author: FARR, J.

text:
    APPEAL — MECHANICS LIENS.
    [Guernsey (7th) Court of Appeals,
    November 15, 1918.]
    Pollock, Metcalfe and Parr, JJ.
    H. E. Eggar and H. B. Pierce v. H. C. Corwin et al.
    Foreclosure of Mechanics Liens Appealable.
    An action to foreclose a mechanic’s lien Is equitable in character and is therefore appealable.
    [Syllabus by the court.]
    Motion to dismiss appeal.

      Mr. Fred L. Bosemond, for plaintiffs.

      Mr. Charles 8. Sheppard, for defendants.
   FARR, J.

On August 10,1915, EL E. Eggar and H. B. Pierce, partners doing business under the firm name of Eggar and Pierce, brought an action in the court of common pleas of this county, against the defendants, EL C. Corwin, Edward Foreman, W. E. Laugh-lin, Estella Laughlin, Lauer True & Co. and the Eastern Ohio Ry. seeking to recover the sum of $611.34 from H. C. Corwin and Edward Foreman and to foreclose a mechanic’s lien against the property of the Laughlins as set out and described in the petition. It is alleged in said petition that Corwin and Foreman, as principal contractors, contracted with Laughlins for the construction of a building upon said premises, and that plaintiffs, under contract with Corwin and Foreman, furnished material used in and about the construction of said building for which payment was not made, and to secure which they perfected a material-man’s lien under the statute; other parties were made defendants, who filed answers and cross-petitions likewise claiming liens. W. E. Laughlin filed an amended answer to said petition, containing a number of grounds of defense to which a reply was filed and so the issues were made up; trial had, judgment entered, appeal to this court and a motion filed to dismiss said appeal upon the ground that there is no right of appeal in such ease. If the right exists, it is under favor of Art. 4, Sec. 6, of the constitution of Ohio, as amended in 1912, effective January 1, 1913, which reads in part as follows: “The courts of appeals shall have * * * appellate jurisdiction in the trial of chancery cases.” Therefore the issue here is whether or not an action to foreclose a lien is a “chancery ease.”

A mechanic’s lien is purely a creature of statute, (27 Cyc. 17, 317, 318, 321; Jones, Liens, Sec. 1184) and was unknown at common law or in equity; however the right thereto is favored by Art. 2, Sec. 33, of the present constitution, which provides that laws may be passed to secure to mechanics, artisans, laborers, subcontractors and material men their just dues by direct lien upon the property upon which they bestow-labor, or for which they furnish material; and that no other constitutional provisions shall limit this power. The foregoing is amplified in Ohio by the present lien law for the benefit of contractors, subcontractors, laborers and material men, as found in 103 O. L. 369-379, as amended 105-106 O. L. 522-534 (Secs. 8310 to 8323-10 G. C.) It must be conceded that this right, though statutory, is based upon the equitable doctrine that one who contributes labor or furnishes material used in the construction óf a building, and for which payment is not made, may perfect and have a direct lien upon such building and real property on which it is located and the procedure to subject such property to the satisfaction of the claim is regulated by statute in most jurisdictions. Jones, Liens, See. 1559. The first mechanic’s lien law was passed in Ohio January 1, 1823; (3 Chase, 2160) and was effective within the corporation of Cincinnati only; Sec. 3 of said act provides that every person or person holding such lien might proceed to obtain a judgment thereon according to the course of legal proceedings in like cases; this original act provided that the judgment should be obtained by “legal proceedings as in like eases.” It doubtless was the legislative intent to make the procedure statutory and likewise the remedy but the basic principle of the statute was, beyond all question, equitable in character as indicated especially by Sec. 1, and as well by .other parts of said act. By subsequent legislation February 5, 1833, the provisions of said law were extended to Hamilton county and later amplified and made of general application March 11, 1843; 41 O. L. 66; S. & C. 833, however the equitable principle upon which the original act rested was not changed; although Sec. 8 provides as did Sec. 3 of the former law that judgment might be obtained for the amount due, according to the course of legal proceedings in like eases; however if any doubt existed as to the remedy it was set at rest by the enactment of a remedial amendment to the foregoing, March 25, 1851; 49 O. L. 108, S. & C. 837, entitled “Remedy of lien holder in chancery,” and reads in part as follows:

“ (18) Sec. 1. Be it enacted by the General Assembly of the State of Ohio, that any person or persons, who now hold or shall hereafter hold a lien, under the above recited act, may in addition to the remedy therein provided for, proceed by petition in chancery as in other eases of liens, against the owner or owners of and all other persons interested in * * * any such * * * house, mill, manufactory, or other building * * * and the lot or lots of land on which the same shall stand and obtain such final decree therein for the rent or sale thereof, as justice and equity may require. * * *

It is of more than passing interest to note that the language of Sec. 8323 G. C. which is a part of the Ohio lien law now in force on the same subject, is almost verbatim, excluding some matters later included to meet new conditions; it reads in part as follows:

“Sec. 8323. Any person holding a mechanic’s lien, in addition to the remedies herein provided for, may proceed by petition as in other eases of liens, against the owner and all other persons interested * * * in any such house, mill, manu-factory, or other building * * * and the lot of land on which it stands * * * and obtain such judgment therein for the rent or sale thereof as justice and equity may require.” # # *

It might be urged, however, that the foregoing omits “in chancery’’after the word petition and uses the word“ judgment” instead of “final decree” near the conclusion. It was not necessary to continue the words “in chancery” because by the adoption of a code of civil procedure March 11, 1853, effective July 1, 1853, 51 O. L. 57, the distinction between actions at law and suits in equity and the forms of all such actions and suits theretofore existing were abolished in Ohio and in their stead it was provided that there should be but one form of action to be called a civil action which it is provided in Sec. 55 must be commenced by filing a petition. That it was not legislative intent to eliminate the chancery or equitable feature, is clearly disclosed by the following part of said See. 8323.

“Any person holding a mechanic’s lien, in addition to the remedies herein provided for may proceed by petition as in other cases of liens.”

Therefore, “in addition to the remedies herein provided” must be construed to mean that the statutory remedies are merely cumulative, and “may proceed as in other eases of liens” only strengthens the contention that it was not the intent to alter the equitable character of the remedy; especially is this time in the light of the further provision that the lien holder may “obtain such judgment * * * as justice and equity may require.” Equitable relief can only be granted in a proceeding at least partially equitable in character. The word ‘‘ judgment” is substituted in said Sec. 8323 for “final decree” in the former law; however this too was changed by the adoption of the code, of which Sec. 370 (51 O. L. 118 )provides that “a judgment is the final determination of the rights of the parties in an action.” Therefore “judgment” is the proper word, although there may be a permissive use of it interchangeably with “ final decree.”

Obviously it was not the legislative intent, by the adoption of the code of 1853, to deny the right to an action legal or .equitable where it had formerly existed by statute and the mode of procedure prescribed, at least until the legislature should otherwise provide, and so it is indicated in Chap. 6 of said code, Sec. 605 (51 O. L. 161) which reads in part as follows:

“Where by statute, a civil action, legal or equitable, is given, and the mode of proceeding therein is prescribed, this code shall not affect the proceedings under such statute, until the legislature shall otherwise provide. ” * * *

The foregoing was a saving provision of said code within the purview of which the former mechanic’s lien law (S. & C. 837), comes easily, and so it observed by Mr. Seney in his Ohio Code of Civil Procedure at page 736 as follows:

“An action under the mechanic’s lien law, by a mechanic, to recover from the owner a sum due him for services rendered to a contractor, is one of the cases in wbicb a right of recovery by action is given by a statute anterior to tbe code, prescribing the form of the action, but not fixing the proceedings in the action given.” Chapman v. Rannels, 2 Dec. Re. 245 (2 W. L. M. 142).

The above case of Chapman v. Rannels was decided June, 1859, after the adoption of the code. No legislative change has ever been made in said former lien-law (S. & C. 857), so far as its equitable feature is concerned. Again it is provided in said Sec. 8323 that a lien holder may proceed “as in other cases of liens.”

A mortgage is a creature of statute but creates and is a lien, and its foreclosure is purely equitable.

In harmony with the foregoing, 2 Jones, Liens, See. 1559, observes as follows:

“Whether the proceedings to enforce a mechanic’s lien are legal or equitable “depends, of course, upon the terms of the statutes providing the remedy. The statutes of several states assimilate the proceedings to enforce such lien to the equitable action to foreclose a mortgage, and under such statutes the proceeding is essentially a proceeding in equity. ’ ’

The author might well include Ohio among said states because the above provision “as in other cases of liens” clearly assimilates the proceeding to enforce a mechanic’s lien to the foreclosure of a mortgage which is one of the “other liens” contemplated in said section. Bearing upon the issue under discussion here, is the case of Wagner v. Armstrong, 93 Ohio St. 443 [113 N. E. 397], in which Nichoís, C. J., in an able opinion discusses among other things, “jurisdiction on appeal,” and at page 450 pertinently observes as follows:

“Appealable cases, therefore, must be such cases as are now recognized as equitable in their nature; and perhaps the better way to express it would be, cases that were recognized as equitable actions before the adoption of the code of civil procedure, for, while our code established under one grand division all actions, whether of an equitable or a legal nature, and called them civil actions, yet there was no attempt to change the nature of the remedy.”

There can be no dispute here but that an 'action to foreclose a mechanic’s lien was recognized as equitable before the adoption oí the code, because it was specialty provided (49 O. L. 108, S. & C. 837), that a lien holder might proceed by petition in chancery. It is further urged that being of statutory origin, it cannot at the same time be equitable in character; however, it is observed in 27 Cyc. at page 17, as follows •.

