author: 'WINCH, J.

text:
    NUISANCE — DAMAGES.
    [Cuyahoga (8th) Circuit Court,
    June 8, 1903.]
    Hale, Marvin and Winch, JJ.
    B. Stroth Brewing Co. v. Emily Schmitt.
    1. Measure of Damages for Injuries From Abatable Nuisance.
    Where a nuisance is permanent in its nature, the measure of damages for injuries to adjoining property caused thereby is the difference in value of the property before and after the acts complained of; but where the nuisance is continuing or abatable, this rule does not apply, and the rule of damages is the amount the owner of the property is injured in the use of it during the continuance of the nuisance.
    2. Nuisance Created by Livery Stable Abatable and not Permanent.
    Where a building on a lot adjoining residence property is used as a stable, from which foul smells and flies and noises from the stamping of horses emanate to the annoyance and disturbance of an adjoining resident owner, its character is that of a continuing or abatable and not a permanent nuisance.
    Error to the court of common pleas.
    Kline, Carr, Tolies & Goff, for plaintiff in error.
    John C. Hutchins, for defendant in error.
   'WINCH, J.

The parties own adjoining lots on Case avenue, in the city of Cleveland. The brewing company built a substantial brick structure upon its premises, which comes out to the street line and is within eighteen inches of Mrs. Schmitt’s residence. The brewing company equipped its brick building as a stable, with over twenty stalls, and is keeping its horses therein. Mrs. Schmitt, complaining that the floor acts as a sounding-board upon which the horses stamp at night, disturbing her sleep; that the flies and foul smells from the stable invade her dwelling and make it almost uninhabitable, brought suit against the brewing company and recovered judgment against it for $1,000.

The brewing company now asks that this judgment be reversed because, as it alleges, the trial judge misconceived the rule of damages applicable to the case, and therefore erred both in ruling on evidence and in his charge.

Our attention is called to the following testimony:

“Q. I will ask you about what was the value of that property as a residence, before the barn was constructed?

(Objected to by the defendants; which objection was overruled by the court; to which ruling the defendants then and there excepted.)

“A. I consider that property, before that barn was put up there, cheap at $4,000. If it was mine, I would not have sold it for that.
“Q. How much less is it worth now, if you know?

(Objected to; objection overruled, to which defendants then and there excepted.)

“A. I would not take it today for $1,000, if they would offer it to me.”

And to that part of the charge which read as follows :

“You have had some testimony on the value bf this property; some testimony as to the value before, and the value now; perhaps not as satisfactory in all respects as you would like; but from what testimony you have had, you would have to determine how much the plaintiff was damaged by reasons of these things of which I speak — the things which caused hurt, inconvenience, annoyance or damage.”

It is conceded that if the nuisance complained of is a permanent, as distinguished from a continuing or abatable, nuisance, there was no error in the charge, although the answer to the second question quoted was objectionable. There was no request to withdraw this answer from the consideration of the jury. But counsel for plaintiff in error contend that the nuisance arises not from the building itself; but from the use it is put to and the manner in which if is used. They say that the brewing companj'- may cease to use the building as a stable, or continuing its use for such purpose, may abate the offensive smells and other annoyances which arise therefrom; that, although the structure is a lawful one and the use it is put to is lawful, the brewing company so uses its property as to injure Mrs. Schmitt — in other words, that the nuisance is continuing and abatable. With this view of the case we agree. As to the measure of damages under such circumstances, let us examine the decisions in Ohio.

In the case of Harsh v. Butler, Wright 99, the plaintiff complained of an injury to his mill and land, by the defendant’s dam flooding water back upon it, and Judge-Wright charged the jury that if the plaintiff had proved the injury, he was entitled to damages in such an amount as would' compensate him for the injury from the time of the erection of the dam up to the bringing of the suit. “It is hot the price of the land that you are to give in damage, but a sum equal to the injury arising from the loss of the use of it, with the expense of prosecuting the suit for redress.”

In the case of Thayer v. Brooks, 17 Ohio 489, 493 [49 Am. Dec. 474], Judge Birchard said:

“The injury complained of in the declaration is, that the mill was rendered less useful for want of the water which had been wrongfully diverted, and became much injured and deteriorated in value. The court instructed the jury that the owner of the mill might recover for the injury sustained by the diminution in value of the mill-site, consequent upon the diversion of the water. This was going too far.”

In the case of Toledo v. Lewis, 9 Circ. Dec. 451 (17 R. 588), the property of the plaintiff was injured by the city filling up a street and raising catch-basins of sewers, whereby the drainage of her lot was destroyed and the water set back on her lot, making the same unwholesome and untenable, and Judge Haynes held:

“The measure of damages is the difference in the rental value of the property for four years prior to the action and for injuries to health during the same period.”

This case was affirmed by the Supreme Court without report. Toledo v. Lewis, 52 Ohio St. 624 [44 N. E. Rep. 1133],

In the case of Baltimore & O. Ry. Co. v. Lersch, 58 Ohio St. 639, 652, 653 [51 N. E. Rep. 513], damages were asked because the railroad company ran its cars and locomotives along a switch track close by the plaintiff’s business building and improvements, causing discordant noises and filling said premises with smoke, vapor and dust, and emitting sparks of fire, to the damage and discomfort of its occupants. As to the measure of damages the Supreme Court says:

“* * * where * * * the plaintiff in his petition sets forth specifically the acts which have injured his property and the particular injuries such property has sustained, his recovery should be limited accordingly. Taking this view of the matter as the correct one, it is manifest that the court of common pleas erred in permitting the plaintiff below to introduce, as the measure of damages, evidence of the difference between the value of the property before the railroad occupied the street with its track and its value afterwards.”

In the case of Mansfield v. Hunt, 10 Circ. Dec. 567 (19 R. 488), it was held by Judge Voorhees :

“When the nuisance complained of is of such a character as can be removed by removing the cause thereof, or for the continuance of which a second or third action may be maintained,, or which may be abated by the order of a competent court, and the injury to the premises already inflicted is not of a permanent nature, the rule that in actions for nuisance the measure of damages is the difference between the market value of the land before and after the occurrence of the injury, is not the rule for assessing damages.”

This was an action to recover damages for discharging sewage into a natural watercourse running through the lands of the plaintiff.

To the same effect are the following authorities:

Uline v. Railway Co. 101 N. Y. 98 [4 N. E. Rep. 536] ; Shirely v. Railway Co. 74 Ia. 169 [37 N. W. Rep. 133; 7 Am. St. Rep. 471]; Randolf v. Bloomfield, 77 Ia. 50 [41 N. W. Rep. 562; 14 Am. St. Rep. 268] ; Robb v. Carnegie, 145 Pa. St. 324 [22 Atl. Rep. 649; 14 L. R. A. 329; 27 Am. St. Rep. 694] ; Schlitz Brew. Co. v. Compton, 142 Ill. 511 [32 N. E. Rep. 693; 18 L. R. A. 390; 34 Am. St. Rep. 92].

In the light of the foregoing cases there was error to the prejudice of plaintiff in error, both in the admission of evidence and in the charge, for which the judgment is reversed.


source: Caselaw Access Project

author: HAYNES, J.

license: Public Domain

text:
    NEGLIGENCE — SIDEWALKS.
    [Lucas (6th) Circuit Court,
    October 3, 1903.]
    Adelia Bloom v. Toledo.
    Liability of Municipality for Injuries Caused by Accumulation of Ice in Sidewalk Depression.
    In an action against a city by a person injured .by a fall upon a sidewalk caused by ice which had accumulated in a depression therein produced by the sinking of one of the stones, the question whether such depression was or was not a dangerous defect is for the jury and is not a question of law. The rule, that such minor obstructions as ice and snow upon the sidewalk create no liability against a municipality because of their fleeting character, does not apply when there are defects in the sidewalks themselves. •
    Error from court of common pleas.
    Peter Emslie, for plaintiff:
    It is the duty of a city to exercise an active vigilance to keep the sidewalk in a reasonably safe condition, and such has been the doctrine of the numerous cases which have followed the case of Todd v.. Troy (City), 61 N. Y. 506.
    Where one was injured by falling on a portion of a city sidewalk made of glass and iron and worn smooth and slippery in consequence of its smoothness it was held he could maintain an action against the city. Cromarty v. Boston (City), 127 Mass. 329 [34 Am. Rep. 381].
    It is evident that the defective condition of the walk at this point is due to the negligent manner in which it was constructed and at the same time no doubt to natural cause that this condition is not averred the proximate cause yet it concurs, there being one or more causes it is sufficient if aify one be averred. Huber v. Huber, Wood county circuit court [unreported].
    The doctrine that a city is not liable for injuries caused by natural accumulation of ice or snow has never been the rule in Ohio provided the city had actual or constructive notice of the condition and reasonable time had elapsed after the accumulation and formation of ice thereon. We contend that the time is a question for the jury after it has commenced to run; that the negligence is a question for the jury. Was plaintiff injured by reason of the facts complained of in the petition is a question for the jury. Conneaut (Vil.) v. Naef, 54 Ohio St. 529 [44 N. E. Rep. 236] ; Russell v. Toledo, 10 Circ. Dec. 367 (19 R. 418) ; Leipsic (Vil.) v. Gerdeman, 68 Ohio St. 1.
    M. R. Brailey, for defendant.
   HAYNES, J.

In this case a petition in error is filed to reverse the action of the court of common pleas. It is a case in which Adelia Bloom is plaintiff and the city of Toledo defendant. It appears from the evidence in the case (briefly) that there existed at the time of the occurrences complained of, in the sidewalk upon the easterly or northeasterly side of Lagrange street, at or near the junction of that street with Erie street in this city, a depression in the sidewalk, wherein, in times of rain or melting snows, water would accumulate and stand and was liable to, and did, be.come frozen and slippery, and that this state of affairs had existed for a considerable time prior to February 1,1902, at which time, in the evening, the plaintiff was passing along that street with her husband, and stepped upon this icy spot, slipped and fell, receiving severe injuries from which she was laid up for a long time and from which she was for a long time disabled.

