text:
    ACCORD AND SATISFACTION.
    [Hamilton (1st) Circuit Court,
    1903.]
    Swing, Giffen and Jelke, JJ.
    Brown-Ketcham Iron Works v. L. P. Hazen et al., etc.
    Acceptance of Less Than Full Satisfaction.
    The rule, that the payment of a less sum in satisfaction of a larger sum, is not binding for want of consideration only applies when the larger sum is liquidated and there is no consideration whatever for the surrender of part of it. Hence, where the larger sum is not liquidated but is the aggregate amount due upon a mutual accounting, a draft for a less amount is a full satisfaction if accepted as such.
    Cobb, Howard & Bailey, for plaintiff in error.
    The acceptance by a creditor of a less sum than his demand on an 'unliquidated claim when tendered with that condition operates as full satisfaction even though the acceptance be under protest. Donohue v. Woodbury, 60 Mass. (6 Cush.) 148.

      Where a person makes an offer of a certain sum to settle a claim, where the sum in controversy is open and unliquidated and attaches to his offer the condition that the same, if taken at all, must be received in full or in satisfaction of the claim in dispute and the other party received the money, he takes it subject to the condition attached and it will operate as an accord and satisfaction even though the party at the time of receiving the money declare that he will not receive it in that manner but only as a part satisfaction of his debt so far as it will extend. McDaniels v. Lapham, 21 Vt. 222.
    The assent of the plaintiff to the settlement is shown by the retention of the draft sent by defendant to plaintiff for the acceptance of the money involves the acceptance of the condition. Fuller v. Kemp, 33 N. E. Rep. 1034 [138 N. Y. 231; 20 L. R. A. 785] ; 1 Cyc. Law & Proced. 334; Allen v. Navigation Co. 6 Cal. 400, 402; 19 Am. & Eng. Enc. Law (2 ed.) 392.
    The word “liquidated” means that the amount due has been ascertained and agreed upon by the parties or is fixed by operation of law. 1 Cyc. Law & Proced. 334.
    An account cannot be considered as liquidated so as to prevent the receipt of a less sum as payment from operating as a satisfaction where there is a controversy over a set-off and the amount of the balance. Ostrander v. Scott, 43 N. E. Rep. 1089 [161 111. 339]; Chicago, M. & St. P. Ry. Co. v. Clark, 178 U.’S. 353 [20 Sup. Ct. Rep. 924].
    Where an aggregate amount is in dispute, payment of a specified sum conceded to be due, that is, by including certain items but excluding disputed items, on condition that the sum so paid shall be received in full satisfaction, will be sustained as an extinguishment of the whole. Chicago, M. & St. P. Ry. Co. v. Clark, 178 U. S. 353, 367 [20 Sup. Ct. Rep. '924],
    Willis v. Bateham, 1 O. S. C. D. 570 [37 Bull. 150], does not apply. The counterclaim in that case was wholly unfounded.
    Moreover in such a case we were entitled to show the existence of a bona fide dispute even if we could not have set it up in that action. McDaniels v. Lapham, 21 Vt. 222, 236.
    O’Hara & Jordan, contra.
   PER CURIAM.

The facts which bear upon the question of accord and satisfaction are practically without dispute, and the question as to whether there was an accord and satisfaction, or not, is the cardinal question submitted on error.

The Brown-Ketcham.Iron Works made a contract with L. P. Hazen et al. whereby the latter were to do certain work for the contract price of $1,800. When it was done, over and beyond the contract, Hazen claimed $166.37 for extras, and Brown-Ketcham claimed $168.35 for the use of certain tools, etc. Both items were respectively disputed. The following letter was written:

“ I-ndianapolis, Ind., May 12, 1900.
L. P. Hazen & Co., Cincinnati, O.
“ Gentlemen : Herein please find draft on Fourth National Bank, Cincinnati, Ohio, No. 6&252, in amount $469.90 in full payment of all demands for labor and material in any way connected with the contract and extras on building being erected by the Globe-Wernicke Company at Nor-wood, O., Harry Hake, architect. This draft is in full settlement.
“The accompanying papers, made out by our Mr. F. J. Vinson, fully explain themselves.
“Yours very truly,
Brown-Ketcham Iron Works.
“ J. L. Ketcham, Secretary and Treasurer.”

The draft for.$469.90 brought the amount paid up to within $1.98 of $1,800.

Counsel for Hazen contends that as the amount paid was less than the liquidated item of $1,800, the rule laid down in Cumber v. Wane, 1 Strange 426, that when a liquidated sum is due, the payment of a less sum in satisfaction thereof, though accepted as satisfaction, is not binding as such, for want of consideration, applies, and hence the retention and use of. the $469.90 draft did not constitute an accord and satisfaction. Counsel for Brown-Ketcham contend that it did.

As to this rule, Chief Justice Fuller said, in Chicago, M. & St. P. Ry. Co. v. Clark, 178 U. S. 353, 365 [20 Sup. Ct. Rep. 924] :

“The result of the modern cases is that the rule only applies when the larger sum is liquidated, and when there is no consideration whatever for the surrender of part of it; and while the general rule must be regarded as well settled, it is considered so far with disfavor as to be confined strictly to cases within it.”

Also on page 367 :

“And the cases are many in which it has been held that where an aggregate amount is in dispute, the payment of a specified sum conceded to be due, that is, by including certain items but excluding disputed items, on condition that the sum so paid shall be received in full satisfaction, will be sustained as an extinguishment of the whole.”

In the case at bar, while the $1,800 item was not in dispute, the “aggregate” mutual accounting was. Brown-Ketcham’s extreme claim was that they could only be charged in the sum of $1,800 less $168.35, that is, $1,631.65; while Hazen’s extreme claim was that they were entitled to $1,966.37. The sum actually paid was $1,798.02. That there was a latitude of dispute, even after this last payment, is shown by the charge of the court below, where it says:

“1 do not know, gentlemen, whether, or not, if all deductions are made, which side a balance would be in favor of. That, of course, is for you. Therefore I have caused to be prepared three forms of verdict.”

But it is contended, conceding the law obtaining generally in the United States to be as laid down in the Chicago, M. & St. P. Ry. v. Clark, supra, that the law of Ohio is different, and adheres more strictly to the rule of Cumber v. Wane, and reliance is had upon Willis v. Bateman, 1 O. S. C. D. 570 (37 Bull. 150), a case by our Supreme Court not officially reported.

This latter case, on its facts, is clearly within the rule of Cumber v. Wane, and there is nothing in it to indicate a different policy in Ohio from that followed by the federal and other state courts of limitation upon that rule to cases strictly within it.

We are, therefore; of opinion that the acceptance, retention and use of the draft by Hazen, under the terms of Brown-Ketcham’s letter, constituted an accord and satisfaction, and the court below erred in letting the case go to verdict.

Judgment reversed.


source: Caselaw Access Project

author: SIBLEY, J.

license: Public Domain

text:
    GAS AND LIGHT COMPANIES.
    [Pickaway (4th) Circuit Court,
    November 27, 1902.]
    Sibley, Cherringlon and Jones, JJ.
    Circleville Light & Power Co. v. Buckeye Gas Co. et al.
    No Legal Right of Plaintiff Having Been Violated Injunction Will not Lie.
    Where a gas and light company has been duly invested with authority to do business, and for that purpose occupy streets and public grounds, within, a city of this state, and the municipal authorities, under the sanction of an invalid ordinance, allow a competing company like rights and privileges, an action by the former to enjoin the latter from transacting its business in such city, upon the ground that the ordinance authorizing it was.not legally enacted, will not lie; as in such case, no legal right of the complaining party is shown to be violated.
    Appeal.
   SIBLEY, J.

(Orally.)

This case comes into this court by appeal and has been submitted to us on a general demurrer to the petition, and also upon the proofs. However, it may be said in the beginning, that the only effect of the evidence is to modify certain averments of the petition, in favor of the defendants, rather than to strengthen the case of the plaintiff. We first, then, consider the issue made by the demurrer.

The petition sets out that the plaintiff is a corporation duly incorporated and organized under the laws of this state, for the purpose, among other things, of manufacturing gas for light, heat and power and for the producing of electricity for light, heat and power, and for the supplying of electricity and gas for power purposes, and for lighting the streets and public and private buildings of the city of Circleville. It then goes on to show that by steps duly taken, through the action of the city council, by ordinance and otherwise, the plaintiff has been invested with the legal right to furnish gas, electric light, power, etc., in accordance with the franchise with which its charter invests it, and has succeeded to the rights of an earlier company, whose property it bought, and thereby became the successor of and succeeded to all its franchises and privileges, in furnishing gas or light and power to the public and to the citizens of this town. Then it alleges, that the defendant, The Buckeye Gas Company, in 1894 was duly organized as a corporation for the purpose, among other things, of drilling for, producing, refining and vending natural gas and crude petroleum, laying and maintaining pipe lines for, the transportation, distribution and sale of natural gas, crude and refined petroleum, and all its products, and the construction and operation of electric street railways. It further avers that on or about March 20, 1895, an ordinance was passed by the council of this city, which, without giving its provisions in detail, was, in general, an ordinance authorizing the defendant to, come into this city and lay pipes and furnish natural gas to the city and to its inhabitants. The ordinance is not set out in full, but there is a specification of its provisions, showing in substance what I have already stated. The ordinance also was to go into effect from and after its passage and publication, according to law.

