text:
    FORCIBLE ENTRY AND DETAINER.
    [Circuit Court of Lucas County.]
    George Heller v. Mary Beal.
    Decided, February 3, 1902.

      Justice of the Peace — Proceedings Before, in Forcible Entry and Detainer — Bill of Exceptions — Competency of Evidence Alone Open to Review — Notice ‘to Vacate and Proof Thereof — Refusal of Defendant to Produce Notice — Copy of, Need Not be Retained.

    1. Facts are established in the trial of a case both by direct and circumstantial evidence, and it is therefore impossible for a magistrate to certify that a bill of exceptions contains all the evidence bearing upon a given subject, or to say what testimony was considered by the jury in arriving at their conclusion, and where this is attempted, and a bill of exceptions does not purport to contain all the evidence offered in a case, it can not be reviewed on the question of weight of evidence.
    2. Moreover, in an action before a justice of the peace in a forcible entry and detainer case, it is the competency of evidence, and not its weight, that is open to review.
    3. Where the record shows in such a case that a demand was made in open court upon the defendant to produce the notice to vacate the premises, and the demand was refused, oral testimony regarding the giving of the notice is competent, notwithstanding no notice was given to the defendant prior to the trial to produce the notice to vacate.
    4. The defendant having this notice in his possession, his refusal to produce it would be some evidence that the contents of the notice, if produced, would be against his contention.
    5. The requirement of the statute is met, if written notice is served on the defendant or at his place of abode at least three days before the bringing of the action; whether or not the plaintiff retains a copy of the notice is of no moment to the defendant.

      Hull, J.; Parker, J., and Haynes, J., concur.
    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 ease. 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 court 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 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, the court, can not consider this question; and third, that if the bill of exceptions is considered, there is sufficient evidence to sustain 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 defendant 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 evideñce 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 witneses called before the justice of the peace, who gave their testimony, and the bill of exceptions shows that there was other testimony (how much, of course, does not appear) besides this, which the justice certifies was all of the testimony there was upon the question of notice.

The bill not setting forth all of the testimony, nor purport-ing 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 can not, under the law and authorities in this state. We think that a court of error can not 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 power 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. The 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, 17 C. C., 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 injuries.’ ”

The opinion, on page 116, cites 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 not.”

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 a 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, Section 6602, Revised Statutes, 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 m the case. So that we think it is clear that this question was properly submitted to tKe jury.

We hold, however, that such a question as this can not 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, Section 6610, Revised Statutes, 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 can not be predicated upon this action of the 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, Sections 560 and 561, says:

" Section 560. 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.
“Section 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 (Section 6602, Revised Statutes), 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 case, 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 opinion that the jury were justified in returning a verdict in favor of the plaintiff.

T. N. Bierly, for plaintiff in error.

L. T. Williams and F. E. Calkins, for defendant in error.

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 can not 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.


source: Caselaw Access Project

license: Public Domain

text:
    DAMAGES TO PROPERTY FROM THE BREAKING OF A WATER. MAIN.
    [Circuit Court of Hamilton County.]
    Gustav R. Werner v. The City of Cincinnati.

    Decided, April 16, 1902.

      Damages — From the Bursting of a Water Main, Flooding Residence Property — Proximate Cause not Faulty Construction of House— Erroneous Charge of Court as to Contributory Negligence — Pleading as to Former Recovery — Defense of Res Judicata.

    1. A property owner in constructing a building or maintaining service pipes ist not bound to anticipate tbe contingency of tbe bursting of a water pipe in the street, and in an action against the municipality for damages on account of a rush of water over his premises from such a break, it is erroneous to charge that he can not recover if his own acts or omissions contributed in any degree to the injury, where no issue has been made either in the pleadings or evidence as to contributory negligence.
    2. A former recovery relied upon as an estoppel should be pleaded; but if not pleaded, the judgment is still admissible in evidence, though it is not a conclusive bar to the action.
    3. Whether actually determined or not, every question which might have been litigated in a former suit will be deemed to be at rest.
    4. Other errors are immaterial, if a defense of res judicata is sustained by the evidence.
    Giffen, J.; Swing, J., and Jelke, J., concur.
    Heard on error.

       Affirmed by the Supreme Court without report, April 5, 1904.

   The plaintiff below alleges in his petition that the city negligently suffered its water mains to leak, and causes the water to flow over his premises, whereby his dwelling house was damaged in the sum of $2,000.

The amended answer contains a general denial, and also an allegation that if any injury has happened to said property it has resulted from the neglect and improper construeion of said house and the maintenance thereof, and to the negligent maintenance of service pipes unrepaired.

The reply contains a denial of new matter in the answer.

A verdict was returned for the city and judgment rendered thereon. Plaintiff prosecutes error, and as a ground thereof says the court erred in giving to the jury, at the request of the city, the following special charge, to-wit:

“If you find that the acts or omissions of the plaintiff, as you may find from the evidence, contributed in any degree to the injury of which he complains, your verdict must be for the defendant.”

