text:
    INTOXICATING LIQUORS — JONES LAW.
    [Lucas (6th) Circuit Court,
    February 2, 1907.]
    Haynes, Parker and Wildman, JJ.

      Lee C. Otte v. State of Ohio. George Krupp v. State of Ohio. Gotleib J. Noller v. State of Ohio.
    1. Jones Law not an Abuse of the Power of the Legislature to Legislate Concerning the Liquor Traffic.
    The legislature, in the exercise of its power to provide against the evils resulting from trafficking in intoxicating liquors, is subject to no limitation thereof except that no license therefor shall be granted. Hence, act 98 O. L. 68 (Lan. 7283a; B. 4364-30a) et seq., the Jones residence district local option law, is not an abuse of that broad power in that it permits a proportion, even if it be less than a majority, of the electors of a prescribed district, to obtain an expression by petition instead of by vote, as to prohibiting the traffic of intoxicating liquors therein; since the legislature might, without qualification, enact prohibitory legis-. lation as to defined territories in municipalities in which certain proportions of blocks or structures are occupied for residence and not business purposes.
    [For other cases in point, see 5 Cyc. Dig., “Intoxicating Liquors,” §§ 11-32. —Ed.]
    2. Majority of Electors Means a Number Equal to Majority at Last Regular Municipal Election.
    The clauses of Secs. 3 and 4 of act 98 O. L. 69 (Lan. 7283c, 7283d; B. 4364-30c, 4364-30d) declaring a petition sufficient “when it is signed by as many qualified electors as equal a majority in number of the votes cast at the last regular municipal election in such residence district” provide the way for ascertaining approximately the number of voters in a district and control' thb clauses in Secs. 1 and 2 thereof requiring “a majority of the electors,” and a petition signed by electors equal to a majority of the votes cast at the last regular municipal election, although not a majority of those residing in the district at the time of obtaining signatures, is sufficient.
    [For other cases in point, see 5 Cyc. Dig., “Intoxicating Liquors,” §§ 149-172. — Ed.]
    3. Operation of Statute not Defeated by Neglect- of Judoe or Municipal Clerk.
    After an ascertainment and finding by the common pleas judge of the sufficiency of a petition for prohibition in a residence district, and recording of such finding on his docket, the operation of the statute will not be defeated by neglect to cause a certificate of such finding to be filed with the municipal clerk or recorded by him.
    4. Affidavit Sufficiently Charging Time and Venue.
    An affidavit, upon which a prose'cution for unlawfully selling intoxicating liquors in a municipal residence district, in which prohibition of the traffic has- been effected under act 98 O. L. 62, though inartistically drawn as regards averments of the place where, and time when, the alleged offenses were committed after mentioning certain dates and the county and municipality in which is located the district in question and describing it in detail, is> sufficient if it apprises the defendant of the time and venue of the claimed violations of the law.
    [For other- cases in point, see 1 Cyc. Dig., “Affidavit,” §§ 90-130; 5 Cyc. Dig., “Intoxicating Liquors,” §§ 246-251. — Ed.]
    5. Averments not Technically Correct in Form but not Amounting to Duplicity or Vagueness.
    Charging the keeping of a place where intoxicating liquors are sold, a violation of the Jones residence local option law from a certain date and at various times until a certain other date, the period being only one week, while not- a technically correct form 'of averment, charges at least one offense and is not prejudicial for any lack of clearness, nor objectionable for duplicity or vagueness.
    6. Wine and Beer Considered Intoxicating Liquors.
    Keeping a place designated by a witness as a saloon, with testimony that persons congregated there and called for and bought beer and wine, justify a jury in concluding that there was a sale of intoxicating liquors, especially in default of any evidence by the defense to the contrary.
    [For other cases in point, see 5 Cyc. Dig., “Intoxicating Liquors,” §§ 5-10. — Ed.]
    7. Negative Averments not Necessary in Jones Law Prosecutions.
    Negative averments and proof are not necessary in prosecutions for violations of a statute under provisos or exceptions not included in the definition of the offense. Hence, no proof is required of such negative averments in an affidavit for unlawfully selling intoxicating liquors in a residence district wherein the selling of intoxicating liquor is unlawful under the Jones district local option law.
    [For other cases in point, see15 Cyc. Dig., “Intoxicating Liquors,” §§ 286-806. — Ed.]
    [Syllabus approved by the court.]
    ERROR to Lucas common pleas court.
    F. M. Sala, F. C. Schaal and Ulery, Martin & Webster, for plaintiffs in error.
    E. L. Twing and W. B. Wheeler, for defendants» in error.

       Leave to file petition in error denied, March 12, 1907.

   WILDMAN, J.

These three eases against the state of Ohio arise from the prosecution of claimed offenses against the “Jones-law,” so-called; the statute recently enacted by the legislature providing for the definition of what are known as “residence districts” in municipalities, and for the prohibiting or permitting the sales of liquors therein after obtaining an expression by petition of the wishes of a proportion of the voters in such district. It has been deemed a form of local option, and was enacted by the legislature'to take the place of certain previous existing legislation which provided for the obtaining of the expression of the voters by vote instead of petition.

A number of important questions are raised by the defendants, who are here the plaintiffs in error. They were convicted in the police court of the city of Toledo, of the violation of the said Jones law. The questions are of sufficient general interest to warrant careful consideration and a somewhat extended treatment of some of the points involved.

At a former term of this court the action of one of the judges of the court of common pleas, in passing upon the sufficiency of a petition for the definition of the alleged residence district No. 3, — the one involved in the present cases, — was before this court for review upon an application for leave to file a petition in error. In our decision of the matter then presented, we were called upon to pass upon some of the questions now re-presented. With the opinion there expressed, as>to the constitutionality of the act and its construction in some of the salient features discussed, we are still content. The case has not, as yet, however, been reported, and in as brief a statement as possible, I will express our views as to the constitutionality of the act and its construction, in view of certain claimed inconsistencies urged by counsel for plaintiffs in error.

It was earnestly urged upon us that the act is, for some reasons, in violation of the constitution of our state. No especial article or section of the constitution was emphasized in argument, if pointed out, but it is said that the statute, in terms, may impose a prohibition of the liquor traffic upon a prescribed territory against the will of a majority of its electors. It is said that those who do not sign the petition have no opportunity to vote; and also that if it be true that a petition under the act is sufficient when signed by less than an existing majority of the electors at the time of such signing, then it permits a minority of the voters to determine whether the district shall be one in which liquor is or is not legally sold. We are cited in the course of the argument to the case of State v. Constantine, 42 Ohio St. 437 [51 Am. Rep. 833], in which it is held:

“Where an office is filled by an election, the election must conform to the requirements of the constitution, and each elector of the district is entitled to vote for a candidate for each office to be filled at the election.
“A statute authorizing the election of four members of the police board at the same election, but which denies to an elector the right to vote for more than two members is in conflict with Art. 5 of the constitution. ’ ’

There is nothing that we discover in this case touching the right of the legislature to make such enactments as the one before us. The right to provide against the .supposed evils of the liquor traffic is a right expressed by the constitution of the state itself; the power is broadly given to the legislature to provide by law against the evils resulting from the traffic, and no qualification is placed upon that power, except that no license for such traffic shall be granted.

It has been a very common matter of legislation to enact that certain kinds'of business deemed inimical to the interests-of certain localities, shall not be carried on therein; and in regard to liquor selling we have had numerous enactments prohibiting the sale of liquors within prescribed distances of certain places; as, for instance, for a long time, 'within two miles of where a fair was being conducted by an agricultural .society, or within a certain distance of public institutions of various kinds. These acts have not been held invalid; they have been sustained and enforced, and their constitutionality upheld.

By analogy to the principle upon .which such enactments are sustained, there would seem to be no restriction upon the powers of the legislature directly to define districts and call them “residence districts,” in a statute prohibiting therein the sale of liquor. As the legislature may say that it shall be unlawful to sell liquor within such a distance of a schoolhouse, or a college, or a soldier’s home, or an agricultural fair, just so the legislature may enact that it shall be unlawful to sell liquor within a defined territory of a municipality in which a certain proportion of blocks or structures are occupied not for business but for residence purposes. The point at which I am arriving is, that it was not essential that the legislature should require any expression of the voters at all; the legislature might or might not place a qualification upon the operation of its enactment, and in this instance, it has so done. It has sought to obtain an expression from the voters of a district in which there was a desire on the part of some to exclude the liquor traffic. The legislature, we think, might have said that this shall only be done upon an expression of the will of two-thirds, or three-fourths of the voters. We think that it might just as constitutionally have said that it may be done upon an expression of one-fourth, or of 10 per cent, or of any other per cent of the voters; it need not have qualified it by giving any more force to the expression of the will of voters than of other adult members of the population. It might have permitted women as well as men to express their will in the matter.