Upon the tidal of the case, testimony having been given to establish these facts, the court directed a verdict for defendant, the city of-Toledo, and thereupon a petition in error is prosecuted to this court for the purpose of reversing the action of the court below.

The testimony upon the trial showed that there was this depression. It seemed that one end of the stone had become sunken lower than the rest of the sidewalk, and therefore it retained the water which fell during rains, or the water which came from the melting of snows, or the water which ran into it from the adjacent property.

We suppose the theory of the trial court was, that this obstruction was of such a nature that the city was not liable, and the line of argument is, that in regard to these minor obstructions, arising from snow and ice upon the street (liable to come today and be gone tomorrow) that there can be no liability upon the part of the city. I do not propose to go into a discussion of all the cases that have been cited in regard to the matter, but I simply point out this fact, that in all these cases it would seem that the court confines its decisions to cases where there are no defects in the sidewalks (along ordinary sidewalks there may become, by reason of snow storms or sleet storms, ice, in a very few minutes, and there may be accumulations of water that follow a rain or from snow that has melted within a very short time), and the courts have,held, in cases of that kind, that the city is not liable. But when cases arise from defect in a sidewalk and the sidewalk itself becomes the source of the evil, the rule is different; and we think it should be different. It is true that this unevenness covered a very small space; but it is in the sidewalk (which is not more than four or five feet wide), and it is certain that it was large enough so that a person could receive a very severe injury by stepping upon a spot of that kind, and it certainly should be looked after and remedied just as much as though half of a plank were gone; it is just that class of defects which require the attention of the city, and too often, I fear, just that class of cases which are overlooked by the officers of the city.

After a full discussion- of this case we refer to the case of Russell v. Toledo, 10 Circ. Dec. 367 (19 R. 418), decided in the January term, 1899, by this court, in which Judge King delivered the opinion, and in which he discusses these questions very fully and very clearly. I will simply say that in deciding this case we follow the law as laid down in the decision of thát case and affirm it and abide by it. The question whether this defect was a matter which was dangerous, or not, is a matter which should have been submitted to a jury, and is not a question of law that the court, under the circumstances, should take from the jury.

The verdict will be set aside and the judgment reversed and the cause remanded for a new trial.


text:
    WORDS AND PHRASES — INTEREST.
    [Lucas (6th) Circuit Court,
    July 3, 1903.]
    State, ex rel. William W. Crapo, Trustee, v. Peter Parker (Treasurer).
    1. Levying and Collection of Taxes a "Transaction'-’ Within Meaning of Sec. 3181 Rev. Stat.
    The levying of taxes and the collection of the same by judgment is a “transaction” within the meaning of Sec. 3181 Rev. Stat., which provides for interest upon written instruments,.judgments, etc., “or other transaction.”
    2. Judgment in Action to Enforce Tax Lien on Realty Draws Interest.
    A judgment in an action brought to enforce a lien for taxes on real property, will draw interest from the time it was taken until its payment.
    W. H. A. Read, C. F. Watts and H. A. Merrill, for relator:
    W. G. Ulery, for defendant.
   HAYNES, J.

In this case a petition is filed for a writ of mandamus to compel the defendant, Peter Parker, treasured of Lucas county, to receive the amount of a certain judgment according to the amount stated in the judgment and without any accruing interest upon the judgment; the real question being whether a judgment in a suit brought for the recovery and enforcement of a lien for taxes against real estate, will bear interest from the time it was taken until its payment.

We have stated our doubts as to whether this is a case where the proper- remedy is mandamus; but, waiving that, we. have examined the question and come to some conclusions in regard to the case.

It is claimed on behalf of the relator that the right to recover interest is founded upon Sec. 3181 Rev. Stat. Assuming that to be true, we have examined the statute, which is as follows:’

“In cases other than those provided for in the two preceding sections, when money becomes due and payable upon any bond, bill, note, or other instrument of writing hereafter made, upon any book account, or settlement hereafter made between parties, upon all verbal contracts hereafter entered into, and upon all judgments, decrees, and orders of any judicial tribunal for the payment of money arising out of a contract hereafter made, or other transaction which hereafter occurs, the creditor shall be entitled to interest at the rate of six per cent, per annum, and no more.”

And a discussion is made upon the definition or proper understanding of the word “transaction.” It is claimed on the part of the relator that the levying of taxes and the collection of the same by judgment is not a ■“transaction” within the proper definition of the word, and that there being no statute which provides for the collection of interest upon taxes, or upon a judgment for taxes, that therefore no interest can be legally allowed. I have said (assuming that this statute governs, and' I am of opinion that this does govern) at- common law the matter of interest was entirely a question of damages, but it has come to be in this country a matter of contract and very largely a matter of statutory right. Now this is not a bill, or a note, or any of these matters that are set forth in the different sections of the statute, and we think it is a proper statement to make that it must be included within the term “transaction.”

If we look at Anderson’s Dictionary of Law, at page 1041', under the heading “Transaction,” we find this definition to be given:

“Whatever may be done by one person which affects another’s rights, and out of which a cause of action may arise. It is broader than ‘contract.’ A contract is a transaction, but a transaction is not necessarily a contract. In a statute limiting counterclaims to demands arising out of the same transaction: some commercial or business negotiation; not a wrong of violence or fraud.”

That is, in relation to counterclaims growing out of the same transaction, and according to that, it must be some commercial or business negotiation, not a wrong of violence or fraud. But, under this first definition, “Whatever may be done by one person which affects another’s rights,” the levying of a tax made by the supreme authority of the state and by the officers of the state placed upon the duplicate, by the statute becomes a lien upon property. The statute states that the treasurer is authorized to bring suit, if taxes are not paid, and to force the lien to judgment and decree for the sale of the property, which would seem to come explicitly within the definition of “Whatever may be done by one person which affects another’s rights, and out of which a cause of action may arise.”

Our ancient friend, Webster, has a definition also, at page 1402 :

“The doing or performing of any business; management of any affair. That which is done; an affair, as, we are not to expect in history a minute detail of every transaction. (Civil law.) An adjustment of a dispute between parties by mutual agreement. Synonym; proceeding; action; process. A transaction is something already done and completed; a proceeding is either something which is now going on, or, if ended, is still contemplated with reference to its progress or successive stages. The proceedings at the trial of Lord Russell were marked by deep injustice, and they led to a transaction, in his beheading, of flagrant enormity.”

It strikes us that the definition in regard to the proceedings upon the trial of Lord Russell and his execution, was a very fortunate illustration of the subject; that was a proceeding by one party which resulted in the decapitation of Lord Russell, and the other is a proceeding by one party which often results in the decapitation or taking in law of a man’s property. At any rate, it is a definition and illustration given by the dictionary — an act by one party which affected another and out of which an action might arise and judgment may be taken.

It was always supposed that every judgment drew interest. It was argued by counsel that it is usually stated in the decree that the judgment shall draw interest. Now, our experience and our understanding is to the contrary. In an ordinary judgment or a decree taken for a specific amount, it has not been customary, so far as we know, to make a statement in regard to interest. The decree finding the amount due and declaring a lien upon the premises is a judgment, and the general terms and meaning of a judgment has been defined in the case of Doyle v. West, 60 Ohio St. 438.

I think it will be found that if the definition of the word, “transaction” as claimed by counsel for the relator, should prevail, that there are a large number of judgments which will not draw interest. As, for instance, judgments for torts, or for negligence, that do not arise out of any agreement between parties. In cases of assault and battery, libel, slander and all that class of cases, they are matters which are not consented to by the' other party nor have they arisen out of any agreement or arrangement

between the parties, but they are acts of one party committed upon the other in violation of the rights of one party, which gives him a right of action, and that right ,of action is merged into a judgment, and that judgment should certainly be entitled to draw interest on the principles of equity and the true and proper construction of the statutes.

Without discussing the matter farther, we are very clearly of the opinion ourselves that this decree does draw interest from the time it was taken, and that has been the understanding of this court. The case referred to, Wheeling & Lake Erie Railroad Co. v. Wolfe, 7 Circ. Dec. 201 (13 R. 374), we assume to be the law of this court. The point decided there was another point and followed a decision which was'made by the court in the seventh circuit, in Belmont county, and was originally a question of penalties, and not a question of interest, except as the question of interest may have been drawn in prior to the. time the decree was taken.

The petition of the plaintiff for a writ of mandamus will be dismissed.


author: WINCH, J.