This instruction and the facts of the case are similar to those in Johnson v. Cincinnati, 20 C. C., 657, in which case this court held the special charge to be erroneous upon authority of Schweinfurth v. Railway Co., 60 Ohio St., 215. The charge before us comes within the same authority, and for like reasons must be held erroneous.

It may be said in addition that the pleadings do not present a case of contributory negligence, and hence there was no occasion for a charge upon that subject. The proximate cause of the injury was as alleged in the petition, the breaking of the water main, and if the damages were only enhanced by reason of the defective construction of the house or the negligent maintenance of the service pipes, neither of them was a cause without which no damages would follow, and if either or both of them cause all the damage, independent of the break in the main, then there was a failure of proof of the negligence alleged. If A negligently breaks a window in B’s house, B has a cause of action against A for damages, and it is no defense if the glass was thin and weak, and that had it been of double strength it would not have been broken. So that in this ease the plaintiff owed no duty to the city in constructing his house, or maintaining his service pipes, to anticipate and provide against a rush of water caused by the negligence of the city. '

This error, however, is immaterial if the defense of res judicata is sustained by the evidence. Such defense was not pleaded, but a petition filed by this plaintiff and the judgment thereon were offered in evidence, from which it is claimed by the city that the matters litigated in this suit were determined in the other case. While a former recovery relied on as an estoppel should be pleaded, still if not so pleaded the judgment is admissible evidence, but it is not a conclusive bar to the action; the jury may nevertheless find for the plaintiff if they think him entitled, to recover. Meiss v. Gill, 44 Ohio St., 253.

Gustav R. Werner, for plaintiff in error.

Corporation Counsel, contra.

In that case, which was commenced after the present suit, the petition contains the allegation that by reason of the careless and negligent manner in which the retaining wall in front of his premises was constructed, the same has become cracked, and that in consequence thereof the water and sewerage seeps through the said wall from said street and into the foundation of his house, undermining the same and damaging the house . in the sum of $500. In each case the petition contains the averment that the damage to the house was caused by the water flowing from the street, in the one case from a broken main, and in the other, presumably from the surface of the street, and the time within which the damage was done in the present suit is included in the period covered by the suit first determined. Although the averments in the two petitions are not precisely alike, the same damages arising from substantially the same cause are set out in each.

It is immaterial whether the negligence of the city consisted in suffering the water main to be and remain out of repair, or whether any negligence was alleged or shown in the other suit, provided the same flow of water and resulting .damage that are now alleged were embraced in the former adjudication, and we think they are identical.

It is urged by counsel for plaintiff in error that the former judgment is for damages arising only from a change of grade of Baltimore avenue, but it will be observed that this part of the judgment is by consent, and made to include damages thereafter accruing, while the judgment proper covers all the issues in the case; and besides it is well settled that every question which the parties might have litigated in a case is deemed at rest, whether actually determined or not. Petersine v. Thomas, 28 Ohio St., 596.

It is apparent from the record that the jury found for the defendant below, for the reason that thfe former judgment was a bar to this action, and having affirmed this finding, we think it unnecessary to consider the errors assigned.

Judgment affirmed.


text:
    REQUIREMENTS BY BUILDING ASSOCIATIONS AS TO INSURANCE.
    [Circuit Court of Lawrence County.]
    John Geswine, Jr., v. Star Building & Loan Co.
    Decided, 1902.

      Building Associations — By-Law Requiring that Insurance Policies shall he Kept on Deposit with the Company — Covering'All Property on which Mortgages are Held — Policy Expires and Property Burns— Company Liable for the Loss — Agency.
    The by-laws of the defendant building association provided that all property upon which mortgages were held should be kept insured and the policy deposited with the association, and in the event of the failure of a borrowing member to procure insurance or secure a renewal, this was to be done by the association at his expense. Upon obtaining a loan from the association, G procured insurance and deposited the policy as required by its by-law. He had no notice of the expiration of the policy, and the association failed to secure a renewal, and the property having thereafter been partially destroyed by fire, he sued the association for the loss thus sustained. Held: That this provision of the by-laws made the association as to the matter of insurance the agent of the- mortgagor, charged with the duty of holding the policy and renewing it if a renewal became necessary, at the mortgagor’s expense, and having failed so to do, the association became liable to the mortgagor for the loss sustained.
    Cherrington, J.; Sibley, J., and Jones, J., concur.
    John Geswine against The Star Building & Loan Company of Ironton, Ohio, a corporation, is a petition in error to reverse the judgment of the common pleas court in sustaining a demurrer to the petition as amended.
   The petition, after stating that the defendant is a corporation existing under the laws of Ohio, states that the defendant adopted a constitution and by-laws, and copies a number of the articles of-the same, some of which I will read.