“A mechanic’s lien is a species of lien ei’eated by statute in most of the states, which exists in favor of persons who have performed work or furnished materials in and for the erection of a building. It is not a general, but a particular lien, and is in its nature peculiar and of an equitable character, and has been said to be somewhat analogous in its aims to the equitable lien of a vendor for unpaid purchase money of lands sold. ’ ’

While statutory, its equitable character is recognized and it is further observed at page 321 that under some statutes the remedy for enforcement has been prescribed as an ordinary action at law, and such remedy has been held to be exclusive of the jurisdiction of a court of equity, but such was not the fact in the statute of this state prior to the adoption of the code for it was specialty provided as above stated that the proceeding might be by petition in chancery; moreover the jurisdiction of courts of equity has been remodeled in England by statute and in most of the states of the United States, as well as in the federal courts, it- depends upon special statutory enactments.

6 Am. & Eng. Ency. of Law (1st Ed.) 692..

In line with the foregoing is the above ease of Wagner v. Armstrong, supra, in which Nichols, C. J., observes at page 450 as follows:-

‘ ‘ The question yet remains, however, does the fact that there has been provided a statutory proceeding in partition operate to exclude partition from the category of chancery eases"? The authorities on this subject are not all one way; but it can be ascertained by an independent examination of the authorities that the great weight favors the doctrine that the statutory remedy is cumulative and does not supersede the original jurisdiction in equity.” The learned judge then cites in support of the foregoing, 1 Story’s Equity, (13th Ed.) par. 658. Freeman on Cotenancy and Partition (2nd Ed.) 559, where it is stated in the latter:
“The remedy thus created by statute is, we think, generally, but not universally, considered as cumulative, and as in no way divesting, courts of equity of tbeir jurisdiction over tbe same sub-» ject matter.' ’

Also Wright v. Marsh, 2 G. Greene (Iowa) 104; Cram v. Green, 6 Ohio 429; 1 Pomeroy, Rem. & Rem. Rights, Sec. 02; Feuchter v. Keyl, 48 Ohio St. 357 [27 N. E. 860] ; Zanesville v. Fannan, 53 Ohio St. 605 [42 N. E. 703; 53 Am. St. 664].

Following, however, the observation of Nichols, C. J., in Wagner v. Armstrong, supra, at page 456, there will be no attempt here to eategorieally declare what constitutes a chancery case. However, there can be no question but that liens primarily originated in equitable principles, and so it is observed in 1 Pomeroy, page 95, as follows:

“Secondly, those cases in which the relief is not a general pecuniary judgment, but is a decree of money to be obtained and paid out of some particular fund or funds. The equitable remedies of this specie are many in number and various in their external forms and incidents. They assume that the creditor has, either by operation of the law or by contract, or from some acts or omissions of the debtor, a lien, charge, or incumbrance upon some fund or funds belonging to the latter, either land, chattels, things in action, or even money; and the form of the remedy requires that this lien or charge should be established, and then enforced, and the amount due obtained by a sale total or partial of the fund, or by a sequestration of its rents, profits and proceeds.”

And at page 120 the author discusses equitable remedies and states in part as follows:

“These exclusive remedies may be granted in order to protect, maintain and enforce primary rights, estates or interests, which are legal as well * * * as equitable. ”

And again at page 152 it is said:

“It is one of the distinctive and central principles of the equity remedial system that it deals with property rights, # ’ * * liens rather than with mere personal “rights.”

And again at page 153 the same author observes:

“A fourth class embraces those remedies which establish and enforce liens and charges on property rather than rights and interests in property either by means of a judicial sale of the property itself which is affected by the lien, and the distribution of its proceeds, or by means of a sequestration of the property and an appropriation of the rents * * * until they satisfy the claim secured by the lien. ’ ’

And as a summary of the foregoing it is observed at Sec. 167 as follows:

“In addition to the liens above-mentioned which belong to the general equitable jurisdiction, the legislation of many states has created or allowed other liens which often come within the equity jurisdiction in respect at least to their means of enforcement. The so-called mechanic’s liens may be taken as the type and illustration of this class.”

In full accord with the foregoing is Gilchrist v. Railway, 53 Fed. 708, 710.

It is quite clear therefore that while a mechanic’s lien is regulated by statute in Ohio, that its equitable character is not thereby destroyed. A legislature may, at will, create what might be termed “statutory proceedings,” some of which have properly been held not appealable, but a legislature cannot by such special or statutory proceeding destroy the right of appeal in a chancery case, and so it is indicated in the very recent ease of Manning v. Lakewood, 94 Ohio St. 85 [113 N. E. 661]. This was a proceeding brought in the court of common pleas of Cuyahoga county to enjoin the collection of certain special assessments alleged to have been levied by the village of Lakewood. Issue was joined, trial had, judgment entered, and an appeal taken to the Court of Appeals where, on motion, the appeal was dismissed because not appealable under the present constitution of Ohio, and for the reason that the remedy is statutory. The Supreme Court reversed the Court of Appeals and among other things held that:

“The jurisdiction conferred by the statute to restrain the collection of illegally assessed taxes and assessments being an equitable jurisdiction, to be exercised by the chancellor upon equitable principles, it follows that courts of appeals have appellate jurisdiction in the trial of such eases.” A case quite similar to the instant case. And still another in full accord with the foregoing, is Willson Improvement Co. v. Malone, 78 Ohio St. 232 [85 N. E. 51]. Attention is called to Dunn v. Kanmacher, 26 Ohio St. 497, which was a proceeding under Sec. 5 of the former mechanic's lien law, (S. & C. 834) which provided that the remedy should be “an action of money had and received” which made an issue triable by jury and is1 therefore not applicable in the instant case, and especially because said statute is no longer in foi*ee. It is, however, interesting to note that prior to the amendment of the constitution of Ohio in A. D. 1912, it was twice held in this jurisdiction under favor of Sec. 5226 R. S., now Sec. 12224 G. C., that the right of appeal existed in an action to foreclose a mechanic’s lien; it was so held November 26, 1906, in Jesionowski v. Wismiewski, 38 O. A. & C. 594 (21 N. S. 413), and May 17, 1909 in Thompson v. Rosenberg, 38 O. A. & C. 597 (16 N. S. 341). These cases are interesting principally for the reason that they primarily recognize the equitable character of a proceeding to foreclose a lien even where personal judgment is sought also; and yet in the case at bar no personal judgment is sought, nor could it be in any event by Eggar & Pierce against the Laughlins, only the foreclosure of the lien, making the issue as against said Laughlins purely an equitable one, though regulated by statute. It would not be urged for a moment that a personal judgment could have been taken against the Laughlins. It is contended however that the case of Hollowell v. Schraden, 38 O. A. & C. 598 (26 N. S. 97), is decisive here. This case was decided July 14, 1916, and the syllabus reads as follows:
“An action to foreclose a mechanic’s lien is not cognizable in equity and therefore not appealable.”

This was by a divided court and on June 27, 1917, was reversed by the Supreme Court of Ohio without opinion, Hollowell v. Schraden, 96 Ohio St. 599, and since the only issue raised was the right of appeal in an action to foreclose a mechanic’s lien, the reversal of the cause determines that right.

The conclusion, therefore, is irresistible that while in Ohio, a mechanic’s lien is wholly a creature of statute, that the remedy is not exclusively legal but equitable as well. In view of all the foregoing it follows that the motion to dismiss the appeal must be overruled, which is done accordingly.

Pollock and Metcalfe, JJ., concur.


source: Caselaw Access Project

author: JONES (O. B.), J.

license: Public Domain

text:
    INJUNCTION — MUNICIPAL CORPORATIONS.
    [Hamilton (1st) Court of Appeals,
    April 5, 1915.]
    Jones, Jones and Gorman, JJ.
    Thompson et al. v. Cincinnati (City) et al.
    Equity Will Intervene to Prevent Arbitrary Action by Council in Building Sidewalks.
    The power to determine when it is necessary to improve or repair a sidewalk is vested in the council of a city, but this power can . not be exercised in an arbitrary manner regardless of the public necessity or the rights of the property owners. A court of equity will intervene to prevent arbitrary action amounting to a manifest abuse of discretion.
    Appeal.

      W. W. Glippinger, for plaintiff.

      W. M. Schoenle, City Sol., and Saul Zielonka, Asst. City. Sol., for defendant.
   JONES (O. B.), J.

Tbe law announced by this court in Livingston v. Cincinnati, 38 O. A. & C. 513 (22 N. S. 383; 4 App. 338), is applicable to this ease. The power to determine when it is necessary to improve or repair a sidewalk is vested in the council of the city. But this power cannot be exercised in an arbitrary manner, regardless of the public, necessity or the rights of the property owners. A court of equity will only intervene to prevent such arbitrary action amounting to a manifest abuse of discretion.

The evidence shows that the brick sidewalk described in the petition, having a frontage of 250 feet on the north side of Eighth street, between Depot street and State avenue, is out of repair in the following particulars: that, commencing 18 or 19 feet from the west end, and running 20 feet or more in length in front of the property described as a carpenter shop, it is in liad condition, the bricks being entirely missing one-third of the width of the sidewalk, and the other two-thirds of the width being of a rough and uneven surface containing a two-inch depression and projecting bricks, which portion should be replaced with a new sidewalk; that the center of the sidewalk just east of this front for a distance of about 40 feet is rough, which should be so relaid as to be smooth and even; and that four certain depressions or valleys are shown, varying from one to two and a half inches deep, extending from the curb eight to ten feet across the sidewalk, at stop-boxes, being evidently where trenches have been dug for water or gas service pipes which have not been properly filled and tamped when repaved, which depressions should be filled and repaved. Other slight defects are indicated by the evidence, especially the evidence of City Sidewalk Engineer Barr and by the plan or blueprint submitted. With the exception of the sidewalk in front of the carpenter shop above referred to, where a new sidewalk should be constructed, the remainder of the sidewalk is in good condition, favorably corresponding with the brick sidewalks laid in that portion of the city, and answering all the needs of public travel. The defects above pointed out are of minor importance and can all be remedied by comparatively inexpensive repairs, which should be made by the property owner under the supervision of the city.

