text:
    RIGHTS OF A MORTGAGEE WHO FAILED TO FILE PROOFS WITHIN SIXTY DAYS OF A FIRE LOSS.
    Circuit Court of Franklin County.
    The Ohio-German Fire Insurance Company v. Emma Krumm.
    Decided, September 27, 1909.

      Fire Insurance — Construction of the “Union Mortgage Clause” — Intention Toward, the Mortgagee as Shown by the Mortgage Claus.e— Meaning of the Words “the Insured’’ — Conditions which Comply with the Promissory Clause.

      A mortgagee may recover upon a fire insurance policy, containing what is known as the union,mortgage clause of the standard policy of New York, New Jersey and Connecticut, for a loss of the property by fire, when neither he nor the mortgagor present proof of loss within sixty days after loss as required of “the insured” by a condition in the policy.

      Sheets & West, for plaintiff in error.
    G. E. Bibbee, contra.
    Allread, J.; Sullivan, J., and Dustin, J., concur.
   The question arising in this case is whether the mortgagee may recover upon a fire insurance policy containing what is known as the union mortgage clause of the standard policy of New York. New Jersey and Connecticut, for á loss of property where neither he nor the mortgagor presented proofs of loss within sixty days as required of “the insured” by a condition in the .policy. It- is conceded that the mortgagee presented proofs of loss to the company before the suit was- brought, but not within sixty days after the loss occurred.

It is contended by the insurance company that the mortgage clause which contains a stipulation that the insurance of the mortgagee shall not be invalidated by any act or neglect of the mortgagor .does not relieve the mortgagee from compliance with the conditions of the mortgage precedent to the bringing of the suit, namely, the giving of notice and proofs of loss-.

The courts of other states are divided upon this question and no. decision of our own courts has been cited.

The cases of Building & Loan Company v. The Home Insurance Company, 90 Ga., 167, and Loan & Building Co. v. Dwelling House Insurance Co., 62 Mo. App., —, support directly the contention of the insurance company. The text in Joyce on Insurance lays down the rule as contended for by the insurance company, citing the Georgia case as authority. There are other cases cited by counsel for the insurance company in line with these cases, but not directly upon the question of proofs of loss, or where the policy is not similar to the one at bar.

On the other hand, the latter case of Adams v. Farmers Mutual Insurance Co., 115 Mo. App., 21, is directly opposed to the former case in the same court, and holds that the mortgagee under a mortgage clause similar to the one involved here is not required to present proofs of loss within sixty days as required of “the insured” by other conditions in the policy. This view is also supported by the cases of Glenn’s Falls Insurance Co. v. Porter, 44 Fla., 568, and Northern Assurance Co. v. Chicago B. & L. Association, 98 Ill. App., 152.

Clement on Insurance in the text supports the proposition that the mortgagee is not required to furnish proofs of loss within sixty days, citing the cases .above referred to as supporting that proposition. The author, evidently from an examination of all the cases, concluded to support the doctrine of the Florida'and other eases supporting it’ rather than that of Georgia.-

We are also of the opinion that the cases supporting the view that the mortgagee is not required to furnish proofs of loss within sixty days as a condition of recovery are founded upon the better reason. •

It is clearly the intention.by the mortgage clause here tó- afford a higher degree of insurance to the mortgagee and to relievo him from many of those conditions which are imposed upon the mortgagor.- The reason for this may be found in the fact that the mortgagor is ordinarily in possession and responsible for the care of the property, and is more liable to have opportunity for the imposition of fraud. This view was evidently in the mind of the insurance company when it prescribed this form of policy, and no reason is apparent why the court should construe this clause as against its- express terms in favor of the insurance company, but in case of doubt the mortgagee, is entitled to'-a liberal construction in his favor.

It is, however, contended that the mortgage clause is not inconsistent with the conditions of the policy requiring notice and proofs of loss; that the term, “the insured,” as used in the conditions- requiring proofs of loss, includes the mortgagee as well as the mortgagor; and that, therefore, the mortgagee must see that these proofs are furnished within the period stipulated in the policy. Upon reading the petition however, which shows that the owner of the property took the insurance and paid the premium, and also looking to the nature and character of the information to be given by “the insured” at the time' of the-fire, and the nature and character of the proofs of loss, it is fairly indicated that the term “the insured” relates to' the owner and not to the mortgagee. This view is well stated and illustrated in the case of Union Institution for Savings, etc., v. Phoenix Insurance Co., 196 Mass., 230.

We think, therefore, that a reasonable construction of this policy- is that the mortgagor is the insured and-required to''furnish proofs of loss within sixty days after the fire as a condition of his recovery, and that that clause does not apply to the mortgag.ee, and that he may recover notwithstanding the failure of cither to furnish proofs of loss within sixty days. , .

It is-'also urged that the promissory clause of this policy only provides for payment of the- loss within sixty days after proofs of loss according to the terms and provisions of the policy, and that unless such proofs of loss are furnished -by some one, the promissory clause does not obligate the company to pay. It mil be observed from the record in this ease that the mortgagee did file proofs of loss at least sixty days before the suit was brought, and inasmuch as the terms and conditions of the policy do not require the mortgagee to file proofs of loss within sixty days, wo think the promissory clause has been complied with by the filing of these proofs of loss after the sixty days from loss and at least sixty days before the filing of the petition.

. The' judgment of the court below, therefore, sustaining the demurrer to the answer and rendering the judgment in favor of the mortgagee upon the policy, is consistent with our view of the law of the ease, and is affirmed. .


source: Caselaw Access Project

license: Public Domain

text:
    AS TO DISCHARGE OF SURETY BY DELIVERING THE ACCUSED. - .
    Circuit Court of Cuyahoga County.
    Henry DuLaurence v. The State of Ohio.
    Decided, November 15, 1909.

      Bail Bonds — Release of Surety upon Delivery of Accused not Effective to Discharge Bond, Unless — Section 7177.

    A surety on a bail bond who desires to surrender the defendant and delivers him in open court, is not discharged from further responsibility on his bond until the court accepts said delivery, and the only evidence of the delivery is the record of the court.
    Winch, J.; Henry, J., concurs; Marvin, J., dissents.
    Error to the Court of Gommon Pleas.
   This was an action on a bail bond. DuLaurence admitted the due execution of the bond but pleaded surrender of his principal. No record evidence of the surrender was offered, but parol evidence on the subject was produced by' both sides. Such serious errors were committed in the introduction of this evidence that the judgment must be reversed, unless the record is the only competent evidence of the surrender. If such is the law, the judgment is manifestly right and the rulings complained of are immaterial and without prejudice.

The statute, Section 7177, reads as follows:

“When a person who is surety in a recognizance for the appearance of a defendant before any court, desires to surrender the defendant, he shall, by delivering the defendant in open court, be discharged from any further responsibility on said recognizance, ’ ’ etc.

We are agreed that if the delivery is complete without any acceptance by the court, parol evidence is sufficient to prove it. If the delivery is not complete until the court takes some official action upon it, it would seem that such official action can only be shown by the court’s records. A majority, of the court is of the opinion that delivery is not complete until acceptance by the court and that the record is the only evidence thereof.

A similar division of opinion is- shown in the interesting case of Fitch v. Hall, Kirby’s Report, page 18, a case decided 125 years ago, and the. argument is there stated on both sides with the brevity and clearness found in the old reports.

As sustaining the conclusion here reached, reference is made to the following cases: State, ex rel, v. Este et al, 7 Ohio, 1st part, 134; Whitton v. Harding, 15 Mass., 504; Rountree v. Waddill, 52 N. C., 309.

Judgment affirmed,


text:
    RECOVERY BY WIFE BECAUSE OF SALE OF OPIUM TO HUSBAND.
    Circuit Court of Cuyahoga County.
    Henry H. Flandermeyer v. Lillie M. Cooper.
    Decided, November 1, 1909.

      Action for Injury to Consortium — Proximate Cause of Injury — Implied Malice — Intervening Agency — Intention-Sale of Opium to Susland —Damages Awarded, to Wife.

      A wife may maintain an action for the loss of the society and companionship of her husband occasioned by the wrongful acts of a druggist who, against her protest, wantonly or maliciously furnishes ' her husband, an opium habitue, with morphine in such quantities as to incapacitate him.

      A. H. Martin, for plaintiff in error.

      Ewing, Nieding & Kramer and A. Frank Counts, contra.
    Winch, J.; Marvin, J., concurs; Henry, P. J., dissents.
    Error to the Court of Common Pleas.
   The amended petition in this case claims damages for maliciously, willfully and unlawfully depriving the plaintiff, Lillie M. Cooper, of the society, companionship and consortium of her husband, Charles A. Cooper.

She says that in the month of June, 1905, the defendant, IT. II. Flandermeyer, a pharmacist, conducting a drug store in the city of Cleveland, sold morphine to her husband in such quantities that he became a slave to the drug. She further says:

“That from and after June, 1905, and until June, 1906, at divers dates which the plaintiff can not specifically set forth, although the defendant, well knowing that the plaintiff. Avas using every available means to cure and counteract the habit thus, formed, and although she frequently protested to the said defendant against his further selling or administering said morphine, • and expressly warned and prohibited said defendant from continuing said sales or administration of morphine to the said Charles A. Cooper, yet the said defendant, having thus created an appetite in the said Charles A. Cooper for- the said drug, morphine, and well knowing that the drug was being used not for medicinal purposes, but through a craving that had fastened itself upon him, whereby he was becoming and had become what is known as a morphine fiend, and was thereby wrecking his mind and body, the said defendant did willfully, wrongfully, maliciously and unlawfully continue to sell and administer quantities of morphine to said Charles A. Cooper, said sales becoming constantly more frequent, until they occurred almost every day, and being in bulk quantities less than the minimnm original package of one eighth ounce, as provided by law, so that the said Charles A. Cooper became a slave to the baneful habit.of taking morphine into his system, thereby wrecking his mind and body, and depriving him of moral sensibility, by reason whereof he became and was unfitted and incapable of giving the affection, society, companionship, and consortium which he had formerly given and which were due to his wife, the plaintiff, and that by the means aforesaid so furnished by the defendant knowingly, willfully and unlawfully, the plaintiff has been deprived of the affection, society, companionship and consortium of her husband.
‘ ‘ The plaintiff further says that finally, in consequence of the defendant’s unlawful and willful acts, on the 16th day of June, 1906, it became necessary for the said Charles A. Cooper to be confined in an asylum, and to be detained therein for a long period of time, namely, about one year, whereby the plaintiff was further deprived of the consortium of her husband.”