Two contentions are made about this ordinance which we have not deemed it necessary to decide in the view we take of the case. The first is that it embodies two distinct subjects, so as to render it void under the provisions o'f the revised statutes, by which ordinances of city councils are confined to a single subject.

Without exhaustively examining that question, we are inclined' to think that the contention of the plaintiff here is not well made.

The other point is, that the defendant is not here rightfully, in consequence of there being no submission of this ordinance under Sec. 3551 Rev. Stat. (no submission of the question of authorizing its operation here) to the qualified voters of the city. We have not gone into that sufficiently to express an opinion, and pass it by for the purpose of this demurrer, assuming that the contention of the plaintiff is well made — that while this has the form of a legal ordinance giving the right in the premises which the defendant, the Buckle Gas Company is alleged to be asserting, it is invalid, and a proceeding might be instituted by the proper party to oust that company of the franchise which it is said to be exercising under the ordinance. But we do not regard this as by any means decisive of the case.

The petition also says that the plaintiff is the only person or corporation having legal right and authority to furnish gas and electric light to said city and its inhabitants for illuminating purposes, yet the defendant, The Buckeye Gas Company, has recently begun to furnish natural gas to them for illuminating purposes, and is still wrongfully and without authority, and in disregard of the rights of plaintiff so furnishing and supplying natural gas to said city and its inhabitants for such purposes; that it has advised, and is still wrongfully advising and inducing said city and its inhabitants and the consumers of gas in the city to use its natural gas for illuminating purposes, contrary to law.

The plaintiff further says that S. A. Wheeler is the vice-president and general manager of the Buckeye Gas Company, and that Albert J. Grigsby is the secretary and agent of said, The Buckeye Gas Compan)', and that Simon Voll is a consumer in said city of the gas of said, The Buckeye Gas Company, for light; that said S. A. Wheeler and Albert J. Grigsby, for and on behalf of said defendant, The Buckeye Gas Company, have wrongfully conspired, connived and combined with said Simon Voll, a consumer as aforesaid, and have been and are unlawfully conspiring, conniving and combining with otheil consumers of gas in said city, and with applicants for gas, to use to light their dwelling houses, offices, etc., in said city, to furnish and supply natural gas to be used to light the respective dwellings, offices, etc., of said consumers and applicants for gas, by advising and inducing said consumers of its gas, and applicants for its gas to contract for and to engage to take its gas and to disconnect the gas pipes in' their said dwellings, offices, etc., from the meters of this plaintiff, and the pipes theretofore used for carrying and furnishing gas of the plaintiff for light, and to connect said pipes with those carrying the gas of said defendant, The Buckeye Gas Company, to light their respective dwellings, offices, etc., whereby the said plaintiff has suffered and will further suffer, great damage, and sustain great loss and irreparable injury.

The relief sought is by injunction, pending the action, and on the final hearing, an order that will permanently enjoin the defendant, The Buckeye Gas Company, from furnishing gas to any one in the city for illuminating purposes.

The probability is that the alleged invalid ordinance, in legal effect will be regarded as granting only the right to furnish gas for fuel purposes, but assuming that to be true, and that the ordinance is invalid, on the ground of no submission under Sec. 3551, that thereby the franchises with which it purports to invest the defendant company never have been legally conferred, still we have the fact, shown by the petition, that it is permissibly here under that form of authority and sanction of the public.

Now then, in that view of the case, the allegations which I have read as to conspiracy, etc., amount simply to this: That the plaintiff is invested by ordinance and law with a right, yet not an exclusive right, to furnish light, etc. Councils of cities and villages in this state are not invested with authority to grant an exclusive franchise to furnish gas or light therein. The plaintiff, therefore, has a right simply to come in and do such business. Hence, there could bfe no contention whatever, that the plaintiff was injured if the defendant’s franchise by procedure, admittedly valid, had been conferred upon it. The fact that the newcomer is a competitor would not entitle the plaintiff to any relief as against it or the city. In other words, both would in that case come in, like other branches of business, seeking for custom, each to do the best it could.

As we see it then, the real question here is, whether or not, stating the case as I have done, one of clear right upon the part of the plaintiff to do its work, and one wherein the defendant may be regarded as not legally invested with the franchise to do the same thing, yet is permitted by the city to do so, under the form of an authority which it has granted, whether this violates any legal right of the plaintiff. The allegation in substance is that the defendant company is using its influence, through its agents and others, to induce people to buy gas from it rather than from the plaintiff. Well, if it does so, what legal right of the plaintiff is violated by that act ? The assumption has been in argument, that if ■the ordinance under which it acted was invalid, then its acts are unlawful. Conceding that they are, as against the right of the city, how are they a violation of the rights of the plaintiff ? The business in itself is as lawful for one as the other. Both are legally organized companies, each possessed of the franchise to do business, wherever they can get permission therefor within corporate limits or find customers. Whether the council has acted advisedly or not in permitting the defendant to enter the city, the fact is, it is here, by and with the formal consent of the city authorities, and the only substantial allegation of the petition as to the company’s wrongdoing, in effect is, that it has made itself a competitor of the plaintiff in endeavoring to sell its product to the public, and to those who have been customers of the plaintiff. Now if this be so, how can it be said that in legal sense the rights of the plaintiff have thereby been invaded? True, it may result in rendering its business less profitable, but until the plaintiff can say it has the exclusive right to sell gas here, in our judgment it .fails to show any legal injury. As to it, the Buckeye Gas Company’s alleged acts are damnum absque injuria. However it may be in respect to the city, unless it possesses exclusive authority to furnish gas here, no legal right of the plaintiff appears to be infringed. Here we think is the key to a decision of this case. The petition fails to set out a cause of action, for the reason that it shows no legal injury to the rights of the plaintiff by the defendant company, but only facts on which, if its entire contention is well founded, the latter might be ousted from this city, by a proper action therefor, but that the plaintiff cannot make that question in this suit, we think is clear.

Now a word as to the case upon the evidence. This modifies certain averments of the petition. It shows that although the defendant company has made contracts for the sale of gas for fuel purposes, yet there has been no conspiracy of the sort alleged. After gas came into the possession of the purchaser, having passed through the meter of the Buckeye Gas Company, in some instances consumers diverted it into another channel, for illuminating purposes, and the defendant had knowledge of this. That the evidence shows, and is the full extent of the case in this feature, when we take it upon the proofs. Hence, I repeat, it modifies some allegations of the petition, which, however, in legal effect, asserts nothing more than tha^ the defendant has become a competing party under what is alleged to be an unauthorized permission to enter the city for the purpose of furnishing and selling gas here. So that whether we look at the case on the record, as made b)r the petition and demurrer, or upon that as shown by the evidence, the same conclusion is reached.

Our opinion, therefore, is, that this is a case where the plaintiff cannot affect the right of the defendant company to be and do business here, unless through some action by the city authorities to oust it, or possibly it being a taxpayer within the city, under Secs. 1777 and 1778 Rev. Stat., by first invoking action of the city solicitor, and on his failure to act, to proceed in its own behalf.

•' The remedy by injunction then, which is the sole relief sought here, cannot be given, as we think, on the facts stated in the petition or shown by the evidence.

If no wish is expressed to amend the petition therefor, a judgment will he entered upon the demurrer, which we hold is well taken, and so must be sustained.


author: BURROWS, J. LAUBIE, J.,

text:
    MUNICIPAL CORPORATIONS.
    [Columbiana (7th) Circuit Court,
    April 10, 1902.]
    Burrows, Laubie and' Cook, JJ.
    Wellsville (City) v. Patrick O’Connor.
    1. Ordinance Punishing Assault and Battery, Void.
    A municipal corporation has no power, under Sec. 1692 Rev. Stat., which grants to municipal corporations the general power “to preserve peace and good order,” nor under Sec. 2108 Rev. Stat., which defines the power of the .council as to the public peace, to provide by ordinance for thp punishment of the offense of assault and battery, and such an ordinance is void.
    Ü. Power of Municipality as to Public Peace Conferred by Sec. 2108 Rev. Stat.
    The general power “to preserve the peace and good order,” conferred upon municipal corporations by Sec. 1092 Rev. Stat., is limited, and the manner of its exercise definitely prescribed by Sec. 2108 Rev. Stat., and the authority of municipalities to pass ordinances concerning the public peace must be found, if at all, in the later section.
    3. Ordinance not Invalid Under Sec. 1694 Rev. Stat.
    An- ordinance whose several sections all relate to one subject, the punishment of offenses against the city, and which contains nothing upon any other subject and nothing not clearly expressed in its title, is not invalid as in violation of Sec. 1694 Rev. Stat., which provides that “No by-law or ordinance shall contain more than one subject, which shall be clearly expressed in its title.”
    Error to the court of common pleas.
    F. L. Wells, for plaintiff.
    W. F. Lones and Charles Boyd, for defendants.
   BURROWS, J.

Two causes are here decided — Wellsville v. O’Connor and Wellsville v. Harry Kirkbride.

O’Connor was convicted before the mayor of the city of Wellsville upon the charge of having committed the crime of assault and battery in violation of an ordinance of the city; was adjudged to pay a fine of fifty dollars and costs, and to stand committed to the workhouse till fine and costs were paid. This judgment was reversed by the court of common pleas on the-ground that the ordinance was invalid, and we are now called upon to review this judgment of the court of common pleas.