text:
    STREETS AND HIGHWAYS — COUNTY COMMISSIONERS.
    [Medina (8th) Circuit Court,
    October 15, 1903.]
    Hale, Marvin and Winch, JJ.
    J. E. Low et al. (Comrs.) v. Peter Leichty et al.
    County Commissioners Have no Jurisdiction to Prevent Obstruction of Township Roads.
    County commissioners, being restricted to powers expressly conferred by statute, have no authority to bring an action to restrain persons from obstructing township roads, under Sec. 845 or 863 Rev. Stat., the former authorizing them to bring actions to prevent injury to “public state and county roads,” and the latter, to bring suits in certain cases for injuries to “bridges, roads and buildings.” Their power as to control of public highways is limited by ■ statute to state and county roads.
    Error to the court of common pleas of Medina county.
    Licey & Licey, for plaintiffs in error;
    A county road may be established by order of the county commissioners in pursuance of the statutes, by prescription', by dedication or upon the principle'of estoppel in pais. Reed v. Harlan, 2 Re. 553 (3 W. L. M. 632) ; Reed v. Northfield, 30 Mass. (13 Pick.) 94; Steadman v. Southbridge, 34 Mass. (17 Pick.) 162; Hicks v. Fish, 12 Fed. Cas. 116 (4 Mason 310); Brownell v. Palmer, 22 Conn,,107; Penquite v. Lawrence, 11 Ohio St. 274; Post v. Pearsall, 22 Wend. [425] 442; Rex v. Barr, 4 Camp. 1G; Williams v. Presbyterian Soc. 1 Ohio St. 478; Alder men (Mayor) v. United States, 35 U. S. (10 Pet.) 662; Wright v Turkey, 57 Mass. (3 Cush.) 290; Cincinnati v. White, 31 U. S. (6 Pet.) 431; Noyes v. Ward, 19 Conn. 250; Macon (Mayor) v. Franklin, 12 Ga. 239; Cole v. Sprowl, 35 Me. 161; Ingersoll v. Herider, 12 Ohio 527-(Reed v. Harlan, distinguished.)
    In Hamilton Co. (Comrs.) v. Noyes, 35 Ohio St. 201, fully covers this. Section 845 Rev. Stat., which was under the old statutes Sec. 7 of an act to “establish boards of county commissioners and prescribe their duties,” and on page 207 Judge AVhite goes on to say that “whether the board of county commissioners can maintain an action in their own name or not is to be determined by the nature of the cause of action and their relation to the subject matter out of which it rises, and it seems to us, the true rule is that when a cause of action for the use or benefit of the county arises out of a subject matter within the control of the commissioners, suit may be brought thereon in the name of the board, unless by statute die suit is required to be brought in some other mode. This principle is recognized by the cases already referred to and is well supported by other authorities.” Therefore the commissioners having control of- the public highways, bridges and ditches of their respective counties has full, entire and complete control over them and has power sufficient to maintain them, bridge them, protect them and prevent injury to all or any public roads, bridges or ditches within their boundaries. Section 863 Rev. Stat., “Commissioners shall bring suit in certain cases for injuries to bridges, roads and buildings,” seems to us to be full and complete and applicable to the case at issue. AVe cite the following cases on this section, to wit, Little Miami Ry. Co. v. Greene Co. (Comrs.) 31 Ohio St. 338.; Citizens’ Elec. Ry. Co. v. Commissioners, 56 Ohio St. 1; State v. Railway Co. 36 Ohio St. 434. (This is where an action in equity or restraining order is maintained and enforced.) In further supporting Sec. 845 Rev. Stat., “County commissioners bringing suit arising out of the subject matter,” we cite also the following cases in addition to Hamilton Co. (Comrs.) v. Noyes, 35 Ohio St. 201; Shanklin v. Madison Co. (Comrs.) 21 Ohio St. 575; 18 Johns. 406; State v. Orr, 16 Ohio St. 522; Carder v. Fayette Co. (Comrs.) 16 Ohio St. 353; The Levy Court v. Woodward, 69 U. S. (2 Wall.) 501; 4 Hill 136.
    Lee Elliott, for defendants in error:
    The general authority given to the commissioners by Sec. 845 Rev. Stat. applies only to public state and county roads, etc., which would not include such a road as described in the petition, as it is not alleged that it is either a state or county road.
    Section 863 Rev. Stat. authorizes the commissioners to prosecute an action to recover damages for injuries or obstruction, but does not contemplate an action such as the present for an injunction to restrain threatened injuries or obstructions.
    Prior to the enactment of Sec. 8C3 it was held that the commissioners had no authority to begin suit against persons who had carelessly or willfully destroyed roads or bridges. Gallia Co. (Comrs.) v. Holcomb, 7 Ohio (pt. 1) 232.

    Corporations have such powers, and such only, as the act creating them confers; and are confined to the exercise of these expressly granted, and such incidental powers as are necessary to carry into effect those expressly conferred. Straus v. Insurance Co. 5 Ohio St. 59, 60; Gallia Co. (Comrs.) v. Holcomb, 7 Ohio (pt. 1) 232.
    Neither a county nor the board of commissioners of a county is a corporation proper; it is at most but a local organization which, for purposes of civil administration, is vested with a few functions characteristic of a corporate existence. But it is an established rule, that a grant of powers to a corporation proper shall be strictly construed; and it seems to us that this rule is at least equally applicable in any inquiry into the powers and capacities of a quasi corporation, whose powers and functions are, from.their very nature and object, more strictly limited than those of a corporation proper. Hamilton Co. (Comrs.) v. Mighels, 7 Ohio St. 109, HO; State v. Hancock Co. (Comrs.) 11 Ohio St. 183, 190; Delaware Co. (Comrs.) v. Andrews, 18 Ohio St. 49, 6.4; Mahoning Co. (Comrs.) v. Railway Co. 45 Ohio St. 401, 403 [15 N. E. Rep. 468],
    Another objection to the maintenance of this action is that by Sec. 6921 Rev. 'Stat. the obstruction of a public road or highway is made a criminal offense punishable' by a fine of .not more than $500, and it is a well established rule that equity will not enjoin torts or crimes. Spar-hawk v. Railway Co. 54 Pa. St. 401; Crighton v. Dahmer, 70 Miss. 602 [13 So. Rep. 327; 35 Am. St. Rep. 670, 681]; 16 Am. & Eng. Enc. Law (2 ed.) 363; Sawyer, Ex parte, 124 U. S. 200 [8 Sup. Ct. Rep. 482],
    The county commissioners have neither the property, possession, nor right of possession in a public bridge. They have no authority nor control over it, even for the temporary purpose of repair. The most they can do is to appropriate money from the county treasury, and enter into a contract to build or repair a public bridge; but when built or repaired, the possession and control are in the inhabitants of the road district,' under the direction and supervision of the supervisor. There is far more reason for saying the supervisor or the inhabitants of the road district may maintain the action for an injury to the road ór bridge within his district, than to say such right of action is vested in the plaintiffs. Gallia Co. (Comrs.) v. Holcomb, 7 Ohio (pt. 1) 232, 234.
    That boards of county commissioners in Ohio have such powers and such only as are conferred by statute, and may maintain such actions and Such only as are by statute authorized, is too well established to admit of' controversy. Mahoning Co. (Comrs.) v. Railwaj' Co. 45 Ohio St. 401, 403 [15 N. E. Rep. 468],
    One reason why equity cannot interfere is that there is a remedy at law, by statute, and we must presume it adequate, for it is what the law has provided and no more. Sparhawlc v. Railway Co. 54 Pa. St. 401.
    The office and jurisdiction of a court of equity, unless enlarged by express statute, are limited to -the protection of property. Sawyer, Ex parte, 124 U. S. 200 [8 Sup. Ct. Rep. 482],
   WINCH, J.

Plaintiffs in error, as commissioners of Medina county, brought their action against the defendants in error to restrain the latter from obstructing and closing up a road in Guilford township in said county. The petition describes the road as a “public highway, public road and township road,” and states that it was dedicated by one John Long in 1836 and presented by him to said Guilford township for public use, and in 1837 was accepted by the trustees of said township as a “public road, public highway and township road.” It thus sufficiently appears- from the petition that the road is a township road, as distinguished from a state road and a county road, if there is any such distinction.

The defendants filed a general demurrer to the petition, raising the question whether the commissioners could maintain an action to enjoin the obstruction of such a road as is described in the petition. The demurrer was sustained by the court below, and plaintiffs, not desiring to plead further, judgment was entered against them, dismissing their petition.

To' reverse this judgment a petition in error has been filed in this court, so that the only question in the case is whether or not, under the petition, any right of action exists in the county commissioners to enjoin obstructions to township roads.

A township road, while it is for the use of all the people and not for the use of the people of the township alone, like a city road, which is for the use of all the people and not for the use of the inhabitants of the city alone, differs from a state road and from a county road, in many important respects, as does also a city street. No one would contend for moment that the county commissioners have jurisdiction over city streets. The control of city streets is by statute vested in the municipal authorities. An examination of the statute shows,that the control of state and county roads is vested in the county commissioners and the control of township roads is vested in the township trustees. State and county roads are established, paid for, improved, altered and vacated by the county commissioners. See Chap. 1 (state roads), Title 7,.Div. 2, Part Second, Rev. Stat., and Chap. 2 (county roads), same title. Township roads are established, paid for, improved, altered and vacated by the township trustees. Chapter 3, same title.

.The county commissioners have power to levy a tax to provide a fund for the improvement of state and county roáds. (Secs. 2822-1, 2-822-2 Rev. Stat.) Township trustees have power to levy a tax to provide a fund for the improvement of township roads. Sec. 4686-21 Rev. Stat. The general statutes on the subject of roads above referred to seem to confer upon the county commissioners no authority to maintain this action and the Supreme Court has held:

“That boards,of county commissioners in Ohio have such powers, and such only, as are conferred by statute, and may maintain such actions, and such only, as are by statute authorized, is too well established to admit of controversy.” Mahoning Co. (Comrs.) v. Railway Co. 45 Ohio St. 401 [15 N. E. Rep. 468].

But we are referred to Secs. 845 and 863 Rev. Stat., as specifically authorizing the bringing of this action. The latter section (863) does not apply, for it only authorizes the county commissioners to bring suits in certain cases for injuries to bridges, roads and buildings, and to recover money judgments therefor. It does not authorize the commissioners to institute equitable actions to prevent such injuries.

Section 845 Rev. Stat.,. so far as it is material to the issues in this case, reads as follows:

“The board of commissioners shall be capable of suing and being sued, pleading and being impleaded in any court of judicature, and of bringing, maintaining and defending all suits, either in law or in equity, involving an injury to 'any public state or county road, bridge or ditch, , drain or watercourse established by such board in their county, and for the prevention of injury to the same, and any such board of county commissioners shall be liable in their official capacity for any damages received )y reason of the negligence or carelessness,of said commissioners in keep-ng any such road or bridge in proper repair; and to ask, demand and re-eive, by suit or otherwise, any real estate or interest therein whether tlr same is legal or equitable, belonging to their county, or any sum or sums of money or other property due to such county.”

The words italicized were added by amendfnent in 1894; the remainder of the statute is an old law.

