defendant who sold the liquor, denies that it was intoxicating. But in no case is it denied that liquor was actually sold to the detectives. In one case the time is disputed. But in that case the defendant’s own witnesses corroborate the detective as to the time.

In -three of the 'Cases samples of the beer found by the detectives were analyzed-by a chemist and found to be intoxicating. In -two of the cases where the possession of intoxicating beer could not be denied, the excuse for handling such beer in dry territory was that it was intended for private use and not for sale. Where the beer had not been scientifically analyzed, each, defendant denied that it was intoxicating beer and relied upon that defense. Yet in all but one of these cases, the defendant, under oath, testified that he could not tell by the appearance or taste of the beer when it was cold, whether it was intoxicating or not, and he seeks to discredit the detectives’ testimony by other testimony of the same effect.

Various-witnesses are called in-the Strasser and Scheidegger cases, and some others to corroborate the defendants in the claim that temperance beer only was sold the detective, but none of these witnesses testify to the fact. They can only say that they themselves had not gotten any intoxicating liquor there.

We have then the testimony in each case of two men — detectives so-called — who are under pay for ferreting out violations of the liquor laws, but whose pay is proven conclusively, and by the defense in each case, to have no dependence whatever on any conviction for such violation. These men testify in each case that intoxicating liquor.was sold them in violation of law. They testify that they know that this liquor was intoxicating, not only by its taste distinguished from so-called temperance beer, but by its effect on. tlieir persons, the flushing of the, face, the rising of the temperature, the excitement of the nerves.

We have, on the other hand, the absolutely unsupported testimony of the defendant in each -case .who, while admitting that he sold the beer to the detectives, swears that he sold only temperance beer, and in the next breath, swears that there is no difference between the two kinds of beer either in appearance or taste or effect, unless possibly when taken in great quantities.

One defendant, Joseph Bolish, is frank enough to admit that there is a great difference in the taste of the two kinds of beer. But he stands alone among these defendants.

The corroborating witnesses on .whom the defendants rely, usually do swear to the same inability to detect any difference, yet they one and all speak- of the intoxicating beer as good beer and many of them do express preference for that kind, and some even are frank enough to admit with Joseph Bolish and the detectives, that there is a vast difference both in the taste and effect, and some even go so far as to say, as Charles Shuler does in the Bolish case, that temperance beer is “no good.’’

Such evidence as this does not strongly corroborate the claims of the defendants/ Their own evidence is intrinsically weak. Their own witnesses fail to corroborate them as to the fact of the character of the beer sold to the detecetives. They only seek to discredit the evidence of the detectives as to the possibility of recognizing the intoxicating beer .by its taste or effect; and all of this evidence bears on its face the effect of a lack of candor and is, in at least one case, expressly discredited by the one witness of them all who appears to be entirely candid and truthful.

It is true that in some of the cases, witnesses -other than the defendants, do seek to corroborate the defendants by testifying that what was sold was not intoxicating beer. But not one of these witnesses knows as a fact that it was non-intoxicating beer. Their only authority for .their assertions is the fact that they had tasted none but “ienvperance beer” there or that the bottles were labeled “temperance beer,” or that the beer was supposed to be “temperance beer.” Such evidence is absolutely worthless as proof of the character of the beer actually sold.

But if the evidence of the detectives is to be received with caution, what is to be said of the defendants ?

The caution justly'exercised toward the evidence of detectives is due, as has been said, to .the position of apparent bias in which they stand by virtue of their employment — their supposed interest in proving a conviction. The same rule of caution must be applied to each of the defendants. Each by his testimony is seeking to avoid punishment for an alleged offense against the law, a punishment which may be expressed in terms of hundreds of dollars. As .a defendant he is in law presumed to be innocent until proven guilty. But when he goes on the witness stand, his testimony must be viewed exactly as that of any other witness. If he is in a position to biased, or if he has a financial interest in the issue of the case, or if his interest would naturally lead him to depart from the truth, his testimony must be viewed with the same caution as that of .any other prejudiced person, yet not with discredit unless shown to be suspicious.

How stand these cases then? In one ease, the Hinkelman case, ther'e is the additional proof that at the time of the seizure of the goods under the search warrant, the defendant destroyed one or more bottles of liquor. This under Section 4 of the search and seizure act, 98 O. L., 12, was prima facie evidence that the liquor was intoxicating and that it was intended for unlawful sale.

In various other eases a prima facie case was made under Section 12 of the same act, that liquors were kept for unlawful sale, by the proof of payment of the United States special tax as a retail dealer in intoxicating liquors.

Two detectives who are shown by the defense to have no financial interest in a conviction — for they receive their pay whether a conviction or -an acquittal results. — swear that liquor, intoxicating liquor, was sold to them by each of the defendants.

Each of the defendants, interested to the extent of a possible fine of hundreds of dollars, testifies that the sale, admittedly made sale, was not a sale of intoxicating liquor, but of something so like it that he can not tell the difference.

Each of these defendants has put himself under suspicion by conducting a business in all respects like that which he conducted in the same place before the county voted dry when he admittedly sold intoxicating liquors at the same place and in the same way, and he now seeks to have the court believe that he can not tell what he is selling, yet swears that it is .not intoxicating.

If any witnesses are ever to be viewed with caution, we think that these defendants have earned that distinction and we are not of the opinion that the trial court erred in believing the evidence of the detectives in preference to such evidence as that of these defendants, nor is the so-called corroborating testimony of defendants’ witnesses much stronger. They are one and all habitues of the defendants’ resorts, bound by a well recognized obligation of comity to support defendants to the utmost extent of their ability and they unfortunately appear to have stretched that obligation of comity to unreasonable bounds; for they, some-of them at least, attempt to testify to the most minute details of the conversation and .actions of the defendants on particular dates, yet show an utter inability to recall anything else that occurred on the same occasions or on similar occasions to which their attention was called. Such evidence does not' greatly strengthen" the defendants’ case.

There are certain of these cases, however, in which the evidence of the detectives is palpably weak. In two of the cases' against Ed Ritter, the detectives testified that one -of them bought two glasses of intoxicating beer of Ritter at 5:25 p. m. on June 22, and that the other then — three minutes later, bought two more glasses of intoxicating beer.

On each of these purchases a case is founded. Strictly speaking, they were separate sales, that is, sales to two different people, but in fact it was all one transaction, and while we would not wish to be understood as laying down a rule applicable to all such cases, we are of the opinion that a conviction is not warranted in both of these cases when the two transactions were practically synchronous.

We are cited by counsel to cases in which it has been held that proof of a single sale is sufficient without proving a series of sales to constitute the offense of unlawfully keeping a place where intoxicating liquors are sold at retail. But here the charge is not that of keeping a place but of selling intoxicating liquors, and there should be no double conviction for the same offense. The same criticism is true in the case against Nicholas Wagner. He is convicted of selling intoxicating liquor to J. A. Reasoner at 7:35 p. m., on June 16, and to W. B. Drake, the other detective, at 7:40 on the same evening. In each case one of the detectives treated .the other and then that other immediately treated the first. But separate charges are made for each treat. This seems to be pressing zeal too far.

. The same is true of the charges against Joseph Bolish. He is charged with one sale to Drake at 10:25 p. m. on June 16 and another to Reasoner at 10:30 p. m. on the same day, and with two similar sales on June 15 at 11:25 p. m., and 11:30 p. m., respectively. Here, as in the other cases, but on two different evenings, each detective treated the other and was in turn immediately treated by the other.

