text:
    ELECTIONS — INTOXICATING LIQUORS — EVIDENCE — CRIMINAL LAW.
    [Wood (6th) Circuit Court,
    April Term, 1904.]
    Hull and Haynes, JJ. Parker, J., not sitting.
    Frank Dalrymple v. State of Ohio.
    1. Beal Law Election May be Peoved Other Than as Provided by Sec. 4364-20a Rev. Stat.
    The fact that an election was held under the Beal local option law, and! also the result thereof, may he established by evidence other than the original entry on the records of the municipal council, or a copy thereof certified by the corporation clerk as provided by Sec. 4364-20a Rev. Stat. which makes such record or certified copy prima facie evidence of such facts. Hence, the failure of the clerk to record, in the proper way and place, the result as reported to him, does not invalidate the election, if an election and the result thereof can be clearly established, by other evidence.
    2. Presumption is That Legal Bodies Acted Lawfully, etc.
    Where a duly and legally constituted legal body, such as a city or village council, has acted, the presumption is, in the absence of evidence to the contrary, that it has acted lawfully, and had before it sufficient facts to warrant it in acting. This presumption is in the nature of evidence, and until overcome by other evidence, it stands as proof of the fact in question. ■
    3. Presumption That Proper Petition was Piled for Beal Law Election When Election Ordered by Council.
    The presumption is that a petition for an election under the Beal local option law, in due and legal form and signed by 40 per cent of the qualified electors of the municipality, was presented to council as required by Sec. 4364-20a Rev. Stat., when it appears from the council record that a petition was presented asking for an election, that it was duly acted upon, and that an election was ordered on a certain date.
    4. Names of Buyers not Material in Affidavit Charging Keeping Place for Sale of Liquors, etc.
    The names of persons to whom liquors were sold need not be set forth in an affidavit charging the offense of keeping a place for the sale of. intoxicating liquors, in violation of the Beal local option law.
    5. Pine of $300 Under Beal Law for First Offense Excessive.
    A fine of $100 on each count of an affidavit charging three separata ' offenses of keeping a place for the sale of intoxicating liquors, in violation of the Beal local option law, or $300 in the aggregate, is excessive,, when there is no charge or claim that defendant had ever been previously convicted of a violation of said law. In such case the entire charge must be treated as charging a first offense, the maximum fine for which, is $200. \

    S. Cause only Remanded for Resentence When Judgment Reversed for Excessive Sentence. s
    Where the judgment of a lower court in a criminal prosecution is reversed’ on error because of the imposition of an excessive sentence, the case; will’be remanded for proper sentence only.

      Erkok to Wood common pleas court.
    Benj. F. James and Shefler & Campbell, for plaintiff m error.
    E. G. McClelland, prosecuting attorney, and W. B. Wheeler, for defendant in error.
   HULL, J.

This case, by consent of parties, was heard before two judges, Judge Haynes and myself.

The plaintiff in error, Frank Dalrymple, prosecutes error to reverse the judgment of the court of common pleas and the mayor’s court of the village of Rising Sun, in this county.

He was tried before the mayor of the village of Rising Sun for violating the “Beal Law,” so-called, or certain provisions of that law, the charge being that under an election duly held in that village, the sale of intoxicating liquors and the beeping of places for the sale of intoxicating liquors had been prohibited, and that the defendant kept and was keeping, on the different dates named in the affidavit, a place for the sale of intoxicating liquors.

There were three counts in the affidavit, charging the keeping of a place for the sale of intoxicating liquors on different dates or different periods, in one or two of the counts the period set forth covering more than one day. The defendant was found guilty by the mayor on each one of the three counts; a motion for a new trial was overruled and he was sentenced to pay a fine of $100 on each count, making $300 in all.

The plaintiff in error complains that the record does not show that any legal election had been held in the municipality, prohibiting the sale of intoxicating liquors, the chief ground of that complaint being that no evidence was offered that a petition containing 40 per cent of the voters of the municipality had ever been presented to the council praying for an election, and it is claimed that there was no proper evidence before the mayor that any.election had been held, or, if there was any election, no proper evidence as to the result of that election.

Section 4364-20a Rev. Stat. provides that whenever 40 per cent of the qualified electors of any municipal corporation shall petition the council thereof for the privilege to determine by ballot whether the sale of intoxicating liquors as a beverage shall be prohibited within the limits of such municipal corporation, such council shall order a special election to be held, and that the result of the election shall forthwith be entered upon the record of the proceedings of the council; and provides that, in all trials for the violation of this act, the original entry of the record, or a copy thereof certified by the clerk of the corporation, provided that said record shows that a majority of the votes cast at said election was against the sale of intoxicating liquors as a beverage, shall be prima facie evidence that tbe selling, furnishing or giving away of intoxicating liquors as a beverage, or the keeping of a place where such liquors are sold, kept for sale, given away or furnished, if such selling, furnishing or giving away or keeping such place occurred after thirty days from the day of holding the election, was then and there prohibited and unlawful.

The clerk of the village,' Mr. Parmalee, was called as a witness, and it appeared from his testimony that a report was made to him of the election and that he entered the result of the election in a book; that it was not the record of the proceedings of the council but a book that had been kept and used for the purpose of entering elections of this kind at former times, during the terms of his predecessors. This book he could not find, and it was not produced. The clerk testified however that an election was held, that the report was made to him in proper form, and that the vote stood eighty against the sale of intoxicating liquors and seventy-four in its favor, making a majority of. six.

The records of a meeting of the council were put in evidence showing that a petition was presented to the council, asking for an election. No certificate of the record showing the result of the election was produced at the trial except one that the clerk prepared about the time of the trial, from the tally sheet or poll book. This certificate was offered in evidence and is attached to the bill of exceptions.

We are of the opinion that while the statute makes the certificate, or what is contained in the records of the proceedings of the council, prima facie evidence of the election, that is not the only way that an election and its results may be proven; that if the clerk fails to record the result as reported to him in the proper book or any book, it does not invalidate the election, if it can be proven clearly by other evidence that an election was held and what the result of that election was. And in this case, the tally sheet or poll book was offered in evidence and is attached to the bill of exceptions, and the clerk testified as to the result of ■ that election as reported to him.

The evidence shows that an election was in fact held and that ’it was conducted by the regular election officers — all of this being shown affirmatively. The mere fact that the clerk does not make a certificate in proper form, or that he has not recorded the result of the election in the proper boqk as he was required to do by statute, does not invalidate the election. It requires more than the negligence, carelessness, or dereliction of duty of such an officer as a clerk of a municipality, to invalidate an election which has been duly and regularly held.

It is urged, however, that there is nothing in this record to show that the council had any authority to order an election, for the reason that there is nothing to show that a petition signed by 40 per cent of the «lectors was ever presented to the council asking for such election, and that raises an important question. There being no certificate presented! in this case, of the council records, showing an election, it was probably incumbent upon the state to show that an election had been held, and that', it had been duly authorized and that the council had taken the proper-steps.

If there had been a proper certificate as the statute directs, that would have made a prima facie case in itself. The records of the council of June 2, 1902, when this matter was considered, and which were offered in evidence show that under the head of new business, a petition was presented praying for an election under the Beal local option law, and after due consideration it was moved and seconded that the council order an election held in the corporation June 30, 1902, and then follows the vote on the motion, on call of roll, showing all the votes in the affirmative.

It is said there is nothing in the record showing that this petition was in fact signed by 40 per cent of the qualified electors of the- municipality, and it is true that this does not appear affirmatively from this record. It does appear however that a petition was presented to the council praying the council to call an election under the Beal local option law.

The Beal law provides that when 40 per cent of the qualified electors of any municipality shall petition the council thereof for the privilege to determine by ballot whether the sale of intoxicating liquors as a beverage shall be prohibited within the limits of such municipal corporation, such council shall order a special election to be held, etc., and it appears from this record of the council that the council did act upon this petition which was presented, and they acted in accordance with the provisions and terms of the Beal law and ordered an election on the thirtieth of June following; and we are of the opinion that, the council having acted, as the record shows it did, hy ordering this election, thé presumption is that the petition was in due and legal form; and that it was signed by the requisite percentage of the qualified electors of the municipality, and in the absence of any evidence- to the contrary, that presumption is sufficient. A presumption is in the nature of evidence, and until it is overcome by other evidence, it stands as proof of the fact in question. We think the general rule is that where a duly and legally constituted legal body has acted, that the presumption is, in the absence of any evidence to the- contrary, that it acted lawfully, and that it had before it sufficient facts to warrant it in acting.

This record shows that this petition was presented to the council praying that the council ñx a time for an election, and the council acting upon that petition, upon motion duly seconded, and on call of the roll, duly passed the resolution fixing the time, and ■ the presumption is, that that petition was in accordance with the statute. Coombs v. Lane, 4 Ohio St. 112, is in point upon this general question. The first paragi aph of the syllabus is:

“In respect to all official acts, the law will presume all to have been rightfully done, unless the circumstances of the ease overturn this presumption; and, consequently, acts done which presuppose the- existence of other acts to make- them legally operative, are presumptive proof of the latter.”