Article 5 provides that any person upon subscribing for, or in any way becoming the owner of one or more shares of the capital stock of this association, shall become a member thereof, and as such shall be entitled to all the benefits and privileges, and subject to all the liabilities and duties of membership as prescribed by the constitution and by-laws.

That on or about January 7, 1896, this plaintiff subscribed for and became the owner of five shares of the capital stock of said defendant, and ever since has been and is now the owner thereof.

Article 3 provides that the association is organized for the purpose of raising money to be loaned among the members thereof, for use in buying lots and houses, in building and repairing houses, and for such other purposes as are authorized by law.

Section 4 of the by-laws providégf among other-things, that the treasurer of said defendant shall be the custodian of all the funds, notes, mortgages, fire insurance policies, and other papers belonging to the association, and that his books shall be open to any member of the board of directors at any time.

While all of these that I have read are important, Section 32 of the by-laws is the most important one of all; it provides that—

“When the board of directors see fit they may require any member taking a loan to cause the mortgaged property to be insured for the benefit of the association against loss by fire, in some company to be approved by them, in a sum which they shall name and to keep the same insurance during the continuance of the loan. The policy of insurance, properly indorsed by the company insuring the same, shall be deposited with the association, and all renewals on policies so deposited shall be made by the association and the cost thereof deducted from, the amount paid from the borrower. Upon the failure of any . member to insure said property as required, or upon the cancellation of any policies deposited as aforesaid, the board shall insure the same at the expense of such member and deduct the cost thereof from the amount paid in by him.”

Section 27 provides, among other things, that all loans must be secured by first mortgages on real estate in Lawrence county, Ohio, or on the stock of the association, or on government bonds or other equally good collateral, that he owns.

That on or about August 31, 1896, this plaintiff borrowed of said defendant on three shares of its capital stock owned by him, the sum of $300, and in order to secure the payment thereof to the said defendant, according to the provisions of its said by-laws, executed and delivered to said defendant his certain mortgage upon certain lots of real estate described, of which he was and still is the owner; that a two-story frame dwelling house stood upon the real estate on said date and continued to stand there, in good condition, until about September 11, 1900. That one of the conditions of said mortgage required the plaintiff to keep insurance on the property described therein, as the board of directors of the defendant required; said mortgage has never been paid off or canceled, and is still in full force and effect.

The amendment is as follows:

“That on or about August 16, 1897, the plaintiff caused said dwelling house to be insured for a period of three years from said date in the Teutonia Insurance Company, of Dayton, Ohio, in the sum of $500 for the benefit of the plaintiff, loss, if any, payable to the defendant as its interest in said premises might appear as mortgagee. That at the expiration of the date of said policy of insurance as hereinafter set out, the indebtedness of this plaintiff to said defendant did not exceed the sum of one hundred dollars; that said board of directors required this plaintiff to deposit said policy of insurance properly indorsed by the company insuring the same, with said defendant, The Star Building & Loan Company, of Ironton, Ohio, and to keep the same insurance during the continuance of the loan. ’ ’

That the said policy of insurance properly indorsed by the company insuring the same, and that in pursuance of the provisions of Article 32 was by this plaintiff immediately deposited with the treasurer of the defendant and approved by him, and said association received said policy without objection and took the same into its custody, and still has possession and control thereof; that upon the deposit of said policy by this plaintiff with said treasurer, as aforesaid, this plaintiff paid no further attention to the insurance on said dwelling house and thought nothing more about the same, but relied upon the defendant to renew the said policy as by said Section 32 required, and as it was bound to do, and this plaintiff had entirely forgotten the date of its expiration and had no means of knowing the date of the expiration of said policy • neither did the defendant nor any other party notify him of said expiration, nor did the plaintiff have" any knowledge of the expiration thereof; and he says on August 16, 1900, the said policy of insurance expired, and that defendant failed and neglected to renew the same or to insure said dwelling house in any other company; that this plaintiff had no other policy of insurance upon said dwelling, and on September 11, 1900, said dwelling house was partially destroyed and damaged by fire to the amount of $400, and he asks that he recover judgment for the said $400 with interest.

The court sustained the demurrer to that petition as amended, and the sole question for determination in this court is as to the validity of this petition as amended. Do the averments state a cause of action? The theory of counsel for the defendant is that the scheme of the defendant, as indicated by its by-laws, was that this insurance should be for the benefit of the association alone, and for its own convenience. It is provided by by-law* 32 that it shall be deposited with the treasurer, and that he shall make renewals and attend to all these matters and charge the same up to the mortgagor, and that that clause 32 being solely for the benefit of the defendant, he can comply with it or waive it as he sees proper, and if he waive the benefits intended to be covered by that clause of the by-laws, and decline to take out a policy at the expiration of the original policy, that is an end of the matter so far as that policy was concerned, and it would involve no liability.