In other words, there is no limit m the constitution to the power of the legislature toimake its own qualifications to the operation of.such an enactment as this, or to make the enactment unqualified, as it sees fit.

The difficulty which seems to have been encountered by some lawyers, and the obscurity which the judge of the court of common pleas, passing upon the sufficiency of the petition relating to residence district No. 3, thought that he found in the statute as to its construction, is not apparent to us. The statute seems to us, so far as regards the requirement concerning the number of petitioners to make the law operative and enforeible, altogether clear; that is to say, as clear as most of the enactments of the legislature. We have at no time found any difficulty in determining what seems to us the manifest intent of the legislature in this respect. The claimed inconsistency arises out of the phraseology in certain parts of the statute, which seems to make the prohibition or nonprohibition of the liquor traffic in a district depend upon the voice of a majority of the qualified electors, and, in other sections,of the statute, the language that the petition shall be signed by as many qualified electors as equal a majority of the votes cast at the last preceding election; that is, the last regular municipal election in the district. The whole act is to be read together, and we cannot, in endeavoring to ascertain the true intent of the legislature, reject any of its parts. Counsel for plaintiffs in error have utterly failed to find any explanation of the use of the clauses of Secs. 3 and 4, to which I will make reference, unless they are to be used in precisely the manner claimed by counsel for the state. Let us compare these various clauses for a moment — no,t entirely in detail, but in a general way — in order that we may make clear our understanding of the intention of the legislature.

Section 1 provides (see 98 O. L. 68; Lan. 7283a et seq.; B. 4364-30a et seq.):

“Whenever a majority of the qualified electors of any residence district of any municipal corporation sign a petition in favor of prohibiting the sale of intoxicating liquors as a beverage in such residence district,” and then take certain other action, certain results shall follow.

Section 2 begins:

“Whenever a majority of the qualified electors of any residence district of any municipal corporation in which the sale of intoxicating liquors as a beverage has been prohibited under the provisions of Sec. 1 of this act, shall sign a petition against prohibiting the sale of intoxicating liquors as a beverage in the same residence district and file the petition with the mayor,” etc., certain results shall follow.

Section 3 provides:

“The petition provided for in this act shall be deemed sufficient when it is signed by as many qualified electors as equal a majority in number, of the votes cast at the last regular municipal election in such residence district, but must, in order to be valid, be filed not later than three months after the signing thereto of the signature first in order of time.”

I will not tarry to discuss the effect of this last clause* of the sentence, but that it is not to be forgotten in the construction of the entire sentence, is, I think, clear. It was not intended that the preparation of a petition or the obtaining of signatures thereto should be continued for so long a period as to make it absolutely ineffectual to the obtaining of an approximate measure of the voters. The time is limited to three months in order that it may not reach back to some remote period, because if there were not some such qualification it might be so greatly prolonged in the obtaining of the signatures that there might be a vast change in the population of the district between the taking of the first signature and the last.

Section 4 provides that after the petition has been submitted to the mayor, or judge, such official shall decide certain things, and, among others, this:

‘ ‘ The mayor or judge shall decide whether the petitioners are qualified electors in the residence district and equal in number a majority of the votes east in the residence district at the last regular municipal election. ’ ’

Now, is it possible that, taking these sections together, any other intent can have been had by the legislature than that the petition should be signed by persons who were qualified electors at the time of signing, and that in number they should be equal to a majority of the votes cast at the last preceding regular municipal election. The legislature desired to avoid the difficulty which might arise in the enforcement of a requirement that a petition should be insufficient until signed by a majority of the existing electors at the time of the signing, by providing this way of ascertaining approximately the number of voters in the district. We think that this is a plain construction of this act; that no especial difficulty attends it and we think that the finding of the common pleas judge as recited in the affidavit and as appears in the record before us, does show, although it does not state in words, the signing of the petition by a sufficient number of qualified electors. The judge has made findings as to the number of electors still residing in the district at the time of the signing and as to the number of votes cast at the last preceding regular municipal election; he has stated the number of signatures by qualified electors upon the petition, and rejecting such matters as are clearly surplusage in the certificate made by him, the certificate still contains all that the statute requires it to show, in the determination of the question whether the petition was a sufficient one, under the statute.

Another question, and one not altogether free from difficulty, is raised by the claim that there was a neglect to comply with the statute requiring the judge to cause a certified copy or certificate of his findings, together with the original petition, to be filed with the clerk of the municipal corporation, or council, not less than five days after the finding and not more than forty days from the filing of the petition with him; and that, without a record by the clerk, there is no sufficient showing that the so-called residence district became one in which it was unlawful to vend intoxicating liquors and keep a place for such purposes. The language of the statute does require the judge to cause a certificate to be recorded in the records of his court. It requires him to make a record of his findings on his docket and also to cause this certified copy or certificate of his findings, together with the' original petition, to be filed with the clerk, as I have stated. There are two provisions of the act which bear upon the question as to what is the effect of the record or the use to be made of it in the subsequent proceedings to enforce the act. Section 1 provides that the decision of the judge, as certified to the clerk of the municipal corporation or council and recorded by him in the records of the council or corporation, or a certified copy thereof, provided it shows that a majority of the voters of such residence district were in favor of prohibiting the sale of intoxicating liquors as a beverage, shall be prima facia evidence that the selling, furnishing or giving away, etc., was prohibited and unlawful.

Section 5 provides:

“If the findings of the mayor or judge or a copy as recorded by the clerk of the municipal corporation or council on the records of the council shows that a majority of the qualified electors in the residence district named are in favor of prohibiting the sale of intoxicating liquors as a beverage, then, from and after thirty days from the date of such finding by the mayor or judge it shall be unlawful for any person, etc.,” to do the acts proscribed in what we know as a prohibited district under the law. This last section — five—seems to be somewhat more sweeping than the other and to make it not simply presumptively unlawful but absolutely so to sell in the district after the finding of the mayor or judge or the recording of the copy. Note that the requirement here is in the alternative. It does not say “the finding and the record,” or “the findings as recorded,” but if the findings show, or if the copy of the findings as recorded shows, then it shall be not simply prima facie unlawful, but it shall be absolutely so, to sell.

There is more difficulty in the construction of this passage, to my mind, than there is in the one upon which counsel have placed the principal emphasis in their argument; but after a consideration of the entire statute and the object sought to be subserved by it — its general spirit and purpose as well as its letter — we are of the view that it is not in the power of the municipal clerk, nor even of the common pleas judge, to defeat the operation of the law by the mere neglect of a ministerial act. If the law has been made operative by the judicial findings provided for in it; if the substance of the act so far as regards the obtaining of the petition and its submission to the proper judicial officer, and his passing upon it and finding its sufficiency, have all been followed and the record made upon the docket, as provided by law, and if those proceedings show that a sufficient petition has been filed, then we think that within the spirit of this enactment it is unlawful in such district to sell, and that it is not essential that the record should be made by the clerk to make the statute enforcible within the prescribed district.

The affidavit upon which the prosecutions in these cases were based is not quite so artistically drawn, in some respects, as might be desired, especially as regards the allegation of the place where and the time when the alleged offenses were committed, and it is urged upon us that there is no sufficient averment of venue — not exactly perhaps, as to the county, but more especially as to the commission of the offense within the boundaries of the prescribed district. This affidavit is so long and so complicated that I will not tarry now to reread it: I have read it several times, as have the other judges of this court, and of course, counsel; but we think that the frequent use of the phrase “then and there,” in various parts of the affidavits, after mentioning certain dates and describing in detail this district No. 3 and mentioning the county and municipality in which the district is to be found, sufficiently apprises the defendants of the time and place in which it is sought to charge that they have violated the law. In this very useful work, in several volumes, "Words and Phrases Judicially Defined, found in our law library, in Yol. 8, pages 6947 and 6948, I find reference to certain decisions which I will cite as bearing upon the use which may be. made of this phrase, “then and there,” in the construction of an indictment, information dr complaint:

“Where an indictment specifies a certain date in the caption and another date in the body thereof, and the phrase ‘then and there’ is afterwards used in the indictment, it will be construed as referring to the date last mentioned. Commonwealth v. McKenney, 80 Mass. (14 Gray) 1, 2.
“ ‘Then and there,’ as used in an indictment, means the time and place last previously mentioned therein. State v. Hurley, 71 Me. 354, 355.
“The words ‘then and there,’ as*used in an indictment, are words of reference, and, when time and place have once been named with certainty, it is sufficient to refer to them afterwards by these words, and they will have the same effect as if the time and place were actually repeated. These words also refer to the time and place last specified', unless there be some phrase connected therewith, which shows that a different reference is intended. State v. Cotton, 24 N. H. 143, 146.”
“The words ‘then and there,’ in an allegation in an indictment for arson that defendant burned a certain house then and there occupied, controlled, owned by him, refers to the time and county previously stated, and is a sufficient statement of the locus in quo of the house burned. Baker v. State, 25 Tex. App. 1 [8 S. W. Rep. 23, 24; 8 Am. St. Rep. 427].”