As in the cases against Ritter and Wagner, we regard these four alleged offenses as in reailty only two, one on June 15, and one on June 16. But in the ease against Joseph Bolish, another question is of importance. It is claimed that there was an undue restriction of the right of cross-examining the prosecuting witnesses, and this was error. In this case the defendant’s attorneys attempted to cross-examine the prosecuting witnesses as to their proceedings on the day on which the offense was charged. They were questioned as to where they had been on that day, what saloons they had entered, what liquors, if any, they had drunk. Objection was made apparently on the ground that this was an attempt to ask for information merely in order to prepare defenses in other cases.

Were we certain that such was the purpose of the questions asked, we might agree with the trial court in his excluding of such testimony. • But the questions also bore directly upon the question as to the condition of these witnesses at the time they claimed to have gotten the drinks from Joseph Bolish, whether they were intoxicated then or not. They had testified as to certain of their actions, the defense had the right to test their veracity by a reasonable cross-examination as to where they had been and what they had done that day.

We are all of us of the opinion that such rigid restriction of cross-examination was error for which this ease should be reversed. The same objection is also made in all of the other cases except those .against Hinkelman and Snyder. But in none of these other cases was there the same strictness exercised. It is true that in some of them defendants were prevented by the court from asking how much beer was drunk at Kirby on the day in question. But the court then permitted the fullest cross-examination as to what was drunk in Upper Sandusky both before and after the trips to Kirby. As five or six hours had elapsed after the return from Kirby to Upper Sandusky, the question, of what had been drunk before that time, and where it was obtained was not material.

Again in some of the cases there was an objection sustained to the cross-examination as to the conduct of Drake in going to Indianapolis on a certain occasion.. This was long after the offense for which the defendants were being tried.

The actions of Drake on that occasion could have no bearing on this case and such cross-examination was properly excluded. From this consideration of these cases a majority of the court is of the opinion that all of these thirteen cases should be reversed except three.

In the case of State v. Bolish, the judgment of the court of common pleas reversing the judgment of the mayor will be affirmed on the ground that there was an undue restriction of cross-examination, and because four actions were founded on what were in fact .only two transactions.

In the case of State v. Ritter, No. 405, the judgment of the court of common pleas will be affirmed, because the transaction there charged as an offense was the same as that charged in case No. 404.

For the same reason case No. 409, being the case of State v. Wagner, will be affirmed.

All other cases will be reversed.


source: Caselaw Access Project

license: Public Domain

text:
    CIRCUMSTANCES UNDER. WHICH NOISE FROM MACHINERY IS NOT A NUISANCE.
    Circuit Court of Hamilton County.
    Katherine A. Grothlich v. Klein & Cohn.
    Decided, November, 1909.

      Nuisance — Operation of Heavy Machinery is not, When — Injunction Denied on Petition of Residence Owner.

    Tbe operation of heavy hammers and machinery in a manufacturing district can not be enjoined on petition of the owner of residence property, where no substantial vibration of the building is produced, and the machinery is operated in a prudent manner, and the noise is no greater than is common in a populous manufacturing district.

      C. J. McDiarmid and Ralph O. Newcomb, for plaintiff.

      Cohen & Mack, for defendants.
    The plaintiff sued to enjoin the operation of hammers and heavy machinery in defendant’s factory adjoining her residence. She w-as given a decree in the court below.
    Giffen, P. J.; Swing, J., and Smith, J., concur.
   It appears from the testimony and a view of the premises including the power-shears in operation that the chief noise arises from the cog-wheels forming a part of the gearing, and that there is no substantial vibration affecting the plaintiff’s- -property. The business itself is lawful and conducted in an ordinarily prudent manner. Such annoyance as the plaintiff suffers is no greater than is endured in any populous neighborhood devoted, as this is, in part to manufactures, and to grant relief by injunction would practically suspend manufacturing within the city limits.

The first proposition of the syllabus in the ease of Goodall v. Crofton, S3 O. S., 271, is as follows:

“On the petition of a landowner, complaining that certain steam power and machinery operated by another on adjoining land is a nuisance, an injunction should not be granted unless a clear ease of nuisance and irreparable injury be made out.”

There is and can be no real injury to the property itself, and while the annoyance to the plaintiff and her tenants is substantial, it does not amount to a nuisance for which an injunction should be granted.

We did not see the derrick and weight for crushing iron in operation; but from the testimony we find no warrant for restraining its operation by injunction. '

The petition will be dismissed and each party ordered to pay his own costs.


text:
    EVIDENCE VARYING AN AGREEMENT.
    Circuit Court of Hamilton County.
    Lewis R. Smith v. Jacob J. Geis.
    Decided, July 9, 1910.

      Sale of Real Estate — Written Contrast Giving Broker Commission by Whomsoever the Property is Sold — Parol Evidence as to ~an Exception to the Contract Inadmissible.

      Joseph A. Keadin and Gilbert Bettman, for plaintiff in error.

      Fred E. Niederhelman, contra.
    The court below gave judgment for the defendant Geis.
    Giffen, P. J.; Smith, J., and Swing, J., concur.
   In an action to recover commission under a written contract with a real estate agent whereby he is allowed a commission in the event the property is sold through the efforts of the agent, owner, or any other person during the existence of the contract at any price acceptable to the owner, parol testimony is inadmissible to show a contemporaneous agreement to except a sale made to a certain prospective purchaser from the operation of the contract.

Judgment reversed and judgment for plaintiff in error.


author: Kinder, J.,

text:
    CONTRACTS FOR. EXCLUSIVE INTERCHANGE OF TELEPHONE BUSINESS.
    Circuit Court of Van Wert County.
    The United States Telephone Co. v. The Middlepoint Home Telephone Co.

    Decided, 1910.

      Contract — For Exclusive Interchange of Business Between Telephone Companies Binding, When — Construction of Statutes Conferring Charter Power — Upon what Jurisdiction of the Courts Rests — Possible Contingencies — Parties—Injunction—Sections 9171, 9182 and 9191, General Code.

    1. A contract between a telephone company engaged in operating a local exchange and a telephone company engaged in long distance service, for the physical connection of lines and interchange of business for a period of ninety-nine years, where partly performed and of material benefit to the party seeking its avoidance, and where the other party upon faith of and in performance of said contract has made large expenditures, is binding.
    2. Such contract for exclusive interchange of business originating on the lines of the one and destined to points reached by the other is within the purview of Section 3455, Revised Statutes, and is not obnoxious to public policy.
    3. Section 3462, Revised Statutes, requiring dispatches to be received and transmitted from and for other telegraph lines, made applicable to telephone companies by Section 3471, Revised Statutes, does not, when read in connection with Section 3455, Revised Statutes, extend to through verbal communication requiring physical connection of independent lines.
    4. Injunction is an appropriate remedy to restrain certain specific acts threatened to be committed in violation of such contract.
    5. A stranger to the contract sought to be annulled, although claiming under an impairing contract, is not a necessary party.
    Allread, J.; Hurin, J., concurs; Kinder, J.. dissents.
    This action began in the court of common pleas. It is founded upon a contract for an exclusive interchange of telephone business between the plaintiff and the defendant companies. The relief sought is an injunction against the defendant company from a violation of the contract by connecting its exchange with and routing business over the lines of the Central Union Telephone Company.

       Affirming U. S. Telephone Co. v. Middlepoint Home Telephone Co., 7 N.P., (N.S.), 425.

   ' A temporary injunction was allowed in that court as prayed for and made permanent upon final hearing.

An appeal has been taken and the cause submitted here upon the pleadings and evidence, and upon elaborate and able argument of the respective counsel.

As a preliminary to a discussion of the legal principles involved it may be recited that the Middlepoint Home Telephone Company, an incorporation of Ohio, is a characteristic local telephone company with village and rural lines, a central exchange in the village of Middlepoint, Van Wert county, and toll service connection with the county seat exchange at Van Wert.