The opinion was delivered by Judge Thurman,. then chief justice, .and he says, page 148:

“In Ward v. Barrows, 2 Ohio St. 241, 246, this court, speaking of 'official acts, said: ‘The law will presume all to have been rightfully done, unless the circumstances of the case overturn this presumption, and, consequently, as stated by the Supreme Court of the United States, in Bank of The United States v. Dandridge, 25 U. S. (12 Wheat.) 64, 70, acts done which presuppose the, existence of other acts to make them legally operative, are presumptive proof of the latter.’
“And, again: ‘Facts presumed are as effectually established as facts proved, where no presumption is allowed; and hence in accordance with this long-established rule of evidence, the court in Winder v. Starling, 7 Ohio (pt. 2) 190, were entirely justified in saying that the act of' the auditor in allowing the credit, and making the certificate, which could only lawfully be done after the delinquent list had been verified by the collector, was presumptive proof that the oath had been administered.’ ”

The court say the law will presume all to have been^ rightfully done unless the circumstances of the case overturn this presumption, and consequently acts done which presuppose the existence of other acts to make them legally operative, are presumptive proof of the latter ; and it seems to us, where the records of the council show that a petition was presented to the council praying it to call an election under the Beal local option law, and that • the council considered the petition, and that after due consideration it.was moved that the election be held upon a certain date, and carried unanimously, that this raises a presumption that all had been done that was necessary to authorize the council to order this election; tbat it raises a presumption that the petition that was presented was sufficient under the law to warrant the action of the •council; and, there being no evidence to the contrary, no evidence offered by the defendant that this petition was not according to law, that it stands as proved by reason of this presumption.

Another ease in point is Reynolds v. Schweinefus, 27 Ohio St. 311, 312. The court say in the third paragraph of the syllabus:

“Where it appears by the proceedings of the city council that a xeport and recommendation of the board of city improvements had been made to it, and that thereupon the city council proceeded to make the improvement so recommended, it will be presumed, until the contrary is «hown, that such report and .recommendation of the board of city improvements was duly and properly made.”

It was necessary here that this report should be made in a certain ■manner, but the council having acted upon the report, the Supreme Court says it will be presumed, until the contrary is shown, that such report and recommendation of the board of city improvements was duly and properly made.

The court say, in the opinion on page 319:

“From these proven facts we are authorized to infer as a fact that a recommendation of the board of city improvements was for this work made at a regular meeting of the board,- and that such recommendation was reported to the city council in sufficient form, thereby making a prima facie case in favor of the jurisdiction of the city council over the subject-matter. This being the effect of the record evidence, the burden of proof is shifted upon the defendant to make manifest a want of jurisdiction.”

In the absence of any evidence to the -Contrary, it will be presumed that the council had jurisdiction to act, when it ordered this election.

A case was cited by plaintiff in error entitled Huntsville Local Option Election, In re, 25 O. C. C. 535. This was an election contest. The judge delivering the opinion states that it is necessary that it-affirmatively appear that 40 per cent of the qualified electors signed the petition; that that will not be presumed from the action of the council, but the opinion shows that in that ease this matter was referred to a committee and it reported to the council that 40 per cent of the qualified electors had signed the petition, and the report was accepted and acted upon by the council by unanimous vote, and the court held, that was sufficient. So that the question we have here was not squarely before that court, and the remarks of the learned judge delivering the opinion may have been made without full consideration of the question. After a careful examination of the subject and of the authorities, we are satisfied that the record of the proceedings of the council in this case, is-sufficient in the absence of anything to the contrary to show that the-council had jurisdiction to act.

It is alleged that the affidavit is insufficient for the reason that it. does not set forth to whom the liquors were sold.

The charge in this case was not for selling liquor to any specified person, but the charge was the keeping of a place for the sale of intoxicating liquors, and it was not necessary in such a case to set . forth to whom the liquor was sold. The question was, whether defendant kept a place for the sale of intoxicating liquor. He-may have sold to one or more persons, and it was not necessary to state in the affidavit who they were. It has been held that where the charge was the sale to some specific person, that it was necessary to set forth the name of the person to whom the sale was made, but there is a difference of opinion between courts as to whether it is necessary in such cases to set forth the name or names of the persons to whom the sale or-sales were made.

The defendant was fined $300; $100 on each count in the affidavit,, and this is claimed to have been erroneous. The statute provides for a fine of not more than $200 nor less than $50 for the first offense, and for the second offense not more than $500 nor less than $100, and for any subsequent offense a fine not less than $200 and imprisonment of not more than sixty days and not less than ten days.

There were three counts in this affidavit, charging the defendant with the keeping of a place for the sale of intoxicating-liquors on different dates. There was no charge or claim that he had ever been before convicted of a violation of this act; no allegation of that kind was in the affidavit; and following a recent decision of' the Supreme Court, in the case of Carey v. State, 70 Ohio St. 121, we are of the opinion that the mayor erred in imposing the sentence of a fine of $300.; $100 upon each count. The last two paragraphs of the syllabus of the case above cited are as follows:

“The term, ‘offense,’ as used in the last named section, is the equivalent of conviction. Hence, an affidavit for prosecution under said act, which charges three separate sales to different persons on the same day,, but does not allege a previous conviction, is in legal effect a charge of a first offense only, and the party so charged is hot entitled to be tried by a jury.
“The maximum fine provided by the act for the first offense being. .$200 only, a fine of $300 is, in such case, excessive and erroneous.”
“Judgments of the circuit court and the court of common pleas, and of the mayor’s court, reversed and the cause remanded to the latter court for sentence.”

There being no allegation in the affidavit here of any previous conviction, it seems to us as said by the Supreme Court that this entire charge must be treated as a charge of a first offense, and the maximum fine for the first offense being only $200, it was error for the mayor to impose a fine of $300.

It does not vary the rule that the charges were put in the affidavit under separate counts. The judgment of the court of common pleas and of the mayor’s court, will be reversed on account of the-error in the sentence imposed by the mayor and the case remanded to the mayor for sentence.

The effect of this, of course, is, that while the'judgment is reversed, and the ease remanded, the only thing to be done by the mayor is to re-sentence the defendant in accordance with this opinion and not to impose a fine in excess of $200. In all other things, the effect of this judgment is to affirm the judgments of the mayor and of the court of common pleas. This reversal will be at the costs of the defendant in error.

Haynes, J., concurs.


source: Caselaw Access Project

author: HAYNES, J.

license: Public Domain

text:
    INSURANCE — EVIDENCE.
    [Wood (6th) Circuit Court,
    April 15, 1904.]
    Parker, Hull and Haynes, JJ.
    German Ins. Co. v. Caroline Kistner, Admrx.
    1. APPRAISEMENT AND AWARD NOT CONDITION TO RIGHT OE ACTION ON FlRE INSURANCE Policy, Unless Demanded by Insurer.
    No obligation is imposed upon the insured to cause either an appraisement to he made of the loss, or to furnish an award of an appraisement, as a condition precedent to a right of action on a fire insurance policy to recover the loss, unless such appraisal has been demanded- by the insurer, under a policy which provides, that in event of disagreement as to the amount of loss, the same shall he ascertained by appraisers chosen by both parties, and that the loss shall not become payable until sixty days after satisfactory proof of loss has been received by the insurer, including an award of appraisers when appraisal has been required. Failure to demand an appraisal and award, in such case, constitutes a waiver thereof. Grand Rapids F. Ins. Co. v. Finn, 60 O. S. 513, and Insurance Co. v. Carnahan, 63 O. S.' 258, distinguished.
    2. Inventory Taken Every Twelve Months, or Within Twelve Months Preceding Loss.
    Insured is not required to take an inventory of stock every twelve months, nor must an inventory be taken within the twelve months immediately preceding the loss, under a fire insurance policy in which he covenants and agrees to keep, and also produce in ease of loss, the last detailed inventory of stock ■“which shall have been taken within twelve months prior to the date of the happening of any loss,” etc. An inventory taken one year and seven days before the loss, is a sufficient compliance with the policy.
    8. Books ok Insured Which Substantially Show Amount ok Stock, Sukkioient.
    Where the amount of goods on hand at the time of a fire can be fairly, reasonably and substantially ascertained from the hooks kept by insured, and there is no charge of an attempt to defraud the company, such books show a sufficient compliance with the policy requiring him “to keep a set of books, showing a complete record of business transacted, including all purchases and sales, both for cash, credit and exchange,” etc.
    4. Failuee to Keep Certain Book in Sake Will not Prejudice Insured, When.
    The failure of insured to have his bill hook and cash hook in the safe at the time of the fire, which occurred at a late business hour in the evening, will not defeat a recovery on a policy providing that insured shall keep his books of account securely locked in a fire proof safe at night, and at all other times when the store is not actually opened for business, etc., when it appears that the principal books required to be kept were in the safe at the time, that the condition of insured’s stock could be fairly ascertained therefrom, that the books were destroyed without any fault of insured, and that insured acted as an ordinary prudent and honest man would have acted under similar circumstances in trying to save the buiiding and its contents from destruction.
    ERROR to Wood common pleas court.
    Van Pelt, Dale & Farneding, J. W. Gabriel and J. O. Troup, for plaintiff in error.
    Baldwin & Harrington, for defendant in error.
   HAYNES, J.

(Orally.)

The plaintiff in error brings its action in this court to reverse a judgment of the court of common pleas.

John Kistner, prior to June 28, 1901, and for a good many years prior thereto had been carrying on a grocery and dry goods store in the village of Custar in Wood county, and had been insuring with the German Insurance Company, plaintiff in error, and on June 28, 1901, he took out another policy of insurance for another year for the sum of $1,000. On April 26, 1902, his store was destroyed completely, by fire, and thereupon proceedings were taken by Caroline Kistner, his admin-istratrix (he having died in the meantime), to collect the loss upon this policy of insurance. The negotiations resulted in a disagreement of the parties, and a suit being brought in the court of common pleas, a verdict and judgment for the administratrix, and the prosecution of a petition in error in this court.

