author: GIFFEIÍ, J. SWING, J.,

text:
    STREET RAILWAYS.
    [Butler (1st) Circuit Court,
    1902.]
    Swing, Giffen and Jelke, JJ.
    Parrish et al. v. Hamilton, Glendale & Cincinnati Traction Company.
    1. Purchase oe Consents Required by Sec. 3439, Rev. Stat.
    The purchase of the consents required by Sec. 3439, Rev. Stat., providing that the written consents of more than half the property abutting a street along which the construction of a street railway is proposed, must be obtained as a condition precedent to the grant thereof by the council of a municipal corporation, is unlawful. (Swing, J., dissents.)
    2. Street Railway not an Increased Servitude Requiring Compensation
    The building of a street railroad in a public street, in the absence of any interference with the access to or egress from abutting property, is not an increased servitude constituting an appropriation of private property for which a person consenting to the construction thereof is entitled to compensation.
    3. Consent may be Withdrawn Beeore Passage oe Ordinance.
    The consent of an abutting owner to the construction of a street railway upon a street of a municipal corporation required by Sec. 3439, Rev. Stat., as a prerequisite to a grant therefor by the council thereof may be withdrawn at any time before the filial passage of the ordinance.
    4. Street Railway Cannot Plead Estoppel Against Dbeects;
    Inasmuch as a street railway company in proceeding to secure the consents of abutting owners as required by Sec. 3439, Rev. Stat., and constructing its roads, is presumed to know the law, and must be considered as knowing the defects of its grant, it cannot plead estoppel.
    6. One Company Cannot Straddle Tracks oe Another.
    A street railway company having been granted the right to construct its tracks in a street already occupied by another company under a prior grant, has no right to interfere with its franchise or vested rights by undertaking to straddle its tracks. Hamilton St. Ry. Co. v. Electric Transit Co., 3 Circ. Dec. 158 (5 R. 319), followed.

      Shepherd & Shaffer, for plaintiff,
    cited:
    On motion to strike out:
    1. The statute expressly prohibits a street railroad to be constructed without the consent of a majority in interest of the owners of property on the street. Roberts v. Easton, 19 Ohio St. 78, 86.
    2. The consent of abutting property owners inures to the lowest bidder, by whomsoever obtained. Knorr v. Miller, 3 Circ. Dec. 297 (5 R. 609).
    3. Obtaining consents by purchase. Makemson v. Kauffman, 35 Ohio St. 444, 445; Doane v. Chicago City Ry. Co., 45 N. E. Rep. 507 [160 Ill. 22; 35 E. R. A. 588]; Pingry v. Washburn, 1 Aik. (Vt.) 264 [15 Am. Dec. 676]; Greenhood Pub. Policy, rules 316, 320; Marshall v. Railway Co., 57 U. S. 314; Einess v. Hesing, 44 Ill. 113 [92 Am. Dec. 153]; Trist v. Child, 88 U. S. 441; 3 Am. & Eng. Enc. Law, (1 ed.) 877, 878 and notes; Brown v. Brown, 34 Barbour 533; Oscanyan v. Arms Co., 103 U. S. 261; Howard v. First Independent Church, 18 Md. 451; Maguire v. Smock, 42 Ind. 1; Chicago, M. & St. P. Ry. v. Shea, 25 N. W. Rep. 901 [67 la. 678]; State v. Elizabeth, 35 N. J. E. 351; Smith v. Applegate, 23 N. J. E- 352; Bestor v. Waithen, 60 Ill. 138; Marsh v. Railway Co., 64 Ill. 414 [16 Am. Rep. 564]; St. Louis, J. & C. R. R. v. Mathers, 71 Ill. 592 [22 Am. Rep. 122]; 104 Ill. 257; Dean v. Clark, 30 N. Y. Supp. 45 [80 Hun. 80]; 19 Am. & Eng. Enc. of Law, (1 ed.) 565; 9 Ib. (1 ed.) 881; Jacobs v. Tobiason, 21 N. W. Rep. 590 [65 la. 245; 54 Am. Rep. 9].
    H. R. Probasco, for plaintiff,
    cited.
    I. Right to object that property owners’ consents were not obtained. Mt. Auburn Railway v. Neare, 54 Ohio St. 154 [42 N. E. Rep. 768]; Sandfleet v. Toledo, 8 Circ. Dec. 711 (10 R. 474); Neare v. Cable Ry. Co. 11 Re. 782 (29 Bull. 171, 173); Simmons v. Toledo, 3 Circ. Dec-64 (5 R. 125,145); Harrison v. Railway Co., 9 Re. 805 (17 Bull. 265, 276); Sommers v. Railway Co., 6 Re. 887 (8 Am. Law Rec. 612); Sec. 2502, Rev. St.
    2. Necessary consents a jurisdictional fact. Roberts v. Easton, 19 Ohio St. 78; Booth Street Railways, Sec. 4; Simmons v. Toledo, 4 Circ. Dec. 69 (8 R. 542); Tone v. Columbus, 1 Circ. Dec. 168 (1 R. 307, 316); Covington v. Nelson, 35 Ind. 532, 536.
    3. The rights of abutting property holders to consent is not a property right, but is a personal privilege, and is merely “ permitting the streets to be used for street railroads.” Roberts v. Easton, 19 Ohio St. 86; Simmon v. Toledo, 4 Circ. Dec. 69 (8 R. 542); Tone v. Columbus, 39 Ohio St. 281, 310 [48 Am. Rep. 438]; Rapp v. Railroad Co., 9 Re. '302 (12 Bull. 119,120); Knorr v. Miller, 11 Re. 165 (25 Bull. 128, 131).