The Central Union Telephone Company is incorporated under the laws of the state of Illinois, and engaged in the operation of both local and long distance service in the various cities, towns and villages throughout the states of Ohio, Indiana and Illinois, has a pay station and at least two local telephones in the village of Middlepoint and operates in connection with and through the American Telegraph & Telephone Company, a long distance company incorporated under the laws of New York, and extending throughout the United States and into portions of Canada.

The Central Union and the American companies, for the purposes of this case, and as applied to the general territory involved, comprises the “Bell system.” This system first occupied the telephone field, both local and long distance. Opposition companies appeared competing at first through local exchange for local service, to which was added in due time toll service to nearby exchanges.

The opposition companies were usually denominated “independents,” although there was usually no connection except as they were in general opposition to the Bell system.

In the year 1898 the United States Telephone Company was incorporated under the laws of Ohio as a long distance company, and intended by its promoters to meet the needs and demands of the various so-called “independent” local companies. It obtained various similar ninety-nine year contracts from local telephone companies, upon the faith of which capital was invested in the construction of metallic circuits and other improved equipment and the extension of long distance service. The zone of influence of the United States companies comprises chiefly the state of Ohio, portions of Indiana, Michigan, Illinois, with limited service to points beyond. The service of the United States company is distributed to the public through local exchanges and pay station booths. The alliance of the United States and the various local companies through the operating contracts was, within the zone of its influence, in a general sense a rival and competitor of the Bell system.

The Middlepoint Home Telephone Company succeeded to the properties and rights of the Middlepoint Telephone Company and the Middlepoint Southern Telephone Company. Each of the former companies were in the independent system and under ninety-nine year contracts with the United States company. Upon succeeding to the rights and properties of its predecessor companies the prior contracts were abandoned or superseded by the contract of September 2d, 1904, entered into by the defendant company.

The main provisions of the existing contract are as follows:

“The second party (the- Middlepoint company) * * * agrees to transmit all business to points not now reached by it or its own line or lines of the first party (except in Van Wert county).
“The first party (the United States company) agrees to transmit all messages destined to points on the lines of the second party, not reached by its own system of wires to and over the lines owned or controlled by said second party lying within Van Wert county, Ohio.
“Said parties agree not to enter into any contract with any other person, firm, or corporation whereby any of the rights, privileges, or advantages herein acquired by either party may be impaired.
“Each party hereto agrees to receive from the other all messages destined to points within its charter or .connecting lines which may be delivered to it by the other party hereto,
“As to all messages received by tbe Middlepoint company and transmitted over the lines of the United States company the Middlepoint company shall receive twenty-five per cent, of the toll .charges, and the United States company the balance, provided the Middlepoint company shall in no ease receive more than 12% cents for any message.
“This contract shall be in force for a period of ninety-nine years from the date hereof.”

Pursuant to this and the preceding contracts the United States company constructed and has maintained long distance connections with the defendant’s exchange and has furnished long distance service with interchange of business.

The Middlepoint company, in order to secure service to points and exchanges not reached by the United States company and better long distance service to points within the territory of the United States company, contracted on November 29th, 1907, with the Central Union company for a connection of the wires of the Central Union company with the exchanges and subscribers of the Middlepoint company and a designation of the former company as toll agent of the latter at a specific per centum compensation. The stipulated connections were made December 23d, 1907, and maintained for long distance service and the routing of business until February 23d, 1908, when terminated by the restraining order of the common pleas court.

There is considerable testimony as to imperfect and inferior service at different points over the lines of the United States company and its connections. But we think that the nature of this service is not of such a character as to materially differ from that contemplated by the contract, with the United States company, nor has the proper foundation been laid for a termination of the contract upon that ground. The case rests upon the validity of the ninety-nine year contract. Independent of the obligations of the contract there is no doubt of the right of the Middlepoint company to maintain connections with and obtain the advantages of both companies. The Middlepoint company, therefore, is only restrained, if at all, by virtue of the obligations of its contract.

The Middlepoint company contends that the dual connections and long distance service afforded thereby greatly extends and improves the service to its patrons and facilitates thereby the public necessity represented by its charter and the duties it has assumed. It therefore justifies its violation of the exclusive and non-impairment covenant of its contract with the United States company upon the ground that such stipulations are ultra vires and opposed to public policy.

Section 3455, Revised Statutes, among other provisions authorizes a telephone company in respect to other lines to “join with any other company or association in conducting, leasing, owning, using or maintaining such line or lines upon such terms as may be agreed upon.”

This authority is sufficiently comprehensive to uphold an operating contract between telephone companies based upon mutual exchange of business. The terms “using” and “maintaining” so employed are not without significance and application in the present ease. To “use” another telegraph or telephone line includes the necessary physical connection and operating control for a limited time. To “maintain” another line may reasonably and fairly include not only the physical agencies necessary in operation, but may be extended to the guaranteeing or furnishing of business.

It is, however, contended by the Middlepoint company, and in our opinion correctly, that the letter of the statute conferring charter power is not the absolute test o.f ultra vires. The well established rules of public policy as reflected in the trend of decided cases and statutes in pari materia will often be en-grafted as exceptions upon a general grant of. power by the charter act. The special provisions of the enabling act may, however, reflect a legislative intent upon the subject of public policy, and if so, must be applied, although in some measure modifying the pre-existing rules.

But mere general phraseology should not be held to overturn or subvert long continued and well settled rules of public policy.

Assuming then that the contract under consideration is within the letter of the statute, we proceed to the consideration whether it is obnoxious to the established rules of public policy.

It is not without importance to note that the suit here is between the contracting parties, one seeking to sustain and the other to avoid the contract. No better statement can be given of the underlying principle upon which the jurisdiction rests in cases of this kind than that by Chief Justice Wilmot in Low v. Peers, cited in Crawford v. Wick, 18 O. S., 203:

“It is the duty of all courts of justice to keep their eyes steadily upon the interests of the public even in the administration of commutative justice, and when they find an action is founded upon a claim injurious to the public, and which has a bad tendency, to give it no countenance or assistance in foro civili.”

The contract under consideration is attacked upon the ground (1) that it is in restraint of trade and tends to stifle and restrict competition,. and (2) that it disables the contracting public service corporations in respect to certain public duties made incumbent by the charter and regulating acts.

In the consideration of the principles of public policy as affecting the validity of contracts the courts do not proceed upon abstract theory, nor allow themselves to be controlled by a narrow view of the terms employed. To vitiate a contract in such case the public welfare in a -practical sense must be injuriously affected either in fact or in logical and natural tendency.

This doctrine finds support in the opinion of Mr. Justice Harlan in the recent case of the Continental Wall Paper Co. v. Voight & Sons Company, 212 U. S., 266, as follows:

“The adjudicated cases all hold that upon the question whether the particular contract sought to be enforced arises out of an illegal transaction the courts will not be restricted to a partial statement of the facts, but the court will consider all the circumstances connected with the transaction so as to ascertain its real nature. ” •

To the same effect are, Whitwell v. The Continental Tobacco Company, 125 Fed., 460, and Philips v. Iola Cement Co., 125 Fed., 593.

It is, therefore, clear that the provisions of the contract between the telephone companies must be considered in the light of surrounding facts, its real scope, purpose and logical tendency as .affecting the public interest.

It can hardly be doubted that at the time of its execution,' and in view of the existing situation, the contract was not only beneficial to the contracting parties, but conducive to the public interest. It gave to each company a needed service and a mutual' exchange of business. The Middlepoint company secured the advantages of the highway of the United States company for long distance service for a long term of years, and of the interchange of business.

The contract in no wise affected the service of the Bell companies in their usual mode and through their chosen agencies, nor as applied to existing conditions did it tend to stifle or suppress competition. On the contrary, from a practical and business standpoint competition was thereby promoted and made more effective. Any other view sacrifices substance to mere shadow and practical judgment to abstract theory.

