text:
    EStATES IN CURTESY.
    Circuit Court of Wood County.
    Peter Landis v. James H. Marsh et al.
    Decided, May 6, 1911.

      Curtesy in Lands — There Can be No Tenancy by Curtesy in. a Remainder where there is <m Outstanding Freehold Estate in Another —Right of Present Possession Necessary — Actions to Quiet Title.

    1. Where an estate for life is not terminated prior to the death of a ' wife who owns the remainder in fee no estate in' curtesy rests in her husband, but such estate is extinguished by her death.
    2. An action to quiet title does not lie where brought by a husband not .. in possession and having no interest in remainder, in the lands involved in the action..

      Benj. F. James, for plaintiff.

      E. M.-Fries, contra-
    Kinkade, J. (orally).; Wildman, J., and Richards, J., concur.
   This is an action said to have been brought for the -purpose of having assigned an estate by curtesy belonging to Peter Landis. The plaintiff alleges that in 1886 one David- Adams died intestate, the owner of the property mentioned in the petition ; that at the time he had nine children, one of them- being the wife of the plaintiff, to whom plaintiff was married some four months after the death of Mr. Adams.

The plaintiff claims that the wife of David Adams, Lucinda Adams, held for life the property described in the petition, and that she died in 1895. The plaintiff’s wife died in 1877, and the plaintiff now says that his wife having died and the holder of the. life estate having died, he is entitled to an estate for, life ,.in the óne-ninth interest of the property described in.the petition.

The defendant answers,'admitting, some of -the-things alleged and-denying others, and then.sets up the fact that, when .David Adkms died he was the owner of a large amount of land ineluding therein the 144-acre tract described in the petition, and that shortly after the marriage of his daughter, Sara L. Adams, to the plaintiff here, that the heirs all joined in a conveyance of the property mentioned in the petition, to the wife of David Adams as and for her dowér, she releasing dower in all the balance of the property, and it is said further in the answer that from the time of the execution of that conveyance in the year 1886 down to 1895 the'wife of David Adams remained in possession of all the property described in the petition.

It is stated as a third defense that if the plaintiff had any right by way of an. estate by curtesy in this property that it arose in the year 1877, at the time of the death of his wife; that he had known all of the facts incident to the situation from that time to this; that the other defendants named in the action have been in open, notorious and adverse possession of the property since 1877 and that consequently the rights of this plaintiff in this action are barred by the statute of limitations.

There was a reply filed to the answer. A demurrer was first filed to this petition on the ground that it did not state facts sufficient to constitute a cause of action. The court overruled the demurrer, and then upon the final hearing of the case rendered judgment in behalf of the defendants. Notice of appeal was given by the plaintiff, but the case is here on error to reverse the judgment of the court of common pleas.

We think there is but one question to decide in this ease, and that is whether Sarah Landis at the time of her death had such an estate in this property as that her husband succeeded to an estate by curtesy upon her death. It is contended on behalf of the plaintiff that she had, and on behalf of .the defendants in error that she had not.

It is said in behalf of the defendants in error that she must either have, had possession at the time of hér death, or the right of possession. It is conceded that if she did'hkve either, the piaintiff would be entitled to recover in this action, barring one or two other matters I will mention later; but on that particular question the piaintiff would' loe entitled to recover if she had either an estate in possession, or right to possession at- the time of her death.

We are fully in accord with all that was said by Judge Thurman in the case of Lessee of Charles Borland et al v. Ann Marshall, found in 2 O. S., page 308, where he says that every reason obtains for holding that an estate by curtesy is entitled to as much consideration and protection at the hands of courts as any other interest or estate in lands.

This matter is very fully discussed by Judge Thurman in the opinion. It is of no moment what our opinion might be if this were a new question presented to the court. We think it has been settled by the decisions in Ohio what the law is on this subject, and it is our duty to decide this case -according to the law as we find it settled, no matter how many reasons any one may be able to assign why it might be better if it were other than as it is.

We call attention to the case of Moore v. Iles, found in the 16 C. C. R. at page 591, and also the case in the 11 O. S., page 367, to which our attention has been called, the ease of Watkins v. Thornton. The syllabus in Watkins v. Thornton is short and I will read it:

"In order to give a right by the curtesy in the wife’s lands, it is not sufficient that the wife was seized of an estate of inheritance therein during the coverture. She must also have had a right to the present possession of the freehold. Hence, it is the settled rule of law that a husband can not be tenant by the curtsey of a remainder, exceptant upon an estate for life, unless the latter be determined during the coverture.”

The estate for life in the case at-bar was not determined during coverture. The wife died in 1877. The life tenant died in 1895; that being true it is our opinion that the estate of curtesy in the husband was thereby extinguished; that on the termination of the life estate there was no existing estate of curtesy resting in the husband. We think that the ease in the 11 O. S. determines the issue here.

It was stated in argument here that the court of common pleas, while agreeing with the proposition of counsel for defendants in error that there was no such proceeding known to the law as an assignment of an estate in cnrtesy, still held that it was proper to overrule' this demurrer to the petition, for the reason that it might be treated as an action to quiet title. He is not a remainderman ; he does not come in under that clause of the statute. He is not in possession and therefore had no right to bring an action to quiet title. Nobody out of possession can bring an action to quiet title under the statute, except those who hold an interest in the remainder. The life estate had passed away; the wife had died, and what ever interest the husband had was a present interest and he was not in possession. Section 11901, General Code, is the section that provides who may bring the action to quiet title. It says:

“An action may be brought by a person in possession of real property, by himself or tenant, against any person who claims an estate or interest therein, adverse to him, for the purpose' of -.détermining such adverse estate or interest; or such action may - be brought by a person out of possession, having or claiming to have an estate or interest in remainder, or reversion in real property, against any person who claims to have an estate or interest therein, adverse to him, for the purpose of determining the interests of the parties therein.”

I call attention to another feature of this case, and that is, that it is very doubtful whether this petition presents the question of the other defendants holding this title adverse to the plaintiff. We think the petition is insufficient in that regard, and on that account the demurrer filed might have been properly sustained.

The court overruled the demurrer however, and resting our decision upon the case cited in the 11 O. S., 367, and the case of HersMzer v. Florence, in 39 O. S., page 516, we hold that the judgment of the court of common pleas was correct and must be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    AS TO THE ACQUISITION OF TITLE THROUGH THE ADVERSE POSSESSION OF A PREDECESSOR.
    Circuit Court of Licking County.
    Amy Loughridge v. M. D. Hartshorn.
    Decided, March Term, 1911.

      Title — Prescriptive Rights in Land do not Pass to a Grantee, When— Adverse Possession — Injunction Against Occupancy.

    The purchaser of a specified amount of land, cut off by accurate survey from one side of a larger tract belonging to the grantor, does not acquire title to an additional strip lying outside of his surveyed-line, to which he contends his predecessor acquired title by adverse . possession through a mistake as to the location of the true boundary line; and in the absence of the predecessor in title as a party: to the case, the owner of the adjoining lands will be granted , an injunction against occupancy of said strip by the grantee of said predecessor in title.

      Smythe & Smythe and J. M. Swartz, for plaintiff.

      Flory & Flory, contra.
   By the Court

(Voorhees, J., Shields, J., and Powell, J.)'

The petition in this case was filed by the plaintiff, Amy Lough-ridge, álleging that she is the owner in fee simple,of certain described real estate and in possession of the same, giving a pertinent description of the lands owned by her, and alleging also that the defendant is in possession of and claims to be the owner of a tract of land immediately west of her lands described in said petition, and that the two parcels of land are divided by a straight line running north and south, a distance of about 113 rods. She further alleges that, by an agreement heretofore made by the owners of said respective tracts of land, the fences erected and to be erected and maintained along said line were erected and maintained as follows:

The owners of said east tract, being the land now' owned by plaintiff, were to erect and maintain a fence along said line, commencing at the north end thereof, and running south about 40 rods; the owners of the west tract, being -the land now owned by the defendant, were to erect and maintain a' fence along said line', commencing at the point where her fence terminated and to connect with the same, and running thence south along said straight line about 49 rods; and that the owners of said east tract were to erect and maintain a fence along said line, from the point last mentioned to the south end thereof, i. e., along said line dividing the said two parcels of land.

She alleges that the defendant threatens to and has commenced to erect a fence on the said line of plaintiff, at a point about 40 rods south from the north end of said line, at least 2 feet at said point, from the true line, by planting posts there and running in a southeasterly direction, and in a straight line, to a point .about 12 feet east of said true line, and alleges that his intention and purpose in so doing is to enclose within his own land so much of plaintiff’s land as lies east of said true line and west of the fence so to be erected by him; and she asks that he be enjoined from erecting said fence on the line on which he is attempting to construct the same.

