author: WINCH, J.

text:
    BONDS — COURTS—ERROR.
    [Cuyahoga (8th) Circuit Court,
    November 9, 1910.]
    Marvin, Winch and Henry, JJ.

      B. Schatzinger et al. v. Lake View Land & Improvement Co.
    1. Appellate Jurisdiction of Common Pleas on Appeal From J. P. Cannot be Attacked on Error.
    Though the common pleas court is limited in its appellate jurisdiction to the amount, $300, for which a justice of the peace may enter judgment, yet if the parties proceed ’ to trial upon the merits, without objection to the jurisdiction on the ground that judgment is prayed for more than $300, it is too late upon error to make such an objection.
    2. Bond to Put Sidewalks in Good Condition Complied With When Put in Such Condition as Reasonable Man Would Regard Satisfactory.
    A bond to repair certain sidewalks and put them in good condition, satisfactory to the other party, is complied with if the walks are put in such good condition as a reasonable man, under like circumstances, would regard as satisfactory.
    Error to common' pleas court.

      Paul Eassulker, for plaintiff in error.

      Frank Higley, for defendant in error.

      Affirmed, no op.. Lake View L. & I. Co. v. Schatzinger, 87 O. S. 000; 57 Bull. 523.

   WINCH, J.

This was an action originally brought in a justice court by the Lake Yiew Land & Improvement Company against the plaintiffs in error to recover $300, elaimedi to be due under a bond in the sum of $500, conditional that plaintiffs in error should “repair and put in good condition satisfactory to said Lake View Land & Improvement Company” certain sidewalks mentioned in said bond. A further condition in bond was to the effect that if said repairs were not finished to the satisfaction of said company any difference between the parties should be submitted to arbitration in the manner provided by the bond. Judgment was for -the plaintiff in the justice court, whereupon the defendants appealed the case to the common pleas court, wherein a petition was filed praying judgment in the sum of $300, with interest from November 10, 1907, which was about the date of the judgment in the justice court. Pleadings being filed in the common pleas court the case went to trial there without objection as to the amount claimed in the petition, resulting in a verdict for the company in the sum of $331.20, an amount $2.40 less than $300 with interest from the time of the filing of the transcript for appeal to said court.

Motion for new trial being overruled, the cause has been removed to this court by proceedings in error and we are asked to review certain questions which are raised by the petition in error, which are as follows:

First. That the verdict is not sustained by sufficient evidence and is excessive.

We overrule this proposition because we find in the bill of exceptions evidence which might well warrant the jury in arriving at the conclusion which it came to.

Second. Misconduct of the jury in that jurors repeatedly fell asleep, which fact being drawn to the attention of the court, and objection being made by both parties at various stages of the trial, resulted in no material improvement in the conduct of the jury in this respect.

We are unable to say that any prejudice resulted to plaintiffs in error by reason of such plain misconduct of members of the jury because the point was not properly saved by sufficient exceptions taken at the time.'

Third. It is claimed that the common pleas court was without jurisdiction to render any judgment in the case, exceeding the sum of $300, the law being that where a case is appealed from a justice of the peace of the court of common pleas the latter court is limited in its appellate jurisdiction to the amount for which the justice is authorized to enter judgment, which amount is $300.

This seems to be the holding of the Supreme Court in Woolever v. Stewart, 36 Ohio St. 146 [38 Am. Rep. 569].

The answer to this is that plaintiffs in error did not save their point. They permitted the case to be tried without objection upon this score. The Supreme Court has thus stated the law in the case of Thomas v. Pennrich, 28 Ohio St. 55:

“In a case of which the court of common pleas would not have had original jurisdiction, brought into that court by appeal from the justice of 'the peace, if the parties proceed to trial upon the merits, without objection to the mode in which jurisdiction was taken, it is too late upon error to make such an objection.”

Later we find the same proposition re-stated in the third paragraph of.the syllabus of Crawford, In re, 68 Ohio St. 58 [67 N. E. Rep. 156; 96 Am. St. Rep. 648], as follows:

“Where parties voluntarily, and without objection, submit their controversy to a court having jurisdiction of the subject-matter, and the cause proceeds therein regularly to trial and final judgment, they will be held to have waived their right to object to the jurisdiction of that court even though the cause may have been taken to it by appeal from an inferior court which had not jurisdiction of the subject-matter.”

Fourth. It is complained that certain requests to charge, preferred by the defendant below, before argument, were not given.

As these requests were not preferred in the manner required by the statute with regard to charges to be given before argument, there was no error in refusing to give them at that time.

Fifth,, It is said that the charge as. given by the court is erroneous on the proposition that the work specified in the bond must be done to the satisfaction of the land company.

On this subject the court said:

“Where a party signs a bond to perform work to the satisfaction of the other party, in law a very high degree of performance is required, and, under such bond as the one in question the plaintiff had a right to refuse to accept as a full compliance with the terms of the bond any such repairs in the sidewalk as left defects in the sidewalk, providing only that the plaintiff in rejecting the sidewalk acted in good faith, was honestly dissatisfied with the same, and I say to you also, if you find the plaintiff acted in good faith in rejecting such defective sidewalk, it is immaterial tliat others might have been satisfied with the work performed by the defendants. ’ ’

We think that this was not a proper application of the rules of law to the facts of this case.

Attention is again called to the wording of the bond, which is, that the walks were to be repaired and put in good condition satisfactory to the land company. We think that this agreement falls within the cases of operative fitness or mechanical utility and not those of fancy, taste or judgment, as set forth in 9 Cyc. 618. On this subject we concur with the opinion of Taft, J., in the case of Elsas v. Meyer, 10 Dec. Re. 518, 523 (21 Bull. 346), expressed as follows:

“Where a man agrees to furnish an article to the satisfaction of another without other qualification, the rule undoubtedly is that if such satisfaction does not appear, whatever the reason for its absence, the contract is not fulfilled. But where the expression is used in connection with other words of qualification, there a different rule applies. Now, at bar, all these things were to be modern and first-class in every respect. If they come up to this description, the defendants ought to have been satisfied, and a mere whim can not be urged successfully as a defense. We follow in our views of the word ‘satisfactory’ in this contract, the case of Doll v. Noble, 18 Abb. N. Cas. 45, where in an elaborate note all the cases are collated and distinguished. ’ ’

Under the bond the jury should not have been confined to a determination merely of the good faith of the plaintiff below, or whether it was honestly dissatisfied with the repair work, but should have been instructed by the court that before finding for the plaintiff, it must first find that the walks were not put in such good condition as a reasonable man, under like circumstances, would regard as satisfactory. Berthold v. Electric Const. Co. 165 Mo. 280 [65 S. W. Rep. 784];

For this error in the charge, the judgment is reversed and the cause remanded for a new trial.

Marvin and Henry, JJ., concur.


source: Caselaw Access Project

author: MARVIN, J.

license: Public Domain

text:
    GAME LAWS.
    [Cuyahoga (8th) Circuit Court,
    January 29, 1912.]
    Marvin, Winch and Niman, JJ.
    State of Ohio v. A. M. Solomon. State of Ohio v. Bailey Co., a Corporation.
    White Heron, a Vagrant Bird, Possession or Sale of Plumage of Which is not Proscribed.
    The white heron, having been excluded from the term “game bird” by Gen. Code 1412, defining game birds, is not included in Gen. Code 1409 prohibiting the sale or possession of plumage of “any wild bird other than game birds,” since it is not a native bird or one migratory in the state at certain periods; but, instead, it is a transient or vagrant individual of a class whose habits are not to migrate either to this state or across it.
    Error to common pleas court.

      T. S. Hogan and Morgan <& Litzler, for plaintiff in error.

      Hidy, Klein <& Harris, for defendants in error:
    Cited and commented upon by the following authorities: 36 Cyc. 1110, 1119; Shultz v. Cambridge, 38 Ohio St. 659; Lane v. State, 39 Ohio St. 312; Abt v."State, 20 Dec. 517 (9 N. S. 311); Palmer v. Tingle, 55 Ohio St. 423, [45 N. E. Rep. 313] ; Cleve

      land v. Construction Co. 67 Ohio St. 197 [65 N. E. Rep. 885; 59 L. R. A. 775; 93 Am. St. Rep. 670] ; Thorpe v. Railway, 27 Yt. 140, 150 [62 Am. Dec. 625] ; Ritchie v. People, 155 111. 98 [40 N. E. Rep. 454; 29 L. R. A. 79; 46 Am. St. Rep. 315] ; Eden v. People, 161 111. 296 [43 N. E. Rep. 1108; 32 L. R. A. 659; 52 Am. St. Rep. 365] ; 8 Cyc. 864; Cincinnati, E. <& D. Ry. v. Sullivan, 32 Ohio St. 152; Reamer v. State, 12 Circ. Dec. 4 (21 R. 440) ; Cooley, Const. Lim. p. 704; 4 Blackstone, Commentaries 162; Commonwealth v. Ager, 7 Cush. (Mass.) 53; New York v. Eesterlerg, 211 U. S. 40 [29 Sup. Ct. Rep. 10; 53 L. Ed. 75] ; Roth v. State, 51 Ohio St. 209 [37 N. E. Rep. 259; 46 Am. St. Rep. 566] ; Gder v. State, 161 II. S. 519 [16 Sup. Ct. Rep. 600; 40 L. Ed. 793] ; Buchner v. Finley, 27 U. S. (2 Bet.) 585 [7 L. Ed. 528] ; Cherokee Nation v. State, 30 U. S. (5 Pet.) 1 [8 L. Ed. 25] ; Solomon v. State, 21 Dec. 383 (11 N. S. 525).
   MARVIN, J.