The ordinance is said to be invalid because the city was not authorized to create such offense, and because the ordinance does not conform to the requirements of Sec. 1694 Rev. Stat., which provides that “No. by-law or ordinance shall contain more than one subject, which shall be clearly expressed in its title.”

As to this second ground of complaint we are unanimous in the opinion that it is not well founded. The ordinance in question contains fifteen sections, defining fifteen separate offenses against the city. They all relate to one subject — the punishment of offenses against the city; and there is nothing in the ordinance upon any other subject, and nothing which is not clearly expressed in its title: “An ordinance to prohibit and punish certain offenses therein named, and for the more effectual preservation of peace and good order in the city of Wellsville, Ohio.”

We do not think that any discussion of this question is required, as it has been settled, in principle at least, by the Supreme Court. State v. Covington, 29 Ohio St. 102.

As to the other ground of objection to the ordinance — that it is not authorized by statute — we are not agreed;-but in the opinion of the majority of the court this objection is well taken.

The only disagreement between members of the court is upon the proper construction to be placed upon certain provisions of the statute. There is no dispute as to the essential facts of the case. It is an undisputed fact that the city of Wellsville undertook by ordinance to prohibit and punish the crime of assault and battery, defining it in the precise language adopted by the legislature in defining the offense; and that the authority of the city to enact the ordinance is given, if at all, by Sec. 1692 Rev. Stat., Par. 1, and Sec. 2108 Rev. Stat.

Neither is there any disagreement as to the general rules of law applicable to the case. It is agreed that the legislature can authorize a municipal corporation to prohibit and punish minor offenses, which are also punished by the state, whatever may be the law elsewhere. Koch v. State, 53 Ohio St. 433 [41 N. E. Rep 689].

The majority of the court think the following propositions are well settled by approved text writers and courts: That the prohibition of crimes and offenses lies within the domain of police power; that the exercise of police power is an exclusive prerogative of the state; that a municipal corporation has no inherent power to enact by-laws or ordinances for punishment of offenses; that it has only such powers as are clearly and expressly conferred upon it by the legislature, or must necessarily be implied in order to carry into effect those expressly granted; that where the legislature, by general law, has exercised its jurisdiction as to the punishment of an offense, there is a presumption of an intention to make its jurisdiction over such subject exclusive; and that in all cases where the grant is uncertain or doubtful the power must be denied.

These general propositions are fully established and illustrated by authority. 18 Am. & Eng. Enc. Law 739; Ravenna v. Pennsylvania Co. 45 Ohio St. 118 [12 N. E. Rep. 445]; Markley v. Mineral City (Vil.), 58 Ohio St. 430, 439 [51 N. E. Rep. 28; 65 Am. St. Rep. 776]; Dillon, Mun. Corp. (2 ed.) Secs. 301, 302; St. Louis v. Telephone Co. 10 S. W. Rep. 197 [96 Mo. 623; 2 L. R. A. 278; 9 Am. St. Rep 370]; Minturn v. Larue, 64 U. S. (23 How.) 435.

We now come to the only disputed question in the case — Was the city of Wellsville authorized by statute to make the crime of assault and battery an offense against the city? This must be determined from the sections of the statute referred to, which, so far as pertinent, read as follows:

“Section 1692. In addition to the powers specifically granted in this title, and subject to the exceptions and limitations in other parts of it, cities and villages shall have the general powers enumerated in this section, and the council may provide by ordinance for the exercise and enforcement of the same.
“1. To prevent riots, gambling, noise, and disturbance, indecent and disorderly conduct or assemblages, and to preserve the peace and good order, and protect the property of the municipal corporation and its inhabitants.”
“Section 2108. The council of a city or village shall have power to provide for the punishment of persons disturbing the good order and quiet of the corporation, by clamor and noise in the night season, by intoxication, drunkenness, fighting, using obscene or profane language in the streets or other public places, to the annoyance of the citizens, or otherwise violating the public peace by indecent and disorderly conduct, or by lewd and lascivious behavior.”

These sections are found in the same title and relate to the same subject matter — the maintenance of peace and good order in municipal corporations.

It may be assumed at the outset of the discussion that the contention of the city is narrowed down to the construction of a single clause in Sec. 1692 Rev. Stat.

Counsel for the city claim that the authorization of the council “to preserve the peace and good order” of the corporation, is an adequate and clear grant of power for the enactment of this ordinance; and they base their claim solely upon this clause.

This claim of the city is controverted and denied; and the counterclaim is made that Sec. 2108 Rev. Stat. limits the power of the city to pass ordinances to preserve the public peace.

Since a city has no inherent power to make by-laws or ordinances it is incumbent upon the city to demonstrate that the requisite power to pass this ordinance is 'expressly given, or of necessity implied in the language used in this clause.

The full import of Sec. 1692 Rev. Stat., as applicable to this contention, would read as follows:

Subject to the exceptions and limitations in other parts of this title, the council of cities and villages may provide by ordinance for the exercise and enforcement of the power “to preserve the peace and good order” of the municipal corporation.

This grant is not unlimited. Ordinances must be reasonable, and they must be appropriate to effect the purposes and objects for which they are authorized by the legislature. It is certain that the purpose of this statute was to permit the council to provide by ordinance for the punishment of disorderly conduct which disturbs or annoys the citizens of the corporation. To give it larger scope would extend the power beyond the necessities of the case and make its limit subject, substantially, to the discretion of the council.

There seems to be some difference of opinion between counsel as to the meaning of the word peace, as used in this statute. It is a word in common use among the people, and its meaning is well understood by them, and their understanding of its meaning is the same as that of lexicographers. The primary meaning according to Webster is, “A state •of quiet of tranquility; freedom from disturbance or agitation; calm; repose;” and Bouvier defines it as “The tranquility enjoyed by a political society, internally, by the good order which reigns among its members;” “a state of public order and decorum.”

The argument by which it is proposed to sustain this ordinance is, that authority to preserve the peace is equivalent to authority to prevent breaches of the peace; that assault and battery is in all cases a constructive and in many cases is an actual breach of the peace; therefore, authority to preserve the peace is authority to make assault and battery an offense against the city. When this conclusion is reached by this process of reasoning, the section under consideration will, in legal effect, have been amended so as to read as follows: That the council may provide by ordinance for the exercise and enforcement of the power to preserve the peace and good order of the city, and also to prevent breaches of the peace whether actual or constructive.

This argument, if valid, would authorize the council to punish by ordinance all offenders against the criminal laws of the stace; for the violation of any criminal law is technically and constructively a breach of the peace. In the opinion of a majority of tht court the peace mentioned in this section is not of the sort that passeth common understanding, and the power given and intended by the legislature is the power to suppress and punish those minor acts of misconduct that are commonly known and spoken of as public annoyances and disorders.

But it is useless to speculate or dispute as to what construction may reasonably be placed upon this clause of Sec. 1692 Rev. Stat., for the reason that the legislature has decided that question. The power to preserve the peace is given in general terms by Sec. 1692 Rev. Stat., and what the council may do to secure that end is definitely and unmistakably prescribed by Sec. 2108 Rev. Stat.

In express terms the powers granted by Sec. 1692 Rev. Stat. arc subject to the limitations in other parts of the same title; and this matter of preserving the peace is as fully controlled by the latter section as though it had been stated in Sec. 1692 Rev. Stat. that the power therein granted to preserve the peace was subject to the provisions of Sec. 2108 Rev. Stat. If attention is directed to the objects sought and purposes declared in the statute as to these two sections, we are brought to the same conclusion.

Section 1692 Rev. Stat., with its forty separate paragraphs and as many separate grants of power is, and by the title at the head of the chapter in which it stands, purports to be, a simple enumeration of the powers granted to municipal corporations, while Sec. 2108 Rev. Stat. is and purports by the head-note of Chap. 7, in which it stands, to be a full exposition of the power of the council as to the public peace. Nor is such specific restriction of power granted in Sec. 1692 Rev. Stat. by general language at all peculiar or exceptional in the matter of preserving the public peace. In many of the forty subdivisions of Sec. 1692 Rev. Stat. unqualified power is given to the council, and other provisions of the statute limit and direct the manner and extent of its exercise. The council, by this section, is authorized to appropriate land, to erect public buildings, to regulate ale, beer, and porter-houses and shops, etc.; and yet, would any one contend that specific legislation, directing how and when such power should be exercised, could be disregarded by the council because in the enumeration of powers the grant is given without qualification or limit? We believe it is a well settled rule of construction of statutes that all provisions relating to a given subject are to be considered and harmonized if possible and such construction adopted as will give effect to every part and provision. If Sec. 1692 Rev. Stat., Par. 1, is held to confer the power to pass any ordinance that may tend to preserve the peace or prevent an actual or technical breach of the peace, then Sec. 2108 Rev. Stat., that purports to mark out in plain terms the path the council must pursue to preserve the public peace, is without force or meaning. It is evident that the legislature intended to cover the whole field of public peace regulation in the latter section and not some small portions of it; and if that has been done the attempt to extract from Sec. 1692 Rev. Stat. the authority contended for must fail technically as well as actually. If we are right in our position that the claimed authority must be found if at all in Sec. 2108 Rev. Stat. the controversy comes to an end; for this section cannot, by any sort of microscopic analysis, be made to furnish authority to the council to make the crime of assault and battery a municipal offense.