Plaintiffs should be permitted to repair all of that part of the sidewalk except that portion lying in front of the carpenter shop, where a new sidewalk should be built. Under the circumstances shown, the court find that it would be an abuse of discretion for the city to require the destruction of the entire brick sidewalk and its replacement by a cement sidewalk at the cost of the property owners.

Attention is called by the city in its evidence to the fact that certain stop-boxes situated in this sidewalk near the curb are above the grade and the surface of the sidewalk, and that several drains from the yard empty upon the surface of the sidewalk. Neither of these complaints would be rectified by changing the sidewalk from brick to cement. If they are contrary to the legal requirements of the city, proper steps may be taken for their correction, but they are not involved in the sidewalk ■ order here under consideration.

An injunction will be granted as above indicated.

Jones (E. H.), and Gorman, JJ., concur.


author: HOUCK, J.

text:
    MANDAMUS — SCHOOLS.
    [Tuscarawas (5th) Court of Appeals,
    June 26, 1918.]
    Powell, Houck and Shields, JJ.
    Nathaniel Siber et al. v. State, ex rel. Fred'k E. Hershey et al.
    1. Board of Education Real Party in Mandamus to Compel Provision for School Advantages.
    Section 7731 makes the county hoard of education the real party defendant in an action to compel the conveyance of pupils of school age residing therein to some other school within the rural school district, and failure to make said county hoard a party defendant leaves the petition open to demurrer.
    2. Absence of Notice to School Boards to Convey Pupils to Other School Fatal to Mandamus Proceeding.
    Furthermore the absence of any evidence of notice to the county board, or of knowledge on its part, of refusal by the township board to convey the pupils in question to some school in said district, is fatal to an action in mandamus to compel provision of such service, under the rule that in a proceeding to compel an officer to do an act which it is claimed the law enjoins upon him the existence must be shown of all facts necessary to put him in default.
    [Syllabus by the court.]
    Error.

      E. E. Lindsay, Pros. Atty., and E. G. Seikel, for plaintiffs in error.

      G. L. Cronebaugh, for defendants in error.
   HOUCK, J.

The defendants in error here were the relators in the common pleas court.

The suit was one in mandamus, in which it was sought to compel the defendants below, the plaintiffs in error here, as members of the board of education of Dover township rural school district of Tuscarawas county, Ohio, to re-establish what was formerly known as “Sub-district School No. 12” or to convey the pupils of school age residing thei’ein to some other school within said rural school district.

A demurrer was bled to the petition, stating four grounds:

1. That the facts stated in the petition were insufficient in law.

2. Defect of parties plaintiff.

3. Defect of parties defendant.

4. That plaintiffs had no legal authority to bring suit.

The trial judge overruled said demurrer and exceptions were taken to same. Answer was filed, which in substance, was a general denial.

Trial was had and the petition was dismissed as to the question of re-establishing said reputed sub-district School No. 12, but judgment was entered for plaintiffs, allowing a peremptory writ of mandamus against the members of the board of education of the Dover township rural school district, ordering and directing said board of education to convey said pupils of school age to the nearest school in said Dover township rural school district.

We have carefully read the testimony in the case, as contained in the bill of exceptions, and have made an examination of the record here presented for the purpose of determining as to whether or not there is such error prejudicial to the rights of plaintiffs in error as would authorize a reversal of the judgment.

In our opinion the judgment of the common pleas court should be reversed for two reasons:

1. There is a misjoinder of parties defendant. The real party defendant should be the county board of education of Tuscarawas county, Ohio. We reach this conclusion because of the provisions of See. 7731 G. C. as found in 107 O. L. 625 which reads: ,

“* * * When local boards of education neglect or refuse to provide transportation for pupils, the county board of education shall provide such transportation and the cost thereof shall be charged against the local school district. When the county board of education certifies to the county auditor the amount paid for such transportation, the county auditor shall transfer such amount from the fluids due the said board of education to the county board of education fund.”

The undisputed evidence is that a demand was made upon the board of education of Dover township rural school district, but none was made upon the county board of education, and there is an entire absence of proof, showing or tending to show, that the county board of education had any knowledge whatever of the failure or refusal of said board of education of Dover township rural school district to convey the pupils in question to some school in said district. Applying the statutory íaw just quoted to these facts we feel the conclusion thus reached is sound.

2. We Hold the rule is well established that in a proceeding by mandamus to compel an officer to do an act which it is claimed the law enjoins upon him, the existence of all the facts necessary to put him in default must be shown.

Testing the evidence in this case by the rule of law thus laid down, we find that it does not measure up to it, and, therefore, the trial judge was in error in entering the judgment in the present case. The errors referred to being prejudicial to the rights of the plaintiffs in error, judgment of the common pleas court must be reversed.

Judgment reversed and case remanded for further proceedings according to law.

Powell and Shields, JJ., concur.


author: KÜNKLE, J.

text:
    BUILDINGS.
    [Franklin (2nd) Court of Appeals,
    November 7, 1917.]
    Kunkle, Allread and Femeding, JJ.
    Moore Oil Co. v. Joseph Dauben.
    Tearing Down and Rebuilding Gasoline Filling Station with Greater Capacity and Increased Means of Access, Not Repair Project Exempting Consents Requirement.
    When an owner of a public oil and gasoline filling station tears down an existing structure and erects a new one with greatly increased storage capacity and equipment, rest rooms, elaborate electrical displays and new and additional driveways, he comes within the provision of a municipal ordinance requiring consents of owners of property abutting the street as a prerequisite to the erection and maintenance of such station and is not entitled to exemption therefrom as for a repair project of a station in existence at the time the ordinance is adopted.
    [Syllabus approved by the court.]

      Mandamus,

      Webber, McCoy & Jones and E. S. Kerr, for relator.

      Henry L. Scarlett, James M. Butler, E. E. Burns and L. L. Boger, for defendant.
   KÜNKLE, J.

This is an action in mandamus in which the relator seeks to compel the defendant, the Building Inspector of the city of Columbus, to issue a building permit to relator for the reconstruction of a public oil and gasoline filling station, including tanks and buildings, at the corner of Broad and 21st streets in the city of Columbus.

Defendant refuses to issue such permit upon the sole ground that the relator has not complied with the provisions of Sec. 1 of Ordinance No. 28932 of the city of Columbus, regulating the location, erection and maintenance of public oil filling stations, and which ordinance was passed by the council of the city of Columbus, July 19, 1915 and approved by the mayor of said city July 23; 1915. The provisions of said ordinance are as follows:

“Section 1. That it shall be unlawful for any person, firm or corporation for themselves or as agents, renters, or leasees, to locate, build, erect, construct, maintain, or operate any public gasoline or oil filling station or sales depot on or within 187 1-2 feet from curb line of any street in the city, or to. construct or maintain a driveway from the street over the curb and sidewalk to such station or depot, when three fourths (3-4) of the buildings on both sides of the street for a distance of five hundred (500) feet in either direction from the proposed location of each wall of such oil filling station or sales depot are used exclusively for residence purposes, without first securing the written consent of two-thirds (2-3) of the owners of the property abutting on the street for a distance of 500 feet in each direction from the median line of such proposed oil filling station or sales depot, according to the frontage on both sides of the street.

Sec. 2. Any person, firm, or corporation, or any agent, renter, or lessee, of any such person, firm or corporation who shall violate any of the provisions of this ordinance shall be fined not less than $100 nor more than $500 for each offense, and each week of continned violation of this ordinance shall constitute a separate offense after the first prosecution has been begun.

Sec. 3. This ordinance shall take effect and be in force from and after the earliest period allowed by law, but shall not apply to or be operative against any owner or operator of any public gasoline or oil filling station or sales depot heretofore erected unless two-thirds (2-3) of the owners of the property for whose consent this ordinance makes provision file with the city clerk within thirty days after this ordinance takes effect their written protest against the further operation of such station or depot.”

When the said ordinance became effective, the relator was the lessee, and subsequently became the owner of the real estate situated at the corner of Broad and 21st streets in the city of Columbus and had erected and was maintaining a gasoline and oil filling station on said premises.

In April of the present year, with a view to enlarging its business, the relator tore down the original buildings on the said premises and prepared plans and specifications for the erection of a more elaborate building with rest rooms for patrons and with greatly increased storage capacity, and with increased facilities and equipment for the transaction of its business.

The original plant was conducted on the said premises by means of access thereto from an alley on the rear of the said lot and from 21st street.

The plans for the proposed structure involve an additional I>assageway over the sidewalk on Broad street.

Counsel for defendant claims that the proposed structure should be regarded as a new structure and would therefore fall within the scope of Sec. 1 of the ordinance above referred to.

The relator contends: (1) That the said ordinance is unconstitutional. (2) That if the ordinance is found to be constitutional, that the relator is exempt, by virtue of the provisions of Sec. 3 of said ordinance.

We have carefully considered the unusually exhaustive and helpful briefs which have been filed by counsel. We shall not attempt to analyze or distinguish the various authorities cited therein, but will merely announce the conclusion at which we have arrived after an examination of such authorities.

We have previously considered the question of the constitutionality of Sec. 1 of the ordinance in question. Since our decision in the Speice case, the Supreme Court of the United States has affirmed the celebrated bill board case of Cusack Co. v. Chicago, 242 U. S. 526 [37 Sup Ct. 190], and upheld the constitutionality of the bill board ordinance in question and which ordinance involved a principle similar to the one in controversy.