We have been cited to no authorities in this matter; counsel has stated that they have searched for them and are unable to find anything bearing upon this point, and it must be decided upon elementary principles; and some of the members of the court, possibly the majority of us, thought at the conclusion of the argument — we were rather inclined to adopt the views urged by the defendant, but on further examination, we have come to the conclusion, while there may be some doubt about the matter — that that is not the proper view to take of this case. It is true that the scheme on the part of the defendant was, in addition to this security by mortgage on the stockholder’s real estate, to have an additional security for itself in the shape of insurance; while it is true that was the ease, yet we think also, that it is pretty plain from the reading of these by-laws, that this insurance was for the mutual benefit of the company and this stockholder.

There is only one paragraph in this section 32 that militates against that view, and that is, for its convenience, of course, “that all renewals on policies so deposited shall be made by the association and the cost thereof deducted from the amount paid from the borrower.” Now let me transpose the language a little bit right here. “And upon the failure of any member to insure said property as required or upon the cancellation of any policies deposited as aforesaid, the board shall insure the same and deduct the cost thereof from the amount paid in by him.”

The only feature in these by-laws that militates against the view that is for the mutual benefit of both parties is this: “Upon the failure of any member to renew the same, the renewal shall be made by the association and the cost deducted from the amount paid in by him;” but, whatever may be the intention as to that paragraph, the effect of it is the same. The effect of it is mutual insurance. The company had already been secured by mortgage. The stockholder had borrowed only $300, and he had taken out insurance for $500. It is very apparent that the effect of the whole thing was for the mutual benefit of both parties.

We think that can be settled on the doctrine of agency; that these by-laws made the association the agent for the mortgagor and the one insuring and they agreed these by-laws, that is the effect of them, they agreed to take charge of this policy and renew it if it became necessary and charge it up to the plaintiff, and failing to do that, why are they not liable for the failure to comply with their contract ?

I say there have been no authorities cited; we don’t attach much value to this brief opinion in 65 Illinois, 453-62, yet it tends in the direction that I have named. Now, it is not authority of any value because there is an entire absence in the ■statement of the case of any by-laws governing the association which show or determine the respective duties of the parties, but there the plaintiff had procured a loan of $700 from the 'Chicago Building Association, giving his note and deed of trust on the real estate for security, and he covenanted in that deed to keep the building insured in such company as the building association should designate. Crowell procured a policy for $1,000 and deposited the policy with the company; the secretary paid the premium of five dollars and charged it up to Crowell on his pass-book; a short time before it expired he went to the secretary, said he would take out the policy himself, and the secretary replied that the association preferred to do it; thereupon Crowell left the matter with the secretary, and the secretary neglected and failed to renew the pqlicy, and the building burned down and suit was brought. The only defense made in the case is, that this secretary had no authority to make the representations, or the agreement with Crowell that he did make, but the court holds that this secretary had the right to make these representations, and we take it, although it does not so state, that the company,-having induced Crowell to permit this company to insure, is estopped from saying that it was not their duty to do so, and holds the company liable, and, of course, it must have been on the theory that the company was the agent of Crowell, the plaintiff in the case.

Corn & Thompson, for plaintiff in error.

Miller & Miller, for defendant in error.

As before stated, we think these by-laws constituted this defendant the agent for the plaintiff, to renew this policy, and having failed to do it, it shows dereliction of duty, and the company is liable therefor.

The judgment will be reversed and the cause remanded with instructions to the court below to overrule the demurrer.


text:
    STREET RAILWAY FARES ON LEASED AND PURCHASED LINES.
    [Circuit Court of Lucas County.]
    State, ex rel Sheets, Attorney-General, v. Toledo Railway & Light Co.
    Decided, June 20, 1902.

      Street Railways — Franchises of — Conditions Imposed as to Rates of Fare — Violated on Purchased and Leased Lines — Quo Warranto by the State the Proper Proceeding Against Offending Company— Allegations Sufficient Against Demurrer — Action ex contractu by City — Sections 2501, 2502 and 2505a.
    1. An ordinance prescribing terms and conditions upon which a street railway franchise may be used has the force and effect of an act of the Legislature, and to prevent violation of the terms of such franchise an action may be brought ex contractu by the municipality or in quo warranto by the state.
    2. Where a company has acquired lines by lease or purchase, under the authority of 2505a, and is collecting fares for one continuous ride in the same general direction over its said lines so purchased within the corporate limits in excess of the maximim rate of ■ fare to be charged over any one of the separate lines, quo warranto by the state is the proper proceeding to prevent further offending in that regard.
    3. An allegation setting forth such offending in general form is good against demurrer.
    Parker, J.; Haynes, J., and Hull, J., concur.
   This is an action in quo warranto. Tbe relator states in Ms petition :