Two principal points are urged before us as grounds for reversing the court of common pleas and they arise upon clauses in the insurance policy; one clause of the policy reading:

“In the event of disagreement as to the' amount of loss the same shall,' as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, .and the two so chosen shall first select a competent and disinterested umpire; the appraisers together shall then estimate and appraise the loss, state separately sound value and damage, and failing to agree, shall submit their differences to an umpire; and the award in writing ■of any two shall determine the amount of' such loss. ’ ’

Then it further provides that the loss “shall not become payable until sixty days after the notice, ascertainment, estimate and satisfactory proof- of the loss herein required having been received by this company, including an award of appraisers when appraisal has been required.” I should say, that there was no appraisement made, none being required by either party.

The defendant sets up as one of its defenses that the plaintiff below failed to cause an appraisement to be made and to furnish an award to the company in writing by such appraisers, and claims that by reason of such failure, no suit can be .maintained upon the policy of insurance.

The plaintiff below relied upon a decision made by the Supreme Court of this state, in the case of Grand Rapids F. Ins. Co. v. Finn, 60 Ohio St. 513 [54 N. E. Rep. 545; 50 L. R. A. 555; 71 Am. St. Rep. 736], and the defendant relies upon the ease of Insurance Co. v. Carnahan, 63 Ohio St. 258 [58 N. E. Rep. 805]. The court following the ease cited by the plaintiff below charged the jury that this defense that had been set up by the insurance company and spoken of by it in the second defense, says:

“The second defense relates to the making of an estimate by appraisers as to the amount of the loss; as to that question, there is nothing for the jury to consider.”- . /

It is claimed by the plaintiff in error that the case of Insurance Co. v. Carnahan, supra, overrules the case of Grand Rapids F. Ins. Co. v. Finn, supra, The suit in Grand Rapids F. Ins. Co. v. Finn, was brought upon a policy, that was, as we understand the citation or quotations, upon substantially the same language as the policy which is sued upon here; and especially that clause which provides that there shall be furnished an award by appraisers when an appraisal has been required. And the Supreme Court in that ease said in the first syllabus: •

“The provisions of a policy of fire insurance, that in the event of disagreement as to the amount of the loss it shall be ascertained by appraisers, that the loss shall not become payable until sixty days after notice and satisfactory proof of the loss have been given. ‘ including an award by appraisers, when an appraisal has been required;’ and, that no action on the policy shall be sustainable, ‘until a full compliance by the insured with all the foregoing requirements,’ do not make either, an ascertainment of the loss by appraisers, or a demand by the insured therefor, a condition precedent to a right of action on the policy to recover the loss. Such provisions impose no obligation on the insured to furnish an award of appraisers, except when dn appraisal has been demanded by the insurer. ’ ’

The decision discusses the matter at considerable length and gives the citations and authorities.

In Insurance Co. v. Carnahan, supra, suit had been brought upon a large number of policies, .and six of them are included in this case. There had been four cases gone to the Supreme .Court before this that were affirmed, and these six were brought up and reversed. There were several points made in the decision, but the third proposition they discuss is the one that refers to clauses of this nature. I have carefully gone into the Carnahan case and I see no statement that there was a clause in the policy like that in the policy at bar including an award by appraisers when an appraisal had been required. There were clauses in it, however, that upon a disagreement there should be an appraisement and award; and the same clause was in those policies, that is in the policy at bar, substantially that is:

“No suit or action upon this policy, for the recovery of any claim, shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the fire. ’ ’

In the fifth syllabus of this case, the court state their views as fol-' lows:

“A condition in a policy of insurance against fire, that m ease of loss and a disagreement or difference between the parties as to the amount of the loss, that amount shall be ascertained by arbitration or appraisal, is a proper and valid condition; and where it is also provided that the condition as to arbitration or appraisal must be complied with before a suit can be brought against the insurer, the condition is thereby made a condition precedent, and to entitle the insured to maintain an action to recover under the policy, .he must show that he has either performed the condition or has a legal excuse for nonperformance thereof. ’’’

I will not read from the opinion at any great length, but there are a few lines I will read. The judge delivering the opinion, says:

“The insured cannot rest upon the silence of the insurer as to arbitration, when a difference arises as to the amount of the loss. It was therelore incumbent on the insured, not the insurer, to perform this condition as a condition precedent to his right of recovery, whenever a difference should arise, as to the amount of the loss whether a demand was made by the insurer or not; and a fortiori when the other party ■asserted a difference and demanded a compliance with the contract, the insured firm was put to its choice, at its peril, whether to perform or not. ’ ’

It is suggested by counsel for plaintiff in error in argument that this opinion overrules the decision in the case of Grand Rapids F. Ins. Co. v. Finn, supra.

Grand Rapids F. Ins. Co. v. Finn, was decided June 20, 1899, and Insurance Co. v. Carnahan, supra, was decided November 13, 1900, a little less than eighteen months after. Judge Williams, who delivered the opinion in Grand Rapids F. Ins. Co. v. Finn, and the members of' the court, were the same in each case, and in Insurance Co. v. Carnahan, Judges Minshall and Williams dissented. The dissenting opinion is not given, but it is entered. Now, if there had been any intention by the court in making the opinion in Insurance Co. v. Carnahan, to overrule the case of Grand Rapids F. Ins. Co. v. Finn, we think they would have so stated, especially as Judge Williams, who delivered the opinion in Grand Rapids F. Ins. Co. v. Finn, was present and dissented. Undoubtedly there was a discussion of that whole question, and a discussion of Grand Rapids F. Ins. Co. v. Finn, and its bearing upon the latter case.

We think that the difference between the two cases arises perhaps upon this clause, “if the parties require it, or it be required.” Judge Williams, in the case of Grand Rapids F. Ins. Co. v. Finn, says either party may require it. In the case of Insurance Co. v. Carnahan, that was omitted, and it would be practically an agreement that in case of disagreement there shall be an appraisement and award, and that ap-praisement shall be furnished to the insurance company. Now in that case it might well be argued that the matter of disagreement laid the foundation for the obligation to have an appraisal and award, but when you come to the matter as to whether it would be required by either party, then, unless it be required, it might fairly be said to be waived. That perhaps is the distinction between the two cases. Suffice it for us to say, however, that when we find a Supreme Court case exactly in point, we cannot say that the case is overruled and refuse to follow it until the Supreme Court itself overrules it. At any rate until further advised by the Supreme Court, we shall hold that Grand Rapids F. Ins. Co. v. Finn, will be binding in this ease, and that the court below did not err in holding that it was a question that the jury should not consider.

Now there is another proposition that is - set up as a defense here, and it is ealled the “iron safe clause.” They seem to have a printed slip that is used when they insure a country store, that is pasted into the body of the policy and becomes a part of the policy, and that says, after stating that, there is so much money on the stock of goods in said store, that: '

“It is a part of the consideration for which this policy is issued, and the basis upon which the rate of premium is fixed, that assured under this policy hereby covenants and agrees to keep a set of books, showing a complete record of business transacted, including all purchases and sales, both for cash, credit and exchange, together, with the last, detailed inventory of stock which shall have been taken within 'twelve months prior to the date of the happening of any loss; and. further covenants and agrees to keep such books and inventory securely locked in a fireproof safe at night, and at all times when the store mentioned in the within policy, is not actually opened for business, or in some secure place not exposed to a fire which would destroy the house where said business is carried on. And in case of loss, the assured agrees, and covenants to produce such books and inventory; and in the event of a failure to produce the same, this policy shall be deemed null and void, and no suit or action at law shall be maintained for any such loss.”

It was argued that the party here was required to take an inventory every twelve months, but I don’t see anything of that kind required in the policy. The language of the policy is this:

“It is a part of the consideration for which this policy is issued, and the basis upon which the rate of premium is fixed, that assured under ,this policy hereby covenants and agrees to keep a set of books, showing a complete record of business transacted, including all purchases and sales, both for cash, credit and exchange, together with the last detailed inventory of stock which shall have been taken within twelve months prior to the date of the happening of any loss; and'further covenants and agrees to keep such books and inventory of stock securely locked, etc.”

He is to take and keep it, and keep an inventory which shall have been taken within twelve months prior to the date, or it may have been taken twelve months before. He does not agree to take an inventory every twelve months. That may have been the understanding, of the .insurers. Indeed they argue along that line, for when this fire occurred, it transpired that this inventory had been taken a year and seven days before, and it was objected that they could not use that inventory. We don’t think this clause would bar that inventory. We think he had a right to use that inventory and rely upon it.

It appears from the testimony in the case that this fire occurred a little after 10 o’clock at night. It seems in that village it is a custom, and they had in the store, a little lunch counter, over which they sold such articles as are sold at lunch counters, and they kept open until 10 ’o’clock; they live in a railroad town; it appears that one brother had started home when he heard the alarm of fire and went back. The other brother had remained in the store and was serving at the lunch counter.

The fire originated in the second store from them, and there was a great deal of excitement and discussion as to how they should protect this building, and questions of that kind came up, but the fire progressed and the parties began to get out what things they could, and finally the building was burned. It appears that the parties had kept certain books, and that the main body of those books were in the safe, but there was left out one bill book, and a cash book, and those were burned.

