text:
    THE FELLOW-SERVANT LAW CONSTITUTIONAL.
    [Circuit Court of Lucas County.]
    Ignatius Froelich v. Toledo & Ohio Central Railway Co.
    Decided, February 23, 1903.

      Constitutional Law — A Statute Not Invalid for Laclo of Uniformity of Operation — Because It Applies to Railroads Only — And to a Particular Class of Railroad Employes — Engineer of Goal Tipple and “Hooloer” of Hoisting Apparatus are Fellow-Servants, When.

    1. The statute known as the fellow-servant law, Section 3365-22, is not invalid under the Ohio Constitution for lack of uniform operation, or for granting special privileges, nor does it contravene the provision of the Constitution of the United States guaranteeing the equal protection of the laws to all.
    2. A statute does not fail for want of uniform operation because it applies to railroad companies and not to other corporations, where it has a uniform operation upon all railroad companies within the state, and reasonable grounds exist for its application to railroad companies which do not exist as to other corporations.
    3. A classification of employes, although somewhat arbitrary, is not in violation of either the Constitution of the state or of the United States, where the classification provided for is reasonable and is made with a proper purpose.
    4. The engineer in control of the machinery of a coal tipple and a “hooker,” who hooks and unhooks the hoisting tackle, are in the same department within the meaning of Section 3365-22, and where the engineer has no control over the hooker they are fellow-servants.

      Hull, J.; Haynes, J., and Parker, J., concur.
    Heard on error.
   . The plaintiff on error was the plaintiff below, and brought his action to recover damages against the Toledo & Ohio Central Railway Company for injuries which he claims he sustained on account of the negligence of the railway company through an employe superior to the plaintiff, Froelich, claiming that he was an employe without any power to control or direct any other employe; that the employe through whose negligence he was injured, to-wit, an engineer, was in control of and had charge over another employe and was in another branch or department of the service from Froelich, and that, therefore, the railway company was liable under the last clause of Section 3365-22’, Revised Statutes (87 O. L., 149), which statute reads as follows:

“That in all actions against the railroad company for personal injury to, or death resulting from personal injury, of any person while in the employ of such company, arising from the negligence of such company or any of its officers or employes, it shall be held in addition to the liability now existing by law, that every person in the employ of such company, actually having power or authority to direct or control any other employe of such company, is not the fellow-servant, but superior of such other employe; also that every person in the employ of such company having charge or control of employes in any separate branch or department, shall be held to be the superior and not fellow-servant of employes in any other branch or department who have no power to direct or control in the branch or department in which they are employed.”

The plaintiff claims to be within the last clause: “Also that every person in the employ of such company having charge or control of employes in any separate branch or department, ’ ’ etc.

The plaintiff and the engineer, with other men, were engaged in operating a “Brown hoisting” apparatus, in unloading coal from ears into a vessel. After the testimony of both plaintiff and defendant had been heard at the trial in the court below, the court, upon motion of defendant, instructed the jury to return a verdict in favor of the defendant, upon the sole ground, as shown by the opinion of the court, that the clause of this section which the plaintiff claimed is unconstitutional —in violation of the Constitution of the United States and the state of Ohio — the court holding that but for this the plaintiff would have been entitled to have his case go to the jury, holding that there was evidence tending to show negligence on the part of the defendant, and that whether the plaintiff was guilty of contributory negligence was a disputed question of fact, and holding that Froelich was in a separate branch of service from the engineer, on account of whose negligence he claimed to have been injured. The constitutional questions were argued at length and ably in this court, and the first question for consideration is, whether this clause of the statute is in conflict with any of the provisions of the Constitution of this state or of the United States.

It is claimed by the defendant in error that it is in conflict with Section 1 of the Fourteenth Amendment of the Constitution of the United States and in conflict with Section 2, Article I of the Constitution of Ohio, being a portion of the Bill of Rights, and with Section 26, Article II of the Constitution of this state. The claim, in substance, is that this is class legislation-special legislation, made applicable without sufficient reason, to a particular class, to railroad companies alone — and to a particular class of railroad employes.

The last clause of Section 1 of the Fourteenth Amendment to the Constitution of the United States, is as follows:

“Nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.-”

Section 2, Article I, of the state Constitution provides:

“All political power is inherent in the people. Government is instituted for their equal protection and benefit,” etc.

And Section 26, Article II, provides:

“All laws of a general nature shall have a uniform operation throughout the state,” etc.

These provisions and the claims under them made by counsel, may be considered somewhat together.

It is claimed that this whole statute, applying as it does to railroad companies alone, is in conflict with the provisions of Section 26, Article II of the state Constitution, which provides that: “All laws of a general nature shall have a uniform operation throughout the state;” that inasmuch as this statute operates upon railroad companies, and upon railroad companies only, it violates this provision of the Constitution.

The statute, however, operates upon all railroads of the state, operating uniformly on all corporations of that kind, and if there are reasonable grounds for making a provision of this kind with respect to railroad companies that does not exist with respect to other companies or corporations, then, as we understand the law, this statute would not be in conflict with this provision of the Constitution,, although it applies to railroads alone, and would be held to have, in the language of the Constitution, “a uniform operation.” I>t is not necessary to say, it goes without saying, that there are many things in the operation of a railroad that are not found in the operation of other companies or corporations, or in the operations of private individuals engaged in other business. A railroad company operates its property, not only for its own profit, but for the benefit and advantage of the public — for all who desire to travel over its roads. By their charters railroads are given certain advantages and privileges that are not given to other corporations in the state. They have the power, among others, of eminent domain — the power to appropriate property for their uses and purposes. The public is interested in the proper and safe conduct of their affairs; interested in the care, diligence and prudence with which their men perform their duties, as the public is interested in being carried safely and in having their goods and wares carried safely over the railroads, and it has been expressly held by a United States court that this statute as a whole is not inimical to this provision of the Constitution of the state. In Peirce v. Van Dusen, 78 Fed., 693, this statute came before the circuit court of appeals of the United States. The opinion was delivered by Justice Harlan. The third paragraph of the syllabus reads as follows:

“The act of April 2, 1890 (87 O. L., 149), providing for the protection and relief of railroad employes, etc., is not repugnant to the provisions of the Constitution of Ohio declaring that ‘all laws of a general nature shall have uniform operation throughout the state,’ but applies to all railroad corporations operating railroads within the state, and is within the meaning of the state Constitution, general in its nature, and as it applies to all of a given class of railroad employes, it operates uniformly throughout the state, and is therefore constitutional and valid.”

Justice Harlan says, in delivering the opinion of the court, on page 432, after discussing the question very fully:

“We do not deem it necessary to pursue this subject further. We think it clear that the Ohio statute is not obnoxious to the constitutional provision requiring all laws of a general nature to have a uniform operation throughout the state. As it applies to all railroad corporations operating railroads within the state, it is, within the meaning of the state Constitution general in its nature; and, as it applies to all of a given class of railroad employes, it operates uniformly throughout the state.”

The facts in this ease, however, were such that the case came within the provision of the first part of the statute, and the constitutionality of the last clause was not involved.

There is no decision of the Supreme Court 'of this state in conflict with the doctrine here announced — in fact, the question as to constitutionality of this statute has never been raised in the Supreme Court of Ohio.

In Missouri Pac. Ry. Co. v. Mackey, 127 U. S., 205, a Kansas statute came before the court. This Kansas statute practically abrogated the doctrine of fellow-servants so far as it applies to railroad companies. The Supreme Court of the United States held, as laid down in the syllabus:

“The statute of Kansas of 1874, Chapter 93, Section 1, p. 143, Comp. Laws Kansas, 1881, p. 784, which provides that ‘Every railroad company organized or doing business in this State shall be liable for all damages done to any employe of such company in consequence of any negligence of its agents, or by any mismanagement of its engineers, or other employes, to any person sustaining such damage, does not deprive a railroad company of its property without due process of law; and does not deny to it the equal protection of the laws; and is not in conflict with the Fourteenth Amendment to the Constitution of the United States in either of these respects.”