Issues were made up on this cause of action; the ease was tried to a jury, resulting in a verdict for the plaintiff in the sum of $500; judgment was rendered upon the verdict, and the cause is now here for review.

The grave objection to this judgment, raised by demurrer to the petition, motion for judgment both before verdict and on special findings of the jury, exceptions to the charge, and in other ways, is that not the selling of the drug, but the husband’s voluntary and independent act in taking it into his system was the proximate cause of the injury complained of. There was no evidence that the druggist administered the drug, further than selling it to the husband.

This objection is very well-stated by counsel for plaintiff in error in the following language:

“To sustain an action for injury to one’s consortium, if such an action can be sustained in this state, in any case other than. a case for alienation of affections, the alleged injury must be the result of a force exerted directly upon the marriage relation, with the purpose of injuring plaintiff’s consortium, and the act of the consort responding to that form must not be voluntary. ’ ’

An analysis of this objection requires a consideration of the nature of this action.

Tiffany on Persons and Domestic Relations (Hornbrook Series), page 80, speaking of the action by the husband for alienation of his wife’s affections, says:

“Whatever may have been the principle, originally, upon which this class of actions was maintained, it is certain that the weight of modem authority bases the action on the loss of consortium, that is, the society, companionship, conjugal affections, fellowship and assistance. The suit is not regarded in the nature of an action by a master for the loss of the services of his servant, and it is not necessary that there should be any pecuniary loss whatever.”

Passing next to a consideration of the wife’s'rights, he says, on page 83:

“In most, but not all, jurisdictions, a wife has a right of action against one who entices away, or alienates the affections of her husband; at least where her disability to sue alone has been removed by statute. According to the weight of opinion, the right exists even at common law.”

So we find it has been held in this state:

“A wife may maintain an action for the loss of the society and companionship of her husband, against one who wrongfully induces and procures her husband to abandon or send her away.
“The acts of the defendant that caused the alleged injury must have been malicious.” Westlake v. Westlake, 34 Ohio St., 621.

In discussing the question of malice, the court, on page 634 say:

“The term malice, as applied to torts, does not necessarily mean that which must proceed from a spiteful, malignant or revengeful disposition, but a conduct injurious to another, though proceeding from an ill-regulated mind, not sufficiently cautious before it occasions an injury to another. 11 Serg. & R., 39, 40,
“If the conduct of the defendant was unjustifiable and actually caused the injury complained of by the plaintiff, which was a question for the jury, malice in law would be implied from such conduct, and the court should have so charged.”

In 5 Words and Phrases Judicially Defined, 4298, we find the following definition:

“Malice, in common acceptation, means ill-will against a person; but in its legal sense it means a wrongful act done intentionally, without just cause or excuse.”

The learned trial judge followed the doctrine of the Westlake case and properly charged as to the element of malice and declined to charge as to the doctrine of intervening agency, saying that he thought there was no place for that doctrine in the case.

Remembering that the wrong here complained of is charged as the intentional and not the unintentional act of the defendant, was .not the trial judge right?

The intentional wrong here involved was the selling of the morphine to a morphine fiend, knowing and intending that he should take it, and fully realizing the results that Avould flow to the wife, for she had stated them to the druggist and ordered him to sell her husband no more morphine. The intervening act of the husband, so-called, was in no sense intervening, but contemplated, understood and expected at the time of the sale. It was part of the process by which the druggist would accomplish his purpose if he was actuated by express malice, and why should the rule be different if his malice is merely implied by law from his reekless conduct? Indeed, some of the evidence in this case would almost warrant the jury in finding that the druggist was actuated by express malice. The wife testifies:

“I followed Mr. Cooper to watch where he was going, and I went in and Mr. Smith (a clerk in the store) was just about to hand him something over the counter. I said: ‘Mr. Smith, are you selling him morphine or any drug, or anything of that kind? If you are, I will make trouble for you.’ Pie said: ‘You can’t stop me.’ And this all happened after she had warned Flandermeyer not to sell to her husband, his only answer being :• You can’t forbid us, because we are selling it by the quantity.”

The final results to Cooper from taking the morphine were that he tried to commit sqicicle find landed in the insane asylum, where he remained a year; the result to the wife was that she was deprived of the consortium of her husband. If a wife can be wronged in her conjugal rights by one who wrongfully induces and procures her husband to abandon her, as in the West-lake ease, why not by one who deliberately feeds the husband a poisonous drug instead of poisonous words which produce the same result?

At least two courts have found the principles upon which suits for alienation of affection are based, applicable in actions such as we have here. They were both eases where the druggist sold laudanum to the wife. Hoard v. Peck, 56 Barb., 202; Holleman v. Harward, 119 N. C., 150.

We hold, then, that the wrong here committed was not merely a moral wrong, but an actionable one, and the record of the ease supports the verdict of the jury.

Complaint is made as to certain rulings on evidence, which we have examined, but find no prejudicial error in them.

Judgment affirmed.


text:
    AS TO SETTLEMENT OF DAMAGES FOR A TORT.
    Circuit Court of Hamilton County.
    Emma DeGarmo v. Cincinnati Traction Company.
    Decided, July 3, 1909.

      Failure to Bead Paper before Signing — Not Negligence, When — Release — Evidence—Error in Arresting Case from Jury.

      Horace A. Reeve, for plaintiff in error.

      Kittredge, Willy & Stimson, contra.
    Giffen, P. J.; Swing, J., and Smith, J., concur.
   At the time plaintiff signed the release pleaded as a defense, it was not known that she had sustained any serious bodily injury, although she was extremely nervous.

She testifies as follows:

“I said what am I signing this for ? He said it is to show that I paid you the money for dress damages.”

The conversation was confined wholly to the damages to her dress, for which she received fifteen dollars. Under such circumstances it was not negligence on the part of plaintiff to omit reading the paper before signing, and the court erred in arresting the case from the jury. Perry v. O’Neil & Co., 78 O. S., 200.

It was error also to sustain the objection to: “Q. Did you rely upon what Mr. McCarthy told you?”

Judgment reversed and cause remanded for a new trial.


text:
    AUTHORITY OF JUVENILE COURT SUPERIOR. TO THAT OF PARENTS.
    Circuit Court of Franklin County.
    Lewis Travis v, The State of Ohio,
    Decided, October, 1909.

      Juvenile Court — Constitutionality of the Act Establishing — Designation of a Judge to Act — Authority to Distribute Business among Judges having Like Original Jurisdiction — Is not a Conferring of Jurisdiction — Validity of Provisions for the Care of Delinquent and Dependent Children — Police Power.

    1. The act of April 16, 1906, establishing' juvenile courts and establishing procedure therein, does not contravene any of the provisions of the state Constitution.
    2. In counties where three or more common pleas judges regularly hold court concurrently, it is competent under Section 548-36/ that the probate judge should be designated to perform all the duties pertaining to the office of judge of the juvenile court.-
    Sullivan, J.; Dustin, J., and Allread, J., concur.
    Heard on error.
   The judges of courts having like original jursidiction may arrange for a proper distribution of the business coming before said courts. ' .

As an illustration, the Court of Common Pleas of Franklin County is presided over by several judges. They are authorized to establish rules to facilitate the disposition of the business coming before the court. • One of these provides for a division of the business among the- several judges.

The act in question (Juvenile Court Act) authorizes the judges of the several courts of equal jurisdiction to designate one who shall hear and dispose of the business in which each is given equal original authority. Jurisdiction consists of the power to hear and determine. The source of this power resides in the Legislature. In this act it is conferred upon the several courts named by that authority, arid the mere selection by the several judges of one to dispose of the business is not conferring jurisdiction. For, without such designation, either of the courts named could entertain jurisdiction of the matter specified in the act; whilst if the authority was conferred upon the judges, neither of said courts could exercise the power to hear and determine unless authorized by the judges beforehand. The court first acquiring jurisdiction would hold it until the action was finally disposed of.

The constitutionality of the act was challenged in the case of Giltman v. State, before this court in Clark county. We were then of the opinion that the act did not contravene any of the provisions of that instrument. A re-examination of the act does not convince us that our opinion in the G-iltman case was wrong; and it is, therefore, adhered to here. This would dispose of all the points presented by plaintiff in error, and rendered it unnecessary for further discussion and comment.

But it is perhaps well to give a more extended consideration of the points made by plaintiff in error. It is claimed that the act is void for lack of definiteness; that, under the provision of the Bill of Rights, an accused is entitled to have the matter charged against him stated with such definiteness that he may be advised as to what he must meet. No one can dispute this claim, but this requisite could not have been intended to apply to statutes declaring certain acts to be criminal. Such statutes must be general in terms, for the reason that a violation of the statute would depend in many cases on a different state of facts. The requisite of the Bill of Rights respecting definiteness would be complied with if the affidavit or indictment set forth the facts claimed to constitute the offense.