It is claimed that the words “public state or county road,” were intended to cover township roads; that there should be a comma after the word public, which would make three kinds of roads covered by the statute, public roads, state roads and county roads, and'that such was the purpose of the legislature in amending the law; that “public roads” include township roads. The same argument would make “public roads” include city streets, and we are unable to come to any such conclusion. The real intention of the legislature in amending the law, was to give a right of action against the commissioners for injuries sustained by reason of their negligence in keeping roads and bridges under their control in good repair, and the amendment authorizes suits both by and against the commissioners involving roads and bridges, “established by such board in their county

It would not be urged that 'the commissioners would be liable to respond in damages should a person be injured by reason of the negligent construction or insufficient repair of a township road, which must be kept in repair by the township authorities. Conversely, they can maintain no action for obstruction or damage to the road.

There was no error in sustaining the demurrer, and the judgment is affirmed.


author: SWING, J.

text:
    EVIDENCE — EXECUTORS AND ADMINISTRATORS.
    [Hamilton (1st) Circuit Court,
    February 11, 1903.]
    Swing and Jelke, JJ.
    In re Estate of John H. Koeiinken, Deceased.
    1. Evidence Perpetuated by Administrator not Conclusive as to Distribution.
    The.evidence perpetuated by an administrator'under Sec. 6190 Rev. Stat. is not binding or conclusive as to distribution unless made according to law. Hence, the delivery of a receipt by a distributee to an administrator and by him filed with his final account in the probate court, although conclusive upon the parties in so far as the giving of the receipt is concerned, is not conclusive as to payment to such distributee.
    2. Final Account Cannot be Reopened by Probate Court to Impeach Receipt of Distributee.
    Where the final account of an administrator has been duly published and confirmed by the probate court, it cannot, after a lapse of eighteen months, reopen the account under Sec. 6190 Rev. Stat. and determine a question as to whether or not a distributee whose receipt is on file has, in fact, received her share. Such a question must be determined in an independent action.

      3. Liability of Surety Determined on Equitable Principles, When.
    Where a distributee has given her receipt to an administrator for her distributive share, which she has not actually received, and the final account has been duly confirmed and the administrator discharged, thé liability of his sureties will be determined on equitable principles in a proper action,
    Oscar W. Kuhn, for the appellant.
    Goebel & Bettinger, for appellee:
   SWING, J.

We are of the opinion that except as to the item of $200 and interest which the administrator had in his hands, and which was not accounted for in his final settlement, the probate court did not have the power to go into the consideration of the question whether in fact the money was paid to Mrs. Koehnken for which she gave a receipt to said administrator.

The receipts were filed by the administrator as required by Sec. 6190 Rev. Stat. The only object of this section is to perpetuate the evidence of distribution and the payment of the money due to those who are entitled to it. Under this section the probate court does not determine who are entitled to the money due on distribution, and it rests on the administrator to pay the money over to those who are entitled to it. If he pays to the wrong person, he may still be compelled to pay over to the person entitled to the same on distribution. In the case of Negley v. Gard, 20 Ohio 310, such an action was brought in the court of common pleas.

The evidence here shows that Mrs. Koehnken signed the receipt, in which she acknowledges the receipt on distribution of the amount set out in the receipt. The account was properly published and confirmed and nothing was done by the parties for more than eighteen months thereafter. The perpetuation of this evidence under this section, it seems to us, was complete and binding on the parties, so far as the giving of the receipt was concerned, and that is all that it amounts to. Whether in fact the money was paid is an entirely different question, and must be determined in another action, and this remark also applies to the further question of what effect the giving of this receipt has on the bondsmen of the administrator. These questions must be the important questions, the settlement of which the parties must ultimately seek to have determined, and these questions must ultimately be determined by what was actually done by the administrator, and Mrs. Koehnken, and the action of the probate court, and by the action of the parties in permitting the record in the probate court to remain undisturbed for a period of eighteen months.

No action that the probate court can make now, can in the least change this. We find no provision in the statute which authorizes that court after the lapse of eighteen months to undo what had been'done by it; and as said above, we find no reason for it, as it does not accomplish anything or settle any rights.

The purpose of Sec. 6190 Rev. Stat. has been held by our Supreme Court, in several cases, to be a provision simply for the perpetuation of evidence, and is not binding or conclusive as to the distribution, except when made according to law; and it does not have the effect to discharge the administrator of his trust where assets are still to be administered.

If Mrs. Koehnken received her share of the estate on distribution that is the end of the controversy; if she did not, and has not by her act es-topped herself, .she may recover the same in a proper action, and the administrator will continue liable until barred by the statute of limitations.

Whether the bondsmen remain liable in any event must be determined upon equitable principles in a proper action, and those questions cannot be affected by what the probate court now does, with respect to trying to correct the record of that court, but must be determined by what the court did and by what the parties permitted to remain undone, without objection, for a period of eighteen months.

For these reasons we think the judgment should be modified to the extent above set forth.


author: GIFFEN, J.

text:
    LICENSES.
    [Hamilton (1st) Circuit Court,
    December 8, 1902.]
    Giffen, Swing and Jelke, JJ.
    August Brunner v. Harrison (Vil.).
    4. Ordinance Discriminating Between Dealers Unreasonable Exercise of Power.
    An ordinance of a municipal corporation requiring “transient dealers” to first obtain a license from the mayor thereof before selling or soliciting orders for goods, etc., which discriminates in favor of persons who form a purpose after coming temporarily or otherwise into the municipality and against those who come temporarily with the purpose of representing some business located elsewhere, is an unreasonable exercise of the power .granted to municipal corporations.
    2. Ordinance in Restraint of Trade Invalid.
    A municipal ordinance making it unlawful for any person while on the street • or traveling from place to place about the village, to sell or solicit orders for goods and merchandise, without first procuring a license, is an intolerable interference with and in restraint of trade, and invalid.
    Ben. B. Dale, for plaintiff in error.
    P. W. Francis, for defendant in error.
   GIFFEN, J.

The plaintiff in error was convicted and sentenced to pay a fine of one dollar and costs of prosecution for violating Sec. 2 of Ordinance 10® of Harrison, Ohio, which provides:

“That every person who comes into this village temporarily in order to represent some business located elsewhere, and to solicit orders for goods either at wholesale or retail or to sell any such goods on commission, shall be held and deemed to be a transient dealer; and it shall be unlawful for any such transient dealer as above defined, to sell, offer to sell, bargain to sell or solicit orders for goods at wholesale or retail within said village without having first obtained a license from the mayor thereof.”

This section discriminates in favor of persons who form a purpose afler coming temporarily or otherwise into the village, and against those who come temporarily with the purpose, of representing some business elsewhere, etc., and is an unreasonable exercise of the power granted to municipalities. Sipe v. Murphy, 49 Ohio St. 536 [31 N. E. Rep. 884; 17 L. R. A. 184],

• It is urged, however, that the general scheme of the ordinance includes and applies to all persons within the village, and that Sec. 4 applies to any and all persons.

“Section 4. That it shall be unlawful for any person while on the street or traveling from place to place about said village, to sell, bargain to sell or solicit orders for goods, wares or .merchandise by retail without having first obtained a license therefor from the mayor of said village.”

Under this section if a merchant of the village should perchance step out of his store onto the street and “sell or bargain to sell” goods to his customer, or if he should move a few paces farther to another place and sell or bargain to sell goods to another customer he would violate this section of the ordinance.

Such results would be an intolerable interference with and restraint of trade.

Judgment reversed.


author: WINCH, j.

text:
    EASEMENTS — ALLEYS.
    [Cuyahoga (8th) Circuit Court,
    May 26, 1903.]
    Hale, Marvin and Winch, JJ.
    Adam Schaeffer v. Joseph Clauda et ux.
    1. Easement by Grant to Alleyway Barred by Claimant's Act.
    When the right to use 'a strip of land of an adjoining owner as an alleyway is founded upon reservations in deeds providing for an alleyway across both properties, through which both parties trace their title, the fact that the claimant has built upon the strip so reserved through his own property is a bar to any claim to such easement by grant in 'the property of the adjoining owner.
    2. Easement by Prescription Does not Require Daily Use.
    An easement by prescription to a right of way in the lands of an adjoining owner is not defeated by the fact that the claimant’s use thereof was not daily, but only occasional, where it sufficiently appears that such use was continuous.
    Appeal by plaintiff.
    J. H. Hardy, W. T. Clark, for plaintiff.
    T. H. Johnson, for defendants.
   WINCH, j.

Plaintiff is the owner of the northerly half of sublot No. 16, in Robertson’s subdivision of part of original lots Nos. 329 and 332 in the city of Cleveland, Cuyahoga county, Ohio, and defendants own the southerly half of said lot.

Said lot No. 16 is on the northwesterly corner of Pier and Beaver streets, and is about 165 feet deep, so that the defendants own the corner lot and plaintiff has the inside lot. He claims a right of way over the rear twelve feet of defendant’s premises to the rear portion of his lot, with the right at all times to pass and repass through and over the same on foot and with teams.

Plaintiff 'bases his claims upon two grounds: First, by grant, and second, by prescription.

As tending to prove his claim by grant plaintiff traced the title to both parts of the lot from a common owner and showed that on June 10, 1872, one Sanford L. Kennedy was the owner of the whole lot and on said day contracted in writing to sell it to Adam Burghardt and Adam Schaeffer, it being stipulated in the contract that “ the said Kennedy is to make deeds to said parties of the second part, when the conditions of this contract have been complied with as follows, to wit, Adam .Burghardt is to have the south one-half of said lot No. 1G and Adam Schaeffer the north one-half of said lot, and the parties of the second part hereby agree to open an alley twelve feet wide in the rear of said lot.”

The parties went into possession under this contract, and on January 20, 1873, a deed was made to plaintiff, of his half of the lot, containing the clause: “The grantee hereby agrees to open an alley twelve feet wide in the rear of said lot.”

’ A deed to the corner lot containing the same agreement concerning an alley was made to Adam Burghardt, and he built a house upon his lot in 1873 and a coal shed and outbuildings upon the rear part of his lot, leaving thirteen feet in the rear thereof; that is, he built nothing upon the twelve feet which he had agreed to open as an alley.