It must be kept in mind that the combining companies here were substantially and practically non-competitive, and herein is found the distinction between the case at bar and many of those cited.

The salt company case (35 O. S., 666) and the Standard Oil Company case (49 O. S., 137) were combinations of competing companies to control prices and production. The prices had not in fact been raised, but the legitimate tendency of the control was to artificial increase of prices. The court was not, therefore, content to accept as conclusive the one fact that prices were for the time being lowered, but took the broad view that the suppression of full competition and artificial control of prices by parties whose interests and cupidity might suggest increase had an evil tendency and should not be upheld.

Taking the lead from these cases, we are asked to accept as conclusive a partial statement to the’ effect that some individual patrons of the local company may be deprived of the extended service of the Bell company and to ignore the general conveniences arising from effective competition.

Scofield v. Railway Company, 43 O. S., 571, holds that a contract making concessions in rates to a larger shipper is an unlawful discrimination tending to create monopoly, and injure, if not destroy, the business of the small shipper, and therefore opposed to public policy.

The Fringelli case, 57 O. S., 576, adheres to and defends the common law rule sustaining contracts in partial restraint of trade as incidental to the sale of a business and good will, but holding those in general restraint of trade invalid. None of these eases, in our view, apply to combinations between noncompeting companies, where the legitimate effect and natural tendency is to strengthen their efficiency in a field of competition. The combination of non-competitive telephone companies for extension of service is brought within the general policy of the law by Section 3455, Revised Statutes, and should be upheld unless there appears some injurious feature not contemplated by the statute.

It is urged that the combination by ninety-nine year contracts between the United States company and a large number of local companies threatens monopoly as offensive as that charged against the Bell system, and ought not as a matter of public policy be sustained. It is not claimed, however, that all this might not be done by consolidation, purchase or lease, and we can not perceive why it may not also be done by operating contracts. Should the combination ever reach the stage of monopoly by crushing out its powerful rival, or by combining with it, we do not doubt the power of the courts to afford a remedy and protect the public. But we can not bring ourselves to the conclusion that it should be condemned while engaged in the struggle of competition upon remote possibilities.

We quote from Mr. Chief Justice Fuller upon somewhat similar contentions in the U. P. Ry. Co. v. Chicago, etc., Ry. Co., 163 U. S., 569:

“It will not do to hold this contract void and allow defendant to escape from the obligation it assumed on the mere suggestion that at some time in the remote future there is a possibility that the suggested contingency might arise. Should it happen, however, the courts are competent to relieve from the consequences of so radical a change of condition.”

It is, however, contended that the exclusive character of the contract and its long time are features rendering it obnoxious to public policy.

In the case of Rd. Co. v. Himrod Furnace Co., 37 O. S., 321, the furnace company had an exclusive contract with the railroad company for dockage and transportation of all its ore supplies for a period of ten years. The railroad company after a time sought to be relieved upon the ground that the contract was inconsistent with its duty to the public and necessarily discriminatory. The court declined this view and held the contract for the term of years valid. Johnson, J., in the opinion makes this observation:

“Neither the state, nor the public, who are benefitted by this public highway are complaining. Why should the corporation be allowed to absolve itself from a contract fairly made, of mutual obligation and advantage when made, supported by a valuable consideration received in great part and free from any discrimination, simply because it may prove less profitable than was anticipated.”

These observations are more or less pertinent here. The Middlepoint company and its predecessors to whose property and rights it succeeds sought or at least accepted the contracts and obtained the benefits. It not only gave but received exclusive rights. Without the advantages the contract gave, the Middle-point company would not in all probability have attracted the notice of the Bell company nor have been able to secure connection with that system.

The language of Mr. Justice Brewer on the circuit quoted in the celebrated case of the Union Pacific Ry. Co. v. the Chicago, etc., Ry. Co., supra, is appropriate:

“It is to the higher interests of all corporations and public alike that it be understood that there is a binding force in all contract obligations; that no change of interest or change of management can disturb their sanctity or break their force, but that the law which gives to corporations their rights, their capacities for large accumulations and all their faculties is potent to hold them to all their obligations so as to make right and justice the measure of all corporations as well as individual action.”

Similar views are announced in an able opinion by Wilson, J., in the case of the D. & U. Railroad Co. v. the P., C., C. & St. L. Ry. Co,, 6 C. C. (N.S.), 537 (affirmed, 67 O. S., 532).

The case of the Middlepoint company to annul its contract and be relieved therefrom appeals to the chancellor of a court of equity only by being cloaked in consideration of the public welfare.

It is argued that it was the charter right of the Middlepoint company to extend its service to long distance and vice versa as to the United States company, and that the exclusive contract disabled each from furnishing such added service. But the right extended by Section 3455, Revised Statutes, to extend lines without charter 'amendment must be read and harmonized with other express provisions of the charter law authorizing consolidation, leasing and operating contracts. The Middlepoint company, therefore, had its option to extend its lines by construction, purchase, lease, or by operating contract. Any of the modes answer the charter duty. Michigan Central Railway Co. v. the Pere Marquette Railway Co., 128 Mich., 333; the U. P. Railroad Co. v. Chicago, etc., Ry. Co., supra.

Again it is urged that the exclusive and non-impairment covenants of the contract disables the Middlepoint company from obtaining for its patrons the choice of routes and added service afforded by the dual connection. The question so urged is not free from doubt and is the subject of conflicting decisions.. Closely allied to this question is also that of discrimination in service as applied to telephone exchanges. The validity of exclusive contracts depends upon the extent to which proprietory rights are enforced in cases of public service corporations. By assuming public duties the corporation yields a portion of its proprietory dominion over its business and becomes liable to certain mandatory duties, among others to serve the public without discrimination.

The case of State, ex rel, v. Telephone Co., 36 O. S., 296, holds telephone companies to the duty of indiscriminate service to the public. This ease arose upon the refusal of the telephone company to install an instrument in the office of a railway company having a telegraph department.- The refusal was based upon the ground that the telephone company had an exclusive contract with another telegraph company and refused the railroad company its service because it had charge of a telegraph department. But it will be observed that the railroad company sought this service as one' of the public.. Its application and the service demanded ivas no different from that afforded other members of the public. The objection of the telephone company was purely personal. The applicant- was a competitor of a patron of the telephone company holding an exclusive contract. The refusal of the telephone company was therefore a discrimination among the public whom the telephone company had engaged to serve indiscriminately.'

But this rule of indiscriminate service applies only to the public. It does not apply as between public service companies desiring physical connection of plants or joint use of facilities. There is a marked distinction between primary service to the public of a public service company by its own facilities, and secondary service by yielding up its facilities and equipment to another public corporation to facilitate the latter’s service.

The primary service is guaranteed by law, while the secondary service in the absence of further legislation can only be secured by contract. U. P. Ry. Co. v. Chicago, etc., Ry. Co., supra; Wayne-Monroe Tel. Co. v. Ontario Tel. Co., 112 N. Y. S., 424; Yazoo Ry. Co. v. Searls (Miss.), 68 L. R. A., 715.

The Pullman car, express and stock yard ceses are in our opinion directly in point. St. Louis, etc., Ry. Co. v. Southern Express Co., 117 U. S., 1; A. F. & S. F. R. R. Co. v. Denver, etc., Ry. Co., 110 U. S., 607; L. & N. R. R. Co. v, West Coast Naval Stores, 198 U. S. 483; Central Stock Yards v. L. & N. R. R. Co., 192 .U. S., 568; So. Pacific Co. v. Interstate Comm. Com., 200 U. S., 536; Chicago, etc., Ry. Co. v. Pullman Co., 139 U. S., 79; Ft. Worth, etc., Ry. Co. v. Texas (Tex.), 70 L. R. A., 950.