      4. The construction and operation of a street railway is not an ad ditional servitude or burden upon the property. Street Railway v. Cumminsville, 14 Ohio St. 523; Booth Street Railways, Secs. 80, 82, 88, and cases cited in note 1 to Sec. 88; Joyce Elec. Eaw, Secs. 295, 334, 336; Elliott Roads & Streets, p. 558, and cases cited in note 3.
    5. Withdrawal of consent. Booth Street Railways, Sec. 22; Joyce Elec. Law, Sec. 355; Hutchinson v. Belmar, 39 Atl. Rep. 643 [61 N. J. L. 443] ; Hutchinson v. Belmar, 45 Atl. Rep. 1092 [62 N. J. L- 450] ; Hays v. Jones, 27 Ohio St. 218; Sandfleet v. Toledo, 8 Circ. Dec. 711 (10 R. 460); Simmons v. Toledo, 4 Circ. Dec. 69 (8 R. 535, 546, 548); Mc-Gonnigle v. Arthur, 27 Ohio St. 251, 256; State v. City of Elizabeth, 35 N. J. L- 351, 357; Bullock v. W. C. T. Co., 23 Chicago Legal News 147; 33 Am. & Eng. Enc. Law, 972; Tone v. Columbus, 1 Circ. Dec. 168 (1 R. 305, 307, 318).
    6. The public, the abutting property owners, and all persons, had the right to assume that the law was being obeyed instead of violated by the public authorities. Tone v. Columbus 1 Circ. Dec. 168 (1 R. 305), quoting Cooley, J., in Motz v. Detroit, 18 Mich. 495; Steekert v. East Saginaw 22 Mich. 104.
    7. Mayor’s veto. Dillon Munic. Corp. (3 ed.), Sec. 309 n.; 28 Am. & Eng. Enc. of Law, (1 ed.) 447, 448; Burdsall v. Carrick, 3 Nev. 154; 23 Am. & Eng. Enc. Law, (1 ed) 190, and cases cited in note 2, and pages 213 and 124; Constitution of the United States, Art. 1, Sec. 7, Clause 2; Biggs v. McBride, 21 Pac. Rep. 878 [17 Ore. 640 and 645; 5 L. R. A. 115] ; Cooley Const. Limit. (6 ed.), pp. 153, 155 ; 50 Tenn., 3 Heiskell, 442, 444.
    8. The consent of abutting property owners, by whomsoever obtained, inures to the lowest bidder. State v. Bell, 34 Ohio St. 194; Knorr v. Miller, 3 Circ. Dec. 297 (5 R. 609) ; Knorr v. Miller, 11 Re. 165, (25 Bull. 128, 130). '
    9. We contend that the “consents,” the “voices,” the “votes,” the “ assents ” could not be found upon valuable consideration, and their obtention by purchase rendered them absolutely void. Doane v. Railway Co., 45 N. E. Rep, 507 [160 Ill. 22 ; 35 L. R. A. 588] ; State v.' City of Elizabeth, 35 N. J. L. 351, 357 ; Maguire v. Smock, 42 Ind. 1; Howard v. F. I. Church, 18 Md. 451; Mabemson v. Kauffman, 35 Ohio St. 444, 445; Smith v. Applegate, 34 N. J. L- 353, 358; Chicago, M. & St. P. Ry. v. Shea, 25 N. W. Rep. 901 [67 la. 728, 735] ; Jacobs v. Tobia-son, 21 N. W. Rep. 590 [65 la. 245, 247].
    10. Agreements which have apparent tendency to induce a public officer to act partially are void. Wald’s Pollock Contracts (1885 ed.), pp. 283, 285; Woodstock Iron Co. v. Extension Co., 129 U. S. 644, 662 and 63 [9 S. Ct. Rep. 402].
    11. An agreement, one and entire, if illegal and void in one particular, tbe illegality penetrates and corrupts the whole agreement and vitiates it altogether. Brown v. Brown, 34 Barbour 533.
    12. Secret compositions, whereby undue advantages have been obtained by some creditors of an insolvent, over others, are void. Front v. Gage, 3 Allen 560; Kullman v. Greenebaum, 28 Pac. Rep. 674 [92 Cal. 403; 27 Am. St. Rep. 150]; Dexter v. Snow, 12 Cushing, 594, 595; Story Eq- Juris., Secs. 378, 379; Greenhood Public Policy, rule 154, p. 141.
    13. Equity jurisdiction. C. & N". W. R. Co. v. Railway Co., 6 Bissell219; High Inj. 607; Joyce Elec. Eaw, Sec. 409 and cases cited in note 12; New York, N. H. & H. R. Co. v. Traction Co., 32 Atl. Rep-953 [65 Conn. 410; 29 E. R. A. 367]; High Inj. 924; Pennsylvania Ry. Co. Appeal, 93 Pa. St. 150; Pittsburgh June. Ry. Co.’s Appeal, 122 Pa. St. 512, 531; Sharon Ry. Co.’s Appeal, 17 Atl. Rep. 234 [122 Pa. St. 545; 9 Am. St. Rep. 133]; High Inj. 1271; Booth Street Railways, Sec. 109 and note.
    14. Where the right to cross has been sought by appropriation proceedings. Fake Erie, etc. Ry. v. Railway Co., 7 Re. 364 (2 Bull. 187 > 189); Giesy v. Railway Co., 4 Ohio St. 308,326; Eewis Em. Dom., p. 239, 293; Appeal of Pa. Ry. Co., 18 Atl. Rep. 522 [128 Pa. St. 509]; Valley Ry. Co. v. Pouchet, 2 Circ. Dec. 492 (4 R. 187); Madden v. Railway Co., 11 Circ. Dec. 571 (21 R. 73, 78); Joyce Elec. Raw, Sec. 408, n. 11; Kinsman St. Ry. Co. v. Railway Co., 36 Ohio St. 239, 251, 252 ; High Inj., 607; Elliott Railroads, Secs. 1049 and 1125, and cases cited in notes-
    15. Eaches. High Inj., Secs. 913, 618, 643; Bispham Principles of Equity, 354 ; Snell Principles of Equity (Griffith ed.), Sec. 35.
    R. R. Shotts, for plaintiff,
    cited:
    1. The condition precedent to passing the ordinance was, that the required consents be procured. Roberts v. Easton, 19 Ohio St. 78.
    2. The fee in dedicated streets is in the city for the use of the public. Cincinnati & S. P. Ave. St. Rv. v. Cumminsville, 14 Ohio St. 523, 546.
    3. The construction of the street railroad on grade is not an additional servitude. Cincinnati & S. P. Ave. St. Ry. v. Cumminsville, 14 Ohio St. 523; Cincinnati & H. Elec. St. Ry. v. Railway Co., 12 Circ. Dec. 113 (21 R. 391, 396).
    4. The power to grant the use of the streets must be exercised for he benefit and in the interest of the public, including the abutting owners. Doane v. Chicago City Ry., 45 N. E. Rep. 509 [160 Ill. 22; 35 R. R. A. 588],
    5. Legislators should act with a single eye to the true interest ot the whole people, and courts of justice can give no countenance to the use of means which may subject them to be misled by the pertinacious importunity and indirect influences of interested and unscrupulous agents or solicitors. Marshall v. Railway, 57 U. S. (16 How.) 334, 335.
    6. Any agreement or combination among parties petitioning for the improvement of a street, by which a few individuals, desirous of causing the improvement to be made, procure the signatures of others to the petition by paying, or agreeing to pay, a consideration therefor, either directly or indirectly, is a fraud on the law and contrary to public policy. Maguire v. Smock, 42 Ind. 1, 4; Howard v. Church, 18 Md. 451.
    7. Contracts illegal at common law, as being contrary to public policy, are such as injuriously affect or subvert the public interest, such contracts as' by their terms or contemplated manner of performance must work some mischief affecting the body politic. Sedgwick v. Stanton, 14 N. Y. 291; Comyn Contracts, 53.
    8. The effect of buying off conscientious opposition to an improvement. Makemson v. Kauffman, 35 Ohio St. 444.
    That certain consents were invalid:
    1. After conveyance in trust, there is no title remaining in the assignor. Bank v. Bell, 14 Ohio St. 200, 211; Mannix v. Purcell, 46 Ohio St. 102.
    2. Placing property in the hands of an assignee for the purpose o placing it beyond owner’s control. Keen v. Hall, 31 Ohio St. 107, 110.
    3. A reservation of any power or control over the provision of the deed of assignment or the property assigned by him would be invalid. Chapin v. Thompson, 89 N. Y. 271, 280 ; Riggs v. Murray, 2 Johns Ch. 565.
    4. The question as to the right to withdraw before the final action is settled in Ohio. Hays v. Jones, 27 Ohio St. 218; Story Agency, Sec 474; Simmons v. Toledo, 4 Circ. Dec. 69 (8 R. 542, 546).
    5. Rife Estate. Rapp v. Railroad Co., 9 Re. 302 (12 Bull. 119); Simmons v. Toledo, 4 Circ. Dec. 69 (8 R. 542): Tone v. Columbus, 1 Circ Dec. 168 (1 R. 308).
    6. Consent by telegram. 25 Am. & Eng. Enc. Raw (1 ed.), 879. Western Union Tel. Co. v. Hopkins, 49 Ind. 223 ; 7 Allen, 548; Anglo-Am. Pack. & Provis. Co. v. Cannon, 31 Fed. Rep. 313 ; Greenleaf Ev (16 ed.), Sec. 86 and note 1; 25 Am. & Eng. Enc. Raw (1 ed.), 876 and note ; Smith v. Raston, 54 Maryland 138.
    Shepherd & Shaffer, for plaintiff,
    cited:

