text:
    PROSECUTIONS UNDER THE JONES LAW.
    [Circuit Court of Lucas County.]
    Leo C. Otte v. The State of Ohio; George Krupp v. The State of Ohio; and Gotleib J. Noller v. The State of Ohio.

    Decided, February 2, 1907.

      Constitutional Law — Legislation Restricting the Liquor Traffic — Power of the General Assembly in that Behalf — Provisions of the Jones Law — Making the Law Operative — Findings of the Court — Ministerial Omissions — Vagueness in the Affidavits — Proof as to Sales of Beer and Wine — Meaning of the Words “Then and There”— Proof as to Negative Averments — Criminal Law.

    1. Inasmuch as the power is broadly given to the Legislature of the state by the Constitution to provide against the evils resulting from the liquor traffic, and no qualification is placed upon that power except that no license shall be granted for such traffic, the provisions of the Jones law (98 O. L., 68), making a petition signed by less than an existing majority of voters sufficient to impose prohibition upon a residence district against the will of a majority of the voters, does not render the act unconstitutional.
    2. It is the manifest intention of the Legislature that the signers of a petition for the suppression of the sale of intoxicating liquors in a residence district under the Jones law shall be qualified electors of the district at the time of the signing, and that their number shall be equal to a majority of the votes cast at the last preceding -municipal election, and that the petition must be filed within three months of the placing of the first signature thereon.
    3. After the law has been made operative by the judicial findings therein provided for, its operation can not be defeated by the mere neglect of some ministerial act, such as the failure of the judge to cause a certified copy of his findings, together with the original petition, to be filed with the clerk of the municipal corporation within the prescribed time.
    4. Although there may have been some vagueness as to the “when” and “where” of the commission of the offense as charged in the affidavits upon which the prosecutions were based, the charge being that the defendants kept certain places from a certain date and at various times until a certain other date, the period being one week, yet the affidavits were good in that they at least charged one offense, and the defendants were not prejudiced by them.
    5. A finding by a jury that intoxicating liquors were sold at retail by a defendant will not be disturbed by a reviewing court, where based on testimony as to the sale of beer and port wine in a place known as a saloon.
    6. In a prosecution under the Jones law, it is not required that the state make proof in the first instance of negative averments in the affidavit.
    Wildman, J.; PIaynes, J., and Parker, J., concur.
    These three cases against the state of Ohio arise from the prosecution of claimed offenses against the “Jones law,” so-called; the'statute, recently enacted by the Legislature providing for the definition of what are known as “residence districts” in municipalities, and for the prohibiting or permitting the sales of liquors therein after obtaining an expression of the wishes of a proportion of the voters in such district. It has been deemed a form of local option, and was enacted by the Legislature to to take the place of a certain previous existing legislation which provided for the obtaining of the expression of the voters by vote, instead of by petition.
    A number of important questions are raised by the defendants, who are here the plaintiffs in error. They were convicted in the Police Court of the City of Toledo, of the violation of the said Jones law. The questions are of sufficient general interest to warrant careful consideration and a somewhat extended treatment of some of the points involved.
    At a former term of this court, the action of one of the judges of the court of common pleas in passing upon the sufficiency of a petition for the definition of the alleged residence district No. 3 — the one involved in the present cases — was before this court for review upon an application for leave to file a petition in error. In our decision of the matter then presented, we were called upon to pass upon some of the questions now re-presented. With the opinion there expressed, as to the constitutionality of the act and its construction in some of the salient features discussed, we are still content. The case has not, as yet, however, been reported, and in as brief a statement as possible, I will express our views as to the constitutionality of tbe act and its construction, in view of certain claimed inconsistencies urged by counsel for plaintiffs in error.
    It was earnestly urged upon us that the act is, for some reasons, in violation of the Constitution of our state. No special article or section of the Constitution was emphasized in argument, if pointed out, but it is said that the statute, in terms, may impose a prohibition of the liquor traffic upon a prescribed territory against the will of a majority of its electors. It is said that those who do not sign the petition have no opportunity to vote; and also that if it be true that a petition under the act is sufficient when signed by less than an existing majority of the electors at the time of such signing, then it permits a minority of the voters to determine whether the district shall be one in which liquor is or is not legally sold. We are cited in the course of the argument to the case of The Slate, ex rel, v. Constamtine, 42 O. S., 437, in which it is held:
    “Where an office is filled by an election-, the election must conform to the requirements of the Constitution, and each elector of the district is entitled to vote for a candidate for -each office to be filled at the election.