Strong argument might be offered showing the advantage to the traveling public in having interchange of Pullman car service with connecting railroad companies-; and so also it might be argued that the connection of train service upon different lines and the joint use of terminal facilities in the populous cities and commercial centers might greatly enhance public convenience. But it is universally held that such interchange of facilities are subject only to contract and can not be enforced as mandatory or legal duties.

A careful study of the “Union Depot” cases may reflect some light in the present consideration.

In Stale, ex rel, v. the Union Depot Company, 71 O. S., 379, an exclusive grant'of cab privileges upon depot grounds was sustained. The only exception allowed was the right of passengers to arrive or depart in owned or hired conveyances. This right of the passengers was one of ingress and egress following as an incident from the transportation.

In the opinion by Crew, J., the rule of discrimination, that the railway company having admitted one cab company, must admit all, announced and maintained in the states of Indiana, Michigan, Missouri, Montana, Kentucky and New Hampshire, is disapproved, while that of the states of New York, Massachusetts, Connecticut, Georgia, Minnesota, Virginia, Rhode Island, and the Federal courts sustaining exclusive contracts, is approved. The case of Donovan v. Pennsylvania Company, 120 Fed. Rep., 215, cited with approval, contains this statement of the rule:

“ The fact that the person- who asserts the right to carry on his business for his own profit upon the trains or- within the station buildings is himself a common carrier, does not affect the question. The railroad company is a common carrier of merchandise, but is not a common carrier of common carriers of merchandise. It owes no duty to express companies to haul their ears and safes and messengers. * * * If it owed the duty it would have to treat all alike. Owing no duty it may engage or not as it pleases in'the business of serving express companies and many choose the company and name the terms acceptable to it.”

In affirming the Donovan case (199 U. S., 279) Mr. Justice Harlan, speaking of the exclusive contract, says:

“The railroad company was not bound to accord this particular privilege to the defendant simply because it had accorded a like privilege to the Parmelee Transfer Company, for it had. no contractual relations with the defendant and owed them, as hackman, no duty to aid them in their special calling.”

See, also, State, ex rel Cairo Tel. Co. v. Western Union Tel. Co., 166 Ill., 15; Wayne-Monroe Tel. Co. v. Ontario Tel. Co., supra; People, ex rel, v. Hudson R. Tel. Co., 29 Abb. N. C., 478; Central New York Tel. & Tel. Co. v. Averill, 129 App. Div., 752.

In State, ex rel, v. Cadwallader (Ind.), 87 N. E., 644, there is an interesting and able opinion by Meyers, J., holding the telephone company, like railway and other public service corporations, can not be compelled to furnish through service for an-, other service company by physical connection of plants. But following the Indiana doctrine as established in the “depot” cases, held that having opened its exchange to one long distance company, it was bound to afford equal service to all.

This opinion of Anderson, J., of the federal court in Roland, etc., v. —, also follows the local doctrine of the state of Indiana.

It is, however, contended that Section 3462, Revised Statutes, requiring interchange of despatches between telegraph companies, made applicable to telephone companies by Section 3471, Revised Statutes, from the nature of the telephone business extends to physical connection and joint use of wires and apparatus.

Section 3462, Revised Statutes, prescribes the mandatory duties imposed by law. This section must be read with Section 3455 prescribing the powers of voluntary contract. The former includes as a mandatory duty the interchange of despatches while the latter includes as a right to be obtained by contract the “use” of other lines.

Section 3462 as applied to telegraph companies does not contemplate physical connection and joint use of wires, and a more extended construction ought not to be applied, to telephone companies. Despatches may be transmitted by telephone as by telegraph. But the use of through wires is not contemplated by the statute as to either telephone or telegraph lines. To discriminate and hold that telegraph despatches are only required to be delivered from one line to another in relay, while telephone despatches comprehend verbal .messages to be carried through by the physical connection and joint use of different lines can not reasonably be sustained.

We have examined with much care the case of the U. S. Telephone Co. v. the C. U. Telephone Co., 171 Fed., 130, and regret our inability to agree with the learned judge, for whose opinion we have great respect and from whose conclusion we hesitate to dissent. The following proposition is laid down in the syllabus:

“Conceding that a local company is not bound to permit any long distance connection of its exchange, yet, when it extends that right to one company, it is under legal duty as a public service corporation to extend the same rights to others. ’’

We are unable to reconcile this proposition of the syllabus and the portion of the opinion supporting it with the rule laid down in the Union Depot case in this state.

It is urged that large public conveniences, with slight' inconvenience to the telephone company, would flow from joint connection and joint use of wires; but this argument should be more properly addressed to the General Assembly upon the subject of amending the sections of the statute referred to by taking the subject of joint use of lines from the contract section and adding it to the list of mandatory duties. The stipulations as to rates and territory are urged as affecting the validity of the contract. But in our view the rates can not, under the contract, be fixed arbitrarily by the United States company. They must be reasonable, as in case of any other contract not express as to rates. The contracts between the former telephone companies and the United States company are not before the court for adjudication. They have been superseded, and there is no question of good faith between present contracting parties raised.

The exception as to Van Wert county and the provision as to division of- business at certain points with other independent companies are fairly incidental to the contract and do not violate any principle of public policy.

It is contended, however, that the toll service connection with the Van Wert exchange and the exception of Van Wert county from the contract creates a non-competitive zone for toll service for long distance business. We are of the opinion, however, that the Van Wert toll extension and the reservation of a wider local area does not of necessity constitute the U. S. and the Middlepoint companies competitive.

Objection is taken to the remedy by injunction. This objection is argued with much force and has the sanction of the learned judge in the case of the U. S. Telephone Co. v. the C. U. Telephone Co., supra. The case of the Union Pacific Ry. Co. v. Chicago, etc., Ry. Co., supra, is explicit in support of the jurisdiction here invoked, and we feel bound to follow that authority. The authority of Steinau v. the Gas Co., 48 O. S., 324, is to the effect that a general order of specific performance should not be granted where it involves a general and continued oversight of an intricate business. This authority restrains the court from the issuing of such a general order as would amount in effect to specific performance of this contract throughout the length of its existence, but does not prevent the' court from granting an injunction from the commission of certain specific acts now threatened. This evidently was the view of the court in the D. & U. Railroad Co. v. P., C., C. & St. L. Ry. Co., although the point does not appear to have been raised in the case.

Upon the subject of parties the ease is not identical with that before Judge Taylor. There the injunction was sought against the intermeddling company; here the relief is sought against the party making the original contract and now attempting to avoid it. It is sufficient that the contracting party be before the court, and it is not necessary, in our opinion, to go further and add those who contemplate making impairing contracts.

The existing contract between the two telephone companies in this case does not by express terms or by necessary inference prevent the Middlepoint company from securing an extension of its service through a company other than the United States company to points not within the territory of the latter company, so long as in not doing so it does not impair the existing contract. We do not, therefore, decide the effect of such a contract where the connection is made and the scope of the contract is such as not to amount to an impairment of the contract under consideration. The present contract of the Central Union company applies to all business with the Middlepoint company or any subscriber of the Middlepoint company who desires to send over the lines of the Central Union, and contains an explicit stipulation that the Middlepoint company will make connection between the lines of the subscribers to its exchange or exchanges and the toll lines of the Central Union company, so that the contract is directly an impairment of the existing contract with the United States company. This is confirmed amply by the testimony showing that during the two months the Central Union toll contract was in éxistence, substantially all the business routed over the Central Union lines was business that would under the contract have been entitled to go over the United States lines.

It follows, therefore, that an injunction should be made perpetual against the defendant company from making the connections with the Central Union company under the present contract, and from routing business over that company to points within the territory reached by the United States company lines.

Kinder, J.,

dissenting,

I am unable to give assent to the reasoning, or concur in the judgment in this case.