      1. Taxpayer’s suit. Gallagher v. Johnson, 1 Dec. 264 (31 Bull. 24); Peppard v. Cincinnati, 9 Dec. 102 (6 N. P. 67) ; Sommers v. Cincinnat, 6 Re. 887 (8 Am. Law Rec. 612); McClain v. McKisson, 8 Circ. Dec. 357 (15 R. 517); 17 Am. & Eng. Enc. of Law, (1 ed.) 500, and authorities.
    2. Abutting property owners’ suit. Glidden v. Cincinnati, 4 Dec. 423 (30 Bull. 213); Hamilton v. Electric St. R. R., 8 Dec. 174 (5 N P. 457); Simmons v. Toledo, 4 Circ. Dec. 69 (8 R. 535).
    3. Motive. Dietz v. Traction Co., 6 Dec. 513, 515 (4 N. P. 399); Brockman v. Crestón, 44 N. W. Rep. 822 [79 la. 587, 588]; Mazet v. Pittsburg, 20 Atl. Rep. 693 [137 Pa. St. 548] ; Gallagher v. Johnson, 1 Dec. 264 (31 Bull. 24); Peppard v. Cincinnati, 9 Dec. 102 (6 N. P. 57) ; McClain v. McKisson, 8 Circ. Dec. 357 (15 R. 517); 17 Am. & Eng. Enc. of Law, (1 ed.), 500.
    4. Invoking equity arm of court. Otis v. Gregory, 13 N. E. Rep. 39 [111 Ind. 504]; Finch v. Finch, 10 Ohio St. 500, 508; Ainslie v. Wilson, 50 Ga. 418.
    5. Guardian. Booth Street Railroads, par. 20 ; Rapp v. Railway Co., 9 Re. 302,(12 Bull. 119); Bullock v. Rapid Transit Co., 23 Chicago L. N. 149.
    6. Withdrawals. Simmons v. Toledo, 4 Circ. Dec. 69 (8 R. 535); Simmons v. Toledo, 51 Ohio St. 626; Hayes v. Jones, 27 Ohio St. 218
    7. Straddling track. Hamilton St. Ry. Co. v. Electric Transit. Co., 3'Circ. Dec. 158 (5 R. 319); Elliott Roads & Streets (2 ed.), par 750, 753 ; Indianapolis Cable St. R. R. v. Street Ry. Co., 24 N. E. Rep. 1054; 26 N. E. Rep. 893 [127 Ind. 369; 8 L- R. A. 539],
    8. On the point whether a street railway has exclusive use of the right of way within its grant, as against another street railway. Elliott Roads & Streets (2 ed.), Secs. 745, 753 ; North Baltimore Pass. Ry. Co. v. Mayor, 23 Atl. Rep. 470,471 [75 Md. 247 ; Indianapolis Cable St. Ry. v. Street Ry. Co., 24 N. E. Rep. 1054 [127 Ind. 369; 8 L. R. A. 589]; Ft. Worth St. Ry.. Co. v. Street Ry. Co., 7 S. W. Rep. 381 [68 Tex. 169]; Booth Street Railways, par. 108, 110; Citizens Coach Co. v. Ry. Co., 33 N. J. Eq. 267; Pacific Ry. Co v. Wade, 27 Pac. Rep. 768 [91 Cal. 449] ; Citizens’ Gas & Mining Co. v. Elwood, 16 N. E. Rep. 624 [114 Ind. 332] Crawiordsville & E. Twp. Co. v. Smith 89 Ind. 290; Charles River Bridge v. Bridge, 36 U. S. 420; Waterbury v. Railroad Co., 54Barb. 388; Titusville & P. C. R. Co. v. Railway Co., 12 Phila. 642; Norris & E. Ry. Co. v. Blair, 9 N. H. Eq. 635 ; Railway Co. v. Ailing, 99 U. S. 463; Hamilton Elec. St. Ry. Co. v. Trans. Co., 3' Circ. Dec. 158 (5 R, 319); State v. Gaslight & Coke Co., 18 Ohio St. 262, 293.
    Paxton & Warrington and Burch & Johnson, for the defendant street railway company.
   GIFFEIÍ, J.

The question of law of first importance in the determination of this case is whether ■ not the consents required by Sec. 3439, Rev. Stat., before council can make a grant to any person, permitting such person to lay a railway in a public street of a municipality, can be purchased by the party desiring to obtain such grant and lay the street railway.

After reading and considering a large number of authorities submitted by counsel for defendant company, we are of opinion that the question can be best answered by a consideration and comparison of the cases of Doane v. Street Ry. Co., 45 N. E. Rep. 507 [35 L. R. A. 588; 160 Ill. 22, 34, 35 and 36] ; Montclair Military Academy v. Street Ry. Co., 47 Atl. Rep. 890, 894, and Makemson v. Kauffman, 35 Ohio St. 444, 455, together with the settled principles in this state determining the rights and interest of abutting property owners in a public street in a municipality, and the doctrine that in the absence of any interference with the access or egress to and from the abutting property, the building of a street railway in such public street is not an increased servitude which would be an appropriation of a private property right.

In Cincinnati & S. G. Ave. St. Ry. v. Cumminsville, 14 Ohio St. 523, which has never been doubted or overruled, and which fixes the law in this state, it is held that the building of a street railroad in a public street, when properly done and under the restrictions of the public council, is not such an increased servitude upon a street as to be a further appropriation of property rights.

That being so, it is difficult to see what private property right an abutting property owner has for sale when he undertakes to consent to the location of a street railroad in the public street in front of his property for a consideration. The right to give or withhold such consent either is or is not a property right. If it is a property, right, then such right of a minority of forty-nine per cent, of the abutting lot owners cannot constitutionally be taken from them without consideration by the mere consent, gratutitous or purchased, of a majority of fifty-one per cent.

• Further, whatever this right may be, it is of the same kind and nature to each of the abutting property owners, and it is manifestly unfair that some of them should receive a consideration and others either have this right taken from them or have their property subjected to the same conditions without receiving anything therefor.

If this is not a property right, but a political right or a governmental or administrative function entrusted to those abutting property owners, it is manifestly against public policy that their consent should-be sold for a consideration.

It perhaps clouds the question to undertake to define clearly the fundamental nature of these consents.

Be the right to consent what it may, it is given alike to all the abutting property owners, and it is clearly inequitable and unjust that certain of such property owners should profit by parting with such consent and that others should not.

The case of Montclair Military Academy v. Street Railway Co., supra, while coming from a court of the highest respectability and authority, is not very persuasive in the case at bar ; because, in the first place, it involves a township road and a distinct finding of fact that the building of such railroad was an in j ury to the abutting property of the Montclair Military Academy and that it was an appropriation of property rights. That being so, that case was decided under a different condition of the established law from that prevailing in this state.

The case of Doane v. Street Railway Co., supra, is more in point; that court there holding, as is the law in this state, that the mere building of a street railway in a public street is not the appropriation of the private property right.

Further, in the exercise of this right, whatever may be its nature, it is similar to the composition of creditors where a majority in number and amount is required to authorize certain actions in insolvent estates ; and in such cases, the purchase of consents have always been held inequitable and contrary to public policy and good morals.

The Supreme Court of Illinois, in the case of Doane v. Chicago City Ry. Co., supra, lay down another reason which appeals to us as to why such consents should not be purchased or sold; that is, by the words of the statute, the consent of a majority must be obtained before the council can act, or make a grant. Therefore, the purchase of such consents is the purchase of an influence which is- to be exercised upon the public legislative body in procuring them to act in their official capacity, and for this reason is against public policy and unlawful. The reason of the court in that respect is equally applicable to the law of Ohio.

Section 3489, Rev. Stat., provides:

“ No such grant shall be made until there is produced to council, or the commissioners, as the case may be, the written consent of more than one-half of the land abutting on the street or public way along which it is proposed to construct such railway, or extension thereof.”