As an illustration, take the crime of perjury; the statute defining this offense is familiar. A prosecution could not be based on an affidavit which simply asserted that John Doe, in a certain action, naming it, testified falsely in a matter material to the issue in the action. The statements claimed to have been false would have to be stated. This illustration might be carried to other statutes defining criminal offenses. In the act before us, the several acts and conduct constituting a delinquency in a child have a common, accepted meaning. In each instance, whether an act of delinquency has been committed depends upon the particular facts of the case. These facts must be stated with such definiteness that the claimed delinquent, and those having charge and control of the child, may be advised as to what they must meet. We think the sections of the statutes naming acts of delinquency and what shall constitute a neglected and dependent child are expressed with sufficient definitene'ss.

It is contended by counsel for plaintiff in error that the acts constituting delinquencies and a dependent child are so intermingled with the provisions for the education of the delinquent or dependent, when either becomes a ward- of the .court, that they can not be distinguished.

We think a careful reading of the entire act successfully refutes this claim. ' There are two classes of minors under the age of seventeen years to which the act applies: first, delinquent children; second, dependent children.

After it has been judicially determined by the proceedings in the act that a child under the above age is either a delinquent or dependent, then the court is authorized to commit the custody to one of the persons or institutions of the state, named for its education, moral training, etc. This seems clear enough, and the claim of confusion seems to have no foundation, at least in this statute.- It is not the purpose of the act to punish the child, but to take it „out of environments, which if continued would result disastrously to it as well as to society, and thereby create a standing menace to the state; and to supply it with opportunities for good moral training and physicial comforts and support. The parent, guardian, or anyone having the custody and control, who in any way contributes to the delinquency, or in any respect is responsible for the neglect of any such child, may at the same time be brought into court under arrest. If the charges against such person are sustained, he may be punished, but not the child.

Counsel for plaintiff in error, with more than usual feeling, pathos and oratory, and with some force, urged that the Legislature exceeded the limits of its constitutional power in authorizing minors to be taken from their homes in spite of the protest and objection of the parents, though it was for the purpose of removing the minor from evil influences and further indulgence in vicious habits and practices tending to the ultimate degradation of the child; that the natural right of parental dominion over the child during minority can not be made subordinate to the state; that during this period the conduct of the child, however injurious it may be, however vicious it may be, does not make him amenable to the police power of the state at common law.

But when the custody, education and moral training of the child is claimed by contending parents, the courts, in determining the question, keep in view solely the interests of the child; and when the interests of the child require it, commits its custody to strangers in face of parental appeal. If the interests of society and good government require the removal of children up to a certain age from evil influences, the state in doing so is in the exercise of its police power.

At common law, when the custody, education and moral training of children became a question between the parents, the courts disregarded the appeals of either or both, and looked simply to the interests of the child.

The right to the custody and society of children in the parent is a natural one and one which the state claims no right to take away except when the interests of society require it. •

Two interests require such intervention on the part of the state — that of the child, and that of society. The interest of the latter is the interest of all of its members. It is the latter interest which authorizes the state to invoke its police power to the end that the children of the state shall not be permitted to engage or indulge in practices and habits that in adults are criminal, until they are graduated as hardened and unredeemable criminals.

We find no error of record prejudicial to plaintiff in error and the judgment is, therefore, affirmed at costs of plaintiff, .and cause remanded to probate court to carry into execution said judgment.


text:
    APPEAL IN APPROPRIATION PROCEEDINGS BEGUN IN THE COURT OF INSOLVENCY.
    Circuit Court of Cuyahoga County.
    Frank Seither v. The City of Cleveland.
    Decided, November 22, 1909.

      Jurisdiction on Appeal — Appropriation Proceedings by a Municipality— Proceeding “Begun” by Passage of Declaratory Resolution by Council — Right of Appeal and to Prosecute Error Indistinguishable— Construction of Section 1536-114 as Amended, 100 O. L., 100.
    The effect of the act of March 22, 1909, amending Section 1536-114, Revised Statutes, was to deprive the common pleas court of jurisdiction on appeal to retry appropriation proceedings begun by a municipal corporation before that date in the insolvency court, but not carried to judgment until after the passage of said act.

      Smith, Taft & Arter, for plaintiff in error.

      Newton D. Baker, City Solicitor, and W. D. Wilkin, Assistant City Solicitor, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.
    Error to the court of common pleas.
   This is a proceeding to review the judgment of the common pleas court dismissing, for want of jurisdiction, an appeal to said court from the judgment of the Insolvency Court of Cuyahoga county, in an action to assess compensation for lands sought to be appropriated by the city of Cleveland for park and boulevard purposes.

Previous to March 22, 1909, such appeals were provided for by Section 1536-114 of the Revised Statutes. On said date an act of the General Assembly (100 O. L., 100), became effective, which abolishes such appeals and provides in lieu thereof a review of the judgments of the insolvency court in such proceedings by petition in error to tbe circuit court. This act contains no provision with regard to its application to pending actions or proceedings or causes thereof, as mentioned in Section 79 Revised Statutes.

The important dates to be considered in this case aré the following:

October 12, 1908, resolution passed by the city council declaring its intention to appropriate the lands of plaintiff in error and others.

March 22, 1909 (the very day the law referred to took effect), ordinance passed by city council directing said appropriation to proceed.

March 30, 1909. Application to assess compensation filed in insolvency court.

May 20, 1909. Verdict and judgment in insolvency court as to compensation awarded plaintiff in error.

June 4, 1909. Appeal to common pleas court perfected by filing transcript in said court.

It will be noticed that the proceedings in the insolvency court were not commenced until after the law was amended, but on the theory that said proceedings were but a part of .the original proceedings to appropriate, begun by the city council by the passage of its declaratory resolution on October 12, 1908; we shall treat this matter as if the proceedings instituted in the insolvency court antedated the change in the law.

This change in the law affected only the remedy in such matters' — the right to have a judgment of the insolvency count reviewed, either by appeal to the common pleas court under the former law, or by petition in error to the circuit court, under .the later law.

This question is determined by the date of the judgment sought to be reviewed, for, under the decision of the Supreme Court in the case of Gompf et al v. Wolfinger et al, 67 Ohio St., 144, the review of judgments rendered before the amendment is governed by the former law, but -the review of judgments rendered after the amendment in cases pending at the time the law was changed, is governed by the amendment.

Before reading the syllabus of that case, let us consider what the court says on page 147 as to the nature of the right to review a judgment:

‘ ‘ That a resort by petition in error to a court of superior jurisdiction for the reversal of the judgment of a court of inferior jurisdiction is a proceeding in contemplation of the general section (Section 79, Revised Statutes) was determined in Insurance Co. v. Myers et al, 59 Ohio St., 333. * * * That decision may be cited as full authority for the conclusion that the judgment * * * whose reversal is sought * * * is a cause of proceeding within the meaning of Section 79.”

The syllabus of the Gompf case is as follows:

“1. The act of May 12, 1902, to amend Section 6710, Revised Statutes, not being by its terms applicable to causes of proceeding then existing, did not take from this court jurisdiction to review such judgments which the circuit court had previously rendered as were subject to review at the time of their rendition.
" 2. The effect of that act was to deprive this court of jurisdiction to review a judgment of the circuit court rendered after its passage and not coming within its term. Slingluff et al v. Weaver et al, 66 Ohio St., 621, approved and followed.”

The second paragraph of the syllabus is decisive of this case, for here the law was amended on March 22, 1909, and the judgment sought to be reviewed was not rendered until May 20, 1909.’

If it be suggested that there is some difference between the right to appeal from a judgment and the right to review it on error, we find that matter also disposed of on page 151 of the ease last cited, where Judge Sháuck says:

“It is necessary to observe that, with respect to the present question, it is not practicable to distinguish between an appeal with a view to a trial de novo and a proceeding in error to review a judgment of an inferior court for error appearing upon its record. They are alike resorts to a jurisdiction which Sections 2 and 6 of Article IV of our Constitution denominate appellate, and they are equally effective to destroy the final character of the judgment rendered, by requiring the parties to bear the burden of a retrial upon questions of fact or of law, or both.”

Judgment affirmed.


text:
    CHOICE OF WRONG COURSE IN MOMENT OF PERIL.
    Circuit Court of Hamilton County.
    Citizens’ Motor Car Co. v. Joseph Hamilton.
    Decided, November 13, 1909.

      negligence — Damages for Injuries from Being Struck by an Auto-, mobile — Degree of Owe Required of One in Peril — Charge of Court.

    1. It is not negligence per se to cross in front of a street -car without first ascertaining whether an automobile or other vehicle, proceeding in the same direction as the car and concealed by it, is running at a great and unlawful rate of speed.
    2. One who, after having passed safely in front of a car, is confronted by an automobile running at great speed and but a few feet distant, is not to be held to the exercise of the same care in the choice of a way of escape that prudent persons would exercise were there no danger present; and an instruction to the jury that a plaintiff thus situated could be charged with ordinary care only is relevant and free from error.

      Robert Ramsey, for plaintiff in error.

      Theodora Horstman, contra.
    The plaintiff below was struck by an automobile belonging to the motor car company, and recovered judgment below for $4,-000 on account of the injuries sustained.
    Giffen, P. J.; Swing, J., and Smith, J., concur.
    Error to the Superior Court.
   The plaintiff, Hamilton, could and did pass in safety over the street railway in front of a moving car, and he was not negligent per se in thus crossing without first ascertaining whether an automobile or other vehicle was moving in the same direction with and on the other side of the street car at a dangerous and unlawful rate of speed. He had a right to assume that any such vehicle was running, if at all, at a lawful rate of speed.

When he reached the other side of the street railway he saw the automobile approaching at a dangerous and excessive rate of speed. Three alternatives were presented to hint: either to stand still, retreat in front of the moving street ear or attempt to pass beyond the automobile, any one and all of which were apparently dangerous, although had he remained standing he would probably have avoided injury.