I am content with the statement of the case contained in the majority opinion, except that it omits the fact that the Middle-point Telephone Company and Middlepoint Southern Telephone Company were, at-the time of the contracts made by the United States Telephone Company with each, engaged in transacting a long distance or toll service business, limited, however, to a few points outside of Van Wert county, and the assumption that the contracts with these two companies were abandoned or superseded by the contract made with the Middlepoint Home Telephone Company seems to be unwarranted; for it is insisted by the plaintiff in this case that the contracts referred to which are pled in the petition and introduced in evidence are still in force and binding upon the Middlepoint Home Telephone Company and are now effective to fix and determine the rights of the parties to this action. The assumption that the contracts under consideration, including the exclusive and restrictive provisions thereof, are within the letter of Section 3455 of the Revised Statutes, is in my judgment unwarranted either by the phraseology of that section or by the history of the legislation of which that section forms a part. It is important to note and remember that a telephone company in this state may construct, own, use and maintain any telephone lines, whether the same are provided for specifically in its charter or not, and whether such lines are wholly within or partly beyond the limits of this state; hence the fact that the plaintiff is chartered as a long distance or toll line company and the defendant as a so-called local telephone company, upon which some stress is laid in the majority opinion, is of little moment and certainly not a controlling factor in the case. There was in fact limited competition between these companies when the contracts “A” and “B” were entered into which was withdrawn and these contracts with contract “C” are relied upon to prevent competition either by the present arrangement with the Bell company or by the construction, or lease of other lines, for all messages are required to be sent over the lines of the plaintiff company.

I dissent from the judgment in this case:

First. Because the contracts set out in the petition in so far as the exclusive and restrictive provisions are concerned tend to prevent competition, are -in restraint of trade and are therefore void as against the public policy of the state as declared by legislative enactment and the decisions of our Supreme Court extending from its earliest history to the present time, and I deny that the depot case in the 71st Ohio State forms any exception to or makes any modification of the uniform course of the decisions of' our court of last resort. The majority opinion is based upon the assumed fact that the first result of the entering into of the contracts under consideration and a large number of contracts of like effect by the United States Telephone Company 'with so-called local companies has' been to furnish competition to the Bell system, but realizing the general tendency of such contracts suggests that, “should the combination ever reach the stage' of monopoly by crushing out its powerful rival or by combining with it, we do not doubt the power of the court to afford a remedy and protect the public, but we can not bring ourselves to the conclusion that it should be condemned while engaged in the struggle of competition upon remote possibilities.” I do not understand the public policy of the state to be that it will permit and recognize the validity of contracts so long as their results are favorable and declare them invalid and void only after harmful results have accrued, but that the policy of the state is to test the contracts by .their tendency to restrain trade and so to monopoly and by declaring such as are obnoxious void to make impossible the creation of a monopoly dangerous to the state and harmful to its citizens.

Second. I deny the right of a public service corporation organized under the laws of this state by contract to bargain away its power to serve, or to absolve-itself from the duty of serving, the public to the full measure of the public need, and the public policy of the state requires such a corporation to be free to meet the conditions as they change from time to time.

Third. The statute which gives to telephone companies the rights'and benefits conferred by the chapter ’relating to magnetic telegraph companies subjects them to the same burdens placed upon such companies and among others the duty to forward messages. This duty in my judgment is not met by receiving the human voice over one line and by sending it by another human voice over another line; it is met only by an opportunity for conversation by a direct communication between two persons, as contemplated by the telephone, and I am therefore strongly of the opinion that for the -purposes of carrying out the provisions of this statute one telephone company can compel a physical connection with another. But it is not necessary to go to this extent in this case, for it must be remembered that w-hen -this action was begun and for two months prior thereto -& physical connection had been made between the Bell Company "and the Middlepoint Home Telephone Company and these two companies' were forwarding messages each for the other in strict compliance with the requirements of the statute, and the decree in this case will operate to prevent two willing companies from performing a duty enjoined upon them by law.

Fourth. The contracts in this case in their exclusive and restrictive provisions apply only to business and points which can be reached over the United States Telephone Company, but the decree in this case prevents physical connection of any kind and thereby deprives the Middlepoint Home Telephone Company from arranging for the benefit of its subscribers, for messages to points not reached by the United States Telephone Company. Clearly even if the contracts under consideration are valid and enforcible they should not be enforced beyond the letter of the contract and certainly not beyond what is essential to the protection of the company seeking the enforcement of the contracts.


text:
    ACTION ON A CONTRACT OF EMPLOYMENT.
    Circuit Court of Hamilton County.
    National Starch Company v. Hugo Gruner.
    Decided, January 29, 1910.

      Corporations — Contract for Employment — Action for Recovery for Breach of — Authority of President.

    The president of a corporation can not bind the company by the admission of a stipulation into an express contract of -which there is no other evidence.

      Ernst, Cassatt & Cottle, for plaintiff in error.

      Adler, Kelley & Hauck, contra.
    Gifeen, P. J.; Smith, J., and Swing, J., concur.
   The plaintiff in the original action, Hugo Gruner, pleaded an express contract of employment for the entire year of 1901 and an implied contract for the following year. The only evidence of the express contract is a letter dated December 31,. 1900, signed by the president of the company, notifying plaintiff “you are hereby reappointed manager of the George Fox factory, and your duties will bé the same as under the old company. ’ ’ '

It was sought at the trial to show the durátion of the employment by an admission of the president made three months later. This was clearly incompetent. The president of a corporation can not bind the company by an admission of a stipulation in an express contract of which there is no other evidence.

What the plaintiff now relies on is the- fact that he was employed by the predecessor of the defendant at a salary of $2,500 per annum, and that he continued in its employment for a longer period than one year.

In the first place this is evidence, not of an express contract as pleaded, but of an implied contract; and on the other hand the rate of compensation per year by one company is not evidence of a contract for an entire year made with its successor in business.

Motion for rehearing will therefore be overruled.


text:
    PENALTIES ON UNPAID ASSESSMENTS.
    Circuit Court of Lucas County.
    State, ex rel Acklin, v. Charles Sanzenbacher, Auditor, et al.
    Decided, February 11, 1910.

      Assessments Against Land — Penalty Gan Not he Attached for Delinquent Payment — Section 2G08.

    There is no statutory provision for imposing a penalty upon unpaid assessments against real property for public improvements, and mandamus will -lie to compel a county treasurer to accept such assessments without the penalty added.
    Kjnkade, J.; Parker, J., and Wildman, J., concur.
   This is an action in mandamus brought in this court .to require the county treasurer to accept the assessments that are due without collecting the penalty on the assessment. There is no occasion to review all the statutes that were mentioned by counsel here in argument. We have gone over the situation very thoroughly, and we are satisfied there is no authority in the statutes 'of Ohio for. affixing the fifteen per. cent, on the-assessments the .same as it is fixed upon taxes. The statute, General Code, 2608 (Revised Statutes, 1053), provides that such penalty must be placed upon deliquent taxes; must be audited, I should say, on delinquent taxes. We find no statute so directing as to assessments, and for that reason we think the placing of it there is not warranted, and the relief prayed for here must be granted. We do not find any authority, I should have said, for the placing of any penalties on .assessments such as are placed for taxes.


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    TO ENFORCE LIABILITY OF SURETIES.
    Circuit Court o.f Hamilton County.
    Henry Gerke et al v. The George Wiedemann Brewing Co.
    Decided, July, 1900.

      Sureties — Liability of, Limited to Exact Letters of the Bond — Guaranty of Payment for Goods Sold on Credit — Sureties Released on Account of Violation by the Seller of Provisions of the Bond.

    Sureties on a bond securing payment for goods sold on credit are released, where contrary to the terms of the bond payment for the first car load was not required when the third car was ordered and settlement was not insisted on as provided for on a specified date and on the first day of each succeeding month thereafter but time for payment was extended by permitting the amount due to increase from month to month.