‘ ‘ That the defendant, The Toledo Railway & Light Company, is a corporation duly organized under the general corporation laws of the state of Ohio for the incorporation of street railways, and has been such since July 1, 1901, in the city of Toledo, county of Lucas and state of Ohio; that said defendant became and is so incorporated as aforesaid for the purpose of constructing, maintaining, operating, extending, purchasing, acquiring, leasing and owning street railroads and railroads operated as street railroads, to be operated by electric power, together with all the property and all the franchises, rights and privileges, respecting the use and operation of the same, and for all purposes incidental thereto, in said city of Toledo, Lucas county, Ohio:
“That prior to August 10, 1901, the Toledo Traction Company was the owner of, and was operating and maintaining all the lines of street railway existing within said city of Toledo, and owned, enjoyed and operated all the rights, privileges, franchises, property and street railway lines theretofore owned, operated and enjoyed by the following persons and corporations, to-wit: the Central Street Railway Company; The Metropolitan Street Railway Company; David Robison, Jr., Trustee; The Toledo Electric Street Railway Company; The Tolelo Traction Company.
“That said several persons and corporations above named operated and maintained their respective lines of street railways upon and over the streets, alleys, ways, lands and highways of the city of Toledo, and enjoyed the rights, privileges and franchises thereto, annexed, by virtue of separate grants and franchises made by said city of Toledo to each of said persons and corporations, upon the condition, among others therein expressed, that the grantee of the privilege and franchise, the successors or assigns of such grantee, should not charge a higher rate of fare than five cents for each adult passenger for one continuous route or ride in the same general direction over all the lines therein authorized to be constructed and operated; that said several persons and corporations above named accepted their respective grants conditioned as above set forth and enjoyed the rights, privileges and franchises therein granted, and constructed, operated and maintained lines of street railways upon and over the streets, alleys, ways, lands and highways of the city of Toledo thereunder; that each and every of said grants of franchises, rights and privileges so made by the city of Toledo to said several persons and corporations above named, was for a period of twenty-five years, and all of said grants so made are at this date unexpired and each and all of said grants have a long period of time, to-wit, more than seven years yet to run.
“That said The Toledo Traction Company constructed, operated and maintained its said lines of street railway upon and over the streets and public ways of the city of Toledo, by virtue and under the condition of the said several grants so made by the city of Toledo to the several persons and corporations above named, as the successor or assign of said persons and corporations.
“That on August 10, 1901, said defendant, The Toledo Railway & Light Company, acquired by purchase from said The Toledo Traction Company all the lines of street railway existing within the corporate limits of said city of Toledo, together with all the rights, privileges and franchises thereto belonging and connected therewith, and said defendant has ever since said August 10, 1901, been, and now is, the owner of, and has since said date been and is now operating and maintaining all said lines of street railway; that said The Toledo Railway & Light Company is maintaining, controlling and operating all of said lines of street railway in the city of Toledo as the successor and assign of said The Toledo Traction Company, and under and by virtue of and subject to the conditions of the grants made by the city of Toledo as aforesaid, to said several persons and corporations hereinbefore named, and has no other right or franchise to construct, operate or maintain lines of street railway upon the streets, alleys, highways and public places in the said city of Toledo.
“That said defendant, The Toledo Railway & Light Company, as such corporation aforesaid, has ever since August 10, 1901, continuously within this state, to-wit, at the city of Toledo, in the county of Lucas, offended against the laws of this state and the provisions of an act for its creation and grossly misused its corporate authority and the franchises and privileges conferred upon it by law and especially in the following particulars, to-wit:
“First. That it has refused and does refuse to carry and transport passengers over its said lines of street railways at the rates of fare established by the contract of its predecessors in rights and interests, and fixed by the grants of rights, privileges and franchises from the' city of Toledo, under which it operates said lines of street railways upon and over the streets, alleys and public highways of said city of Toledo.
! ‘ Second. That it has established and. demands and receives, and requires the public to pay, a higher rate of fare for one continuous route or ride in the same general direction over all its said lines of street railway, so purchased as aforesaid, within the corporate limits of the said city of Toledo, than the maximum fare charged over any one of the several separate lines of street railway, so purchased prior to such purchase aforesaid.
“Third. That it has established, charged, demanded and collected a rate of ten cents for one continuous route or ride in the same general direction over its lines of street railways, within the corporate limits of the city of Toledo, so purchased and operated as aforesaid, and that the highest rate of fare charged for one continuous route or ride in the same general direction, within the corporate limits of the city of Toledo, over any one of said several lines of street railways so purchased as aforesaid by the defendant, The Toledo Railway & Light Company, prior to said August 10, 1901, has been five cents.
“Wherefore the relator prays the advice and judgment of the court in the premises and due process of law against said The Toledo Railway & Light Company, and that it be adjudged to have forfeited its franchises and be ousted therefrom or from the franchises so abused by it.”