Now as I have stated, they kept certain books; they did not keep them in the form perhaps that a scientific bookkeeper would keep them; they kept an account of the goods sold to their customers; they kept a cash book, and kept the bills of goods that were bought. They also kept á separate book and when they paid any bills they kept track of them in that book; and from all those things they had the data to make up an account. They did not keep what is called a merchandise account showing all goods received, and showing the amount sold. It is set up in the answer that Kistner did not keep any such books of account as he was required to beep, and that he did not furnish those books. He did not produce the whole of the books for the reasons I have stated. Now the court charged the jury thus:

“The fourth defense relates to the beeping of a set of books showing a complete record of the business transacted, and the entire defense as stated in the answer I have read to you in stating the issues in the case. The defendant claims that the plaintiff did not keep a set of boobs as required by the policy, and that he did not have a detailed inventory of the stock as required by the policy, and that if he had any books or inventory, he failed to keep them in a safe, or other secure place, as he was required to do under the contract. This provision of the policy set up in the fourth defense is legal and binding upon the plaintiff, and if you find from the evidence that the plaintiff failed to substantially comply with the same, he cannot recover. If you find from the evidence that the plaintiff failed to keep such books as were required, then he cannot recover, or if you find that he' did keep such books, but that such books, or a part of them were destroyed at the time of the fire through the fault of the plaintiff, then, he cannot recover. But if you find from the evidence that the plaintiff substantially complied with this part of his contract in the keeping of his books and inventories, and in the preservation of them, if you also find any part of such books were destroyed at the time of the fire, but without fault of the plaintiff, that fact would not prevent him from recovering in the action. ’ ’

As I said, the insurance company stands upon this clause of the contract, that those books have not all been produced; they claim further under this clause, those books have not been kept. Now it is not claimed as I understand, that the parties should keep what might be called a scientific set of books, but they should keep books showing that the amount of goods that they have on hand be fairly and reasonably ascertained, and it', seems to us from, the course of business, and from the testimony of the parties that the books they kept were sufficient to enable this company in case of loss to have ascertained substantially the amount of goods that the parties had on hand.

This man, as I have said, had been in business there for years; had been insured by the company for a long time; there is no claim made but what he was honest and upright, and no claim but what the parties who practically conducted the business, his sons, were the same, and there is no claim that they in any manner or form attempted to overstate the amount of their loss, or attempt to defraud the insurance company.

It is claimed, however, that the two books which were burned, that were important, were lost by reason of the negligence of the brothers, who represented the father; that the books should have been put in the safe before the time of the fire, and that after the alarm of fire was given, the brothers should have saved these books if they were out of the safe. We think that the charge of the court was substantially right upon this subject. If there had been gross negligence and carelessness on the part of the plaintiff or those representing him, and the jury so found, then he ought not to recover, but if they acted as ordinary and prudent men would act under such and like circumstances, then, and in that event they ought not to be visited with the penalty of a forfeiture of the amount o'f this policy or visited with the loss of the whole stock of goods.

A fire alarm is not a very pleasant sound to anyone, but when these brothers heard this one, they immediately did what every ordinary prudent man would do; they commenced to see about saving the building, and stopping the spread of the fire, and they worked to that end, but when the fire got to their building, they commenced to get out what goods they could. Now perhaps it would have been wiser if they had thought of saving the two books that were afterwards burned, but it did not seem to have occurred to them, nor can we say they were guilty of gross negligence in that they did not stop to pick up those two books and ■save them; they were doubtless excited, but they wére doing the best they could, and were acting honestly and fairly in their attempts to save the building and the contents, without any intention of defrauding the insurance company or defrauding anyone.

Some question is made about this eating room, that it really was not open. I don’t know about that. I am inclined to think that that store was fairly open at that time. They might keep an eating house or a lunch counter and keep it open late in the evening, because that might be the best time for customers. So long as the store was open, and so long as parties wanted to purchase anything, the plaintiff had a right to ■sell. There is no doubt that so late in the evening, they did not expect many customers, and there might not be so much use for the cashbook’s being out of the safe, but that cash book was there to be used, and we do not think they were guilty of negligence by having it out at that time of the night, and under those circumstances.

We realize that these are important questions, and there seem to have been a great many decisions upon this clause of the policy; these have been cited at length, and we have endeavored to grasp the spirit of them and to get at what is fairly and justly the thing that is right between these parties. We realize that these policies as a rule are full of conditions printed in fine print, and people generally don’t read them, ■or know much about them if they do, and we imagine that it is very seldom that the companies provide a school of instruction to enlighten the policy holders; that they find out a great deal more about the meaning of a policy after a fire than before, and we think there should be a liberal construction as to the acts of these parties in regard to the keeping and saving of these books and what they did, and where they have sustained, as they have in this case, a fire loss, — honestly and justly as we believe — they should be recompensed in accordance with the spirit of the .policy of insurance, or the principles of insurance.

Some minor questions have been raised in this case, but.we do not find any errors in the record that are important, and the judgment of the iourt of common pleas will be affirmed

Parker and Hull, JJ., concur.


author: HULL, J.

text:
    APPEAL — ACTIONS—ERROR.
    [Lucas (6th) Circuit Court,
    October 10, 1904.]
    Parker, Hull and Haynes, JJ.
    William Capaul v. Toledo & W. Ry.
    1. No Rights to Appeal Unless Given by Statute.
    The right of appeal is purely statutory, and where no authority therefor is-given, the judgment of the trial court is final.
    2. Oedeb Dismissing Action at Cost of Attorney not Appealable.
    An order of the trial court dismissing an action at the costs of plaintiff’s attorney of record, because commenced by him without authority, is not appealable under Sec. 5226 Rev. Stat., notwithstanding the right of trial-, by jury did not exist. Such proceeding is merely incidental or ancillary to the main action, and is not a “civil action” within the meaning of’ said statute. Error is the remedy, if any exist.
    «3. Questions of Fact not Considered Unless Evidence Incorporated in Bill of Exceptions, When.
    The question whether or not the finding of the trial court that an action' was commenced by plaintiff’s attorney of record without authority, wa® sustained by the evidence, will not be considered in the absence of a bill of exceptions setting forth the evidence.
    Appeal.
    - L. H. Wilkinson, for plaintiff.
    U. Q. Denman, ’ for defendant.
   HULL, J.

This was heard before ns on motion to dismiss the appeal on the ground that the order or judgment of the court of common pleas was not appealable. The action was brought by the plaintiff against the railway company to recover for personal injuries. At the time he-commenced the action, he was a resident of the state of ‘Michigan, and soon, after its commencement, a motion was filed to require him to' give security for costs. This motion was sustained, and he was ordered to give security within a certain time. He failed to do this, and a motion was: made to dismiss the action on that ground, and the cause came on for-hearing upon that motion, and the plaintiff came in person, and also his. counsel into open court, and the record recites that the plaintiff represented to the court that the action had been brought by counsel of' record without any authority for bringing it; and the court after • hearing the testimony upon that question, adjudged all of the costs: in the action against the plaintiff’s attorney; and counsel, feeling aggrieved by that order, appealed from the action of the court; and we are-asked to dismiss the appeal on tlie ground that the case is not apealable. The record recites that the court having heard the evidence on. the part of the plaintiff, and also the evidence of his counsel,, finds that before the commencement of the action there had! been a full and complete settlement entered into between the railway company and the plaintiff, and that at the time of bringing the action,, there was no cause of action against the-defendant; and finds further-that upon the nest day after the filing of the petition in the case, the-plaintiff notified his counsel that he had not authorized him to bring; the suit, and the court finds that the action was brought by counsel without any authority for doing so; and after making these findings, the-court adjudged all of the costs against the plaintiff’s attorney, and from this, he appealed.

It is claimed that plaintiff’s counsel cannot appeal from this order of the court of common pleas, but that he should have prosecuted error. There is no order in the record, formally dismissing the action, although that was evidently done by the court, for in the certified copy of the entries upon the appearance docket, .there appears on the day that this motion was heard, this entry: “Dismissed at the costs of plaintiff’s counsel, ’ ’ naming him in the, entry, so evidently that order was made by the court and entered upon the court docket.

The right of appeal is purely a statutory matter, and without a statute authorizing it, no appeal can be taken and the judgment of the trial court is final; and the question is, whether under the statute in a matter of this kind, an appeal may be taken. Section 5226 Rev. Stat. provides that:

“In addition to the cases and matters specially provided for, an appeal may be taken to the circuit court by a party or other person directly affected, from a judgment or final order in a ciyil action rendered by the common pleas court, and of which it had original jurisdiction, if the right to demand a jury therein did not exist.”

It is not claimed that the right to appeal in this case is given by any other statute than this, and so the question is, whether this authorizes it. It provides that an appeal may be taken to the circuit court by a party or other person directly affected from a judgment or final order in a-civil action, etc. It will be observed that the statute authorizes appeals from judgments or final orders in a civil action. Section 4971 Rev. Stat. provides there shall be but one form of action, and it shall be known as a civil action.' Section 4972 Rev. Stat. provides that z

“In-every civil action the party complaining shall he known as the plaintiff, and the adverse party as the defendant.”

In many instances, the Supreme Court has held that orders of the court of common pleas could not be appealed from, on the ground that the order was not made in a civil action.

It has been held that where an award of arbitrators has been filed in the court of common pleas, exceptions thereto overruled, and judgment upon the award, under Secs. 5608 and 5612 Rev. Stat., the case was not appealable to the district court. Moore v. Boyer, 42 Ohio St. 312.