The opinion of the court was delivered by Mr. Justice Field, and on page 209 the court say:

“The objection that the law of 1874 deprives the railroad companies of the equal protection of the laws is even less tenable than the one considered. It seems to rest upon the theory that legislation which is special in its character is necessarily within the constitutional inhibition; but nothing can be further from the fact. The greater part of all legislation is special, either in the objects sought to be attained by it, or in the extent of its application. Laws for the improvement of municipalities, the opening and widening of particular streets, the introduction of water and gas, and other arrangements for the safety and convenience of their inhabitants, and laws for the irrigation and drainage of particular lands, for the construction of levees and the bridging of navigable rivers, are instances of this kind. Such legislation does not infringe upon the clause of the Fourteenth Amendment requiring equal protection of the laws, because it is special in its character; if in conflict at all with that clause, it must be on other grounds. And when legislation applies to particular bodies or associations, imposing upon them additional liabilities, it is not open to the objection that it denies to them the equal protection of the laws, if all persons brought under its influence are treated alike under the same conditions. A law giving to mechanics a lien on buildings constructed or repaired by them for the amount of their work, and a law requiring railvoad corporations to erect and maintain fences along their roads, separating them from land of adjoining proprietors, so -as to keep cattle off their tracks, are instances of this kind. Such legislation is not obnoxious to the last clause of the Fourteenth Amendment if all persons subject to it are treated alike under similar circumstances and conditions in respect both of the privileges conferred and the liabilities imposed.”

It is contended, however, that the last clause of this statute is in violation of Section 1 of the Fourteenth Amendment of the Constitution of the United States, and of Section 2, Article I of the Constitution of this state, which I have read, for the reason that it applies only to a portion of the employes of a railroad company; that it does not give to all of them the same right to begin an action for negligence that it does to those that are mentioned in this section. It is said that while the Legislature may" have the right to abrogate entirely the fellow-servant rule so far as it applies to railroad companies, that, if it does this, it must abrogate it entirely; it must confer the right to begin an action for negligence of a fellow-servant of a railroad company upon all, and not upon a particular class, as is done by Section 3365-22, Revised Statutes. The last clause of this statute provides as follows: ‘ ‘ That every person in the employ of such company, having charge or control of employes in any separate branch or department, shall be held to be the superior and not fellow-servant of employes in any other branch or. department who have no power to direct or control in the branch or department in which they are employedSo that under this provision an employe in one department who has no control over any other employe and no power to direct any other employe, may bring an action for the negligence of an employe in another branch or department who has some employe under him,' or under his charge or control, while an employe who is working in the same branch or department with the one who has the right to bring the action, but who has under his charge or control some other employe, can not bring an action for the negligence of an employe in another branch pr department, although such employe may be a superior in the other branch or department — that is, may have some one under his charge or control — and so it is urged and argued that this classification of employes is arbitrary and unreasonable; that there is no just or reasonable ground for giving the one employe the right to bring his action for negligence and withholding it from the other; that such discrimination and classification is arbitrary and unreasonable and inimical to and in violation of these constitutional provisions; that if it is reasonable to confer this right upon the subordinate employe who has no one under him, it should also be conferred upon an employe who works by his side who may have some other employe under him. And the example is given of trains coming into collision, and the rights and privileges of the employes upon the same train who may be injured by the negligence of an employe upon the other train are contrasted, the brakeman upon one train having the right to main- ( tain an action for an injury, while the engineer, who has a fireman under him, would not have a right to maintain an action for the negligence of the engineer or conductor of the other train. This classification, it is said, does not give to all of the employes the equal protection of the laws guaranteed to them by the Fourteenth Amendment to the federal Constitution, and is hostile and inimical to the principle laid down in the state Bill of Rights, that government is instituted for the equal protection of the people.

Classification, within certain limits, has been sustained by both the federal and the state courts. The rule seems to be that where the classification is reasonable — has some reasonable ground to sustain it — it will be upheld; but if arbitrary and without reason, it will not be sustained by the courts, as for instance, a classification that depended upon the color of the suitor — the conferring of a right on a white man and not upon a black man, would not be sustained; or a classification, in some cases, depending upon the age of a person, and many other arbitrary classifications might be mentioned. But classifications, within certain limitations and having some reasonable ground to support them, are held valid and constitutional by the courts. The general rule is laid down in Gulf, C. & S. F. Ry. Co. v. Ellis, 165 U. S., 150, where, in the opinion of the court, delivered by Mr. Justice Brewer, on page 155, the court say:

“But it is said that it is not within the scope of the Four-' teenth Amendment to withhold from states the power of classification, and that if the law deals alike with all of a certain class, it is not obnoxious to the charge of a denial of equal protection. While, as a general proposition, this is undeniably true (citing authorities), yet it is equally true that such classification can not be made arbitrarily. The state may not say that all white men shall be subjected to the payment of the attorney’s lees of parties successfully suing them, and all black men not. It may not say that all men beyond a certain age shall be alone thus subjected, or all men possessed of a certain wealth. These are distinctions which do not furnish any proper basis for the attempted classification. That must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis. ’ ’

Classification has been sustained in some eases in this state. In State v. Nelson, 52 Ohio St., 88, which refers to a statute relating exclusively to electric cars, the Supreme Court, in the syllabus, say:

“The act of the General Assembly, entitled ‘An act requiring persons, associations and corporations, owning or operating street cars, to provide for the well-being of employes’ (90 O. L., 220), is not in conflict with Section 26, Article II of the Constitution of this state, which provides that ‘All laws of a general nature shall have a uniform operation throughout the state.’ Neither is it in conflict with Section 1 of the Fourteenth Amendment to the Constitution of the United States.”

The court say, on page 99:

“Yery few statutes apply equally to every person in the state. Some apply only to males, some to females, some to minors, some to persons of unsound mind, some to office holders and some to criminals. As pointed out by Minshall, J., in Adler v. Whitbeck, 44 Ohio St., 539, such classes are arbitrarily formed by the General Assembly, and if the Legislature has erred in not including what has been excepted from the operation of the law, it is simply an error of judgment in the exercise of its authority, and can not be reviewed by the courts.”

And on'page 102 this is said:

“The appliances and construction of cars, and in fact all kinds of machinery, are continually changing, and it is within the exclusive authority of the General Assembly, in the exercise of its police power, to determine, by general laws, what, if any, regulations are required for the protection of the health, safety and comfort of the operatives.”

And that statute was sustained upon the ground that this was a reasonable classification, that there were reasons, which appeared sufficient to the Legislature, to require screens to be put on this kind of cars which did not apply to other kinds of cars.

In State v. Gardner, 58 Ohio St., 599, the Supreme Court considered the “Plumbers’ statute,” so called, which required plumbers to procure licenses before transacting business, but exempted members of a firm if one member of the firm procured a license, and the statute was held to be unconstitutional. The court say, on page 610, through Judge Spear delivering the opinion:

“Our Bill of Rights prohibits the granting of privileges to one which are denied to others of the same class, and the imposition of restrictions or burdens upon certain citizens from which others of the same class are exempt, and Section 26, Article II of the Constitution requires that all laws of a general nature shall have a uniform operation throughout the state. A statute, therefore, which imposes special restrictions or burdens, or grants special privileges to persons engaged in the same business' under the same circumstances, can not be sustained, because it is in contravention of the equal right which all are entitled to in the enforcement of laws and in the enjoyment of. liberty, and in the enjoyment -of an equal right in the acquisition and possession of property, and so is not of uniform operation.”