In such a situation of peril the rule stated in the third proposition of the syllabus of the case of Penn. Railroad Co. v. Snyder, 55 O. S., 342, applies and the court so charged the jury; but it is claimed that the charge was not relevant to any issue tendered.

The plaintiff was required to exercise ordinary care, and the instruction given was merely a definition of ordinary care on the part of a plaintiff, who, without his fault, was in a situation of unusual peril. ITe had reasonable grounds for believing that the course pursued would be the safest, and should not be charged with the consequences of error of judgment resulting from the excitement and confusion of the moment. Railroad Co. v. Mowery, 36 O. S., 418; Pennsylvania Co. v. Langendorf, 48 O. S., 316.

The judgment should be affirmed.


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    AS TO RECOVERY UNDER. A CONTRACT FOR CONCRETE WORK.
    Circuit Court of Franklin County.
    James Westwater v. Scioto Valley Pool Co.
    Decided, October 19, 1909.

      Contracts — Action for Recovery on — Subsequent Proposals not 'Admissible in Evidence — Increased Cost Due to Owner Stopping the 'Work — Weight of the Evidence.

    1. Where the sole issue is as to price, the fact that some witness was permitted to testify as to quantity is not prejudicial.
    2. Inasmuch as a written contract is presumed to contain all the stipulations, complaint can not be made of a refusal to admit in evidence a proposal made by one of the parties.
    3. The same rule applies in determining whether a judgment is against the weight of the evidence that would apply were a verdict being considered.

      4. Where work is stopped hy the owner and is not allowed to proceed until a change of season has made it more expensive to carry it forward, it is the duty of the contractor, if he intends to make a claim for additional compensation, to make it immediately; otherwise, if presentation of the claim is delayed until trouble has arisen in settlement, it is open to the suspicion that it is an afterthought.
    5. A judgment can be reversed on the weight of the evidence only when it is so manifestly against the weight of the evidence as to indicate mistake, bias or prejudice.
    Sullivan, J.; Dustin, J., Allread, J., concur.
    I-Iearcl on error.
   The number of yards of concrete being agreed upon, and the sole dispute between the parties in this cause of action being thé price to be paid therefor, the testimony of the witness Griggs as to the number of yards could not prejudice the claim of plaintiff in error.

Furthermore, no motion was interposed by plaintiff in error to strike out this part of the witness’s testimony, and therefore the point was not saved, even if the evidence had been prejudicial.

The court below properly excluded the proposal of plaintiff in error. Where a written contract is entered into, it is presumed to contain all stipulations agreed upon between the parties; that the written instrument is the result of all negotiations between the parties prior to its execution, and the very purpose of reducing it to writing is to preclude the claim being made for any stipulations not contained in it. If plaintiff in error desired to have incorporated in the contract the provision proposed to be proven by the proposal and it was agreed upon, it should have been made a part of the instrument. The fact that in no one of the accounts rendered by plaintiff in error is there any claim made for damages for delay is of itself strong evidence that the provision of the proposal desired to be shown' was purposely omitted.

The judgment of the court is the same as a verdict of a jury. A reviewing court, in the consideration of the record, to determine whether the judgment is against the weight of the evidence, must observe the same rules established to determine whether a verdict is wrong for the same reason.

When plaintiff in error was stopped in the progress of the work,'and not permitted to resume until the change in the season was such as to demonstrate that it would cost more to do the work, he should have then declined to proceed, unless the defendant in error would agree to pay the difference in cost, if he then intended to prefer a claim for such increase. If he then had such claim in mind, it was his duty at that time to decline to proceed unless the defendant agreed to pay the increased cost occasioned by its delay and made claim for the work and material furnished and done up to that time. The fact that he did not do this is evidence that such claim was an afterthought, when considered in connection with the fact that he made no such claim until he brought suit. The first account including a charge for concrete in the coal pit fixed the price at $5.85; the next at $7.50. It is reasonable to assume that he was better able to determine its price just at the completion of the work than months thereafter. The price fixed at the first time supports the claim made that its reasonable value was $6.

The reviewing court is without opportunity in an error proceeding to judge of the credit that should-be given to the witnesses. In this respect the tidal judge has the better opportunity. Therefore, it is only when a judgment rendered by a court or a verdict by a jury is so manifestly against the weight of the evidence as to indicate a mistake -in weighing the evidence, or bias or prejudice. A review of the evidence contained in the record in this case does not, in our judgment, show either.

The judgment will, therefore, be affirmed at plaintiff’s costs.


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    CHILD STRUCK AT CROSSING BY TRACTION CAR..
    Circuit Court of Hamilton County.
    Darwin Stephens, Administrator, v. Cincinnati Traction Company.
    Decided, May 1, 1909.

      Negligence — In Operation of Traction Gar Approaching a Grossing— Child Struck and Killed — Speed of Oar Proximate Cause — Whether Speed loas Reasonable a Question for the Jury — Error in Charge of Court.

    1. A traction company is not justified in running a car at full speed when approaching a public crossing, although it is not a street intersection, particularly when several children were walking on the sidewalk toward the crossing with their backs to the car and in full view of the motorman.
    2. Where it appears that had the car been running at a maximum rea- • sonable rate of speed, the child who was struck at the crossing would have passed over in safety and the collision would have been avoided, then the greater rate of peed at which the car was running was the proximate cause of the injury.
    3. The question what was a reasonable or unreasonable rate of speed at that particular place and under all the circumstances was one for determination by the jury.
    4. An instruction to the jury in such a case, which requires that a verdict he returned for the defendant without regard-to any act of negligence on the part of the company in the running of its car prior to the instant the child attempted to cross the track, is erroneous.

      E. S. Aston and Thos. L. Michie, for plaintiff in error.

      Outcalt & Hickenlooper, contra.
    Giffen, P. J.; Smith, J., and Swing, J., concur.
   The negligence charged in the petition is running one of defendant’s ears at a dangerous rate of speed, omitting to keep a proper lookout, omitting to give proper signal, and omitting to apply brakes and check the speed of the car while the deceased was crossing the' highway at a public crossing. The jury -returned a- verdict for the defendant, and the only error relied on is the giving of the following’ instruction in writing before argument :

" If the jury find from the testimony in this case that the deceased, Emily Stephens, so suddenly left the sidewalk on the north side of Liston avenue and ran into the street diagonally toward the ear tracks, that the motorman of said car could not, in the exercise of ordinary care, have anticipated the action of the' child, in so leaving the sidewalk and running into the street, in time to avoid a collision, and that a collision did occur between said car and said child, resulting in injuries to the child from which she subsequently died, then I charge you that such collision was an accident for which the defendant traction company. would not be liable, and your verdict must be for the defendant. ’ ’

It is claimed by counsel for plaintiff in error that this instruction takes from the consideration of the jury all questions of negligence of the defendant in operating its ear prior to the time that the little girl left the sidewalk. While on the other hand, counsel for the defendant in error claim that it is immaterial at what rate of speed the car was running, as the collision would have occurred although the ear was running at a reason able rate of'speed' and that therefore the speed of the car was not the; proximate cause of the collision.

The evidence does not warrant the latter assumption, as plaintiff’s testimony tended to prove that the car was running at the rate of twenty miles an hour, and the motorman called by defendant. testified that the .speed was the highest at which the car could be operated.

Plaintiff’s evidence tended to prove further that while the child ran from the curb to the point of collision, a distance of about seven, feet, the ear moved 180 feet, and that if the ear had been running at the rate of ten miles an hour the child could have run seven feet further to a place of safety before the car reached the point of collision.

■!The distinct qualification of -the special instruction is contained in the clause “in time to avoid a collision.”

The faster the speed the less time the motorman had to avoid a collision; and if by running the car at a maximum reasonable rate of speed the child could and would have passed over the track in-safety, then the greater rate of speed was undoubtedly the- proximate cause of the collision. The question of what was reasonable or unreasonable rate of speed at this place and-under the circumstances was properly for the jury. We can not say as matter of law that any speed greater than ten and less than twenty miles an hour would be unreasonable and dangerous; but it is clear that the defendant was not justified in running its car at full speed, without warning, when approaching a public crossing although the same was not a street intersection. The very fact that several children with their backs to the car were walking on the sidewalk toward the crossing, although not indicating an intention to cross, called for a warning from the motorman.

The jury were bound, under this instruction, to return a verdict for the defendant, regardless of any alleged act of negligence except not keeping a proper lookout prior to the time when the motorman, in the exercise of ordinary care, could anticipate the action of the child in leaving the sidewalk.

While it is true that the child ivas not on the fiag-stones forming the crossing, yet she was so near to the same that the ordinary precautions required at street crossings would probably have protected her. At all events the jury were not permitted to determine such questions. We think the court erred to the prejudice of the plaintiff. '

Judgment reversed and cause remanded.


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    NEGLIGENCE IN FAILING TO SEE AN APPROACHING TRAIN.
    Circuit Court of Crawford County.
    Thomas Barton v. The C., C., C. & St. L. R. R. Co.

    Decided, September 30, 1904.

      Injury to a Section Hand — Who Failed to See an Approaching Train-Circumstances when Failure to Give Warning of Train's Approach is not Negligence.

    When a section hand-,.at work beside a railway track in the full light of day, failed to see or hear a train approaching on a track which was straight for more than a mile and was struck and injured by it, though a-movement of a few inches only would have prevented the accident, he can not recover damages therefor, notwithstanding he was given no warning of the train’s approach by' either the engineer or the section boss.

      Finley & Gallinger and Charles Schafer, for plaintiff in error.

      Dan Babst, Jr., and Cummings, McBride & Wolfe, contra.
    Norris, J,; .Day, J.. and Mooney, J., concur.

       Affirmed by the Supreme Court without report, 74 Ohio State, 479.