To this petition the defendant filed an answer and cross-petition, in which he claimed that the line on yhich he is intending to construct his fence was the true line between his land and the lands of plaintiff, and that he and those under whom he claims had, for more than twenty-one years last past, constructed and maintained a fence upon the line between the lands of plaintiff and defendant, commencing at the end of plaintiff’s part of said partition fence and extending south, and that plaintiff and those under whom she claims had, for more than twenty-one years, constructed and maintained a fence upon said line between the lands of plaintiff and defendant commencing at the south end of that part of the partition fence constructed and maintained by defendant and those under whom he claims and running south to the end of the line between the lands of plaintiff and defendant; and he makes the claim that he and those under whom he claims have, for more than twenty-one years, been the owners in fee simple of the land located on the west side of the land owned by plaintiff, and that he is now the owner of said land, and that said fence has been a partition fence.

A supplemental answer and cross-petition was filed, alleging that the plaintiff was about to construct her fence at the south end thereof, not on the line where it had formerly stood, but upon the lands of this defendant. To this answer a reply was filed, denying each and every allegation therein contained.

On this issue trial was had, in which the petition was dismissed in the court of common pleas, and an appeal taken by the plaintiff to this court, where the same was tried upon the evidence.

It appears from the evidence adduced that the defendant,. Hartshorn, purchased the real estate owned by him, adjoining the lands of plaintiff, about the year 1905, from one Margaret Bean; that the same consisted of 30 acres off of the east end of what was known as the Bean farm; that at that time the county surveyor, John J. Gilpatrick, was called upon to survey said tract of 30 acres and to furnish a description of the same, for the purpose of making a deed by the then owner to the defendant; that a survey was made some time during the months of June and July, 1905, by said surveyor, and the deed for the lands so conveyed, being 30 acres, was executed by the owner of said Bean farm to the defendant, Hartshorn.

It appears from the evidence of Mr. Gilpatrick that his survey was to measure off the exact amount of 30 acres, and that the east and west lines of such survey were parallel lines and in7 eluded within the boundaries measured by him the exact amount of 30 acres out of the Bean tract.

It further appears from the evidence that thé west line of plaintiff’s land is a straight line; that a stone was planted at the northwest corner of plaintiff’s land, in the center of the fence running south, being the west line of plaintiff’s land, and the southeast corner of plaintiff’s land and the southwest corner of defendant’s land was ascertained and marked in said survey.

The defendant can claim only such lands as were conveyed to him by the deed of Margaret Bean, and these lands are accurately marked and defined by the survey then made by Mr. Gilpatrick and described in the deed.

It. further appears from the evidence that at the south end of the partition fence that belonged to plaintiff there had formerly stood a worm rail fence, which was not upon the true line, but which diverged east of the true line or the line located and established by the Gilpatrick survey; and' defendant claims that because :said fence, as located, had stood on said line for more than twenty-one years, it had, by prescription, become the true line between his lands and the lands of plaintiff, and that he owned the land to said line without regard to the line marked and established by said county surveyor; but it is not claimed or contended by the said defendant that he himself had been in possession of said land for the twenty-one years, but he claims to own to said- line because his predecessors in title had so occupied said land for more than twenty-one years.

We find that the defendant is the owner of the land surveyed and designated by the county surveyor and incorporated in his deed-, and of nothing more; that if there is a strip of land lying east of' the surveyed line, and west of the line where said fence stood, it does not become his land by prescription, and that if any right by prescription has accrued to his predecessors in title, the same was not conveyed to him by his deed.

For this reason, we think we are not called on to ascertain whether any such prescriptive fight exists or not, because if it does exist, it exists in favor of Margaret Bean and not of the defendant, and he'should build his part of the partition fence upon the actual line súrveyéd by G-ilpatrick, the county suryeyor; and -not upon the line where such worm fence formerly stood.

It appears from the evidence that plaintiff has the title to the lands east of and adjoining the land so conveyed to the defendant, subject to any prescriptive right that any other person not a party to this suit may have to the strip west of said worm fence, and as no such party is here making claim under such prescriptive right, except the defendant, she has the fight to have her title quieted to said line.

.' The holding of this court is supported by the authority in the case of George Earl v. Rosetta Williams Hall et al, 14 O. N. P., 234, wherein it is held:

“Where land owned by two tenants in common is partitioned with reference to a fence upon the premises, which, under a mutual mistake, is .believed to be the true boundary, and both parcels are occupied and farmed by their respective proprietors up to and with reference to such line, in an open, continuous, notorious and exclusive manner, for. a period of twenty-one years, a title by prescription is thereby acquired.
“Where an occupant claims title under a deed which does not in fact include the land in dispute, his possession thereunder can 'not be tacked on to the adverse possession of his grantor, in order to make out a title by prescription. ’ ’

We think the second proposition of the syllabus controls this ease and does not conflict with the holding of the Supreme Court in the ease of McNealy et al v. Langan, 22 O. S., 32, but is in harmony with the principles recognized by the Supreme Court in the case of Smith v. McKay, 30 O. S., 409, and the case of Humphreys et al v. Huffman et al, 33 O. S., 395.

For the reasons above stated, a decree may be entered in favor-of the plaintiff, quieting her title as against the defendant for the premises in dispute, and restraining the defendant from interfering with her in the possession and enjoyment of the same, and from constructing his fence -as he threatens to do, all as prayed for in the petition.


text:
    PERSONS SELLING THEIR OWN PRODUCTS NOT PEDDLERS.
    Circuit Court of Lucas County.
    City of Toledo v. Andrew Brown.

    Decided, March 24, 1910.

      Municipal Corporations — Licensing Powers of Council — Discriminations Between Sellers of Their Own Products and Sellers of Purchased Products are Reasonable — Justification for Licenses Found in the Police Rather than the Taxing Power — License Issued by Auditor Upon Application to Mayor Not Invalid — Sections 3684 and 3612.

    1. Persons selling the products of their own raising -and manufacture designated in the proviso of Section 1536-327, Revised Statutes (Section 3672, General Code), are not peddlers or hawkers against whom fees for licenses may be imposed.
    2. Discriminations in license laws between persons selling products of their own raising and those selling purchased products, are not unreasonable. In the former case the selling is but an incident of the seller’s business; in the latter it constitutes the seller’s business.
    3. Exactions of license fees in municipalities in Ohio are justified in the exercise of police power rather than upon the right to tax for revenue purposes.

      4. A license issued by the auditor upon application made to the mayor thereior is in effect issued by the mayor, and an ordinance so providing is not thereby rendered invalid.

      Cornell Schreiber, City Solicitor, and Alonzo G. Duer, for plaintiff in error cited:
    That the evidence failed to disclose the year in which the offense was committed — Foster vs State, 19 Ohio St., 415; Corry vs Gaynor, 21 Ohio St., 277, 280.
    That the affidavit upon which the. warrant was issued was defective, mainly for the reason that it is not speeially alleged “that the articles sold were not products of defendant’s own raising or manufacture” — St. Louis vs Meyer, 185 Mo., 583; Toledo vs Hutchinson, 55 Ohio St., 573.
    As to constitutionality of the statute and the validity of the ordinance — People vs Sawyer, 106 Mich., 428; Rosenbloom vs State, 64 Neb., 342; State vs Stevenson, 109 N. C., 730; Marmet vs State, 45 Ohio St., 63; Kansas City vs Overton, 68 Kan., 560; State vs Montgomery 92 Me., 433; Sterling vs Bowling Green, 4 C.C.(N.S.), 217.; Commonwealth vs Ober, 12 Cush. (Mass.), 493; Fisher vs Patterson, 13 Pa. St., 336; Raquet vs Wade, 4 Ohio, 109.

      .Charles K. Friedman, for defendant in error.
    Wildman, J.; Parker, J., concurs; Kinkead, J., dissents.
    Error to common pleas court.

       Affirmed by the Supreme Court without opinion, Brown v. Toledo, 84 Ohio St., —.

   This case, in its inception, was a prosecution of the present defendant in error upon a charge of going about from place to place, hawking and peddling and selling some articles ■ of value without a license, in violation of an ordinance of the city of Toledo. He was convicted in the police court, fined five dollars and costs, and upon a proceeding in error instituted by him in the court of common pleas, this judgment of conviction was reversed, upon the sole ground, as stated by the judge of the court of common pleas, that the ordinance upon which the prosecution was based is invalid, and that the statute by virtue of which the ordinance was passed is unconstitutional. While the amount of the penalty imposed is very small, the questions involved are of such importance and wide interest as to demand from this court very careful consideration.

The proceeding here is in error to reverse the judgment of the court of common pleas. The evidence in the trial court was very brief, consisting of the testimony of one witness and some agreements or concessions, and they develop the fact that Andrew Brown at the time stated in the complaint against him was engaged in selling fish upon and across the streets of the city of Toledo, and that the ease was covered by the ordinance found in the revised ordinances of the city, Section No. 580.