There are numerous other cases along the same line, but I have selected these as having especial pertinency to the language found in these pleadings.

It is also objected that.the affidavits charge several offenses; that they are objectionable for duplicity or vagueness. They are alike in the three cases, in substance, and almost exactly so in phraseology. They charge that the defendants kept the places from a ctertain date and at various times until a certain other date, the intervening period being only one week. Now, this may be not a technically correct form of averment, and yet, under all the circumstances, and just as it is alleged here, we think that it at least charges one offense, and we do not think that the defendants were in any way prejudiced, so far as appears by the whole record, by any lack of clearness in the affidavit in this respect. Reference may be made to the familiar section of the Revised Statutes, in the criminal code, Rev. Stat. 7215 (Lan. 10969), often referred to for its bearing upon these and like questioiís:

“No indictment shall be -deemed invalid, nor shall the trial, judgment, or other proceeding be stayed, arrested, or in any manner affected, * * * for omitting to state the time at which the. offense was committed, in any ease in which time is not of the essence of the offense; nor for stating the time imperfectly; * * * nor for the want of an allegation of the time or place of any material fact, when the time and place have once been stated in the indictment; * * * nor for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”

Without dwelling' longer upon this matter, we think that there was no prejudice- to any substantial rights of the defendants upon the merits • — imthe rulings of the court below upon this affidavit.

Several contentions were made by counsel for plaintiffs in error, which we think must have arisen from forgetfulness of what is contained in the record itself; for instance, it is said that the court erred in the admission of the evidence of one Biddle. But no objection was taken upon the trial and no ruling of the court- was excepted to in this instance. It is. said that there was no evidence that intoxicating liquors were sold or given away. One witness, Wagers, testified positively that he bought beer in one place, and he tells about beer being sold to numerous other people. He says that' the place was a saloon; that it was kept for the sale of intoxicating liquors at retail. Now it may be said that to speak of the sale of wine or beer is not the same as to charge the sale of intoxicating liquors. This may sometimes be true, but it is not always true; it depends upon the sense in which the words are manifestly used by the one speaking. If a witness has reference to a kind of beer which is intoxicating — and no one disputes that some beer is intoxicating — or if the witness speaks of a kind of wine that he deems intoxicating, then his statements are to be taken as his testimony that the liquor sold and drank was such. In one of the instances he speaks of lager beer, as bought by himself. I will read from this same work, Words and Phrases Judicially Defined, Vol. 1, pages 733, 734:

“When beer is called for at a bar in a saloon or hotel, the bartender would know at once from the common use of the word that strong beer was wanted. When the word ‘beer’ is used in court by a witness, the court will take judicial notice that it means a malt and an intoxicating liquor. In the meaning of the word itself, there is a prima facie proof that it is malt or intoxicating liquor that is meant. Briffitt v. State, 58 Wis. 39 [16 N. W. Rep. 39, 41; 46 Am. Rep. 621].”

In the Indiana case, immediately following, to which reference will be made, definitions of Webster as to various kinds of beer and as to the general use of the word are given and then this statement is made:

“As a consequence, when beer is called for at a place at which intoxicating drinks are sold, the bartender, having in view the primary meaning, as well, as the common use of the word, is justified in inferring, and must reasonably infer, that malted and fermented beer is wanted. When, therefore, a witness testifies to the sale or giving away of beer under circumstances which make the sale or giving away of any intoxicating liquor unlawful, the prima facie inference is, that the beer was of that malted and fermented quality declared by the-statute to-be an intoxicating liquor, and the court trying the cause ought to take judicial notice of the inference which thus arises from the use of the word ‘beer’ in its primary and general sense. Myers v. State, 93 Ind. 251, 252; State v. Jenkins, 32 Kan. 477 [4 Pac. Rep. 809, 811]; Dant v. State, 106 Ind. 79 [5 N. E. Rep. 870, 871]; State v. Tisdale, 54 Minn. 105 [55 N. W. Rep. 903, 904].
“Testimony that beer was sold in a drinking saloon by one who manufactured it will be taken to mean a sale of the fermented malt liquor commonly sold in such saloons, and not ginger beer, root beer, or the like. State v. Dick, 47 Minn. 375 [50 N. W. Rep. 362, 363].”
“In its ordinary sense, ‘beer’ denotes a beverage which is intoxicating, and is within the fair meaning of the words ‘strong or spirituous liquors,’ as used in statutes regulating the sale of such liquors. ‘Its primary signification is that of a malt liquor; and if it is to be understood in a restricted or qualified sense, such as to denote root beer; molasses beer, or persimmon beer, etc., it would be incumbent on the defendant to show that such is the case. There have been a great many decisions on the subject, but the most of them sustained the view that the court will take judicial notice' that the word ‘beer,’ when used in a court by a witness, means a malt and an intoxicating liquor. ’ Maier v. State, 2 Tex. Civ. App. 296 [21 S. W. Rep. 974, 976]; United States v. Ducournau, 54 Fed. Rep. 138, 139 (citing Tinker v. State, 90 Ala. 647 [8 So. Rep. 855] ; Watson v. State, 55 Ala. 158; Allred v. State, 89 Ala. 112 [8 So. Rep. 56]) ; State v. Effinger, 44 Mo. App. 81, 83; State v. Teissedre, 30 Kan. 476 [2 Pac. Rep. 650, 653].”

As to one of these cases before us, it was mentioned by a witness that “port wine” was sold. In Words and Phrases Judicially Defined Vol. 4, page 3745, is this citation:

‘Intoxicating liquors;’ as used in acts 1876-77, c. 38, prohibiting the sale of intoxicating liquors, etc., includes port wine. State v. Packer, 80 N. C. 439, 440.”

And, on the same page:

“In a prosecution for selling intoxicating 'liquor on election day, an instruction that ‘wine is an intoxicating liquor within the meaning of the statute, and its sale or gift on election day is prohibited,’ was approved, the court saying: ‘The court takes judicial knowledge of the fact that wine is an intoxicating liquor, which is a matter of common knowledge.’ Wolf v. State, 59 Ark. 297 [27 S. W. Rep. 77, 78; 43 Am. St. Rep. 34].”

I also wish to refer, upon tbe question as to the intoxicating character of beer, to the case of Markle v. Akron (Town Council), 14 Ohio 586, 587, 591. I read from the latter page:

1 ‘ It was said, on the trial below, that beer was not intoxicating liquor, and, therefore, not within the terms of the ordinance. The evidence spread upon the record shows that it had decidedly an intoxicating effect upon the vendee; that, after drinking it, he immediately became boisterous, and the plaintiff in error was compelled to force him from his> premises. But, aside from this, beer may be denominated the ‘raw material’ from which alcohol is made, and science proved on the trial the parts of which it was composed, by actual analysis, and we cannot differ with the court of common pleas in the opinion that it is in its very nature inebriating in its consequences, when drank to excess.”
Now, in Sec. 7 of the Jones act (98 O. L. 72; Rev. Stat. 4364-30g; Lan. 7283g), we have this definition of ‘ ‘ intoxicating liquor: ’ ’
“The phrase ‘intoxicating liquor’ as used in this act shall be construed to mean any distilled, malt, vinous or any intoxicating liquor, by whatever name the same may be known. ’ ’

And in that connection I will cite the case of Weisbrodt v. State, 50 Ohio St. 192 [33 N. E. Rep. 603], in which it is stated per curiam:

“The record presents the question whether or not, in an information under section 6948 [Lan. 10607] of the Revised Statutes, which makes it an offense to keep open on election day any place where on other days spirituous, vinous, or malt liquors are habitually sold and drank, it is sufficient to describe the place as one ‘where intoxicating liquors were on other days habitually sold and drank?” "We answer the question in the negative. All spirituous, vinous, .or malt liquors are intoxicating, but all intoxicating liquors are not necessarily either spirituous, vinous, or malt liquor. ’ ’

Now, as already indicated, the witness testifying in these three cases which we are considering, associated in his mind with his- remembrance of what he and others bought at the bar where, persons congregated, the idea that it was in what he called a saloon; that they called for beer or that they called for wine — one on one occasion “port wine” —with other qualifications or explanations of what they wanted, and surely it was proper for the jury in the court below to take into consideration all the attending circumstances in determining the character of the transaction. We think that the jury wefe entirely justified, in view of all the testimony and in default of evidence of any kind adduced by the defense, in concluding that this was a selling of intoxicating liquors.