      Milton Sater, for plaintiffs in error.

      Louis J. Dolle, for the brewing company.
    Swing, J.; Giffen, J., and Smith (Jas. M.), J., concur.
   The brewing company entered into a contract with Henry Gerke in which it was agreed that said brewing company should furnish to said Gerke beer in ear load lots in wood and beer in bottles to be sold by said Gerke at Marietta, Ohio. Said contract was to begin February 24, 1896, and to continue for one year. Either party was given the right to terminate the contract on thirty days notice, and any material violation of the agreement by either party was to render the agreement null and void. It was provided in the contract that “said company will furnish said Gerke the first two car loads of beer on credit, for which said Gerke shall execute a bond of one thousand dollars ($1,000), and when he orders the third car of beer he shall pay for the first car of beer he received; all settlements thereafter are to be made on the first day of each month commencing May 1st, 1896, at which time said Gerke is to make payments to said company for the beer that may be ordered by or delivered to him. ’ ’

On said 24th day of February, 1896, said Gerke, together with his wife, Maria Gerke, and B. Meyer, defendants herein, executed and delivered to the brewing company their bond for $1,000. The condition of this bond was to this effect:

‘ ‘ That whereas the above named ITenry. Gerke has this day entered into and made a contract in writing with the said George Wiedemann Brewing Company for the purchase of beer in wood and bottles by the car load lots from the said George Wiedemann Brewing Company for a period of four years or until said parties agree to discontinue as set forth in said agreement. Said agreement is in writing and bears even date herewith and which is here referred to and made a part hereof. Now therefore, if the said Henry Gerke shall well and truly perform said contract and shall fully comply with and carry out each and every provision thereof and shall pay for all of said beer purchased * * * then this bond shall be null and.void.”

Suit was brought by the brewing company against said Henry Gerke, Maria Gerke and B. Meyer. For a first cause of action the plaintiff sets out a claim against Henry Gerke on the contract referred to, and for a second cause of action a claim against all of the defendants on the bond referred to.- Copies of the contract and bond are annexed to the petition. Henry. Gerke filed no answer and judgment by default was awarded against him on April 2, 1897, for the sum of $1,599.49, the amount claimed to be due. Maria Gerke and B. Meyer filed an answer in which they admitted the execution of the contract and bond as set out in the petition, but alleged that they were released from the obligations of the bond by reason of the fact that the said Henry Gerke was not required to pay for the first ear load of beer for which he was given credit, nor did he pay for the first ear load of beer when he ordered the third car; that no settlements were made on the first of every month as required by the contract and bond; that .said company gave said Plenry Gerke credit for more than two ears of beer a.t one time, and that a settlement was not made on May 1st, and each and every month thereafter during the continuance of said contract; and that he did not pay on the first of every month for the beer delivered to him. This answer also contained a' general denial as to all matters not admitted.

The plaintiff filed a demurrer to all that portion of defendants’ answer except that which set up a denial, and this demurrer the court sustained. This demurrer was sustained February 20, 1897. On December 29, 1898, the case was heard on the pleadings and the evidence by the court and judgment rendered against said Maria Gerke and B. Meyer for $838.

Error is prosecuted in this court to this judgment.

The evidence shows that the company shipped to Henry Gerke on February 24, 1896, beer in wood to value of $187.50 and beer in glass $115; on March 13, $125 in wood and $166.50 in bottles or glass; April 8 "and 25, $131.25 each time in wood and $166.50 and $169.90 in glass. Credit was given Gerke for cash of $400 and $31.25 allowance up to April 24,. 1896; balance due the company on May 1st was $867.65. This amount was not paid to the brewing company on May 1st as provided in the contract. Neither was any settlement made between the parties. The brewing company continued to furnish Gerke beer in wood and in bottles until the 28th day of August of said year, .at which time the amount due the company from said Gerke was $1,561.95. No settlements were made at any time between the parties, but beer was shipped to said Gerke by said company during all this time and payments in cash were made during each month by said Gerke on said account; that at the end of each month the amount due was greater than of the previous month.

By reason of these admitted facts were the sureties on the bond released? We are of the opinion that they were. The general rule of the liability of sureties on bonds is thus stated by Reed, J., in the case of the State v. Medary, 17 O., 565:

“The bond speaks for itself, and the law is that it shall so speak, and that the liability of the sureties is limited to the exact letter of the bond. Sureties stand upon the words of the bond, and if the words will not make them liable nothing can. There is no construction, no equity against sureties. If a bond can not have effect according to its exact words the law does not authorize the court to give it effect in some other way in order that it may prevail. ’ ’

This rule has frequently been followed by our Supreme Court. In not requiring Gerke to pay for the first car of beer when the third was ordered, and in not requiring settlements on May 1st and the first of each succeeding month, and in extending time of payments as was done by allowing the account to accumulate each month, was a material violation of the terms of the contract and bond, and necessarily worked a.n injury to the sureties on the bond.

Judgment reversed and cause remanded for further proceedings.


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    JUDGMENT OF DISBARMENT SUSPENDED.
    Circuit Court of Hamilton County.
    In re Disbarment of Charles S. Sparks.
    Decided, March 14, 1910.

      Disbarment — Purpose of a Judgment of Suspension of the Judgment Proper, When — Reclamation of Offender.

    In a proceeding for disbarment, punishment is not the sole end to be attained, but also protection 'of the public and the reformation of the accused; and where it appears that the accused now acknowledges the wrong committed and since the suspension has conducted himself in a manner above criticism and has inspired in the minds of his fellow attorneys the belief that he has been sufficiently punished, the further execution of the judgment will be suspended and the accused restored to the practice of his profession.
    Smith, J.; Giffen, P. J., and Swing, J., concur.
   At a former term of this court, to-wit, February 26, 1909, Charles S. Sparks was found guilty of unprofessional conduct as an attorney at law and suspended from practice for the period of three years.

The case is again before the court upon the application of said attorney for a modification of said judgment in that he be restored to the practice of law.

In his application he acknowledges the wrong that he committed, and files with the court a petition signed by numerous citizens and attorneys at this bar, setting out that since the judgment of suspension was ordered said Sparks has conducted himself uprightly and that in their opinion he has been sufficiently punished for the offense of which he was adjudged guilty.

The evidence upon the hearing of the application disclosed that the committee heretofore appointed to prosecute the charges against him had been notified of the filing of the application and the time of its hearing.

This appears, therefore, to be a matter left to a great extent to the sound discretion of the court. In proceedings of this'kind it is evident that punishment is not the sole end to be attained, but rather protection, the main object of the punishment inflicted being the reformation of the party punished.

Since the suspension of the applicant the court is of the opinion that he has conducted himself in such a way as indicates that he fully realizes the gravity of his offense, and we believe that if restored to practice he will be very careful not to repeat the same.

"Admission as an attorney is not attained without years of labor and study. The office which the party thus acquires is one of value and often becomes a source of great honor and emolument to its possessor. To most persons who enter the profession it is the means of support to themselves and their families. To deprive one of an office of this character would often be to decree poverty to himself and destruction to his family.” Bradley v. Fisher, 13 Wallace, 355; Weeks on Attorneys, 158-174.

Under the evidence adduced at the hearing of the application, the end being the reclamation of the offender, we are of the opinion that the further execution of the judgment heretofore rendered should be suspended, and the applicant restored to the practice of his profession.


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    PROSECUTION UNDER THE ROSE LAW.
    Circuit Court of Wood County.
    George Carmack v. The State of Ohio and George Rogers v. The State of Ohio.

    Decided, April 13, 1910.