It will be observed that the Supreme Court say that a statute which imposes special restrictions and burdens, or grants special privileges to persons engaged in the same business, under ike same circumstances, can not be sustained, there being no good or valid reason for any discrimination or classification between individuals who are engaged in the same business under the same circumstances. Other decisions of the Supreme Court of the United States which bear upon this question are found in Barbier v. Connolly, 113 U. S., 27; Missouri Pac. Ry. Co. v. Humes, 115 U. S., 512, and Pacific Express Co. v. Seibert, 142 U. S., 339.

The doctrine of Missouri Pac. Ry. Co. v. Mackey, supra, was reaffirmed by the Supreme Court in an opinion delivered by Chief Justice Fuller in Chicago, K. & W. Ry. Co. v. Pontius, 157 U. S., 209. The classification of railroad employes to some extent, the division of them into departments and branches, has been recognized by the courts of many of the states. A discussion of this question is found in 12 Am. & Eng. Enc. Law (2d Ed.), 971. In the chapter on fellow-servants the author says:

“In addition to the liability for the negligence of a servant charged with the performance of the master’s positive duties to his servants, there has been laid upon the master, by some courts, a further liability for the negligence of a servant engaged in a department of the same general business which is separate and distinct from the department in which the injured servant is employed.
“This rule may be stated as follows: Where a servant is employed in a department of the general service which is separate and distinct from that of the servant or servants whose negligence caused the injury, the fellow-servant rule has no application, and the master is liable.”

To support this, a large number of cases are cited in a foot note. This classification differs from the classification under this statute in this, that it makes no distinction upon the ground that the servant has or has not other employes under him, as this clause of our statute does. The author says, on page 972:

“The different department limitation, or the doctrine of consociation,- seems to be founded entirely upon the fact that servants in different departments of a large industrial enterprise are unable to exercise any influence upon each other in the encouragement of caution, and, the supposed reason for the rule failing, the courts refuse to apply the fellow-servant rule.”

On page 978 is this:

“The constitutionality of statutes abrogating the fellow-servant rule with respect to railroad companies has been frequently contested on the ground that such statutes constitute special or class legislation. But these acts have been invariably upheld. It is authoritatively settled that such legislation is not obnoxious to the Fourteenth Amendment to the United States Constitution as depriving railroads of property without due process of law, or as denying to them the equal protection of the laws.”

In a very recent case decided by the Supreme Court of the United States, the question of classification as applied to inheritance taxes was discussed in Billings v. Illinois, 23 S. Ct. Rep., 272, 273. The decision was rendered on January 19, 1903. The syllabus says:

“The equal protection of the laws is not denied by the Illinois inheritance tax law because, under that statute, as interpreted and enforced by the state courts, certain life estates may be taxed when the remainder is to lineal descendants of the decedent, but not when the remainder is to collateral heirs or strangers in blood.”

In the opinion, delivered by Mr. Justice McKenna, there is quite a full discussion of the doctrine of classification. The court say:

“We said (Wagoun v. Illinois Tr. & Sav. Bk., 170 U. S., 283), it was established by'cases that classification must be based on some reasonable ground. It could not be a ‘mere arbitrary selection.’ But what is the test of an arbitrary selection? It is difficult to exhibit it precisely in •& general rule, Classification is essentially the same in law as it is in other departments of knowledge or practice. It is the grouping of things in speculation or practice because they ‘agree with one another in certain particulars and differ from other things in those same particulars.’ Things may have very diverse qualities, and yet be united in a class. They may have very similar qualities, and yet be cast in different classes. Cattle and horses may be considered in a class for some purposes. Their differences are. certainly pronounced. Salt and sugar may be associated in a-grocer’s stock for a grocer’s purposes. To confound them its use would be very disappointing. Human beings are essentially alike, yet some individuals may have attributes or relations not possessed by "others, which m.ay constitute them a class. But their classification — 'indeed, all classification— must primarily depend upon purpose — the problem presented. Science will have one purpose, business another, and legislation still another. The latter, of course, on account of the restraints upon the Legislature, may not be legal — may not be within the power of the Legislature. To dispute that power, however, is not the same thing as to dispute a classification, and yet that there may be dependence — more freedom of classification in some instances — has been indicated by the eases. A state can not regulate interstate commerce, however accurate its classification of objects may be. On the other hand, the taxing power of a state is one of its most extensive powers. It can not be exercised upon persons grouped according to their complexions. It can be exercised if they are grouped according to their occupations. A state may regulate or suppress combinations to restrict the sale of products. The power can not be exercised to forbid combinations among those who buy products, > and permit combinations among those who raise or grow products. * * * And yet, ex-ercising its taxing power, it has been decided that a state may make that discrimination. * *. * Other illustrations may be taken from the cases which tend to the same end. If the purpose is within the legal powers of the Legislature, and the classification made has relation to that purpose (excludes no persons or objects that are affected by the purpose, includes all that are), logically speaking, it will be appropriate; legally speaking, a law based upon it will have equality of operation. And, excluding our right to consider policies or assume legislation, we have many times said that a state in its purposes and in the execution of them must be allowed a wide range of discretion, and that this court will not make itself a harbor in which can be found ‘a refuge from ill-advised, unequal and oppressive’ legislation.”

It appears from these authorities and others that might be cited, that, if the classification is reasonable, if it is in line with a reasonable and proper purpose, that such legislation will not be disturbed by the courts, although the classification may be somewhat arbitrary. There are many laws which appear t-o work an arbitrary classification. For example, the mechanics’ lien law, as suggested by the Supreme Court, which permits a mechanic to have a lien f-or his labor which it does not give to others; the laws relating to an appeal of eases from one court to another, depending upon the amount involved, and it would be hard to give a reason why a case involving $2,000 ought to be removed to a federal court, when a similar case involving $1,999 can not be removed. A former statute of this state restricted the right to take- a case to the Supreme Court on error (except in certain cases) which did not involve $300 or more, but it would be difficult to give a reason why a case which involved $300 should be allowed to go to the Supreme Court, and one that involved $295' should not go. But the Legislature thought at that time that it was wise to make this difference and to draw the line 'somewhere, and it fixed the amount at $300, and the constitutionality of the statute was never questioned.

In the statute under consideration the Legislature did not see fit to abrogate entirely the fellow-servant rule. The old common law rule that the master was not liable to a servant for the negligence of a fellow-servant, had been modified by the Supreme Court of this state by making the master liable for the negligence of those who were immediately superior to the employe who was injured. The Legislature has modified the fellow-servant rule still further by giving to the common laborer who has no power over or control of other employes, a right to maintain an action against a railroad company where he is injured by the negligence of a superior servant, or one who has charge or control in another department or branch of the service, although such superior servant may not have any control over him.

In considering the reasons for making the master liable for the negligence of a superior servant to one under him, which has long been the rule in Ohio, we think some reason may be found for this discrimination or classification which the Legislature made in this statute. It is not necessary that the court should agree with the Legislature as to the reason for the rule, but there is a difference between the situation of an employe who is a common laborer and who has no authority or control over another employe — between him and an employe who is to some extent the superior and who has charge of or control over other employes; that there is a difference between their situation and condition, it seems to us self-evident — one has some authority delegated to him by the master; stands to some extent in the place of the master, and it is best for the servant, best for the other employes and best for the ■ public that in the conduct of railroads, that in the selection of such employes, care should be exercised by the master, and added liability will increase the degree of care exercised. The common laborer has no one under him, has no authority over or control of others; it is his duty to do simply as he is told — to obey orders, and by this modification of the fellow-servant rule, brought about by this statute, the right is conferred upon such common laborer who has no power to direct or control, to bring this action, and it is not conferred upon the servant who stands to some -extent for the master in a place of authority.