It is said by counsel in argument that none of the negative propositions in the affidavit were proven. There was proof as to at least some of the negative averments of the affidavit; but, in our judgment, no proof was required, in the first instance, from the state. The statute does not make the exclusion of these matters a part of the definition of the offense and it has been repeatedly held that unless it be a part of the definition of the offense, then it is not incumbent upon the state to make proof of .the fact. To illustrate: If the statute had provided that it should be unlawful to sell without a written permit from some person, or without a prescription, it might be necessary to show that there was no permit or no prescription; but as to the matter which it is claimed should have been shown by the state here, it is in a separate section, no part of the definition of the offense, and it is rather a matter of defense, an exception to the operation of the general prohibition. The statute is not meant to operate upon certain classes of persons, but it is intended to operate upon people generally. Now, to bring the defendants within a class excepted from the general enactment, the decisions are all in harmony that it.is incumbent upon the defendant to make such showing and not upon the state to show that defendant does not belong to such a class.

Our consideration of the whole matter is, that the several contentions of counsel for plaintiffs should not be sustained. We fin'd no errors in the record, that by any possibility can have prejudiced the rights of the defendants below. Probably the purpose of the defendants is to test the validity of the act and to obtain a proper construction of it — at least we judge that such is the case from the fact that no defense was offered on the trial in the police court in the way of introduction of evidence of any kind.

The judgment of the court of common pleas sustaining the judgment of the police court, should be and is affirmed.

Haynes and Parker, JJ., concur.


source: Caselaw Access Project

author: WINCH, J.

license: Public Domain

text:
    ATTACH MENT — N ECESS ARIES — RENT.
    [Cuyahoga (8th) Circuit Court,
    March 15, 1904.]
    Hale, Marvin and Winch, JJ.
    A. G. Smith v. Mattie V. Getz.
    Delinquent Rent Grounds for Attachment.
    A month’s rent for a dwelling house, occupied by a man and his family, is a claim for necessaries, and, as such, ground for attachment, as provided in Rev. Stat. 5521 (Lan. 9050), and does not lose its character as a claim for necessaries by th'e tenants’ moving out during the month, and renting and occupying another house.
    [Syllabus by the court.]
    ERROR to Cuyahoga common pleas court.
    C. D. Friebolin, for plaintiff in error.
    F. A. Beecher, for defendant in error.
   WINCH, J.

Plaintiff in error was tenant of defendant in error, having contracted for one month’s rent of a dwelling house, for the use of himself and family. Having paid half a month’s rent in advance, he moved out in the middle of the month and rented another house. Suit was brought for the balance of the month’s rent and an order of attachment issued garnisheeing 10 per cent of the tenant’s personal earnings. The ground upon which the attachment was issued was, that the claim was for necessaries. Motion to dissolve the attachment was made and overruled and the case is here solely for review • of the action of the court below in sustaining the attachment. The indebtedness is admitted, but it is contended that under the circumstances of this case the claim is not one for necessaries.

Food, clothing and shelter are the prime necessities of life, and it is admitted that, ordinarily, rent due for the use of a dwelling house for a debtor and his family is a claim for necessaries, within the meaning of those words as used in Rev. Stat. 5521 (Lan. 9050), which specifies the grounds upon which an attachment may be issued.

But it is claimed by counsel for plaintiff in error that the debtor having rented and being in the occupancy of another house, the use of tÉe first house cannot be considered a necessary for him.

Such construction cannot be put upon the meaning of the word ‘£ necessaries ’ ’ as used in this statute. When the landlord contracted with his tenant for one month’s rent, it was in the light of this law and both parties knew that thereupon arose in favor of the landlord a claim for necessaries with the benefit of the attachment laws for the collection thereof. The tenant could not change the character of the claim by his own conduct thereafter. Indeed, if the theory advanced by his counsel is correct, the rent of the second house, not of the first house, would not be a necessary, for he did not need the second house because he already had the use of the first house.

But the theory itself is wrong, and the reasoning inconclusive. To have the benefit of the attachment law the claim must be for something classified as a necessary and of a reasonable quantity; ■ but the creditor is not bound to inquire, as he is in the case of an infant, whether the person he is dealing with is already supplied. It has been said by a very learned judge-Prentice v. Richards, 74 Mass. (8 Gray) 226-that a very similar statute in Massachusetts, denying to an insolvent a discharge from debts for necessaries, was analagous to the law giving a merchant a right of action against a minor for necessaries furnished him, but the analogy is not complete and the ease referred to was not decided upon that principle. That case involved the rent of a boarding house kept by a single woman without a family. Surely the use of a building for business purposes cannot be considered a necessary.

So under the same statute it was held in the case of Lincoln v. Dunbar, 89 Mass. (7 Allen) 264, that supplies furnished a debtor who kept boarders who consumed them, were not necessaries. But the merchant knew without inquiry that he was furnishing the debtor in excess of his personal necessities. These supplies were furnished to be used in business, as the wholesale grocer sells to the retail grocer, who in turn sells to the hotel keeper. Nobody would argue that an attachment would lie against a hotel keeper in favor of the grocer supplying him.

So it may be said that a ten year’s lease of a dwelling house, broken by the tenant near the beginning of the term, would not give ground for an attachment against the tenant for the rent of the whole term. True, but for the reason that a car load of flour is not a neces- • sary, while one sack of flour is.

“While a person furnishing supplies to an infant is bound to know whether he is already-supplied, such is not the ease under our attachment laws with reference to necessaries furnished an adult. The reason for this difference is apparent.

“The rule of law is, that no one may deal with a minor; the exception to it is, that a stranger may supply him with necessaries proper for him, in default of supply by anyone else; but the stranger’s inter- ferenee with what is properly a guardian’s business must rest upon an actual necessity of which he must judge in a measure at his peril. When he assumes the business of guardian for purposes of present relief, he is bound to execute it as a prudent guardian would, and consequently to make himself acquainted with the ward’s necessities and circumstances.” 16 Am. & Eng. Enc. Law (2 ed.) 280; Johnson v. Lines, W. S. 80 [40 Am. Dec. 542].

But under our attachment laws the merchant is dealing with a person sui juris, and if the articles supplied are of the character of necessaries and the quantity supplied reasonably necessary for a man and his family, there is no reason why the merchant should further inquire as to the supply his customer already has. .

The motion to dissolve the attachment was properly overruled.

Judgment affirmed.

Hale and Marvin, JJ., concur.


author: PARKER, J.

text:
    ESTOPPEL — EXECUTION—GAS AND OIL.
    [Wood (6th) Circuit Court,
    1906 ]
    Haynes, Parker and Wildman, JJ.
    Samuel E. Niece v. Thomas Percy.
    1 EQUIPMENT AS PART OP OlL LEASE.
    In an oil field when parties negotiate respecting a lease which is in operation eithsr to mortgage it, cr sell it, they consider the equipment, used in operating the lease as part of the lease; hut if purchased at judicial s.ale the title obtained is limited ordinarily to the terms of the decree of sale.
    2. Loss by Estoppel of Right'to Urge a Claim.
    When the owner of an oil lease which is about to be sold on execution urges a party to purchase such lease and is present at the sale and hears the announcement that the sale includes the equipment used in operating the lease and still urges such party to bid, having some hope of self benefit from such party’s purchase, he thereby estops himself from afterwards claiming that the sale of the lease did not carry with it such equipment even though such a claim might have been valid had he not estopped himself from setting it up.
    [For other cases in point, see 4 Cyc. Dig.. “Estoppel,” §§ 500-507. — Ed.]
    3. Admissibility op Evidence to Relieve against Doctrine of Caveat Emptor.
    Where the purchaser of an oil lease at judicial sale, acting somewhat in the interest of the defendant owner and thereby relieved as between the de- . fendant and himself from the application of the doctrine of caveat emptor. evidence as to the understanding between the original owner and himself at the time of the sale, as to whether the appurtenances were -included with the lease, is admissible in a subsequent action by the original owner to recover from the purchaser the value of the appurtenances.
    Error to Wood common pleas court.
    Seney & Seney, for _ plaintiff in error.
    . Estopped by silence.' 'Fisher v. Mossman, 11 Ohio St. 42; Pennsylvania Gor v. Platt, 47 Ohio St. 366 [25 N. E. Rep. 1028].
    ' Judicial sales. 'Morgan v. Mason, 20 Ohio 401 [55 Am. Dec. 464] ; 17 Am. & Eng. Enc. Law (2 ed.) 960.
    Baldwin & Harrington, for defendant in error.
   PARKER, J.