I will briefly dispose of all the incidental questions substantially as in the court below. We agree with that court that the contentions of the defendant in error are not tenable unless he can sustain the one upon which the court of common pleas based its conclusion, to-wit, that the ordinance and the statute are invalid. In saying this, as in all that I may say with regard to this case, counsel may understand that I am voicing the judgment of a majority of the court only. I understand that Judge Kinkade is not quite prepared to give his concurrence to the views entertained by Judge Parker and myself.

The statute under which this ordinance was passed, Revised Statutes, 2669 (General Code, 3672), is under the caption “General licensing powers' of council. ’ ’ There is another section of the statute in another chapter, Revised Statutes,. 1536-100 (General Code, 3634) under the heading “General powers of municipalities,” which gives to the council power to regulate the use of vehicles upon streets by means of license; but the section to which I first referred is the one under which this ordinance requiring a license from hawkers and peddlers and certain other persons selling commodities or articles of value was drawn and passed.

Reading only such portions of Revised Statutes, 2669 (General Code, 3672) as apply to the case at bar we find this language:

“The council of any city or village may provide by ordinance for licensing # * * hawkers, peddlers, * * . # and hucksters in the public streets or markets, and, in granting such license, may exact and receive such sum of money as it may think reasonable.; but nothing in this section shall be construed to authorize any municipal corporation to require of the owner of any product of his own raising, or the manufacturer of any article manufactured by him, license to vend or sell in any way, by himself or agent, any such article or product. ”

It is earnestly urged, and with a great deal of plausibility, that this language of the statute as to its own construction makes an unjust discrimination between two classes of vendors of things of value, and that it thereby violates certain sections of the Constitution of Ohio. It is possibly claimed to be affected by the Fourteenth Amendment of the Federal Constitution also, althought I do not know that this was specifically referred to in the argument. The ordinance in attempted compliance with this section of the statute is in some respects very crudely drawn, and we are not prepared to say that it may not be in some of them invalid as in violation of the Constitution, as vague and uncertain in its terms, and also as not authorized by the section of the statute to which I have referred. I may say briefly, however, as to this matter, that in most of the respects pointed out to us by counsel for defendant in error to sustain the holding of the court below, these matters have no special pertinency to the state of facts embodied in the complaint against the defendant in error, Brown, or in the evidence adduced upon the trial. As to the matter of the broad powers of revocation of a license given to the mayorj the uncertainty in the grading of the license as to the amount, and perhaps some other matters evidencing the carelessness with which the, ordinance was drawn, they may be eliminated from it and still leave those particular parts of it affecting the rights of the defendant in error intact and. unaffected. It is a principle so familiar as to require no citation of authorities that an entire act or an entire ordinance will not be invalidated by the unconstitutionality of some, of its parts, provided that it may fairly be inferred that the Legislature or the legislative body of the municipality would still have made the enactment as to the other parts without respect to those which are invalid.

The kind of traffic or business in which the ‘defendant was engaged is one very fully treated in the various text-books. There is' an extensive chapter in 21 Cyc., 364, entitled “Hawkers and Peddlers, ’ ’ in which we find definitions and numerous rules and principles applicable to hawking and peddling. On page 365 we have the general statement:

“The licensing of hawkers and peddlers is within the power of the Legislature, provided that the statutes do not discriminate between the citizens or the products of the several states or foreign countries, and that the purpose is not merely to benefit the resident merchants of .a city. Furthermore, the Legislature has no power to discriminate in favor of citizens of one county as against citizens of other counties in the same state, or to require a license for the peddling of goods only where manufactured in the state. So it can not exempt sales to all manufacturers and dealers residing or doing business in a certain territory. But it is generally held to be allowable to exempt from the operation of the statute certain persons who peddle their own products or manufactures, such as farmers, butchers and manufacturers.”

, Certain other classes are mentioned which it may be allowable to exempt from the ordinances. It will be noted that in the section of our statute to which I have referred, there is no provision that certain classes shall be excepted from the operation of the act, but it is said that nothing in this section shall be construed to authorize any municipal corporation to require of the owner of any product of his own raising, etc., such license tax or fee. The courts have often construed this phrase, “hawking and peddling,” holding that a farmer who is marketing his own meat, or a manufacturer who is marketing his own work, is not a peddler or a hawker within the meaning of the terms used almost from time immemorial in the various enactments, not only in the states of this Union but also in Great Britain. On page 372 we have this statement:

“Irrespective of statute, persons who raise or.produce what they sell, such as farmers and butchers, have been held not to be peddlers, although there is authority to the contrary. In many of the states the statute exempts from its operation any manufacturer, mechanic, nurseryman, farmer, butcher, or fish or milk dealer, who sells, either by himself or an employe, manufactured articles, wares or products. ’ ’

It should not be overlooked, however, that the ordinance of the city of Toledo before me imposes in terms a fee for license, not only from peddlers and hawkers, but also upon persons generally who sell under certain circumstances articles of value. It covers not only peddlers and hawkers, but hucksters and it may possibly be construed as larger in its scope even than the embracing of these three classes., The language is:

“No person shall go from place to place in the city of Toledo upon or across the streets or other public places peddling, hawking, selling or offering for sale or exchange any goods, merchandise, products, fruits, vegetables, meat or other articles or things of value of any kind or character. ’

Going back to the definition of a hawker and peddler, I find in 15 Am. & Eng. Enc. of Law (2d Ed.), p. 293, this statement in the text:

“A manufacturer, real worker, or manufacturing mechanic selling his own products is not considered a hawker and peddler unless declared so by statute. In Great Britain this exemption extends to the children, apprentices and servants of any real worker or maker of goods, usually residing in the same house with him, selling or seeking orders for wares made by him. In Canada this same exemption seems to exist except where changed by provincial legislation or local laws. ’ ’

It may be inferred from what I have already read and said that legislation of the kind which we have under consideration is not a novelty in this country or in England. It is a subject which has been recognized and treated by legislative bodies and by courts for several centuries, and it has seemed to the majority of this court that to attempt to establish distinctions not recognized by the current of authority in this country and in Great Britain would be to legislate rather than to adjudicate; it would practically be attempting to establish a new rule of law in innovation of that which has been recognized by the current of the decisions and by the bodies authorized tó legislate in the various states and in the mother country. As stated in 21 Cyc, the rule has not been universally, adopted that a discrimination may be made between the selling of purchased products and the selling of products of one’s own making or raising,- but not only from the statement in the text, but from numerous authorities which we have found time to examine, we are satisfied that the drift of authority is in favor of the recognition of such a discrimination as a just one. It is not, however, for the court to determine whether a legislative enactment is wise or unwise; whether an attempted classification is one which ought to have been made or not in the exercise of the discretionary powers of the legislative body, whether it be the Legislature of a state or the council of a city. It is enough, as repeatedly held by the courts, to justify the upholding of an 'enactment, as a valid one, if the classification appears not to be capricious and arbitrary. Its expediency is for tbe enacting body, not the courts. We are concerned with the powers, not the wisdow, of the Legislature and council.

In Marmet v. State, 45 Ohio St., 63, 69, our Supreme Court has touched upon the question in considering an ordinance of Cincinnati, passed under a power to regulate the use of streets, the charge being that the plaintiff in error had used vehicles thereon without first obtaining a license. The ordinance was attacked, on the ground, as in the case at bar, that it made an unjust discrimination in favor of farmers marketing the product of their own farms. Judge Spear, in his opinion, says:

‘ ‘ It is' urged, too, that the last clause of Section 29 makes discriminations in favor of farmers marketing the products of their own farms, which are unjust, and that this invalidates the law. Such products ordinarily embrace the necessaries of life, without which the people, and, to some extent, domestic animals could not subsist, and it is not unfair to assume that this consideration had weight with the Legislature in making the discriminations referred to. Other reasons -may have been within the knowledge of that body which are not here disclosed, and do not occur to us. However, it is enough to say, that it is not shown that such discriminations are not within the legislative discretion. 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.”

Although this specific feature of the Cincinnati ordinance is not referred to in the syllabus of the case, the question was one of the contentions and it was essential that it be considered and disposed of to arrive at the court’s-conclusion. It is said by counsel for defendant in error in the case at bar that Marmet v. State, supra, has been practically repudiated by the Supreme Court in later adjudications. We do not, however, think that it has been disturbed in this regard, if in any other, and we think that it may be taken still as the la\y of Ohio. We have found in other adjudications various statements of reasons for the making of such 'discriminations between on the one hand peddlers, hawkers and sellers of goods purchased by them or obtained in other ways, and on the other hand, the marketing of farm prod-= ucts or manufactured goods by the producer or maker.