It does not seem to us that this, classification is more arbitrary than some others that have been made by Legislatures and sustained by the courts, both state and federal. While the constitutionality of 'this statute has not been raised in the Supreme Court of this state, still judgments based upon this statute have been brought before that court (Railway Co. v. Margrat, 51 Ohio St., 130, and Railway Co. v. Erick, 51 Ohio St., 146), and both of those judgments affirmed by the Supreme Court, and the constitutionality of the statute was not questioned. And while, as I have said, the constitutional question was not raised, yet the fact that the Supreme Court affirmed the judgments that would have had no validity but for the statute, and in Railway Co. v. Margrat, supra, but for the last clause of the statute now under discussion, and it did not occur to the court that any part of the statute was unconstitutional, is significant and is entitled to consideration. I cite, also Hill v. Railway Co., 22 C. C., 291, decided by this court. The opinion was delivered by Judge. Parker, and contains a full discussion of this statute and the reasons for it and a citation of numerous authorities from this and other states. The constitutionality of the act was not questioned or discussed in this case.

We hold that this statute is not in conflict with any constitutional provision, either state or national; that the passage of it was within the constitutional power of the Legislature, and it is, therefore, a valid statute. I have referred to some of the reasons that may have operated upon the legislative mind in the enactment of this statute; but it does not devolve upon this court, in passing upon the statute, to determine what moved the Legislature to pass it or to give the exact reasons that may have led to its passage. The Legislature is the law-making body of the state, and if a statute is not clearly in conflict with some provision of the Constitution, it can not be set aside by courts, although they may differ from the Legislature as to the policy of the law and although it may seem arbitrary'in some of its provisions.

Holding, as we do, that the statute is constitutional, there still remains the question as to whether the court, under the facts, was justified in directing a verdict for defendant. In view of our conclusion as hereafter stated upon this question, ■we might have decided the case without passing upon the constitutionality of the statute, but as we were informed by counsel that other cases involving the same question were pending in this county, in the common pleas court, we thought best to announce our conclusion. The question had been decided both ways in different common pleas courts of the state, the trial court in this case (Froelich v. Railway Co., 13 Dec., 107, 110), and the common pleas of Ashtabula county (Maltby v. Railway Co., 13 Dec., 280), holding the act unconstitutional, while the Common Pleas Court of Huron County (Roe v. Railway Co., 13 Dec., 260), held it constitutional.

The court below held that Froelich and the engineer, Stewart, through whose negligence he claims to have been injured, were in different branches or departments of service, and that, therefore, Froelich came within the terms of the statute. Froelieh was employed by the railroad company upon a coal dock in the city of Toledo, and with others operated a “Brown hoisting” machine in the loading of coal from cars into boats. There was an upper tipple-house in which there was an engineer working, who controlled the machinery by means of levers; and there was another tipple-house or apartment, below, where there was stationed an engineer or fireman — witnesses ' differed as to what he should be called. The cars loaded with coal were tipped over and emptied into large buckets by means of the machinery. The buckets were on cars or carriages, of which there were three, connected together by irons, the carriages being about twelve feet apart. There were six buckets to each car, each one holding several tons of coal, the buckets extending entirely across the ears, which were flat cars. The machinery which moved the ears on. which the buckets stood was operated by tbe engineer above and the cars or carriages were moved up or down the river as it became necessary in loading the vessel. The plaintiff, Froelich, was one of the “hookers,” whose duty it was to hook and unhook the large hooks which were fastened into these buckets for the purpose of lifting them off the cars and unloading them into the hold of the vessel. This was done by power furnished by another engine. On the occasion of the injury, which occurred early in the morning, about daylight, plaintiff had hooked the hooks onto the buckets, the carriage having been unloaded, and it was necessary in the performance of his duty for him to go to the other side of the tipple-house. Instead of walking around, he attempted to jump onto the .platform of the ear just in front of the buckets, and as he was about to get onto the carriage, he claims that the engineer in the tipple-house negligently threw on the power and started the carriage in motion, and he was thrown off .and crushed between the bucket and the lower part of the tipple-house and quite seriously injured.

It is claimed that Froelich and this engineer were in separate departments of the service, and, therefore, that this ease is within the statute. There was over all the men a superintendent, a Mr. Dewey, and over each gang a foreman. The foreman over this gang was a man named Roe, and in charge of the machinery and the engines and the derricks on the docks; to see that they were kept in repair was a chief engineer by the name of Whistler. The question is, whether Froelich, under these circumstances, was in a separate department or branch of the service from the engineer.

In the case of Railway Co. v. Margrat, 51 Ohio St., 130, the Supreme Court has construed, to some extent, this statute. The court say, through Judge Bradbury delivering the opinion, on pages 144 and 145:

“The section, however, makes no attempt to define the terms, ‘department’ and ‘branches,’ but these terms should not be limited so as to embrace, merely, those large divisions created for convenience in administering the affairs of the company. On the contrary, it is more reasonable to suppose that they relate to those minute ones which concern the daily duties of tbe employes. Those terms are general and comprehensive; but as the Legislature discloses no purpose in this connection to regulate the internal affairs of a railway company, it should not be presumed to refer to divisions of its business made for its own ends; and if not to such divisions, what divisions could it mean but those which divide up the employes while in actual service? The section expressly declares a purpose to enlarge the remedy of the employes for accidents occurring in the course of their employment. This declaration emphasizes the presumption that the terms under consideration should be construed as referring to conditions affecting them, rather than to those which are established by the company for its own purposes.
“Without pursuing the matter further, we hold that, under the section of the statute under consideration, an engineer on one train is in a separate branch of the company’s service from that of a brakeman of another train belonging to the same company.”

It was held by this court, in the Huron county case heretofore cited, Hill v. Railway Co., 22 C. C., 291, that a brakeman and an engineer upon the same train are within the same branch or department of service; as was said in the syllabus:

“An engineer and a brakeman being upon the same train in the promotion of a single object, such as the moving of the train, and associated together in such a way in that enterprise that they would naturally be careful of the train and therefore careful of one another, are in a single department, and not in 'separate departments, within the meaning of Section 3365-22, Revised Statutes (97 O. L., 149), providing that'every person in the employ of a railroad company ‘having charge or control of employes in any separate branch or department, shall be held to be the superior and not the fellow-servant of employes in any other branch or department.’ ” * * *

Were Froelieh and this engineer situated any differently, so far as this statute is concerned, from a brakeman and an engineer on the same train? One of the reasons for the granting of this right to sue under this statute is that employes in different branches of the service are so situated they are not working together for the same common purpose and are not so situated that they can exercise care towards each other. ' But where they are engaged in the same branch of service, although in different capacities, this reason does not exist. In this case there was an engineer and a man under him, in the lower part of a tipple-house, and men who assisted in the dumping of the cars and othér men engaged in unloading the coal into the boats, and men in other capacities about the machine, all engaged in one common service — the emyloyment of unloading coal into boats at the dock, by means of the machinery. The labor of Froelich was necessary in the carrying on of this work; the labor of the engineer in the upper tipple-house, where he was manipulating the machinery by means of levers, was necessary also in the carrying on of the work. At the time Froelich was injured he was riding on a car moved by the machinery under the control of the engineer, and it was by his negligence in starting the car before the plaintiff had time to get firmly on that, it was claimed, he was iujuredj but the duties of Froelich and of the engineer, Stewart, were not such — as was said by the Supreme Court in Railway Co. v. Margrat, supra — as divided or separated them from each other in their employment, but they were both, along with the other men, employed about this hoisting-machine, engaged in one common service, as it seems to us, the same as a brakeman and an engineer employed upon the same railroad train; both performing duties in relation to the train and its movements and control, but not engaged in such a service or operation as divides them or separates them into different departments or branches.