A proceeding under Sec. 536 of the code (Sec. 5358 Rev. Stat.) by petition, in the court of common pleas, to vacate a judgment rendered by that court at a former term, and to reinstate the case on the docket for trial, is not appealable. Such proceeding not being a civil action, but a special proceeding in an action after judgment, and subject to review only on error. Taylor v. Fitch, 12 Ohio St. 169.

An order confirming the report of partition and adjudging costs, is mot appealable. Jordan v. Jordan, 4 Circ. Dec. 290 (8 R. 431).

In our judgment, this proceeding, whatever it was, was not a civil ■action. It is true that counsel against whom these costs were adjudged, lad no right to a trial by jury. He was within the statute, so far as ■that was concerned. It does not appear whether he demanded a jury ©r not; but he had no right to one. The action in which this proceeding was had — the action against the railway company — was a case where a right to trial by jury existed, it being an action for personal injuries. It is evident from what is said in Sec. 4972 Rev. Stat. that a “civil action” is one where there are parties plaintiff and defendant, and pleadings and all other things necessary to and that surround an action. In this proceeding, there was no plaintiff, unless the judge might be called the plaintiff, and it will hardly be said that counsel could be called the defendant. It was an incident growing out of the main action, ancillary to it, an assessment of costs against the plaintiff’s attorney, who was not even a party to the original action.

It was in the nature of punishment probably, meted' out by the fcourt to counsel for bringing an action without authority, which the court found from the evidence had been done. It seems to us that this cannot be said in any sense to have been a civil action. It was a mere proceeding. It may have been in the nature of a proceeding in contempt, but whatever it was, it was not a civil action under the statute.

It is said by counsel in argument that the evidence did not sustain the findings of the court, but we have no bill of exceptions before us, and so we are not able to examine that question. All that we can know is contained in this record. The matter came up before the court on the complaint of the plaintiff that suit had been commenced without his authority, and the finding of the court upon that claim is set forth in the record, and the counsel’s remedy, if he had any, was by proceedings in error. He might have prosecuted error unquestionably and had the question passed on by this court. Whether the court erred or not, is not before us at' this time'; but we are clear that there is no right of appeal, and the motion to dismiss the appeal will be sustained.

Parker and Haynes, JJ., concur.


text:
    MUNICIPAL CORPORATIONS — LICENSES—COURTS.
    [Wood (6th) Circuit Court,
    June 30, 1904.]
    Hull, Haynes and Marvin, JJ.
    (Judge Marvin sitting in place of Judge Parker.)
    Sterling v. Bowling Green.
    1. Sections 1536-100 (4 ed.) Rev. Stat. Empowebs Municipalities to License Vehicles — “Vehicles” Defined.
    Power is conferred upon municipal corporations by Sec. 1536-100 (4 ed.) Rev. Stat. to exact a license fee from residents and nonresidents using horses and vehicles upon the streets of the municipality, and to impose a penalty for the enforcement thereof. The, word “vehicles” used in said section, includes all classes and kinds of conveyances, whether used for hire or not.
    2. Obdinance Imposing License Fee Upon Pebsons Using Stbeets not Unconstitutional.
    A municipal ordinance making it unlawful for the resident owner of any vehicle, to use or draw the same upon the streets without obtaining a license and paying a fee therefor, which fee is graduated according to the number of horses, the use of the streets, etc., and which ordinance, with reference to nonresidents, applies only to those hauling heavy articles- or peddling milk «and vegetables, is not unreasonable, nor an unwarranted and unconstitutional interference with the rights of citizens and private property guaranteed by the bill of rights (Secs. 1, 2, Art. 1, Ohio Const.); nor does such ordinance discriminate unfairly between residents and nonresidents.
    3. Judicial Poweb not Confebbed upon Citt Auditob ob Chief of Police, When.
    Judicial power is not conferred upon a city auditor and chief of police by an ordinance which provides that if the former is not satisfied with the description of vehicles furnished by an applicant for a vehicle license, the matter shall be referred to the latter for examination and report. Such provision does not take away the right to test the matter in the courts.
    4. Pabt of Obdinance Mat be Valid and Past Invalid.
    ■ Part of a municipal ordinance may be yoid and the remainder valid. Where the parts are not so connected in subject-matter, or inseparable its their provisions as to warrant the conclusion that the council would not have passed the ordinance without,the invalid portion, the valid part will be upheld and the invalid portion rejected.

      Error to Wood common pleas court.
    Baldwin & Harrington, for plaintiff in error.
    P. J. Chase, city solicitor, for defendant in error.
   HULL, J.

The plaintiff in error in this case was convicted before the mayor of the city of Bowling Green of the violation of a city ordinance, was fined and assessed the costs, and from this judgment of the mayor he prosecuted error to the court of common pleas, \yhere the judgment of the mayor was affirmed, and error is here prosecuted to reverse both judgments.

The ordinance, which the plaintiff in error was convicted of violating, and which it appears to be conceded' he did violate, was passed by the council of the city of Bowling Green to provide for a license fee for vehicles drawn upon the streets of that city, and provides for a penalty for the enforcement of the ordinance. It is claimed by the plaintiff in error that the city of Bowling Green had'ho authority to pass such an ordinance under the statutes of this state, and that if it had, the ordinance passed is unconstitutional and void, and that therefore the judgment should be reversed.

The ordinance provides for the imposition of a license fee upon all residents of the city of Bowling Green who make use of the streets by the use of automobiles or any kind of a vehicle drawn by horses, and certain provisions are made to apply to those persons who live outside of the city of Bowling Green who come into the city and make use of its streets with their vehicles.

Section 1 of the ordinance provides that it shall be unlawful for a resident or residents of said city being the owner or owners of any vehicle drawn upon the streets of the city, to use or draw said vehicles upon said streets without first having paid the license fee to said city as required in the following sections of the ordinance.

Section 2 provides for the license fee to be imposed upon residents of Bowling Green for the use of different kinds of vehicles, and describes the vehicles: one-horse wagons, two-horse wagons, hacks, buggies, sur-ries, and all kinds of vehicles including automobiles and other vehicles of that character propelled by electricity or gasoline, and a license fee is imposed under this section running from one dollar for a one-horse buggy to five dollars on an automobile, with intervening amounts imposed according to the character of the vehicle, and the effect that the use of the vehicles would have upon the streets; imposing a larger license fee for a two-horse vehicle, and imposing a still larger fee for drays .and heavy wagons and vehicles of that character. The purpose being to require a license fee for the use of the streets, with any kind of a vehicle, by the citizens of Bowling Green; that is, vehicles drawn by horses or propelled by electricity, etc., for we do not think the ordinance ■covers vehicles such as hand carts.

Section 3 of the ordinance relates to persons who live outside of the ■city of Bowling Green, and requires such persons to pay a license fee when they come into the city using vehicles for the purpose of hauling heavy articles, such as coal, brick, tiling, etc., or engage in the business of peddling milk or vegetables over and upon the streets of Bowling Green. The license fee in such case is three dollars. It is provided further that on occasions of large meetings, as at the county fair, vehicles for carrying passengers shall pay a license fee of five dollars per day for those carrying five passengers and for those carrying more than five passengers, ten dollars per. day. Except these provisions, there is nothing in .the ordinance imposing license fees on persons residing outside of the city who may use the streets of the city when they come within its limits-.

The ordinance provides for the fixing of a plate or tag upon the -vehicles showing that'the license has been paid; provides for the making of an application to the city auditor for the license, and provides that if the auditor is not satisfied with the description of the vehicle given by the owner, he may refer the matter to the chief of police, who shall report to the auditor. The ordinance also provides that where a man has one horse and more than one vehicle he shall not be required to pay but one fee; but if he has two horses he shall pay two license fees.

The general intent and purpose of this ordinance is to require all the citizens of Bowling Green to pay a license fee or tax or toll for the' use of the streets of the city when used by such vehicles as are mentioned in the ordinance.

The power to pass such an ordinance, it is said by the plaintiff in error, has not been conferred upon the city by the statutes of this state.

Section 1536-100 (4 ed.) Rev. Stat. (96 O. L. 21, See. 7) provides:

“All municipal corporations shall have the following general powers and council may provide by ordinance or resolution for the exercise .and enforcement of the same:

Then Subd. 9 provides:

“To regulate the use of carts, drays, wagons, hackney coaches, omnibuses, automobiles, and every description of carriages kept for hire or livery stable purposes; and to license and regulate the use, of the streets by persons who use vehicles, or solicit or transact business thereon.”

It is said that the provision of this section in regard to license, refers only to the kind of vehicles mentioned in the first part of the statute, to wit: carts, drays, wagons, hackney coaches, omnibuses, automobiles and every description of carriages kept for hire or livery stable purposes;” this follows, however, “to license and regulate the use of the. streets by persons who use vehicles, or solicit or transact business thereon.”

, Before the passage of the new code, the power relating to this subject was found in Sec. 1692 Rev. Stat., Subd. 10, in this language: “To regulate, the use of carts, drays, wagons, hackney coaches, omnibuses, and every description of carriages which may be kept for hire, or livery stable purposes.” That was,all there was of the section at that time, but when the new code was 'passed this further provision was added: “and to license and regulate the use of the streets by persons who use vehicles, or solicit or transact business thereon.”