These two cases are exactly alike so far as the law points are involved. )

Each of the defendants was prosecuted for having in possession and offering for sale the plume of a bird known as the white heron. Speaking in the singular, as though there was but one ease, the facts are, that the defendant had the plume in possession and exposed for sale at the time charged. The prosecution was before a justice of the peace; the defendant was found guilty and sentenced. On error, prosecuted in the common pleas court, this judgment was reversed and the defendant discharged. Solomon v. State, 21 Dec. 383 (11 N. S. 525).

We are called upon, by proper proceedings in error, to determine whether or not there was error in this judgment of reversal.

Several grounds of error on the part of the justice were claimed, any one of which justified the judgment , of reversal. The offense, if there was an offense, was because of a violation of Gen. Code 1409. Among the grounds urged was that the prohibition contained in this section did not inelude the white heron;.another was that if it did include the white heron, the act was unconstitutional, it being the taking of private property without due process of law.

This last proposition we do not feel called upon to discuss other than to say that we are not impressed with the views expressed by the court of common pleas in its opinion in the ease. However, as we view the case, it is not necessary that this question be passed upon.

A similar prosecution was instituted in Starke county in 1908 against one Abt. The result in that case was a conviction before the justice of the peace, a reversal of that conviction by-the court of common pleas; that judgment of reversal was affirmed by the circuit court, which last-named judgment was affirmed by the Supreme Court. See State v. Abt, 83 Ohio St. 451. No opinion is reported, so that it may have been for the reasons given by the court of common pleas or for those given in the circuit court, or both.

The opinion of the common pleas court reversing the judgment of the justice is reported in State v. Abt, 20 Dec. 517 (9 N. S. 311). The opinion of Judge Harter, of the common pleas court, in this case is based upon the proposition that the white heron is or may be a game bird, and that there is no protection for such'birds in the statute. This reason does not now exist, because of Gen. Code 1412, which gives an enumeration of birds, which enumeration does not include the white heron, and the section closes with the words: “Thé birds named in this section shall be known and classed as game birds, in contradistinction to all other birds.”

1 However, there still remains the question of whether the white heron is included within the prohibition of Gen. Code 1409.

In that section a large number of kinds of birds, forty-two in all, are enumerated as those whose plumage, etc., shall not be exposed for sale, and the enumeration ends with the words: “or any wild bird other than a game bird.” It being now settled by statute that the Avhite heron is not a game bird (Gen. Code 1412), Ave have the question of whether these words include the Avhite heron.

■ The evidence shows in this case exactly as it showed in the case against Abt, and is expressed in the language of the opinion announced in the circuit court in State v. Abt, 33 O. C. C. 125.

The following is a quotátion from that opinion:

“It also fully appears from the evidence in, this case that the snowy heron is not a native bird of Ohio; that it is a habitant of southern waters, and is never seen in a wild state in Ohio except very rarely. So that if it is found in the state at all it is only as a vagrant individual of a species, and is not a native bird. We think these statutes are designed' to protect the native birds and migratory birds that find a home in this state during certain seasons of the year, as well as other migratory birds that cross the state at regular intervals of each year; and not merely a transient or vagrant individual of a class whose habits are not to migrate eith.er to this state or across it.”

I have refreshed my recollection in reference to this case by talking with the clerk of the court of Stark county since this case was heard, and I find, what on the hearing I thought to be true, that the circuit court was composed of Judges Donahue, Taggart and myself. Judge Donahue, as is well known, is now a judge of the Supreme Court of this state; Judge Taggart was recently chief justice of the circuit courts, both of whom are well known and were recognized, at the time this opinion was announced, as among the ablest judges in the state. This opinion was concurred in by all of us who sat in ■the case. No court, so far as we know, in the state of Ohio, has dissented from the proposition announced in this opinion since it was delivered; and, following that opinion, and for the reasons stated in that part of it which is hereinbefore quoted, the judgment of the court of common pleas in this case is affirmed.

Winch and Niman, JJ., concur.


author: SMITH, P. J.

text:
    RAILROADS.
    [Hamilton (1st) Circuit Court,
    January 20, 1912.]
    Smith, Swing and Jones, JJ.
    Norfolk & Western Ry. v. Stella Beck.
    Failure to Show Excessive Speed of Train or Omission of Requisite Warnings Precludes Recovery for Injuries to Vehicle at Crossing.
    The whistle of an approaching train, running at not to exceed twenty miles an hour, having been sounded 1200 feet from a street crossing, the bell continuously rung and the train stopped in its length after the locomotive rounded a curve 200 feet from the street, no recovery for injuries to a horse, wagon and load can be sustained, especially since no evidence is offered that the train was running at excessive speed or warnings by whistle or bell were omitted to be given.
    Error to common pleas court.
    Hollister. & Hollister, for plaintiff in error.

      Thorndyke & Capelle, for defendant in error.
    Plaintiff below recovered a verdict below of $229.64, on account of injury to a horse and wagon and its load from being struck by one of the Norfolk & Western Ry. trains at Langdon and Floral avenues, Evanston.
   SMITH, P. J.

In this case it is urged by plaintiff in error that no negligence is alleged in the petition; that no ease of negligence is made out by the evidence on the part of plaintiff in error'; and that the agent’ of defendant in error who was driving the wagon at the time of the accident was guilty of contributory negligence.

The acts of negligence alleged in the petition are, “that at the time of the accident, plaintiff’s wagon was being driven along the public highway leading through Evanston, and that the defendant, by its agent, in approaching said crossing ran said train with great speed and omitted to give any signal by bell or whistle or otherwise of its approach.”

Assuming that these facts would constitute negligence on’ the part of the plaintiff in error, the question presented is, whether or not these acts of negligence are proven.

In this respect we think the plaintiff has failed. The overwhelming evidence is, that at 1200 feet from the crossing, at the whistling post for the crossing, the engineer sounded the whistle, the fireman began to ring the bell and continued to do so up to the time of the accident, and the train was only running at from eighteen to twenty miles per hour. That as soon as the engineer and the fireman saw the horse upon the track, which was at a distance of 200 .feet therefrom, being upon a curve, the engineer did all that he could to stop the train and 'did stop it within the train’s length, at which time the wagon was right at the back of the baggage car. No witness testifies that the bell was not rung or that the whistle was not sounded, and according to another witness who was at the point of the accident at the time thereof, and first saw the driver' walking away from the railroad track leaving his wagon stuck on the roadway.

The court is of the opinion, therefore, that the evidence clearly shows negligence on the part of the driver of the wagon, and that none is disclosed on the part of the railway company.

In view of the case it is not necessary to consider’ other errors alleged.

The judgment of the court below will be reversed and judgment entered in this court for plaintiff in error.

Swing and Jones, JJ., concur.


author: WILDMAN, A Kinkade, J.

text:
    ATTORNEYS — COURTS—DISBARMENT.
    [Lucas (6th) Circuit Court,
    June 15, 1912.]
    Wildman, Kinkade and Richards, JJ.
    State ex rel. Charles A. Thatcher v. Bernard F. Brough et al.
    1. Act Attempting to Reinstate Disbarred Attorney is Usurpation of Judicial Powers and Special Legislation Inhibited by Constitution.
    Act 102 O. L. 84, attempting to reinstate a disbarred attorney, is unconstitutional in that (1) it is a usurpation of judicial power and (2) is special legislation in a matter of general nature as to which uniform operation is required.
    2. Disbarment of Attorney by Virtue of Asserted Inherent Powers of Supreme Court Applies to all State Courts.
    An order of disbarment of an attorney at law, made by the Supreme Court under its asserted inherent powers rather than by virtue of statutory powers conferred applies to all the courts of the state when so intended; and an intention that it shall so operate is indicated by the ordering that the attorney’s name be “stricken from the roll of attorneys in the state,” there being but one such roll.
    3. Prejudice of Judges not Assumed in Order of Disbarment from Publication by Attorney of Circular Reflecting on Such Judges.
    Prejudice, disqualifying judges of the Supreme Court from hearing a disbarment proceeding will not be assumed from the fact that the attorney proceeded against has published circulars reflecting upon such judges.
    [Syllabus approved by the court.]
    Mandamus.
    Action brought by Charles A. Thatcher, relator, against Bernard F. Brough, John P. Mantón, Charles E. Chittenden, and Curtis T. Johnson, judges of the' court of common pleas of Lucas county.

      Charles A. Thatcher and G. B. Keppel, for relator.
    Respondents in person.
   WILDMAN, A

This is a proceeding for mandamus under the statute, and one Of such importance to the courts, the bar and the people of the state as to have enlisted our most earnest attention. The ease involves the right of the relator as an attorney at law to practice in the courts of this state.

The claims of Mr. Thatcher to recognition as such attorney have been made the subject of wide discussion by the press of the state, and of special legislation by the general assembly. The' matter involves not only his personal interests, but the rights and interests of litigants in courts and proper definitions of the powers and jurisdictions of the judicial and legislative branches of our' state government.

The prominent facts constituting the history of his case in both these branches have 'become, by wide publication and discussion, .familiar history, and, except in outline, need not be repeated. They are briefly, his original admission to the bar some years ago by the Supreme Court of Ohio, his disbarment for alleged immoral conduct by judgment of the same court, June 25, 1909, Thatcher, In re, 80 Ohio St. 492; the refusal December 20, 1910, to reinstate him, Thatcher, In re, 83 Ohio St. 246 [88 N. E. Rep. 738]; his disbarment by a federal court on the same and additional grounds, Thatcher, In re, 190 Fed. Rep. 969; the special act of the general assembly of April 18, 1911, 102 O. L. 104, for his readmission to the bar; his attempt to practice in the court of common pleas of Lucas county and the refusal of that court to permit him so to do, Thatcher, In re, 22 Dec. 116 (12 N. S. 273); holding the special act of the legislature to be a usurpation of judicial power and for that reason invalid.