It is a piece of legislation that carries the ear-marks of careful consideration. Its domain is outside of the criminal laws of the state and is a complete supplement of them in the matter of securing the peace and good order of the corporation. It embraces only such local and comparatively trifling misconduct as may cause disturbance and annoyance to citizens upon the streets or other public places; and allows the corporation to punish such misconduct, although it may be incidental to the commission of a greater offense made punishable by the state.

The concluding “otherwise” clause, must, by a familiar rule, be construed as limited to acts of disturbance and annoyance similar in circumstance and character to those precedently enumerated; and it must likewise be so limited because “indecent and disorderly conduct, or by lewd and lascivious behavior,” import such public disturbance and annoyance.

By insisting that this case'should be governed and decided by the provisions of Sec. 2108 Rev. Stat. we do not concede that the disputed power is conferred by Sec. 1692 Rev. Stat.; but on the contrary, we maintain that if Sec. 2108 Rev. Stat. were repealed or annulled by judicial construction or otherwise, the city of Wellsville would have no power to pass and enforce this ordinance for the following reasons:

Where an indefinite grant of power is given, such as “to provide for the general welfare,” “to make by-laws for the good government of the place,” etc., authority is not conferred upon the corporation, “to make an ordinance punishing an act (for example, an assault and battery) which is made punishable as a criminal offense by the laws of the state.” 2 Dillon, Mun. Corp. Sec. 302.

In some of our 'sister states the right of the legislature to authorize municipal corporations to put on their ordinance books the criminal laws enacted by the state, and thereby cause certain offenders to be twice punished for the same criminal act is denied. Savannah v. Hussey, 21 Ga. 80.

In this state, it seems, the legislature may in its discretion allow municipalities to duplicate all misdemeanors that are not required to be prosecuted by indictment.

Whatever disagreement may exist as to the propriety or legality of this duplication of punishment, it cannot be denied that its necessity is doubtful and that in practice it may be made vexatious and oppressive.

Certainly, the fact that assault and battery is punished by the state precludes the city from claiming the right to enact this ordinance on the ground of necessity. We venture the opinion that whenever a claim is made in behalf of a corporation for the exercise of superfluous and unnecessary power it should be supported by a legislative grant so explicit in its terms as to leave no reasonable doubt or question.

The argument that to preserve the peace is to prevent breaches of the peace, and that assault and battery is always in law, if not in fact, a breach of the peace, carried to its legitimate conclusion would give a municipal corporation the power to copy and pass into ordinances the whole body of state misdemeanors. We are not called upon to discuss other provisions of Sec. 1692 Rev. Stat., in which power is given to prevent riots and gambling, etc., and which can have no bearing upon the question under discussion.

If the legislature had granted the power to prevent assaults and batteries in Sec. 1692 Rev. Stat., and had not elsewhere in the statute limited the exercise of the power thus conferred, then a different question would be presented, and one analagous, perhaps to the grant of power to prevent riots, etc.

But power to prevent assaults and batteries is not contained in the grant to prevent riots, and if any inference is to be drawn from the mention of riots and the omission of assaults and batteries in this section, it would be, that power was given to punish the former and not given to punish the latter.

In this connection the inquiry is suggested why separate mention should be made of riots in this section. They are always actual as well as constructive breaches of the peace. Evidently the legislature did not have in mind the logic of the argument advanced on behalf of the city, or did not subscribe to its soundness.

After a somewhat thorough examination of the question the majority of the court are well persuaded that the ordinance ought to be held to be void, and the judgment of the court of common pleas is therefore affirmed.

LAUBIE, J.,

dissenting.

A strike of the workmen of the Wellsville Plate & Sheet Iron Co.’s plant was in progress, which the prosecuting witnesses in these cases, who were workmen in the plant, would not join, and on the occasion in question ■Were, for that reason, assaulted and beaten by a body of the strikers, of whom the defendants were a part, on one of the public streets of the city — a small riot.

The defendant in cach ease was arrested, convicted and fined for violation of the first section of an ordinance entitled, “An Ordinance to Prohibit and Punish Certain Offenses therein named, and.for the more Effectual Preservation of Peace and Good Order in the city of Wellsville, Ohio.”

The penalty prescribed was a fine only.

If acts of sufficient.gravity to constitute assault and battery can be said to be a violation of good order or a breach of the peace, the ordinance in question must be upheld, as in stich cases it is entirely a matter of discretion in the council whether to enact such ordinance or not. The question of the necessity for such an ordinance is therefore not presented. The question here is whether the ordinance is embraced within the scope of the subject of the general power given in the statute, and not whether the authority to enact such ordinance is implied as necessary to carry into effect some special named power.

That the defendants had each been guilty of an actual, and not a so-called constructive, assault and battery, and had thereby committed a breach of the peace, could not be, and was not disputed.

Under the general power conferred, the act prohibited under the name of assault and battery, must be,'and shown to be, of such disorderly character as to amount to a breach of the peace; and as the acts in question were of that character, the validity of the ordinance cannot be questioned, and the right to punish such acts denied and taken away because there may be other acts which are constructively brought within the definition of assault and battery which may not be of such disorderly character as to amount to a breach of the peace.

The question here is npt to be controlled by the rules applied in.determining the constitutionality of a statute.

Here the only question is, was the act called assault and battery of such disorderly character as to constitute a breach of the peace. If it was not, no offense was committed against the municipality — the ordinance was not violated. The ordinance has application only to acts violative of the peace and good order of the city, and is, therefore, valid as against any act of assault and battery of such character as to cause such violation.

But any assault and battery is a disorderly act, a breach of the peace, whether it be called a constructive, or actual assault and battery, and therefore comes within the scope of the subjects named in the statute in question, and is covered by the ordinance.

In the absence of a given definition of a constructive assault and battery, I assume is meant such as are created by the use of violent language, and the laying on of hands in a menacing manner, without any actual beating of the person.

What is a breach of the peace? In 1 Bouvier, Law Die. (Rawle ed.) 262, it is defined to be “A violation of public order;” an “act of public in-decorum.” Lexicographers define indecorum as “an impropriety of behavior which violates the established rules of civility, especially in.public.”

I am therefore at a loss to see why every assault and battery is npt a violation of good order, an act of public indecorum, and therefore a breach of the peace.

It has even been held that the use of violent language on one’s own premises toward a person lawfully there is also a breach of the peace. 1 Bouvier, Law Dic. supra; 50 Mo. App. 262. Indeed, the wording of the statute in question is broad enough to include all acts that tend to disturb good order, or that amount to disorderly conduct, and consequently must include any act of assault and battery.

This, of itself, should settle the question in favor of the validity of this ordinance.

But this conclusion is rejected on the ground that, if a constructive assault and battery is to be held to be a breach of the peace, it would authorize the council to prescribe and punish all acts made criminal by the laws of the state, as the violation of any criminal statute is constructively a breach of the peace.

What has that to do with the question here?

If it has any bearing upon the question in this case> and the legislature could delegate such authority, how could the courts interfere to annul it?

But the court (majority) has itself amply refuted the proposition in saying that in this state the legislature may, in its discretion, allow municipalities to duplicate all misdemeanors that are not required to be prosecuted by indictment; having reference, perhaps, to Sec. 10, Art. 1 of the constitution, which provides that “Except * * * in cases 'of petit larceny and other inferior offenses, no person shall be held to answer for a capital or otherwise infamous crime, unless on presentment or indictment of a grand jury;” and to the case of Dillingham v. State, 5 Ohio St. 280, 282, where it is held that “this (excepted) class was intended to embrace all offenses for which a punishment less than imprisonment in the penitentiary is provided.” So that there is a constitutional inhibition against the proposition, even if the violations of municipal ordinances are to be regarded as crimes or criminal offenses, which they are not.

It may be true, that the words granting such general powers, as used in said Subdivision 1 of Sec. 1692 Rev. Stat. in and of themselves, may be broad and comprehensive enough to include, as claimed, murder and robbery; but it is manifest from the context, and the provisions of many other sections of the same title, that the legislature intended to and has legitimately limited the authority in such matters in municipalities strictly within the domain of police power; and the right to prescribe and punish capital crimes, or any other felony, does not rest upon, nor is it legitimately included within, the domain of police power.

Section 1863 Rev. Stat. provides that the council, in addition to fines and penalties, may provide for the penalty of imprisonment not exceeding thirty days, for the violation of an ordinance of the municipality.

If the violations of municipal ordinances are to be considered crimes or offenses the same as violations of state laws,'how is it possible to conceive of an intention to grant final jurisdiction in murder and robbery, where the power to punish is restricted to a small fine and thirty days imprisonment? That no such intention existed is also manifest from a consideration of Sec. 1816 to 1823 Rev. Stat. of the same title.

The proper construction of said Subdivision 1 of Sec. 1692 Rev. Stat. leads to .the same result.

By the established rule of construction where a general power in a statute is immediately preceded by specifically named powers, such general power is restricted to those of a smiliar nature to the ones specifically named; and in this instance the general power granted to provide by ordinance against acts which disturb the “peace and good order” of the municipality must be restricted to those which are kindred to and similar in their nature to those specifically named, as riot’s and gambling, and those legitimately included within the prohibition against “noise and disturbance, indecent and disorderly conduct or assemblages,” which are all only of the grade of misdemeanors.

And the same thing is to be said of the construction to be placed on the concluding general power specified in Sec. 2108 Rev. Stat. of said Title 12.

The rule that statutes conferring powers upon municipal corporations must be strictly construed, is not applied to cases like this.