On Beaver street he built a fence back to his coal shed and in the rear of his coal shed he placed a gate, closing the twelve-foot strip which was to be opened as an alley.

Plaintiff built a house the following year (1874), so constructing it as to leave no driveway from Pier street on either side of his lot. He built a coal shed upon the extreme rear of his lot opening to the alleyway or twelve-foot strip in the rear of Burghardt’s lot. The gateway on Beaver street and the coal shed on the plaintiff’s lot have continued down to the present day, so that it is apparent that no “alley twelve feet wide,” has ever been opened.

May 4, 1874, Burghardt sold the corner'lot to one Neal, inserting in the deed the same clause about opening an alley; and on March 7, 1883, Neal sold to defendants, but the last deed contained no clause about the alley.

The agreement to open a twelve-foot alley contained in the several deeds referred to must mean a public alley, yet from the beginning the owners of both lots have uniformly denied the public any rights in said twelve-foot strip of land.

Jones, Real Property in Conveyancing Sec. 530, says:

“A reservation expressed to be in favor of the public confers no rights in favor of any one except the grantor, though there are intimations in some cases that such a reservation is valid in favor of the public. The reservation in such case may operate as an exception from the grant, and as notice to the grantee of adverse claims or rights as to the thing reserved.”

The plaintiff has not sued as one of the public for the opening of this alley. By his own acts in building upon that part of the alley which he agreed to open upon his own lot he has barred himself from claiming the twelve feet to be a public alley, and applying the rule laid down by Jones, Real Property, supra, the condition, reservation or exception contained in the deeds to the corner lot confer no rights in favor of the plaintiff. It thus appears that' so far as he rests his claim upon a grant, the plaintiff must fail.

To establish his rights by prescription, plaintiff must prove that the use and enjoyment of what is claimed as an easement was “adverse, undei a claim of right, exclusive, continuous and uninterrupted, besides being within the knowledge and with the acquiescence of the owner of the estate over which the easement is claimed.” Cleveland, C., C. & St. L. Ry. Co. v. Huddleston, 21 Ind. App. 621 [52 N. E. Rep. 1008]; Paine v. Skinner, 8 Ohio 159; McNeely v. Langan, 22 Ohio St. 32, 37; Pavey v. Vance, 56 Ohio St. 162 [46 N. E. Rep. 898],

The testimony is uncontradicted that plaintiff from the time he built his coal shed in ISId, down until the defendants purchased in 1883, claimed the right to and did use the alleyway in order to put in his coal; his milk-fnan and others delivering goods to him used it. Both he and his wife testify that they had a key to the gate on Beaver street, which was the only key to it, although defendants say the gate was never locked after they purchased the corner lot until 1899. This use was not only adverse, but was acquiesced in by Burghardt, who first owned the corner lot, as shown by the manner in which he located his coal shed and outbuildings, leaving thirteen feet in the rear of them leading to plaintiff's coal shed.

Plaintiff’s use of the alleyway cannot be referred to a claim on his part that the premises in dispute was a public alley. Such inference is rebutted by the maintenance of the gate and location of plaintiff’s coal shed.

The defendants testify that a day or two after they moved onto the corner lot in 1883 they observed the plaintiff using the alley for access to his coal shed. They say that they asked him why he was doing it and he replied that he had a right to — that it was in his deed. They replied that it was not in their deed, but so long as the plaintiff was neighborly he might use the alley. All this conversation was denied by plaintiff and his . wife; but assuming that it took place, it shows that plaintiff then claimed the right to use the alley and defendants acquiesced in it. It does not show that plaintiff for one moment admitted that he had no right to use the alley, or sought, desired or accepted the permission of defendants to use it. He so stood upon his rights that, defendants say, they consulted their lawyer, who looked up former deeds in their,chain of title and gave them actual knowledge of the agreement for an alley contained in the deed to Burghardt and others, of which the law held them to have constructive notice. They had notice of plaintiff’s claim before they purchased, for they must have observed the location of his house and coal shed, with no access to the latter from Pier street; the location of the coal shed and other building's on their own lot, leaving an alleyway leading directly to plaintiff’s coal shed and necessarily showing signs of travel, to it from Beaver street. They do not state that plaintiff made any reply to them when they told him he might use the alley so long as he was neighborly.

Plaintiff continued to use the alley without objection from the defendants until November 7, 1899, and we find from the evidence that plaintiff’s use of the alley for the purpose of putting coal into his coal shed for a period of twenty-five years was “adverse, under a claim of right, exclusive, continuous and uninterrupted, besides being within the knowledge and with the acquiescence of the owner of the estate over which the easement is claimed,” within the rules laid down in the authorities above referred to, ánd that his prescriptive right to such use is established.

It cannot be claimed that because the use of the alley was not daily, but only occasional, it was not continuous.

“If the claimant of an easement in real property needs its use from time to time, and so uses it, there is a sufficiently continuous use to be adverse, although it is not constant.” Swan v. Munch, 65 Minn. 500 [67 N. W. Rep. 1022]; Hesperia L. & W. Co. v. Rogers, 83 Cal. 10 [23 Pac. Rep. 196],

It appears that on November 7, '1899, defendants completely obstructed said way by moving a barn thereon, which prevents plaintiff from using said way for access to his coal shed. It is the order of the court that said barn be so moved as to restore to plaintiff reasonable access to his coal shed, and defendants are enjoined from interfering with plaintiff’s use of said twelve-foot strip of land in the rear of their lot for access to his said coal shed.


author: McCARTY, J.

text:
    JUDGMENTS — ALIMONY.
    [Muskingum (5th) Circuit Court,
    October Term, 1903.]
    Voorhees, Donahue and McCarty, JJ.
    William S. Lemert v. Amelia Lemert et al.
    1. Judgment for Alimony not Provable Debt Under Bankruptcy Act.
    A judgment in favor of a wife against her husband for alimony is not a provable debt in the sense of the bankruptcy act of 1898, or barred by a discharge.
    2. Judgment for Alimony not Dormant for Failure to Issue Execution.
    Such a judgment does not become dormant by lapse of five years before execution is issued thereon.
    Appeal from the court of common pleas of Muskingum county.
    A. J. Andrews, for plaintiff.
    F. F. D. Albery, for defendant.
   McCARTY, J.

The case of William S. Lemert against Amelia Lemert et al. 'is an action which came into this court on appeal from the court of common pleas. The action was commenced in that court for an injunction to prevent, by restraint or otherwise, the collection of a judgment for alimony granted some time ago by the Franklin county common pleas court. In 1899, a suit was brought in Franklin county by Amelia Lemert against William S. Lemert for divorce and alimony. In that proceeding the divorce was granted, and alimony was allowed in the gross sum of one thousand dollars. Subsequently, and since the passage of what is called the bankruptcy law of 1898, an action was commenced by William S. Lemert in the federal district court, praying for a discharge in bankruptcy, and such proceedings were had in that court and under that petition and application for discharge, that he was, subsequently to that time, discharged in bankruptcy, and received a certificate in the ordinary form, discharging him from all liability from debts. It will be remembered that the divorce and alimony proceeding was commenced and determined in the court of common pleas of Franklin county long before the proceeding for the discharge in bankruptcy took place. Two serious and important questions here arise, (1.) as to whether that claim for alimony was provable in the bankruptcy proceeding, and (2) as to whether that claim for alimony did not become dormant by reason of the lapse of time from the time judgment was obtained until the proceedings were commenced for its enforcement and execution.

It is said that in the proceeding in bankruptcy a list of claims and debts was filed by Mr. Lemert, and when the time came for hearing and passing upon those claims and debts he was finally discharged and was, therefore, relieved from the burden of paying them, or any part of them.

In 1898 this bankruptcy law was passed, since which time an adjudication has been had upon this identical question in the Supreme Court of the United States, and is reported in Auduban v. Shufeldt, 181 U. S. 575 [45 Bull. 433; 21 Sup. Ct. Rep. 735], The syllabi of the case and opinion delivered by Mr. Justice Gray are as follows:

“Neither alimony in arrear at the time of an adjudication in bankruptcy nor alimony accruing subsequently thereto is a provable debt in the sense of the bankruptcy act of 1898, or barred by a discharge.”

On page 579 in the opinion, a case is cited with approval, decided in 1900, Barclay v. Barclay, 184 Ill. 375 [56 N. E. Rep. 636], and in that case “it was adjudged by the supreme court of Illinois that alimony could not be regarded as a debt owing from husband to wife, which might be discharged by an order in bankruptcy, whether the alimony accrued before or after the proceedings in bankruptcy, and the court said: 'The liability to pay alimony is not founded upon a contract, but is a penalty imposed for a failure to perform a duty. It is not to be enforced by an action at law in the state where the decree is entered, but is to be enforced by such proceedings as the chancellor may determine and adopt for its enforcement. It may be enforced by imprisonment for contempt, without violating the constitutional provisions prohibiting imprisonment for debt. The decree for alimony may be changed from time to time by the chancellor, and there may be such circumstances as would authorize the chancellor to even change the amount to be paid by the husband, where he is in arrears in payments required under the decree. Hence such alimony cannot be regarded as a debt owing from the husband to the wife, and, not being so, cannot be discharged by an order in the bankruptcy court.’ ”

It is contended in argument here that the district court of the southern district of Ohio passed upon the jurisdiction and determined that this was a provable claim, from which defendant was subsequently discharged by the certificate in bankruptcy. We think that the Supreme Court of the United States, having this identical question before it, determined that it was not a provable claim, and if it was not a provable claim, the adjudication of the district court would be of no effect. The decision of the Supreme Court of the United States is, in substance, that the statute providing for bankjuptcy proceedings, the filing of claims, and adjudication upon them, does not require, and does not allow, the proof of claims for alimony.