In the Speice ease the validity of Sec. 1 of the ordinance in question was conceded by the court to be constitutional, and we are confirmed in that opinion by the decision of the Supreme Court of the United States in the bill board case above referred to.

This court also held in the Speice case that the ordinance should be considered prospectively and that it did pot apply to the maintenance and operation of a gasoline or oil filling plant in existence at the time the ordinance became effective.

The question now for consideration is, whether the said ordinance exempts an owner or operator of an existing business who tears down his buildings and undertakes to rebuild them with greatly increased facilities, including additional means of access to said premises and therefore including additional burdens upon the adjacent streets.

Construing Sec. 3 with the remainder of the ordinance, we have reached the conclusion that it was intended by said ordinance to exempt only the existing capital and business of public gasoline and oil filling stations and to relieve the existing owner of such stations from being subjected to a possible loss of an existing investment and business.

We do not intend to hereby express an opinion as to the extent an owner of an existing property may go in the way of repairs or improvements to an existing plant without subjecting himself to the provisions of section one of said ordinance.

We are of opinion, however, that when an owner tears down an existing structure and erects a new one with greatly increased storage capacity and equipment, with a new driveway and means of access thei’eto, and arranges to equip the new building with electrical displays such as are contemplated, and so forth, that such person falls within section one of said ordinance.

We have carefully considered the plans, specifications and other evidence which has been presented and are of opinion that the proposed improvements do not bring the relator within the exemption provided in See. 3 of said ordinance.

In view' of the conclusions above stated, it is apparent that the relator has not established a clear right to the relief sought.

Peremptory writ refused.

AUread and Femeding, JJ., concur.


author: DUNLAP, J.

text:
    MECHANICS’ LIENS — REAL ESTATE.
    [Cuyahoga (8th) Court of Appeals,
    July 15, 1918.]
    Grant, Dunlap and Lawrence, JJ.
    Roy W. Mizner v. Hosea Paul, Recorder, et al.
    1. Bona Fide Purchaser of Registered Land Takes Free of Inchoate Mechanics’ Liens.
    A bona fide purchaser of land registered under the Torrens law. Secs. 8572-25 G. C., relying upon the certificate of title, takes the land free of inchoate mechanics’ liens which do not appear upon the certificate.
    2. Failure of Mechanics to Have Lien Inscribed on Torrens Certificate Defeats Lien Against Innocent Purchaser.
    A mechanic having a valid claim under the mechanics’ lien law, having complied with such law in all respects, but failing to file a caveat or notice of his right to claim a lien or to have a memorial of same inscribed on the certificate of title of registered land, loses his right to file an affidavit for such lien after the property is transferred to a bona fide purchaser.
    3. Mechanics’ Lien Law and Torrens’ Act not Incompatible.
    The mechanics’ lien law and the Torrens law are not incompatible; but the privilege granted by the former of acquiring liens is restricted in its exercise by the latter law. The Torrens law will therefore be given effect as an exception to the mechanics’ lien law.

      White, Brewer & Curtiss and Bulkley, Hauxhurst, Saeger & Jamison, for plaintiff in error.

      M. P. Mooney, Howard A. Counse, C. W. Swartzel and J. M. Ulmer, for defendants in error.
   DUNLAP, J.

This case is here on error to the land court of Cuyahoga county, and involves the question of the validity of mechanics liens taken under the mechanics’ lien law against property registered under the Torrens law.

On April 7, 1915, certain lots were duly registered under what is known as the Torrens law, See. 8572-25 G. C., in the name of James G. Bingham. These lots were legally transferred to other owners and all became the property of the Seward Land & Building Co. sometime in 1917, the actual date not being important. After that company had become the owner of said parcels of land, and after the title thereof in fee had been registered in its name, it commenced the construction of a house on each of said lots, and in and toward the erection and construction of these houses Roy W. Mizner, present plaintiff in error, furnished labor and materials for the tinning work, under contracts with said the Seward Land & Building Co. He performed the last of said labor and furnished the last of said materials on October 18, 1917, on one lot, and October 20, 1917, on the other two lots, and not having been paid in full his contract price for said material and labor he did, within sixty days from said last mentioned dates, on December 17, 1917, tender to the record of Cuyahoga county his affidavits of mechanics’ liens against said premises prepared and executed in accordance with the mechanics’ lien law. Before said date of December 18, however, the Seward Land & Building Co. had transferred all of said sublots to an innocent bona fide purchaser who had no knowledge that the said Mizner had not been paid in full for all labor performed and materials furnished, and had no knowledge that the said Mizner intended to file or tender to the recorder for filing, affidavits for mechanics’ liens against said property.

The recorder of the county, Mr. Paul, upon the tender of these affidavits to him, was in doubt whether, under the circumstances above set forth, he should file the affidavits for mechanics’ liens and, therefore, acted under Sec. 8572-40, which provides that where the recorder is in doubt upon any question relative to registered land, he may refer the question to the common pleas court for decision. The recorder duly referred the question to the court of common pleas, which we have heretofore spoken of as the land court, and on February 13, 1918, said court found, as a matter of law, that the said Mizner was not entitled to file said affidavits for mechanics’ liens and to have the same entered and noted on said certificate of the title of said respective premises.

The plaintiff in error thereupon filed his petition in error in this court as .provided for in See. 8572-80, and thereby asks reversal of this order of the court of common pleas.

The question involved in this case can now be stated in the abstract and is:

Does a bona fide purchaser of registered land who relies upon the certificate of title, take the land burdened with inchoate mechanics’ liens which do not appear upon the certificate?

If this question is answered in the affirmative, then the judgment under review must be reversed, and if answered in the negative, the same must be affirmed.

The solution of this question is not without some difficulty, as it raises a question of conflict between two sets of laws, one set the mechanics’ lien laws and the other the Torrens registration law. By the mechanics’ lien laws a person furnishing material and labor for the construction of an improvement upon land is apparently without reservation, entitled to-a lien upon said land, the only apparent condition being that the lien be perfected within sixty days after the furnishing of the last labor or material for said improvement. The Torrens act, upon the other hand, expressly provides “that no statutory or other lien shall affect the title to registered land until after it is noted upon the certificate. ’ ’ And by See. 8572-25 it is provided:

“Section 25. Every applicant who without fraud on his part receives a certificate of title in pursuance of ‘ a decree of registration, and every subsequent purchaser of i*egistered land, who takes a certificate of title for value and in good faith, shall hold the same free from all estates and encumbrances except those noted on the certificate and any of the following estates and encumbrances which may be existing :
“First. Liens, claims or rights arising or existing under the laws or Constitution of the United State's which the statutes of this state can not require to appear on record in the recorder’s office.
“Second. Taxes, within six years after they have been entered upon the tax duplicates and become due and payable.
“Third. Any highway, public way, or private way laid out or acquired under the provisions of law or otherwise, unless the certificate of title states that the non-existence of such way, or the boundaries thereof if the same exists, have been determined by the court.
“Fourth. Any lease for a term not exceeding three years, when there is actual possession under the lease.
“Fifth. Right of appeal and to prosecute error within thirty days after decree of registration,
“Sixth. If there are easements or other rights appurtenant to a parcel of registered land which for any reason have failed to be registered, such easements or rights shall remain so appurtenant notwithstanding such failure, and shall be held to pass with the land. This section shall be printed or written on all duplicate certificates of title before delivery by the recorder.”

It will be noted that by none of the provisions of said section are mechanics’ liens expressly provided for. It will thus be seen that the mechanics’ lien law says that every person furnishing material or labor whom we shall hereafter designate as a mechanic — shall have his lien, and the Torrens law says in effect that every "bona, fide purchaser shall have his land free from such lien. It is our duty, if possible, to so construe these laws that both may stand.

It is apparent that the mechanics’ lien law is a genei’al law of general application, furnishing a general plan by which mechanics’ liens can be obtained. The Torrens law is likewise a general law insofar as the maimer of registering land is concerned, but it is urged that it has some special provisions in it relating to mechanics’ liens and the steps necessary to obtain such liens against registered land. It is not disputed that such-is the ease. It would be useless, of course, to dispute the fact that Sec. 8572-75 recognizes the right to file mechanics’ liens against registered land. Its provisions are as follows:

“8572-75. Every voluntary instrument intended to be used in transferring any title or estate in registered land, or in creating any lien or charge thereon, or assigning, releasing or discharging any lien or charge in whole or in part, and every certificate or other paper filed with the recorder for the purpose of acquiring or creating an involuntary lien, interest or charge upon registered land, shall at least refer by number to the certificate of title covering such land or containing a memorial of such interest, lien or charge, such reference to be contained in the body of all voluntary instruments and in the case of such certificate or papers so filed to acquire involuntary interests, liens, or charges to be either in the body thereof or indorsed thereon and the indorsement duly signed by the proper officer or a person in interest. And in case only a part of the land covered by such certificate of title is sought to be affected, an accurate description of such part enabling the same to be definitely located and platted shall be given in such voluntary instrument, or in or upon such certificate or paper so filed in addition to such reference to the certificate of title by number. ’ ’

It is plain that an affidavit to obtain a mechanic’s lien is here provided for. It is described by the terms ‘ ‘ every certificate or other paper filed with the recorder for the purpose of acquiring or creating an involuntary lien, interest or charge upon registered land, ’ ’ and what said certificate is required to contain is provided for in the next words, which are “shall at least refer by number to the certificate of title,” etc. Here we have a plain provision before us for the securing of mechanics’ liens against registered land and requiring something a little different from the affidavit required by Sec. 8314 G. C., which provides the general form of affidavit required for obtaining a mechanic’s lien. Jit has not been seriously disputed that such provision must be followed and that in spite of the fact that the legislature had provided a general law fixing an apparent sweeping right to mechanics’ liens, that that exact method has been somewhat supplemented by this section which is quoted when it comes to securing such lien against registered land, and upon this point at least the Torrens act must be regarded as an exception to that general plan. Up to this point we have no serious difficulty nor can the mechanic entitled to the lien have any serious objection to tbis requirement. Tlie only clanger to him is that he may think that all the laws upon the subject of mechanics’ liens are contained under that heading in the code, but such is not his guaranteed right. Instances of similar exceptions are all too frequent in our G. 0., and although regrettable are necessarily unavoidable.