The complaint made against the defendant here, in substance, is: That it acquired these lines by purchase in pursuance of the authority of the statute which imposes as one of the conditions of purchase that it should not charge over any of the lines running in the same general direction a greater rate of fare than was charged as the maximum charge over any one of the constituent lines before such purchase and sale. And it is said that defendant is violating this condition, and, in that respect, is unlawfully exercising the franchise.

The defendant demurs to the petition on the grounds:

“1. That said Circuit Court of Lucas County, Ohio, has no jurisdiction of the subject of the action.
“2. That the plaintiff has not legal capacity to sue in this action.
“3. That the petition does not state facts sufficient to constitute a cause of action in quo warranto.”

The second ground of demurrer is not urged or relied upon, and we have not been able to discover any reason for challenging the capacity of the plaintiff to sue or of the relator .to represent the plaintiff.

The first ground of the demurrer is based upon the claim and contention of the defendant that the subject-matter of the suit is founded on contract and not on franchise, and that if the defendant is guilty of any wrong, the petition discloses that such wrong consists of the violation by the company of the contract between the company and the city, though the company does not concede that there is any contract existing that forbids its charging fares as alleged in the petition. Perhaps, more accurately stated, the contention is that the subject-matter might appropriately be regulated by contract, but that it is not and can not be an element of franchise, and if regulated by contract, the remedy must be by an action ex contractu, and can not in any event be by an action in quo warranto.

By the company it is conceded that the privilege of constructing and maintaining tracks, poles, wires, etc., in the streets of the city, and operate ears upon the same, is a franchise emanating from the state, but it contends that the charge for the service is an exercise of a natural right, which does not emanate from the state as a privilege or franchise, although it may be regulated by contract with the municipality where the railways are operated.

Sections 2501 and 2502, Revised Statutes, provide for the granting by municipalities of permission to persons or corporations to construct and operate street railways upon “terms and conditions” to be prescribed by the council by ordinance, and that such grant shall not be made “except to the corporation, individual or individuals that will agree to carfry passengers upon such proposed railroad at the lowest rate of fare,” etc.

We understand that it is contended by the relator that the terms and conditions thus imposed are conditions imposed upon the exercise of the franchise; that though the franchise emanates from the state, it is not to be enjoyed except by permission of the municipality and upon terms and conditions prescribed-by the municipality. That this authority to prescribe terms and conditions also emanating from the state and to be exercised by an agency of the state for the public benefit, amounts to an authority to mould or modify the franchise, and that the conditions upon which the franchise is to be enjoyed are limitations upon and integral parts of the franchise, so that the exercise of the franchise in violation of such conditions may be said to amount to an unlawful exercise of a franchise and to authorize quo warranto proceedings as provided by Section 6760, Revised Statutes, and the sections following.

We do not find that we are called upon to decide upon this contention in passing upon this demurrer, but the question is likely to be directly presented later on in the ease, and therefore we take occasion to remark that we do not regard the fact that these conditions are matters of contract, or arising out of contract between the railway company and the municipality, as a fact decisive of the question, or at all singificant, for franchises in general are founded upon contract between the state or authority granting the same and the companies to which the same are granted.

As to the character of the franchise, it is said in California v. Railroad Co., 127 U. S., 1, 40, by Mr. Justice Bradley:

“Generalized, and divested of the special form which it assumes under a monarchical government based on feudal traditions, a franchise is a right, privilege or power of public concern, which ought not to be exercised by private individuals, at their mere will and pleasure, but should be reserved for public control and administration, either by the government directly, or by public agents acting under such conditions and regulations as the government may impose in the public interest, and for the public security.”

As a matter of convenience, I read from Anderson’s Dictionary of Law, at page 474, a short paragraph, which cites Chincleclamouche Lumber Co. v. Commonwealth, 100 Pa. St., 438, 444; and The Binghamton Bridge, 70 U. S., 51.

“A grant of a corporate franchise by an act of legislation, accepted by the grantee, is a contract between the state and the grantee, the obligation of which a subsequent Legislature can not impair. ’ ’

In State v. Railway Co., 40 N. W. Rep., 487, the syllabus reads:

“Under Section 1862, Revised Statutes, a municipal ordinance granting to a street railway corporation a franchise to occupy and use public streets for the purposes of its railway, has the force and effect of a statute of the state; and for a violation of the provisions of such ordinance an action may be maintained under Section 3241, Revised Statutes, to vacate the charter or annul the existence of such corporation.”

The ease contains an interesting discussion which I will not pursue by reading. So far as we can discover, the statutes of the state of "Wisconsin upon this subject are not materially different in respect to the extent -of authority conferred and the character of a franchise granted, from the statutes of the state of Ohio upon the same subject.