   This is an action in error. The suit below ivas for recovery for damages for personal injury. The plaintiff below was a section hand working for defendant on its railroad at Crestline. When injured he was engaged- in removing fish plates from rails which were lying outside the ties of defendant’s tracks. While so engaged, he was struck by one of defendant’s trains moving along said track and by this sustained the injury for which he seeks to recover. He was under the control of defendant’s section boss, who stood near when the accident occurred.

The negligent acts laid to defendant which are claimed to sustain plaintiff’s action and fixes defendant’s liability, are that the section boss stood close and saw the approaching train, knew of plaintiff’s dangerous position and' gave him no warning of his danger, though he might have warned him in- time to have saved him from injury; that the accident was on a portion of plaintiff’s road where the view from the approaching train was unobstructed and plain for a long distance, and with plaintiff in full view of the engineer in charge of said train for nearly a mile, the engineer ran the train against plaintiff, and sounded no vyhistle and rang no bell, and gave no warning signal to plaintiff, which might have apprised him of the train’s approach and of his danger, and did not make any effort to stop the train and save plaintiff from injury; that the section boss and the engineer knew all this, and knowing plaintiff’s danger and knowing that he did not see and did not hear the approaching train failed to do the things they ought to have done to save plaintiff from injury, and that their failure amounted to wanton negligence, and by reason thereof defendant is liable as one guilty of wreckless disregard of plaintiff’s rights which amounts to bad faith.

The answer denies and says that if plaintiff was injured, his injury was caused by his failure to care for his own safety and not by negligence of the defendant.

This reply is a denial. Upon the issues joined by the pleading and the evidence, the casé came on for a trial to a jury in the common pleas court, and after the plaintiff had introduced his evidence and rested his case, the court upon motion on the behalf of the defendant arrested the further trial of the issues and directed the jury to return its verdict for the defendant, which was done accordingly. The plaintiff filed his motion for judgment notwithstanding the verdict, which was overruled. Plaintiff’s motion for a new trial was interposed and overruled, and jury rendered a verdict for the defendant.

To reverse this judgment and proceeding of the trial court, plaintiff filed his petition in error here and assigned for causes of error:

1st. Error in sustaining the motion to direct a verdict for defendant.

2d. Error in directing the verdict, and in overruling plaintiff’s motion for judgment notwithstanding the verdict, and in overruling plaintiff’s motion for a new trial.

3d. That the judgment is for the defendant when it should have been for the plaintiff.

We find no -error in the proceeding of -the trial court which warrants reversal. There is no evidence in the record tending to show that the defendant was negligent as alleged in the petition, or was negligent at all. This accident oceured about-11 o’clock in the forenoon. The plaintiff was removing fish plates from rails which had been moved from the track outside of the ties to a distance of about 2y2 feet from the track rail. He was far enough away from the track, and only placed his head in such position as that it might be struck by a passing train by assuming a stooping position; if he had stood straight he would not have been injured. He had been in the employ of the railroad company for several years; he says that while he was ordered to do the work by the section boss, he had no instruction except to “take the wrench and remove the plates.” He had been warned to look for approaching trains. The view was unobstructed for nearly a mile; it was the middle of the day; others working with him heard the train approach, yet he says he did not hear and did not see and did not try to hear or see and did not think about the train. The engineer could see him, and no doubt did see him, and saw others working with him arise and assume’ a position of safety though he rang no bell and sounded no whistle. The engineer had -good right to believe that plaintiff would do the same, and so did the section boss — that plaintiff would straighten up and save contact with the train.

All these facts refute 'the hypothesis that defendant through its servants, the engineer and section boss, or either of them were guilty of such negligence as amounted to wantonness and bad faith toward the plaintiff.

Upon the other hand, the evidence does show that the plaintiff refused to exercise every effort, either physical or mental, to care for his own safety, when by the exercise of the least care whatever, he might have saved himself from injury.

We are of the opinion that the trial court was warranted -in arresting the testimony and directing the verdict for the defendant- and so do affirm the judgment'.


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    ACTION BY A PARTNERSHIP FOR A TORT.
    Circuit Court of Hamilton County.
    The Cincinnati Traction Co. v. William Hulvershorn, Doing Business as the Ingels Forwarding & Transfer Co.
    Decided, November 6, 1909.

      .VegUgence — Evidence of — Not All Acts Alleged Musi be Proved_ Partnership — Action by — Requirement as to the Filing a Certificate with County Clerk — Section 8110-6.

    1. Evidence that a motorman saw that the space between the track and curb of the street was so. narrow that the wagon in front of him could not get out of his way is sufficient to sustain a verdict for damages resulting from his permitting the car to strike the wagon.
    2. Where an action for damages on account of a tort is brought by a partnership, doing business under a fictitious name, within the time prescribed by the statute, the fact that the certificate of partnership was not filed with the county clerk for more than four years does not bar the action under the provisions of Section 3170-6.

      Kittredge, Wilby & Stimson, for plaintiff in error.

      Scott Bonham, contra.
    The petition alleged that in September, 1902, while one of plaintiff’s teams, attached to a coal wagon, was being driven along Spring Grove avenue, Cincinnati, at a point where the space between the street ear track and the curb was narrow, a traction car came rapidly up from behind and without warning to the driver of the coal wagon and in attempting to pass struck the hub of one of the wheels of the wagon with such force as to break the wagon and harness and kill one of the horses. A verdict was recovered below of $275.50, which was in full-of the claim, with interest.
    Giffen, P. J.; Swing, J., and Smith, J., concur.
   The plaintiff below was not required to prove each and every act of negligence charged in the petition, and it was sufficient' that although the motorman saw that the space between the track and the curb was narrow, and that the wagon was too close to the track to pass in safety, he did not have his ear under control, but allowed it to move forward with great force against the hub of the front wheel of plaintiff’s wagon. This much is elearfy shown by the .evidence and is sufficient to sustain the verdict.

That part of the general charge complained of required the jury to find substantially every act of negligence charged before returning a verdict for the plaintiff, and was more favorable to the defendant than the pleadings and evidence required.

There was no prejudicial error in admitting testimony in rebuta!

Although the certificate of partnership was not filed with the clerk of the court until more than four years after the right of action accrued, yet the action was commenced before expiration of that period, and under the proviso of Section 3170-6, Revised Statutes, the plaintiff could lawfully maintain the action.

Judgment affirmed.


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    LIMITATION ON THE USE OF NATURAL GAS.
    Circuit Court of Clark County.
    The City of Springfield v. The Springfield Gas Company.

    Decided, May 17, 1907.
    Corporations, Municipal and Commercial — Control of, where Operating Public Utilities — Void Provision in Grant to Natural Gas Company — Permitting the Supplying of Gas for Heat and Power, but not for Illuminating Purposes — Transfer 'of Rights to Artificial Gas Company — Ordinance—Injunction—Construction of Section 7777 — Authorising City Solicitor to Apply for Restraining Order.

    1. A city solicitor is clearly authorized under Section 1777, Revised Statutes, to bring suit in the name of the municipality to enjoin a public utility company from violating its obligations to the city and its inhabitants.
    2. Such an action will lie, notwithstanding the corporation is acting under color of an ordinance, if the provision of the ordinance complained of is in excess of the power of council to grant.
    :i. A municipality is without authority to prescribe by ordinance that a commodity acquired by its inhabitants shall not he used for any purpose that is not dangerous or injurious; and a provision in the ordinance embodying a grant to a natural gas company, that gas shall not be furnished for illuminating purposes, but only for beating and power, is void, and the company may he compelled to either furnish gas for illuminating purposes or abandon its rights In the streets.

      Stewart L. Tatum, City Solicitor, for plaintiff.

      Martin & Martin, for defendant.
    Sullivan, J.; Dustin, J., and Wilson, J., concur.

       Affirmed by the Supreme Court, without report, December 21, 1909.

   This case comes into this court on appeal. It is pending on a general demurrer to the petition, and also on a motion to dissolve 1he temporary restraining order. They present the same questions. Each admits the averments of the petition.

The demurrer ivas sustained by the court below, and the city not desiring to amend, its petition was dismissed, and a judgment entered against it for costs, from which judgment the city took an appeal.

The thorough and extensive briefs prepared and presented by the respective counsel show great and well directed industry, and have relieved the court, in its consideration of the casé, from a great deal of labor. How far the authorities of other states cited are dependent upon the statutes of those states, where they are in apparent conflict with those of the courts of our own state, not having access to those statutes, we are not able to determine. However we are of the opinion that those of our own state fully support the conclusion we have reached upon this demurrer.

Counsel for defendant contend, first, that the city solicitor has not the authority to institute this action in the name of the city.

We will not read the petition, but simply state the substance of it. It sets forth that the plaintiff is a municipal corporation, classed as a city; that the defendant is a corporation organized under the laws of Ohio; that it was incorporated under the name of the Springfield Gas Light & Coke Company. A copy of its charter is attached to the petition. That in pursuance of the powers granted by said charter, it erected gas works, laid its mains and other pipes in the streets and alleys of the city,' and upon the completion of the same began to deliver to the city and its inhabitants artificial gas manufactured by it, and ever since said date, and now is manufacturing and selling artificial gas to the eitv and its inhabitants; that on the 21st day of January, 1906, its charter was amended; a copy of the amendment is also attached to the petition.

The charter before this amendment authorized the defendant to manufacture and sell artificial gas only. By the amendment it is authorized to sell and deliver gas to the city and the inhabitants thereof, no matter how produced.

On the 4th day of June, 1889, the council of the city, by ordinance, granted to the Springfield Natural Gas Company, a corporation organized under the laws of Ohio, the right to lay and maintain, in the streets and alleys of the city, pipes for the purpose of conveying through the same and supplying the city and its inhabitants. with natural or produced gas for- heating, fuel and power purposes only. A copy of the ordinance is attached lo the petition.