This ease comes into this court on error. Mr. Niece was plaintiff and Mr. Percy defendant in the court of common pleas. The action was brought to recover a money judgment, the amount claimed being $1,655, for- and on account of the alleged conversion by Percy of certain property of that value of which Niece claimed that he was the owner. The property consisted of certain equipment on oil leases, being three derricks, 1,125 feet of five, and five-eighths-inch casing; 3,700 feet two-inch pipe; 3,700 feet sucker rods; one twenty-five-horse power boiler, two steam engines; one two hundred and fifty-barrel tank; one one hundred-barrel tank; 1,000 feet of two and one-half-inch line pipe; 500 feet two-inch pipe; 3,000 feet one-inch pipe; one boiler; 1,000 feet of shackle rods, and possibly some other equipment.

This property constituted the equipment of certain oil leases of lands situate in Hancock county. Mr. Niece was formerly the owner of the leases and equipment, and the leases were sold under decree of foreclosure of mortgages given by Niece, and on account of debts contracted by Niece. It is claimed by Niece that the decree and the sale did not carry the title of this equipment to Percy; that all Percy took under the decree of sale was the right that the lessee had acquired from the lessor, to wit, the leasehold interest; that he took no part of the equipment.

It is contended on behalf of Percy that he purchased at sheriff’s sale the equipment of the leases as well as the leasehold interests, and he bases his claim upon three distinct propositions or grounds: First, that the decree by its terms covered this equipment; second, if the decree standing unexplained did not by its terms cover the equipment, that the testimony of witnesses showing the meaning of the word “lease” as used in the decree and order of sale, etc., and showing that in the' oil field among men acquainted with the business of dealing with leases, the word “lease” is understood to cover the equipment, that therefore the decree and order of sale carried the equipment; third, it is contended that Niece is estopped from claiming this equipment by reason of certain acts on his part which induced Percy to purchase under the belief that he was acquiring the equipment as well as the leasehold interest.

We are not prepared to hold that under the terms of the decree, even as explained by the testimony of witnesses touching the use of the word “lease” among oil men or in the oil field, and in the absence ■ of the element of estoppel in pais that a sale would cover the personal property on the lease, though we are well satisfied that the word “lease” as used in the oil field commonly covers the equipment. The decree itself is not free from ambiguity.' The journal entry sets forth that the parties appeared with their attorneys, and the matter was submitted to the court upon the pleadings and the evidence, “upon consideration whereof and being fully advised in the premises, the court found that on December 8, 1900, S. E. Niece was the owner in fact of the described oil and gas leases, together with-the appurtenances thereunto belonging, including all oil wells located thereon, all boilers, and engines, tanks, tools, pipes and other oil well appliances,” to wit: (and then the leases are described; that is to say, the land covered by the leases), so that in' that part of the decree the court appears to be treating the equipment of the leases as an appurtenance thereto; and further along- in the decree it is said “that said leasehold interest and property thereon were also transferred to said First National Bank,” etc.; and again it is set forth that Niece entered into an agreement with the bank whereby Niece was to have the right to sell the oil run from said leases, and if he failed to pay the debt of the bank it was to run and sell the oil, the division orders therefor to be transferred and assigned by Niece to said defendant bank, and to “sell said leases and the property situate thereon as aforesaid” to satisfy and pay the indebtedness due from said Niece to said bank. When it comes to the part of the decree authorizing the sale of the property, it rends as follows:

•“It is therefore considered, ordered and adjudged that unless the defendant, Samuel E. Niece, pay said sum of nine thousand eight hundred and fifty-three and fifty-four one-hundredths dollars ($9,853.54) with 8 per cent interest thereon from the eighth day of December, 1903, within three days from this date, that an order of sale issue directed to the sheriff of Wood county, Ohio (part of the property being in Wood county), and to the sheriff of Hancock county respectively, commanding them to sell said leases herein described as located in their respective counties, and out of the proceeds arising from said sale, to pay, first, the indebtedness due said bank,” etc.

The decree is ambiguous. It is uncertain whether the order to sell the leases therein described would include what in the early part of the decree was described as “appurtenances” of the leases.

The order under which this sale was made sets forth that the sheriff is “to proceed without delay and cause to be advertised and to sell according to law the following real estate situate in the county of Hancock and state of Ohio,” and then is described these leases without any, reference being made to the appurtenances or personal property.

We doubt if it was competent to prove, in order to fix the meaning of the terms of this decree,that the word “lease” was used in the oil field in the manner that I have mentioned. But it is well settled by the authorities that where there are distinct defenses, and the verdict of the jury is general, covering all the issues, if there is no error touching a single issue, a finding whereon in favor of the prevailing party would justify the judgment, and when it seems to be sustained by the evidence, the judgment will not be disturbed, even though there may be errors touching other issues; errors in the admission of evidence oi' the exclusion of it, or the charge of the court — whatever the errors. 'This is laid down in a number of authorities that we had occasion to collate and examine recently. I call attention to the case of Manson v. State, 24 Ohio St. 590, and I cite this state case because substantially the same rule is held therein, though we know there is more strictness in criminal than civil cases. I cite also the cases of McAllister v. Hartzell, 60 Ohio St. 69 [53 N. E. Rep. 715] ; Sites v. Haverstock, 23 Ohio St. 626, and Holt v. Lamb, 17 Ohio St. 374-384.

Under the evidence showing the transactions, the negotiations and dealings between Niece and Percy respecting this property, and with respect to this sheriff’s sale of the property, it is clear that the sale as between Niece and Percy was not strictly of such adversary character as that the rule of caveat emptor can be invoked by Niece against Percy. It appears that at the solicitation of Niece, Percy became the purchaser at this sale somewhat in the interest of Niece. No doubt Niece expected more in the way of benefits to result to him from the sale to Percy than he in fact realized; but that does not alter the fact that Percy was purchasing somewhat in the interest of Niece and at the solicitation of Niece. And in view of that which we regard as a very important fact, a fact which discloses an estoppel in pais, and as we believe concludes Mr. Niece, we think the evidence of what was fairly understood by Niece and by Percy in the use of the word “lease” in their talk and their negotiations, and also as to the sense in which it was used in the decree, was admissible. After this decree was entered and the property was about to be brought to sale, Mr. Niece went to Mr. Percy and asked him to buy so that the property might not be sacrificed, and so that it-might pay a greater amount of Niece’s indebtedness than it would pay if it were sold at a low figure, and so that perhaps there might be something left for Niece; and, as I have suggested, it may have been contemplated by Niece that he would have an opportunity to redeem, in all of which plans for personal advantage he seems to have been disap-, pointed.

They went upon the premises; they looked at what there was to be seen, to wit, all of this personal property which is mentioned here, this equipment, and they talked about the value of the property, and we think it is quite evident that they both took into consideration the equipment as well as the naked rights of the lessee acquired from the lessor through the written instruments. It was a lease in operation, and this equipment constituted a part of what might fairly be described as the “plant,” a term applied usually perhaps to manufacturing institutions, but which we think may be fairly applied here; and our understanding of the matter is, and the evidence justifies the finding, that in the oil field, where parties negotiate respecting a lease which is in operation, either to mortgage it or sell it, they consider the whole plant, including all the equipment. That is the rule unless there is some exception made; some distinct understanding to the contrary.

The testimony fairly establishes the fact, that at the sale the sheriff notified the bidders, including Mr. Percy, that the sale would carry not only the leasehold interest but the equipment; that the equipment was to be sold as part of the lease or with the lease; and Mr. Niece was present at the time and as the bidding progressed Mr. Niece urged Mr. Percy from time to time to raise his bid, and prevailed’on him to raise ..his bid several hundred dollars. It is said by Mr. Percy, and we think it is unquestionably true, that if he had not understood that the equipment was being sold with the leasehold he would not have bid as high as he did.

After purchasing, Mr. Percy paid for the property. He then, in company with Mr. Niece, went upon the property. Mr. Niece at the time he went upon the property after the sale in company with Mr. Percy called attention to some padlocks, articles of small value, that he desired to have and keep, and Mr. Percy consented to his taking them. Mr. Niece at the time made no claim to anything more and did not make any claim to any of this property until months after this sale. It is said, however, that these things occurring after the sale could not give rise to estoppel, and that is probably true. I mention this- only as indicating the understanding that Niece had of what occurred at the sale, and as corroborative of the testimony of Mr. Percy that there was talk about the equipment going with the leasehold interest, and that it was understood between him and Mr. Niece that such was the case.

Under the question of estoppel arising in this case we think the case of Smiley v. Wright, 2 Ohio 506, is in point. The syllabus reads:

“Widow entitled to dower, present at the sale under order of court, and asserts that the sale may be made free from dower, in consequence of which the price is increased, is thereby barred of dower, although the purchaser was not ignorant of her title.”