There is, however, one deducible and logical conclusion from the exception above noted, and that is the mechanic seeking a lien must acquaint himself with the fact as to whether or not the property upon which the lien is sought is “registered” properly. This inference is fair and does not, we think, do violence to any of the provisions of the mechanics’ lien law, but granting all this, i. e., both the fact that he must put into his affidavit the registry number and that he is charged with knowledge that it is registered land, it is insisted that he can not be deprived of the right so plainly given him by the mechanic’s lien law to take sixty days from the time of the last furnishing- of material, etc., in which to file his affidavit. Such right is not taken away from him by the Torrens act providing the property remains in the contracting owner’s hands, but it is not to be denied that the words of this act do take this right away when said land passes into the hands of a bona fide purchaser. That is to say, this act purports to give to a bona fide purchaser who has purchased the land during said period of sixty days the right to rely solely upon the certificate of title or certificate of registration, and that if such lien is not noted thereon he is not chargeable with the same. We are inclined to the opinion that insofar as this right is taken away from the mechanic that the Torrens act is to be treated as an exception to the mechanic’s-lien law.

Section 89 of the Torrens act provides:

“Sec. 8572-89. No statutory or other lien of whatever kind or nature except judgments in the United States courts and taxes shall affect the title to registered land, until after the same is noted upon the registered certificate of title. ’ ’

The term “statutory or other lien” as used in this section must be construed so as to include, and plainly does include, a mechanic’s lien. We have already noted the necessary inference that the mechanic seeking a lien is charged with knowledge that the property is registered. This being granted he need suiter no loss by reason of this Torrens law except by his own volition. If with knowledge that the land is registered he fails to protect himself so that he may have his lien at the proper time, we think it can be demonstrated that he has no one but himself to blame.

Section 8572-68 provides, we think, for almost every contingency that can arise. It is as follows:

“8572-68. Any person desiring to assert any interest in or claim or lien against registered land adverse to the title of any registered owner, and not shown upon the register when no provision is by this,act made for registering the same in the recorder’s office, may make affidavit thereto, setting forth his interest, right, title, claim, lien, charge or demand, and how and under whom derived, and the character and nature thereof. The affiant shall state his full name, place of residence and postoffiee address and shall designate a place within the state at which all notices relating thereto may be served upon him,or if he be a nonresident of the state, the name, residence and postoffiee address of some person residing within the state upon whom service may be made as his agent and by which service he will be bound the same as if made upon the claimant within the state. Upon the filing of such affidavit in the recorder’s office the recorder shall enter forthwith a memorial thereof, upon the registered certificate of title, stating the exact time when said affidavit was filed and the purport and nature thereof.”

And it is conceded in argument that the mechanic by filing what is known as a caveat under this section can give notice to a prospective purchaser of a right to a lien, and it is conceded that notices can be given by mechanics, by which term we include, laborers or material-men, to the owners of property that they are about to furnish work, labor or material for the improvement of a particular piece of property. Therefore, we arrive at the conclusion that all the mechanic need do to protect himself so that registered land shall not be transferred so as to defeat his proposed lien, is to avail himself of the privilege afforded by the comprehensive section last referred to, to wit, Sec. 8572-68.

A matter that must have strong bearing upon the proper solution of this question by the court is that the Torrens law was enacted by the legislature with full knowledge of the provisions of the mechanics’ lien law and that the effort was made by the legislature to make them compatible and consistent is clearly shown by reference to the sections which we have quoted referring to mechanics’ liens, or at least including by their terms mechanics’ liens. The two laws seem incompatible only in that a privilege granted by one has apparently been taken away by another, and yet an analysis of that other shows a method in which even this privilege may be exercised, if not quite fully yet with restrictions which do not appear unreasonable. The right to a mechanic’s lien is not lost but its exercise is restrained and restricted. It exists fully as against the contracting owner as is fully provided for by subsection 81 but it can only be exercised on registered land as against a bona fide purchaser when the provisions of subsection 68 are complied with. The mere fact that the legislature saw fit to make such a provision with regard to registered land and did not see fit to make the same provision with regard to unregistered land is to our mind no argument against the requiring by a mechanic of an affidavit coming under said subsection 68 if he desires a lien upon registered property and desires to so protect his lien that a transfer to an innocent bona fide purchaser may not interfere with his said right. If See. 68 which we have just referred to or any other section for that matter, or an independent section, contained a clause to the effect that the provisions of the mechanics’ lien law shall not apply to registered land insofar as bona fide purchasers are concerned, unless the mechanic should file affidavit before such change of ownership setting out the facts constituting his inchoate lien, would any one question the validity of such provision ? Surely any liberal construction of this Torrens act must necessarily read into the law just such a provision, and Sec. 101 provides that the Torrens act shall be construed liberally for the purpose of effecting its general intent. True the mechanics’ lien law is also to be construed liberally, but a liberal construction does not entitle it to take a prohibited construction, that is, a construction absolutely prohibited by another section of the code which yet provides a special means Cor the operation oil that law and for the retention of all the benefits of that law. The ease is presented for the application of the rule of construction laid down in Northwestern Ohio Natural Gas Co. v. Tiffin, 59 Ohio St. 420 [54 N. E. 77].

"It is a settled rule of construction that special statutory provisions for particular cases operate as exceptions to general provisions which might otherwise include the particular cases, and such cases are governed by the special provisions, ’ ’

and the application of thi,s rule is not rendered inappropriate by the fact that the mechanics’ lien law has been amended since the passage of the Torrens law. This fact, we think, does not affect the rule laid down in Rodgers v. United States, 185 U. S. 83 [46 L. Ed. 816; 22 Sup. Ct. 582], the syllabus of which is in part as follows:

"Where there are two statutes, the earlier special and the iater general (the terms of the general being broad enough to include the matter provided for in the special) the fact that one is special and the other is general creates a presumption that the special is to be considered as remaining an exception to the general, and the general will not be understood as repealing the special, unless a repeal is expressly named, or unless the provisions of the general are manifestly inconsistent with those of the special.”

And 36 Cyc. 1151, where it is stated:

"General and special statutes. Where there is one statute dealing with a subject in general and comprehensive terms and another dealing with a part of the same subject in a more minute and definite way the two should be read together and harmonized, if possible, with a view to giving effect to a consistent legislative policy, but to the extent of any necessary repugnancy between them, the special will prevail over the general statute. Where the special statute is later, it will be regarded as an exception to or qualification of the prior general one, and where the general act is later the special will be construed as remaining an exception to its general terms, unless it is repealed in express words or necessary implication. ’ ’

In addition it may be said that even though the legislature did amend the mechanics’ lien law since the passage of the Torrens law it is not to be presumed that its attention was called to any apparent inconsistency between the two laws, so that the fact of a later amendment can be of little force in determining the question at issue.

We approve of the language of the attorney-general of Ohio in this respect as taken from the reports of the attorney-general of 1914, page 1195:

“As the land registration act is the later enactment, and is furthermore a special statute, I think that instead of calling for the doctrine of implied repeal, this state of affairs justifies the application of the theory that where the same statute, or different statutes upon the same subject, contain incompatible provisions, one of which is general and the other special, the latter shall be held and treated as an exception to the former. ’ ’

We have carefully considered the very able briefs which have been filed on both sides of this interesting question and our conclusion is that the land court of this county did not err in reaching its conclusion, and its judgment is affirmed.

Grant and Lawrence, JJ., concur.


author: GRANT, J.

text:
    CONSTITUTIONAL LAWS.
    [Cuyahoga (8th) Court of Appeals,
    July 15, 1918.]
    Grant. Lawrence and Dunlap, JJ.
    August Froelich v. Cleveland (City).
    Conflict of Charter City Ordinance with Statute Both Regulating Maximum Loads of Vehicles Not Sufficient to Set Aside Conviction for Violation of Former.
    An ordinance of a charter city, limiting the weight of loads which may be drawn or propelled over the streets thereof to ten tons including the weight of the vehicle, notwithstanding in conflict with Secs. 7248 to 7250 G. C. prescribing a different maximum load, is enforcible and a conviction for violation of such ordinance will not be set aside.
    EeROr to municipal court.

      Hole & Hole, for plaintiff in error.
    W. G. FitzGerald, for defendant in error.
   GRANT, J.