• This being our view of the case, it seems to us that the engineer, Stewart, whose negligence is complained of, and Froelich, were not in separate branches or departments at the time of Froelich’s injury, and that, therefore, his case does not come within the statute under consideration. It devolves upon the plaintiff who brings an action under this statute to show by the evidence that he is within the provisions of the statute. This statute is a modification of the fellow-servant rule, which prevailed before its passage, and, in order to entitle him to recover, he must show by the evidence that . he is -within the provisions of the act. We think the evidence fails to do this; but, on the contrary, shows that plaintiff and the engineer were in the same branch or department of the service. Therefore, while we disagree with the court below as to the grounds upon which its action was based in taking the case from the jury, we hold that the action of the court in that respect was right, for the reason stated, and therefore, that there was no error in directing a verdict for the defendant.

D. L. Beale and Charles A. Thatcher, for plaintiff in error.

Doyle c& Lewis and J. W. Shauffelberger, for defendant in error.

Holding as we do, that Froelich and the engineer, Stewart, were not in different branches or departments, it is not necessary for us to discuss the questions of negligence which were argued before us. The judgment of the court of common pleas will be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    KEEPING ALIVE A JUDGMENT LIEN.
    [Circuit Court of Wood County.]
    A. J. Steel v. Jacob Katzenmeyer et al.
    Decided, April Term, 1903.

      Judgment Liens — Priority of — Effect of Dormancy of — In County Where Judgment was Rendered — And to Which It Had Been Extended dy Issuing a Foreign Execution — Effect of Issuing a Second Foreign Execution — Heed not he Entered on the Foreign Execution Docket — Duty of Purchaser to Search the Record of Latter County.

    1. The satisfaction or dormancy of a judgment are the only contingencies under which a judgment lien created under favor of Section 5375, Revised Statutes, ceases to exist against the real estate of the'debtor. The effect of such satisfaction or dormancy is to relieve the land of the judgment debtor, both in the counties wherein the judgment was rendered and in those into which it has-been extended by the issuing and levying of a foreign execution.
    2. The issuing of a second execution to and placing it in the hands of the sheriff of a county other than that wherein the judgment was rendered, within five years from the issue and levy of the first execution, will prevent the judgment from becoming dormant as a lien against the real estate of the judgment debtor in such county. Whether issuing the execution to the sheriff of the county wherein the judgment was rendered, and having it there returned, instead of to the sheriff of the county wherein the land was situate, would keep the lien alive — Quaere.
    3. There is no statutory requirement that an entry be made upon the foreign execution docket of the issuing of a second or subsequent execution from the county wherein the judgment was rendered; and when the record shows that a judgment lien has been acquired, the duty devolves upon a prospective purchaser to search the record of the latter county, and ascertain whether the lien has been kept alive or is dormant.
    Parker, J. (orally); Haynes, J., and Hull, J., concur.
    Error to the Court of Common Pleas of Wood County, Obio.
   This case comes to this court on appeal. One of the defendants is the First National Bank of North Baltimore, Ohio. The proceeding is to marshal liens, and the controversy is about the priority of liens. The First National Bank obtained a judgment in the Court of Common Pleas of Hancock County, Ohio, against the defendant, Jacob Katzenmeyer, on March 31, 1896, and forthwith caused an execution to be issued upon the judgment to the sheriff of Hancock county, and which execution was immediatey thereafter received by the sheriff of Wood county and levied by him upon certain lands owned by said Jacob Katzenmeyer in Wood county, and the execution was duly returned.

On November 27, 1901, the plaintff, A. J. Steel, obtained a judgment in the court of common pleas of Wood county against Jacob Katzenmeyer, and caused an execution to be issued and levied upon this same real estate. The defendant, L. D. Lang-made, also obtained a judgment in the Court of Common Pleas of Wood County on December 11, 1901; an execution was issued upon the judgment and a levy was made upon 'this land. The defendant, Michael Auverter, took from Jacob Katzenmeyer a mortgage on this land on July 3, 1896, and this mortgage was duly filed for record, and recorded in Wood county, Ohio. Walding, Kinan & Marvin also obtained a judgment in the Court of Common Pleas of Wood County ‘upon April 30, 1900, against the defendant, Katzenmeyer.

It will be observed that one of these judgments was obtained and the mortgage was taken before five years had expired from the time of the taking of the judgment in favor of the First National Bank of North Baltimore, Ohio, and the levying of the execution issued thereon, and two of the judgments werfe taken after the expiration of the five years. It is urged as against the levy for the bank, which, if it has been kept alive, is the first and best lien, that its priority has been lost by reason of the fact that an execution was not issued upon the Hancock county judgment within the five years succeeding the first levy, and levied upon this land, it being insisted that that was necessary to keep the judgment alive. This statement of fact is denied by the First National Bank. It insists that it caused an execution to be issued on March 14, 1901, to the sheriff of Wood county, which was by said sheriff levied upon this land upon March 15, 1901, although it was not returned to the clerk of the court of Hancock county until July 11, 1902. About this dispute there is some confusion in the evidence, but we have arrived at a conclusion upon the law which makes it unnecessary for us to determine- this issue of fact. It is clear that the -first execution upon the judgment in favor of the First National Bank was promptly issued and levied upon this land; that another execution was issued upon March 14, 1901, and that it came into the hands of the sheriff of Wood county; and we find that the receipt of the second execution was duly endorsed upon the foreign execution docket, but we are in doubt about when the levy of that execution was made, i. when the endorsement of a levy was entered thereon.

Now we are of the opinion that sufficient was done to keep alive the judgment lien in favor of the First National Bank of North Baltimore, and that therefore said bank has preserved and still holds its first lien upon this property.

The statute bearing upon this subject, Section 1212, R. S., provides for the keeping by the sheriff of each county of a ‘ ‘ foreign execution docket,” for the entries to be made therein by the sheriff, and the effect of such entries, to-wit:

“And such, entries so made, shall be notice to subsequent purchasers and creditors of the matters contained therein.”

Section 5375 of the Revised Statutes provides that:

“Lands and tenements, within the county where the judgment is entered, shall be bound for the satisfaction thereof from the first day of the term at which judgment is rendered; but judgments by confession, and judgments rendered at the same term at which the action is commenced, shall bind such lands only from the day on which such judgments are rendered; and all other lands * * * shall be bound from the time they are seized in execution.”

There is no provision that the effect of this seizure shall cease at any future time, or that the lands shall cease to be bound, though it is reasonable, and has been decided, that if the judgment becomes dormant the lien ceases to be operative; and, as we understand it, the satisfaction or dormancy of the judgment are the only ways by which, or contingencies upon which, the judgment ceases to operate as a lien.

Section 5380, Revised Statutes, provides when and how a judgment may become dormant, and impliedly how dormancy may be prevented, as follows:

“If execution on a judgment rendered in. any court of record in this state, or a transcript of which has been filed as provided in Section 5377, be not sued out within fiye years from the date of the judgment, or if five years intervene between the date of the last execution issued on such judgment and the time of suing out another execution thereon, such judgment shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor.”

Such dormancy would affect the lien of the judgment upon lands in the county where the judgment was entered as well as the lien upon lands in another county to which it has been extended by the issuing and levying of an execution; but in this case, as I have indicated, the second execution was issued within five years from the issuing of the first execution. Five years were not allowed to elapse without the issuing of an execution. It is contended that the issuing of an execution within the purview of the statute, consists in having the execution go out of the clerk’s office into the hands of the sheriff and the making of a levy by the sheriff, but we think that is not the true rule. In the case of Kelly v. Vincent, 8 Ohio St., page 416, it is held that:

“Taking a writ of execution from the clerk’s office, by the judgment creditor or his attorney, and returning the same to the clerk, without delivery to the sheriff, is not suing out an execution within the meaning of Section 101 of the statute of March 8,' 1831, so as to prevent the judgment becoming dormant. The suing out execution expressed by the statute requires an actual or constructive delivery of the writ to the sheriff. ’ ’

We think that a fair construction of the statute on this question leads to the conclusion that all that is required is the placing of the writ in the hands of the sheriff. The cases, Coal Co. v. Bank, 55 O. S., 233, and Mason v. Hull, 55 O. S., 256, we have considered in arriving at this conclusion, and which we think sustain our view of the statute. We will not take time to read from them at this time, but simply call attention to them.