      Liquor Laws — Complaint Under the Rose Law — Need Not Allege that the Case Does Not .Fall Within the Exceptions — Continuance of Trial More Than Thirty Days Within the Discretion of the Court —Good Faith in the Matter of Sales for Pharmaceutical Purposes —Sections 6108 et seq. and IS&iS.

    1. In a prosecution for violation of the county local option law making the sale of intoxicating liquors unlawful, it is not necessary that the complaint allege that the sale was not within the exceptions ■mentioned in the statute, nor is it necessary to prove it; such matter is defense and must he established as such.
    2. In a prosecution which comes within the principle of Section 13243., a discretion is given the trial judge to continue the case beyond the thirtieth day, and jurisdiction of the case is not lost by so doing.
    3. In order to bring a sale of liquor in “dry” territory within the exception making a sale fc.r pharmaceutical purposes lawful, it must appear that the transaction was in good faith on the part of the seller, and the mere keeping of a book containing the record, signed by the purchaser, that the liquor in question was to be used for pharmaceutical purposes, does not relieve the- seller from compliance with the requirement of good faith.

      B. F. James, for plaintiffs in error.

      N. R. Harrington and William Dunipace, Prosecuting Attorney, contra.
    Wildman, J. (orally); ’Parker, J., and Kinkead, J., concur.
    Error to Wood Common Pleas Court.

       Motion for leave to tile petition in error in the Supreme Court overruled, June 14, 1910.

   In both of these cases, similar questions are presented. The two plaintiffs in error were prosecuted for an alleged violation of the liquor or local option law under which this county has voted to make the selling of intoxicating liquors as a beverage unlawful.

Numerous objections to the judgments of conviction in the pro-, bate court have been presented, -both in the common pleas court to which the cases were brought upon error, and subsequently in this court.

The position is taken by these plaintiffs in error, among other contentions, that the complaint against them is insufficient in that it charges a violation of the prohibitory liquor law as applied to Wood county, without stating that the defendants did not come within one of the exceptions mentioned in the statute, especially the exception that applies to the sale of liquor for pharmaceutical purposes.

The affidavits of complaint upon which the cases were tried before the probate judge were attacked both by plea in abatement and by demurrer, and this question would properly be presented by demurrer, but it has been disposed of in another case decided by this court in Lucas county in 1907, or rather in three cases presented at the same time, viz.: the eases of Olte v. State, Krupp v. State, and Noller v. State, 29 O. C. C., 203; 9 C.C.(N.S.), 293.

Part of the syllabus that touches this particular matter is on page 204, seventh paragraph, and reads:

“Negative averments and proof are not necessary in prosecutions for violations of a statute under provisos or exceptions not included in the definition of the offense. Hence no proof is required of such negative averments in an affidavit for unlawfully selling intoxicating liquors in a residence district where the selling of intoxicating liquor is unlawful under the Jones district local option law”; and the principle is the same.

On page 215 of the opinion the matter is more fully discussed, but I will not stop to read it. Leave to file petitions in error in these cases was refused by the Supreme Court.

It will be noted that the holding is, that it is not incumbent upon the state, either to allege, or to prove that the sales were not made for pharmaceutical purposes. Indeed, the principle is well settled by authority, not only in this state but elsewhere, that where negative matters of this kind are not included in the definition of the offense and where certain persons or certain classes of cases are excepted from the operation of the act, it becomes a matter of defense for the defendant to allege and show that the transaction comes within such classes of cases, or that he is one of the persons exempted by the act.

Plaintiffs in error further contend that jurisdiction to try the eases was lost in the trial court by non-compliance with Sec. 4364-30acZ, reading as follows:

‘ ‘ When a prosecution is commenced before a court or magistrate for the violation of a law prohibiting the sale of intoxicating liquors as a beverage, and the liquors seized by virtue thereof are to be used as evidence in such trial, such trial must take place in not more than thirty days.”

This statute it will be noted is not applicable except where liquors are seized and are to be used as evidence in such trial. In the case before us the liquor had been obtained in some way and possibly the principle of the statute would apply, but the statute provides further:

“If at the time appointed for such trial, the returns have not been properly made, or for other sufficient cause, the trial is postponed to a further date, it shall not be continued more than fifteen days beyond such thirty days.”

This prosecution was begun, if my memory serves me right, upon the ninth of November, 1909, and upon the application of the defendants in the two cases, continuances were had until December fourteenth. On the fourteenth of December additional continuances were had until the twentieth of December upon application of the state, but the first continuances were had upon the application of the defendants, as stated in' the record. The cases in fact began upon the twentieth, forty-one days after complaint was filed — were tried, and motions for new trials were made in the absence of trial court, and the cases went to judgment upon the twenty-sixth. The statute does not provide that the length of time before judgment after the beginning of the trial shall not be more than the forty-five days.

We do not understand that the statute contemplates a loss of jurisdiction by the court after the trial is begun, if it is begun in proper time. No exception was taken to the adjournment upon the application of the state — at least no exception appears in the record and we are not disposed to think the court' lost jurisdiction upon the facts, so far as they are disclosed by this record.

In considering whether the convictions were justified by the evidence, that which I have said about the negativing of the guilt of the defendants by showing that the sales were made for pharmaceutical purposes, applies as well to the trials as to the charges in the complaints; the burden was- upon the defendants to show that the sales were made for pharmaceutical purposes so as to bring the cases within the provisions of the act which would exonerate them from criminal liability.

It is true that the names of the buyers appear upon a register or book which is required to be kept by the statute, and opposite it is the word “pharmaceutical” placed there apparantly by a rubber stamp in a column where the word is placed as to other persons to whom sales were made, but there is evidence in the case hearing upon the question as to how sales were made and for what purpose, and upon this evidence it sufficiently appears, we think, to justify the magistrate in finding .that there was no real intention to use the liquor so -procured for pharmaceutical purposes. In fact it is testified to by one of the witnesses at least, that he got the liquors to drink, and he does not at any place in his' testimony indicate that he was buying them in fact for pharmaceutical purposes. He signs the book; the seller seems to have thought that the mere keeping of the book and putting down an ostensible purpose for which the sale was made was all that was required — that is, if they were selling for the ostensible purpose of being used for pharmaceutical purposes, then there would be no violation of the law. We think this is not contemplated -by the statute; the sales must have been made in good faith'for pharmaceutical purposes, whether or not the purchaser was acting in good faith.

We do not feel called upon to discuss the question whether the bona fide belief of the seller if it had existed, that he was selling for pharmaceutical purposes, would exonerate him from liability or not. We think at least that he would have no legal right to sell unless he so believed, and the evidence, we think, is such that the probate judge could very well conclude that the whole transaction was a mere idle form so far as the claim was made that the liquors were to be used for pharmaceutical purposes and that it was simply done by the seller to evade the law. The burden being upon the defendants to show this defense— and not for the state to disprove it — we can not say that the finding of the trial court was against the weight of the evidence.

It is claimed that a new trial should have been granted, because of newly-discovered evidence, upon a motion'which was filed upon that ground. We think that the newly-discovered evidence, as disclosed, might affect to some extent the credibility of witnesses, but it did not go directly to the issue involved in the ease; and even it it had, our Supreme Court has many times laid down the rule that new trials will not be granted upon newly-discovered evidence unless the effect will be to require a different verdict from that which was rendered, and we feel that the court below would not have been justified in granting a new trial in this case upon that ground. The evidence to be sure, if it had been in possession of the defendants and had been offered upon the trial, might have induced the probate judge to form a different conclusion, but we can not say that it would necessarily have done so or that its legitimate effect would have been to require him to forra a different conclusion, because he might still from all the circumstances have been satisfied that the defendants had violated the law and that these men should be convicted. There are some other points in the cases to which I might refer if I had time, but they are not of 'any special importance, and it is sufficient to say that we find no error in the records such as would justify any reversal of the findings and' judgments of conviction, and the judgments will'be affirmed.