I quote from the opinion:

“The next question made is, whether the circumstances attending the sale of the premises to Hartford, are such as bar Mrs. Smiley, in equity, from claiming her dower. The. evidence upon this part.ox the case is clear, explicit, and uncontradictory. J. Eddington testifies that he attended the sale as agent of Hartford. The property was put up, subject to the widow's dower, and that it was bid up to about $2,400. .Fickas,. after the property had been cried for some time at that price, and it was evident no greater bid conld bé obtained, expressed his unwillingness to have it sold for that price, and, at his request, the biddings were suspended, to enable him to consult with the widow, and ascertain if she would agree to have the property sold free of dower. Fickas and the widow went into a back room, where they were engaged some time in conversation, no part of which he heard. The witness was near the door of the room, and when they came out Fickas observed she had agreed to have the property sold free of dower. This was proclaimed at the front door by the crier; the biddings resumed, and the property struck off to witness, as the agent of Hartford at about $3,000. lie would not have given over $2,400, had he not understood that the wid,. >- relinquished her dower. R. Moore’s testimony is to the same effe'-t. S. Salmon states he was the auctioneer. The widow was present, an. 1 must have heard him cry the sale as free from her claim of dower, and that the property was sold as unencumbered by any right of dower J. Worstell states, he was present at the sale. Mrs. Smiley was standing in the door, the auctioneer being on the step, when it was struck off. That he heard the auctioneer frequently state, that the sale was free of dower, while she was in a situation she must have heard him; and on one occasion replied to him she had no claim to dower.
“It is apparent from this testimony, which is altogether uncon-tradicted, that after the suspension of the sale, it was understood by the persons attending that the property was to he sold unencumbered by the widow’s dower. That sbe was present, aiding by her acts and declarations, in confirming this opinion, and that the purchaser was thereby induced to bid about $600 more than he would otherwise have given.”

It will be seen that the important point here is that the widow encouraged the bidders to believe that they were purchasing free from her dower. What the auctioneer'said would have been unimportant had it not been ratified by the widow; and in the case at bar, what the .sheriff said, standing alone, is of little importance. The question is, What was understood between Mr. Niece and Mr. Percy, or what did Niece give Percy to understand? Continuing, the court say, page 510:

“It is a well-established principle in equity, that if a person, having a right to an estate, permit or encourage a purchaser to buy it of another, the purchaser shall hold it against the person who has the right. # * *
“It is contended, on the.part of the complainants, that the acts and declarations of Mrs. Smiley, at the time of the sale of the lots in .question, ought not to bar her of the aid of a court of equity, because she was at that time ignorant of her rights, nor can they be considered as a fraud upon the purchaser, as he had notice of her title.”

And so it is urged here that the doctrine of estoppel does not apply to Mr. Niece because he had no more information as to his rights under that decree than Mr. Percy had. One was as fully informed as the other, and if under the terms of the decree and order of sale the title to the personalty was not involved and would not be carried, that Mr.. Niece is not estopped. But it will be observed that in this case of Smiley v. Wright, supra, by the terms of the decree the dower interest of the widow would not have been carried by the sale. The sheriff had no authority under the decree of the court and order of sale to sell her dower interest; it was only-by virtue of her declarations or her acquiescence that her dower estate was carried or extinguished and she was deprived of it.

In a case to which we are cited by counsel for plaintiff in error, the case of Fisher v. Mossman, 11 Ohio St. 42, it is said in the second clause of the syllabus:

“Where a mortgage on real estate is duly executed and recorded, and the mortgaged premises are subsequently sold at sheriff’s sale, under a judgment in favor of a third party, against the mortgagors, obtained subsequent to the recording of the mortgage; and the mortgagee is present at the sheriff’s sale, and keeps silent in respect to his mortgage: Held, that the mortgage being duly recorded, and there being no other, evidence of actual fraud, the mortgagee is not estopped, by his mere silence, from afterward claiming the benefit of his mortgage lien.”

But in that case, as disclosed'by the opinion, the mortgagee said nothing, and there was no declaration in his presence that the property was being sold free from incumbrances, or that any mortgage that he appeared to have upon the premises had been paid or was not a valid lien, or anything of that sort. No mention was made of the mortgage, and he was not called upon to speak touching his mortgage. As said by the court on page 47:

‘1 If the mortgagee had said or done anything to deceive or mislead the purchaser, or if, on being interrogated in respect to his rights or claims, he had then deceitfully kept silent, the case would be very different from what it now is.”

We are also cited to Pennsylvania Co. v. Platt, 47 Ohio St. 366 [25 N. E. Rep. 1028] the third paragraph of the syllabus which reads:

“In order to estop an owner, from asserting title to his property, by his declarations or conduct, it must appear, that he 'was, at the time, apprised of tbe true state of bis title;,that he knew, or had reason to believe, his declarations or conduct would be acted upon by another; that they were acted upon by such other persomin ignorance, of the title, and that such- person will be injured by allowing the truth of the admission by the declaration or conduct so acted upon by him, to be disproved. ’ ’

But that case upon its facts was widely different from the ease at bar, and in that case, Smiley v. Wright, supra, is reviewed and approved. The authority of that case has never been questioned; it has stood as the law of the state for a great many years. We are of the opinion that the ignorance of title mentioned in the case of Pennsylvania Co. v. Platt, supra, is a very different thing from the alleged ignorance of Mr. Niece touching his rights in the premises. Mr. Niece knew all that it was essential for him to know in order that he might estop himself. It was not necessary that he should know that, technically, the title to this property could not be conveyed by the sheriff; it was enough for him to know that he was the owner of this property, and that he knew and with that knowledge he encouraged Mr. Percy to believe it was being sold at the sheriff’s sale. lie also acquiesced in the statement of the sheriff that the equipment was being sold with the leases, and we think that he is clearly bound under the doctrine of estoppel.

Haynes and Wildman, JJ„ concur.


author: WILDMAN, J.

text:
    DAMAGES — LOST INSTRUMENTS — RAILROADS.
    [Wood (6th) Circuit Court,
    November 28, 1906.]
    Haynes, Parker and Wildman, JJ.
    Toledo, B. G. & So. Trac. Co. v. George L. Sterling.
    1. Parol Evidence of Lost Moving Permit Admissible.
    A person having lost the permit given to him by the mayor of a village to move a building in the street and proof of such loss having been made, parol evidence is competent to prove the existence and contents of such ' permit, so as to show that the owner was not trespassing in the use which he was making of the street.
    [For other cases in point, see 5 Cyc. Dig., “Lost Instruments,” §§ 22-27. — >. Ed.]

      2. Use of Undue Force in Removing Obstructions from Railroad.
    When railroad tracks are unduly obstructed in moving a building across: them, the company has no right to use undue force in removing such, obstruction and is liable for any damage done by such unlawful act.

      2. Liability of Person under Arrest for Injuries Done by Others.
    When a person about to move a building across the tracks of an electric railway is arrested by the railroad company and taken away from the place where the moving is being done, he is not liable for injury done to the wires of the (company by the moving of the building by others after his arrest.
    4. Requirement of Electric Railway Company, that Building be Moved over its Tracks at Night, Is Reasonable.
    A requirement by an electric railway company that the moving of a building across its track in the street shall be done in the nighttime, when there is no current on the wires and the company and traveling public cannot be inconvenienced thereby, would be a reasonable requirement, if insisted on by the company.
    5. Refusal of Owner to Advance Sum Demanded before Moving Building over Tracks, no Justification per se for Resisting Passage.
    Refusal by the owDer to pay in advance the $10 demanded, after consent to move the building across a railway track and the bringing of the building to the track, did not justify the railway employes in resisting the passage of the building, in the absence of previous notice that such a demand would be made, or of ground for believing that such sum could not be subsequently collected from the owner.
    6. Municipal Grants of Franchises to Street Railways, Subject to Rights of Public.
    While a municipality, in granting a franchise to an electric railway company, vests in the latter a right which cannot be qualified, impaired granted to any other person, by any subsequent action of the municipality, yet the right of the public to use street crossings over railway tracks always impliedly remains in the public.
    7. Moving a Building across Street is Subject to Municipal Restrictions.
    The moving of a building upon or across a street is not an ordinary use of the street, but is one which must be exercised subject to such restrictions as may be imposed by the municipal authorities.
    8. Substantial Justice between Parties having been Accomplished, Reversal for Errors Denied.
    The admission of incompetent evidence as to offers by many persons to sign the bail bond of the owner of the building, after his arrest for obstructing the track, would not justify a reversal of the judgment, where substantial justice has been done by it.
    [Syllabus approved by the court.]