It seems to us that it was the intention of the legislature by the passage of- this act in this amended form to grant a greater power than had been conferred by the former act; the language of that act expressly restricting this power to the regulation of the kind of vehicles there named and vehicles “which • may be kept for hire or livery stable purposes.” Under that act it had been held that a license fee might be imposed upon those who used vehicles of this character, but the new and amended act in express language, gives the power to municipalities to license and regulate the use of all kinds of vehicles, the language being the use of the streets by persons who use vehicles; using most general terms. The word, “vehicles,” covers all classes and kinds of conveyances, whether used for hire or not, and seems to contemplate the licensing of all persons who use the streets with any kind of vehicle. We see no reason why such a power as this cannot be conferred upon a city, unless there is something in the constitution to prohibit it.

It is said that the power attempted to be exercised under this ordinance, even if it be conferred by statute, is unconstitutional; that it is an unwarranted and unconstitutional interference with the rights of citizens and the right of private property which is guaranteed to the citizens under Secs. 1 and 2 of the bill of rights.

Section 1, Art. 1, provides:

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

Section 2, Art. 1, provides:

“All political power is inherent in the people. Government is instituted for their equal protection and benefit; ’ ’ and it is urged that the attempt to restrict the use of the streets in such a manner as this is in violation of these provisions of the constitution; that a man who is the owner of a horse and buggy has a right to use it and drive it upon the streets of the city when he sees fit and without obtaining permission of the council or any officer of the city, and without paying any license fee therefor; it is urged, that it would be no more unreasonable to require pedestrians walking upon the sidewalks to pay a license fee for that privilege. And the cases in some of the states sustain this proposition; especially the state of Illinois.

It is there held that such a license fee as this cannot be imposed by the municipality, that such license can only be required of those who are engaged in special occupations, such as teamsters and hackmen, and others whose business has an unusual tendency to wear out the streets and put them out of repair, and the license fee thus imposed is held by the supreme court of Illinois to be rather in the nature of a tax on occupations than a license fee for the privilege of using the streets. This was held in the People v. Palace Car Co. 175 Ill. 125 [51 N. E. Rep. 664], and in another decision by the appellate court of Illinois, In re Chicago v. Barker, decided October 6, 1903, which case has not yet been reported, but a transcript of the opinion is before us. In that case it was sought to enjoin the enforcement of an ordinance similar to this one, and the injunction was allowed.

There is no decision of the Supreme Court of this state directly upon the question involved here, and we are aware this is the first ordinance of this kind ever passed in this state. But in Marmet v. State, 45 Ohio St. 63 [12 N. E. Rep. 463], the validity of a statute similar in some respects to this ordinance was involved.

This is from the syllabus:

“The general assembly has power (except as limited by Sec. 18 of the schedule to the constitution) to regulate occupations by license, and to compel, by imposition of a fine, payment of a reasonable fee, where a special benefit is conferred by the public upon those who follow an occupation, or where the occupation imposes special burdens on the public, or where it is injurious to or dangerous to the public.”

This statute authorized the city of Cincinnati to impose a license fee not only upon those engaged in special occupations, but upon the owners of all vehicles used upon the streets of the city, and in the second paragraph of the syllabus this is found:

“The provisions of Secs. 1, 2, 22, 26 and 35 of the act of April 16, 1883 (80 O. L. 129), and See. 29 as amended March 25, 1884 ( 81 O. L. 78), which require that in cities of the first grade of the first class each proprietor or lessee of a theater, etc., and all keepers or owners of livery, sale or boarding stables, every dealer in secondhand articles and keepers of junk shops, and the owners of all vehicles used upon the streets of the city, shall pay license as therein provided; that no person shall engage in any such business until a license therefor shall have been obtained, and that any person who shall violate any of the provisions of the act shall be punished by fine, are not in conflict with the constitution. ’ ’

So that we have here a statute, which so far as imposing a license on vehicles is concerned, was similar to the ordinance involved in this case, and its provisions apparently were as broad as those of this ordinance.

This statute went further and imposed a license fee upon theaters, junk shops, etc., but it provides in regard to vehicles that the owners of all vehicles used upon the streets of the city shall pay annual license fees and recites the various kinds of vehicles and the fees. It is said by counsel for the plaintiff in error that Marmet was not using ordinary vehicles, but was engaged in transporting heavy articles over the streets of the , city of Cincinnati, and that is true, and therefore it is urged that this case is not decisive of the point in question here. But in discussing the question, Judge Spear, who delivered the opinion, considered the whole question as to the validity of the provision imposing a license fee upon all persons, and he says on page 75:

“Nor is this exercise of power as to vehicles. generally an unreasonable exercise of it. The ownership of the streets is in the city, and the duty is imposed to keep them open, in repair and free from nuisances This involves, in many ways, the expenditure of large amounts of money. It calls for constant vigilance as to all streets, and for extensive payments upon the more important ones. These, ordinarily, are laid at the expense of the owners of the abutting property. If neglected they soon wear out, and then, in most cases, another burdem is imposed on the same property for repaving. It matters not that a particular property owner has not kept a vehicle, and has not had direct agency in the destruction of -the street. If enough pressure is brought to procure the city’s order for a new pavement, he must, nolens volens, pay the assessment, and meantime pay the general tax upon his property for the making of repairs to such of the streets as the authorities see fit to repair.”

And on page 76, speaking of those who use the streets with vehicles, le says:

“They thus receive a special, direct benefit by the original outlay, .and by the repairs from time to time, and by such use impose burdens upon the property owners and the public at large. A proportion of them, those who own taxable property, contribute in taxes toward the repair fund (and may be among those whose property is subject to assessment for the original improvement) ; but many do not, and thousands «of property owners use no vehicles .of any kind. Why should not those favored ones pay a small sum toward making good that which they wear out? Especially wearing on the streets are the heavy loads transported by those in occupations similar to that of the plaintiffs in error, Marmet .and Hill, and the heavier the load the greater number of horses necessary to propel it. Hence the license fee is properly graded according to the number of horses used. The principle involved is not different from that upon which the establishment of toll roads, and the authority to collect tolls of those traveling upon them, and to grade the amount charged in proportion to damage inflicted or use made by the traveller, is sustained. Then, too, there is force in the point made by counsel that special police regulation is needed upon the streets of large cities to prevent accidents, to protect pedestrians at crossings, to prevent fast and reckless «driving, and to prevent blockades.”

This case seems to sustain the proposition that a license Tee may be imposed as was done by this statute, upon all those who use the streets. If a statute containing these provisions is ■valid and not in conflict with any provision of the constitution, an ordinance passed by a municipality pursuant to thé power conferred upon it by the legislature is not invalid. The difference between the use of the streets by drays, omnibuses and vehicles of that kind, and the use by «ordinary vehicles is one of degree only. They wear out the streets faster perhaps than one would in driving about with an ordinary wagon or buggy, but each and all have the privilege of using the streets, being the «owners of such vehicles, and one engaged in ordinary business outside of these particular classes may use the streets approximately as much as one of those.

The plaintiff in the case at bar, it seems, was a retired farmer, living in the city of Bowling Green, and on the date in question was driving about the streets in a one-horse buckboard collecting rents.

A doctor with a large practice in a city might use the .streets as much as the owner of a hack; a groceryman with a delivery wagon going about the streets might use them as much as one of those particular classes; and one might mention others, and if the municipality has the power to-impose a license fee upon those. who are engaged in those particular classes of business, upon the theory that they make a special use of the streets, it seems to us that it has power to impose such a license fee upon all who use the streets.

An ordinance, after which, it is said, the one in question was framed,, was before the supreme court of Indiana in Terre Haute v. Kersey, 64 N. E. Rep. 469 [159 Ind. 300]. The general provisions of that ordinance-were very similar to this one, and after a full discussion of the question by Judge Jordan, who delivered the opinion, the ordinance was sustained. The authorities are collected in this opinion and reviewed. On page 472 of the opinion, the court say:

“When such power is, however, clearly conferred upon such municipalities, courts have generally upheld the proper exercise thereof. The running of hacks, carriages and other vehicles over the streets of a city, whether used thereon for public or private purposes, will necessarily in course of time, impair and wear them out; and by reason of this well recognized fact, cities are subjected to large expenditures of money to repair the wear and tear upon their streets due in the main to the use of running vehicles thereon. Under such circumstances there is nothing unjust or wrong in a city, when so empowered by the legislature, requiring the payment of a properly or reasonably graduated tax, as in the ease at bar, which must be considered in the nature of a toll imposed for the exercise of the privilege of using the streets by the means of vehicles. ’ ’

And on page 473 the court say:

“The fact that a vehicle is not used by its owner for hire, but is only used on the streets in his own' business or for his own pleasure, is of no special importance when the power is conferred to license and tax vehicles generally.”

Farther along on the same page the court say:

“While it is true that a public street of a city or a town is a public highway open alike to travel, thereon, of every citizen, still this in nowise prevents the state, through the agency of its municipalities, from subjecting the right to use the street to reasonable conditions and restrictions. As cities in this state, under the law, are required to keep their streets in repair, the legislature in the exercise of its discretion, appears to have deemed it proper to authorize common councils thereof,, if they so desired, to exact that those who used them with wagons, carriages and other vehicles should contribute to such repairs by the payment of a reasonable amount on account of such use. The ordinance in ■question seems to so grade the tax imposed that the owners of vehicles whose use of the streets in the course of time would subject them to the most wear are required to pay the greater tax. ’ ’

It seems to us that the provisions of this ordinance are not unreasonable or unconstitutional. If this power is conferred upon the municipality, as we hold it is by this statute, it has the right to use the power and impose this license fee or toll as it is called by Judge Spear upon all those who have the use of the streets. There is nothing unjust in requiring those who use the streets, who have the benefit of the paving and other improvements .to pay these fees in addition to the general tax imposed upon all citizens — to pay this beyond what those pay who do not make such use of the streets.