Further on the subject of franchises I refer to 2 Spelling Injunctions and Other Extra. Rem., Section 1807:

‘! Where the statute by legal exercise of a right which, at common law, was private, is made to depend upon compliance with conditions interposed for the security and protection of the public, the necessary inference is that it is no longer private, but has become a matter of public concern — that is, a franchise, the asumption and exercise of which without complying with the conditions prescribed would be a usurpation of a public or sovereign function.”

We are cited by counsel for the defendant to People v. GasLight Co., 38 Mich., 151. The decision of Campbell, chief justice, and the bench was made up of very able judges, among whom was Thomas M. Cooley, and we have to say with respect to that decision simply this: That we are unable to reconcile it with what we understand to be the law and the theory of the law of the state of Ohio upon this subject. It seems to us that if a case of that character should arise in this state, it must be held that the privileges conferred there were in the nature of franchises, and that the conditions imposed were in the nature of conditions to the exercise of such franchises; but, however that may be, we do not understand the case to be in point upon the precise question presented by this demurrer, for the reason that we understand the question arises here upon the granting of a franchise by a state, by an act of legislation which itself imposed the conditions upon which the franchise is to be exercised, and does not involve the question of the effect of conditions imposed by a contract in the form of an ordinance entered into between the company and the municipality. The fact that the city, or individuals, may have a remedy by actions ex contractu- or otherwise and can not proceed by quo warranto, affords, we think, no valid objection or obstacle to the state availing itself of this extraordinary remedy for the advantage of the general public, or for the enforcement of the rights of the general public, for it must be remembered that the use of the streets of the city and the occupation thereof by the tracks, cars and business of transportation companies are subjects in which the whole public, not merely residents of the municipality, are interested and have rights, and in imposing these conditions to the exercise of these franchises, we think the city acts as the agent of the state and for the whole public, not merely for the city in its corporate capacity or for the residents of the city, and that the state may interfere when these conditions in which the public are interested are not complied with. And we believe that quo■ warranto is a proper form of proceeding to reach the end aimed at.

In State v. Traction Co., 18 C. C., 490, which was a suit in quo warranto, to interfere with and prevent a street railroad from carrying freights through the city of Dayton, on the ground that it was exercising a franchise not conferred upon it by law, it was held that it was exercising a right upon which the municipality had no right to place a limitation, and that an ordinance which undertook to prevent it from carrying freight was invalid for that reason. But, with respect to the remedy pursued, if it had turned out that the contention of the relator was correct as to the right involved, we understand that proceeding by quo warranto was approved of. I read from page 217 a part of the opinion by Summers, J.:

“This brings us to the question of the validity of the provision of the ordinance prohibiting the carrying of freight. It is contended, however, that an ordinance granting permission to construct a street railway is a contract (Cincinnati Street Ry. Co. v. Smith, 29 Ohio St., 291, 306; Cincinnati & S. Ry. Co. v. Carthage, 36 Ohio St., 631; Columbus v. Street Railroad Co., 45 Ohio St., 98); that quo warranto is not the remedy for enforcing a contract (State v. Railroad Co., 50 Ohio St., 239); and further, that a special remedy is provided by Section 1777, Revised Statutes, which makes it the duty of the city solicitor, whenever an obligation or contract made on behalf of the corporation granting a right or easement is being evaded or violated, to apply for the forfeiture or the specific performance of the same.
“It is true that such an ordinance is in some respects a contract, and so is a franchise. And in some states it is held that the right acquired by ordinance to construct a street railway is merely a license or easement, and that quo warranto is not the proper remedy to enforce the ordinance.”

Citing many cases, and among them People v. Gas Light Co., 38 Mich., 154.

He then, proceeds to say:

“But the better considered eases hold that the permission given by ordinance to construct a street railway in the street is a franchise granted by the state through the agency of the municipality, and that a violation of the same may be inquired into in quo warranto.”

Citing cases from Wisconsin, Alabama, and State v. Street Ry. Co., 41 S. W. Rep., 955.

And when this case came to the Supreme Court we find from the report in State v. Traction Co., 64 Ohio St., 272, that this course of proceeding to inquire into the question whether or not the company was unlawfully exercising its franchises, seems to have received the approval of the court.

I can not see that State v. Dairy Co., 62 Ohio St., 350, which has been cited by counsel and discussed somewhat, throws any direct light upon this precise question involved here.