The present proceeding before us seeks a peremptory writ of mandamus, compelling the common pleas court to permit him to practice therein. He asserts a right based on his original admission to the bar, the claimed invalidity of the Supreme Court’s judgments for lack of jurisdiction and disqualification of two of its members, and, if these claims prove untenable, the special act of the legislature for his readmission. ■

These claims .invite no inquiry into thé merits of the charges on which the Supreme'Court acted and wu will attempt none; but to remove, so far as we may, any possible false impression, as to the grounds of the Supreme Court’s action, quotations from the syllabus of its original opinion, Thatcher, hi re, supra, and 'from that rendered on the motion for reinstatement, Thatcher, In re, supra, may not be inappropriate here. Neither the general public, the legislative body, nor any judicial tribunal can intelligently review the findings of fact of that court without a consideration of all the evidence on which it acted.

Paragraphs 3, 4 and 6 of the syllabus in the original ease and paragraph 3 of that on' the motion to reinstate are as follows :

“An elector who is an attorney has the right to criticise the judgments and conduct of judges in a decent and respectful manner; but no man has a right to degrade and intimidate a public officer and bring his office into contempt by the publication of libelous matter at any time, and the fact that such officer is a candidate for re-election will not excuse such conduct. One who claims the protection -of the constitution, Art. 1, See. 11, must also and at all times be held responsible for abuse of the privilege.
“The real question in cases of this kind is whether under the facts admitted and proved the respondent appears to be a fit person to be longer allowed the privilege of an attorney; whether he has shown himself, by lack of appreciation of ethical standards and by unworthy conduct, to be no longer worthy of being recognized as an officer of the courts.”
“While the power of disbarment should be exercised with great caution, yet where the1 respondent has been found guilty of unprofessional conduct involving moral turpitude and of misconduct affecting his character and standing as an attorney, and especially where he has manifested no signs of regret and retracted nothing, -the courts will not hesitate, through sympathy for the individual, to protect themselves from scandal and contempt and the public from prejudice, by striking such person from the roll of attorneys.”
“This court has found the respondent guilty of a specification which in substance was that, for the purpose of procuring for himself a large sum of money, disproportionate to legitimate fees for services as an attorney, he _ caused suit to be brought on notes which had been paid and which he knew had been paid; and procured a reputable attorney who did not know that said notes had been satisfied to bring the action thereon and verify the petition, and such finding by the court establishes the charge that he was guilty of unprofessional conduct involving moral turpitude.”

There is no rule better established than that the remedy of mandamus will be afforded only where the right to it is clear. It was embodied in the first paragraph of the syllabus of State v. Yeatman, 22 Ohio St. 546, as follows:

“A mandamus will not be awarded in the absence of a 'dear right, in the party seeking the writ, to the object sought to be obtained by it.”

See also Gen. Code 12283, 12285, 12288.

Has the relator in the present proceeding shown such clear right to the remedy which he prays? •

The situation produced by the claim of relator that the judgment of disbarment pronounced by the Supreme Court is of no validity, is, when addressed to a court of subordinate power, a very peculiar one. While it may be true that if the court of last resort acted beyond its jurisdiction, or if for any other reason its judgment lacks validity, a lower court in a collateral proceeding may disregard it; still, the problem pre;sented'to us is a perplexing one. The relator’s claim in this :respect is a double one: First, that the constitutional jurisdiction of the Supreme Court does not embrace proceedings to disbar attorneys, and second, that two of the judges of that court who sat in the case, and one of whom pronounced the opinion adverse to the relator upon the motion for his reinstatement as attorney, were disqualified from sitting.

As to the first of these two contentions, we are relieved from the difficulty by the conclusion which, after a reading of the authorities cited, we have unanimously reached, that the jurisdiction of the Supreme Court, under the powers derived by it through the constitution and by common law, was entirely adequate to justify the procedure. In this connection attention is invited to the adjudications cited in the opinions of the three judges of the court of common pleas who concurred in reaching a conclusion that the relator was not entitled to practice in their court.

The other claim, that the judgment of disbarment is invalid because two of the judges were disqualified, is, we think, untenable. The claim is not that either of the two judges mentioned had any pecuniary or other direct interest in the proceeding, but only that certain conduct of relator under consideration as a ground for disbarment, to wit, the publication of an alleged libelous circular or circulars attacking other persons, also reflected upon the two judges of the Supreme Court, and that .they may have been thereby prejudiced against him. We can not assume that by such an attack, they were so biased or prejudiced against the relator as to affect their judgments, and even if such bias did appear, we have been presented with no authorities indicating that in the absence of a challenge to the right of such judges to sit, they would be disqualified.

Another question incident to this disbarment proceeding is one of greater difficulty and one which has not elicited a united opinion from the common pleas judges. I refer to that as to the scope of the judgment of disbarment. It is contended by relator and held by Judge Johnson, one of the common pleas judges, Thatcher, In re, 22 Dec. 116, 148 (12 N. S. 273), that the jurisdiction of the Supreme Court to disbar did not extend so far as to affect the right of relator to practice in the court of common pleas. The argument is that if the Supreme Court derived no jurisdictional power from the general assembly by virtue of R. S. 563 (Gen. Code 1707) but acted by virtue of its constitutional • power, independent of the legislature, that power was one possessed independently by every court for its own protection and suitors invoking its jurisdiction; that if the Supreme Court could determine who should and who should not practice before it, the court of common pleas had like power within its own jurisdiction.

We have examined with care such adjudications as we have found touching this question, and are convinced that the three common pleas judges, Mantón, Brough and Chittenden, adopting the other view, were correct. Among these authorities are several referred to approvingly by the Supreme Court in the disbarment case. The ones so cited are:

Breen, In re, 30 Nev. 164 [93 Pac. Rep. 997; 17 L. R. A. (N. S.) 572], a proceeding to disbar an attorney in which the supreme court of that state, while asserting its right to disbar, independent of statute, expressly ordered that the name of the attorney disbarred by its decree should be struck from the roll of attorneys^and that he should be disbarred from “thereafter appearing or practicing in any of the courts” of that state.

Simpson, In re, 9 N. Dak. 379 [83 N. W. Rep. 541]; Nelson v. Commonwealth, 128 Ky. 779 [109 S. W. Rep. 337; 16 L. R. A. (N. S.) 272]; Brooks v. Fleming, 65 Tenn. (6 Baxt.) 331, 338; Robinson, In re, 48 Wash. 153 [92 Pac. Rep. 929].

In all these cases the orders of suspension or disbarment, though based, as in the Ohio case, on asserted powers not statutory, were made or held to apply to all the courts of the states where such judgments were rendered.

That our own Supreme Court intended to disbar relator from practicing in the lower courts of the state, we think is clearly indicated in the language of the opinion, and in that of the journal entry ordering that his name be “stricken from the roll of attorneys in the state.” There is but one such roll, and under the procedure as regulated by statute an attorney admitted to practice by the Supreme Court, is, by virtue of that admission and without further order by the lower courts, entitled to practice therein. In the disbarment case, Thatcher, In re, 80 Ohio St. 492. the Supreme Court not only in the first paragraph of the syllabus but on page 655 of the opinion, clearly connects the right to disbar with the right to admit, evidently deeming the effect of. the exercise of one power as broad as the other.

Having arrived at this conclusion with reference to the jurisdiction of the Supreme Court and the power and scope of its judgment, we reach the interesting and important question as to whether -pr not the disability of relator to practice in the courts of the state has been removed by the attempted legislation in his favor, the act of 1911.

The judges of the common pleas court, with the exception of Judge Johnson, united in their holding that the special act attempting to admit relator to practice in the courts of the, state was invalid. The judgment of the court of common pleas,' as shown by the opinion of the three judges, was based on their view, supported by numerous citations of authorities, that the power to admit attorneys to practice in the courts is exclusively a judicial power and not legislative. I will not attempt to review these opinions or the authorities cited. We have read them and many other cases bearing on the subject and are satisfied that the great weight of authority sustains the conclusion at which the three .judges arrived. Before leaving this branch of our inquiry, it should be stated that the language in the opinion rendered in the disbarment case clearly indicates the view, we think, that a statute such as the one relied upon by Mr. Thatcher for his reinstatement to the bar, would be deemed and held an encroachment upon the judicial power belonging exclusively to the courts. See especially pages 654 and 655 of the opinion.

It may be said also before leaving this question of legislative as distinct from judicial power, that the special act in question is, so far as the search of counsel or that instituted by ourselves has discovered, the first attempt by any legislative body in this or any other state to admit an individual directly to the practice of law in the courts. Some requirements of eligibility to admission have been enacted, but for more than a century the final admission has been left in Ohio as in other states to the courts themselves.

Upon a ground additional to that adopted by the three common pleas judges in support of their holding • that the special act is invalid, we have arrived at the same result. The statute is clearly, in our judgment, an attempt to restrict the uniform operation of legislation of a general nature, and it thereby violates Art. 2, See. 26, of the constitution.

For many years prior to 1851, when our present constitution was adopted, _in the compilations of statutes in Ohio, acts relating to the admission and disbarment of attorneys were published in the volumes of session laws under the title “Acts of a General Nature.” That the framers of the constitution were familiar with this arrangement and phrase, is apparent from their use of the same words in the section referred to. All such acts they intended to have a uniform operation! That these facts furnished one just rule of constitutional interpretation is expressly held by the Supreme Court in State v. Bargus, 53 Ohio St. 94, 107 [41 N. E. Rep. 245; 53 Am. St. Rep. 628].