In Rosenbloom v. State, 64 Neb., 342, the syllabus contains, among others, this paragraph:

“There is such a real distinction between persons who go from house to house, and place to place, vending their own products, and those who sell in the same way the productions of others, that the Legislature, acting on considerations of general policy, may make it the basis of classification for the purpose of taxation. ’ ’

It was held in that ease that the license fee was in the nature of a tax which was .authorized under the Constitution of the state of Nebraska. Whether it would be so authorized under the Con-stitution of Ohio is a question which we do not consider, because it is probable, as it appears to the majority of the court, and perhaps to all, that licensing -ordinances in this state are ordinarily based upon the general police power rather than upon a right to tax for the purpose of raising revenue. But it . has seemed to me that the right to discriminate or classify in the manner in which a classification or discrimination was attempted by the Legislature of Ohio and the council of the city of Toledo, may even better be justified in the exercise of police power than in that of the taxing power. On page 925 the judge, speaking for the Nebraska court, says;

“'A further contention of counsel for defendant is that, by reason of the exceptions contained in Section 152, the law lacks the essential requirement of uniformity.” “The real test,” he adds, “of the validity of defendant’s objection to this statute, is not whether the classification is wise and just, but whether the Legislature acted arbitrarily, whether, without an adequate determining principle, it made a division of peddlers into two classes," and then sought to deprive one class of their constitutional right to the equal protection of the laws. If there is a genuine and substantial distinction between persons who go from-house to house, and place to place, vending their own products, and those who sell in the same manner the productions of others, the classification is founded in the nature of things, and is therefore upon a basis everywhere recognized as lawful.. Now there is, in our opinion, such a marked and material difference between the two classes of peddlers as to make it entirely proper for the Legislature, acting on considerations of general policy, to'tax one class, and to permit the other to go free. The man who goes about the country selling what he has himself produced may be presumed to confer a benefit upon the general public, by eliminating the profits of the retail merchant, and perhaps even those of the wholesaler and jobber. He has a fixed abode where he produces the things which he sells, and where he may be reached and required to make good his warranties. He is generally the owner of immovable property, which is subject to state and local taxation. It may be that he is required by- the municipality in which he lives to pay a poll tax and a tax upon his business; to build and repair sidewalks, and keep the same free from snow, ice, and other obstructions. He contributes to the social, educational, and financial property of the community in which he resides. He bears a just share there of the burdens of government. And, in addition to all this, it must be remembered that the selling of his products is only incidental to the business of producing them.”

This last matter is one referred to in a number of cases we have found, that is, that the selling is but an incident to the production where the selling is' conducted by the one who produces.

“These characteristics,” the judge continues, “speaking generally, distinguished the untaxed peddler from the peddler who is taxed; and they are, it seems to us, quite sufficient to justify the classification which the Legislature has made.”

There is a great deal more in the discussion of this question in the opinion which I should be glad to read if I had time. One judge dissents from the views -of the majority of the court on certain points, but, if I understand his reasoning, he concurs as to the particular point which we have under consideration, the right to discriminate between mere peddlers or hawkers and farmers or others marketing their own productions.

The Supreme Court of Michigan, in People v. Sawyer, 106 Mich., 428, holds:

“Under a charter giving the city power to license and regulate hawkers and peddlers, an ordinance requiring peddlers to talce out licenses may exempt from its operation mechanics of the state selling their own manufactured articles, and farmers selling the products of their own farms.”

And in the opinion I find this language:

“•The exemption..of .mechanics, in selling their own manufactured articles, and-farmers,-in selling products of their- own farms, from "the operation of the ordinance, is but following the state statute on the subject of the license to hawkers and peddlers. The power given by the charter is to regulate hawkers, peddlers, etc. Under this power the common council had authority to impose such reasonable conditions and limitations as it saw fit (1 Dillon, Munic. Corp., See. 359). The discrimination in favor-of mechanics and farmers in the sale of their products is within the power conferred by the charter on the common council. These immunities have been recognized for many years. By the statute of 50 George III, Chap. 41, Sec. 23, real workers and makers of- goods within Great Britain were exempt from the payment of the license which was imposed upon hawkers and peddlers. ’ ’

He then cites some English authority in connection with this statement and adds:

‘1 In many if not in most of the American states, these immunities are granted to mechanics and farmers selling their own products, and the power is not questioned. ’ ’

In the state- of Kansas also the question has been passed upon by its court of last resort. In Kansas City v. Overton, 68 Kan., 560, the syllabus states:

“A city ordinance imposing a license tax on hucksters and hawkers is not invalid because it exempts from its operation those who are personally selling the products of their own or leased lands.”

In State v. Montgomery, 42 Me., 433, decided by the Supreme Court of Maine, in which the legislative enactment of that state involving this principle is decided and the act is held constitutional, and in the opinion we have something added to the suggestions of reasons for the discrimination made in some of the other adjudications which I have cited. On page 35, Judge Savage, who announces the opinion, says:

“As expressive of the reason why it has been deemed advisable in time past to regulate the exercise of the business of hawkers, we quote from Jacob’s Law Dictionary, title ‘Hawkers’:
“ ‘Those deceitful fellows, who went from place to place, buying and selling brass, pewter and other goods and merchandise, which ought to be uttered in open market; and the appellation seems to -grow from their uncertain wanderings, like persons that with hawks seek their game where they can find it.’
“The object of such legislation has also been well stated by Baron Graham to be to protect, on the one hand, fair traders', particularly established shopkeepers resident permanently in towns and other places, and paying rent and taxes there for local privileges, from the mischief of being undersold by itinerant persons, to their injury; and, on the other hand, to guard the public from the impositions practiced by such persons in the course of their dealings. Attorney-General v. Tongue, 12 Price, 51. So by Judge Cooley:
“ ‘That the regulation of hawkers and peddlers is important, if not essential may be taken as established by the current practice of civilized states. They are a class of persons .who travel from place to place, among strangers, and the business may be easily made a pretense of a convenience to those whose real practice is theft and fraud. The requirement of a license gives opportunity for inquiry into incident and character, and the payment of a fee affords some evidence, that the business is not a mere pretense.’ ”

Several other authorities are cited in support of the conclusion at which State v.' Montgomery, supra, arrives that -the enactment in that ..state is constitutional although it .makes.such discrimination.

•It has seemed to me that this suggestion made by Judge Cooley as quoted in State v. Montgomery, supra, is entitled to weight; Of course it can not be said that all persons who travel from place to place are dishonest and that they are going about using the form of traffic as a cloak to disguise some fraudulent or corrupt purpose; but the Legislature in its enactments, or the council in its ordinances, makes general rules because of general evils or dangers, precisely upon the principle that a license is required as to certain occupations, in order that people may not be deluded by persons not skilled in their trade or profession, although there may be many unlicensed persons having abundant skill.

I have discussed this question at length .because counsel on both sides have sought a consideration of the case upon its merits as to the validity of the ordinance and the constitutionality of the law, and because it involves a question which may affect many municipalities in the state. Our view is that the court below was wrong in its conclusion that the statute of the state is unconstitutional and that the ordinance enacted under it is invalid, and we think for this reason that the judgment should be reversed.

Mr. Friedman: This question is of considerable importance. It is not the mere matter of these five dollars, but I have some forty-five clients I think altogether, in relation to that matter, and it is a matter of considerable importance, not only to us but to the city itself. I can say frankly that I deem it of even more importance than in this particular case the question of whether or not the mayor should issue the license, because the statute provides that the mayor should have a right to issue the license, and not only that ordinance provides that the auditor should issue the license, but also that we are charged in the affidavit with not having obtained a license from the auditor. It is of such interest to me that I trust the court will pardon me.

Judge Wildnián: 'I will sáy, if counsel desires, .although"! intended to cover the matter by the general statement made preliminary to consideration of the constitutionality of the statute and ordinance, that the statute does require that the license shall be obtained from the mayor. The ordinance provides that'the application shall be made to the mayor, and after certain examination the license shall be issued by the auditor, but we think that 'while the auditor is the clerical person who issues the license, he is but doing it as a ministerial act, and under the authority and by the direction really of the mayor. While the ordinance is somewhat irregular in this respect, it is not invalidated by this fact. We think that the mayor does, in effect, under the ordinance as well as under the statute, issue the license, and-when it is stated in the complaint that the defendant below was doing these acts without having obtained a license from the auditor, it means only that he has not obtained the license from 'the auditor as a last .step in a series of acts which would entitle him to the license. We deem it equivalent to an expression on the part of the affiant that he had no license. However, if the affidavit was defective in this regard, it was shown upon the trial without contradiction that defendant stated that he had no license.


text:
    PROSECUTIONS FOR. VIOLATING THE ROSE COUNTY , LOCAL OPTION LAW.
    Circuit Court of Wood County.
    George Rogers et al v. State of Ohio.
    Decided, May 11, 1911.

      Illegal Sales of Intoxicating Liquor — Trial of Several Cases Together— Stipulation as to Evidence — Defendants Not Entitled to a Jury— Plea in Abatement — Finding of Error Not a Disproval of Charge— Evidence as to Reputation of Physician Issuing Prescriptions for Intoxicating Liquor — Proof as to Number of Sales — Failure to Require the State to Elect Upon which Sale it Would Rely.