Some time in the year 1896 or 1897, the exact date the city is unable to state, the defendant acquired by purchase or otherwise all the property of the Springfield Natural Gas Company, including its pipes, appliances and franchises, and ever since, and is now, the owner of and in the exercise and enjoyment of the privileges and franchises granted said natural gas company by the city.

At the time of granting said franchise to the said natural gas company, the city, by ordinance, fixed the price of natural gas to be paid by the consumer at ten cents per thousand cubic feet, and the price of artificial gas was one dollar and a half per thousand cubic feet.

The city claims, and so avers, that its council had no authority to limit the use of natural gas to that of heat, fuel and power, when the use of it for illumination was one of its legitimate and recognized uses, supplying as safe, as good, and cheaper light than artificial gas. That the limitation was in contravention of the rights and interests of the people of the city, and in derogation of the right to use one’s property for such purposes as one chooses.

The city then avers that the natural gas company did not regard the limitation, and in every instance, where a purchaser of natural gas used it for illuminating purposes, the company offered no objection, but furnished it for such purpose and accepted pay therefor; and that now natural gas is being furnished to a number of inhabitants of said city, and used by them for illuminating purposes., And this was done, and is being done, under the charter of the natural gas company, and with the knowledge of the city and its officers, and was done with the knowledge of the natural gas company, and also of the defendant; that with the knowledge that natural gas was being supplied to customers for illuminating purposes, and in good faith' relying upon the supply for such' purposes being continued, many inhabitants of said' city, at great expense, ■have' equipped'their residences with appliances for the use of natural gas for such purposes; that on the 14th clay of May, 100G, council of said city passed an ordinance fixing the price of natural gas at twenty-five (25) cents per thousand cubic feet, for the period of three years after that date; that by virtue of all the foregoing facts, a contract has resulted between the city and the defendant, whereby the defendant is legally bound, to supply the city and its inhabitants with natural gas for illuminating purposes,- as well as those of heating, fuel and power; that the city is the owner of a certain piece of. property, described in its petition, fully equipped for the use of natural gas for lighting purposes; that a number of the city’s inhabitants have equipped their respective properties for the like use of natural gas, and are now using the same for such purpose, and that the defendant threatens to and will, unless restrained, in every one of said properties disconnect the appliances necessary and in use. for the utilization of natural gas for lighting-purposes — and the defendant threatens and, unless restrained, if the city and its inhabitants persist in the use of natural gas for illuminating.purposes, will not supply either with natural gas for any purpose — and the city therefore prays that it may have a temporary restraining order preventing the defendant from executing any or all of said threatened wrongs, and that it may have a perpetual injunction- against the defendant, and for all other and further relief in equity, to which it may he e.n-1 itled upon proof of the facts set forth in its petition.

The question as to whether, under Section 1777, the city solicitor is authorized to institute this action, is one. we, think of not much difficulty. The claim here is that the defendant is violating its obligations to the city and its inhabitants, and its duty to the public, arising out of the facts averred herein, as to the respective easements granted to it and the natural gas company by the city, and that the defendant should either he compelled to discharge its obligation and its duty to the public, or -or its rights and privileges granted by said easements should ■he forfeited.

The third-paragraph of said section authorizes the city solicitor to bring- suit- in the name of the city for such purposes. By said section, the city solicitor is also authorized to bring suit in the name of the municipality, challenging any act of its council where it is in excess or an abuse of its corporate power.

It is claimed that Section 1 of the ordinance, passed June 4, 1889, is void; that the limitation fixed by that section of the ordinance upon the use of natural gas was an act in excess of the city’s corporate power.

In either or both cases we think the city solicitor is clearly authorized by Section 1777, Revised Statutes, to bring suit in the name of the corporation.

The facts set forth in the petition, being admitted by the demurrer, do they make it legally incumbent upon the defendant to supply the city, and such of its inhabitants as may desire it, natural gas for illuminating purposes?

The Legislature has expressly provided that corporations organized for the purpose of lighting municipalities, etc., may supply natural gas for such purposes; that such corporations shall have the power of eminent domain. They belong to the class known as public service corporations. Their property is “devoted to a use in which the public have an interest and to the extent of that interest must submit to be controlled by the public for the common good so long as such use is maintained. " Munn v. Illinois, 94 U. S., 113.

Although authorized by the Legislature to occupy the streets and alleys of a city or village, yet the terms and conditions upon which a corporation may do this are to be fixed by the latter The municipality fixes the price to be charged for the gas, etc., furnished. The city could not grant to the Springfield Gas Light & Coke Company the exclusive use of its streets and alleys to lay its pipes to furnish artificial gas for lighting purposes ; neither could it grant to the natural gas company the exclusive use of the streets and alleys to supply natural gas for heat, fuel and power. This latter company could have had included in its charter express corporate authority to supply the city of Springfield and its inhabitants with natural gas for illuminating purposes. It is not apparent how the state could have had any interest in omitting or withholding such power. We think it could not have been suggested by state authority.

The effect of the omission or the withholding of such corporate authority was the creation of a monopoly in the Springfield Gas Light & Coke Company to furnish gas to the city and its inhabitants for lighting purposes. The petition avers that the use of natural gas .for light was just as safe, gives just as good light as the artificial gas, and was and is much cheaper. The effect therefore was to destroy competition and prevent the public from availing itself of the cheaper commodity; and notwithstanding'the charter of the natural gas company did not include authority to furnish natural gas for illuminating purposes, it could still do so. The Circleville Light & Power Co. v. Buckeye Gas Company, 69 O. S., 259; same case, 1 C. C.—N. S., 526.

The company could, we think, contract with the city and its inhabitants to supply both with natural gas for such purpose. It seems to have understood this to be its right, and hence at the time it sold and transferred all of its property, including its franchises in the streets and alleys of the city, it was and had theretofore been furnishing natural gas for such purpose. This was generally known by those in control of both companies.

The defendant, acquiring by purchase all the rights, privileges and franchises of the natural gas company in the city’s streets and alleys, for the conveyance and sale of natural gas to the city and its inhabitants, and continuing in the use of said streets and alleys for such purpose, its obligation to the city and its inhabitants is the same as that of the natural gas company. The latter became legally bound to'continue to supply those with whom it had contracted to furnish the gas for light, so long as it exercised its- easement in the streets and alleys. It could not discriminate between any of the inhabitants, by furnishing to some and refusing others, and therefore would be bound to furnish it for light to all who desired it, complying with the requisites of the company and paying for the gas. In our opinion, the same obligation rests upon the defendant.

Under the rule that one has the right to make such use of his property as one may choose, such nse not being unlawful nor injurious to the person or property of others, the purchaser of natural gas, 'after the commodity became his property, may use it for lighting his premises upon a compliance with the- company’s method for its deliverance.

A municipality has not the authority to prescribe by ordinance that its inhabitants shall not use property acquired for any purpose, neither dangerous nor injurious.

This court held, in the case of The State v. The Dayton Traction Company and others, 18 Ohio Circuit Court Reports, 490, that where .a city grants. permission to a street railway company to construct its road in its streets, it may not do so upon the condition that the company does not exercise one of its corporate powers, and therefore a condition or regulation that the company shall not carry freight, is void. This judgment was afterwards affirmed by the Supreme Court.

If a city ordinance containing such' regulation is void, for the want of power in the city to exact such a condition, it follows, we think, that an ordinance limiting the use .of a commodity, such as natural gas, conceded, to be safe and available for illuminating purposes, to that of fuel, heat and power, is void also for the same reason. Tf the city can not in the one case, for the lack of power, require the corporation, to contract away the right to exercise one of its corporate powers, it would; certainly be without power in the other ease to deprive the city a.nd its inhabitants, by ordinance, of a common right.

We are therefore -of the opinion that Section. 1 of the ordi: nance passed on the 4th of June, 3889, in so far as it limits the use of natural gas to that of fuel, heat and power, is void.

Tt is contended by counsel for the defendant that the remedy here sought, being that of specific performance, that upon the facts stated in the petition,, such a decree could not be executed. The prayer of the petition is in the alternative, and if the facts stated should, be fully sustained by competent testimony, a court of equity would have no difficulty in discovering a remedy to correct the evil. . •

We are, therefore, of the opinion that neither the demurrer nor motion are well.taken, and the same are therefore overruled, at the cost of the defendant.


text:
    INJUNCTION AGAINST EXECUTION ON JUDGMENT FOR. RESTITUTION OF DEMISED PREMISES.
    Circuit Court of Hamilton County.
    Seth C. Foster et al v. Edward Ellison.

    Decided, December 4, 1909.

      Forcible Entry and Detainer — limitation of Effect of Judgment — Enforcement of, May- be Enjoined, When — Questions as to Title — Lessee Holds Over — Right to Declare Forfeiture for Failure to Pay Rent WaivéU by Failure to Malee Demandi — Title to Permanent Lease- ■ hold- Quieted.

    1. The provision of Section 6601, that a judgment in an action for forcible entry and detainer shall not be a bar to a second action, constitutes an exception to the general rule that equity will not enjoin the enforcement of a judgment where a defense at law was available;- and if the facts alleged by one praying for an injunction against the enforcement of such a judgment entitle him to a decree quieting his title or fixing the extent of his title, injunction which is merely ancillary to the main issue of title, will lie until the question of title has been determined.
    2. Where a lessee under a lease for three and one-half years renewable forever, holds over for twenty days before notice is served upon him to quit thé premises, he thereby elects to renew the lease, and the provision not having been complied with that a forfeiture could only be declared after demand for unpaid rent duly made according to law, the lessee upon offering to pay his arrearages is entitled to a decree quieting his title to a permanent leasehold.

      John L. Stettinus, for plaintiff in error.

      Galvin <& Bauer, contra.
    Giffen, P. J.; Smith, J., and Swing, J., concur.

       Affirming Ellison v. Foster et al. 6 O. L. R., 666, which see for statement of the facts.