The plaintiff in error was arrested, tried, convicted and sentenced, in the lower court, the charge against him being a violation of the following ordinance of the defendant city:

“Section 1343e. No load in excess of ten (10) tons in weight, including the weight of the vehicles, shall be propelled or driven upon or over the streets of the city, provided, however, that the director of public service may issue permits in special eases for the carrying of heavier loads upon or over certain streets specially designated in the permit. ” * * *

The sole assignment of error relied on here to work a reversal of this judgment of conviction and sentence, is that the city of Cleveland was without constitutional power to pass the ordinance in question; and this is so — it is said — because the ordinance is in plain and destructive conflict with the following statute law of the state of Ohio — the sections being those of the General Code:

“Section 7248. No person, firm or corporation shall transport over the improved public streets, highways, bridges or culverts within this state, in a vehicle propelled by either motor or muscular power, a burden, including weight of load and vehicle, greater than the following:
“In vehicles having iron or steel tires three inches or less in width a load of five hundred pounds for each inch of the total width of tire surface on all wheels. The provisions of this sec-vehicles exceed three inches in width an additional load of eight hundred pounds shall be permitted for each inch by which the total width of the tire surface on all wheels exceeds twelve iches;
“In vehicles having tires of rubber or other similar substance a load of eight hundred pounds for each inch of the total width of tire surface on all wheels. The provisions of this section shall not apply to iron or steel tire horse drawn vehicles when in use upon the streets or thoroughfares of cities or upon the streets and thoroughfares of villages, except such streets and thoroughfares therein as have been or may hereafter be improved by the state or county.
“Sec. 7249. No traction engine, trailer, steam roller, automobile track or other power vehicle carrying a weight in excess of four tons, including weight of vehicle, shall be operated upon any of the improved public streets, highways, bridges or culverts within this state at greater speed than fifteen miles per hour, and no such vehicle carrying a weight in excess of six tons, including the weight of such vehicle, shall be operated upon any such a street, highway, bridge or culvert at a speed greater than eight miles per hour when such vehicle is equipped with iron or steel tires or at a speed greater than twelve miles per hour when such vehicle is equipped with tires of rubber or other similar substance.
Sec. 7250. The weights of loads prescribed and the rates of speed mentioned in Secs. 7246 and 7249 inclusive of the G-. C. shall not be decreased or prohibited by any ordinance, resolution, rule or regulation of a municipal corporation, board of county commissioners, board of township trustees or other public authority.”

Inasmuch as the ordinance forbids that which the statute by not forbidding permits, we take it to be manifest that in this respect and to that extent the two are in conflict; and in view of the writ of prohibition served on the municipality by the last quoted section of the statute, we must conclude that the variance was premeditated and invited, and amounts to a challenge of the charter of the city, under favor of which the ordinance was passed.

Our present duty, therefore, is now owed to finding out which of these two repugnant enactments bears the image and superscription of Caesar; which of the two is in their conflict paramount? Which is the law.of the case? If the statute is so, then the accused was illegally convicted and the judgment should be reversed. If the ordinance is the law applicable, then the conviction was right and must stand.

This inquiry calls for a consideration of the charter of the eity of Cleveland.

The grant of power conferred on the latter by the Constitution of Ohio, is to be found in the Eighteenth Article of that organic instrument, adopted September 3, 1912, Sec. 3 whereof is as follows:

“Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws. ’ ’

The seventh section of the same article is in the following-language :

“Any municipality may frame and adopt or amend a charter for its government and may, subject to the provisions of Sec. 3 of this article, exercise thereunder all powers of local self-government. ’ ’

Availing themselves of the permissions thus constitutionally accorded to them, the people of Cleveland adopted their charter and there is no doubt that it delegates to the city legislative authorities ample power to pass the ordinance in question, and to its executive power to enforce obedience to it, unless some superior source of jurisdiction may of right interfere and forbid it. So much, we think, will not be controverted.

The history involved in these provisions of the organic law of 1912 is too recent to require recitation, and so well known in its purpose and intendments, that we are not at liberty to ignore it and pass upon the issue at bar as if it had no history.

For some years prior to the revision of 1912, the limitations imposed by the constitution of Ohio on the powers of the people to order their own domestic and local affairs in their own way, had been severely felt and acrimoniously discussed throughout the state. It was felt that municipalities should have a free hand m administering laws appertaining to their police needs, without the interference constantly inspired by the legislature, made up of men in no way responsible to those whose concern they were all the while meddling with and whose plans for a better local government they were bringing to naught. The idea was embodied in the term “home rule,” and the agitation culminate.l in the convention of the year last mentioned.

It may with confidence be affirmed that the idea of local self-government was dominant in that body and its work, overtopping in interest and outcome all other considerations and resulting in what the framers of the revised instrument and the people back of them believed was the planting in it of their will in this respect, beyond tbe power of the legislature to overturn, uproot or undermine. Their wish found expression in the provisions of the constitution just quoted.

Those provisions evidence the unquestionable public policy of the state, to be obeyed and respected accordingly by every means and all agencies charged with the duty of administering them in all integrity, by advancing the remedies furnished by them and enforcing all appropriate sanctions necessary to make them obeyed and effective. There is no reason to think that this policy has since become unsettled. It has been crowded from the front by dangers larger than those against which its business is to safeguard the common welfare — that is, a peril now looms higher on a wider horizon of immediate vision; but that it will resume its former importance as the exigencies of the present are met and pass from view, is not to be doubted, as we think. In any event, a retreat from this policy must, if at all, be sounded by the same power which commanded the advance, the people themselves, by constitutional means; the courts can not be drafted to the service of sappers and miners in overthrowing what the popular hands so laboriously and in the face of so much opposition built up.

Nor can the courts aid in the undermining process by indirection, by refining away the barriers of the constitution and sterilizing what the people planted as fruitful agencies for coming to their own.

There is reason to fear, if not to believe, that the average congregation at Columbus would be more than glad to resume its ancient function of governing Cleveland in matters solely of Cleveland concernment as well as that of the state, if the opportunity to do so were to be restored by the courts. The member from Poor-cuss township ordinarily esteems it a duty as well as a privilege to interfere and impose his own idea — perhaps the term is rather a strong one for him — or his whim, or his prejudice, on the numerous inhabitants and the large interests of cities as far beyond his range of mental vision as they are from his sequestered bailiu-ick. The statute, the paramountry of which is insisted on here, -was passed, at least as to its present i’mn, since the adoption of the constitutional provision and since tlie Cleveland charter was framed in promotion of its permissive authority; the statute therefore in purpose can be regarded in no other light than as throwing down, deliberately, a challenge to the conflict between Cleveland and Podunk assembled at Columbus. If the challenger prevails, then a succession of such invitations to conflict with resulting victories each time, would end in sending the charter to the wall and the absorption in the State House of all the powers which the constitution and public policy of the state meant to reserve to, and concentrate in, the city hall, with all the abuses incident to such absorptive appetites. The result of the undermining process, if successful, would be to return to power the abuses of the old and evil time and reimpose them on the now free municipalities of the state with as firm a seat as the Old Man of the Sea had on the shoulders of Sinbad the Sailor. The long cherished and hardly won victory of reform in matters of domestic concern and local self-government, now crystallized and imbedded in the constitution, would be frittered away, and the dead and buried charter would deserve the epitaph which the late Gen. Schenck proposed for his bill, defeated by similar means — “Nibbled to death by pismires! ’ ’ Personally, I confess to having no sympathy with the end in view and no disposition to assist in the process by which it is proposed to reach it, except in obedience to a plain duty imposed by law and in clearing my oath of office.

To see whether judicial duty i*equires this reluctance— natural in the citizen having’ the principle of letting people order their own concerns in their own way, under law — to be overcome in obedience to the commands of a superior power, calls for an examination, somewhat critically — as its importance deserves— of this question of paramountcy now put in issue in such form as to require a categorical answer, which — no matter what becomes-of this judgment after it leaves its present field of review —must stand as the law of the case.

The conflicting nature of the two enactments involved in this inquiry, the statute and the ordinance, being admitted or found, the decisive underlying question arises, as we think, as to whether the things forbidden to be done by the latter, but within limits permitted to be done by the former, are so forbidden and denounced by the ordinance as offenses to be punished, are so forbidden in the exercise of a power of local self-government under the charter of Cleveland, to the effect of taking them out of the inhibition arising from a conflict between the local law and a general law of the state, or what purports to be a general state law. For it will take more than a state law, general in terms and general in operation through the state'elsewhere than in charter governed municipalities, to work the effect of annulling the judgment of conviction before us. There must be a denial of the conclusion that the subject dealt with by the ordinance is a matter peculiar or appropriate to “local self-government,” within the contemplation of the article of the constitution with which this conviction has to do.

That inquiry being answered one way or the other, and one way or the other we shall be able to answer the question of paramountcy, upon considerations of both principle and authority, as we think.

If any matter more than another comes within the ordinarily conceived definition of local cognizance, if anything is to be thought as coming within the notion of “local police,” “sanitary,” or matters “similar” in scope and significance to these, that thing must be affairs which deal with, and concern a city’s streets. To say that a city must at its own proper peril keep its streets and ways open, practicable for safe travel, in repair and free from nuisance, and pay for any violation of this law-imposed duty, and yet have its control over those same streets under the supervision of a foreign authority, when by the organic law it is clothed with the right of exclusive dominion over things of local and domestic concernment, seems to us preposterous. To admit it would make the constitution in this most important respect self-destructive; it would permit the small political units of the state to dictate to the powerful cities their internal policies and to defeat those which would not measure up, or down, to the rural ideas of the backwoodsmen. It would open to the forces of intrigue and chicane, incarnate in a legislative lobby, the most vital interests of great bodies of people, representing "the opulent cities and emasculate the virility from governments which can be honest and efficient only when they are brought frequently face to face with the governed and be made to account at each recurring election at the bar of the local masters. Such a st^te of affairs would reduce the theory of the new constitution to a governmental solecism, an absurdity and a standing invitation for home rule to commit hari-kari.

'We have no difficulty in finding tliát such is not a doctrine in consonance with, or permitted by the constitution of 1912.

Having thus concluded, any remaining inquiry is answered, we think, by a consideration of the footing upon which the court proceeded in Billings v. Cleveland Ry. 92 Ohio St. 478 [111 N. E. 155].