We are aware that some portions of the decision in the case of Conrad v. Everich, 50 Ohio St. 476 [35 N. E. Rep. 58], have been criticised by the Supreme Court of Ohio, but not the portion I here read, “It is contended in argument that alimony is not a debt, and if not, that it is difficult to see how it is a lien unless expressly made so by the court. But, in Lockwood v. Krum, 34 Ohio St. 1, it is well said by Boynton, J., in delivering the opinion of the court: ‘The claim for alimony rests on the common law obligation of the husband to support his wife in a manner suitable to his condition and station in life during the existence of the marriage relation. And this obligation is as binding after the commis-son by the husband of a marital offense entitling the wife to divorce, as before. In respect to such obligations, she may well be held to be a creditor of the husband.’ In Chase v. Chase, 105 Mass. 385, it was held that a judgment for alimony in the case of a divorce a vinculo, or from bed and board, creates a debt of record in favor of the wife, and that she is entitled, as a creditor, to impeach a conveyance made by him with intent to defraud her. It is said by the Supreme Court of the United States in Barber v. Barber, 62 U. S. (21 How.) 582, 595, that when the court haying jurisdiction of her suit allows the wife from her husband’s means, by way of alimony, a suitable maintenance and support, ‘it becomes a judicial debt of record against the husband; and is as much a debt of record, until the decree has been recalled, as any other judgment for money is.’ ”

And it is the duty of the husband to provide proper maintenance and support for his wife, before and after a decree of divorce.

We think the authorities conclusively determine (1) That this was not a provable debt; (2) That the court did not have jurisdiction in the .matter to determine that it was so, and thereby undertake to discharge the plaintiff in this action from that obligation.

As to whether or not the judgment became dormant. An adjudication of alimony by a court of common pleas is, in a sense, a judgment, to the enforcement of which the parties are entitled to execution and proceedings in aid thereof. A claim for alimony — while it is a judgment, the fixed amount of which is to be paid by the husband, out of his property, for the support of the wife, rests not only upon the adjudication of the court fixing that amount, but upon the higher obligation of the common law liability of a husband to support his wife, and the authorities go so far as to say that it is a continuing obligation which exists not only at the time of the judgment, but continues afterward.

We are of the opinion that this judgment or lien is a continuing, subsisting claim against the husband; that it has not become dormant, and is not affected by the proceedings in bankruptcy; and that this petition for injunction, the object and prayer of which was to restrain and prevent the' enforcement of the claim for alimony, should be dismissed.


author: JELKE, J.

text:
    ASSESSMENTS — INJUNCTION.
    [Hamilton (1st) Circuit Court,
    1903.]
    Giffen, Jelke and Swing, JJ.
    Cincinnati v. Shoemaker.
    Assessment Levied Under Void Statute will not be Enjoined, When.
    A municipal corporation has a fundamental right to make street improvements and to assess the cost thereof equitably on the abutting property, and the fact that a court has held invalid a rule given in Sec. 2264b Rev. Stat. for estimating the amount of such an assessment is not sufficient to move that court to intervene by injunction, so long as the benefits conferred are equal to the assessment.
    A suit in the court of insolvency was filed by the defendant in error to enjoin the collection of an assessment for a street improvement, levied under the provisions of Sec. 2264b Rev. Stat. The city demurred to the petition, and the demurrer was overruled. The circuit court sustained the action below in an unreported decision, the holding being that Sec. 2264 b Rev. Stat. is unconstitutional, and the assessment should be enjoined, and a reassessment permitted under Sec. 2264 Rev. Stat. The case being remanded for further proceedings, the city filed an answer containing the following allegations:
    “The defendant says that the assessment levied, as described in the petition, is in proportion to the special benefits conferred, by the improvement of Mercer street, on said property of the plaintiffs, and on each abutting foot thereof, upon which said assessment was made; that said assessment levied upon said property, and each abutting foot thereof, are not in excess of the special benefits conferred upon said property and each abutting foot thereof; that said special benefits do in fact, as to said property and each abutting foot thereof, fully equal the assessments levied thereon, and as to each parcel of land and each abutting foot thereof, upon which the assessments for said Mercer street were levied, the assessments are in proportion to the special benefits conferred thereon by said improvement of said street.”
    To this answer the abutting property owners demurred; the demurrer was sustained, and the case was again taken to the circuit court.
    Albert H. Morrill, for the city:
    With the facts thus admitted the case falls within Schroder v. Over-man. 61 Ohio St. 1 [55 N. E. Rep. 158; 47 L. R. A. 156], This authority is of special force, since it is ot the date when Norwood (Vil.) v. Baker, 172 U. S. 269 [19 Sup. Ct. Rep. 187], was supposed to have invalidated' front foot assessments.
    The rules of assessment are subject to Sec. 2283 Rev. Stat., requiring that “regard must be had in making special assessments to the probable benefits to the property assessed.” Walsh v. Barron, 61 Ohio St. 15 [55 N. E. Rep. 164].
    Inasmuch as the property in this case would have been assessed for the same amount under the rule of benefits, the abutting owners are not prejudiced. Voght v. Buffalo, 133 N. Y. 463 [31 N. E. Rep. 340],
    A court of equity will not concede to these abutting owners any greater exemption than in a case brought by a contractor for the colleo tion of a defective assessment, where, under Secs. 2289 and 2327 Rev. Stat., judgment would be rendered for the amount properly chargeable. Walsh v. Sims, 65 Ohio St. 211 [62 N. E. Rep. 120],
    Chas. B. Wilby and Chas. E. Tenney, for the property owners:
    Inasmuch as the assessment under the decision of the court is as a nullity, the case stands as if no assessment had been made by any board, and the city, through its auditor, were trying to collect money from the plaintiffs in the entire absence of any proceedings for the levying of an assessment.
    Under Sec. 5848 Rev. Stat. the plaintiff need not make out a case in every element in order to be entitled to equitable relief (Tone v. Columbus, 39 Ohio St. 281), but it is sufficient to show the assessment is illegal ; and the assessment being void, and not merely tainted with irregularity, which is curable under the provisions of Sec. 2289 Rev. Stat., providing for the disregard of any technical irregularity or defect, and not falling under Secs. 2289a and 2289c Rev. Stat., which provide that assess-, ments shall not be enjoined for certain defects or procedure described therein, it should be set aside, and the city forbidden to collect for the improvement until the proper board shall have made a proper law.
   JELKE, J.

The former holding of this court that Sec. 22641? Rev. Stat. is invalid has nothing to do with the city’s fundamental right to make the improvement and assets the cost thereof equitably on the abutting property. It merely held invalid a rule for estimating the amount of the assessment different in Cincinnati, Toledo and Springfield from all the other municipalities in the state. If the benefits conferred are equal to the assessment, there is nothing to move a court of equity to intervene by injunction, Hence the answer of the city in this case sets up a good reason and defense why an injunction should not be allowed.

This we believe to be in accord with the principles underlying Schroder v. Overman, 61 Ohio St. 1 [55 N. E. Rep. 158; 47 L. R. A. 156], and Walsh v. Sims, 65 Ohio St. 211 [62 N. E. Rep. 120].

Judgment reversed.


text:
    ASSESSMENTS — CONTRACTS.
    [Hamilton (1st) Circuit Court,
    December 1, 1902.]
    Fridman et al v. Norwood (Vil.).
    1. Assessment Rule of Real Front Applied to Rear of Lot.
    The rule, in assessing the cost of street improvements on abutting property by the front foot, that regard must be had as to what is the real front of the property so that the assessment made upon the lot will be for the number of feet on the improvement equal to its real feet frontage applies when the assessment is for an improvement upon which the rear of the lot abuts, as well as when it is for -an improvement .upon which the side of a lot abuts, and when the sides of a lot are not.at right angles with the road the real front of the lot is always to be determined by ascertaining the number of front feet actually abutting upon the road.
    3. Money Retained for Street Repairs Cannot be Included in Assessment.
    If, in a contract for a street improvement, a provision that fifteen per cent, of the contract price is to be retained by the city for a period of five years is a guaranty on the part of the contractor as to the quality of the work it is properly a part of the original contract, and the amount thus retained is not deductible from the assessment, but if the per cent, retained is for maintenance and repairs it cannot be assessed against the abutting property. Hence, in such a contract, when it appears to have been the intention to divide the amount retained between the two, a court of equity will apportion it according to the general custom in such cases, including in the assessment the proportion retained as a guaranty and excluding the proportion retained for repairs and maintenance.
    8. Damages Paid for Appropriating Property Cannot be Assessed Bacx.
    Damages paid to abutting property owners for the appropriation of property, property rights and the change of grade, cannot be assessed back upon the . abutting property.
    A. L. Herrlinger, Wm. E. Bundy, L. C. Black, W. M. Fridman and W. W. Symmes, for plaintiffs in error.
    Wm. R. Collins, for defendant in error:
    Until the decision of Norwood v. Baker, 12 O. F. D. 228 [172 U. S. 269; 19 Sup. Ct. Rep. 187], front foot assessments in Ohio were uniformly held to be'constitutional. The Supreme Court of Ohio did not feel justified in reversing its former decisions, even after Norwood v. - Baker became for a time the established law of the land.
    .We, of course bow cheerfully to the judgment of the Supreme Court of the United States, in all cases coming within its cognizance, but, at the same time feel that it is our duty to follow the decisions of this court, except where they have been distinctly overruled by that court or ara clearly inconsistent with its holdings. A public duty will be performed by the submission of the issues of this case to that tribunal for its judgment thereon. Schroder v. Overman, 61 Ohio St 1 [55 N. E. Rep. 158; 47 L. R. A. 156].
    This question was again presented to the Supreme Court of the United States, and that court, in French v. Paving Co. 181 U. S. 324 [21 Sup. Ct. Rep. 625],. and nine other cases, upheld front foot assessments for surface improvements and practically overruled Norwood v. Baker, supra, The latest rule adopted by our Supreme Court is found in Dayton v, Bauman, 66 Ohio St. 379 [64 N. E. Rep. 433], where it is held that.. "The limitation of Sec. 19, Art. 1 of the constitution on Sec. 6, Art. 13! does not affect or prohibit the raising of money by assessment to pay for surface improvements of streets, sewers, etc., so long as the assessment does not exceed the special benefit conferred.”
    By statute the right clearly exists to include damages for change of grade in the assessment. Under the case of Cleveland v. Wick, 18 Ohio St. 303, the Supreme Court held that this could be done.
    Damages for change of grade could be included in the assessments. We are not unmindful that McGlynn v. Toledo, 12 Circ. Dec. 15 (22 R. 34, affirmed by the Supreme Court, Toledo v. McGlynn, 67 Ohio St. 498), announces a different rule, but we respectfully submit that the new rule did not come into force and effect until after this assessment was levied.
    The settled judicial construction of a statute, so far as contract rights were acquired thereunder, is as much a part of* the statute as' the text itself, and a change in decisions is the same in its effect on preexisting contracts as a repeal, or an amendment by legislative enactments. Douglass v. Pike Co. 101 U. S. 677.
    Objection is made that the bonds bear four per cent, interest, but the-annual installments, when the ten year plan is adopted, are charged six per cent, interest. The law fixes the interest which the unpaid portions of the assessments are to bear at six per cent, and this is decisive of the objections. It is no concern of the property owner that the city is able to borrow the money at a less rate. Suppose the city were compelled to pay' a higher rate than six per cent. Would the property owner pay the loss, or the city? Stanley v. Cincinnati, 13 Dec. 368.
    We are of the opinion that a fair construction of the contract would not require the contractor to do anything more in the way of repair on the street, or the keeping of it in repair, than to correct any defects of construction or materials; that is to say, make good work that he may have done under his contract. McGlynn v. Toledo, 12 Circ. Dec. 15 (22 R. 34).
    The agreements of the plaintiff, the Asphalt Co., in regard to maintaining- the street in repair for five years, free of cost to the city, apply only to 'pavements constructed these specifications.’ The stipulation as to such repairs, on account of the city, at prices to be paid in the future, do not appear to impose on the property owners afiy charge for such repairs as part of the primary cost of an asphalt street. The guarantee of the pavement for five years, as laid by the plaintiff, involves no extra charge against the adjoining property further than would be justly payable for a. lasting pavement. The term keeping the agreed work in repair free of ■cost is no longer than the reasonable period such work should last if properly done at the outset. Barber Asphalt Pav. Co. v. Ullman, 137 Mo. 543 [38 S. W. Rep. 458]; Latham v. Wilmette, 168 Ill. 153 [48 N. E. Rep. 311]; Osborne v. Lyons, 73 N. W. Rep. 650 [104 la. 160],
    Squares formed by the intersection of other streets that are crossed and improved may, if the object of improving the squares is the improvement of such street, assess the whole expense upon the same property on which the other expenses of such improvement are assessed. Creighton y. Scott, 14 Ohio St. 438.
    • In assessing the cost of a street improvement on abutting property by the front foot, regard must be had as to what is the real front of the property. This is a question of fact, to be determined by the manner in which it was laid out. Haviland v. Columbus, 50 Ohio St. 471 [34 N. E. Rep. 679].
   JELKE, J.