    1. It is within the power of counsel, where a number of cases are pending which are of the same character, to stipulate that they shall he tried together, but only such evidence as relates to a particular defendant shall be applicable to his case; and a reviewing court will • presume that the trial judge in determining the case of each .defendant considered only such evidence as was competent and perti- ■ nent to that case.
    2. A finding that error has intervened in a trial on the charge' of making sales of intoxicating liquor in “dry” territory, "does not amount to a finding that no sales were made, or render it im- ’: possible that the defendant be found guilty of keeping a ¡ place where such sales are made.
    3. Where the defense is proffered in such a case that the sales were made on the prescription of a physician, it is not error to hear testimony as to the reputation of the physician as bearing on the question of good faith in the issuing of such prescriptions.

      Benj. F. James, for plaintiff in error.
    . Chas. S. Hatfield, Prosecuting Attorney, and N. R. Harrington, contra.
    Ejnkade, J. (orally) ; Wildman, J., and Richards, J., concur.
   In the case of George Rogers et al, plaintiffs in error, against the State of Ohio, ten separate cases are considered.

These prosecutions were all instituted in the Probate Court of -Wood County and a conviction resulted at the trial in' each case, and a penalty was imposed.

The cases were carried on error to the court of common' pleas, and the court of common pleas reversed five cases on "which the prosecution had been sustained for “keeping a place.” The defendants below are here in the five eases that were affirmed below to reverse the action of the court of common pleas, and the state of Ohio.is here upon a petition in error in the other five cases to reverse the count of common* pleas.

It is stated' by counsel for Rogers, first, that they were entitled to a jury, but under the statute we think this claim can not be sustained. • . .

Second, it is said that the motion to quash was incorrectly overruled. We think that the action of the court was correct in this regard, and in it we see no error.

•Third, it' is said that the court was in error in overruling the demurrer. This action of the court we regard as correct.

'Fourth; it is'said that the court was wrong-in overruling the plea'in abatement. We have examined' the’ plea in abatement with care; and in our judgment.it is not.a plea in abatement, .but it is a matter which might be given in a plea of not guilty, and furthermore the matter-set up in the plea-in abatement we think does not constitute a defense to the prosecution, and therefore'.we find no error in the action of the court in overruling the plea in -abatement..

Fifth, it is stated there was error in the court admitting evidence over the objection of the defendants, and that this was found to be true by the judge of the common pleas court in -the five cases that he . reversed.

Sixth, it is stated that if the court of common pleas was correct in finding there were no sales, it must naturally follow he was wrong in the other eases, because if there were no sales, defendants could not be found guilty of keeping a place. We think this does not result at all. We do not see that the common pleas court found there were no sales.- The court found there was error in a case in which the state sought a conviction for making sales, and that was all; and we think this point is not well taken in the case.

Attention is called to the stipulation found on page 25 of the record, and it is said that even if the scope contended for by this stipulation by counsel for.state.,be .admitted, still.it could not avail here, for. .although made, by counsel it was. a stipulation which counsel could not make in a case of this character. -. We dispose of that by saying that in this character of casé we-see no objection at all to counsel making a stipulation of this kind. Furthermore, we think the stipulation was entirely proper. . Ten cases were to be heard. It could avail the ’ defendants nothing to insist on puttting in the same evidence in ten different cases. It would have multiplied the cost of taking the evidence by' ten, and it was in the interest of the defendants that the stipulation should be made by their counsel that was made — an entirely proper thing to do, and we think it clearly within the power of counsel to make that sort of a stipulation.

It is said there was error in receiving testimony as to the reputation of a certain physician. Passing the question now as to the .character of some of the evidence received, it may be said there was no error in receiving competent evidence as to the reputation of a physician, because the statute provides there shall be no liability for sales in good faith upon the prescription of a reputable physician.

The state claims that inasmuch as they were obliged to prove that the sales were in fact made upon prescription, that' they were entitled to prove also, and it was the state’s duty to prove that the prescriptions were not from a reputable source; that they were neither given nor acted upon in good faith, because if the state should not offer this evidence, the presumption would at once arise that the sales had been made in good faith, and as a consequence the state would prove itself out of court. ■ We tbink the position of the state was entirely correct, and it was competent that the state prove the reputation of the physician issuing this prescription, and also as to whether the prescriptions were accepted and filled in good faith, and whether they were secured in good faith by the purchaser. We find no prejudicial error in the evidence admitted in this regard. \ .

It is said that the fines imposed are excessive. The'fines Were within the terms of the statute, and we see nothing to indicate why this court should disturb them.-

This reviews the principal questions which were .considered by the court of common pleas in reversing the five cases -that it did reverse. As has been stated, there were ten cases on trial, some relating to one defendant, some to two, and some to three, and after the case had progressed to a given point, a stipulation was entered into. It is stated here by counsel for defendants that this stipulation was limited in character, and he seeks to have assigned to him only the portion of the stipulation which appears in the main sheet of the bill of exceptions, and to repudiate that which appears on the slip attached.

It is impossible for us to tell just what and all that was said 'at the time this stipulation was made, and we think it is not material. The probate court has found that the stipulation was entered into, and that the cases proceded under that stipulation. Now of necessity when that stipulation was entered into and the cases proceeded, there being three different defendants and the defendants being liable for different.sales at different times and under different circumstances, there would be evidence in'the eases thus offered that would apply to one of the defendants and not to the others, or to two of the defendants and not to the other. It is improbable that you could have ten cases presented under this form of stipulation and not ‘have that condition arise, and it is apparent to us that this stipulation was 'intended by the parties to provide just as it states, viz.: “that the object of this is to avoid the taking of testimony in all the cases and only such testimony as may be pertinent against'the defendant shall be considered in each case, and the evidence revelant to the other defendants will not be regarded”; and we must assume that the court in passing upon all the evidence' offered in one batch' like this, excluded the evidence that was not competent and pertinent to any one defendant whose case he was at the time considering, and that he considered only the evidence that related to that defendant’s case at that time.

The common pleas court in its opinion pointed out many embarrassments that would necessarily come to the trial court in carrying out this plan of .trial, and we think all that he has enumerated would come to him and we might name others; but the difficulty with it all is that the parties placed themselves before the court in -this manner, and they thereby imposed, upon the-trial court the duty and authority to thus discriminate,-sift, consider and apply this evidence, and the trial court did so' consider it and reached the conclusion he did.

The court of common pleas seems to think that the difficulty would be that it would be almost impossible for the trial judge to separate this evidence so as not to do injustice to. some of the parties, but it does not impress us that his difficulty would go that far. It seems to us that the record might be read, and the parts that relate to the other defendants excluded, and as I said, it must be presumed that the trial judge did that. We think if it had been submitted to this court, we could have done that.

It has been said that there have been a number of sales proven here. Counsel are familiar with the law of Ohio in that regard. The charge in the information is not a specific sale upon a specific day; it is a specific sale on or about a given date, and under that form of charge in the eases cited by counsel for the defendants in the 27 O. S. and 32 O. S., it is clear that the state had a right to prove other sales; had a motion been made at the close of the evidence as stated by Judge Baldwin in his opinion, the state would have been obliged to. elect upon which specific sale they would have relied for conviction, but it seems no such motion was made, and for that reason the cases were disposed of without any election.

There is another matter that we think may not have received perhaps as - full .consideration as it should have received at the hands of the common pleas court in reaching the conclusion he did reach and that is this: There is no statement in any of these bills of exceptions that they contain all the evidence. Counsel don’t contend that there is any such statement. (In this connection I call attention to the fact that while these bills of exceptions are intended evidently to be duplicates and in general are duplicates all the way through, some slight variation exists notwithstanding, as we find page 31 of the bill of exceptions is missing from cases Nos. 910, 911, 917 and 918.)

The certificates being omitted that the bills contain all the evidence, it may be said that much of the evidence in the ease that is said by the court of common pleas'to have been incompetent, might have been competent for aught we know, not having all the evidence before us. Near the close of the bill it is stated “that thereupon the plaintiff rested,” but it is not stated that the evidence produced is all the evidence that was put in. It is stated that the defendants rested, but it is not stated that the defendants put in no further evidence. It is stated that the defendants made offer to put in further and other evidence which was denied them, and to which denial, exception was taken.

Counsel are entirely familiar with the rule that every presumption obtains in favor of the correctness of the judgment that has been entered by the probate court, and as I say, there may have been other evidence in one case that made much of this evidence entirely competent. For instance, suppose the defendants in one case had testified, and suppose they had admitted the different sales. Suppose that Carmack had testified and had not only admitted the selling, but had admitted other sales, while he was a clerk of the Rogers Brothers — we are not saying that there was any presumption that he did so testify, but we say that every presumption obtains in favor of the regularity of the judgment, and it may be that much of the evidence that was held by the court of common pleas to be incompetent was made competent by something else that was said.