Where- the powers granted are general instead of specific, and relate to matters involving the peace, good order and morals of such communities, a liberal construction is placed upon them, and technicalities are not resorted to in order to defeat them. In such cases courts declare the ordinances invalid only when they are constrained to so hold by the strict letter of the law; as was said by Judge Scott in Canton v. Nist, 9 Ohio St. 439, 4-42:

“We are constrained so to hold, however sensible we may be of the duty to sustain municipal corporations in the legitimate exercise of the powers conferred on them for the preservation of order, and improvement of morals, within their jurisdiction.”

In such cases, the ordinance to be invalid, must either be entirely outside of the scope of the subject and purpose of such general power, or be unreasonable in itself, or in conflict with the laws and policy of the state; neither of which objections can be successfully raised against the ordinance in question.

The claim that the power to prohibit and punish the act of assault and battery, not having been expressly conferred, cannot be implied from the general power given, as assault and battery is a statutory offense, and that if the legislature intended to include such statutory offense it would have said so expressly, as it did in respect to riots, in my opinion is untenable. This claim seems to me not only to run counter to both principle and authority, but to be opposed to the plain letter of the statute. It is manifest from the other subdivisions of said Sec. 1692 Rev. Stat., as well as from the provisions of said Sec. 2108 Rev. Stat. and from the general provisions of said Title 12, that the legislature intended to and did confer upon municipalities the power to punish all immoral and disorderly acts, unless such acts were permitted, or recognized as lawful, by the laws of the state.

But the act prohibited by the ordinance in question, was not thereby made a crime, a criminal act or offense, precisely of the same kind and grade as that of assault and battery under the state laws; and to hold such ordinance valid would not legalize the punishment of an individual twice for the same crime, and such duplication cannot be presumed to have been within the legislative intent under such general power.

The Supreme Court, in Koch v. State, 53 Ohio St. 433 [41 N. E. Rep. 689], followed what it said was “the general course of decisions,” and held that a “former conviction before a mayor for the violation of an ordinance .is not a bar to the prosecution of an information charging the same act as a violation of a statute;” referring to Bloomfield v. Trimble, 6 N. W. Rep. 586 [54 Iowa 399] ; Minnesota v. Lee, 13 N. W. Rep. 913 [29 Minn. 445]; Robbins v. People, 95 Ill. 175, and Cooley, Const. Lim. 239.

■But it was not held in Koch v. State, supra, and it is a mistake to assume, that an act done in violation of an ordinance is a crime, a criminal act or offense as at common law, or a public offense under the constitution or laws of the state. Indeed, the court must have held precisely the reverse, as the reverse was what the courts held in the cases upon which our Supreme Court based its decision. Acts violative of municipal by-laws or ordinances are ordinarily loosely spoken of as offenses, but they are not crimes or criminal acts or offenses within the legal meaning of these terms, at least if imprisonntieñt is no part of the penalty, although the same acts are made crimes under state laws, but are merely quasi criminal. They are not properly crimes or offenses against the public, but violations of mere local police regulations, for the violation of which a fine may be imposed and collected by action in the name of the municipality, and consequently a conviction under the ordinance is no bar to a conviction under the state law. They are not identically the same crime or offense; and to be a bar, the former conviction must have been for the same identical crime or offense, as well as for the same act. ' .

A prosecution under such an ordinance is not a criminal prosecution, but an action civil in character to recover a fine for disobedience of a police regulation purely local iir its character.

The state punishes the offender for the unlawful act of violence to the person of another, and as an offense against the dignity of the state^, and the punishment largely is measured by the extent of the injury to the person of the party assaulted; while the municipality punishes, and is authorized to punish, solely for the violation of good order and peace of the municipality, and the punishment is measured by the extent of the disturbance, and not at all by the extent of the injury to the person assaulted; so that the offenses, if both actá are such, are entirely distinct, and not the same, although arising out of the same act.

It was upon these grounds that the court in Koch v. State, supra, held, as heretofore stated, because it simply declared that in such cases the conviction under the ordinance was no bar,‘under “the general course of decisions” as established by the authorities cited. The court therefore adopted the doctrine laid down and declared in those authorities; and a reference to them will show, that they held there could be no bar in such cases upon the grounds I have stated — that such ordinances are mere local police regulations, the violation of which is not a criminal offense, but at most only quasi criminal.

In one of these authorities, Minnesota v. Lee, supra, which was a case of keeping a house of ill-fame, the whole question was gone over thoroughly and well, and the authorities referred to, and it was held that there could be no bar for the reasons I have stated, and that' therefore even the constitutional right of trial by jury was not invaded by a summary trial and conviction by the police court.

In a subsequent case in that state, Mankato v. Arnold, 30 N. W. Rep. 305 [36 Minn. 62, 64], the question was again considered, and it was again held that “offenses against ordinances * * * for the preservation of the peace, good order * * * of the community, are not generally construed to be criminal cases, in the proper sense of the term ‘criminal,’ and prosecutions therefor are not ‘criminal prosecutions’ within the meaning of the constitution, which refers to prosecutions for offenses Essentially criminal under the general laws of the state.”

In Inwood v. State, 42 Ohio St. 186, 189, substantially the same doctrine is announced, and it was held that municipal ordinances against petty offenses, where imprisonment is not a part of the punishment, are mere police regulations, and prosecutions thereunder are only quasi criminal.

In Markle v. Akron, 14 Ohio 586, 587, Maride was convicted by the mayor for retailing intoxicating liquors to be drunk where sold under an ordinance prohibiting the same. Judge Wood, in disposing of the case said, that “debt” was the only appropriate remedy in such cases, and that “debt, is, in fact, the only form of action recognized by the principle of the common law for the recovery of fines, penalties and forfeitures.”

In State v. Rouch, 47 Ohio St. 478, 480 [25 N. E. Rep. 59], this question was directly passed upon, and in announcing the holding Judge Spear said:

“It is true that, in two instances, Larney v. Cleveland, 34 Ohio St. 599, and Shelby (Vil.) v. Boenau, 40 Ohio St. 253, this court has, inadvertently as we think, spoken of such offenses as violations of criminal law. But they are not, strictly speaking, crimes, nor are the proceedings, criminal proceedings, they are quasi criminal only. The offender does not offend against the dignity of the state; his offense is only against the municipal corporation whose ordinance he has violated.”

After referring to the holding in Markle v. Akron, supra, he continues:

‘[That this has been the understanding of our law-makers, the general current of our legislation attests. The legal machinery for the trial and punishment of violations of ordinances has been provided in the municipal, and not in the criminal, code. * * * Offenses against the state are divided into felonies and misdemeanors — the former being such as are punishable by death or imprisonment in the penitentiary, and all others, misdemeanors. But to be either, the offense must be against the state. A violation of an ordinance not being an offense against the statev does not come within cither class.”

And I may add, that in Sec. 1864 Rev. Stat. the legislature has provided that fines for the violation of ordinances may be recovered by civil action in the name of the municipality before any justice of the peace or other competent court, and directs what shall be sufficient to allege against the offender.

Not being a criminal offense, there can be no duplicate punishment, and this argument against the validity of the ordinance falls to the ground.

But however this may be, the authority to pass and enforce this ordinance is conferred by the general powers vested in municipalities by said Subdivision 1 of said Section 1692 Rev. Stat.; and the fact that assault and battery was and is an offense under state laws in no manner affects the question.

Under a general power relative to a particular subject, when not otherwise restricted, municipalities may by ordinance prescribe punishment for all acts which, in any manner, relate to, or affect that subject. For instance, under, the power granted to preserve the peace and good order, it is universally held that they may provide against and punish any act amounting to a misdemeanor under state laws, which will in any manner disturb the peace and good order of the community; and this without declaring, or alleging, that it was contrary to the peace and good order of the municipality, it being sufficient, if the act alleged, in itself, would naturally disturb peace and good order. So that the ordinance in question, prescribing punishment for assaulting and beating another, was authorized under the general power to preserve the peace and good order of the city, as the natural result of such an act was to break the peace and good order of the city, which it must be proved to have done in order to convict. ,

This subject is treated of largely in Dillon, Mun. Corp. Secs. 326-341, 'original numbers, and cases are cited which seem to have far less connection with the subject of the general power than the case at bar. For instance, in Sec. 333 is cited approvingly the case" of State v. Merrill, 37 Me. 329, where it was held that a city, under a power granted to pass ordinances for the good order of the city, might impose a penalty for mutilating or destroying any ornamental tree in any of the streets of such city; and this, too, although the state law made the malicious and wanton destruction of trees grown for ornament or use a crime.

This question is also fully discussed in one of the cases relied upon by our Supreme Court in Koch v. State, supra, viz., Bloomfield v. Trimble, 6 N. W. Rep. 586, 587 [54 Iowa 399], and the principle, as I have declared it, fully upheld. In that case Trimble was arrested, tried before the mayor and found guilty of the violation of an ordinance which provided that “if any person shall be found in a state of intoxication, he shall be deemed guilty of a misdemeanor.”

The act in question was also made an offense against the state by statute. Section 456 of the Iowa code is almost identical in language with said Subdivision 1 of Sec. 1692 Rev. Stat.; and Sec. 482 authorized municipalities to provide by ordinances, not inconsistent with the laws of the state, for the “order, comfort and convenience of the inhabitants thereof.” In upholding this ordinance the court said:

“It is true the statute does not specifically provide that a municipal corporation may punish persons for intoxication or drunkenness. But there are many subjects of municipal control which are not expressed and particularly named in the sections of the code conferring powers upon cities and towns. * * * We entertain no doubt that under these provisions a town or city may, by ordinance, punish for drunkenness. * * * To hold that the council, when it enacted this ordinance, exceeded its powers, and was mistaken as to the effect of drunkenness in the incorporation, and that it does not affect the public peace and order, and the comfort and convenience of the inhabitants, would, it seems to us, be contrary to the common experience of mankind.”