This complaint is based upon a clause in Section 2505a, Revised Statutes, that being the form in which the act was passed on April 23, 1898 (93 O. L., 214). This statute confers upon companies of this kind power to lease or purchase property of a railroad company, and to acquire its franchises. It points out the course of proceeding in order to accomplish this result, and contains this provision in the last clause:

“Provided, that whenever any such lease or purchase is made as herein provided, there shall be no increase of the existing rates of fare by reason of such lease or purchase, nor shall any fare be charged upon any of the separate routes so leased or purchased in excess of the fare charged over such separate routes prior to the lease or purchase thereof, and provided that when any such lease or purchase is made as herein provided, the fare charged for one continuous route or ride in the same general direction over all such leased or purchased lines within any municipal corporation shall not exceed the maximum fare charged over any one of said lines prior to such lease or purchase. ’ ’

It is distinctly averred in the petition that this purchase of these different lines by the defendant was made under authority of this statute, and it is distinctly averred that the company is offending against this statute, in that it is charging more for a continuous ride in the same general direction over, such line or .purchased lines within the corporation than the maximum fare charged over one of said lines prior to such lease or purchase. ' These averments in the petition are very general in form, but we think they are sufficient to withstand a demurrer; whether they would be sufficient as against a motion to make them definite and be sufficient as against a motion to ’ make them definite and certain, we are not called upon to say. A corporation can not dispose of its franchises; a corporation can not acquire the franchises and property of another corporation, except under authority of legislation authorizing it (Branch v. Jesup, 106 U. S., 468, 484, 488). And we are of the opinion that the company having- exercised this authority under and by virtue of the statute, since it could not otherwise acquire the property, avails itself of power conferred upon it by the statute subject to the conditions imposed by the statute, and that the attorney-general may by quo warranto require it to observe such conditions. "Whether these lines and routes with respect to which it is said the company is offending, do run in the same general direction so that it may be required to reduce its fares, is a question we have not yet reached. The- petition does not enlighten us except by general terms; further pleadings in the case may present the question. Whether the company may avail itself of this authority without being obliged to observe the conditions on the ground that it had existing rights conferred upon it by previous legislation, or by existing contracts between it' and the municipality, is another question, only hinted it and not discussed and not now present in the -case, but a question which we imagine is looming up to bother us on after occasions. There is nothing in the pleadings as they stand to indicate that there is any such vested right being interfered with by the conditions imposed.

Something has been said in 'the course of the discussion about the extent of the relief that may be granted. It is sufficient to say that the court has power to mould the remedy to meet the exigencies of the case. The court will not be called upon to go farther than would be necessary to require the company to desist from exercising its franchises in charging and collecting fares in so far as they may be in excess of the rates fixed by the statute; but that is a matter not presented by the demurrer and may be for further consideration. We hold that the petition is good as against a demurrer, and the demurrer is overruled.

John M. Sheets, M. R. Brailey and John P. Manton, for plaintiff.

Smith & Baker, for defendant.


text:
    REGULATION OF THE SALE OF MILK.
    [Circuit Court of Lucas County.]
    Harley Walton v. City of Toledo.

    Decided, July 1, 1902.

      Ordinance — Authorizing Inspection of Millc Valid — As a Health Measure — Permit to Beil Hot a License — Exemption of Vendors of their Own Products Hot Applicable — Broad Powers to Boards of Health— Ordinance not Burdensome.

    1. An ordinance regulating the sale of milk and cream, and providing for an examination of the places where produced and the product sold, and for the issuing of a permit to sell by the board of health, is not burdensome to the producer or inimical to the Constitution.
    2. Such a permit, for which a fee of one dollar is charged, is not a license, and therefore not in violation of Section 2669, which exempts vendors of their own products from payment for a license.
    3. Moreover, the exemption found in Section 2669 is subject to the exception that it shall not be construed to limit the powers of the board of health, and a fee of one dollar may be collected from persons selling milk regárdless of whether it be denominated a license.
    Haynes, J.; Parker, J., and Hull, J., concur.
    Heard on error.

       Affirmed by the Supreme Court without report, October 27, 1903.

   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, Revised Statutes, 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, Revised Statutes, 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, Revised Statutes:

‘ ‘ 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 pówer 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. L. 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 Section 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 therefo'r 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 merchandise 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 Lucas, 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 Jack-man.

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 come within the exceptions, 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, 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, where there is also a discussion and definition of the question of license by Chief Justice 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, Section 2669, Revised Statutes, 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, Section 2672-113, Revised Statutes, et seq. (90 O. L. L., 335), is not a part of this original chapter, title 12, and has nothing to do with it. It was passed long after Section 2669, Revised Statutes, and is a separate and independent act relating to the city of Toledo.

We think that this ordinance is planted upen 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 among 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 u¿>on it by the Legislature of the state in carrying out the general police powers of the state. As I haye stated, the police commissioners are made in this city the board of health, and under Section 1692, Revised Statutes, 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 Toledo — 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 so 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 Section 1692, Revised Statutes, 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 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 that matter than in regard to other matters, because in case of a contagious disease 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.

Southard & Southard, for plaintiffs in error.

M. R. Brailey, City Solicitor, for defendant in error.

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 ordinances are broad enough to cover him, and, knowing the facts of the case, the conviction of Walton was as correct as that of Jackman.