If, in the general act as to judicial proceedings for disbarment, it had been provided that all attorneys in the state, except Mr. Thatcher, should be subject to its provisions, its unconstitutionality would hardly be questioned, and it would seem no more within the legislative power to except relator by a special act from the operation of a general one. Whatever the form of legislation it should not violate the manifest spirit and purpose of the constitutional inhibition.

That acts of a general nature must operate uniformly is a rule applicable to classes of persons as well as to territorial subdivisions of the state. As stated in the opinion of Judge Speer, in Senior v. Ratterman, 44 Ohio St. 678 [11 N. E. Rep. 321]: “The principle of uniform operation requires simply that the law shall bear equally in its burdens upon the persons standing in the same category. # * # It must have a uniform operation upon all those included within the class upon which it purports to operate.”

Numerous authorities in support of this proposition might be cited. The rule is in harmony with the prohibition in the federal constitution forbidding states “to deny any person within their jurisdiction the equal protection of the laws,” and our Ohio 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. See State v. Gardner, 58 Ohio St. 599, 610 [51 N. E. Rep. 136; 41 L. R. A. 689; 65 Am. St. Rep. 785],

It is urged by relator that the enactment in question was, based, as it recites, upon an existing “emergency” and that by reason of this fact it was taken out of the constitutional prohibition. While the force of this claim is not distinctly rebutted by an express holding of the Supreme Court, it is forcibly said in Platt v. Craig, 66 Ohio St. 75, 79 [63 N. E. Rep. 594], that “the local and temporary emergency must be a real exigency, and not a mere pretext for special legislation, ’ ’ and it is forcibly urged by Judge Burkett in State v. Spellmire, 67 Ohio St. 77, 90 [65 N. E. Rep. 619], that “there is no provision for violating the constitution in an emergency.”

The history of the adjudications and legislation relating to Mr. Thatcher’s status has become so familiar that we feel at liberty to infer that the “emergency” mentioned in the statute signified merely his disability from practicing as an attorney by reason of the judgment of disbarment. The act, besides reciting facts as to his legal eligibility to practice, says also that Thatcher “is of a good moral character.” It is urged by relator that this recital is not inconsistent with the finding of the Supreme Court that he was of such character at the time of the disbarment as to render him unfit to be a member of the bar, and that the statute is neither inconsistent with the judgment of disbarment nor an attempt to evade or reverse it. He urges that if the finding of the court was justified, there was time between the date of the judgment and that of the passage of the act, for reformation; but in the case of King, In re, 54 Ohio St. 415 [43 N. E. Rep. 686], it was held that a court rendering judgment of disbarment retains jurisdiction with' power to reinstate the disbarred attorney “on a proper showing of reformation, or for other satisfactory reasons, arising after the disbarment.” The opinion of the ease cited is by the full court, which in addition to what has already been stated, holds: “When a member of the bar of the state has been, upon proper proceedings, disbarred, and the judgment remains in full force -and unreversed, the only remedy of the party is, at the proper time and on a proper showing, to apply to the court in which he was disbarred to be reinstated.”

Can it be said that the jurisdiction of the Supreme Court can be arrested in Mr. Thatcher’s case, and that the recitals of the special act are to be taken as evidence or proof of the existence of the facts stated? That they can have no such effect is asserted in substance by Cooley, Const. Lim. (6 ed.) pp. 113, 115.

In effect, this attempted legislation is in our judgment, as already indicated, an attempt to reverse an adjudication of the Supreme Court of the state rendered in the exercise of its independent power. “The power to open or'vacate judgments is essentially judicial. Therefore, on the great constitutional principle of the separation of the powers and functions of the three departments of government, it cannot be exercised by the legislature.” 1 Black, Judgments Sec. 298.

I quote also to the same purport the language of the opinion in Bartlett v. State, 73 Ohio St. 58 [75 N. E. Rep. 939] :

“It is well settled that the legislature can not annul, reverse or modify a judgment of a court already rendered, nor require the courts to treat as valid laws those which are unconstitutional. If this could be permitted the whole power of the government would at once become absorbed and taken into itself by the legislature.”

In these days of sharp criticism of courts for assumed interference with the legislative province, we can not too often remind ourselves of the principles defining the respective functions and powers' of the coordinate branches of the government. Many well meaning but not always well informed critics have, of late, questioned the power of courts to pass upon the constitutionality of legislative enactments. It is altogether probable that some judges have too readily declared statutes to be invalid because of a vague belief that they were hostile to the general spirit of the constitution; but while every court appreciating both the scope and limitations of its own duties and powers will approach with reluctance and caution any question as to tlie validity of an act of a legislative body, no judge can, when ,an issue is fairly presented properly refuse to hold invalid a statute which clearly violates the fundamental law ordained by the people. So to refuse and to uphold the statute would be to hold that the -legislature is mightier than the people, and the statute enacted by the legislature more potent than the written constitution. ,

. In this connection and in closing, the words of Chief Justice Marshall, of the U. S. Supreme Court, in Marbury v. Madison, 5 U. S. (1 Cranch.) 137 [2 L. Ed. 60], written many years ago, as we were entering on our new experiment of a republic with a written constitution, may not unfitly be quoted:

“The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is' a proposition too plain to be contested, that the constitution controls any legislative act" repugnant to it; or, that the legislature may alter the constitution by an ordinary act. Between these alternatives' there • is no middle ground. The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the constitution is not law; if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable. Certainly all those who have framed written constitutions contemplate them as following the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void. This theory is essentially attached to a written constitution, and, is consequently, to be considered, by this court, as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject.
‘ ‘ If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law ? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration. It is emphatically the province and duty of the judicial department to say what the law, is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution, or conformably to the constitution, disregarding the law, the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply. Those, then, who controvert the principle that the constitution is to be construed, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes, on the constitution, and see only the law.
“This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which •professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure. That it thus reduces to nothing what we have deemed the greatest improvement on political institutions, a written constitution, would of itself be sufficient, in America, where written constitutions have been viewed with so much, reverence, for rejecting the construction.”

Our unanimous conclusion, based, we believe, on both wise and just principles and the weight of judicial authority, requires us to refuse the relator the writ which he asks. If he has just grounds for reinstatement to the bar, he should present them to the court which struck his name from the roll, the court of last resort in the state. We can not assume that that court will not do him justice.

Richards, J., concurs.

Kinkade, J.

I concur in the conclusions reached that the judgment of the Supreme Court bars Mr. Thatcher from practicing in all the state courts 'of Ohio and that the act of the legislature of April 18, 1911, is unconstitutional. for the reason that it is the exercise of judicial power which is, by the constitution, vested in the courts and not in the legislature and for the further reason that it is special legislation of a character prohibited by' the constitution. The writ of mandamus applied for here should not be issued.


author: NORRIS, P. J.

text:
    INTEREST AND USURY.
    [Columbiana (7th) Circuit Court,
    March Term, 1912.]
    Norris, Pollock and Metcalfe, JJ.
    Sarah E. Ingram v. Frank H. Scattergood.
    Stipulation for Payment of Interest Annually Extends Only to Maturity.
    A stipulation in a promissory note for the payment of interest annually extends only to tbe maturity of the note, and after that time interest must be computed at tbe stipulated rate without annual rests.
    [Syllabus by tbe court.]
    Appeal from common pleas court.

      K. L. Cobotirn, for plaintiff.

      Metzger & Smith, for defendant. ®
   NORRIS, P. J.

The defendant claims credit for three promissory notes all •drawing interest “payable annually” or “to be paid annually,” all having run several years after their maturity. The question is, did installments of interest become due after the maturity of these notes so as to draw interest, or, in other words, should the interest on these notes after maturity be computed with annual rests?

So far as we have been able to find, this question has never been directly determined by the Supreme Court of this state. There is no stipulation in these notes in relation to interest after they become due. The defendant is therefore entitled to interest after that time by operation of law and not by any provision in the nqtes themselves. Brewster v. Wakefield, 63 U. S. (22 How.) 118, 127 [16 L. Ed. 301]; Bartenbach, In re, 2 Am. L. T. R., N. S., 33 [2 Fed. Cas. 956],

The law of Ohio in relation to interest is found in the following three sections:

Gen. Code 8303. “The parties to a bond, bill, promissory note, or other instrument of writing for the forbearance or payment of money at any future time, may stipulate therein for the payment of interest upon the amount thereof at any rate not exceeding eight per cent per annum) payable annually.”
: Gen* Code 8304. “Upon all judgments, deepees, or orders, -rendered on any bond, bill, note, or other instrument of writing containing stipulations for the payment of interest in accordance with the provisions of the next preceding section, interest shall be eomnuted- till the payment at the rate specified in such instrument.51
Gen. Code 8305. “In cases other than those provided for in tiie next two preceding sections, when money becomes due and payable upon any bond, bill, note * * * the creditor shall be entitled to interest at the rate of six per cent per annum and no more.”

In Cook v. Courtwright, 40 Ohio St. 248 [48 Am. Rep. 681], the Supreme Court seems unable to give any effect to the words “payable annually,” found at the close of Gen. Code 8303, and seems to hold that no effect can be given to these words, and in Ohio College of Dental Surgery v. Rosenthal, 45 Ohio St. 183, 191 [12 N. E. Rep. 665], the Supreme Court says:

“It is well settled that our statutes relating to interest were intended to fix the rate and not the time of payment.”

And in Averill Coal & Oil Co. v. Verner, 22 Ohio St. 372, 381, the Supreme Court holds that computing interest with annual rests without express contracts therefor is not sanctioned by the laws of this state, although it may be the “mercantile method.”

Do the sections of the code above referred to provide for the computation of interest on these notes after maturity with annual rests? We think clearly not. Gen. Code 8304 provides that upon judgments and decrees, etc., rendered on any bond, bill, note # * # interest shall be computed till payment at the rate specified in such instrument. Not expressly providing that the rate on such bond or note shall be the same after maturity of the note as before.