In Mobile (Mayor) v. Allaire, 14 Ala. 400, Allaire was arrested, tried before the mayor, convicted and fined for an assault and battery committed within the limits of the city in violation of an ordinance imposing a fine “for an assault and battery within the limits of the city;” and the same act was an offense under the state laws. The power to pass such ordinance was based solely upon the words of the statute granting the power to pass all such resolutions, by-laws and ordinances, as the mayor and aldermen “may deem requisite and necessary for the good government of said city, not contravening the laws of the state.”

The court, in an elaborate opinion, upheld the validity of the ordinance, and declared:

“The prompt suppression of riots, affrays, assaults and battery, and other kindred offenses, and the punishment of the offenders, is certainly requisite for the good government of the city.” A similar case, with similar holding in Williamson v. Commonwealth, 43 Ky. (4 Mon. B.) 146.

The general doctrine on the subject under consideration has been fully recognized and enforced in this state in numerous decisions.

In Cincinnati v. Rice, 15 Ohio 225, the defendant was fined by the mayor for keeping open a store on Sunday and selling goods contrary to the ordinance forbidding such acts “or common labor” on the first day of the week. The defendant was a Jew, and was within the exemption provided in the ordinance in favor of those who religiously observed the seventh day of the week as the Sabbath, but the mayor overruled his defense in that regard. The ordinance was authorized solely under a general power similar to the power herein, and was almost precisely in the same words as the statute of the state against such practices; and yet the courts upheld the ordinance, and reversed the conviction solely on the ground that the defendant was within the exemption. In the Supreme Court, in the concluding paragraph of his opinion, Judge Hitchcock says:

“Besides, by giving the ordinance this construction which seems to me to be the proper one, that ordinance is rendered perfectly unobjectionable, as there can be no pretense that it is contrary to a statute law of the state.”

In Canton v. Nist, supra, the Supreme Court declared a similar ordinance void, not upon the ground that the general and indefinite power under which the ordinance was adopted did not authorize it, as there was a statute making the same acts offenses against the state, but because the ordinance was inconsistent with such statute law in that it did not exempt those who conscientiously observe the seventh day of the week as the Sabbath. The significant remark of Judge Scott, in disposing of the case, I have already quoted.

In Piqua v. Zimmerlin, 35 Ohio St. 507, the question was whether the power given by statute to municipalities, in general language, to regulate ale, beer and porter-houses and shops, authorized an ordinance prohibiting the keeping open of any such house or shop on the Sabbath, where ale, beer, or porter was habitually sold or furnished to be drunk, and it was held that power to pass such ordinance was thus conferred “notwithstanding the statutes of the state made it unlawful for any tavern keeper, or other person, to sell or barter on Sunday, any spirituous liquors,” and that it was in “complete accordance with the statutes, and with the object sought to be accomplished.”

In Koch v. State, supra, substantially the same result was arrived at. While the facts do not appear in the report of the case as published, the record discloses that the conviction before the mayor was for keeping a saloon open on Sunday, and the Supreme Court based its holding, without explanation, or discrimination, upon the reasoning and result in the case of Bloomfield v. Trimble, supra, and others, as heretofore shown.

See also White v. Kent, 11 Ohio St. 550, and Bergman v. Cleveland, 39 O. S. 651.

I know of no case in the reports of our Supreme Court where an ordinance was held void because the act or offense provided against was a misdemeanor under state laws.

It is only where ordinances have been found to be inconsistent with the state laws that they have been held void — never because they were consistent with, or duplicates, of such laws.

As to the holding that if such power to punish assault and battery is conferred by the provisions of said Subdivision 1 of Sec. 1692 Rev. Stat., it is taken away by'the provisions of Sec. 2108 Rev. Stat., which the majority hold is a limitation upon the powers granted in said Subdivision 1, of Sec. 1692,1 am also compelled to dissent from.

The part of Sec. 1692 Rev. Stat., referred to, preceding said Subdivision 1, reads:

“1692. In addition to the powers specifically granted in this title, and subject to the exceptions and limitations in other parts of it, cities and villages shall have the general powers enumerated in this section, and the council may provide by ordinance for the exercise and enforcement of .the same.”

I am at a loss to see how anything in Sec. 2108 Rev. Stat. puts an exception to, or limitation on, the power, granted in said Subdivision 1 of Sec. 1,692 Rev. Stat. to prevent disorderly conduct, and the violation of peace and good order in the municipality. Certainly, no limitation is expressed. It seems to be one of the specific grants of powers to which those in Sec. 1692 Rev. Stat. are declared to be in addition.

If Sec. 2108 Rev. Stat. was intended to limit the powers conferred by Sec. 1692 Rev. Stat., how is it as to riots and gambling? Instead of limiting the power as to them, it would simply wipe out the power altogether.! An exception or limitation to a power is a modification of it merely, restricting its exercise in some manner, or to some extent, as distinguished from its entire destruction or elimination; yet here, if no act of disorderly conduct or breach of the peace can be prohibited by ordinance save those specifically named in said Sec. 2108 Rev. Stat., it would entirely eliminate the power to quell riots, the worst kind of disorderly conduct and breach of the peace, and gambling, and compel the assumption, that after expressly giving the power in the one section, the legislature deliberately proceeded in the next to take it away. As I have heretofore shown, other sections of said Title 12 do, put a limitation upon the general power granted in said Subdivision 1 of Sec. 1692 Rev. Stat. in that the act ordained against cannot be of a higher grade than a common law misdemeanor.

But the powers granted in Sec. 1692 Rev. Stat., as we have seen, are declared to be “In addition to the powers specifically granted in this title,” and seem to be- more of an addition to those granted in Sec. 2108 Rev. Stat., then said Sec. 2108 Rev. Stat. is a limitation as to the other, especially when it is considered that in Sec. 2108 Rev. Stat., according to its chapter heading, the power delegated relates solely to “Vagrants and Dissolute Persons,” while the power delegated in Sec. 1692 Rev. Stat. is general, and relates to all classes of persons.

The legislature having, in Sec. 2108 Rev. Stat., specifically provided for the preservation of the public peace as against the acts of vagrants and dissolute persons in certain particulars, gave, in addition thereto, in Sec. 1692 Rev. Stat., a general power as to all acts of all persons involving the peace and good order, or affecting the safety of the property of the municipality and its inhabitants; and specifically as to riots and gambling (although they would be embraced under the general power named), with authority to enforce the same by ordinance, and we do not have to look to said Sec. 2108, therefore, or to any other section for that authority. What the'council may do to secure the peace and good order of the municipality is as definitely and unmistakably prescribed in Sec. 1692 Rev. Stat., as it is in 2108 Rev. Stat. Each section provides that the council may enforce the powers granted by ordinance.

Indeed, as to' assault and battery, Sec. 2108 Rev. Stat. confers the power to provide against it, as fully as does Subdivision 1 of Sec. 1692 Rev. Stat.

That section gives the power to provide for the punishment of persons disturbing the good order and quiet of the corporation, by “intoxication, drunkenness, fighting, * * * or otherwise violating the public peace by indecent and disorderly conduct.”

By the use of the words “or otherwise violating the public peace,” “intoxication, drunkenness and fighting,” are declared to be acts of disorderly conduct violative of the public peace; as in fact they are; and if they are, certainly assault and battery is. It must be regarded as an act of disorderly conduct equally with intoxication, drunkenness or fighting.

It seems to me to be impossible to maintain that assault and battery is not an act of disorderly conduct. If assault and battery is a disorderly act of such character as violates the public peace — a kindred act to fighting — then why is it not included in the general power thus conferred by said Sec. 2108? It seems to me that it is, and that either of the sections referred to confers the power to punish acts known as assault and battery.


author: WINCH, J.

text:
    LIENS — JUDGMENT.
    [Cuyahoga (8th) Circuit Court,
    February 23, 1903.]
    Hale, Marvin and Winch, JJ.
    Alphonse J. Charbonneau v. Jacob Roberts et al.
    Failure to Issue Execution Within One Year Defeats Priority of Senior Judgment Lien.
    The priority of the lien of a senior judgment by confession upon the lands of the judgment debtor, over the lien of a junior judgment acquired_under a foreign execution and levy, is lost by failure of the owner of the senior judgment to issue execution on his judgment and levy thereon within one year from its rendition.
    Error to court of common pleas.
    W, C. Ong, for plaintiff in error.
    Brewer, Cook & McGowan; Riley & McQuigg and Frank Coleman, for defendants in error.
   WINCH, J.

July 2, 1901, Alphonse J. Charbonneau took judgment by confession against one Joseph Roberts in the common pleas court of Cuyahoga county, Ohio. The judgment debtor owned lands in said county, but no execution and levy were ever issued on this judgment.