The consent of a majority of the abutting property owners is thus fixed as a condition precedent to the power of council to make the grant; and it is manifestly wrong that this prerequisite of a council’s power should be bartered or sold.

But as against all this, is urged the opinion and reasoning of Judge Boynton, in the case of Makemson v. Kauffman, supra, where, on page 455, he says:

“Nor does it seem to us that the mere fact that Frantz, Cookston and Heddings, signed the petition for the improvement in consideration of the promise of others to pay whatever assessments might be made upon their lands respectively, made it the duty of the commissioners to reject their names. It does not appear that they were opposed to the improvement, nor that they did not believe it demanded by the public convenience and welfare. What would be the effect of buying off a conscientious opposition to the improvement, we do not determine, but where the improvement is of general public utility or necessity, we are unwilling to say that the mere circumstance that a land owner of the vicinity signed a petition upon the promise of another to relieve him from the burden of the assessment, required the commissioners to adjudge that a traud upon the law was intended, and thereupon to reject the petitioner’s name, in determining whether or not a majority of the resident landowners whose lands were reported as benefited, were in favor of the improvement.”

There is a marked distinction between this case and the case at bar, in that in Makemson v. Kauffman, supra, the improvement of the county road involved the charging of the abutting property owner with an assessment for the cost of making the road; and that in giving, or withholding, his consent, whether he exercised his judgment on a public question or not, he certainly did also act in regard to a matter affecting his private property interest. It is no less a property right to relieve one’s self, or one’s property, from a debt, or liability to assessment, than to actually grant or convey a property interest; and in that case nothing more was attempted to be done than to remove the objection of Cookston and Heddings to being subjected to an assessment for making the road. As the court very clearly said, that case did not involve the buying off of a conscientious opposition to an improvement; in fact, it might be a fair inference from that case that were not the property rights of Cook-ston and Heddings involved, and their consent had been on the public question of the expediency of the improvement, the court would have looked at it otherwise. Further, where the question of private property rl>>ht is entirely eliminated, and the giving or the withholding of con sents is to affect a general or public interest, it is extremely doubtful as to whether or not a court would examine into the good faith of a con sent given for a consideration; but that such a transaction would be discountenanced and held unlawful for reasons of public policy.

We, therefore, are of opinion that it is unlawful in this state to purchase for a consideration the consents required by Sec. 3439, Rev. Stat.

As to the Kahn Bros. and Creecraft withdrawals, it is settled by the case of Simmons v. Toledo, 4 Circ. Dec, 69 (8 R. 535), that a property owner may withdraw his consent at any time before the council has acted upon it and passed the ordinance.

We are, therefore, of the opinion that these parties had a right to withdraw their consents at any time before the final passage of the ordinance.

On the subject of estoppel, we find no merit in the claim of the defendant company. Whatever it did was done with a full knowledge of all the defects in its grant, and it is deemed to know the law.

In the controversy between defendant company and the Hamilton & Eindenwald Electric Transit Company, where it is complained that the defendant company is undertaking to straddle the tracks of the railroad now existing in East avenue, between the corporation line and John street, we apply the same law that was laid down in the case of Hamilton Street Railway Electric Co. v. Electric Transit Co., 3 Circ. Dec. 158, 160 (5 R. 319), where this court, per Smith, J., said:

“ We hold, secondly, that the defendant company has no right to interfere with the franchises or vested rights of the Hamilton Street Railroad Company by placing its track, as it is proposing and intending to do, over that of the horse-car line ■ which now legally occupies the center of High street from Second to Third.”

This case is unreversed, and states the law as it now exists on this question.

Having expressed ourselves on these propositions, which are controlling upon the result of this case, we do not specifically address ourselves to each of the minor questions raised by the plaintiffs in these cases; but say, that on these points, we fully approve the opinion o Fisher, J., in these cases in the court below.

SWING, J.,

dissenting.

The conclusion arrived at by Judges Giffen and Jelke as to the purchase of consents is undoubtedly supported by the decision of Doane v. Street Ry. Co., 45 N. E. Rep. 507 [35 L. R. A. 588; 160 Ill., 22], but in my opinion it is contrary to the decision in Montclair Military Academy v. Street Ry. Co., 47 Atl. Rep., 890, and Makemson v. Kauffman, 35 Ohio St. 444.

It seems to me that the weight of the authority is not with the two latter cases, but whether so or not, we should follow the decision of our own Supreme Court. The latter case cannot in principle be distin guished from the case at bar, and it is directly opposed to the decision in the 140 Illinois, which is relied on as the authority for the decision in this case.

On principle it seems to me that Makemson v. Kauffman, supra, is correct. The right to give consents is one that pertains to property alone; it is measured and controlled by the feet front; the owner of the majority of the feet front gives the right. The owner may be a minor, a non-resident or an alien. No account is taken of the ownership ; it is simply a majority of the feet front.' The majority owner owes no obligation to the owner of the minority of the feet front. He has a right to consult his own best interests in giving his consent without regard to how it wdl affect the minority owner. If he should conclude that the construction of the street railway would benefit him, but at the same time damage the minority owner, his consent is just as valid as it would be if he thought it would benefit the minority owner. In fact, the real motive which actuated the majority owner in giving his consent might be that it was for the express purpose of injuring the minority owner, and yet it would be just as valid as if given for any other purpose. On principle it would seem self-evident that if there is any obligation resting on the majority owner towards the minority owner, there should be the same obligation resting on the minority owner towards the majority owner, and if the reasons of the majority owner in giving consent may be inquired into, the reason of the minority owner in withholding consent should be inquired into. Such inquiries would be entirely foreign to any purpose disclosed in our statutes; the feet front is the measure of the right, and it is purely a property right, not intended to be any more, and should not be.

It must be admitted, I take it, that a party desiring to get a majority of the feet front, may purchase the fee of a majority of the feet front for that purpose only, and then give a valid consent for a majority of the feet front; or if he lacks a portion of the majority, he may purchase sufficient to give him a majority of the feet front, and thus obtain a valid majority of the feet front; the purpose of the purchaser and the purpose of the seller may be in such instance for the purpose of giving a majority of consents; afid further, the real motives may be to injure the minority owner; but there is no remedy to the minority owner, any more than there is a remedy to the majority owner against the minority owner when the minority owner acts from any pecuniary or other consideration in withholding his consent. If one may purchase from the owner, and the owner may sell his property for the purpose of giving consent, why may he not purchase the consent alone, and the owner retain the fee ? Why may he not sell a part of his property as well as all of it? I do not believe that the distinction can be drawn. The trouble is in attaching to property certain moral obligations where none were intended. It is purely fanciful and is not founded on good reason. The statute has recognized certain rights as belonging to the property owner, and these he exercises to suit himself, and in the exercise he is not accountable to any one else. With his motive or purpose nobody else has any concern.

The grant having been made, the burden is on those seeking to avoid it, to show that the consents were not legally given; and the evidence in this case fails to bring the case within the facts mentioned by Boynton, J., in Makemson v. Kauffman, supra, which he says they are not called upon to pass on and on which he does not express an opinion, although Okey, J., in his dissenting opinion, seems to think they are in the case.

One of the consents purchased in this case is as follows: The owner signed a remonstrance for the reason that he thought the building of the road would entail a street assessment on his property. He was not opposed to the road, except he wanted to avoid this expense. When the officers of the road agreed to pay what this expense was estimated to be he signed a consent. I fail to see any reason why he should not have acted towards his property and this road as he did, or where any wrong was done to other property owners or the public, and no other consent was stronger than this.