But our Supreme Court in Marietta Iron Works v. Lottimer, 25 Ohio St. 621, 626, holds that inasmuch as the statute provided that upon all judgments on such 'notes interest should be computed till payment at the rate specified in the note, the inference, is irresistible that the notes after maturity and before judgment must bear this stipulated rate; thus so construing the statute as to uphold that notes shall bear the stipulated rate of interest after maturity.

Such rate is not usurious, but by virtue of the same provision of the statute the Supreme Court, in this same ease holds that while the judgment would bear the rate of interest stipulated in the contract, the interest could not be made payable quarterly until paid, although such payments were also stipulated in the contract, holding that the judgment only drew interest by operation of law, and that in the absence of statutory provisions on the subject the interest on the judgment could not be computed with quarterly rests.

The holding in this case would seem by its reasoning to be conclusive of the question before us, there being no statutory provisions for computing interest on notes after their maturity with annual rests.

The case of Hunter v. Hall, 6 Circ. Dec. 366 (14 R. 425), gives this construction of the statutes. We find no conflict in the authorities on this question. The general principle is laid down in 22 Cyc. 1483, 1510, and some authorities are cited, although they are not numerous. One of the leading eases is Wheaton v. Pike, 9 R. I. 132 [98 Am. Dec. 377], the syllabus of which is as follow's.

“Where a promissory note is made payable at a time given after date, with interest payable semiannually, interest may be computed in making up the judgment on all installments of interest overdue and remaining unpaid; but no installments of semiannual interest will be considered as due after the maturity of the note, because after that, both the accruing interest and the principal are due, not on any particular day but every day till they are paid. ’ ’

And in Magruder v. DeHavens, 21 Ky. L. Rep. 580 [52 S. W. Rep. 759], by the supreme court of Kentucky, 1899, the syllabus is as follows:

“A stipulation in a note for payment of interest semiannually extends only to the maturity of the note and after that interest must be computed in the ordinary way.

To the same effect .is Hovey v. Edmison, 22 N. W. Rep. 594 (Dak.). In this case the supreme court- of Dakota reviews many authorities on questions of computing interest.

In Bartenbach, In re, supra, Judge Longyear of the United ¡Mates district court of Michigan holds the same rule under the Michigan statute, -which he quotes and -which is quite similar to the Ohio statute so far as this question is concerned. In his opinion he says:

‘ ‘ The interest up to the maturity of the debt has been paid and the only interest in question here is such as had accrued after that time by operation of law and not by any provision of the contract. It was therefore not due by installments but it was due at"any and all times as it accrued.”

Hall v. Scott, 11 Ky. L. Rep. 819 [13 S. W. Rep. 249], decided by the supreme court of Kentucky in 1890 confirms the same rule as to computing interest.

The supreme court of New Hampshire in the ease of the Ashtabula Ry. v. Elliot, 57 N. H. 397, holds that interest after maturity and recoverable by way of damages for the detention of money would be computed without semiannual or other rests. The supreme court of South Carolina in Wilson v. Kelly, 19 S. C. 160, and Westfield v. Westfield, 19 S. C. 85, holds the law to the same effect as applicable to the notes in suit.

We have not been able to find any authorities holding a different rule. We are therefore constrained to hold that defendant is entitled to have the interest on these notes computed after maturity at the rate specified therein without annual rests.

The defendant further claims credit for pasture and house rent. We are not able to say from the testimony that he is entitled to credit for these items.

Pollock and Metcalfe, JJ., concur.


author: NIMAN, J.

text:
    ASSESSMENTS.'
    [Lorain (8th) Circuit Court,
    April 20, 1912.]
    Marvin, Winch and Niman, JJ.
    William A. Ely v. Elyria (City) et al. John P. Brooks et al. v. Elyria (City) et al.
    1. Mere Physical Capacity to Carry off Sewage of Lot not Local Drainage in Contemplation of Statute.
    A sewer physically adequate to supply local drainage to a given lot alone does not necessarily supply such “local drainage” as is contemplated by Gen. Code 3819.
    2. Assessments for Sewer as Part of Münicipal System not Enjoin-able.
    Local drainage, within the meaning of Gen. Code 3819, comprehends such drainage as is necessary for the general welfare and protection of the public health; it is not confined to the convenience of the owner; hence, an assessment for constructing a sanitary sewer and intercepting basins to carry off storm water into a running stream as part of a general system of sewers and disposal plant of. a municipality designed to prevent the contamination of the waters of such stream, and thereby protect the public health, will not be enjoined even though a former sewer was adequate for plaintiff’s needs.
    [Syllabus approved by the court.]
    Appeal from common pleas court.

      L. B. Fanner, for- plaintiff.

      G. B. Findley, for defendant.
   NIMAN, J.

These cases are here on appeal, and involving a similar, though not an identical, state of facts, they will be considered together.

The plaintiffs in both cases seek to enjoin the collection of special assessments against their respective properties for the building of a sewer. The properties of the plaintiffs are located on the south side of Broad street, in the city of Elyria. The Ely property adjoins the Brooks property on the east.

The sewer for which the assessments in question were made is a sanitary sewer, constructed by the city of Elyria in 1911, in Broad street. It passes through, said strdét in front of the properties of the plaintiffs, and joins with a sewer on Washington avenue, which is carried north in this street, over the bridge and an in the same direction to a point where the city designs to erect a sewage disposal plant.

A number of grounds are set forth in the respective petitions to establish the illegality of the assessments, and the right of the plaintiffs to the relief sought. The ground relied upon, however, by the plaintiffs is, that their properties are not-benefited by this new sewer, for the reason that they are already provided with local drainage.

Gen. Code 3819 limits assessments to the special benefits conferred upon the property assessed, and exempts from assessment any lots or lands that do not need local drainage, or which are provided therewith.

The question for determination, therefore, in these cases, is, whether or not the properties of the plaintiffs are provided. with local drainage within the meaning of Gen. Code 3819. >

In 1899 a sewer was constructed by the city of Elyria in East Broad street in front of the Ely property, running easterly into a sewer on East avenue. The Ely property was assessed for this sewer and the property was connected with it, and is still connected. Both the storm water and sanitary sewage are carried through this old sewer to the East avenue sewer, and through the latter northerly to the point where East avenue is crossed by Depot street. At this point is an intercepting basin, designed to separate the sanitary sewage from the storm water, which is then conveyed through the Depot street sewer with the main sanitary sewer on Washington avenue. The storm water is diverted and poured into Black river. Formerly both storm and sanitary sewage ran into the river.

The city has adopted a general sewer plan which contemplates the construction of sanitary sewers, and the disposal of the sewage collected through them, by means of a reduction plant outside of the city, in order that the waters of the river may not be contaminated, and the health and comfort of the people be interfered with by the creation of such a nuisance as will result from a continuation of the former practice of pouring all the sewage into the river. When the plan is carried out, it is designed to convey the storm water through the old sewers, but for temporary purposes, and to avoid further pollution of the river beyond what is unavoidable, a system of interceptors, such as the one at the intersection of East avenue and Depot street, for the separation of sanitary sewage and storm water has been installed, so that the sewage is diverted and carried out through the Washington avenue sewer to the point where the reduction plant is to be located, while, the storm water is allowed to flow into the river. It appears, however, that this plan of interceptors is only a temporary arrangement permitted by the state board of health, until the disposal plant is built, and it further appears that by this plan some sewage still finds its way into the river.

The sanitary sewer constructed in Broad street in 1911, for which the assessments in question were made, is a part of this general system of sewers.

If the simple fact that the old sewer carries off all the sewage from the Ely property in a manner satisfactory to the owner, and adequate to the needs of that particular property, is the only thing to be considered, the relief sought against the assessment in this particular ease should be granted. But it is not contemplated by the statute that the purpose of a sewer is simply to get rid of something on one’s own land. The welfare and ’protection of the public generally must be considered, as well as the convenience of the owner in determining the adequacy of the sewer.

In Avondale v. Scudder, 4 Circ. Dec. 476 (12 R. 770), it was said:

‘ ‘ The local drainage which is meant by R. S. 2382 is such a sewer, or such a system of sewers, as looking to the dimensions, the mode of construction, the material used, the location for the outlet and the sanitary conditions, will not only benefit the persons who have constructed the sewers, but will not be detrimental to the rights of the public, not only of the present public, but of those who may, and who of right may, build in the vicinity where the sewer is located. ’ ’

The city of Elyria, owing to its rapid growth, has found that its former sewer system is inadequate, and that the public health is endangered by continuing to empty its sewers into the river; the health authorities have interfered and the city has devised a new system to secure present relief and take care of its future needs. As a part of that system, it has constructed this sanitary sewer on Broad street in front of the property of the plaintiffs. The old sewer there contributed its share toward creating the necessity of the new one, and the Ely property, by disposing of its sanitary and storm sewage through this old sewer, and having it carried into the river, assisted in bringing about a condition which required relief in the form of a new system of which the Broad street sewer, built in 1911, is a part. The old sewer, while physically adequate to supply local drainage to the Ely property, did not, in our opinion, supply such local drainage as the statute contemplates.

In this opinion we are supported by Hildebrand v. Toledo, 27 O. C. C. 427 (6 N. S. 450), where it was held that “a claim of adequate local drainage, based upon the right to allow sewage to drain into a natural water course running through a municipality, is not sustained where such drainage will pollute the stream and create a nuisance and imperil the health of other riparian owners.”