Mr. Brengleman’s lot abuts 73.43 feet on Carthage avenue. It has but one front, that of 68.44 feet on the Montgomery pike.

Under the Haviland case .an assessment by the front foot must have regard to the real front of the property. We see no reason why the principle or fiction of that case should not apply equally to the rear as to the side of a lot. Sixty-eight and forty-four hundredths feet on Carthage avenue can be assessed. Haviland v. Columbus, 50 Ohio St. 471 [34 N. E. Rep. 679],

The advertising in the Times-Star and Post in the matter of the improvement was approved by this court in the case of Davis v. Norwood, 39 Bull. 352, affirmed by the Supreme Court. Davis v. Norwood (Vil.) 58 Ohio St. 714, 716 [35 N. E. Rep. 1052],

As to the defense that the Brengelman lot had not been benefited wfe find that it has.

Is the fifteen per cent, retained for five years for repairs and maintenance, or for guaranty on the part of the contractor as to the quality ,pf his work?

We are thoroughly in accord with the principle of McGlynn v. Toledo, 12 Circ. Dec. 15 (22 R. 34, 48). If it is a guaranty it is properly a part of the original contract and is not deductible from the assessment; if it is for maintenance and repairs it should not be added into the assessment and cannot be assessed against the abutting property.

In the case at bar what is it in fact? The most perfectly constructed macadam surface will not wear five years; it will hardly wear one year without mending. The contractor can hardly be considered to have guaranteed the impossible.

Again, fifteen per cent, is an unusually large percentage to retain for guaranty merely. We have no doubt that both ideas were present in the minds of council and the contractor. We feel sure that some of the fifteen per cent, was for maintenance and the repair of the inevitable wear and tear which must begin on a macadam street as soon as open to travel. It goes without saying that the better the job the fewer the repairs.

On the evidence before us we cannot measure or divide the percentage retained between the two purposes. The presence, however, of the unlawful element in the fifteen per cent, so vitiates it that the burden is on the village, if expert witnesses can be had to enable the court to divide it with reasonable certainty, to furnish such evidence.

Damages paid to abutting property owners for the appropriation of property, property rights and change of grade and the cost of excavation occasioned by change of the grade, cannot be assessed back upon the abutting property. Dayton v. Bauman, 66 Ohio St. 379 [64 N. E. Rep. 433] ; Cincinnati L. & N. Ry. Co. v. Cincinnati, 62 Ohio St. 465 [57 N. E. Rep. 229; 49 L. R. A. 566],

The law authorizes the corporation to borrow upon credit money sufficient to pay the estimated cost and expense of the improvement. The annual installments are figured so as to ultimately pay these bonds and the interest thereon. These installments differ in this respect from installments of sewer assessments on which the law fixes the rate of interest on the unpaid portions thereof. In these street assessments, if levied correctly according to principle and theory, the amount borrowed upon which interest is paid and which is ultimately repaid should be exactly recovered from the assessments, no more and no less.

Practically it is impossible to figure this exactly in advance. But under the limitation against selling below par, too little need never be borrowed and probably never is. There is always an excess or surplus or premium on account of the good credit of the municipality. But it is not part of the municipal functions to da a banking business, to finance or underwrite improvements of this nature at a profit. To even things up, whatever of a premium or surplus is yielded should be credited back on the assessments of those who have the principal and interest of the debt to pay.

Assessment by the front fot is but a rule-of-thumb resorted to for the measurement of special benefits upon which the whole right to assess must rest. Where this rule has been in good faith adopted the courts have stuck to the literalism of the term even to the extent of resorting to a legal fiction to preserve it, as in Haviland v. Columbus, supra. This being so, we see no reason why the front feet of a lot, the sides of which are not at right angles to the road, should be measured by the distance between the sides, or in any other manner than by actual abutting front feet.

The above principles are applicable to the Brengelman, Fridman, Cad-wallader, Chappel and Potter cases [unreported].

Subsequently the village offered certain evidence, and there was a partial rehearing, after which the court said:

Upon further consideration we continue satisfied with our opinion.

We have since heard evidence offered by the village of Norwood in an effort to apportion $10,000 held by it between the two purposes of guaranty on the one hand and maintenance and repairs on the other.

The evidence is meager and not very satisfactory. However, in our endeavor to find what is equitable and fair between the village and the property owners, and remembering that we are to be guided by what commends itself to the chancellor’s conscience rather than by a strict measure of legal proof, we have concluded to make the division on the following principle:

We find that in the large majority of contracts of this kind a guaranty fund of ten per cent, for two years is provided, and that these contracts have been sustained on the ground that such fund was an indemnity provided against structural defects and bad material and workmanship.

Adopting this as a reasonable reserve for guaranty, and scaling down the $10,000 to such reserve, we find $2,666.66 is the proper amount to be set aside for guaranty, and the balance must have been for repairs and maintenance, and is, therefore, invalid.

This issue, as between an abutting property owner subject to an assessment and the village of Norwood, was not submitted in the case of Davis v. Norwood, 39 Bull. 352, which was a suit by a taxpayer, conducted for the benefit of the contractor, and it is not adjudicated here. Neither, do we want anything here said to be construed as passing upon any of the issues pending elsewhere between the village and the contractor.

On the question as to street intersections we are, of course, controlled by the holding of the Supreme Court in Creighton v. Scott, 14 Ohio St. 438, and understand that counsel for plaintiffs'only hope to prevail on this point by persuading the Supreme Court to change this, its former holding.

Decrees accordingly.


author: SUMMERS, J.