      Errob to Wood common pleas court.
    Bope & Bope, for plaintiff in error.
    S. P. Harrison, for defendant in error.
   WILDMAN, J.

This case is not of much money consequence, for the amount involved is very small — only .$100 besides the costs; but the plaintiff in error, the traction company, seems to deem it of some importance as likely to result in a definition of the rights and liabilities of electric railway companies with reference to the moving of buildings along streets and across the tracks of the companies.

Much argument has been made before us as to the nature of such use of the street, and we are disposed to accept the view of counsel for plaintiff in error that the moving of a building upon a street is not an ordinary use, nor one, the right to which can be exercised at all times and without license from the proper authority.

The ease presented to us was brought by Mr. Sterling, the present defendant in error, against the traction company. In his petition in the court below, he alleged that on November 17, 1904, he was attempting to move a dwelling house owned by him across the railway tracks owned and operated by the defendant traction company, the present plaintiff in error, in the village of Yan Burén; that he had crossed a portion of said track when the defendant by its agents and servants in charge of a work car belonging to the defendant unlawfully, wilfully and maliciously ran said car into the truck of the wagon upon which said house was loaded, causing the house to drop, and damaged it in the sum of $100, and he asks for judgment in that sum.

The case was tried below to a jury, and resulted in a verdict in favor of Sterling.

The defendant, with some denials of the allegations in the petition, including a denial that it unlawfully, wilfully and maliciously ran this car into plaintiff’s house, by way of cross petition asserted that the plaintiff, in moving his house upon the tracks of the defendant, recklessly, carelessly and maliciously tore down and misplaced the feed trolley wires over and along the tracks of the defendant company, and blockaded said tracks and caused the cars of the defendant to cease running for a period of ten or more hours, to the great delay, hindrance and inconvenience of the defendant, the traveling public and the passengers upon defendant’s ears, to the damage of the defendant in the sum of $1,000, for which the defendant agked judgment. The claim in the cross petition did not prevail in the court below.

As already indicated, the use of a highway by persons in moving a building, is an extraordinary use, and one subject to reasonable restrictions. In the case before us, the plaintiff testified as a witness, as shown by the record, that prior to the moving of this house he obtained a permit from the mayor of the village of Van Burén.

At the time of the trial, it was stated that this permit had been lost, so that he was unable to introduce it in evidence. The testimony as to this matter came under objection, but was permitted by the court and an exception was taken by the defendant company. We think that the evidence was properly received. While the use of the highway for the purpose, described is an extraordinary use, it is still one which may be made lawful by license from the proper municipal authority, subject to the restrictions imposed by such authority.

Succinctly, we may state, as was said by Chief Justice Shaw, substantially, in the case of Day v. Green, 58 Mass. (4 Cush.) 437, that no man has a right to move a house along a public street; but it may be done under license from a municipal corporation, provided reasonable care is used to prevent the obstruction of the street. It is contended here, and with some show of authorities, that, where a municipality has granted a franchise to an electric railway company to construct and operate its railway along a public street, the municipality has thereby vested in the railway company a right which cannot be qualified by any action of the municipality; that is to say, that the municipality cannot subsequently impair that franchise or withdraw it, or grant to any other person a right to interfere with it. Probably this in a sense, is true, and yet the franchise itself is qualified to a certain extent. The right of the public to use street crossings over railway tracks is always implied or understood to remain in the public, notwithstanding the granting of the franchise for the construction and use of the tracks along the highway.

It is not necessary for us to determine, however, whether against the will of the railway company the village of Van Burén could grant a privilege to any person to move a house across the company’s tracks, in view of the fact that an arrangement was, by the undisputed proof, entered into between the company through its general manager and the plaintiff below, Mr. Sterling, for the crossing of the company’s tracks by the plaintiff Sterling with his house. We deem the ruling of the court below in the admission of the testimony of Sterling that he had been permitted by the municipality to move his house upon the street, a proper ruling. We think so because in the first place he proved the loss of the document which he describes, so that he might be permitted to give its contents if the original permit would have been proper; and in the next place he had a right to show that he was not a mere trespasser upon the highway, that he had been given by the municipality such rights and all the rights which it had power to give to any person traveling upon the highway in this manner and so to use the highway at the point where it intersected and crossed the defendant’s tracks.

Whether it was necessary for Mr. Sterling to make- this showing is perhaps not of any great consequence. We feel that in any event it was not prejudicial to the defendant. There is some conflict of evidence as to the precise arrangement which was made between Sterling and Mr. Smith, the general manager of the defendant company. They have both given their versions of the conversation had between them prior to the attempted moving of the house across the tracks. In substance, Mr. Sterling testifies that Mr. Smith gave him authority to move the house without any qualification other than that he should apprise the company of the time when he desired to move it, and that he should pay the expense of disconnecting or moving the wires of the defendant company so as to enable him to cross with his house. He says he inquired whether the company would ask payment for bringing its work car and men to the place where the track was to be crossed and was informed that they would not make that requirement.

Mr. Smith, on the other hand, testifies that he notified Sterling in this conversation that the company required that crossings of this nature should be made in the nighttime when the electric current could be cut off and the wires disconnected without danger, and also that Mr. Sterling would be required to pay the entire cost of disconnecting the'wires or so moving them as to enable the crossing to be made, including the cost of bringing the work train and crew there.

I have not, of course, attempted to give the testimony of either of these witnesses in their exact phraseology, but have endeavored to give the substance of their statements as nearly as I can recall them. The issue as to this arrangement, as with all other matters involved in the case, was submitted to the jury, and we may fairly assume that the jury found in favor of the plaintiff, accepting the version given by the plaintiff below.

Neither Mr. Smith nor Mr. Sterling says .that the payment of the cost of disconnecting or changing the wires so as to afford facilities for the passage of the house across the track was to be a condition precedent to the moving of the house across; nor does Mr. Sterling seem to have been notified by the general manager of the company that he would have to make any deposit of any money in advance, or furnish any security for the payment of any expense.

Under these circumstances, Mr. Sterling says that he had notified the company that he desired to cross at a certain time; he was somewhat delayed, but finally brought his house to the track of the company along the public highway, and the company being notified, sent a work car with a crew to the point for the purpose of doing what was expected of the company in the matter, in aid of this movement of the house across the track.

In the conduct of the company at this point, no claim was made •that the plaintiff should have brought his house there in the nighttime, and the regulation or requirement of the company that the house should be moved only in the night season, if there was any such regulation or requirement, seems to have been waived.

In passing, I might say that it is our judgment that if such a requirement had been made and insisted upon, it would seem to be not an unreasonable one, both for the protection of the public from any danger which might be involved in the removal or disconnection of the wires at a time when the current was on, and also to avoid injury to the company by the interruption of its travel, and the inconvenience of passengers in their transportation and the right of the public to travel along the defendant company’s track in its cars. Whether or not it would have been a reasonable requirement that a person should make a deposit of estimated expense with the railway company prior to being permitted to cross, is a matter which we are not quite prepared to determine at this time and with regard to which perhaps any expression made at this time by this court would be of little binding weight in view of the fact that under the arrangement made, there was no such requirement as I have stated. We are inclined, however, to the view that at least in a case of irresponsible persons from whom no collection could be made by ordinary process of -law, there would be no impropriety in the railway company’s insisting upon some security that' the expense would be paid and that the company would not be compelled to render the' service or incur necessary expense until so secured. '

All this discussion is suggested by the fact that when Mr. Sterling had brought his house to the track and the company had seemingly waived other conditions and requirements and was present with its work car and crew for the purpose of aiding in the moving of the house, the question of payment in advance or the giving of some sort of security by Mr. Sterling was first raised by some employes of the railway company. It was now for the first time insisted that Mr. Sterling should pay to the company the sum of $10 or, in default of that, that he should give some indemnity or security for the payment to them of the expense of disconnecting and raising their wires. He says that he was not prepared to do this at that time; he had not that amount of money and declined to comply with the demand.

He testifies that the noon hour having arrived and the employes of the traction company refusing to do anything until they had eaten their dinner or luncheon, he unhitched his horses from the trucks which were employed in the moving of the house and that there was a suspension of action for some little time; subsequently one of the employes of the company got upon the roof of the house and Mr. Sterling says he supposed they were about to permit him to go across without any further demand and that this man went upon the roof for the purpose of lifting the wires above the house so that the house could pass under. Thereupon he moved his house forward to such a point-that certain skids upon which the house rested, projected to some extent across the defendant’s track. Thereupon the man who was upon the house came down, the house and the wagon trucks remaining in that position for the further action of all parties. A crowd had gathered by this time; the company demanded the removal of this obstruction from the track and ■with this demand, Mr. Sterling did not comply; whereupon, after some talk between them, the work ear of the company was moved, first with no very great force, against the truck, striking the skids, but after-wards with sufficient force to strike it and do it some damage. The truck which was struck seems to have been broken. from the wheels; the house was dropped at one corner; the chimney fell; the plastering was broken in the house, and other damage done which, as the witnesses testified, amounted to considerably more than the amount charged in the plaintiff’s petition and sued for.