The fact that an interceptor is used to separate the sewage coming from the Ely property and from the other property using the old Broad street sewer does not, in our opinion, change the situation. The system of interceptors is, it appears, only a temporary one, and the use of such a system involves the use of the new system of sanitary sewers, of which the new Broad street sewer is a part, and the Ely property is to that extent the beneficiary of the new system. It is urged that the property is not connected with the new sewer, and is not being used by it, but this situation often happens, as in the case of vacant property. It does not follow that because property is not connected with and does not make use of a sewer, it should be re lieved from assessment for the cost thereof.

In Ford v. Toledo, 64 Ohio St. 92 [59 N. E. Rep. 779], it was held:

“Where the lot or land is in need of local drainage, it is not exempt because it is entirely unimproved, and there is no immediate need for such drainage. Vacant lots and lands may,'and usually do receive a present special appreciable benefit from the construction of a sewer in proximity with, and accessible by them for sewage purposes, sufficient to sustain an assessment made on a basis of benefits. ’ ’

We decide, therefore, that as to the first of these actions, the Ely suit, the contention of the plaintiff that his property is already adequately provided with local drainage is not well founded, within the meaning of Gen. Code 3819.

In the Brooks case, it appears that the property of the plaintiffs is not connected directly with, any sewer constructed by the city,’ and has not been assessed for any sewer prior to the making of the assessments complained of.- No sewer is found in Broad street in front of the property except the new one.

The former owner of this property' however, in conjunction with J. H. Kraus, in 1893, constructed at his own expense a private sewer, running from the Topliff hotel on the property diagonally across Broad street, which taps the city sewer on Washington avenue. This private sewer has drained all the sewage from the Brooks property since 1893, and is still used for both sanitary sewage and storm water. After passing through the private sewer, so constructed, the sewage and storm water are carried through an old city sewer on the west side of Washington avenue to an intercepting basin near the railroad tracks, where the sewage is separated and carried through the Washington avenue sanitary sewer and the storm water is conveyed to the river.

All that has been said in the Ely case on the subject of whether the property involved in that case is provided with adequate local drainage, within the meaning of Gen. Code 3819, is applicable to this- case. But there is present here the additional fact that the private sewer, which is said to furnish adequate local drainage, is built on the city street, passing under the pavement, cross-walks and street railway tracks. According to the evidence, no formal consent was ever obtained to built it/ nor to tap the city sewer, but its construction was known to the authorities and acquiesced in by them.

No right to have it remain in the city streets is shown, and its removal might be ordered at any time.

In Hildebrand v. Toledo, supra, it was held:

Lots are not provided with adequate local drainage, such as will exempt them from paying their share of an assessment levied to pay the cost of a sewer improvement, unless the right exists to dispose of sewage as it is at the time being disposed of, and the right to so continue is one that cannot be interfered with; the present right must include not only the idea of permanency of structure, but also of control.

Permanency of control cannot be said to exist where a private sewer, claimed to provide sufficient drainage, is built upon property of another from which it may be ordered removed at any time.

In view of the conclusions reached by us, the relief sought by the plaintiffs must be denied, and the petition in each case dismissed.

Marvin and Winch, JJ., concur.


author: VOORHEES, J.

text:
    DEEDS — EVIDENCE—UNDUE INFLUENCE.
    [Fairfield (5th) Circuit Court,
    September Term, 1911.]
    Powell, Voorhees and Shields, JJ.

       John Boyer v. John J. Boyer.
    1. Undue Influence Exerted by Young Nephew Over Old Uncle to Induce Conveyance of Property Question of Fact.
    ■ As between an uncle who is advanced in years and a nephew who is young, no presumption of inequality exists, and the question whether undue influence was exerted over the uncle whereby he was induced to make a conveyance of property to the nephew is a question of fact to be determined from the circumstances of the case.____

      2. Fair Argument Appeals to Conscience by one Having Claim on Bounty or Justice not Undue Influence.
    Fair argument or persuasion, or appeals to the conscience or sense of justice of a grantor, especially where made by one having a claim upon his bounty or sense of justice, does not, if such persuasion is fairly made, lay a foundation for vacating a deed executed as an apparent or possible result of such persuasion.
    3. Facts Showing Sufficient Mental Capacity to Execute Deed.
    Where incapacity on the part of a grantor to execute a deed is charged and the conveyance was itself reasonable and proper, the burden is upon the one assailing the transaction to show incapacity at the time the deed was executed; and where the testimony shows that the grantor selected the notary whom he desired to draw the deed and gave him instructions as to what he desired to have done, and when the deed was ready for signature himself discovered that a life estate had not been reservéd as he had directed, and this omission having been supplied, he executed the deed and gave directions that it be placed on record, and its execution seems to have been in accordance with a purpose of the testator to make a testamentary disposition of the property in question, the deed will not be set aside on the ground of mental incapacity or the feebleness of old age.
    [Syllabus by the court.]
    Appeal from common pleas.

      Lane & Daugherty, for plaintiff.
    ■ Davidson & McCleary, for defendant.

       Affirmed, no op., Boyer v. Boyer, 88 O. S. 000; 58 Bull. 255.

   VOORHEES, J.

The object of the plaintiff’s suit is to set aside a deed made by John Boyer to the defendant, John J. Boyer, on April 13, 1909. The grounds on which it is sought to set aside the deed are: :

First. That the grantor, John Boyer, at the time the deed was made, to wit, on April 13, 1909, was suffering from severe illness and was so greatly enfeebled, physically and mentally, because, of his age — he then being of the age of seventy-four years — that he was mentally incapable of transacting ordinary business, or the execution and delivery of any deed of conveyance of his real estate.

Second. That the defendant, intending and contriving to cheat and defraud the said John Boyer out of his farm, and ■without paying any valuable consideration therefor to the plaintiff or any other person for him and by the undue influence of the defendant and others in his employ, procured from the plaintiff a deed of conveyance in fee for his farm, and immediately thereafter caused said deed to be filed for record with the recorder of Fairfield county.

Third. That, at the time of the execution of said deed, the plaintiff did not know or understand the nature of his act in so making said deed, or the contents of the same, or that he was then parting with, the title to his farm; but, by the undue influence of the defendant and others in his employ, when the plaintiff was incapacitated, as the defendant well knew, the plaintiff was induced to execute said deed to the defendant, and he, the plaintiff, was then evercome by undue persuasipn, entreaties, and arts of the defendant and fraudulently coerced into signing said deed. '

The case was tried in this court on the testimony taken in the court below; and by agreement of the parties the transcript of the testimony so taken was submitted to the court on behalf of the respective parties, plaintiff and defendant, the same as if the witnesses were offered and _ examined in open court. Said transcript and évidence offered' by both parties on the trial was all the evidence in the case.

One of the contentions of the plaintiff is that, from the relationship existing between the plaintiff and the defendant, at the time the deed was executed, an undue.influence over the plaintiff by the defendant is presumed to exist. The plaintiff was the uncle of the defendant, and when the defendant was about nine years of age, the uncle took the defendant into his family, as a member thereof, where he lived until he was a man of about twenty-two years of age and upwards, when the defendant married and moved upon a farm of his own. The uncle never married and had no relatives other than brothers and sisters, and children of deceased brothers and sisters. The uncle and the defendant always .sustained friendly relations toward each other.

To state the contention of the plaintiff more concisely, it is claimed that, where such relationship does exist, and a grantor is partially incapacitated by age, physical and mental infirmities, and the deed is without valuable consideration, the burden is upon the grantee to show affirmatively, that the grantor clearly understood the nature and effect of the transaction, and voluntarily executed the instrument.

It is true the law presumes, in the case of guardian and ward, trustee and cestui que trust, attorney and client, physician and patient, that their situation is unequal, and that relation appearing, itself throws the burden upon the party occupying such position of trust, in dealing with the trust, or the beneficiary thereof, to prove the fairness of his dealing. But the law does not presume fraud or undue influence from the fact that one party is old and an uncle, and the other is a nephew and young. The question as to parties so situated is a question df fact dependent upon the circumstances in each case. There is no presumption of inequality either way from these relations merely.

We think, in this case, there is convincing proof of facts and circumstances which show that when the deed in question here was executed and delivered, the grantor, John Boyer, was not misled by reason of any confidential relations existing between himself and the grantee, John J. Boyer, nor was there any act done by the grantee, ■ tending to show that the deed did not express the grantor’s intention at the time he executed and delivered it.

It is contended on behalf of the plaintiff, that he was, by undue persuasions, entreaties, and practices, used by the defendant and others, coerced into signing said deed.

This the defendant denies, and 'the proof shows, that on the day the deed was made to Elizabeth Looker, the defendant had a conversation with his uncle, in which he said to his uncle:

“Uncle John, while you are making this deed for Mrs. Looker, don’t you think it would be no more than right that you should do something in like manner for me?”

The plaintiff says, ‘ ‘ What is .it you want ? ’ ’

“Why,” he replied, “make me a deed for this farm,” meaning the farm here in question, and the one on which the plaintiff: resided.

Plaintiff said, “No; -that is entirely too much.”

When the defendant said! to him, “Do as you see fit and I will be satisfied.”

The record shows that, at the same time this conversation occurred, the plaintiff and the defendant were on the porch at the plaintiff’s home, when the defendant made the suggestion for the plaintiff to do as he saw fit, etc. The plaintiff said, “Ask Mrs. Looker to come out.”

She was called, and the defendant repeated what he had before said to his uncle, viz.:

“While you are making the deed to Mrs. Looker for that farm, I don’t think it would be any more than right that you should do something in like manner for me.”

Mrs. Looker said, “Yes; I think you ought to favor him and his sister Wilda both.” The plaintiff made no reply'.

This transaction is given and urged as tending to show undue influence and coercion practiced by the defendant and Mrs. Looker, in procuring the deed from the plaintiff for the farm here in question.