It is urged that a great deal of inconvenience may result from holding this way; that a person examining the foreign execution docket would be required to go back in the chain of title and find out whether any foreign execution had ever been levied upon the lands, the title to which he is examining, during the time they were owned by the person against whom the foreign execution was issued, and no matter how far back in the history of the title he might find such a foreign execution issued and levied upon the land, he must then go to the county where the judgment was entered and ascertain whether the judgment had been kept alive so that he may know whether the lien is still in force. It is insisted that it would be more reasonable to hold that there must be a fresh levy every five years, or at least there must be something upon the foreign execution docket indicating that there had been an execution issued within the five years; but we are of a different opinion; we think the statute does not require it, and it is not unreasonable to require the search of the record which it is said would be required. When it is shown by the record that a lien upon the land has been acquired, it devolves upon the person buying the land to ascertain whether that lien has been kept alive or lost.

Fries & Painter, for plaintiff.

Baldwin & Harrington, J. E. Schatzel, for defendants.

In this instance the second execution was issued to the sheriff in this county, and the fact that an execution was received, was entered upon the foreign execution docket. Our view is that that is not required, and the judgment might be kept alive by simply issuing an execution to the sheriff of Hancock county, and having it there returned; though it is not necessary to decide that point in this case.

We hold that the lien first acquired by the First National Bank has been preserved and kept alive, and the decree will be accordingly.


author: Per Curiam.

text:
    REFORMATION OF MORTGAGE.
    [Circuit Court of Hamilton County.]
    German National Bank v. Bode, Guardian.
    Decided, December 5, 1902.

      Mortgage — Description in, Will Not Be Reformed — If to the Prejudice of Creditors Without Notice — Can he Had on Cross-petition, When.

    1. A mistake in tbe description of property covered by a mortgage will not be reformed as against innocent creditors without knowledge because as to them such reformation would be the creation of a practically new mortgage, and especially not as against specific property on the faith of which the unsuspecting creditors were induced to extend credit.
    2. If a revivor be necessary in a case where a court of equity has acquired jurisdiction over property for the purpose of adjusting a lien upon it, it .can be had as well on cross-petition as by an original action for that purpose.
   Per Curiam.

Two eases are here decided — German National Bank v. Bode, guardian; and Bode, guardian, v. Ruehrwein.

The ease of Strang v. Beach, 11 Ohio St., 283, 286, is so -different in one of its essential features from the ease at bar, that it is not an authority sustaining the judgment of the court below. Brinkerhoff, C. J., in Strang v. Beach, says:

“The cross-petition alleges, and the demurrer admits, the fact of mistake, and that the plaintiff, at the time he caused his attachment to be issued, had knowledge of the mistake, and of all Beach’s rights in the land. The fact of mistake and the fact of notice are admitted by the demurrer.”

In the finding of facts by the court below in the case at bar the court expressly finds that the German National Bank had no knowledge of any mistake until the filing of the petition herein; that the credit was originally extended on the faith of this property being unencumbered, and that after the execution and recording of the mortgage mistakenly describing lot 239, the loan by the bank was renewed on the continued faith of lot 240 being free of encumbrance. Strang v. Beach, supra, says that the mistake in the mortgage will be corrected as against attaching creditors and judgment creditors of the mortgagor and purchasers under them with notice of such mistake.

The case of Adams v. Stutzman, 7 Am. Law Rec., 76, is an odd case, decided by the Common Pleas Court of Holmes County and sustained on appeal to the district court. It seems very much in point and well considered, yet is not a controlling authority on this court. It will bear analysis and can be so distinguished from the case at bar that we are not called upon to question it.

In that case the description was so defective that it failed to identify any land whatever. The defect was so glaring as to put a diligent creditor on the alert. In the case at bar the mortgage was duly executed and recorded, sufficiently describing an existing piece of property of the mortgage. The more searching the examination of the diligent creditor the more apt was he to be misled.

While the court in Adams v. Stutzman, supra, boldly says that notice is immaterial, yet it covers itself against possible error on this point in the latter part of the opinion, where it finds that facts existed of record sufficient to bring home notice both of an equitable mortgage and the mistake.

A. E. Bode, for Bode, guardian.

Stephens & Lincoln, for German National Bank.

If a defectively executed mortgage will not be reformed as against attachment or judgment creditors with notice (Bloom v. Noggle, 4 Ohio St., 45; Erwin v. Shuey, 8 Ohio St., 509, 510), because of the policy of the law to avoid all vexed questions of notice actual or constructive in determining priorities, a fortiori, a description ought not to be reformed as against innocent and ignorant creditors, because as to them it is practically the creation of a new mortgage, and especially not as against specific property, on the faith of the freedom of which the unsuspecting creditor was induced to extend credit.

Judgment on this branch reversed.

Having decided the above, the error complained of in No. 3644 as to the adjustment and payment of taxes becomes immaterial to Bode, guardian, plaintiff in error. We are, however, of opinion that the court below was right in this regard. A court of equity having acquired jurisdiction over this property with the attachment lien upon it, the property being in .chancery for the adjustment of this particular lien, a revivor may not have been necessary, but if it was, it certainly could be had as well on cross-petition as by an original action for that purpose.


text:
    AN UNCONSTITUTIONAL STATUTE.
    [ Circuit Court of Erie County.]
    Mary Childs v. Jay J. Perry et al.
    Decided, September, 1904.

      Constitutional Law — Acts Affecting County Officers — Must Save Uniform Operation — Sheriff’s Poundage — Section 12306.
    Section 1230b, Revised Statutes, providing for the fees of sheriffs, in all countiessd having a population of 22,500 or more at the last federal census, is unconstitutional for lack of uniformity in operation, and in taxing poundage sheriffs must be governed by the general statute, Section 1230.
    Hull, J.; Haynes,'J., and Parker, J., concur.
    The real party defendant in error is Henry Poster, present sheriff. This case is brought to this court on a petition in error to reverse the order of the court of common pleas overruling a motion to re-tax costs.
   The matter was heard below on an agreed statement of facts. It appears from that, that the action was brought by the plaintiff to forclose a mortgage; that there was due on her mortgage $9,858.18; that she had the first lien on the premises in question; the property was sold by the sheriff and bid in by the plaintiff for $8,000; the sale was confirmed and the plaintiff paid in no part of the purchase money to the sheriff, her lien amounting to over $1,800 more than the purchase price —‘her bid. There was taxed poundage for the sheriff at 1 per cent, on the amount of the sale, to-wit, $80. This was taxed under Section 1230b of the Revised Statutes, which provides for the fees of sheriffs in all counties having a population of 22,500 or more at the last federal census, and it is admitted in the agreed statement of facts that this county at the last federal census had a population of 22,500 and more, and that Ashland county, Geauga county, Harrison county and Noble county, and several other counties of the state had at the last federal census less than 22,500 population.

The plaintiff claims that this section of the statutes is unconstitutional, for the reason that it is not of uniform operation throughout the state, and that therefore its provisions are void, and that the sheriff must go to the general statute on this subject, to-wit, Section 1230. If Section 12305 is constitutional, the sheriff has the right to these costs, amounting to $80. If it is unconstitutional, he does not have the right to them.

The general statute — the one that has existed for many years, Section 1230 — provided on the question of poundage as follows:

“The fees and compensation of sheriffs shall be as follows: * * * poundage on all monies actually made and paid to the sheriff on execution, decree or sale of real estate (except on writs for the sale of real estate in partition) one and a half per centum on the first thousand dollars, and one per centum on all sums over one thousand dollars; .but when such real estate is bid off and purchased by the party entitled to a part of the proceeds, the sheriff shall not be entitled to any poundage except on the amount over and above the claims of such party. ’ ’

The fees and compensation of the sheriff generally are provided for in this section, which applies to all of the counties of the state.