December 2, 1901, Emily Roberts recovered judgment against said Joseph Roberts by the consideration of the common pleas court of Lorain county. Execution thereon was issued to the sheriff of Cuyahoga county, Ohio, and by him levied on the lands of the judgment debtor in controversy on July 14, 1902. August 15, 1902, being more than one year after the rendition of the judgment in favor of Charbonneau, Emily Roberts brought suit in the common pleas court of Cuyahoga county to subject said lands to the payment of her judgment, making Charbonneau party defendant to said suit.

Section 5375 Rev. Stat. provides that a judgment by confession shall be a lien upon the lands of the judgment debtor within the county where the judgment is entered, from the day of its rendition, and that all other lands shall be bound from the time they are seized in execution.

From this it appears that the judgment of Charbonneau became a lien on these lands on July 2, 1901, and the judgment of Emily Roberts became a lien on July 14, 1902, but it is claimed that Charbonneau lost the priority of his lien because no execution was issued and levied on his judgment within one year of its rendition.

Section 5415 Rev. Stat. provides that “No judgment on which execution is not issued and levied before the expiration of one year next after its rendition, shall operate as a lien on the estate of .a debtor to the prejudice of any other bona fide judgment creditor,” and this has been the law of the state substantially in its present form since February 1, 1822. 2 Chase 1234.

This statutory provision by which a judgment creditor is required to issue execution on his judgment and have the same levied upon lands of the judgment debtor within a specified time in order to preserve the priority of the lien of his judgment over that of other judgments was frequently before the courts in the early days of legislation on this subject; but of recent years there have been few decisions involving the application of this law. Although hardships have been pointed out as resulting from the operation of this statute and there are manifest inconsistencies in it, when we consider that it affects the priorities of judgment liens as between themselves, but not as regards mortgage liens and other liens, yet the courts have uniformly held that these considerations should more properly be addressed to the legislature. McCormick v. Alexander, 2 Ohio 65; Patton v. Pickaway Co. (Sheriff), 2 Ohio 395; Earnfit v. Winans, 3 Ohio 135; Shuee v. Ferguson, 3 Ohio 136; Waymire v. Staley, 3 Ohio 366; Sellers v. Corwin, 5 Ohio 398 [24 Am. Dec. 301] ; Thompson v. Atherton, 6 Ohio 30; Corwin v. Benham, 2 Ohio St. 36, 37; Bish v. Burns, 4 Circ. Dec. 598 (7 R. 285).

An examination of the above authorities shows that the decisions, made shortly after the passage of the act referred to, were fully and carefully reviewed by Judge Ranney thirty years afterward and affirmed and have been acquiesced in ever since.

There is no question that as between the judgment liens of Charbonneau and Roberts, the former lost his priority by failing to issue execution and levy within a year.

Judgment affirmed.


text:
    DEEDS — DESCENT.
    [Cuyahoga (8th) Circuit Court,
    February 16, 1903.]
    Hale, Marvin and Winch, JJ.
    George C. Ossman et al. v. Maria G. Schmitz et al.
    1. Presumption From Recital of Valuable Consideration in Deed.
    Where the consideration expressed in a deed is a valuable one, the title comes by purchase, and it is not competent to show by parol that such deed is in fact a deed of gift, and so change the line of descent.
    2. Presumption as to Legitimacy and Whole Blood of Brothers and Sisters.
    Where the evidence shows that certain persons are brothers and sisters of another, it will be presumed that they are brothers and sisters of the full blood and legitimate.
    Error to the court of common pleas.
    Poppleton, Billman & Billman, for plaintiffs in error.
    Beavis & Johnson and Kline, Carr, Tolies & Goff, for defendants in error.
   WINCH, J.

April 3, 1875, Christian Ossman was the owner of certain real estate in the city of Cleveland, which, on said day, he conveyed by warranty deed to one Herman Stuhr. The consideration in the deed was recited to be $10,000.

On the same day said Herman Stuhr conveyed said premises to Christina Ossman, wife of Christian Ossman, by quitclaim deed, in which the consideration was recited to be two dollars.,

Both deeds were in the ordinary forms, and were duly recorded on the same day.

Christina Ossman died intestate and without issue, leaving no husband surviving her, in September, 1896, seized of the premises in question.

Defendants in error and certain cross-petitioners claim title to the property, under the third paragraph of Sec. 4159 Rev. Stat., as the. brothers’ and sisters of Christina Ossman of the whole blood and their legal representatives.

Plaintiffs in.error at the trial in the court below claimed and offered to prove that the two deeds above referred to, although they recited money considerations, were in fact deeds of gift; that by them it was clearly the intent and purpose of the husband to make a gift to his wife, and that he took this means of presenting her with the property, being advised thereto by counsel; that the wife died intestate and without issue, possessed of this property which came to her from a former husband by deed of gift, and that it therefore descends under Sec. 4162 Rev. Stat., she leaving no children or their representatives, one-half to the brothers and sisters of the wife (the defendants in error), and one-half to the brothers and sisters of the husband (the plaintiffs in error).

The trial judge excluded evidence tending to show that the deeds referred to. were in fact without consideration, although they recited it, and were intended as a gift from the husband to the wife.

In this we think there was no error.

“Where the consideration expressed in a deed of conveyance is a valuable one, the title comes by purchase, and it is not competent to show by parol that in fact the title came by deed of gift, and thereby change the line of descent.” Groves v. Groves, 65 Ohio St. 442 [62 N. E. Rep. 1044].

Defendants in error, to prove their descent and that they were the brothers, and sisters of Christina Ossman, of the whole blood, and their legal representatives, took certain depositions in Germany, and error is alleged in overruling certain exceptions to these depositions.

It appears that written exceptions specifying the grounds of objection were filed on September 20, 1900, and on motion of the defendants, were heard and overruled on October 16, 1901, by the common pleas judge sitting in room No. 1. To this ruling defendants excepted, but took no bill of exceptions. What facts were before the court at that time do not appear. It is true, an envelope said to have contained the depositions is attached to the final bill of exceptions, but there is no evidence to show that said envelope was before the judge who ruled on the exceptions. We cannot, therefore, say that any error was committed in overruling said exceptions. Shamokin Bank v. Street, 16 Ohio St. 1.

When the case finally came on for trial, in March, 1902, defendants again excepted to the depositions, but said exceptions were overruled and properly, we think. The matter was res adjudicata.

Plaintiff in error further claims that the evidence does not show that defendants in error are the legitimate heirs or heirs of the full blood of Christina Ossman. The testimony is to the effect that they are brothers and sisters of Christina Ossman and their legal representatives, and in the absence of any proof to the contrary we think the fair presumption to be that the brothers and sisters were of the full blood and legitimate.

Judgment affirmed.


text:
    CONTRACTS.
    [Summit (8th) Circuit Court,
    April Term, 1903.]
    Hale, Marvin and Winch, JJ.
    McCausland Brothers v. Alfred Akers, etc.
    Valid Contract of Unlawful Combination with Agent Enforceable Where Separable.
    Although a contract between certain manufacturers, providing for the organization of an association to prevent competition and enhance the price of their product, is illegal as in restraint of trade and contrary to public policy, a clause in such contract which provides that one of such manufacturers shall act as agent for the others and receive payment from them for his services as such, being severable from the illegal part of the contract, is valid. lienee, a claim of one of the members of the association against the common agent on an account stated for goods sold under the agency agreement is enforceable at law.
    Error to the court of common pleas of Summit county.
    Wilcox & Grant, for plaintiffs in error.
    Rogers, Rowley, Bradley & Rockwell, for defendant in error.
   WINCH, J.

The plaintiffs in error brought suit in the court below against Alfred Akers, as successor to and sole owner of a partnership doing business under the firm name of the Akron Brick & Tile Company, to recover upon a written contract, or contracts, between the parties, whereby, it was alleged, the parties agreed that the defendant should act as agent for the plaintiffs and others in the sale of brick manufactured by the plaintiffs and others, keep account of all brick furnished, collect all moneys arising from sales, and pay the same monthly to the parties so furnishing said brick in proportion to the amount furnished by them respectively, the defendant further to guarantee the punctual payment of all debts arising from the sale of brick made by it.

Plaintiffs further alleged that pursuant to said .contracts they furnished and delivered, on the order of the 'defendant, a large amount of brick, but that defendant failed and neglected to pay over to plaintiffs the said sums of money agreed upon in said contract on account of the said brick sold and delivered by them to the defendants, leaving a balance due plaintiffs, for which they ask judgment.

A second cause of action, reaffirming all the allegations of the first cause of action, further alleges an account stated between the parties concerning said brick transactions.