Counts of equity will not vacate a deed obtained by means of influence and importunity, unless it has been unduly or improperly exercised. Fair argument and persuasion or appeals to the conscience or sense of' duty of the grantor, especially by those having claims upon his justice or his bounty, if fairly made, lay no foundation for vacating a deed, although the grantor would not have made the deed but for such appeal, argument, or persuasion. Truman v. Lore, 14 Ohio St. 144, 145.

The record shows that the grantor, John Boyer, made the deed in question, to the defendant, voluntarily and for reasons satisfactory to himself, and there is no evidence in the case that there was influence or persuasion used, either by the defendant or Mrs. Looker, to induce the making of the deed, other than what has been hereinbefore stated, and after the deed was executed and delivered, the plaintiff then stated that he had done what he had wanted to do for some time, that one reason he had for making the deed to the defendant was that he desired- the farm in question to remain in the “Boyer” name, it having been in the Boyer name for nearly a hundred years.

We find, as a fact, that there was no undue influence used by the defendant or any other person, to induce the plaintiff to execute the deed in question in this case, and there is no evidence tending to prove fraud or undue influence, at the time of its execution and delivery, April 13, 1909, but that the act Avas the free and voluntary act of the grantor, John Boyer.

This eliminates from the case the charge of fraud and undue influence, and leaves the question that the grantor, John Boyer, at the time he executed the deed, was mentally incapacitated for the "transaction of ordinary business. There is nothing better settled in law than that, in the absence of fraud or undue influence, mere weakness of intellect, resulting from sickness or old age, is no ground for setting aside an executed contract; providing the contracting party was capable of understanding, in a reasonable manner, the nature of the particular affair in which he participated. The rule of the measure of the grantor ’s capacity in such a case is simply that he understand, in a reasonable manner, the nature and effect of what he was doing. The burden of proof is upon the party assailing the act, to show the incapacity at the time the act was done.

The evidence of incapacity proffered must relate to the time of the factum or act done, either directly or when taken in connection with other evidence in the ease. In other words, when the act is reasonable and .proper in itself, the burden is on the party assailing the contract to show the incapacity at the time the act was executed. Tested by this rule, the evidence in .this case is conspicuously feeble. There is nothing in the evidence tending to prove insanity in the ordinary and popular sense.' Taken at its strongest, the most that could be claimed for the evidence for the plaintiff is that it proved some mental and physical weakness resulting from old age and sickness.

At the time the deed in question Avas executed, the grantor selected the notary public to transact the business for him and to write the deed in question, giving instructions as to what he wanted, and after the deed had been written and either read to him or submitted for his inspection, he discovered that it was not in accordance with his instructions, in this: that he desired and intended to reserve a life estate in the farm, but, either inadvertently or otherwise, when it was written by Mr. Lane, that condition was omitted, and the old gentleman called attention to the fact, and had the reservation of his life estate incorporated into the deed, and after that was done, the deed was executed and delivered to the grantee, the defendant, John J. Boyer. The old gentleman suggested and instructed the defendant, as well as Mrs. Looker, to whom he had made a deed on the same day, to have them recorded. This, in connection with other business matters that he had directed and planned for on the day the deeds were made, conclusively shows to the minds of the court that, at the time this deed was made, the grantor had mental capacity to transact ordinary business. We think, in this case, the deed is in the nature of a testamentary disposition of property, and it was carrying out what he had intended and had in contemplation for some time before the deed was executed.

Coming more directly to the question of his mental capacity, and believing the rule does not require that high degree of capacity, .that a man’s memory must be just as perfect as it ever was, or his physical ability as good as it was in former years; he may be feeble in mind and body, so that he will not be able fully, at all times, to comprehend his situation or surroundings, nevertheless, when it comes to the question of capacity and to the disposition of his property, a subject upon which he may have reflected much when in full vigor of mind and body, these failures of memory and infirmities of age are not sufficient to overcome the principle that he has the right to dispose of his property in any way he may wish or deem best.

If this is the correct test of capacity, we think there is no evidence whatever in this case to show that Mr. John Boyer, when this deed was made, had reached a condition of mental weakness that incapacitated him from making the disposition of his property that he did make to his nephew, the defendant herein.

If the old gentleman had mental capacity sufficient to transact ordinary business, and we find as a fact that he had, and was free from restraint and undue influence, which we also find as a fact, then he had the right to make such disposition of his property as he thought proper. He is not required to make an equitable disposition of his estate among even the objects of his bounty. He may, if he chooses, exclude his chil- ■ dren, or divide hi’s estate among them unequally. The question in all cases is, was the act the free act of a competent party ?

There is one further circumstance in this case that is deserving of notice. It is contended by the plantiff that the grantor was laboring under a delusion of some kind, evidenced by his claiming that he had been in' communication with his dead relatives at night, and, therefore, this delusion tended to show his unfitness to transact ordinary business. It will be observed that it was not claimed that these supposed communications with the spirit world had any influence on him in making the disposition of his property that he did make. That is, it is not claimed that the spirits had directed him or had influenced him in making the deed or deeds that he made on April 13, 1909, or that, by reason of the decision, he did what he otherwise would not have done, excepting for such delusion.

“Delusions can scarcely be regarded as evidence of general insanity, and when ,the evidence of them is opposed by other evidence tending to prove the general competency of the person whose mind is in question, to tend to his own affairs, and to dispose of them with sagacity or at least in obedience to the free impulses and motives of his own mind, his contracts, and his dispositions of his property, testamentary or otherwise, must be treated as valid, unless connected in some way with his insane delusions.” Hemmingway, In re, 195 Pa. St. 291 [45 Atl. Rep. 726; 78 Am. St. Rep. 815]; Lucas v. Parsons, 24 Ga. 147 [71 Am. Dec. 147]; Maynard v. Tylar, 168 Mass. 107 [46 N. E. Rep. 413]; Rice v. Rice, 50 Mich. 448 [15 N. W. Rep. 545]; Hollinger v. Syms, 37 N. J. Eq. 221.

Without pursuing the discussion further, the court is of the opinion that, at the time the deed to the defendant, was executed and delivered, John Boyer was mentally and. physically competent to transact ordinary business, including the act of making and delivering a deed for any portion of his estate, and that he, at the time he made such deed, was not under undue influence or restraint, nor was there any fraud practiced upon him by the defendant in securing said deed.

Therefore, the judgment of the court is in favor of the defendant, with costs, and that the petition be, and it is hereby, dismissed.

Powell and Shields, JJ., concur.


text:
    ASSIGNMENT FQR CREDITORS — LANDLORD AND TENANT.
    [Hamilton (1st) Circuit Court,
    January 6, 1912.]
    Smith, Swing and Jones, JJ.
    Assignment of Frank W. Hopkins.
    Liability of Assignee for Rent of Premises Occupied in Continuing the Business.
    That a lessor of premises, occupied hy an assignee for the benefit of creditors, together with the general creditors, signed an application for an order continuing the business, does not bar payment of rent by the assignee as part of the expense of administering the trust, since the lessor signed the application for a continuance of the business with the understanding that his claim for rent should not be affected thereby. «
    [Syllabus approved by the court.]
    Error to common pleas court-.

      B. P. Hargitt, for plaintiff in error.

      Worthington <$s Strong, for defendant in error.
   SMITH, P. J.

Under the evidence in the above case with the law applicable thereto, it is apparent That the assignee of Frank W- Hopkins, by reason of the order of the court of insolvency to carry on the business of the assignor and the acceptance of the lease of the real estate, as well as the estate, became liable for the rent agreed upon in the lease. This being so, to relieve himself from personal liability, he and the general creditors in two papers ask the court of insolvency to order the continuance of the business and at the same time relieve him from all personal liability by reason of his conducting the same; and they agreed that so far as they were concerned he should be so reléased. He continued in the possession of the leased premises as assignee for a certain period, and there is no doubt that the rent for the use of the same was an expense attendant upon the continuation of the business, and should be paid as such by the assignee in administering the trust estate, unless the lessors have waived such order or claim.

In this regard we find nothing in the paper signed by the agent of the lessors of the real estate, that in any way indicates such a waiver or agreement. The testimony on this point, and which we think was competent, distinctly shows that the application of the creditors to continue the business was signed by the agent of the lessors upon the understanding that their claim for rent should not be affected thereby, and that the object of the application was solely to relieve the assignee from personal liability for debts incurred by him in the running of the hotel.

For the above reasons the judgment below is affirmed.

Swing and Jones, JJ., concur.


author: SMITH, P. J. JONES., J-,

text:
    CONSTITUTIONAL LAW — WORK AND LABOR.
    [Hamilton (1st) Circuit Court,
    June 1, 1912.]
    Smith, Swing and Jones, JJ.
    In re Saul Berger.
    Act Preventing Discharge of Employes for Membership in Labor Unions Held Unconstitutional.
    The proscription of Gen. Code 12943 against employer’s preventing employes from joining or belonging to labor organizations, etc., is an unwarranted interference • with the right to contract for labor and fix conditions and terms thereof, infringing upon constitutional rights.
    Demurrer to answer.

      Morse &' Tuttle, for petitioner.

      Nicholas Klein, for United Shoe Workers of America.
   SMITH, P. J.

Upon January 24, the petitioner was arrested upon an affidavit and warrant charging that on December 2, 1911, he, being an agent and employe of the Roth Shoe Manufacturing Company, did unlawfully coerce and discharge one, Schroeder, from the employment of the. said company,’ because said Schroeder was a member of the United Shoe Workers of America, a lawful labor organization.

To the answer of William H. Jackson, chief of police of the city of Cincinnati, who by virtue of said warrant held the petitioner in custody, a demurrer was filed, setting up therein that Gen. Code 12943, the statute under which the prosecution of the petitioner was had, is unconstitutional as being in contravention of the fifth and fourteenth amendments to the constitution of the United States, and Art. 1, Sec. 1, of the constitution of Ohio.