The only ground on which the purchase of consents can be held void, is that it is against public policy. I am unable to see what right of the public is injured or what harm is done to the public by the property owner giving his consent from some pecuniary or other motive which is personal to himself; as I have said, the right is measured entirely by the feet front; one man may own more than a hundred others, and be able to give a majority of the feet front. The legislature has given him this right, just as it has imposed on him the burdens in case of assessments, the burdens are against the property measured by the feet front. It is a property obligation, and the consents are property rights, and which the legislature having possessed has handed over to him to be granted or withheld as he deems to be for his best interests. The right of the public the legislature has vested in the officers of the public, and in them is lodged the right to grant or refuse the franchise, and these rights cannot be bought, and the action of these officers must be free from the taint of purchase or sale. No inducement can be offered to these officers to procure their vote either for or against the proposed grant. The acceptance by any such officer of anything oí value, or any promise of reward, for .his vote either for or against making such a grant would be bribery, and any one offering the bribe together with the officers accepting the same would be liable to prosecution.

As to the question of the withdrawal of the consent of Kahn Bros., the evidence clearly shows that it was not presented to the board at any time. The facts appear to be that Kahn Bros, had given their consent. Afterwards, some party acting in the interest of rival companies made statements to Kahn Bros., which were not strictly true, and acting under this information they signed a withdrawal. This withdrawal was taken and shown to one of the members of the board, but never was presented to the board, nor offered to be presented to the board. This is sufficient answer without regard to whether it might have been effective to have presented it after the ordinance had been put on its final passage by its being voted on by all the members once, as to which question I am not clear. Kahn Bros, are not insisting here on this withdrawal. On the contrary, the only persons insisting on treating it as a withdrawal are those who procured the same through a misrepresentation of the facts and are rivals to this company to whom the grant was made.

As to the question whether the right could be granted to the company in Fast avenue, the right having been previously granted to the Hamilton & Ifindenwald Co. on the same street, I have had some doubt; but the uncontradicted evidence was to the effect that the tracks, ties, poles and wires of the present company would in no way interfere with the Hamilton & Ifindenwald road ; neither would the operation of the new road interfere with the operation of the other. If such is the case, it is difficult to see how the H. & L,. is injured.

I can not refrain from remarking in closing that the opposition to this grant is prosecuted by rival interests, that the construction of the road and its operation might be injurious to rival companies is probably true; but that would be beneficial to the interests of tn..general public and to the property owners and the people of Hmail-ton is undoubtedly true, and if there is auy doubt as to the rights of the parties, that doubt should be resolved in favor of the public.


source: Caselaw Access Project

author: HULL, J.

license: Public Domain

text:
    ERROR — BILLS OF EXCEPTIONS — EVIDENCE.
    [Lucas (7th) Circuit Court,
    February 3, 1902.]
    Parker, Haynes and Hull, JJ.
    George Heller v. Mary Beal.
    1. Bilí, of Exceptions Failing to Present all the Evidence.
    A bill of exceptions from a justice of the peace in a forcible entry and detainer case certifying that plaintiff’s husband, as her duly authorized agent, served written notice to vacate her premises upon the defendant personally, that plaintiff demanded in open court that the defendant produce such notice, which the defendant refused to do, and that no other or further testimony on the question of written notice on the defendant to vacate said land ” is not sufficient to authorize a review of the question upon the weight of the evidence.
    2. Improper eor Judge to Determine Evidence Considered.
    It is not for the court to say what testimony was considered by the jury m arriving at their conclusion or what testimony bore upon a particular question, if the question as to the weight of the evidence is to be presented to a higher court for review. There may have been admissions by or conduct of the party that tended to establish the fact in dispute, and to which the jury gave weight, and the evidence may not have appeared to the conit to bear on the question. It is, therefore, essential that'the reviewing court, in such cases, have all the testimony that went to the jury.
    3. Question not Subject to Review on Error.
    Section 6610, Rev. Stat., authorizing exceptions to the opinion of the justice of the peace upon questions of law an 1 evidence in actions for forcible entry and detainer, has reference solely to the competency of the evidence and not to the weight or sufficiency thereof. Thus the question whether the notice required by statute was or was not given, having been submitted to the jury, is not subject to review on the weight of the evidence.
    4. Notice to Vacate — Prerequisite in Forcible Entry and Detention.
    Under Sec. 6602, Rev. Stat., written notice to vacate in not less than three daj'S must be served and three days must elapse as prerequisites to bringing an action in forcible entry and detention, both of which facts must be established by proof in order to entitle the plaintiff to recover. Whether such notice has been given is a question for the jury, to be determined by them along with other questions in issue, and not by the court, as in case of service of summons.
    6. Proof of Notice in Forcible Entry and Detention.
    It is not necessary to serve a notice to produce where the instrument is itself a notice, or where from the nature oí the case one party has notice th t th • other party will offer testimony as to the instrument in question. Therefore, the writt= n notice to vacate premises, required by Sec. 6602, Rev. Stat, a a prerequisite to commencing an action in forcible entry and deta ner, may be proven by parol, without any preliminary notice to produce made prior to the trial, where demand is made in open court for its production and failure to comply therewith.
    6. Copy of Notice Need not be Made or Retained.
    Section 6602 Rev. Stat., providing for the service of notice to vacate by leaving a written copy with the defendant at his place of abode, does not require iwo copies to be made in order to sustain forcible entry and det ,iner. It is immaterial to the defendant whcthei the pi intiff retain a copy of the notice in question.

      7. Failure to Produce Paper Upon Notice — Evidence.
    Where it appears from the record that the defendant in forcible entry and detainer was served personally with a written notice to vacate, as required by Sec. 6602, Rev. Stat., his failure to produce the notice upon demand therefor in open court, may be considered as evidence that its contents if produced would be against the contention of the defendant and in lavor of the plaintiff, which, when taken in connection with other evidence in the case tenis to support a verdict for plaintiff not to be disturbed by the reviewing court.
    T. N. Bierly, for plaintiff in error.
    L. T. Williams and F. E. Calkins, for defendant in error.
   HULL, J.

This action is brought to reverse the judgment of the' court of common pleas, which affirmed the judgment of a justice of the peace in a forcible entry and detainer case. The plaintiff in error was the defendant below, and the defendant in error brought her action before a justice of the peace to oust the plaintiff .in error from a piece of land. She filed her complaint in due form, the case was tried to the justice and a jury, and a verdict returned against the defendant below, and judgment entered upon the verdict, to which judgment error was prosecuted to the court of common pleas, and there the judgment was affirmed, and it is sought here to have the judgments of the lower courts reversed.

The question in the case is whether, under the bill of exceptions brought here, the court should find that the verdict in the justice’s court and the judgment were against the weight of the evidence, and not sustained by sufficient evidence.

The point made by counsel for plaintiff in error is, that the evidence is not sufficient to show that the statutory notice to leave the premises was served three days before the action in forcible entry and detainer was commenced.

It is claimed on the part of the defendant in error that there is no authority in law to bring this question in a forcible entry and detainer suit before this court on error; second, that the bill of exceptions in any event is incomplete, in that it does not set forth all the testimony, and that, therefore, this court cannot consider this question; and third, that if the bill of exceptions is considered, there is sufficient evidence to sus-tain the verdict.

The bill of exceptions does not purport to set forth all of the evidence, but it shows that the husband of the plaintiff below was her duly authorized agent to serve the written notice on the defendant, and “ that he served this notice on the defendant personally; that plaintiff in open court demanded of the defendant that he produce this written notice as served, which demand defendant refused; that he gave this testimony in connection with considerable other testimony bearing on other points in the case, but he gave no further testimony on the question of written notice on the defendant to vacate said land.”