Suppose a bill of exceptions contained evidence of several witnesses testifying for the purpose of impeaching the reputation for truth and veracity of a defendant in a case, and the bill did not show whether it contained all the evidence, the court would be bound to presume that the evidence was competent. It would be -wholly incompetent if the defendant had not testified, or if any witness whose reputation for truth and veracity was thus attacked had not testified. The reviewing court would not be justified in saying that this evidence was not competent because the party attacked had not testified where the bill of exceptions is silent as to whether he did or did not testify.

We mention this as an additional reason why we are not able to reach the conclusion which the court of common pleas did in saying that some the evidence that was offered in the five eases for selling was incompetent.

We think that the stipulation should have been given a wider scope than was given by the court of common pleas. The stipulation taken in connection with the absence of the certificate that the bill contained all tbe evidence, leaves tbe case in sneh a form tbat we can not concur in tbe conclusions reached by tbe court of common pleas, and for tbat reason we are obliged to reverse tbe court of common pleas as to the five cases for selling, and affirm the judgment as to the others.


author: (Taggart, Donahue and Voorhees, JJ.).

text:
    PRESCRIPTIVE RIGHT IN A ROADWAY WHICH HAS SHIFTED.
    Circuit Court of Richland County.
    C. C. Staman v. Lewis Balliett.
    Decided, January 25, 1911.

      Adverse Possession — Prescriptive Right-of-way Along the Banks of a Stream Passes by Devise or by Conveyance — Shift of Roadway in Conformity to the Shift of the Adjacent Stream Does Not Defeat the Prescriptive Right — Ingress and Egress — Water and Water-Courses.

      1. A party who uses a road or way as a means of ingress or egress to his own land, without let or hindrance over the lands of another and without obstruction for a period of twenty-one years, acquires a right by prescription to its use as an incident to his land, and the right will pass by conveyance or by devise of the land.
    2. A prescriptive right to the use of á road or way over the lands of another along the. banks of a stream as a means of ingress and egress, is not lost, modified, or affected by reason of a shift in the traveled road or way within a period of less than twenty-one years, where such shift in the traveled road or way was due to a like shift in the bed or bank of said stream, and no more land was used after said shift than was necessary if the use of said way was to be continued as a means of ingress and egress; but in such a case the traveled road or way lawfully shifts with the bed and bank of the stream.

      C. E. Workman, for plaintiff.

      G. E. Ettston, for defendant.
    Appeal from common pleas court.
   Per Curiam

(Taggart, Donahue and Voorhees, JJ.).

This cause is in this court by appeal from the court of common pleas. The controversy between the parties arises from an alleged right of way leading from a public road in this county, known as' the Wooster road, and leading from tbe village of Mifflin; Ashland county, Ohio, westward across the Blackford or the Richland county line.

The alleged way is about thirty rods long and is claimed to he about "ten. to fifteen feet in width, and is claimed as a means of ingress and egress from this highway to a portion of the plaintiff’s premises. The plaintiff complains of the defendant that he wrongfully barred this way by a fence and posts preventing him from at all times passing and repassing over the alleged way, and he prays for an injunction requiring the removal of said fence and from interfering with the plaintiff in the use of the way. It is the claim of the plaintiff that he has been in peaceable occupation of this way for a period of time that Would give him a prescriptive right thereto.

The answer of the defendant in respect to the material allegations of the plaintiff’s cause of action are a denial, and he further áve'rs that, in’consequence of plaintiff’s straightening the stream to the -north of the.alleged right-of-way, the channel of the stream w;as changed and that a portion of the claimed driveway was wáshed away, a-ncl that .there is not sufficient room to drive between the fence, which he avers was to the west of the bank of sa'idrcreeli, and tlie "bank, of the creek; he further avers that the plaintiff has other means of ingress and egress to his said premises which, through his own fault, was interfered with, and that lie,.has no prescriptive right to said alleged way. This was denied and on. these issues the ease was presented to the court on the pleadings and evidence.

On behalf of the plaintiff there were certain witnesses introduced who testified directly to the fact of the way leading from the Wooster road to the eighty-nine acre tract of land to which it is claimed this way is a means of ingress and egress. These witnesses testified that for a great many years the way was used and they testified that they used it, so that considerable credence must be given to the witness who testified distinctly and affirmatively to facts which they themselves were cognizant of-.

Much of the testimony introduced on behalf of the defendant is that there was no such way, and that they had the means of knowing, but we think the clear weight of the testimony in this ease is to the fact that there was a traveled way substantially upon the line claimed by the plaintiff in his petition, and that it was used and intended as a means of ingress and egress to this eighty-nine acres of land.

In addition to the affirmative testimony on behalf of the plaintiff, a number of witnesses on behalf of the defendant testified that the plaintiff did use the disputed way in the summer of 1884 and each and every year since that date, up to the time that he was interfered with by the defendant. This would be a sufficient mite to give the plaintiff a right to use this way under the doctrine of prescription, unless the same was by permission. The defendant undertakes to say that the use of this was merely permissible and that before and while attempting to use it, he had sought the defendant out and secured his permission so to do. But this is denied by the plaintiff, and if in view of the testimony that is introduced in this case that prior to this alleged permissive use it was a matter of right, we tbink that the weight of the testimony is with the plaintiff in this case.

We perhaps would not need to introduce any authority supporting this proposition of the right of relief to the plaintiff further than the case of Pavey v. Vance, 56 Ohio St., 162, but it is insisted that the proof in this case shows from the fences and the remains of fences that have been dug up since, that the present traveled way has been changed, and that in consequence of the straightening of the stream to the north of the property in dispute, the traveled way has been so far interfered with that the plaintiff can not now claim the use of the same, and that, in the event that he attempted to pass and repass there, he could not pass within the boundaries of the former right-of-way, in consequence of a portion of the same being washed away by the stream.

But we think that Pomeroy v. Salt Co., 37 Ohio St., 520, 523, and the case of Holtsberry v. Bounds, 9 C.C.(N.S.), 510, answers this question. This latter case was affirmed by the Supreme Court without opinion, Bounds v. Holtzberry, 75 Ohio St., 636.

In the latter case, the right-of-way was shifted in many places, but a decree was entered confining the party to the width of the road or way as it formerly existed.

A decree may be entered herein for the plaintiff, enjoining the defendant from interfering with him in the use of this way, and a judgment may be entered for costs. Motion for a new trial will be overruled with exceptions, and twenty days allowed for separate findings of fact and conclusions of law.


text:
    A BUSINESS ENTERPRISE WHICH WAS NOT A PARTNERSHIP.
    Circuit Court of Cuyahoga County.
    Frank E. Taplin v. Christopher F. Emery.
    Decided, June 14, 1909.

      Partnership — '-Determination as to 'Whether One Contributing to the Enterprise Became a Partner — Mutual Agency the Final Test.

    The fact that E entered into an agreement with two others to carry on a certain line of business and that he advanced a substantial amount for that purpose and the three chose to denominate themselves as partners, does not create a partnership, where the usual incidents and criteria of a partnership are expressly excluded by the terms of the agreement and with them the element of mutual agency.

      C. F. Taplin, for plaintiff in error.

      Cools, McGowan & Foote, contra.
    Henry, J.; Marvin, J., and Winch, J., concur.
    Error to the court of common pleas.
   . The sole question in this proceeding in error is as to the construction of a partnership agreement attached to and made a part of the amended petition below, by which it is claimed that the defendant in error became and was a partner in the partnership firm of Denison, Prior & Company, and is liable, as such, for said partnership’s debts. Said agreement is as follows:

“Made at Cleveland this first day of May, 1899, by and between Charles E. Denison, party of the first part; Leland W. Prior, party of the second part, and C. F. Emery, party of the third part;
“Witnesseth, Whereas, the above named parties desire to éhgage as partners in the business of buying and selling bonds, stocks and investment securities, also to do a brokerage business in stocks, under the firm name of Denison, Prior & Co.
.„ “Said, parties, are to respectively contribute in cash for the capital of said. partnership the following sums, to-wit: Party of the first part, $50,000; party of the second part, $50,000; party-of the third part, $25,000.
‘1 Said parties of the first and second parts hereby bind themselves each to give their entire time, skill and ability to the promotion of said business, and are to have full and entire charge of the business -of said firm.
“It is mutually agreed that the parties of the first and second parts shall be credited monthly from said business, as salary, the sum of three hundred ($300) dollars, during the life of this partnership, also interest at the rate of 6 per cent, per annum on the amount of their capital; said interest to be credited semi-annually.
“It is also mutually agreed that the party of the third part shall be paid by the firm as full compensation for the use of his capital interest on same at the rate of 8 per cent, per annum, payable semi-annually, without regard to the firm’s profits or losses, and the parties of the first and second parts firmly agree to protect the party of the third part to the full extent of their power and resources, against any loss of his capital.
“Any profits earned over and above the salaries and interest charges mentioned above, shall be divided equally between the party of the first part and the party of the second part, and each shall be entitled to withdraw his share at the end of each year, or to leave same to his credit, on which 6 per cent, interest shall be paid by the firm.
“It is also agreed that any losses by the firm shall be shared equally by the party of the first part and the party of the second part.
“The obligations of this agreement shall be binding upon the parties hereto for a period of three years from May 1st, 1899, and as much longer ás mutually agreeable to the parties hereto, it being understood that the partnership shall terminate any time after three years, upon the giving of three months’, notice in writing of such desire by any one of the three parties interested.
“If for any reason this partnership should be terminated, it is mutually agreed that after paying each party the amount of his capital, and interest due thereon, the remainder of the property and assets shall be divided equally between the party of the first part and the party of the second part.
“It is hereby further agreed that the party of the first part and the party of the second part shall not, during the term of this agreement, endorse any paper except for. the purpose of the partnership nor become surety in any manner or in any sum whatsoever.
“It shall be the policy not to enter into any large or important contracts without the consent of both parties of'the first and second parts, and it is also mutually agreed that-the firm will not speculate in stocks or buy or sell listed stocks for its own account.
“In Witness Whereof, we have hereunto set our hands and seals the day aforesaid.
“Charles E. Denison,
“L. W. Prior,
“C. F. Emery.”

Plaintiff in error calls especial attention to the following features of this agreement:

First. That Emery by his own agreement is called a partner in this firm.

Second. That the words “and company” in the firm name imply that Denison and Prior were not the sole partners in the firm.

Third. That the sum advanced or contributed by Emery is denominated and treated as ‘ ‘ capital. ’ ’

Fourth. That Emery is accorded by the agreement the power of dissolution of the partnership.

Fifth. That although, as among the partners, Emery is given priority over the other two in the liquidation of the firm assets, yet a proper interpretation of their agreement gives him no such priority as against the firm’s creditors, so that he has in fact risked his money as capital in the firm business in a sense different from any one merely lending money to the firm.

Sixth. The agreement by its own terms gives him a certain control over the business by reason of its limitation of salaries to be paid to Denison and Prior, a covenant inconsistent with the exclusive and sole control of the partnership business by Denison and Prior alone.

Seventh. By the agreement Emery is given some share in the profits, in the sense at least that he was interested in there being profits, so that he might not have to resort to the guaranty by the other two parties to the agreement.

On the other hand, it is evident that nearly all the incidents and criteria of a partnership are expressly excluded by the terms of the agreement- itself. The mere fact that Emery himself as well as the other parties to this agreement have seen fit to denominate themselves partners does not make them such, either as to one another or as to the world. Oliver v. Gray, 4 Ark., 425; Saylers v. Nixon-Jones Iron Co., 20 Ill. App., 509.

Indeed, it is substantially conceded that such is the law, and if it were not, authorities to that effect might be multiplied.

What, then, in the last analysis is the crucial test of the fact of partnership, where the question is, as in this case, uncomplicated by any holding out as such?

The first paragraph of the syllabus of Harvey v. Childs et al, 28 Ohio State, 318, is as follows:

“The liability of one partner fur the contracts of another, when not estopped from denying the liability, is founded on the relation they sustain of being each principal and agent in the joint business. That relation is, therefore, the true test' of a partnership, and the liability rests on the ground that it was incurred on the express or implied authority of the party sought to be charged.”

In the opinion by Day, J., at page 321, the court says:

“Although a partnership may be said to rest upon the idea of a communion of profits, nevertheless the foundation of the liability of one partner for the acts of another, is the relation they sustain to each other, as being each principal -and agent. That relation, it would seem, then, constitutes the true test of a partnership liability, and rests upon the just foundation that the joint liability was incurred on the express or implied authority of the party sought to be charged.
“But if the relation of principal and agent be regarded as the test of a partnership and consequent joint liability, the question still remains, what shall be deemed sufficient evidence of that relation, or to raise the implication of authority to incur the liability in question?
“To this end numerous tests have been supposed to exist; but the hest considered and least objectionable is that of a community of interest in the profits of a business or transaction as a principal or proprietor. Parsons, Partnership, 71 and note; Collyer, Partnership, Secs. 25, 44. See also Story, Partnership, Sec. 36, 38, 60; Berthold v. Goldman, 65 U. S., 124; How., 536.
“But this test is valuable as a rule chiefly because it evinces a relation between the parties, where each may reasonably be presumed to act for himself and as agent for the others, and to that extent establishes the fact that the liability was incurred on the authority of all so participating in the profits. . Participation in the profits of a business, however, can not be regarded as a rule so universal and unrelenting as to be unjustly applied to a case where a debt is incurred by one who can not be said to be acting, in the particular transaction, as the agent or on behalf of the party sought to be changed. Therefore, on principle, the true test of a partnership, at least, is left to be that of the relation of the parties as principal and agent, to be proved by any competent evidence; for when they sustained that relation, a joint liability may be said to have been incurred by the authority, or on behalf of each of the parties so related. The tendency of the more modern authorities, both English and American, is to this conclusion.”

So far at least as this state is concerned, this analysis of the subject would seem to be conclusive; and the element of mutual agency seems to be expressly excluded, so far as Emery is concerned, by the terms of this agreement.

Cases may be, of course, and they are cited in abundance, in support of the proposition that a partnership may exist with any of the usual elements wanting. There are also eases where nearly all the usual elements of a partnership are wanting, and yet a partnership has been held to exist, but we find no case where all the important elements, including that of mutual agency and mutual sharing in the profits and losses are wanting, and yet the existence óf a partnership is affirmed. By assuming in this case that the agreement in question prima facie constitutes the partnership which it purports in name to create, it is easy to show seriatim that the absence of the ordinary indicia of partnership need not be fatal to its existence as such, but if we start with the contrary assumption, it is impossible to construct a partnership out of the meager elements in this agreement on which the plaintiff relies. And the same is true if we start without any presumption whatever and merely balance the arguments pro and con.

Reliance is put upon Hunter v. Newman, 1st Nisi Prius, 307, which is affirmed in 52 Ohio State, 659, 660, and an examination of that case discloses that although the facts are not unlike those in the case before us, there is this essential difference, namely: that the contract is in terms an agreement for “a limited partnership,” under Revised Statutes 3141, et seq.. and it is not controlling in respect of the question now under consideration.

It would unduly prolong this opinion to undertake an analysis of the great multitude of cases which bear in one way or another upon the construction of this agreement. Suffice it to say, that we do not find in its provisions any sufficient evidence that it constituted Emery a partner in the firm of Denison, Prior & Company.

But it is urged further that though it may not be sufficient to that end, it may nevertheless suffice as a basis for the introduction in evidence of the partnership books, showing that Emery’s contribution to the assets of the firm was charged'to capital account, and that Emery was otherwise treated in the bookkeeping as a partner, consistently with the terms of' the agreement; also that the agreement affords sufficient basis for the introduction of the published notice of dissolution, which though never brought to the plaintiff’s attention,. might be deemed to-afford some evidence of Emery’s status as a partner. We fail to find any merit in this contention. None of these items of evidence proposed to be introduced would operate with the agreement to enlarge its terms and limitations.

We hold that there is no error in the record before us, and the judgment is affirmed. '


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    LIABILITY OF MUNICIPALITY FOR UNNECESSARY DESTRUCTION OF SHADE TREES.
    Circuit Court of Tuscarawas County.
    Village of Newcomerstown v. Sheldon Dickenson.

    Decided, December Term, 1905.

      Shade Trees — Unnecessary Destruction of, in Improving Street_Municipality Liaible Therefor.

    The officers of a municipality, have no right to destroy shade trees growing in the street in front of the property of an abutting owner, unless their removal becomes necessary in order that the space may be used fdr street purposes; and 'an abutting owner who'has been injured by-, the unnecessary destruction of his trees may recover damages from the municipality therefor.

      McCarty, J. (orally); Donahue, J., and Taggart, J., concur.
    Error to common pleas court.

       Affirmed by the Supreme Court without opinion, Newcomerstown v. Dickenson, 77 Ohio St., 597.

   This ease presents simply the question as to whether the town council of the village of Newcomerstown had the right to pass a resolution and ordinance which authorized the cutting down and removal of some shade trees. Mr. Dickenson had some valuable maple shade trees in front of his lot. They were pretty near at the street, but were inside the curbing. Council caused at one time an ordinance to be passed for the removal of all trees, and without any notice to him until about the time they were commencing to cut them down, that they were to remove his trees. Well, he had three large maple trees, in his lot which the street pavement went around and left inside, and the village authorties proceeded to cut them down, and the action was brought for damages for so doing. And they set up several defenses, and three or four of those defenses were demurred to, and overruled, and exceptions taken, and so the whole matter is before us on error — whether the court below did right, first, in holding that demurrer to those grounds of defense ought not to have been sustained, and second, as to whether the verdict is sustained by proper and sufficient evidence so as to entitle the plaintiff: to recover.