    ‘ ‘ A statute authorizing the' election of ■ four members of the police board at the same election, birt which denies to an elector the right to vote for more than two members is in conflict with Article V of the Constitution.”
    There is nothing that we discover in this ease touching the right of the Legislature to make such enactments as the one before us. The right to provide against the supposed evils of the liquor traffic is a l’ight expressed by the Constitution of the state itself; the power is broadly given to the Legislature to provide by law against the evils resulting from the,traffic, and no qualification is placed upon that power, except that no license for such traffic shall be granted. It has been a very common matter of legislation to enact that certain kinds of business deemed inimical to the interests of certain localities, shall not be carried on therein; and in regard to liquor selling we have had 'numerous enactments prohibiting the sale of liquors within prescribed distances of certain places: as, for instance, for a long time, within two miles of where a fair was being conducted by an agricultural society, or within a certain distance of public institutions of various kinds. These acts have not been held invalid; they have been sustained and enforced, and their constitutionality upheld.
    By analogy to the principle upon which such enactments are sustained, there would seem to be no restriction upon the powers of the Legislature directly to define districts and call them “residence districts” in a statute prohibiting therein the sale of liquor. As the Legislature may say that it shall be unlawful, to sell liquor within such a distance of a school-house, or a college, or a soldiers’ home, or an agricultural fair, just so the Legislature may enact that it shall be unlawful to sell liquor within a defined territory of a. municipality in which a certain proportion of blocks or structures are occupied not for business but for residence purposes. The point at which I am arriving is, that it was not essential that the Legislature should require any expression of the voters at all; the Legislature might or might not place a qualification upon the operation of its enactment, and in this instance it has so done. It has sought to obtain some expression from the voters of a district in which there was a desire on the part of some to exclude the liquor traffic. The Legislature, we think, might have said that this shall only be done upon an expression of the will of two-thirds, or three-fourths of the voters. We think that it might just as constitutionally have said that it may be done upon an expression of one-fourth, or of ten per cent., or of any other per cent, of the voters; it need not have qualified it by giving any more force to the expression of the will of the voters than of other adult members of the population. It might have permitted the women as well as the men to have expressed their will in the matter. In other words, there is no limit in the Constitution to the power of the Legislature to make its own qualifications -to the operation of such an enactment as this, or to make the enactment unqualified, as it sees fit.

      The difficulty which seems to have been encountered by some lawyers, and the obscurity which the judge of the court of common pleas passing upon the sufficiency of the petition relating to residence district No. 3, thought that he found in the statute as to its construction, is not apparent to us. The statute seems to us, so far as regards the requirement concerning the number of petitioners to make the law operative and enforcible, altogether clear — that is to say, as clear as most of the enactments of the Legislature. We have at no time found any difficulty in determining what seems to us the manifest intent of the Legislature in this respect. The claimed inconsistency arises out of the phraseology in certain parts of the statute which seems to make the prohibition or non-prohibition of the liquor traffic in a district depend upon the voice of a majority of the qualified electors, and in other sections of the statute the language that the petition shall be signed by as many qualified electors as equal a majority of the votes cast at the last preceding election — that is, the last regular municipal election in the district. The whole act is to be read together and we can not, in endeavoring to ascertain the time intent of the Legislature, reject any of its parts. Counsel for plaintiff's in error have utterly failed to find any explanation of the use. of the clauses of sections three and four, to which I will make reference, unless they are to be used in precisely the manner claimed by counsel for the state. Let us compare these various clauses for a moment — not entirely in detail, but in a general way, in order' that we may make clear our understanding of the intention of the Legislature.
    Section 1 provides (see 98 O. L., 68) :
    “Whenever a majority of the qualified electors of any residence district of any municipal corporation sign a petition in favor of prohibiting the sale of intoxicating liquors as a beverage in such residence district,” and then take certain other action, certain results shall follow.
    Section 2 begins:
    “Whenever a majority of the qualified electors of any residence district of any municipal corporation in which the sale of intoxicating liquors as a beverage has been prohibited under the provisions of section one of this act, shall sign a petition against prohibiting the sale of intoxicating liquors as a beverage in the same residence district and file the petition with the mayor,” etc., certain-results shall follow.
    Section 3 provides:
    “The petition provided for in this act shall be deemed sufficient when it is signed by as many qualified electors as equal a majority in number of the votes cast at the last regular municipal election in such residence district, but must, in order to be valid, be filed not later than three months after the signing thereto of the signature first in order of time.”