The bill of exceptions proceeds thus:

“ The plaintiff then gave no other or further testimony as to the written notice having been served on the defendant to vacate the said land before this action was commenced, and without identifying any original notice or a copy of the same as having been served on the defend ant at least three days before the action was commenced, and without introducing any such notice, either original or copy, or offering to introduce any such notice in evidence to the court and jury, she rested her case.
“Whereupon, the defendant by his counsel, Thomas N. Bierly. moved the court to dismiss this action for the reason that the court had no jurisdiction to further proceed in the same, on account of said failure of proof as to the notice to vacate — because the plaintiff had not introduced in evidence any written notice, original or copy, that had been served on the defendant, showing that he had three days’ notice to vacate said land before this action was brought; because there was no evidence to show by what day the defendant was to vacate the said land.”

The record discloses that there were several witnesses called before the justice of the peace, who gave their testimony, and the bill of except tions shows that there was other testimony (how much, of course, does not appear), besides this, which the justice certifies was ail of the testimony there was upon the question of notice.

The bill not setting forth all of the testimony, nor purporting to do it, the first question is, can it be considered? Can we consider the question whether the verdict was against the weight of the evidence, and the judgment of the justice erroneous, on that account? We are of the opinion that we cannot, under the law and the authorities in this state. We think that a court of error cannot review this question as to whether a verdict is against the weight of the evidence unless the bill of exceptions sets forth all of the testimony.

The magistrate has no povver or jurisdiction to make a certificate that the testimony contained in the bill of exceptions is all of the testimony bearing upon this question of notice. The facts are established in the trial of a case both by direct and circumstantial evidence. There may have been admissions of the party, there may have been conduct on his part, established by the evidence, that tended to show that a proper notice to suit, under the statute, had been served upon him, and to which the jury gave weight and consideration in arriving at their verdict, and this evidence may not have appeared to the justice to bear upon this question. It is not for the court to say what testimony was considered by the jury in arriving at their conclusion, or what testimony bore upon any particular question, if the question as to the weight of the evidence is to be presented to a higher court for review. The court reviewing such a question must have before it all of the testimony that went to the jury; for, as was said by Judge Ranney in a decision of the Supreme Court, it is in the nature of an appeal from the findings of the jury, and to enable a court of review to determine whether the jury was right or not, it must have all of the testimony that was offered before the jury, and it would not do to hold that the certificate of the court or judge who presided at the trial that this was all the testimony bearing on this question was sufficient. This question has been decided by this court as formerly constituted — Judges Bentley, Haynes and Scribner— in which the opinion was delivered by Judge Bentley, and the authorities collected and discussed. The case is that of Cincinnati, H. & D. Ry. Co. v. Curtis, 9 Circ. Dec. 112 (17 R. 554). The second paragraph of the syllabus is:

“ The rule in Ohio that a bill of exceptions must contain all the evidence in the case, in order to enable the circuit court to reverse a judgment as against the weight of the evidence, is so absolute that the judgment will not be. disturbed if evidence is omitted, although the bill may certify that such evidence or ‘ all other testimony offered in behalf of plaintiff relates solely to the character and extent of plaintiff’s iniuries.’ ”

The opinion, on page 116, cites this from the decision of Judge Ranney, in Eastman v. Wight, 4 Ohio St. 157:

“To enable this court to review the judgment of the court below, overruling a motion for a new trial, because the verdict is claimed to be against the evidence, it must appear, either expressly or by necessary implication, that the bill of exceptions contains all the evidence given to the jury upon the trial. This has been the constant course of decision, and is affirmed in several reported cases. * * *
“ Indeed, the very nature of the inquiry demonstrates the absolute necessity of the rule. No question of law is involved, but it is simply an appeal from the jury on the facts ; and without having the evidence given to the jury, it is impossible for us to say whether it justified their finding or hot.”

Judge Bentley, in delivering the opinion in the case above cited, says, on page 117 :

“ Now, the statement of this bill is: All other testimony offered in behalf of plaintiff related solely to the character and extent of plaintiff’s injury. That was the opinion of the judge who signed the bill of exceptions and those who prepared the bill for his signature; the statement as to the character of the other testimony ; but it indicates that there was other testimony which was not preserved, and from the authority of Eastman v. Wight, 4 Ohio St. 157, and Railway Co. v. Probst, 30 Ohio St. 104, where the judge had made the statement, it would seem to us, from that alone, that the proposition is strong and analogous to the present case, and decisive of it. Peradventure the reviewing court may have had the same opinion in regard to the balance of the testimony that the jury may have had. The jury may have thought that that testimony omitted by the bill, which the court say bore upon other points, in fact bore upon the principal question, and this court, if it were before us, might come to the same conclusion. We think that the rule under the authorities is so absolute, in Ohio, that we are not permitted in this state of the record to reverse the judgment for this reason, although it is of no moment what the court think of the strength of the plaintiff’s case, if we had all the testimony before us.”

It is claimed in argument by counsel that the question whether a notice to quit had been served upon defendant was rather addressed to the court than to the jury, as the question of service of summons would be; but we .think .otherwise. The statute, Sec. 6602, Rev. Stat., requires that the notice be served three days before the action is commenced by the party or some one acting for him, and before he can begin his action in forcible entry and detainer this notice must be served, and the three days must have elapsed. In order to establish his case and recover against' the defendant, he must establish that the notice was served the proper time before the action was commenced. Upon that question evidence may be offered both for and against, and that question goes to the jury along with the other questions in the case-So that we think it is clear that this question was properly submitted to the jury.

We hold, however, that such a question as this cannot be reviewed upon error in any event in a forcible entry and detainer case. This was so held by the Supreme Court of the state in State v. Wood, 22 Ohio St., 537. The syllabus is :

“ Section 137 of the justices’ act (1 S. & C. 7941) authorizing the taking of exceptions to the opinion of the justice, upon ‘ questions of law and evidence,’ in actions of forcible entry and detainer, does not extend to or include questions touching the weight or sufficiency of the evidence, but only such as relate to its competency.”

The statute, Sec. 6610, Rev. Stat., is the same upon this subject now as it was when that case was decided. And upon the authority of this case, we hold that error cannot be predicated upon this action of thé justice. Holding these views, it is not necessary for us to discuss the evidence as disclosed by the bill of exceptions. I will touch upon one point only.

It is urged that inasmuch as the record shows that the notice itself was not offered in evidence, but the testimony in regard to it was oral, it should be considered as though no testimony had been offered, for the reason, as it is claimed, that the oral testimony offered was incompetent. The record, however, discloses that a demand was made in open court upon the defendant to produce the notice, so that it might be offered in evidence, and the paper itself that plaintiff was seeking to prove being the notice, and the action being of such a character that the defendant below was notified thereby that the plaintiff would seek to prove this notice or to offer it in evidence, this demand to produce and the refusal made this testimony proper, although no notice had been served upon the defendant prior to the trial to produce the notice.

1 Greenleaf on Evidence, Secs. 560 and 561, says:

“ Section 520. When the instrument or writing is in the hands or power of the adverse party, there are, in general, except in the cases above mentioned, no means at law of compelling him to produce it; but the practice, in such cases, is to give him or his attorney a regular notice to produce the original; not that, on proof of such notice, he is compellable to give evidence against himself; but to lay a foundation for the introduction of secondary evidence of the contents of the document or writing by showing that the party has done all in his power to produce the original. ”
“ Sec. 561. There are three cases in which such notice to produce is not necessary. First, where the instrument to be produced and that to be proved are duplicate originals; for, in such case, the original being in the hands of the other party, it is in his power to contradict the duplicate original by producing the' other, if they vary; secondly, where the instrument to be proved is itself a notice, such as a notice to quit, or notice of the dishonor of a bill of exchange; and, thirdly, where, from the nature of the action, the defendant has notice that the plaintiff intends to charge him with possession of the instrument, as, for example, in trover for a bill of exchange.”

So that it seems to be the rule that it is not necessary to serve a notice to produce where the instrument is itself, a notice, or where, from the nature of the action the party has notice, that the other party will offer testimony as to the instrument in question.