To make out their case, plaintiffs, among other evidence, introduced a written agreement, part of which is as follows:

“Articles of Agreement. Made and entered into at Akron, Ohio, this eighth day of March, 1893, by and between Akron Brick & Tile Company, Cooler Brick Company, John Bailey, McCausland Brothers, Joseph Hugill, The Keller Brick Co. and Cleveland & Besaw.
“Know all men by these presents, That we, the undersigned 'Brick Manufacturers,’ having formed ah association for the purpose of selling 'common’ brick with greater economy and facility and for the purpose of better accommodating customers and purchasers of such brick, do hereby associate ourselves together under the name of the Akron Brick Association and do hereby bind ourselves, our heirs, executors and administrators, to the following 'articles of agreement.’ ”

And the fourth article is as follows:

“That there shall be employed an agent or agents by the unanimous consent of all the parties hereto, whose duty it shall be to sell all brick sold, and keep a correct and proper account of the same. He or they shall keep a correct account of the different qualities, the number of each, their respective prices and to even up sales every month, that is to give to each party to this agreement, as nearly as possible, an equal share of said sales, in quality and also in quantity. To collect all money arising from said sales and to pay said money to said parties monthly, according to the proportion of credits arising from said sales belonging to each of the parties hereto.
“Article 5. The agent or agents guarantee the punctual payment of all debts arising from the sales of bricks by him or them, except when sales are made upon credit, approved by the- executive committee.
“Article 6. The agent or agents shall keep a correct account of said sales and of money collected, in regular books, which shall always be open to the inspection of the parties hereto. Said books of accounts shall be the property of the association. The agent or agents shall make a report monthly to each of the parties hereto, showing the number and quality of brick delivered by each party, the amount of cash received and from whom collected and the amounts disbursed to the several parties hereto. And the said agent or agents shall enter into a good and sufficient bond in the sum of $10,000, conditioned for the faithful performance of his or their duties and for the guaranty of the collections of all moneys arising from the sale of bricks by such agent or agents.
“Article 17. The Akron Brick & Tile Company, in consideration of $12,000 to be paid to said company in equal monthly installments, hereby agree to act as agents for the 'Akron Brick.Association’'for the period of one year from date and do hereby agree to do and perform the duties required of such agents under the terms and conditions of the foregoing instrument, as made.”

The agreement was signed by all the parties named therein, and signed twice by the Akron Brick & Tile Company, evidently once as a party to the agreement, or member of the association; and a second time as agent, it being the agent named in the agreement.

At the close of plaintiffs’ testimony, upon motion of the defendant, a verdict for him was directed, upon which verdict judgment for defendant was entered, and a petition in error has been filed in this court alleging that the court below erred in so ruling.

It is claimed by the defendant in error that the contract, extracts from which have been stated, was illegal and void, not binding upon any of the parties thereto but was in restraint of trade and contrary to public policy; that the Akron Brick Association, as shown by said articles, was organized solely for the purpose of enhancing the price of brick and to prevent competition among the several members of the association; that the defendant was appointed as agent of such association wholly in furtherance of said unlawful purpose; that there can be no recovery under said contract because of this illegality. If such is the case the second cause of action on an account stated must fail as well as the first. “A claim void by reason of illegality. * * * will not support an account stated.” 1 Am. & Eng. Enc. Law (2 ed.) 442.

. Plaintiffs claim that the contract is dual in its nature, part setting forth the organization of the Akron Brick Association and determining the relation of the members to each other, and part creating the relation of agent between the defendant and the several members of the association. Such appears to be a reasonable construction of said contract, and adopting it we find no such illegality in the.relation of principal and agent claimed to exist between the parties to this suit as to prevent a recovery for that reason.

Where part of a contract is illegal and the illegal part is severable from the balance, the effect of such illegality is not t.o render the whole contract illegal, but the legal part may be enforced. The authorities on this point are well collected in 15 Am. & Eng. Enc. Law (2 ed.) 990.

The bill of exceptions shows that defendant sold brick to many customers on orders filled by plaintiffs, and testimony was introduced tending to show that defendant collected the proceeds of such sales and has not fully accounted to plaintiffs therefor. This testimony should have been submitted to the jury.

Judgment reversed.


text:
    MOTIONS — BOUNTIES.
    [Summit (8th) Circuit Court,
    April Term, 1903.]
    Hale, Marvin and Winch, JJ.
    Curtis V. Hard et al. v. Walter Harris et al.
    1. Motion for Judgment Non Obstante Veredicto.
    It is not error for a court to enter judgment upon a verdict without passing upon a motion for judgment non obstante veredicto. Such motion is disposed of by the entry of the judgment.
    2. Motion to Dismiss Petition Properly Overruled.
    A motion to dismiss a petition for failure to serve certain defendants, filed under Sec. 5313 Rev. Stat., is addressed to the discretion of the court, and where it is not shown that the defendants not served were residents of the county or state, judgment will not be reversed for overruling such motion.
    3. Bounties for Military Service Within Public Policy.
    A contract to pay a person a certain sum per month during the term of his military service in consideration of his enlisting as a volunteer for the Spanish-American war, is not against public policy. Such payments are in the nature of a bounty, and are within the policy of this state.
    Error to the court of common pleas of Summit county.
    Dick, Doyle & Bryan, for plaintiffs in error.
    Rogers, Rowley, Bradley & Rockwell, for defendants in error.
   WINCH, J.

Walter Harris and others brought suit against Curtis V. Hard and others, alleging that on May 12, 1898, the plaintiffs, together with certain of the defendants, entered into a contract with the other defendants whereby it was agreed that in consideration of the plaintiffs and certain of the defendants enlisting in the Eighth Volunteer Infantry for the Spanish-American war, as musicians, said Curtis V. Hard and his associates would pay said Harris and his associates a bonus of $325 per month over and above the pay allowed by the United States government for said services. Said Harris and his associates enlisted as agreed, were mustered into service, served six months, were paid $320 and recovered judgment in the common pleas court for the balance they claimed due on said contract.

In this court a motion to strike the bill of exceptions from the files has been granted, leaving undisposed of but three errors alleged by plaintiffs in error. First, that the court erred in refusing to dismiss the petition because of unreasonable neglect of the plaintiffs below to serve summons on certain defendants; second, that the court er-red in rendering judgment upon the verdict without passing upon a motion for judgment non obstante veredicto; third, the court erred in overruling the demurrers to the petition.

First, the motion to dismiss the petition for failure to serve certain defendants was filed under Sec. 5313 Rev. Stat., and was addressed to the discretion of the court. There is nothing to show whether the defendants not served were residents of Summit county or not, or even of the state. We are unable to say that there was an abuse of discretion in overruling this motion.

Second, the motion for judgment non obstante veredicto was practically passed upon by entering judgment on the verdict. If such was not the case and said motion is still pending undisposed of in the common pleas court, as claimed by plaintiffs in error, that fact might be urged by defendants in error as showing proceedings in error had been prematurely brought, but they are not complaining, and we see no error prejudicial to the rights of the plaintiffs in error by the failure of the court, if any, to pass upon said motion.

Third, it is urged by plaintiffs in error that the demurrers filed in the court below should have been sustained, as the contract set forth in the petition is clearly against public policy; that it alleges a contract between plaintiffs, together with certain of the defendants, entered into with certain persons who agreed to pay them a bonus of $325 per month over and above the pay allowed them by the United States for said services; that the government fixes the pay of all who are in its service; those performing like work receive like pay, and the rule- is unalterable. In no way could the government sooner demoralize the public service than to permit one class of its servants to receive a different and other compensation than that received by others employed in the same capacity; that if the musicians of the Eight regiment in any way were to receive more pay than persons rendering like service in another regiment, and this fact were to become known, the public service would be immediately injured, and, in time, such favoritism would result in complaints and less efficient service, insubordination and finally mutiny.

It is a well established principle of law in this country that no one can lawfully do that which has a tendency to be injurious to the public or against the public good. If a contract binds the maker to do something that is opposed to the public policy of the state or nation, it is void, however solemnly made. 23 Am. & Eng. Enc. Law (2 ed.) 455. In applying this rule to particular cases, however, much difficulty is-met with. Public policy is in its nature uncertain and fluctuating; its limits cannot be determined by the courts with any exactness. The legislature can and does define the public policy of the state. Any contract in contravention of a statute would be against public policy; so, too, many things not forbidden by express legislative enactment are against public policy, and the courts have repeatedly set aside contracts which they have determined to be against good government and the spirit of our institutions. Public opinion becomes public policy before it is enacted into statute law.

If the contract alleged in the petition tended to create the results claimed by counsel for the plaintiffs in error as necessarily flowing from it, it would be against public policy, and should not be enforced whether such results really did follow or not. Such results, it is admitted, were not contemplated by the parties when they entered into the contract. If the public service is affected by this contract. it is incidentally. The petition does not disclose that any of the parties, plaintiffs or defendants, were in the military service at the time the contract was entered into. The contract was not in contravention of any statute. That public injury would result from this contract cannot be a matter of opinion; it must be free from doubt.

The courts of this state have had so little to do with military questions that to ascertain, if possible, whether this contract is against the public policy of the state, we have been compelled to go back to the time of the civil war. During that war at least two acts were passed by the legislature authorizing county commissioners, trustees of townships and city councils to levy a tax for the payment of bounties to volunteers and to refund subscriptions made by individuals for that purpose. The Supreme Court held these acts constitutional. One of the grounds on which it was claimed that the statutes were invalid is that they provided bounties not alone for raising volunteers, but for the repayment of moneys already paid, pledged or subscribed by individuals as bounties to volunteers who had enlisted or should enlist. On this point the court held if it was competent for the legislature to have conferred authority for the payment by the local authorities of the bounties originally, it was equally competent for it to adopt and ratify what had been done by others towards accomplishing the end sought.

Defining bounties, the court said:

“Bounties are but a mode of compensation for services, and rriay be either for past, or as an inducement to future services. Their purpose is to strengthen the military power, not to weaken it; to commend the service to public approval and to induce men to enter it.” Cass Township v. Dillon, 16 Ohio St. 38, 43.

It is clear to us that the bonus mentioned in the petition to be paid t© the members of the Eighth Regiment Band, O. V. I., for the Spanish-American war, was in the nature of a bounty, and as such was clearly within the policy of the state of Ohio, as defined by the legislature of the state and the Supreme Court during the civil war.

Demurrers were properly overruled. The judgment is affirmed.