Section 1230b is found in the 93d Volume of the Ohio Laws, page 426, and was passed April 25, 1898. The caption of the section is, “Fees and compensation of sheriff in counties of 22,500 or more. ’ ’ It provides as follows in regard to poundage:

“In all counties which at the last preceding federal census had a population of twenty-two thousand five hundred or more, and for which there is no provision made by law for the payment of the sheriff, he shall receive the following fees and compensation: * * * poundage upon the amount of all sales (except in writs for the sale of real estate in partition) made by the sheriff on executions, decree or sale of real estate one per centum thereof.”

The general statute gave poundage only on all monies actually made by and paid to the sheriff on sales, while there is a provision, as will be observed, in the section in question for poundage on the amounts of all sales, regardless of the amount of money made, or paid to the sheriff.

Is this Section 1230b in conflict with Article II, Section 26 of the Constitution of the state, which provides that all laws of a general nature shall have uniform operation throughout the state 1

In State of Ohio, ex rel Guilbert, Auditor, v. Yates, Auditor, 66 O. S., page 546, the Supreme Court say in the syllabus:

“County officers are not local officers, but are a part of the permanent organization of the government of the state, and the subject of compensation to county officers is not local in its nature, and an act of the- General Assembly upon that subject is a law of a general nature which must operate uniformly throughout the state. Pearson et al v. Stephens et al, 56 Ohio State, 126, overruled. ’ ’

The question is discussed fully by Judge Davis in the opinion, and many former decisions referred to. This case came up from Pickaway county, an act having been passed fixing the salaries of the various officers in Pickaway county. Judge Davis in the opening paragraph of his opinion says:

“These acts are undeniably special; and to us at least, it seems almost as manifest that their subject matter is of a general nature, and that neither of them contains the attributes of legitimate local legislation. They are special, because they are in terms restricted in their operation to Pickaway county. They are of a general nature, because the subject of legislation is a matter of general concern to the state, and to every county in the state and to the inhabitants thereof (Kelley v. State, 6 O. S., 272). They are not legitimate local bills, because the subject matter is not peculiar to the localities named, and it does not appear that there was any necessity for such legislation either in title, place or circumstance. Having said this, we have said, in substance, all that needs to be said to-dispose of this case; but in deference to the authority which is urged in support of the contention of the defendant in error, we will be more explicit. ’ ’

The statute in question does not relate to a salary, but to the fees of the sheriff, a county officer. The same principle, however, applies as would apply were it a salary instead of fees, which are paid by the litigants, while a salary is paid by the county. It is clear that this law is of a general nature, and therefore should operate uniformly throughout the state.

Malcolm Kelley, for plaintiff in error.

E. B. King and G. C. Beis, for the sheriff.

As this law is framed it could not apply to several counties in the state, there being some ten or twelve of less than 22,500 population at the last federal census; among them, Ottawa, our neighboring county on the west. The statute does not provide that it shall apply to counties which may hereafter arrive at a population of 22,500, but is restricted m its application absolutely to those which had such a population at the last federal census preceding.

This law does not have a uniform operation throughout the state. It is difficult to see how it can be claimed that a law which does not apply to ten or a dozen of the eighty-eight counties in the state has a uniform application throughout the state.

The term “uniform operation” is defined by Judge Burket in the 67th O. S., page 77, as “universal.” Certainly this statute does not have a universal operation throughout the state.

Under the recent decisions of the Supreme Court, this statute is clearly unconstitutional; it is in violation of Section 26, Article II of the Constitution of the state. It is difficult to conceive of any reason why such a law should have been passed. It is unreasonable and unjust as well as unconstitutional. There Is no reason why the fees of the sheriff, for the same services, should not be the same in every county in the state. Why should the sheriff of Erie county be entitled to $80 costs in a foreclosure proceeding- because the land happens to lie in this county, while in Ottawa, an adjoining - county, the sheriff would be entitled to nothing for the same service?

The judgment therefore is reversed, and the case remanded to the court of common pleas, with direction to re-tax the costs by striking out the item of poundage to the sheriff and taxing the costs according to the general statute, Section 1230.


text:
    INJUNCTION WHERE A QUESTION OF TITLE IS INVOLVED.
    [Circuit Court of Hamilton County.]
    The Tudor Boiler Manufacturing Company v. The I. & E. Greenwald Company.
    Decided, August, 1904.

      Injunction — Questions of Title — Depending upon Adverse Possession or Abandonment — Are Triable to a Jury — And Appeal Only to the Grace of a Court of Equity — Non-user—Intention—Absence of Physical Action or Formal Steps to Talee Possession — Payment of Nominal Rental — Permanent Obstruction of Access to — Uses of a Fee Inconsistent with a Dominant Easement.

    1. The issues of “abandonment” and “adverse possession” are peculiarly appropriate to an action at law and triable to a jury, and where questions of title are involved, a court of equity will rarely assume the burden of determining them, even though equitable remedies are necessary.
    2. Where the intervention of a court of equity is invoked to avoid a multiplicity of suits, it is an appeal to the grace of the court.
    3. In order to invoke such intervention for the purpose of avoiding a multiplicity of suits, there should be a showing of a probability of a multiplicity of suits. A finding having been made of such a probability, it is for the court to extend its grace or not, as it may deem wise in view of the interest of equity and justice involved.
    4. In the case at bar, it is held that the acts and declarations of the parties, taken in connection with the surrounding circumstances, constitute an intention to abandon the easement for a right of way, which it is. here sought to protect by injunction; and that the use and dominion exercised by the defendant over the strip made it practically an appurtenance to their foundry, without any respect to the use of the strip as a roadway, and establishes their title thereto by adverse possession.
   Per Curiam.

Tbe arguments and briefs of counsel have substantially disposed of all questions involved herein, excepting three, which are:

First. Whether or not plaintiff can maintain this suit for an injunction.
Second. Whether or not the Tudor Boiler Manufacturing Company had abandoned this easement; and
Third. Whether this easement had. been extinguished by the adverse possession of the I. & E. Greenwald Company.

On the first point, a majority of the court is of opinion that the issue involved herein ought not be tried in a court of chancery, unless the clearest necessity therefor appears. We have no doubt that a court of equity has a right to entertain this action, but it does not follow that plaintiff can maintain the same as a matter of right, and we are not satisfied as to the propriety of the court entertaining it.

The issues triable herein are first, that of abandonment, which turns up the issue of fact of the intention of the Tudor Boiler Manufacturing Company. This is an. issue of fact peculiarly appropriate to an action at law, and triable to a jury. The issue of adverse possession turns upon the existence or non-existence of the essential facts necessary under the laws of Ohio to constitute adverse possession. These issues of fact are likewise appropriate to a suit at law, and triable to a jury. All of these issues go to the question of title, and courts of chancery rarely assume the burden of questions of title, and even where equitablé remedies are necessary, a court of chancery usually relegates parties to a determination of questions of title to a court of law before affording equitable relief.

It is claimed that the right to maintain this action herein rests upon the expediency of avoiding a multiplicity of suits. This is a ground upon which a court of chancery may entertain actions which otherwise would be legal in their nature, but this is an appeal to the grace of a court of equity to take up and try matters admittedly legal in their nature. In order to invoke this intervention of a court of chancery, there should be a showing of the probability of a multiplicity of suits, and then it is for the court, upon finding such probability, to extend its grace, or not, as it deems wise in the interest of equity and justice. It is an appeal to the jurisdiction of the court of equity wherein the plaintiff admits that he has no standing as a matter of right. In the case at bar, the court finds no reason to believe that there will be a multiplicity of suits at law. On the contrary, we are of opinion that if the issues involved herein were once fairly submitted to a jury under proper instructions from a judge of a court of law, and the plaintiff prevailed, it would end this controversy.