We hold, therefore, that the evidence does tend to show that a notice was served upon the defendant to leave the premises, — “ to vacate the land,” is the term used in the bill of exceptions; and that a demand was made upon the defendant in open court to produce that notice, which he refused to do. Having the notice in his possession, his refusal to produce it would be some evidence, at least, that the contents of the notice if produced, would be against his contention, or in favor of the party-calling for its production.

It is urged that under the statute notice should have been served by copy, and a duplicate copy retained by the plaintiff. The statute requires that the notice be served at least three days before the beginning of the action (Sec. 6602, Rev. Stat.), and requires that the notice shall be served by leaving a written copy with the defendant or at his place of abode. We do not think that this requires that two copies of the notice be made, but what the statute means is, that a notice in writing be served upon the defendant. It is of no moment to the defendant whether the plaintiff retains a copy of the written notice served upon him. When the plaintiff tries his c^se, it is necessary for him to show that the notice was served. If we were to consider this bill of exceptions upon the question of the weight of the evidence, we should hold that the evidence was sufficient to establish the fact that a notice was served upon the defendant to leave these premises. He being in open court, with a notice in his possession that was served upon him, and refusing to produce it, together with the other evidence that the record discloses, we are of the opiniou that the jury were justified in returning a verdict in favor of the plaintiff.

For the reasons then, first, that there is no bill of exceptions here that the court can consider upon the question of the weight of the evidence; second, that under the law this question cannot be raised in a court of error on a bill of exceptions; and third, that if we were to consider the bill of exceptions as it is here, we would find against the plaintiff in error, the judgments of the court of common pleas and of the justice of the peace are affirmed.


author: HAYNES, J.

text:
    HEALTH.
    [Lucas (6th) Circuit Court,
    July 1, 1902.]
    Haynes, Parker and Hull, JJ.
    Harley Walton v. Toledo.
    1. Ordinance Authorizing Inspection, etc., oe Milk is Valid.
    An ordinance providing that no person shall sell milk in a city without a permit from its acting board of health, and authorizing examination and inspection of milk sold in the city, the places where produced and the cattle producing it, and prescribing regulations regarding the health of employes, etc,, is a health ordinance exclusively and within Sec. 1692, Rev. Stat., par. 24, providing for boards of health.
    2. Requiring Fee — Not a License — Sec. 2669, Rev. Stat.
    The mere fact that a fee of one dollar is charged and a tag attached to each wagon used in selling milk in a city before a permit to sell therein will be granted under an ordinance to compel the sale of pure milk and requiring inspection thereof, as above stated, does not constitute the permit alicensein violation of Sec. 2669, Rev. Stat., exempting vendors of their own products from payment of a license, but is a mere step to secure enforcement of the object in view in passing the ordinance — the sale of pure milk, and to enable the purchaser to rely upon the fact that the action of the board of health has been complied with.
    3. Sections 2669 and 1692, Rev. Stat.
    Section 2669, Rev. Stat., providing that nothing in that statute contained shall be construed to limit the powers conferred upon cities under Sec. 1692, Rev. Stat., among which are those relating to boards of health, renders the former section inapplicable to an ordinance providing for sale of pure milk and imposing a fee of one dollar upon each .wagon, whether such fee be denominated a license or not.
    4. Ordinance not Burdensome or Unconstitutional.
    Persons selling milk will be presumed to comply with the law and sell pure milk. Therefore, an ordinance requiring inspection of milk, milch cows, stables where kept, etc., for the purpose'of securing the sale of pure milk, is not burdensome to the producer, and is not inimical to any provisions of the constitution.
    Southard & Southard, for plaintiffs in error.
    M. R. Brailey, city solicitor, for defendant in error.
    Heard on Error.
   HAYNES, J.

The petitions in error were filed to reverse the actions of the court of common pleas affirming the action of the police court upon certain prosecutions had under the ordinances of the city of Toledo in regard to the selling of milk from wagons in the city of Toledo, and the questions argued go to the right of the city of Toledo to regulate the milk traffic in the city.

The statutes bearing on the question, and which have been discussed, I will cite first.

I refer to section 1692, Rev. Stat., the municipal code, which reads as follows:

“ In addition to the powers specifically granted in this title, and subject to the exceptions and limitations in other parts of it, cities and villages shall have the general powers enumerated in this section, and the council may provide by ordinance for the exercise and enforcement of the same.”

Paragraph 24 of this section provides :

“ To establish a board of health and invest it with such powers and impose upon it such duties as may be necessary to secure the inhabitants from the evils of contagious, malignant and infectious diseases.”

However, as I have once before remarked, the attitude of this city toward special legislation is generally manifest, as it is in this case.

Section 2141, Rev. Stat., provides that: “In cities of the third grade of the first class and in cities of the first grade of the second class, there shall be no board of health, but the board of police commissioners in such cities shall exercise all the powers and perform all the duties of the boards of health and mayors as provided in this chapter.”

Section 2669, Rev. Stat. “ The council of any city or village may provide by ordinance for licensing all exhibitors of shows or performances of any kind, not prohibited by law, hawkers, peddlers, auctioneers of horses and other animals on the highways or public grounds of the corporation, venders of gunpowder and other explosives, taverns and houses of public entertainment, and hucksters in the public streets or markets, and, in granting such license, may exact and receive such sum of money as it may think reasonable ; but nothing in this section shall be construed to authorize any municipal corporation to require of the owner of any product of his own raising, or the manufacturer of any article manufactured by him, license to vend or sell in any way, by himself or agent, any such article or product; provided, that in cities and villages, the council may confer upon, vest in and delegate to the mayor of such city or village, the authority to grant and issue licenses and revoke the same. Provided further, that nothing herein contained shall be construed to limit the power conferred upon cities and villages in section one thousand six hundred and ninety-two of said Revised Statutes.’

In 1893 we find a law in the local laws of the legislature of that year, 90 O. R. L. 335, which is another law for the city of Toledo:

Section 2672-113. “Any city of the third grade of the first class may provide by ordinance for licensing persons, firms and corporations engaged in such city in any occupation, trade, business or profession, as hereinafter named, and the owners of horses, mules, and vehicles of every kind used in such city, as hereinafter limited.

And Sec. 2672-114, provides:

“ That such ordinance or ordinances may provide and require that the occupations, trades, business and professions as enumerated in this section, shall not be engaged in nor practiced in such city until in each case, as may be and as provided for therein, license therefor has been obtained in accordance therewith, viz

And then follows a long list of occupations which it is unnecessary to repeat, among them being :

“ Selling, peddling or hawking any wares, goods, merchandise or produce from vehicles, hand or push carts, baskets, or by hand, in the streets or alleys, provided that any person selling the products of his own raising or goods of his own manufacture shall not be made liable for any license for selling, hawking or peddling the same in any manner on the streets or alleys of such city.”

And in section 2672-115 it is provided :

“ That such ordinance or ordinances, providing for licensing owners of and for horses, mules, and vehicles used in such city, shall not require licenses for or on account of horses or mules less than three years of age; nor shall farmers, gardeners, fruit growers or florists be made liable for any license whatever for horses, mules, vehicles or otherwise, for marketing, selling, hawking or peddling the products of their farms gardens or green houses or for hauling any produce, goods or merchan - dise into or out of such city; nor shall such horse, mule or vehicle license be required of persons living without such city and engaged in huckstering and marketing country produce ; nor shall any such license fee be required of any person living without such city and using any horse, mule, cart, sulky, carriage or other vehicle in going into or out of such city.”

Section 2672-116 provides for penalties, which may be fines or imprisonment, or both.