This is a general statement of the transaction as it occurred up to that point. Later, at some time in the following night, the house was moved across the defendant’s tracks and some injury was thereby occasioned to the company’s wires. Some hangers were pulled off, or pulled loose and there was other damage claimed by the company, but the evidence utterly fails to disclose that the plaintiff had any connection with it. Indeed during the progress of these acts the company, having failed to obtain an injunction from the court in time to restrain the moving of the house across the tracks, caused the arrest of the plaintiff, 'which resulted in his being taken away from the scene of the operations for some hours.

One of the contentions of the plaintiff in error, the traction company, is, that all the evidence of the plaintiff’s arrest was improperly admitted by the court and that it created a prejudice in the minds of the jury, against the defendant company. This has been a very serious question in our mináis and we should not be disposed to hold that this evidence could properly be admitted unless upon one of two grounds: The plaintiff had charged in the petition that this conduct of the defendant company was malicious; there was, however, no urging upon the court that there should be punitive damages, nor did the court in its instructions advise the jury to consider such; the element of malice then was of no especial consequence, and we are driven to the other consideration, and that is, that there was some evidence that Mr. Sterling was not present at the time that the house was finally moved. The defendant had made a claim for damages against him for injury to its wires and the interruption of traffic, etc.

Our judgment is, that, under all the circumstances in the placing of the house where he placed it, he was not guilty of any violation of the defendant’s rights and that the company would not be entitled to recover from him damages by reason of his conduct. The company may have been, or may not have been entitled to damages against some persons for the moving of the house across the tracks in the night season wherein some damage was done to the company’s wires, but there is not a particle of evidence in the case to connect the plaintiff with that, and we are inclined to think on the whole, that it was proper enough for him to show the fact that he was under arrest and was taken away to a distant point as a sort of an alibi — as showing that he had no part in whatever feature in this transaction might be deemed to be unlawful. . There were one or two circumstances connected with this arrest, — the admission of which in evidence was of very doubtful propriety, but under all the circumstances of the case we are not inclined to deem their admission so substantial and important as to .justify a reversal of the judgment of the court below on that ground.

One of the questions concerned the offer of a large number of persons to go bail for Sterling when he was arrested. This evidence should not have been permitted to go to the jury in our judgment, and it might be reversible error were it not for another consideration which we have given to the whole matter and to which I will refer.

There was no evidence by the company as to what would be the reasonable expense of disconnecting these wires or to so move them as to permit the passage of the plaintiff’s house. It is not in evidence that the sum of $10, the price demanded, was a reasonable price for the work. There is no evidence thát Mr. Sterling was insolvent, — that a claim for $10, or even more could not have been collected from him by legal process. We think then that the company was not justified in the demand that it made and had no right to make such demand at the time and if the company deemed Sterling irresponsible he should have been so notified before the time he brought his house to the track and made his preparations for moving across.

But, however, we may deem all these preliminary questions, there can be no possible question that in the moving of the house, if the company had a right to treat it as an obstruction upon its track, no undue force could be used in removing it. There is no very adequate reason for believing that the company could not have pushed the house back; it was resting upon these trucks with wheels, and it would have required no great force to move the house far enough back to take the skids entirely away from the position in which they were obstructing the passage of cars along the track. No explanation is given of the failure to do this.

It is perhaps true, as stated, that there was a crowd present and the crowd was somewhat threatening in the expressions used, and in its demeanor. There is some conflict on this point, but we may assume that the claims of the company in this respect were well founded. Even this, however, hardly explains to the jury the failure of the company to attempt to move the house by gentler means than it did and without in anyway injuring it. The car was butted against the house and did considerable mischief, as I have stated. We think that the jury might fairly have inferred that the company used undue force.

Now I stated that there was a reason why the error to which I have referred might not be deemed sufficient to justify a reversal of the case below. We think that under all the circumstances of this case the verdict was an entirely proper one. The evidence discloses greater damage to the plaintiff than that which he sued for and for which judgment was rendered. The result of a new trial, should the verdict be set aside, would probably be, and we think ought to be, the rendition of the same verdict, and, believing that substantial justice has been done under all the circumstances, we are disposed to allow the verdict, and judgment of the court below to stand.

Haynes and Parker, JJ., concur.


author: NORRIS, J.

text:
    ERROR — PROCESS.
    [Crawford (3rd) Circuit Court,
    September, 1906.]
    Norris and Hurin, JJ.
    Anna M. Andress v. Eliza Greenfelter, Guardian
    Actual Issuance of Summons Required by Rev. Stat. 5032 (Lan. 8547).
    The filing of a petition in error with praecipe for summons within the four months, is not a sufficient compliance with Rev. Stat. 5032 (Lan. 8547) unless summons actually issues; and no summons having been issued and no service obtained-within the four months limitation, a motion 'to strike the petition in error from the files will be sustained.
    [For other cases in point, see 7 Cyc. Dig., “Process,” §§ 11-43. — Ed.]
    [Syllabus by the court.]
    Error to Crawford common pleas court.
    W. J. Geer, for plaintiff in error.
    C. H. Henkel and J. W. McCarron, for defendant in error.
   NORRIS, J.

An action in error is a civil action. Under Rev. Stat. 5032 (Lan. 8547) a civil action must be commenced bv the filing of the petition and causing summons to be issued thereon.

Petition in error was filed in this court by the plaintiff in error, Anna M. Andress, to reverse the judgment of the court of common pleas of this county against her, which judgment is of the date of May 17, 1906.

The petition in error was filed on July 17, 1906, accompanied by the requisite exhibits purporting to indicate the error complained of, together with a praecipe for summons in error. This matter is submitted at this juncture upon motion to strike the petition in error from the files, on ground that no summons in error issued in this action. The issuing of the summons in face of a motion to dismiss for want of Summons must affirmatively appear.

This motion we are compelled to sustain. Revised Statute 6713 (Lan. 10305) makes provision for the manner in which proceedings to obtain review, etc., of a judgment shall be commenced. The action in error is instituted by filing the petition in error, upon which summons in error shall be issued and served unless issue and service be waived as provided in Rev. Stat. 6714 (Lan. 10306).

Revised Statute 6723 (Lan. 10315) by its provisions makes limitation for commencement of actions in error, with certain exceptions, which do not include the case at bar, to the period of four months, next after the rendition of the judgment complained of.'

Revised Statute 4987 (Lan. 8502) gives definition to what shall constitute the commencement of an action, which, as applied to the action at bar, there being no waiver nor issuing of service of summons, would relate to the date of the summons served on defendant in error. By the provisions of Rev. Stat. 4988 (Lan. 8503), the attempt to commence the action is deemed equivalent to commencement thereof when the party, diligently endeavors to procure service, and service actually follows within sixty days after the attempt. These sections are held to be applicable to actions in error equally and the same as to civil actions in which the impleaded issues of litigants are adjudged by courts upon the evidence.

Under the holding in the case of Balt. & O. Ry. v. Ambach, 55 Ohio St. 553 [45 N. E. Rep. 719], to bring .a case within the saving clause of Rev. Stat. 4988 (Lan. 8503) a summons must be caused to be issued before the expiration of the statute of limitations governing the cause of action. In the case of Ross v. Willet, 54 Ohio St. 150 [42 N. E. Rep. 697], it is held that the provisions of Rev. Stat. 4988 (Lan. 8503) are applicable by analogy to proceedings in error.

In this case the summons was not issued within four months after the judgment complained of, in which actions in error may be commenced. So that the attempt to commence the action, which is complemented by the filing of the petition and causing summons to issue was not made. What the «statute or Supreme Court means or what act it enjoins on a party by the expression “causing summons to issue” or what the party must do other than file petition and praecipe we cannot define nor intimate. Whether unreasonable or not it seems to be the law, that in order to commence or make the attempt to commence an action in error, a summons must be caused to be issued, within four months next after the rendition of a judgment complained of. This has not been accomplished and the motion must b'e sustained. We have endeavored not to reach this conclusion. We are driven to it by the stress of the decisions of the Supreme Court, which hold in effect that though the party be without fault and though he exhaust every means at his command to cause summons to issue, if the fact remain that the summons be not issued within the period limited, no review can be had, and the party looses all rights which review of the. case might secure or restore to 'him.

Hurin, J., concurs.