We have carefully gone over the case, and have reached the conclusion that the town council did not have any right to cut down those shade trees, unless it was necessary to take them out for the purpose of using the ground for street purposes. Some people'place more stress on shade trees than they do upon anything else. Some people nourish them and cherish them and live under them and prefer to have them allowed to remain, and they object when anybody interferes, and whenever it is unnecessary to take them away for any other purpose than for the purpose of streets, the authorities violate a property right in removing or interfering with them-.

A motion was made for a new trial in this case, and also for a judgment for the two or three hundred dollars awarded as damages, but the motion for a new trial was overruled and exception taken, and the case came here on a petition in error. We find no error in this proceeding and therefore hold that the judgment should be affirmed with costs.


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    DESTRUCTION OF SHADE TREES IN BUILDING SIDEWALKS.
    Circuit Court of Stark County.
    City of Massillon et al v. Benjamin F. Huff.
    Decided, February 19, 1910.

      Shade Trees — Liability for Destruction of, in Building Sidewalk — Municipal Corporations — Damages—Streets.
    A municipality and its contractors are jointly liable for damages to shade trees by contractors for a street or sidewalk improvement, where the work is done under the direction of the city engineer, and the removal or injury to the trees was unnecessary in order to make the work conform to the established grade.

      George W. Kratseh and Thomas C. Davis, for plaintiff in error.'

      McCaughey & Eggert, contra.
    Error to common pleas court.
   Per Curiam

(Taggart, Donahue and Voorhees, JJ.).

The action out of which this proceeding in error arises was brought in the common pleas court of this county, by Benjamin F. Huff to recover from the city of Massillon and Weible & Schott, contractors, for, the destruction of shade trees planted by the plaintiff in front of his premises and upon the street on which his lot abuts, between the sidewalk and the curbing; and the plaintiff avers that said shade trees so planted by him in nowise interfered with or obstructed the grading of said street in accordance with the established and reasonable grade, nor with the proper and reasonable grading of the sidewalk; bui that the defendant contractors under the direction and control of the city through its engineer, wholly disregarded the plaintiff’s rights, and cut and excavated the ground - under the sidewalk in front of plaintiff’s said lot to a great and unnecessary depth, and in so doing unnecessarily, purposely, willfully and unlawfully cut out, carried away and-wholly destroyed three of plaintiff’s shade trees so planted by him g.s aforesaid,

It was agreed in the trial of this canse that if the plaintiff was entitled to recover at all, that the value of the trees so removed was. $125; -so that the only question in this case is the right of the plaintiff to recover for trees upon the streets and alleys of the city in front of his property.

It is conceded by the defendant in error that if in the grading of the streets to the depth necessary to construct the curbing and sidewalk on the established grade, the trees are in the way, the city or its employes, the contractors, would have a right to remove them, and plaintiff would be without remedy.

It is contended on the other hand that the city council had absolute control of the streets, and is the only forum in which the necessity for removing the trees is to be determined.

In this case the city council by proper ordinance established a. .grade, on the street, and under the supervision and control of its officers, the contractors, proceeded to make it conform to said grade; so that the city by its council did not determine whether there was necessity for removing these trees or not. The question for the jury was whether in the work of making the streets and sidewalks conform to said grade so established, it became necessary to destroy the trees; but whether the grade was. a proper one was not a question for the jury. That is conceded.

The only question for the jury was whether the contractors and. city engineer in performing the labor required by the ordinance must of necessity destroy the trees; or whether the doing of the same was an unnecessary -and wanton violation of plaintiff’s rights, for which he might recover.

We have no doubt but that the plaintiff has such a property interest in those shade trees planted and maintained by liim on the street with the knowledge and consent, of the city council that he may recover for any unnecessary injury thereto.

This court in the case of Newcomerstown v. Dickenson, ante (affirmed, without opinion, Newcomerstown v. Dickerson, 77 Ohio St. 597), so held-; and the opinion of Judge McCarty in that case shows the view of the court in reference to the rights of the owner of abutting property in shade trees on the street adjacent to-his-premises.-: That-case-was taken-to the Supreme Court of Ohio, and affirmed; so that we think the law in, this behalf is fully settled in this state. . i .,{-f

There is also a claim made that the city is not liable .for .this damage, because it was accomplished by independent contraer tors; but the charge is made, and the proof seems to us to sustain it, that these contractors were performing the work under the direction of the city engineer, and therefore, if there was a. wrong, at all, it seems to us that the evidence establishes that it was the. joint wrong of the city and contractors combined.

The judgment of the common pleas court is affirmed with costs,. without penalty. ....


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    OCCUPATION OF STREET WITH RAILWAY TRACKS.
    Circuit Court of Hamilton County.
    Cincinnati Gas Coke, Coal & Mining Co. v. Baltimore & Ohio Southwestern Railway Company.
    Decided, July, 1911.

      Streets — Two Railway Tracks in a Street Not an Exclusive Occupation Thereof — Removal of Track from Center Toward Curb of Street.

    1. The placing of two railway tracks on a street from thirty-six to. forty feet in width between the curbs does not amount to a destruction of or an exclusive occupancy of the street, and injunction against' such use of the street will not lie upon the petition óf abutting property owners, where an action by the railway company to condemn their rights, in the street in pending^
    2. In the case at bar-the trustees of.the Cincinnati-Southern -Railway . - have -ample power, to move -the -B. & O. S. W. Railway track from the center.jto one side of the street in order that its own track may he laid on the other side.
    ' Tbé Trastees of the Cincinnati Southern Railway acting under Section 3 of ‘the supplemental Southern Railway Act’ of May 4, 1869 (70 Ohio Laws, 139), resolved, in 1903, to'lay a track on Front street in. this city for the purpose of connecting its line with, its freight depot at' Nine street, and received the assent of the board of public service, successor of the board of public works of said city, thereto. In 1910 it passed a resolution condemning the rights of the abutting property owners on said street, for the purpose of laying said track, and to that end to move a track of the Baltimore & Ohio Southwestern Railroad, which was already in the street, "six feet to the southward, so that when the construction should be finished there would be two tracks in the street. The street is sixty feet wide in some places and sixty-six feet wide in others, and the roadway, from curb to curb, is thirty-six feet wide in places and forty feet wide in other places. The Baltimore & Ohio Southwestern Railroad entered into an agreement with the Trustees of the Southern Railway, consenting to the making of this alteration in the location of its track. The trustees then began a suit in the court of insolvency to condemn the rights of the abutting property owners along the street for the purposes aforesaid. The design of the trustees to change the location of the Baltimore & Ohio track appeared upon the face of the application to assess compensation. The abutting property owners then began this suit in the court of common pleas to enjoin the trustees from laying the track in Front street and from removing or altering the location of the Baltimore & Ohio Southwestern Railroad track.
    It was claimed by the abutters that the placing of two tracks in the street would amount to a destruction of the street and that this was beyond the power of the trustees, and that it was also beyond the power of the trustees to change the location of the Baltimore & Ohio Southwestern track, whatever might be the rights of the trustees with regard to the Southern Railway track. The court of common pleas found that although the trustees, under the act in question, would have a right to take the whole street, its proposed use did not constitute such a taking, but that the trustees did not have a right to alter the location of the existing-Baltimore & Ohio Southwestern Railroad track in the street, and granted an injunction against doing so, from which the trustees of. the Cincinnati ■ Southern Railway, took an appeal to the circuit, court,

      Pogue & Pogue, Strieker & Johnson, Albert Bettinger, Kramer & Bettman, Healy, Perris & McAvoy, Wm. C. McLean and Miller Outcalt, for plaintiff.

      Edward Colston, for the Baltimore & Ohio Southwestern Railroad Company.

      John W. Peck, for the Trustees of the Cincinnati Southern Railway.
    Smith, P. J.; Swing, J., and Jones, J., concur.
   The court feels that there is no need of further consideration of this cause. We are unanimous that no injunction should be granted and that the petition should be dismissed. We are of the opinion, in the first place, that the question presented here could and should be presented in the insolvency court.. If that is not so, we think there is no exclusive occupancy of Front street proposed, and that the trustees have full power to proceed as they are proceeding. As to carrying out the' contract between the trustees and the Baltimore & Ohio Southwestern Railroad Company, we. believe that the power of the trustees is ample; that in occupying Front street by the track of the Southern Railway, the trustees have ample power to move- the -Baltimore & Ohio track; and further, upon the evidence, the usage proposed is not an interference with the public use of the street as would destroy such use. • ■ .