We are of opinion that plaintiff ought not to appeal to a court of equity to try these issues until it has established its this conclusion through any unwillingness to sustain the burden of deciding these issues, but because it feels that this cause turns upon such close and evenly balanced issues of fact that a satisfying determination of the same can only be reached by a submission to a jury. We are therefore of opinion that the plaintiff herein is not entitled to maintain this proceeding, and that an injunction should be denied, at least for the present, and that plaintiff should be required to first establish its present right of title, by at least one action at law. title by at least one action at law. The court does not come to

Lest, however, we should be mistaken in this conclusion, the whole court has preferred to consider the essential questions submitted. The question of abandonment is purely one of intention on the part of the Tudor Boiler Manufacturing Company. This intention can only be ascertained from all the declarations and the acts of the parties coupled with the surrounding circumstances. The first significant fact is the nonuser by the Tudor Boiler Manufacturing Company, for a period longer than twenty-one years — clearly from 1857 to 1879. During this time, without conflict in the testimony, the Tudor Boiler Manufacturing Company did not use this right of way in question. Non-user for this long period of time may or may not be sufficient to indicate an abandonment. In Nail & Iron Company v. Furnace Company, 46 O. S., p. 544, it is held by the Supreme Court:

“If non-user of such road may work an abandonment of it, the non-user must be shown to have extended for over a period of twenty-one years.”

Hence, non-user, for a period of over twenty-one years, may itself be a sufficient fact from which to find the intention of abandonment. The non-user for this period, however, may be accompanied by other facts and circumstances which either weaken or strengthen it. In the case at bar we have the fact that on January 17, 1876, at a meeting of the directors and stockholders of the Tudor Boiler Manufacturing Company, at which Mr. Isaac Greenwald was present, action was taken to notify the I. & E. Greenwald Company that the Tudor Boiler Manufacturing Company claimed the opening of a forty foot strip, running from their highway to Eggleston avenue, the rear of the ground purchased by them from Niles & Company, and they required said street to be opened. This is evidence tending to contradict any intention of abandonment. It does not appear, however, that any formal action was taken to notify the I. & E. Greenwald Company — that they merely relied upon the fact that Mr. Isaac Greenwald was present, and was a member of the Tudor Boiler Manufacturing Company, and no formal steps were taken to open said street at law, and no physical action was taken to open said street in fact. It might be said, as to a third person, a case “where actions spoke louder than words.” This is especially so, for at that time the relation existing between the Tudor Boiler Manufacturing Company and the I. •& E. Greenwald Company was of the utmost cordiality, and it was to the interest of both that these relations be maintained.

Subsequently, by resolution of the Tudor Boiler Manufacturing Company, the I. & E. Greenwald Company was charged one dollar per annum for the use of this right of way, and this annual charge of one dollar was paid for a number of years thereafter, in the course of mutual accounting of business transactions. This payment of one dollar per annum began in the year 1879. As set out in the brief for plaintiff, evidently the only value this payment has is that it “illustrates the past,” it being admitted that had the Tudor Boiler Manufacturing Company, by this time, lost this right of way by abandonment, such payment could not re-create it. As an illustration of the past, this annual charge has not the significance that it would have if it stood alone. It is so involved in other business transactions of large proportion — a settlement of which was mutually desirable — that not much point would be made of a small item of this kind, and among business men, if it be yielded, it might be for the purpose of buying peace.

As opposed to these circumstances, we have the fact that the Tudor Boiler Manufacturing Company erected an office building directly across the end of this forty foot strip; and by this building of its own construction, effectually shut itself off from access to the same, and from any use of the easement now claimed by it. The significance of this fact, on the part of the Tudor Boiler Manufacturing Company, is well illustrated by contrasting the case of Stokoe v. Singers with the case of Regina v. Chorley, 12 Q. B., 515, both of which cases involved the question of ancient lights. In the former, the windows were closed by a covering temporary in its nature; in the latter, the windows were closed in a manner permanent in its nature. In the former, the court held that an intention to abandon was not thereby indicated. In the latter, on the contrary, the court held that the party, by his action, had clearly indicated his intention to abandon his right to light. The case at bar is one of an easement for, roadway purposes, and the structure built by the Tudor Boiler Manufacturing Company is one which effectively shut its property off from all access to this roadway, and made the use of the same at this end impossible. It clearly indicates an intention upon the part of the Tudor Boiler Manufacturing Company to abandon this right of easement for a roadway in tbis forty foot strip. In addition, we have the existence of the sand shed, which w>as constructed by the I. & E. Greenwald Company, a permanent structure necessary to the latter’s business, and inconsistent with a right of way over the part of the forty foot strip covered by it, and a substantial obstacle to access at the end of said strip to and from it, and the property of the Tudor Boiler Manufacturing Company.

We have likewise the fact that during the period from 1857 to 1879, this forty foot strip was continuously covered with a greater or less number of cores and flasks.

We are now considering these latter two items, not on the issue of adverse possession, but as collateral facts and circumstances, and the fact that théy existed so long in plain view of the Tudor Boiler Manufacturing Company, so completely destroying any use of the roadway of this forty foot strip and without objection, and for the most part with the acquiescence of the Tudor Boiler Manufacturing Company,.as indicating the attitude of mind, to-wit, the intention to abandon on the part of the Tudor Boiler Manufacturing Company. Thus marshalling the facts as they appear on this issue, we find that a preponderance is clearly in favor of an intention to abandon on the part of the Tudor Boiler Manufacturing Company, and that the same became and was thereby abandoned, and no subsequent acts of the parties has ever re-established it.

A great deal has been said about the deeds from Fox and Longworth, and it is claimed that the recitals in the same, accepted by the I. & E. Greenwald Company, recognize these easements. Be that as it may, these do not affect in any way the question of intention upon the part of the Tudor Boiler Manufacturing Company.

We come now to the question of adverse possession. The facts which the defense herein relied upon to maintain this defense are not much in dispute. It is claimed, however, that the use by the I. & E. Greenwald Company of this forty foot strip as a depository for their cores and flasks, in view of the fact that the I. & E. Greenwald Company held the fee of said strip, is not a user of the same, in its nature necessarily adverse to the easement claimed by the plaintiff. It is a familiar doctrine that, inasmuch as the owner of the fes has all the uses incident to a piece of property not inconsistent with a dominant easement, that until the exercise of such right or easement is asserted, any use by the owner of the fee is not in itself adverse.

This furnishes somewhat of an answer to the obstruction by the cores and flasks, but does not answer the interposition of the permanent, substantial sand shed, which by its very nature is a denial of any right of roadway use in this strip. Furthermore, at some time between 1857 and 1879, the I. & E. Greenwald Company built a substantial fence along the north side of this roadway, and continuously maintained the same.

Kinhead & Ellis and Paxton & Warrington, for plaintiff in error.

Herron, Qatch & Herron, for defendant in error.

It is extremely difficult, from the testimony, to determine whether or not any or all of these obstructions continued over the whole period of time, but we have no difficulty in finding that from 1857 to 1879 the I. & E. Greenwald Company exercised dominion over this strip and treated it practically as an appurtenance to their foundry, and paid no respect to any use of the same as a roadway. It is claimed that by acceptance of the Fox and Longworth deeds, and in other ways, the I. & E. Greenwald Company admitted the title of the Tudor Boiler Manufacturing Company for this easement. Such an admission is hardly important, and not -at all controlling on the issue of adverse possession — -adverse possession, by its nature, being to destroy an admitted title and to wrest away by physical holding. property rights, the title to which may be in another. On this issue the court is not so strong in its conclusion as on the issue of abandonment, but on this, too, we find in favor of the defendant.

We are therefore of opinion that an injunction should be denied.