    I will not tarry to discuss the effect of this last clause of thq sentence, but that it is not to be forgotten in the construction of the entire sentence is, I think, clear. It was not intended that the preparation of a petition, or the obtaining of signatures thereto, should be continued for so long a period as to make it absolutely ineffectual to the -obtaining of an approximate measure of the voters. The time is limited to three months in order that it may not reach back to some remote period, because if there were not some such qualification it might be so greatly prolonged in the obtaining of the signatures that there might be a vast change in the population of the district between the taking of the first signature and the last.
    Section 4 provides that after the petition has been submitted to the mayor or judge, such official shall decide certain things, and among others, this:
    “The mayor or judge shall decide whether the petitioners are qualified electors in the residence district and equal in number a majority of the votes cast’in the residence district at the last regular municipal election.”
    Now, is it possible that, taking these sections together, any other intent can have been had by the Legislature than that the petition should be signed by persons who were qualified electors at the time of signing, and that in number they should be. equal to a majority of the votes cast at the last preceding regular municipal election? The Legislature desired to avoid the difficulty which might arise in the enforcement of a requirement that' a petition should be insufficient until signed by a majority of the existing electors at the time of the signing, by providing this way of ascertaining approximately the number of voters in the district. AVe think that this is a plain construction of this act; that no special difficulty attends it, and we think that the finding of the common pleas judge as recited in the affidavit and as appears in the record before us, does show, although it does not state in words, the signing of the petition by a sufficient number of qualified electors. The judge has made findings as to the number of electors still residing in the district at the time of the signing and as to the number of votes cast at the last preceding regular municipal election; he has stated the number of signatures by qualified electors upon the petition, and rejecting such matters as are clearly surplusage in the certificate made by him, the certificate still contains all that the statute requires it to show in the determination of the question whether the petition was a sufficient one under the statute.
    Another question, and one not altogether free from difficulty, is raised by the claim that there was a neglect to comply with the statute requiring the judge to cause a certified copy or certificate of his findings, together with the original petition, to be filed with the clerk of the municipal corporation or council, not less than five days after tb,e finding and not more than forty days from the filing of the petition with him, and that, without a record by the clerk, there is no sufficient showing that the so-called residence district became one in which it was unlawful to vend intoxicating liquors and keep a place for such purposes. The language of the statute does not require the judge to cause a certificate to be recorded in the records of his court. It requires him to make a record of his findings on his docket and also to cause this certified copy or certificate of his findings,' together with the original petition, to be filed with the clerk, as I have stated. There are two provisions of the act which bear upon the question as to what is the effect of the record or the use to be made of it in the subsequent proceedings to enforce the act. Section 1 provides that the decision of the judge as certified to the clerk of the municipal corporation or council and. recorded by him in the records of the council or corporation, or a certified copy thereof, provided it shows that a majority of the voters of such residence district were in favor of prohibiting the sale of intoxicating liquors as a beverage, shall be prima, facie evidence that the selling, furnishing or giving away, etc., was prohibited and unlawful.
    Section 5 provides:
    ‘ ‘ If the findings of the mayor or judge or a copy as recorded by the clerk of the municipal corporation or council on the records of the council shows that a majority of the qualified electors in the residence district named are in favor of prohibiting the sale of intoxicating liquors as a beverage, then, from and after thirty days from the date of such finding by the mayor or judge it shall be unlawful for any person,” etc., to do the acts prescribed in what we know as a prohibited district under the law. This last section — five—seems 'to be somewhat more sweeping than the other, and to make it not simply presumptively unlawful but absolutely so to sell in the district after the finding of the mayor or judge or the recording of the copy. Note that the requirement here is in the alternative. It does not say “the findings and the record,” or “the findings as recorded,” but if the findings show, or if the copy of the findings as recorded shows, then it shall be not simply prima facie unlawful, but it shall be absolutely so, to sell.
    There is more difficulty.in the construction of this passage, to my mind, than there is in the one upon which counsel have placed the principal emphasis in their argument, but after a consideration of the entire statute and the object sought to be subserved by it, its general spirit and purpose as well as its letter, we are of the view that it is not in the power of the municipal clerk, nor even of the common pleas judge, to defeat the operation of the law by the mere neglect of a ministerial act. If the law has been made operative by the judicial findings provided for in it, if the substance of the act so far as regards the obtaining of the petition and its submission to the proper judicial officer, and his passing upon it and finding its sufficiency, have all been followed, and the record made upon the docket as provided by law, and if those proceedings show that a sufficient petition has been filed, then we think that within the spirit of this enactment it is unlawful in such district to sell, and that it is not essential that the record should be made by the clerk to make the statute enforcible within the prescribed district.