That case is referred to in the brief for the plaintiff in error here, where its application to the case in hand is denied. We think differently. It is inadequately reported, in the respect that the points relied on by counsel are not stated. But as the case was tried first in this court, we are quite familiar with the line of argument pursued. It was to the effect that as Euclid avenue was at a remote period in its history a state or county road and as such had been amenable to general Ohio law of state authority and making, and since the jurisdiction thus conferred had in no way been withdrawn, although by becoming a street of Cleveland that road had passed under city control as a concrete matter of administration, and because state laws required consents from abutting owners before the tracks of the defendant railway company could be laid in the avenue between East Twenty-second street and East Fortieth street, whereas the charter gave the right burdened by no such consents, the charter thus and thereby came in conflict with a general state law in that regard, and so was inoperative and void; such was the argument. The Supreme Court denied the contention. It found, first, that the right of the abutting owner to give or withhold consent, was not a property right.

No more, as we view the matter, has an Akron truck driver a property right to traverse the streets of a city other than his own, with truck overloaded to an extent incompatible, in the estimation of the city which is chargeable with the safety and upkeep of those streets with that safety, at his own will and pleasure, subject only to a state law, different in its permissive use of streets and roads of tbe whole state from that which Cleveland has by ordinance seen fit to prescribe and limit.

Its further finding- was that the subject of the litigation, to-wit, the use and control of a street of Cleveland, was a subject which might be provided for by a charter adopted under the power granted by the home rule provision of the constitution now under consideration. Having proceeded thus far towards an ultimate solution of the question in hand, the court stated its corollary thus:

‘ ‘ Such consents are not property rights, but rights in their nature personal to each owner of an abutting lot.
“Such personal rights were bestowed by the general assembly on owners of abutting lots as a check upon the power of the municipality. The right referred to not being a property right (the taking of which would violate the guaranties of the constitution, unless done by due process of law and after full compensation), it follows that the statute conferring it, being a matter of local concern, when inconsistent with the provisions of the charter passed under favor of the constitution, would fall simply because it was inconsistent. ’ ’

Otherwise stated, when a state law undertakes to deal with a local affair, so far forth it becomes a matter of local concern itself, and coming in judicial collision with an ordinance constitutionally competent to prescribe exclusively the terms upon which alone that matter of local concern shall be exercised or controlled, the statute fails and the charter and ordinances passed in pursuance thereof become supreme. Both sources of authority, the city council and the state legislature, can not be dominant in the same field of jurisdiction. If two ride on the same horse, one must ride behind. Given the fact of inconsistency and the further fact that the matter is of local concern, the legislature retires and leaves the council the master. We have these' two postulated facts — a conflict and a subject of local concernment.

Obviously, to our apprehension, the same conclusion must follow. It would not be difficult, as we think, to reach the same result upon other avenues of approach, both upon the reason of the thing and adjudicated cases. But it is not deemed necessary to do so.

It follows that of the two pieces of legislation, the ordinance as applied to this case, is paramount, and the claimed controlling force of the statute must be denied.

There are some other technical points raised by the reeord under review, but they are not insisted on, nor are they material.

There is no error apparent in the judgment complained of, and it is, therefore, affirmed.

Lawrence, J., concurs.

Dunlap, J., dissents.


text:
    APPEAL-ATTACHMENT.
    .[Clinton (1st) Court of Appeals,
    January 13, 1917.]
    Jones, Jones and Gorman, JJ.
    Pennington v. The Republic Motor Truck Co.
    Court of Appeals Has Jurisdiction on Error to Motion to Discharge Attachment.
    The judgment of a court of common pleas in granting a motion to discharge an attachment, where such motion was before the common pleas court upon appeal from the action of a justice of the peace, is a final judgment which is subject to review by the court of appeals.
    Error.

      Smith & Clevenger, for plaintiff in error.

      G. P. Thorpe and A. B. Hoffman, for defendant in error.
   JONES (O. B.), J.

This is a proceeding in error brought to review the judgment of the court of common pleas in granting a motion to discharge an attachment, where such motion was before the common pleas court upon appeal from the action of a justice of the peace thereon, under the provisions of Sec. 10260 G-. C.

The defendant in error, by a motion to strike the petition in error from the files, raises a question of the jurisdiction of this court to entertain these proceedings. The right of the circuit court to review such proceedings was recognized by the circuit court in at least two cases: Bernard v. Schwartz, 12 Circ. Dec. 183 (22 R. 147), and Benoski v. Adams Co. 38 O. A. & C. 622 (18 N. S. 478). And tbe right to review was denied by the circuit court of the first circuit in at least three eases: Lyon v. Phares, 17 Dec. 792 (9 C. C. N. S. 614); Williams v. McCartney, 30 O. O. C. 320 (10 N. S. 161), and Greenhow v. Harrison, 31 O. C. C. 333 (12 N. S. 128).

As Sec. 10260 G-. C. itself designates as a “judgment” the action of the court upon final hearing of a motion to discharge, and provides that it shall be transmitted with the original papers to the justice of the peace and such judgment entered by him upon his docket as the final determination of the motion, we must consider this action of the court of common pleas as a final judgment which is subject to review by this court under the provisions of Art. 4, Sec. 6, of the constitution as amended, as construed by the Supreme Court of Ohio in Cincinnati Polyclinic v. Balch, 92 Ohio St. 415 [111 N. E. 159].

The motion to strike the petition in error from the files is therefore overruled.

Coming to review the action of the common pleas court in discharging the attachment, we find that the question as to whether the attachment should be sustained or discharged depends upon the ownership or title to the property attached at the time the attachment was levied. The evidence upon this question is in the form of affidavits embodied in a bill of exceptions. Possibly, if we had been occupying the position of a trial court, our finding as to the title of the property attached might not have coincided with that of the learned judge who passed upon the evidence in that court; still we can not say that his finding is so manifestly against the weight of the evidence as to require a reversal.

Finding no prejudicial error in the record, the judgment of the court of common pleas is affirmed.

Jones (E. H,), and Gorman, JJ., concur.


author: PER CURIAM.

text:
    STREET RAILWAYS.
    [Hamilton (1st) Court of Appeals,
    November 26, 1917.]
    Jones, Gorman and Hamilton, JJ.

      Cincinnati (City) et al. v. Westinghouse Elec. & Mfg. Co. et al.
    1. Discontinuance of Interurban Railway Only Granted by Public Service Commission.
    Authority to discontinue service on an interurban line, the dismantling of the road and sale of its tangible property can be granted only by the Public Utilities Commission.
    2. Necessary Parties to Application to Abandon Interurban Railway.
    Receivers of an interurban road, appointed for the purpose of preserving and operating the property pending a settlement between the company and its creditors, are without authority to apply for an order to abandon and dismantle the line. Such an application must come from the corporation itself, and municipalities, villages and counties through which the road passes and which have granted franchises for its operation are proper parties and should be heard.

      Charles A. Groom, City Solr., for city of Cincinnati.

      Charles A. Brannock, for village of Bethel.

      Charles G. While, Charles G. Kearns and Eli H. Speidel, for village of Amelia and commissioners of Clermont county.

      Smith Hichenlooper, for commissioners of Hamilton county.

      Fvlford, Shook <& Wilby, for property owners.

      Dinsmore & Shohl, for defendants.

       Motion to certify dismissed by Supreme Court, July 2, 1918, Westinghouse Elec. & Mfg. Co. v. Cincinnati, 63 Bull. 222.

   PER CURIAM.

In the common pleas court of Hamilton county, on October 1, 1914, two receivers were appointed by that court upon the application of the plaintiff below, in an action brought merely for the purpose of taking possession of the property of the Interurban Ry. & Term. Co. and managing and controlling it and operating its traction lines, and were authorized and empowered to employ the necessary assistants, purchase the necessary material and make the necessary contracts to continue the operation of the roads.

The appointment of these receivers does not appear to bave been ancillary to any other relief prayed for. These receivers were appointed upon the consent of the defendant company.

These receivers continued to operate the three lines of the defendant company for a period of about two and a half years and are still in the possession and control of the properties of the defendant Interurban Ry. & Term. Co., and are operating the three lines of road owned by it: one to New Richmond, Clermont county; another to Bethel, Clermont county; and the third line to Lebanon, Warren county.

On April 25,1917, these receivers filed a petition, in the common pleas court which had appointed them as receivers, praying for an order authorizing them to dismantle one of the lines of the said company, to wit, the line running from Cincinnati to Bethel, Ohio, and to discontinue the operation of the road and to sell and dispose of all the tangible property, including the rails and ties, the overhead wiring and poles. They represented to the court that they had an offer from the Clermont Construction Co. to pay for the tangible property $240,000, par value of first mortgage bonds, and $433,000, par value of the common stock of the Cincinnati, G. & P. Ry., a competing traction line paralleling almost the entire distance between Bethel and Cincinnati the line of the Interurban Ry. & Term. Co.

The court, upon the application, and after giving notice made an order directing the receivers to dismantle the road known as the suburban division of the Interurban Ry. & Term. Co. and to sell and dispose of the tangible property upon the terms stated in the application.

Before this order was made the villages of Bethel and Amelia, the city of Cincinnati, to which was annexed the village of Mt. Washington, the county commissioners of Hamilton county and the county commissioners of Clermont county were all made parties upon the proper application and were given leave to plead — these political subdivisions having granted the franchise to the suburban division of the Interurban Ry. & Term. Co. several years ago. These new defendants objected to the granting of the application and executed to the order of the court of common pleas authorizing the receivers to dismantle the road and discontinue its operation.

It appears from an examination of the pleadings in this case that there was no authority vested in these receivers to dismantle this interurban road or to sell the tangible property, and the court of common pleas had no power or authority to make such an order. These receivers were appointed to take charge of the property and preserve the same, and to maintain and operate it pending a settlement between the defendant company and its creditors. The effect of dismantling the road and selling the rails, ties, overhead construction and movable property would be to abandon the franchise, and this could be done by the company only and not by these receivers.