A court should not declare a statute unconstitutional unless it is clearly so, practically beyond all reasonable doubt, and finding as we do that thiá power is conferred upon the municipality by the statute, to hold that the ordinance was void, would be, in effect, to hold that the statute was unconstitutional. It is not for us to say whether it was good policy or bad policy to enact such an ordinance, but if the city of Bowling Green through its council had the power to pass such an ordinance as this, then it is a valid ordinance.

It is urged that there are other provisions of the ordinance which are unjustly discriminating and unfair, that therefore the ordinance is unreasonable and void. One of them is the provision requiring haekmen from outside the city at the time of the county fair to pay a license fee of five dollars a day, and ten ■ dollars a day for larger vehicles. It is said they would be required to pay this for the entire year, which would be exorbitant, but whether this would require the payment of more than that sum per day for the time engaged at the fair we need not determine; nor need we determine whether this extra fee imposed on outsiders is valid. No one is complaining of having been injured by this, and we do hold simply that if that requirement is invalid, that would not affect the validity of the remainder of the ordinance. It is not of such importance that it can be said the council would not have passed the ordinance with this part omitted.

The same rule applies to an ordinance as to a statute. In Piqua v. Zimmerlin, 35 Ohio St. 507, it is held that, “A part of an ordinance may be'void and the remainder valid.” And on page 511 of the opinion the court say:

“If it be true that the second section, either in whole or in any of its parts, is open to the objection stated, that circumstance does not affect the provisions of the first section, unless the two sections are so connected in their subject-matter, and inseparable in their provisions, as to lead to the inference that the first section would not have been adopted without the second. The same rule applies to a by-law, or ordinance, that applies to a statute; and that is, that where the statute consists of sev-erable and independent parts, having no general influence over one another, and a part is valid and a part is void, the part which is valid is operative, and will be carried into effect.”

Another objection made to the ordinance is that it discriminates unfairly, in that it permits persons living outside to come into the city and use the streets without paying the license fee.

That was true in the statute before the Supreme Court in the Mar-met case; where farmers were permitted to come into Cincinnati without paying the fee, and Judge Spear discussed that question and says there are very good reasons why they should be permitted to come in and bring the necessaries of life into the city. That provision of the ordinance is not unreasonable.

There are one or two other objections of like character, but we will simply say there are none of them of sufficient importance to warrant us in declaring the ordinance invalid. We will not undertake to pass upon, them, as they are not involved in this case.

The purpose and object of this ordinance was to impose these license fees upon all residents who use the streets in this manner, and these minor provisions of the ordinance, if invalid, are not so inseparably connected with the general purposé of the ordinance as to invalidate it. Nor do we think it is invalid as urged on the ground that it confers judicial powers upon the city auditor and chief of police. The provision heretofore referred to provides that if the city auditor is not satisfied with the description of the vehicle he shall refer it to the chief of police who shall examine and report a correct description of the vehicle to the auditor. The citizen still has his right, if he is not satisfied with the finding of these ’officers, to test the matter in the courts.

The provision that if a person who has one horse and moré than one bugg^, the license shall be on one buggy, and if he has two horses the license shall be on two vehicles is not unreasonable, the theory-being that the man who has two horses would probably use the streets more than the man with only one. This may not work exact justice in all cases, but it is not so unreasonable that it should be declared void by the court. As said by Judge Spear in Marmet v. State, supra, page 69:

“It may be added that absolute equality as to burdens, whether applied to taxes or other subjects of legislation, is not to be expected in our laws. The wisdom of man has not yet devised a system of equalizing burdens so perfect in its application and so thorough in its enforcement, as to leave no room for adverse comment or criticism. ’ ’

I have endeavored to cover in a general way the objections that-were made in this ordinance. We are of the opinion that it does not. violate any provision of the constitution of this state or of the United States, and that no part of it is so unreasonable that the court should declare the ordinance invalid.

The judgment of the court of common pleas and of the mayor will therefore be affirmed.

Haynes and Marvin, JJ., concur.


author: DUSTIN, J.

text:
    ELECTIONS — INTOXICATING LIQUORS — CONSTITUTIONAL LAW.
    [Franklin (2d) Circuit Court,
    July 1, 1904.]
    Sullivan, Dustin and Wilson, JJ.
    Robert H. Jeffrey (Mayor) v. State ex rel. Butler (City Solicitor).
    1. Presumption is that Election Officers will Peopep.lv Construe Election-Laws.
    The legal presumption is that ’election officers will adopt the true construction of election laws, and will so conduct elections as to give every-elector an opportunity to register and vote.
    2. Electos Moving into Resident District Entitled to Transfer and Vote at Brannock Law Election Under Sec. 2926v Rev. Stat.
    An elector of a municipality who moves, after the regular registration days, into and becomes a resident of a “resident district” wherein an. election is about to be held under the act of April 19, 1904 (97 O. L. 87), commonly called the Brannock local option law, is entitled to a transfer from his former residence, and to vote at such election under favor of Sec. 2926v Rev. Stat., although there is no express provision in said act whereby such elector could register and vote. Hence, said act is. not violative of Sec. 1, Art. 5 of the state constitution which provides that every citizen having the qualification of an elector shall be entitled to vote at all 'elections, notwithstanding a provision therein that “in municipal corporations having registration, only registered voters shall be entitled to vote.”
    Error to Franklin common pleas court.

      Janies M. Butler, for the mayor.
    T. M. Clarke, L. D. Lilley and W. B. Wheeler, for the Brannock law. ,
    Gumble & Gumble and James Caren, for defendant.
   DUSTIN, J.

We concur with the views of the common pleas court of Franklin county as to all the questions raised in the hearing before that court.

One new question is presented to this court. It is urged on behalf of the plaintiff in error that the Brannock law (97 O. L. 87), is unconstitutional, because in contravention of Sec. 1, Art. 5 of the constitution, which provides that every-citizen having the qualifications of an elector, shall be “ entitled to vote at all elections. ’’

In the provision for elections under the Brannock law, it is stipulated that “in municipal corporations having'registration, only registered voters shall be entitled to vote. ’ ’

Now it is claimed that an elector who should move into the residence district wherein a Brannock law election is about to be held, and become a resident thereof, after the regular days of registration for such election, cannot be registered and vote, because there is no provision for his obtaining a transfer from his former residence; the election officers therein not being necessarily in session.

i We think this point is not well taken, because Sec. 2926v Rev. Stat., of the election law makes full provision for such contingeueies.

It is suggested in'argument that while See. 2926v Rev. Stat. may be so construed as to afford every facility for the registration of removals, the secretary of state and the deputy state supervisors have put another construction upon the same and will issue orders accordingly, thus depriving a removing elector of the right to vote.

This is denied. But, whatever the fact, this court must presume that the election-officials will adopt the true construction of the statute and will so conduct the elections as to give every elector an opportunity to register and vote. ...

The judgment of the common pleas court granting the writ4 of mandamus upon the mayor of the city of Columbus as prayed for will therefore be affirmed.

Sullivan and Wilson, JJ., concur.


text:
    VENDOR AND PURCHASER — MORTGAGES.
    [Lucas (6th) Circuit Court,
    June 25, 1904.]
    Parker, Hull and Haynes, JJ.
    Noah A. Whitney v. Julia Meister et al.
    ■Purchases Who Accepts Deed Subject to Mortgage not Personally Liablk to Mortgagee, When.
    A purchaser of real estate who accepts a conveyance made expressly subject to a mortgage, and receives an abatement in the purchase price on account thereof, is not, in the absence of an express covenant, personally liable for the payment of the mortgage. The land is, in such case, the primary security, and in case of a deficiency upon foreclosure sale the vendor is liable therefor; but after payment thereof, he is, as between himself aDd the purchaser, entitled to indemnification from the latter, and to such extent is subrogated to the rights of the mortgagee iñ the land.
    Error to Lucas common pleas court.
    Troup & Truesdale, for plaintiff in error:
    Taking a deed subject to an outstanding mortgage, creates no personal liability on tbe grantee to- pay off tbe ineumbranee, unless be- has by contract, expressed or clearly implied, specially agreed to do so. To charge tbe purchaser, there must be apt words used in the deed itself, which clearly imply an obligation intentionally created by the one party and assumed by the other, to constitute a personal obligation for its payment. 1 Jones, Mortgages Secs. 748, 749, 751; Eapp v. Stoner, 104 Ill. -618, 624.
    Eefusal by grantee to assume is strong evidence that grantee did not assume. Vilas v. McBride, 62 Hun 324 [17 N. V. Supp. 171]; Tillotson T. Boyd, 4 Sandf. 516; Hubbard v. Ensign, 46 Conn. 576, 583.
    The covenant in the deed cannot be construed into a covenant to pay the mortgages. It is only a limitation of the covenants of warranty. Hoy v. Bramhall, 19 N. J. Eq. 74, 78; Belmont v. Coman, 22 N. Y. 438 [78 Am. Dee. 213].
    Whenever the mortgage debt forms a part of the consideration of the purchase, although the purchaser has not entered into any contract or agreement to pay it, he is bound to the extent of the property to indemnify the grantor. The law implies a promise to that effect from the mature of the transactions; but the purchaser is under no personal liability •to any for such mortgage debt. 1 Jones, Mortgages Sec. 751; Belmont v. •Goman, 22 N. Y. 438 [74 Am. Dec. 213]; Equitable Life Assur. Soc. v. Bostwick, 100 N. Y. 628 [3 N. B. Rep. 296] ; Bristol Sav. Bank v. Stiger, 86 Iowa 344 [53 N. W. Rep. 265, 266],
    T. N. Bierly and J. Dickey, for defendants in error.
   HAYNES, J.