   Upon a rehearing of this ease, Section 6601, Revised Statutes, was urged as authority for affirming the judgment under review. It provides that a judgment in forcible entry and detainer shall not be a bar to any after action brought by cither party. The judgment is thereby, limited in its effect, and seems to furnish an exception to the general rule that equity will not enjoin the en: forcement of a judgment where a defense at law was available-, In this case the defensp before the Justic.e, if any had been made. would have been that a controverted question of title existed as shown by the lease under which Ellison was in possession, and while the Justice could not determine the ultimate question of title, he could adjudge that such disputed question existed and that it was a good defense in an action of forcible detainer.

It seems to be conceded that Ellison could maintain an action wherein the title could be determined, but it is claimed that he seeks only to enjoin the enforcement of the judgment, and has misconceived his remedy. The prayer of the petition is for an injunction and gneral relief, and if the facts alleged entitle him to a decree quieting his title or fixing the extent of his title, it is difficult to see why he may not, under Section 6601, Revised Statutes, have a temporary restraining order until the question of title is determined.

The fact that the judgment is not a bar to any after action between the same parties and concerning the same subject-matter is a strong reason why the execution of the writ should be stayed until the higher court, competent to determine all questions involved, has decided the case. The injunction is ancillary to the main issue of title, and must be dissolved if that issue is determined against the plaintiff.

Is such main issue well pleaded?

The term under the lease is for three and a half years, renewable forever, without any express notice required of the intention of lessee to renew. He held over the term of three and one-half years for a period of twenty days before notice to quit the premises was served upon him, and thereby elected to renew. He was at the time in arrears for rent due, but under the terms of the lease a forfeiture could be declared only after demand made according to law, and no demand other than the notice to quit was ever made. He offers to pay all arrearages, and further avers that he has made lasting and valuable improvements upon the premises, in the belief that he had a perpetual lease with a privilege of purchase.

We are of opinion that the facts stated entitle him, upon payment of rent due, to a decree quieting his title to a permanent leasehold, and that the court did not err in overrating the motion to dissolve the restraining’ order.

Judgment affirmed.


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    ACTION IN ATTACHMENT ON A JUDGMENT.
    Circuit Court of Hamilton County.
    The Citizens National Bank of Washington, Pa., v. The Union Central Life Insurance Co. and W. F. Wright.
    Decided, November 27, 1909.

      Promissory Note Signed with Initials and Surname only — Note Reduced to Judgment — Action in Attachment on the Judgment — When an Action in Attachment is Begun — Defects in Service by Publication not Available, When — Failure to Plead a Meritorious Defense —Sections 5010 and 5858.

    1. Where a note which was signed by the maker with his initials and surname only, has been merged into a judgment in which he is designated in the same manner as upon the note, the judgment becomes an evidence of debt owing by him under that name, and such judgment is not void in the sense that in a subsequent suit in attachment on the judgment the judgment debtor is not required to show a meritorious defense to the action.
    2. Where the defendant in such a case fails to set forth his defense to the action in his petition to vacate the judgment, objection to the service had upon him by publication will not lie for defects therein.
    3. An action has been begun under the attachment law when the petition has been filed and summons issued thereon, and the order of attachment will not be set aside because issued before the service by publication was begun.

      Jones & James, for plaintiff in error.

      Jos. W. O’Hara, for W. F. Wright.
    Giffen, P. J.; Swing, J., and. Smith, J., concur.
   The plaintiff bank in its amended petition sets up a judgment obtained in -the state of Pennsylvania against the defendant, W. F. Wright, for $1,343.17, and proceedings in attachment commenced in this county wherein judgment by default was taken against W. F. Wright, and the defendant insurance company was, as garnishee, ordered to pay the amount of the judgment and interest into court, which it failed to do.

The defendant, W. F. Wright, by answer and cross-petition with amendment thereto, ayers that the court in the attachment suit acquired no jurisdiction of his- person nor of the subject-matter, and that the judgment and order therein are null and void because—

1st. He was described in the petition by his initials, viz., W. F. Wright.'

2d. That no affidavit was filed, that the residence of defendant was unknown and could not with reasonable diligence be ascertained. That in fact the residence of defendant was at all times well known to plaintiff.

3d. That the order of attachment was issued before service by publication was begun or attempted.

The court dismissed the petition and enjoined further proceedings under the attachment and set aside all orders and judgment thereunder as null and void.

The findings of fact show that the promissory note upon which judgment was rendered in the state of Pennsylvania was signed by the defendant as “W. F. Wright” and the judgment was so entered.

Section 5010, Revised Statutes, provides:

"Parties to a written instrument by initial letter, or a contraction of the name may be so designated in an action thereon. ’ ’

The purpose of this section would seem to be to allow the designation of a party by initial letter in an action upon any written instrument which is evidence of the debt or obligation, and in which he is so designated.

The word "instrument” has been defined in law as "the formal expression in writing of some agreement or obligation, or of some act upon which the rights of parties' are dependent.”

It is true that the note was' merged in the judgment, but being sued by name as signed in the note, the judgment was so entered and became evidence of a debt owing by him under that name. . Furthermore, it does not appear from the record that he has any other name, and he himself uses it in his answer and cross-petition.

If the statute was not broad enough to cover such a case, still the judgment was not void in the sense that defendant was not required to show a meretorious defense to- the action.

The second objection is aimed at.the service or attempted service by publication.

In the case of Lessee of Paine v. Mooreland, 15 Ohio, 435, at 444 it is said:

“Notice by publication is not process, but, in certain cases in contemplation of law, is equivalent to service of process. The. process in attachment is the writ authorizing and directing a seizure of the property. • No process is issued against the person, because the proceeding is in rem. The statute, however, regards it but just that notice should be given to the debtor, not for the purpose of giving the court jurisdiction over the subject-matter, but to permit the debtor to have an opportunity to protect his rights and directs that the writ shall be quashed if it be not given.”

vis held in that case so in this case the judgment was only-voidable.

The most serious objection under this head is the statement of plaintiff that the residence of defendant “is unknown,” when it well knew that he resided in Buffalo, N. Y.; but even in such ease the defendant must in his petition to vacate the judgment set forth his 'defense to the action. Section 5358, Revised Statutes.

The third objection is that the attachment was not issued ‘ ‘ at or after” the commencement of the action but before (Section 5521, Revised Statutes). The petition had been filed and a summons issued thereon, whereby the action was commenced within the meaning of the attachment law. Section 5032, Revised Statutes.

The defendant was entitled to have the judgment vacated only after showing a good defense. This he probably can not do, as the court substantially found that he had no defense to the action in Pennsylvania nor the judgment therein.

The judgment will be reversed and the cause remanded for further proceedings according to law.


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    ROSE LAW NOT PROHIBITIVE OF THE SALE OF NONINTOXICATING MALT LIQUORS.
    Circuit Court of Fulton County.
    August Wilder v. State of Ohio.

    Decided, October 30, 1909.

      Liquor Laws — Prosecution for Sale of Near Beer Containing a Very Small Proportion of Alcohol — Non-Intoxicating Liquors, not Proscribed by the Bose Law — Evasions of the Bose Law — Discretion in the Matter of Sentence — Constitutional Law.

    Non-intoxicating malt liquors are not within the proscriptions of the act (99 O. L., 35) for the sale or furnishing of which in Rose county local option territory one may be prosecuted and convicted; intoxicating liquors only come within the inhibitions of this act.

      J. P. Ragan, for plaintiff in error.

      F. H. Wolf, Prosecuting Attorney, and W. B. Wheeler, contra.
    Wildman, J.; Parker, J., and Kinkead, J., concur.
    Error to Fulton Common Pleas Court.

       For a similar holding in a common pleas court, see Graham v. State, 9 N. P.—N. S., 174.

   We have four cases, proceedings in error, presented to us, each entitled Walder v. State, numbered respectively 132, 138, 139, 140. The last three mentioned stand upon practically the same contentions, but the first one, No. 132, involves a different and very important question. These prosecutions are under the so-called Rose law (99 O. L., 35), the statute enacted providing for county local option in the state. Under its provisions a vote was taken in this county, and by a majority of the electors it was made unlawful to sell intoxicating liquors within the boundaries of Fulton county.

The consideration of the first case mentioned, No. 132, relates to -the character of a certain beverage conceded to have been sold by the defendant below, the present plaintiff in error. He sold what was called near beer; was convicted for its selling and sentenced accordingly by the court of common pleas of this county. He insists that this so-called near beer was a non-intoxicating beverage. That if it contained any alcohol, it was in a very slight quantity, not to exceed two-tenths of one per cent. There is perhaps some evidence .indicating that it may have contained more alcohol, but there is nothing very definite with regard to that. The affidavit or information upon which he was tried asserts that it contained forty-nine hundredths per cent, alcohol and no more. The affidavit does, however, allege that it was an intoxicating liquor, to-wit, a malt liquor, containing the percentage of alcohol, mentioned.

The defendant in error contends that it.is not necessary under the county option law, in seeking a conviction of an alleged violation of its provisions, to show that the malt liquor sold as a beverage was in fact intoxicating. “

This is the issue presented which has been deemed of sufficient importance to warrant at our hands very careful study of the arguments made orally and by brief of counsel both for plaintiff and defendant.