It is true that the company through its secretary comes in and consents to the granting of the application made by the-receivers, but this can not confer power on the receivers to abandon the road, nor to dismantle it. Nor is it the equivalent of an application made by the corporation itself to abandon its franchise.

Under the law as it now exists, Secs. 501, 501-2, 504, 504-3 G-. C., this company can not abandon its tracks and discontinue its service except upon an application made to the Public Utilities Commission of the state of Ohio. See Sec. 501 G. C.; also, an act passed by the legislature March 21,1917 (107 O. L. 525), entitled “An act enlarging the powers and duties of the public utilities commission with reference to the abandonment of service and facilities by railroads. ’ ’

We do not pass upon the question of the authority of the court of common pleas originally to appoint these receivers for the purposes for which they were appointed, as that question is not raised in the record in this case, but we hold that under the order appointing these receivers it was their duty to preserve the property, maintain the road and operate it, and not to abandon it and sell the movable property as junk. The right to abandon the road, if any exists at this time, is in the defendant Interurban Ry. & Term. Co. The public, the villages of Bethel and Amelia and the city of Cincinnati, and counties of Hamilton and Clermont, which granted these franchises have an interest in the maintenance and operation of the traction lines, and they are therefore proper parties in this ease and should be heard objecting to the discontinuance of the operation of the road.

For the reasons stated the judgment of the court of common pleas is reversed, and the cause is remanded for further proceedings.

Jones, Gorman and Hamilton, JJ., all concur.


author: METCALFE, J.

text:
    CORPORATIONS — SALES.
    [Carroll (7th) Court of Appeals,
    April 10, 1917.]
    Pollock, Metcalfe and Parr, JJ.
    Elmer W. Hartman v. J. W. Gorrel.
    Option for Year for Return Stock Purchased Exercisable in Reasonable Time After Year’s Expiration.
    Where the purchaser of certain shares of stock had the option to return the stock after one year from the date of sale, such option may he exercised in a reasonable time after the expiration of the year. What is a reasonable time in such case is a question of fact, or of mixed law and fact, unless the admitted facts are such as to make it apparent that the time taken to exercise the option was an unreasonable time.
    Error.

      McDonald & Oglevie, for plaintiff in error.

      I. H. Blythe, for defendant in error.
   METCALFE, J.

The plaintiff in error here was plaintiff below. Several amended petitions were filed in the ease, and the question here is raised by the demurrer to the sixth amended petition. The demurrer was sustained in the common pleas court.

The facts as alleged in the petition are, in substance, that in April, 1906, the plaintiff, Elmer W. Hartman, purchased from the defendants, J. W. Gorrel and W. I. Powell, ten shares of stock in the Eastern Ohio Coal & Coke Co. for the price of $1,000, and that at the time of purchase an agreement was made between Gorrel and Powell and the plaintiff, by the terms of which the plaintiff had the right after the expiration of one year from the date of purchase to surrender his stock to the defendants and upon such surrender they were to pay him back the $1,000 p.aid therefor. Afterwards the stock of the Eastern Ohio Coal & Coke Co. was transferred to the J. W. Gorrel Coal Co. and stock in the latter company taken in its place. This was done in pursuance of an agreement between the stockholders of both companies.

This allegation is material only as bearing upon the averment in the petition that within “several months” after this change in stock was made the plaintiff decided to exercise his option and thereupon tendered to the defendant Gorrel the stock which he had received, and demanded the return to himself of. the $1,000 which he had paid for it, and that afterwards, in De-, cember, 1913, he made a second demand for the return of the money he had paid and a second tender of the stock. Both were refused. It is averred, also, that the defendant Powell could not be served with summons in this case.

The agreement set out in the petition was signed only by the defendants, Gorrel and. Powell. •

It is urged that there is no consideration for the agreement on the part of the defendants to pay baek to the plaintiff the amount paid for the stock, when the plaintiff tendered back to them the stock itself; that the sale of the stock was a completed contract, and that when the defendants agreed to pay back the amount paid them after the plaintiff had exercised his option to return the stock to them, such agreement was unilateral and imposed no reciprocal duty or obligation upon the plaintiff.

We do not think this position is tenable. When the plaintiff purchased the stock, and as part of the agreement of purchase, the defendants agreed to give the plaintiff an option to return the stock, and in the event that he did so to pay him back the amount paid therefor, the agreement was clearly mutual, and the transfer of the stock and payment of the money furnished a sufficient consideration. In the Davis Laundry & Cleaning Co. v. Whitmore, 92 Ohio St. 44 [110 N. E. 518; 1917C Ann Cas. 988], where the action was based upon a contract for the sale of 126 shares of stock at a certain price and 124 shares at another price, it is said:

‘ ‘ That, upon acceptance, the obligations became mutual, and the promise of one furnished a consideration for the promise of the other.”

We think that is the case here.

Was the option exercised within a reasonable time? It is urged that the demand made within “several months” after the expiration of the year from the date of the purchase, and the subsequent demand in December, 1913, were not made within a reasonable time and hence the defendants were justified in refusing to comply with the demand.

The exchange of the stock of the Eastern Ohio Coal & Colee Co. for the stock of the J. W. Gorrel Co. took place in July, 1908, so that it appears that no demand was made until the lapse of a year and a quarter, to which should be added “several months,” which is exceedingly indefinite, but we find nothing in the petition, that is to say no allegation of fact, to show that this was an unreasonable time. The rule seems to be well settled that where no time is fixed by the terms of a contract, within which a demand to do a particular act must be made, time is not of the essence of the eontraot, and the demand must be made within a reasonable time. Davis Laundry & Cleaning Co. v. Whitmore, supra; Catlin v. Green, 120 N. Y. 441 [24 N. E. 941] and Bassenhorst v. Wilby, 45 Ohio St. 333 [13 N. E. 75].

The latter action was upon an indorsement, and the question was whether or not the note had been presented to the indorser within a reasonable time. The third proposition of the syllabus reads:

“What is a reasonable time is generally a mixed question of law and fact. Where the facts are in dispute, it should be sub mitted to the jury for its determination under proper instructions from the court; but where the material facts are admitted, or not in dispute, it is a question for the court, and can nut properly be submitted to the jury. ’ ’

On the issue made by the petition in this case, whether or not the demand and tender were made within a reasonable time, the court is not able to say as a matter of law upon the faets stated that the time was unreasonable, and we think the question should be submitted to a jury.

If no change had taken place in the financial affairs of the company, and neither of the parties could be harmed by the delay, that is one thing. If, however, the plaintiff was simply lying back an unreasonable time waiting to determine the outcome of his investment, and when he saw that the affairs of the company were changing, or had changed for the worse, then attempted to get out from under, that is quite another thing.

Judgment sustaining the demurrer reversed.

Pollock and Farr, JJ., concur.


text:
    CIVIL RIGHTS.
    [Cuyahoga (8th) Court of Appeals,
    July 15, 1918.]
    Grant, Lawrence and Dunlap, JJ.
    Asa Anderson v. State of Ohio.
    Denial to Jews Admission to Public Dance Hail Is Violation of Civil Rights Act.
    Refusing admission to Jews desiring admission and offering the admission fee to enter a public dance hall and putting them off with the suggestion that they come some other time, constitute a violation of Sec. 12940 G. C., the civil rights act, for which the proprietor is liable.
    ERROR to municipal court of Cleveland.

      J. J. McCormick, for plaintiff in error.

      Jas. L. Lind and E. E. Stanton, contra.
   GRANT, J.

The plaintiff in error was arrested, tried, convicted and sentenced in the court below for a violation of Sec. 12940 G. C,, which provides as follows:

“Whoever, being the proprietor or his employee, keeper or manager of an inn, restaurant, eating-house, barber shop, public conveyances by land or water, theater or other place of public accommodation and amusement, denies to a citizen, except for reasons applicable to all citizens and regardless of color or race, the full enjoyment of the accommodations, advantages, facilities or privileges thereof, shall be fined.”

This statute embodies the criminal part of that portion of the legislation of Ohio once known as the civil rights act. Its policy and purpose are well known and the courts have consistently administered it in the spirit of its adoption and intent, which was to prevent discrimination in public enjoyments and privileges, based on favoritism of race, color or other adventitious differences among those entitled to be served.

We have examined the bill of exceptions taken at the trial and find from it that the accused kept a place which is properly designated in the affidavit as a place of public amusement known as a dance hall. To its privileges and advantages he customarily admitted those who applied for admission and who paid his price, except in case of those whom he debarred if they did not pass an examination made by him and the test of which may fairly be concluded, was based on the line of race. When several citizens offered their money, he inquired if they were Jewish. If they said they were, he refused'them admission but told them to come some other day. He did not inquire for the race or nationality of others, but seems to have admitted them without test.

It does not concern us at all to inquire what the purpose or motive of the accused was in thus limiting his line of inquiry and exclusions to patrons of Semetie extraction, whether to favor the prejudices of a more favored set of customers, or on other grounds. Certain it is, in our estimation, that his place was one of public accommodation within the purpose and terms of the statute in question, and that he denied its privileges to men of one race but gave them to those of other races, if they asked for them and had the money required for their use and enjoyment.

Such being the conclusion of fact which the evidence tended to establish, the judgment of conviction is supported by it and is not contrary to it.

As to the specific assignments of error made in the brief, we are satisfied that the affidavit upon which the accused was prosecuted and his conviction had was sufficient in law and not defective in any material point.

The motion to strike testimony from the record was properly refused, and the trial court did not err to the prejudice of the accused in admitting evidence over his objection. The motion in arrest of judgment and for a new trial'were severally properly overruled.

The most persistent race of which recorded history gives any account, has overcome too many obstacles to be defeated of a right secured to it by statute by any of the excuses offered by the dancing master in this record.