text:
    CONSTITUTIONAL LAW.
    [Franklin (2nd) Circuit Court,
    1903.]
    Sullivan, Summers and Wilson, JJ.
    Samuel Borger v. State of Ohio.
    Act 95 O. L. 592. Sec. 6924 Rev. Stat., Unconstitutional.
    The act of May 12, 1902, 95 O. L. 592, Sec. 6924 Rev. Stat., which prohibits the operation of a boiler factory within, four hundred feet of the administration building of the Ohio state penitentiary, is unconstitutional for the reason that such business is not inherently a nuisance and its prohibition in that locality is not required by the interest of the general public and is, in effect, a taking of private property without due process of law.
    Geo. B. Okey & F. A. Davis, for plaintiff:
    The act, in so far as it may be claimed .to affect the plaintiff in error, is in contravention of the following state and federal constitutional provisions :
    Section 1, Art. 1, which guarantees to all men the right to enjoy, defend, acquire, possess and protect property. Palmer v. Tingle, 55 Ohio St. 423, 441 [45 N. E. Rep. 313],
    Section 2, Art. 1, in that it denies to the plaintiff in error the equal protection of the laws. State v. Ferris, 53 Ohio St. 314 [41 N. E. Rep. 579; 30 L. R. A. 218]. (See authorities cited under paragraph seven, upon the construction and application of Sec. 1 of the fourteenth amendment to the federal constitution.)
    Section 19, Art. 1, in that it was a taking of private property for public use without compensation.
    Property, within the meaning of this provision of the constitution, is not confined to corporeal hereditaments, nor is a taking of property within the meaning of this provision limited to a seizure or manual possession. Old Colony & Fall River Ry. Co. v. Plymouth, 80 Mass. (14 Gray) 155, 161; Edson v. Crangle, 62 Ohio St. 49, 65 [56 N. E. Rep. 647] ; State v. Frame, 39 Ohio St. 399, 416; Gilpin v. Williams, 25 Ohio St. 283.
    Section 26, Art. 2, in that the act is not uniform in its operation throughout the state.
    Section 28, Art. 2, in that it impaired vested rights acquired under preexisting laws, created new obligations, imposed new duties and attached new disabilities, and was, therefore, retroactive in its operation. Society for Propagation of the Gospel v. Wheeler, 2 Gall. 139 [22 Fed. Cas'. 756]; Rairden v. Holden, 15 Ohio St. 207, 210; Sturges v. Carter, 114 U. S. 511, 512 [5 Sup. Ct. Rep. 1014]; Kelley v. Kelso, 5 Ohio St. 198.
    Section 1, Art. 4, in that its enactment was the assumption of judicial power by the general assembly.
    The declaring of an act or a thing to be a nuisance is a judicial and not a legislative function. Town of Davis v. Davis, 40 W. Va. 464 [21 S. E. Rep. 906] ; Walker v. Jameson, 140 Ind. 591 [39 N. E. Rep. 869; 28 L. R. A. 679]; Cole v. Kegler, 64 Iowa 59 [19 N. W. Rep. 843^]; Teass v. St. Albans (City), 38 W. Va. 1 [17 S. E. Rep. 400]; Yates v. Milwaukee, 77 U. S. (10 Wall.) 497, 498; Cooley, Const. Lim. (6 ed.) 247.
    Section 1 of the fourteenth amendment to the federal constitution in that it abridges the privileges and immunities of the plaintiff in error; it deprives him of his property without due process of law, and denies to him the equal protection of the laws. Dartmouth College v. Woodward, 17 U. S. (4 Wheat.) 518; 2 Kent’s Commentaries 13; Columbia Bank v. Okely, 17 U. S. (4 Wheat.) 235; Kinney v. Beverley, 3 Va. (1 Píen. & Munf.) 531; Hagar v. Reclamation Dist. No. 108, 111 U.. S. 708 [4 Sup. Ct. Rep. 663]; Yick Wo v. Hopkins, 118 U. S. 356 [6 Sup. Ct. Rep. 1064]; Barbier v. Connolly,- 113 U. S. 27 [5 Sup. Ct. Rep. 357]; Bells Gap Ry. Co. v. Pennsylvania, 134 U. S. 232, 237 [10 Sup. Ct. Rep. 533] ; Gulf C. & S. F, Ry. Co. v. Ellis, 165 U. S. 150 [17 Sup. Ct. Rep. 255], ■ The exercise -of police power must always be reasonable and never arbitrary. Cooley, Const. Lim. (6 ed.) 240; Sipe v. Murphy, 49 Ohio St. 536 [31 N. E. Rep. 884; 17 L. R. A. 184]; Marmet v. State, 45 Ohio St. 63 [12 N. E. Rep. 463]; Tiedeman, Limitations Police Power 194.
    Attorney General Sheets, for the state.
   SUMMERS, J.

It is not important to state the case in detail, or to notice many of the questions argued by counsel.

By an act passed May 12, 1902, 95 O. L. 592, Sec. 6924 Rev. Stat., the general assembly makes it an offense to erect or operate within four hundred feet of the administration department of any state penal institution any boiler factory which may make loud noises. It is admitted that the plaintiff in error erected and operated such a factory within four hundred feet of the administration building of the Ohio state penitentiary, and that he purchased the land on which the factory is located for that purpose; that if the premises cannot be so used they are depreciated $10,-000, and that the members of the general assembly had knowledge before the passage of the act of the fact that the purchase had been made for that purpose. It is said in argument that the managers of the penitentiary wanted the ground for that institution, and procured the passage of the act to aid them in getting it. The plaintiff in error was found guilty in the police court of a violation of this statute and fined. On error the court of common pleas confirmed it, and the case is here on error to that court.

We cannot, of course, inquire into the motives of the members of the general assembly.

It is well settled that a state, in the exercise of its police power, may restrict objectionable trades to certain localities, but “To justify the state in thus interposing its authority in behalf of the public, it must appear, first, that the -interests of the public generally, as distinguished from those of a particular class, require such interference; and, áecond, that the means are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations.” Mr. Justice Brown, in Lawton v. Steele, 152 U. S. 133, 136, 137 [14 Sup. Ct. Rep. 499],

“It will probably not be disputed that every one has a right to pursue in a lawful manner, any lawful calling which he may select. The state can neither compel him to pursue any particular calling, nor prohibit him from engaging in any lawful business, providing he does so in a lawful maqner. It is equally recognized as beyond dispute, that the state, in the exercise of its police power, is, as a general proposition, authorized to subject all occupations to a reasonable regulation, where such regulation is required for the protection of public -interests, or for the public welfare. It is also conceded that there is a limit to the exercise of this power, and that it is not an unlimited arbitrary power, which would enable the legislature to prohibit a business, the prosecution of which inflicts no damage upon others.” Tiedeman, Limitations of Police Power Sec. 85.

“If the police regulation of trades and occupations cannot be instituted and enforced, except so far as a trade or occupation is harmful or threatens to be harmful in any way to the public, however slight the restraining may be, so much the more necessary must it be to confine the exercise of the police power to the prevention of the injuries with which the public is threatened by the prosecution of a calling, when the law undertakes to deny altogether the right to pursue the calling or profession. In proportion to the severity or extent of the police control must the strict observance of the constitutional limitations upon police power be required. There is no easier or more tempting opportunity for the practice of tyranny than in the police control of occupations. Good and bad motives often combine to accomplish this kind of tyranny. The zeal of the reformer, as well as cupidity and self interest, must alike be guarded against. Both are apt to prompt the employment of means, to attain the end desired, which the constitution prohibits.

“It has been so often explained and stated, that the police, power must, when exerted in any direction, be confined to the imposition of those restrictions and burdens which are necessary to promote the general welfare, in other words to prevent the infliction of a public injury, that it seems to be an unpardonable reiteration to make any further reference to it. But the principle thus enunciated is the key to every problem arising out of the exercise of police power. Applied to the question of prohibition of trades and occupations, it declares unwarranted by the constitution any law which prohibits altogether an occupation, the prosecution of which does not necessarily, and because of its unenviable character, work an injury to the public. It is not sufficient that the public sustains harm from a certain trade or employment, as it is conducted by some who are engaged in it. Nor is it sufficient that all remedies for the prevention of the evil prove defective, which fall short of total prohibition. Because many men engaged in the calling persist in so conducting the business that the public suffer, and their actions cannot otherwise be effectually controlled, is no justification of a law which prohibits an honest man from conducting the business in such a manner as not to inflict injury upon the public.” Tiedeman, Limitations to Police Power Sec. 102.

“Another more or less common mode of police regulation of employments, is the determination of the localities, in which the trade will be allowed. Very many trades are beneficial to society in general, and it would be unconstitutional to prohibit them altogether, and yet they may be subjected to whatever reasonable regulations may be needed to avert or prevent some special danger, which is threatened by the prosecution of them.

“But the prohibition as to locality must be reasonable, in order that it may not offend the constitutional limitations.” Tiedeman, Limitations to Police Power Sec. 104.

“As long as a trade does not injure the public health, and is the source of no annoyance whatever to the inhabitants of the locality in which it is conducted, it cannot lawfully be prohibited. ' Every man has a constitutional right to follow on his premises any calling, provided it does not in any way interfere with another’s reasonable enjoyment of his premises. But if the prosecution of a certain trade affects another injuriously, the state may so regulate the trade that the injury may be avoided or reduced to a minimum. If the trade is in itself, and necessarily, harmful to one’s neighbors, or to the public health, it may be prohibited altogether. But if it can be prosecuted under certain limitations, so as to avoid injury to others, the police regulation must be confined to the imposition of these needed restrictions, and the trade cannot be absolutely prohibited.

“The police regulation cannot extend beyond the evil to be remedied. Where, therefore, certain trades and employments, which serve some useful purpose'and add something to the world’s wealth, are harmful to the inhabitants of the locality, in which they may be conducted; and the harm may be avoided altogether, or considerably reduced, by confining them to localities, in which the population is sparse and the residences are few, it is altogether permissible to prohibit the prosecution of these trades in other localities. * * * But in all these cases the prohibition must be confined to the removal of the evil to be guarded against. There cannot be an absolute prohibition of a trade in a locality in which it may be prosecuted without annoyance or inconvenience to the neighboring residents.” Tiedeman, Limitations to Police Power Sec. l&2-c.

It seems to us that the amendment of this statute fails to meet the tests mentioned by Mr. Justice Brown. If does not appear that the interests of the public generally require such interference or that this restriction was necessary. We .may concede that the prohibition of the carrying on of such a business within a reasonable distance of the asylum or other benevolent institution of the state or of the public schools or of a seminary might be in the interests of the public or conducive to the public welfare, but what interest of the public is subserved by the prohibition of the carrying on of such a business within four hundred feet of the administration department of a state penal institution? If this amendment is valid, we cannot see why a law prohibiting the carrying on of such a business within four hundred feet of John Smith’s house would not also be valid, and certainly no one would claim that such án act could be justified on any ground of public necessity. And if not required by the public welfare, to permit such a restriction upon the use of this property merely in private interests would be, in effect, to take the plaintiff's property without due process of law. If the business is so conducted as to become a nuisance, John Smith would have a remedy, and so have the managers of the penitentiary, but the business is not necessarily or inherently a nuisance, and it may not, therefore, be declared to be one, nor can it be restricted from being carried on in a certain locality unless in the interests of the public, and no such interest appears. It follows, therefore, that the plaintiff should have been discharged, and that the court of common pleas .erred in affirming the judgment of the police court, and the judgments of these courts are reversed, and the plaintiff discharged with his costs.