A very elaborate written argument is presented by counsel for defendant in error citing adjudications in several jurisdictions, holding therein not only that the legislative bodies of the different states have the power to prohibit the sale of non-intoxicants in furtherance of an effort to provide against the evils resulting from the traffic in intoxicants and also that the legislatures have attempted to exercise such power. It is contended, so far as our statute is concerned, that the Legislature in the Dow tax law as originally enacted provided for a tax upon malt liquor. whether intoxicating or not, and that the case of State v. Kauffman, 68 Ohio St., 635, sustains that contention; the decision being that Section 4364-9, Revised Statutes, applies to the business of selling a malt liquor as a beverage which contains less than two per cent, of alcohol and is not intoxicating. The language of the statute as then in force was not very dissimilar to the language of the statute defining the liquors prohibited to be sold under the local option law, but the language is not precisely the same. The original act which has been since amended is found in 92 O. L., 34. Section 1 of that act provides that upon the business of trafficking in “spirituous, vinous, malt or any intoxicating liquors” there shall be assessed a certain tax. The Supreme Court held that the Legislature had thereby provided for a tax not only upon intoxicating liquors, but also upon spirituous, vinous and malt liquors even if they were not intoxicating. And the contention of the defendant in error here is, that the language of the present enactment as to county option is so nearly identical with the language found in the Dow law as originally enacted, the language of which I have just read, that our present act as to prohibition in counties upon vote of the people is to be construed in the same way as an enactment that after a vote of the people to prohibit in the counties it is made unlawful to sell malt liquors even if they are not intoxicating.

This contention might be based upon one or two or three grounds. It might be treated’as a claim that the Legislature had made by law a conclusive presumption that all malt liquors are intoxicating or, second, that the Legislature, in the effort to provide against the evils resulting from the traffic in intoxicating liquors, in order to prevent shifts, devices, subterfuges, enabling guilty persons to escape from the consequences of the law, had provided against sales of all malt liquors because of the usual fact that malt liquors do contain alcohol in sufficient quan-^ tities to 'produce intoxication. In some jurisdictions the principle upon which it has been held that laws can prohibit the sales of non-intoxicants is that they so nearly resemble some of the intoxicating liquors that the buyers are liable to be deceived; or in other cases that they may- be led into the habit of indulgence in intoxicating liquor even when there is not sufficient percentage of alcohol in the liquor to cause intoxication, but some alcohol which might induce the habit of ^drinking. It is perhaps- not necessary to review the various reasons upon which this el aim has been in some jurisdiction sustained, because a careful examination of our county option law, the Rose law, as it seems to us, disposes of the question without dependence upon the adjudications in other states. We may arrive, we think, at an understanding of the intent of the Legislature by a critical examination of the statute which that Legislature has enacted. We do not deem it necessary and will not attempt to pass upon the question whether the Legislature of Ohio may, either under its broad general power to pass laws not prohibited under the Constitution of the state or under that provision of the state Constitution that the Legislature may enact laws to provide against the evils resulting from the liquor traffic, prohibit the sale of liquors bearing some resemblance to alcoholic and intoxicating liquors which are not such in fact; but we will address ourselves to the query as to whether under this Rose law the Legislature has attempted to do anything of the kind.

This act is entitled, “Further to provide against the evils resulting from the traffic in intoxicating liquors by providing for local option in counties.”

Upon the theory of counsel for defendant in error that the Legislature may provide against the evils resulting from the traffic in intoxicating liquors by prohibiting the traffic in similar liquors not intoxicating under some circumstances, the matter in question is not determined by the title of the act because the title of the act would have application to any other kind of sales, either to sales of intoxicants or sales of other things deemed by the Legislature necessary to be prohibited in order to make effectual the provision against the evils resulting from the traffic. But there is other language in the law, which, it seems to us, points more clearly to the specific intent of the Legislature.

In Section 1 of the act it is provided, that whenever a certain percentage of the qualified electors of a county shall petition for the privilege to determine by ballot whether the sale of intoxicating liquor as a beverage shall be prohibited within the limits of such county, that then certain proceedings shall be followed, and it is provided that if the record of the election which is taken shows that a majority of the votes east at said election was against the sale of intoxicating liquors as a beverage it shall be prima facie evidence that selling, furnishing or giving away of intoxicating liquors as a beverage or the keeping of a place where such liquors are sold, etc., was then and there prohibited and unlawful.

Section 2 of the act provides for the form of ballot submitted to the voter upon which they are to exercise their choice in the issue which is to be submitted to them at the election. On the one side they are furnished with ballots providing in terms that the sale of -“Intoxicating liquors as a beverage shall be prohibited”; on the other that the sale of “Intoxicating liquors as a beverage shall not be prohibited. ’ ’ Then it is said in the same section that if the majority of the votes cast at such election shall be in favor of prohibiting the sale of intoxicating liquors as a beverage that after a certain time it shall be unlawful for any person, personally, or by agent, within the limits of such county, to sell, furnish or give away intoxicating liquors to be used as a beverage or to keep a place where such liquor is kept for sale, given away or sold. It is provided further, that whoever from and after the date mentioned, the lapse of time mentioned from the’election, sells, furnishes, or gives away, or otherwise deals in intoxicating liquors as a beverage or does certain other things, shall be punished in the way prescribed by statute; then comes the section that throws the doubt or has thrown doubt in the minds of contending parties as to the real meaning of the Legislature. It is Section 3:

‘•‘The phrase intoxicating liquors as used in this act shall be construed to mean any distilled, malt, vinous or any intoxicating liquor whatever.”

And the question is: Does the term ’ ’any intoxicating liquor ’ ’ apply to something of a different kind from that which has been included in the previous expression, or is it a generic term meant to enlarge what has been said before, so as to make the section, properly understood, read: The phrase intoxicating liquor, as used in this act shall-be construed to mean any distilled, malt, vinous or any other kind of intoxicating liquor? In the Dow law, as it reads at present, the word “other” has been inserted by the Legislature, that is to say, the act, 92 O. L., 34, which I have already read, has received subsequent amendment, evidently to meet the construction which had been put upon it by the Supreme Court in State v. Kauffman, supra, so as to relieve the traffic in non-intoxicating malt, vinous and spirituous liquors from the burden of taxation.

In Section 4 of the Rose law, the county option act, we have this provision, that “when any person, company or corporation has discontinued such traffic in accordance with the provisions of this act, within the time specified by Section 2 of this act, and has paid or is charged upon the tax duplicate with an assessment upon such traffic, the county auditor, upon being satisfied of such fact, shall issue to such person, company or corporation a refunding order of an amount proportionate with the unexpired time for which said assessment has been' paid.

Now in reading Section 4 of this local option law which provides for the refunding order of a proportionate amount of the tax which has been paid when the person discontinues the traffic, it seems impossible to avoid the conclusion that the Legislature deemed that they were dealing with the same kind of traffic in the local option law that had been dealt with in the tax law. The Rose law was passed after the amendment of the tax law which had been changed, as I have said, so as to place its burden upon intoxicating malt liquors, spirituous, vinous, and other liquors only, relieving traffic from any burden upon non-intoxicants.

¥e greatly appreciate the force of the argument that to'permit the sale of liquor bearing close resemblance to intoxicating liquors in a county which has voted -to prohibit under the provisions of this law, may oftentimes make convictions difficult; may sometimes afford loopholes for escape by tricky and cunning device; but notwithstanding that fact, it is our duty under the law to do justice, not forgetting rules of construction of penal enactments. "Whatever the consequences may be, without regard to the power of the Legislature, without regard to the policy of the Legislature, whether the law has been wisely enacted or whether it has not, it is the duty of the courts to construe the laws as they find them. And construing the law as well as we have been able to do it, from an examination of its terms in the light of the authorities and the other enactments on the liquor question in the state of Ohio, we have been forced to the conclusion that this local option law does not permit the conviction of a person for selling a liquor which is not intoxicating.

There is no claim that the evidence in this first case at bar which I have been considering discloses any sale of liquor which is intoxicating. The affidavit, the complaint, does charge, to be sure, the sale of intoxicating malt liquor; but the evidence, as conceded by counsel for the state, does not show the malt liquor called near beer to have been intoxicating at the time when it was sold as charged in the complaint. Indeed, the trial court, the judge to whom the case was submitted without the intervention of a jury, substantially held that the evidence did not disclose that the liquor was intoxicating. Perhaps he expressed himself a little more strongly in the other direction, but he took the position evidently that it was not essential to a conviction that the intoxicating character of the liquor should be shown.

Our judgment is that the conclusion was not justified, and upon this ground it will be reversed.

Another point was raised in the argument of counsel for plaintiff in error and that is that the law itself is unconstitutional, for certain reasons, especially that it deprives or may deprive a person accused of a crime of a trial by jury. This question we think has been fully settled in favor of the validity of the law in the case of Carey v. State, 70 Ohio St., 121, as show by the reading of the syllabus on page 121 and the language of the court on page 124. The entire opinion is per curiam,.

The other three cases against Mr. Walder, below, were also based upon claimed violation of the Rose law. lie is charged with selling and furnishing beer, lager beer, in this county, and the evidence clearly discloses that the liquor which was sold or furnished was of that character. We think that the evidence in this case sustains the conviction. ITis claim is, that when the Rose law went into effect, he was in a sense left stranded here in Fulton county with a stock of liquor on hand of which it was necessary he should in some way rid himself, and that in order to do so he attempted to sell them in another county, and that the sales of which the complaint was made were really not sales in this county at all. But it seems that after the transporting of the beer from his establishment in this county to the sister county it was retransported to Fulton county and there distributed or delivered to buyers. We think that the sales were completed in this county by the delivery, that the procedure was but an evasion of the law, and that he was rightly prosecuted and convicted in Fulton county.

It is urged that the sentences are excessive, but we have repeatedly held that no„power is given under our statutes for setting aside sentences upon the motion that they are excessive where the trial court has confined itself within the limits provided by law and has exercised only that discretion which the law has given it. It perhaps is not necessary in this ease to decide whether or not there might be an extraordinary sentence imposed such as to be an abuse of discretion, but at any rate we are not disposed in this case to set aside this sentence, as excessive.

The judgment will be affirmed in these three cases, Nos. 138, 139, 140, or rather motion for leave to file petition in error will be overruled in these three cases.