These seem to be the various sections to which our attention has been called, or which have come under our observation as bearing upon this question. Acting under the powers conferred upon the city council, it, on November 19, 1900, passed the ordinance which is set forth in the record, which is of considerable length and is entitled : “ An ordinance to regulate and provide for the sale of milk and cream, within the city of Toledo, and to grant permits to venders thereof.” The second section of this ordinance provides:

“ No person or persons shall sell milk or cream within the city of Toledo without first having been granted a permit therefor by said board as hereinafter provided.”

And there are in all some twenty-five sections, and it provides very fully for the examination and testing of milk which is sold in the city ; for the examination and inspection of the various establishments where milk is produced; for the examination and inspection of the cattle . themselves ; it provides also in regard to any cattle that may be diseased or exposed to disease; it provides for the prohibiting of the sale of milk, milked from cattle by persons who have been sick or who are diseased in any way, and provides that milk shall not be sold within a certain time after the birth of a calf, and various other matters of that kind all pertaining to the sale of milk and having for their object the protection of the purchasers of milk and the obligation of selling milk of good and pure quality to the inhabitants of the city of Toledo.

Now the contention on the part of the plaintiffs in error is that they come within the exceptions of the statutes cited, and they show in their ' evidence that this article of milk which was being sold at the time these arrests were made was produced on a farm, within the county of Tucas, and from cows which were owned by Jackman —the farms being either owned or rented by him — and that Walton was working, in selling milk, for Jackman.

It is claimed and has been argued here at considerable length, that these prosecutions are illegal because, as I have stated, the acts of defendants came within the exception and they had the right to sell the products of their own farms without any permission of the city of Toledo and. without any inspection on the part of the city in regard to the articles sold by them. Some discussion was had as to whether this was a “ license ” or not, whether it came within the definition of a license. The question of licenses in the state of Ohio is one which has been discussed a good deal in regard to cases arising under the clause of the constitution which provides that there shall be no license for the sale of intoxicating liquors and in regard to tax which is imposed upon those who sell liquors within the state. Discussion of the question and definitions of license may be found in Adler v. Whitbeck, 44 Ohio St. 539, 558 559 [9 N. E. Rep. 672], and also as referred to by the Supreme Court of this state, in a decision of the Supreme Court of the state of Michigan found in Youngblood v. Sexton, 32 Mich. 406 [20 Am. Rep. 654], where there is also a discussion and definition of the question of license by Chief Jus tice Cooley, speaking for the Supreme Court of that state.

It is held, as we understand the decision in this state, that where a tax is imposed for the sale of intoxicating liquors and the collection of the tax is enforced by a fine, or fine and imprisonment, that is to say, the party is not permitted to sell unless he paid a certain tax, and if he did sell without making payment, he was subject to prosecution and to be fined or imprisoned, or both, — it is Held in that case that the law really amounted to a license, that the effect of that was a license, because it was a prohibition under penalties. Subsequently the law was changed and a person is not prohibited from selling, but upon those who do sell a tax is imposed, to be collected as taxes are collected, and it is held to-day in the state of Ohio, that such regulations do not amount to a license and do not come within the prohibition of the constitution of the state of Ohio. Judged by that test, it would seem that the clauses of the statutes to which I have referred would be held to be a license; but in the judgment of this court, this is not the principal question, nor the decisive question, in this case.

In the first place, Sec. 2669, Rev. Stat., provides, “ that nothing herein contained shall be construed to limit the power conferred upon cities and villages in section 1692 of said Revised Statutes,” which, as I have said, relates to a board of health. The act passed afterwards, Sec 2672-113, Rev. Stat., et seg., 90 O. L. L. 835, is not a part of this original chapter, title 12, and has nothing, to do with it. It was passed long after Sec. 2669, Rev. Stat., and is a separate and independent act relating to the city of Toledo.

We think that this ordinance is planted upon the power of the city council to regulate the sale of these articles in the city of Toledo under the statutes which I have read in regard to the board of health. We think it is a health ordinance exclusively. It is passed for the protection of the inhabitants of the city and to prevent the sale of impure milk, to prevent the spread of disease or the danger of the spread of disease amoug those who consume the milk as purchasers. It is needless to say that the powers of the board of health are very large. If you read the whole statutes of the state of Ohio on the subject you will find that the powers that are given to the various boards of health and the laws enacted for the purpose of protecting the people of the state from contagious diseases and from the sale of diseased or impure articles, are about as broad as language can make them; they extend into every relation of life and the protection of health is one of the most important departments that the legislature has to deal with, or that the city council has to deal with under the powers conferred upon it by the legisla, ture of the state in carrying out the general police powers of the state-As I have stated, the police' commissioners are made in this city the board of health, and under Sec. 1692, Rev. Stat., and under this paragraph 24, the city council has conferred upon that body the powers which are set forth in this ordinance.

We are clearly of the opinion that this matter of a dollar that is charged to each wagon that is to be used in selling, does not come within the clause in regard to a license; it is simply one step in this broad ordinance for the purpose of enforcing the object which was had in view in passing the ordinance, to-wit, the enforcing of the sale of pure milk in the city of Toledo. It requires a person who is selling milk in the city of Toledo to make an application to the board of commissioners, and he is to answer certain questions and give his name and occupation, where his dairies are and where he expects to sell. It is a very simple matter in itself; and after that the city issues to him a permit, as it is called, and this tag or certificate that is placed or attached upon the wagon, and perhaps upon the cattle, to show that the party who is selling these articles has submitted to the conditions of the ordinance — to the inspection that is to be had by the authorities, — the board of health of the city of Tolede, and that the milk that he is selling is from barns that have been inspected and from cattle that have been inspected, and that the conditions have been fulfilled to far as human foresight can do it, to see that the milk that is sold is a pure article. It is to enable the purchaser to rely upon the fact that the action of the board of health has been complied with.

Now, in that view of the case, and we think it is the correct view to take, this ordinance does not, in our judgment, come within the provisions of the statute with regard to a license. But, if it did, we think that the clause which excepts, in Sec. 1692, Rev. Stat., the legislation under it, would take it out of the statute. In other words, we think the statute does not apply and that we must look to the other sections for the powers which are conferred upon the city and for the right of the city to take the action which was taken in the passing of the ordinance and the authority of the city in enforcing the ordinance for inspection.

Criticism is made in regard to the ordinance and the powers which are given to the inspector. We see nothing in that law that is inimical to any provisions of the constitution or to the laws of the state in regard to the powers which are granted, nor do we see anything that need to frighten or trouble any person who is intending to perform his duty of having cattle that are healthy and stables that are clean and who is intending to sell milk that is pure to the inhabitants, but it should rather be presumed that all will desire to do that, that they will comply with the statute and be enabled to say to their customers, “You can have no fear of this milk, it comes within the inspection of the city of Toledo and is pure milk.” We see nothing that should be held to be burdensome about it. It is true that officers may examine- the milk and may take a portion of the milk for inspection and it goes before the board of health and a record is kept of it, but the burden is no greater in regard to tbat matter than in regard to other matteres, because in case of contagious diseases the powers of the board of health are very ample; they can close up a man’s business, and perhaps his dwelling and sequester him and his family and place them in a position where they may be protected and where the public may be protected from any evils which may result from disease, and no more seems to be required under this act than is necessary to enable the public officers to inspect the milk and see that it is of the character that is required by the ordinance. The presumption is that the officers will perform their duty fairly and justly, and if they abuse the powers that are vested in them of course they will be held liable to the laws of the land.

Now, maintaining this view, we think that the judgment of the court of common pleas in affirming the judgment of the police court is correct and these judgments, respectively, will be affirmed.

Counsel for Walton said they did not see how he could be prosecuted ; that his case was different. The provisions of the ordinance are broad enough to cover him, and, knowing the facts of the case, the conviction of Walton was as correct as that of Jackman.