Gen. 'Code 12943 reads as follows:

“Whoever, being a member of a firm, or agent, officer or employe of a company, corporation or person, prevents employes from forming, joining or belonging to a lawful labor organization, or coerces or attempts to coerce employes by discharging or threatening to discharge them from their employ, or the employ of a firm, company or corporation because of their connection with such labor organization, shall be fined not more than one hundred dollars or imprisoned not more than six months, or both. ’ ’

Sec. 1 of the fourteenth amendment of the constitution of the United States provides that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, 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.”

Art. I, See. 1, of the constitution of Ohio, declares.-

“All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and seeking and obtaining happiness and safety. ’ ’

It was said by the court in the ease of People v. Marcus, 185 N. Y. 257 [77 N. E. Rep. 1073; 7 L. R. A. (N. S.) 282; 113 Am. St. Rep. 902; 7 Ann. Cas. 118] :

“The free and untrammeled right to contract is a part of the liberty guaranteed’ to every citizen by the federal and state constitutions. Personal liberty is always subject to restraint when its exercise affects the safety, health or moral and general welfare of the public, but subject to such restraint an employer and employe may make and enforce such contract relating to labor as they may agree upon. ’ ’

The offense charged against the petitioner in effect is, that he, being an agent of the shoe company, did unlawfully coerce and discharge one, Schroeder, from its service because of his membership in a labor organization.

We do not think that the legislature can make such an act as is described in Gen. Code 12943 a criminal offense in the face of the constitutional guaranties above cited.

“The right to employ labor and make contracts in relation thereto upon such terms as may be mutually agreed upon is incident- to the right of enjoying liberty and of acquiring, possessing and protecting property guaranteed by the constitution. An essential element of the right to enter into a contract of employment is the right of the parties to fix the terms of the employment, and of either party to terminate the employment at pleasure, when it is not otherwise agreed upon. When the constitution declares that every person has an inalienable right! to liberty and to acquire, possess and protect property, it guarantees to him the right to make and enforce all proper contracts, and to employ in carrying on his business such persons and such lawful means as he may choose, free from all restraints except such as are necessary for the common welfare.” State v. Bateman, 10 Dec. 68 (7 N. P. 487) ; People v. Marcus, supra; Adair v. United States, 208 U. S. 161 [28 Sup. Ct. Rep. 277; 52 L. Ed. 436], and cases cited therein; State v. Julow, 129 Mo. 163 [31 S. W. Rep. 781; 29 L. R. A. 257; 50 Am. St. Rep. 443]; New York, C. & St. L. Ry. v. Schafer, 65 Ohio St. 420 [62 N. E. Rep. 1036; 62 L. R. A. 931; 87 Am. St. Rep. 628].

Upon an examination - of the above authorities, together with numerous others cited by counsel, we can reach but one conclusion: that the great weight of authority is that statutes characteristic of the one in question are unconstitutional and void, and we so hold in this case.

The demurrer to the answer will be sustained and the petitioner discharged.

Swing, J., concurs.

JONES., J-,

dissenting.

The majority opinion is doubtless in accord with the decisions of the highest courts of many of our sister states upon statutes similar and in some instances in the precise words of the section under consideration here.

Such laws are passed in the exercise of the police power inherent in every organized government. This power has been defined by Judge Cooley, Const. Lim. Chap. 16, p. 704, as follows:

“The police power of a state, in a comprehensive sense, embraces its whole system of internal regulation by which the state seeks not only to preserve the public order and to prevent offenses against the state, but also to establish for the intercourse of citizens those rules of good manners and good neighborhood, which are calculated to prevent a conflict of rights and to insure to each the uninterrupted enjoyment of his own so far as is reasonably consistent with a like enjoyment of rights by others.”

Blackstone’s definition is:

“The due regulation and domestic order of the kingdom, whereby the inhabitants of a state, like members of a well governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood, and good manners, and to be decent, industrious and inoffensive in their respective stations. ’ ’

I quote the following from the opinion in this case written by Smith, P. J.:

“When the constitution declares that every person has an inalienable right to liberty, and to acquire, possess and protect property, it guarantees to him the right to make and enforce all proper contracts and to employ in carrying on his business such persons and such lawful means as he may choose free from all restraints, except such as are necessary for the common welfare.”

Here, in the majority opinion, is a clear recognition of the power of the state to place limitations upon a man’s control of his business or his property, whenever the good of society so demands.

But who is to determine whether a proposed legislative act is necessary for the common welfare? Manifestly the legislative or governing body of the state has a large discretion in such matters and it is only where a court is clearly satisfied that this discretion has been abused and arbitrarily exercised without reasonable or probable cause therefor that it will be justified in overruling the lawmaking body and declaring its act a nullity.

The question for the legislature when such laws are proposed for passage -is not alone whether they interfere with personal liberty or private property, but whether the conditions such legislation is designed to remedy make much interference necessary and justifiable, having in view the rules of-“good manners, good neighborhood” and the general comfort, safety and welfare. In other words, whether the protection afforded and benefits bestowed by the proposed measure are commensurate with or outweigh the checks and restraints imposed upon freedom of action with respect to person or property.

Counsel for relator bases his argument against the validity of the law upon the decisions of other states above mentioned, and iny associates also rely on such precedents in the conclusion to which they have come. The Supreme Court of Ohio has not passed upon any law such as the one before us, nor has any circuit court of our state.

From the nature of the law and its subject-matter, I d'o not think that controlling weight should be given to decisions rendered upon like statutes in other states where, and at a time when conditions may have b.een far different from those which prevail here and now. The police power, as has been pointed out, is or should be exerted to meet conditions existing in the territory where its regulations are to operate and the validity of a law expressive of this power must depend upon those conditions, and not upon conditions and circumstances of a bygone age or a distant state.

In deciding the recent case of Borgnis v. Falk Co. 133 N. W. Rep. 209 (Wis.), wherein the constitutionality of the Workmen’s Compensation law was upheld, Chief Justice Winslow of the supreme court of Wisconsin used this language:

“Constitutional commands and prohibitions, either distinctly laid down in express words or necessarily implied from general words, must be obeyed, and implicitly obeyed, so long as they remain unamended or unrepealed. Any other course on the part of either legislator or judge constitutes violation of his oath of office; but when there is no such express command or prohibition, but only general language or a general policy drawn from the four corners of the instrument, what shall be said about this ? By what standards is this general language oi general policy to be interpreted and applied to present day people and conditions? When an eighteenth century constitution forms the charter of liberty of a twentieth century government, must its general provisions be construed and interpreted by an eighteenth century mind in the light of eighteenth century conditions and ideals? Clearly not. This were to command the race to halt in its progress, to stretch the state upon a veritable bed of Procrustes.
“Where there is no express command or prohibition, but only general language or policy to be considered, the conditions prevailing at the time of its adoption must have their due weight; but the changed social, economic, and governmental conditions and ideals of the time, as well as the problems which the changes have produced, must also logically enter into the consideration, and become influential factors in the settlement of problems of construction and interpretation. These general propositions are here laid down, not because they are considered either new or in serious controversy, but because they are be^ lieved to be peculiarly applicable to a ease like the present, where a law which is framed to meet new economic conditions and difficulties resulting therefrom is attacked principally because it is believed to offend against constitutional guaranties or prohibitions couched in general terms, or supposed general policies drawn from the whole body of the instrument.”

Two of the associate judges of the Wisconsin court were impelled by the language of the chief justice above quoted to write separate concurring opinions, fearing that the impression might go out that court held the constitution to be changeable. But to me the meaning is clear and the apprehension on the part of the'associate justices of danger in the language quoted is on fanciful rather than on real ground.

It is not at all a new doctrine that he so well expresses, but one that, with much new legislation to meet changed and changing conditions, must necessarily be more often cited and applied.

For example, when the pioneers of Ohio were living in log cabins and there were no other buildings in the state, a law requiring fire escapes or smoke consumption, if passed, might well have been declared invalid, but would that decision upon that law at that time be a barrier to such legislation today ?

The purpose of the law under which-relator was arrested is to prevent an employer from coercing an employe by discharging or threatening to discharge him because he is a member of a lawful labor organization.

The purpose and effect of such action on the part, of employers would be to break up the labor organization; and to prevent such result and to protect the employe from intimidation and coercion and in the enjoyment of freedom of thought and action, the law was obviously enacted.

It is to be presumed that the legislature looked upon lawful labor organizations as proper and wholesome agencies and as entitled to the protection of the law from enforced disorganization and disintegration. The fact that an employe belongs to an organization of a lawful nature can not affect injuriously his efficiency or value to his employer. As it can not make his labor less skillful or productive, his discharge on that ground must be for some ulterior purpose and not primarily in furtherance of business interests. Unless the discharge of an employe is actuated by a desire for better service it is difficult to see how a prevention of such discharge can be an intrenchment upon property rights and, therefore, how any constitutional question is involved.

Assuming, however, that the law does impose restrictions, the legislature, in its wisdom, has said that they are necessary restrictions and that an employe must not be coerced* by such threats even if there is ah interference by the operation of law with one’s full and absolute control of his property.

With the wisdom or expediency of a law, eourts have nothing to do.

Labor organizations, as is generally known, have exerted a potent influence in recent years upon legislation. Many laws have been passed in state and Nation affording protection to and improving conditions of workingmen, women and children. Labor organizations have hastened such measures and have, at least, taken a large part in shaping and enacting them.

It is conceivable that our legislature might well consider such organizations entitled to protection. In its discretion it has so declared and its action should not be nullified by judicial decree until clearly shown to be in contravention of the constitution.

I am not clear that the law is unconstitutional, and hence do not concur "in the opinion heretofore announced by my associates.