The facts in this case are, that one Matilda Wechtel and her husband were possessed of certain property in the city of Toledo, on Nebraska avenue and upon Wabash avenue, upon which there were two mortgages, one in favor of the Ohio Savings Bank for about $2,000, which was afterwards transferred to R. B. Mitchell & Co., and the other to Julia Meister, for about $900. Whitney had certain parcels of land in Miami, in this county. The parties entered into negotiations, and finally concluded they would exchange their properties. After some little negotiation they entered into a written contract with regard to the matter. It was drawn up by the real estate men who were negotiating the sale. It is claimed by the plaintiff, Julia Meister, and perhaps by Mr. Wechtel, that at the time the trade was finally consummated and the deed made there was some conversation in regard to these mortgages. The writing had provided that Mr. Whitney was to take the Nebraska avenue property subject to the mortgages of $1,800 and $925, and it is claimed on behalf of Mrs. Meister that at the time the deed was executed there was a further agreement or conversation wherein Whitney assumed and agreed that he would pay those mortgages. The case was tried to the court, and the court rendered a personal judgment against Noah A. Whitney in favor of Julia Meister for the amount her mortgage of $925 and in favor of R. B. Mitchell & Co. for the amount of their mortgage of $1,800. R. B. Mitchell had filed a cross petition and set up their mortgage, but had not prayed for a personal judgment.

■ The deed that was made by Matilda Wechtel and her husband of the property on Nebraska avenue contained this clause:

“They will warrant and defend the same against all claim or claims of all persons whomsoever, except a certain mortgage of $1,800' held by the Ohio Savings Bank and Trust Company, of Toledo, Ohio, and a second mortgage of $925, due Julia Meister, of Toledo, Ohio. ’’

The contention is, so far as the case is prosecuted in error, that the court of common pleas erred in rendering this personal judgment in the first instance against Whitney for the amount of these mortgages, the judgment and decree in fact being an ordinary decree of foreclosure and a personal judgment for the amount of the mortgages against Whitney, upon the claim that there was an arrangement verbally made by Whitney at the time that the deed was executed that he would pay the mortgages. It appears .to us from the evidence that the transaction was closed in pursuance of the written contract, and that this clause in the deed was written in accordance with the terms of the written contract. The exchange was the exchange of the properties. It is true that in their own minds they put a certain valuation on the lands, but the exchange was the exchange of the properties subject to the mortgage on one side and the improvements on the lots and lands on the other.

There were certain matters crept into the suit, and some effort to show the value of the property, that are not very material to- this question.

The Wechtels did in fact execute a mortgage on the property which they received for about $1,900, and that was made up of some $750, which it was agreed was the difference in the trade, which was to be paid by the Wechtels to Whitney as boot money, and the amount of about $925 that was due upon the property fronting on Wabash avenue, included in the trade. The Wechtels held this Wabash avenue property by a purchase contract with Mr. Franklin, of this city; and they owed some $925 on the purchase money, never having received a deed from him. They assigned their contract to Whitney, and agreed to pay off the $925. And thereupon they executed this mortgage, and, as they testified, afterwards paid the amount of $925,' which they were to pay to Mr. Franklin, into the hands of Mr. Whitney. The mortgage of Mrs. Meister, of course, was at the time on the other property, and the property was taken subject to that mortgage.

We think the court erred in rendering a personal judgment against Mr. Whitney in this ease, for the amount of those mortgages. We think under the law of the land the plaintiffs were not entitled to such judgments. We think the most that can be said is, that the Wechtels were, under the transaction, to be indemnified in regard to those mortgages. The law stated in Jones on Mortgages seems to be sustained by a great many authorities. Jones, Mortgages Sec. 748 says:

“Personal Liability of Purchaser. A deed which is merely made subject to a mortgage specified, does not alone render the grantee personally liable for the mortgage debt. To create such liability there must be such words as will clearly' import that the grantee assumed the obligation of paying the debt. * * *
“A purchaser of land accepting a deed expressly conveying it subject to a mortgage, and excepting it from the covenants, is not himself personally liable to pay it, unless he covenants to do so. ' The land in snob case is primarily liable as between the vendor and purchaser; and the vendor is liable for any deficiency.”

We are cited also to the ease of Thompson v. Thompson, 4 Ohio St. 333, as sustaining the right di the parties to the judgments. The first syllabus is this:

“It seems to be á well settled principle, that the purchaser of an incumbered estate, if he agree to take it subject to the incumbrance, and an abatement is made in the price .on that account, is bound to indemnify his grantor against the incumbrance, whether he expressly promise to do so or not — a promise to that effect being implied from the nature of the transaction.”

Perhaps it is proper to make a statement with regard to the facts of this case to get at the point which was decided. A man by. the name of Thompson had purchased some property in Cireleville, some sixty years ago. It had originally been sold in 1835 by a man by the name of Hamilton, who had given a mortgage back on the property to another party, and that other party to Thompson, subject to the mortgage, Thompson died, having made a will in which he devised this property for life to his daughter and remainder over to her children, if she had any, and if not, the remainder to his family. He provided in his will that all debts should be paid. An administratrix was appointed with the will annexed, and acting under that cláuse, had paid off this mortgage, which amounted to some $700, which was equal at least to two-thirds of the value of the land ftself, the life estate in which had been willed to the daughter. An exception was taken by certain heirs to. that payment, the administratrix having been notified before hand that an exception would be lodged against her if she paid-that amount, the heirs claiming that the personal estate of the decedent was not liable for that mortgage — in other words, it was not a debt against the estate. The probate court overruled the exception and allowed the account of the administratrix as a proper payment, and the court of common pleas reversed the probate court. The case was taken to the old district court, and the district court reserved the case to the Supreme Court, and the point that was finally decided and judgment finally rendered, was a judgment of affirmance of the action of the probate court and the overruling of the court of common pleas.

Judge -Thurman, in delivering the opinion of the court, discussed two views of the case which may be taken. He starts out by stating this propQsition: .

“It-seems to be a well-settled principle, that the purchaser of an -incumbered estate, if.he agree to táke it subject to the incumbrance, * * * is bound to indemnify bis grantor against tbe incumbrance, wbetber be expressly promise to do so or not — a promise to tbat effect being implied from tbe nature of tbe transaction. ’ ’

And be further proceeds to state tbat tbe agreed statement of fad® is somewhat obscure as to wbetber there was an abatement in tbe price,, and further discusses tbe facts and circumstances of tbe case, and concludes tbat there was. He then proceeds to discuss tbe question as to' wbetber tbe administratrix was authorized to consider this as a debt and act upon tbat assumption, because they are not able to find from the statement of facts tbat there was any agreement on tbe part of Thompson when be took tbe land tbat be would pay the amount of the mortgage to tbe mortgagee. He simply took it subject to the mortgage, and under the rules of law was bound to indemnify, and bis obligation was an obligation of indemnification, and not an obligation of payment. After discussing it upon tbe theory that it was an indemnification, and holding tbat tbe decedent bad treated it as an indebtedness, having paid interest on. the mortgage from tbe time be obtained the land until his death, and tbat tbe administratrix was justified in paying it, be says, page 353:

“I have so far considered tbe case upon tbe assumption that Thompson did not expressly promise Green to pay tbe debt, tbat view of tbe case being tbe most favorable one for tbe defendant in error. If be did make such a promise, it was upon a sufficient consideration, and an action of assumpsit could have been maintained upon it by the trust company, it being well settled,'‘that if one person makes a promise to another, for the benefit of a third person, tbat third person may maintain an action at law on tbat promise. ’ * * * And if such ,were tbe case, there could be no doubt tbat Thompson was a debtor for the money, and tbat bis liability was covered by tbe clause in bis will directing his debts to be paid. But it is, to say the least of it, doubtful whether the agreed statement of facts would warrant us in finding that such an express promise was made, and we prefer to place our decision on the other view of the case, with.which we are entirely satisfied.”

There being, as we have said, no express promise in this case by which Whitney agreed to pay-tbe amount of this mortgage 'to tbe respective mortgagees,1 we hold tbat there was no promise upon which a suit could be brought; that1 tbe obligation was an obligation of indemnification. He was bound to Weehtel, so far as Weehtel was concerned, to see tbat tbe mortgage was paid off, and if Weehtel was called upon to pay the notes which be bad given, for which tbe mortgage was security, be then would have a right to call upon Mr. Whitney, upon this land, to enforce the payment of that amount. In other words, he would be subrogated to the rights of the mortgagee, the right to enforce the claim against the land. That being the ease, we think this judgment should be modified; that the personal judgment should.be set-aside and the decree itself modified to this extent; that the mortgage itself should first be foreclosed, the land sold, and if anything thereafter remains owing upon these mortgages or either of them, that a judgment may be entered by the court.

The decree is that the personal judgment be set aside, and the decree modified to this extent; that there shall be a sale of the land under the mortgage, and that if any portion of the indebtedness remains upon these two mortgages and the notes, that then the execution may issue against Whitney for the balance unpaid.

Parker and Hull, JJ., concur.