    The affidavit upon which the prosecutions in these cases were based is not quite so artistically drawn in some respects as might be desired — especially as regards the allegation of the place tullere and the time when the alleged offenses were com•mitted, and it is urged upon us that there is no sufficient averment of venue — not exactly perhaps, as to the county, but more especially as to the commission of the offense within the boundaries of the prescribed district. This affidavit is so long and so complicated that I will not tarry now to re-read it: I have read it several times, as have the other judges of this court, and, of course, counsel; but we think .that the frequent use of the phrase “then and there” in various parts of the affidavit, after mentioning certain dates and describing in detail this District No. 3, and mentioning the county and municipality in which the district is to be found, sufficiently apprises the defendants of the time and place in which it is sought to charge that they had violated the law. In this very useful work, in several volumes, Words and Phrases Judicially Defined, found in our law library, in Yol. 8, at pages 6947 and' 6948, I find reference to certain decisions which I will cite as bearing upon the use which may be made of this phrase ‘-‘then and there” in the construction of an indictment, information or complaint:
    “Where an indictment specifies a certain date in the caption and another date in the body thereof, and the phrase ‘then and there’ is afterwards used in the indictment, it will be construed as referring to the date last mentioned. Commonwealth v. McKenney, 80 Mass. (14 Gray)', 1, 2.”
    ‘ ‘ ‘ Them and there, ’ as used in an indictment, means the time and place last previously mentioned therein. State v. Hurley. 71 Me., 354, 355.”
    “The words ‘then and there’ as used in an indictment, are words of reference, and when time and place have once been named wit¡h certainty, it is sufficient to refer to them afterwards by these words, and they will have the same effect as if the time and place were actually repeated. These words also refer to the time and place last specified, unless there be some phrase connected therewith which shows that a different reference is intended. Stale v. Cotton, 24 N. TL, 143, 146.”
    “The words ‘then and there’ in an allegation in an indictment for arson that defendant burned a certain house then and there occupied, controlled and owned by him, refers to the time and county previously stated, and is a sufficient statement of the locus in quo of the house burned. Baker v. State, 8 S. W., 23, 24; 25 Tex. App., 1.”
    There are numerous other cases along the same line, but I have selected these as having special pertinency to the language found in these pleadings.
    It is also objected that the affidavit charges several offenses; that they are objectionable for duplicity or vagueness. They are like in the three cases, in substance, and almost exactly so in phraseology. They charge that the defendants kept the places from a certain date and at varioris times until a certain other date, the intervening period being only one week: Now, this may not be a technically correct form of averment, and yet, under all the circumstances, and just as it is alleged here, we think that it at least charges one offense and we do not think that the defendants were in any way prejudiced, so far as appears by the whole record, by any lack of clearness in the affidavit in this respect. Reference may be made to the familiar section of the Revised Statutes, in the Criminal Code, Section 7215, often referred to for its bearing upon these and like questions:
    “No indictment shall be deemed invalid, nor shall the trial, judgment or other proceeding be stayed, arrested, or in any manner affected, * * * for omitting to state the time at which the offense was committed, in any case in which time is not of the essence of the offense; nor for stating the time «imperfectly; =:í * =::= nor for -(^0 want of an allegation of the time or place of any material fact, when the time and place have once been stated in the indictment * * * nor for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”

      Without dwelling longer upon this matter, we think that there was no prejudice to any substantial rights of the defendants upon the merits — in the rulings of the court below upon this affidavit.
    Several contentions were made by counsel for plaintiffs in error which we think must have arisen from forgetfulness of what is contained in the record itself — for instance, it is said that the court erred in the admission of the evidence of one Biddle. But no objection was taken upon the trial and no ruling of the court was excepted to in this instance. It is said that there was no evidence that intoxicating liquors were sold or given away. One witness, Wagers, testified positively that he bought beer in one place, and he tells about beer being sold to numerous other people. He says that the place was a saloon; that it was kept for the sale of intoxicating liquors at retail. Now it may be said that to speak of the sale of wine or beer is not the same as to charge the sale of intoxicating liquors. This may sometimes be true, but it is not always true; it depends upon the sense in which the words are manifestly used by the .one speaking. If a witness has reference to a kind of beer which is intoxicating — and no one disputes that some beer is intoxicating — or if the witness sp.eaks of a kind of wine that he deems intoxicating, 'then his statements are to be taken as his testimony that the liquor sold and drank was such. In one of the instances he speaks of lager beer as bought by himself. I will read from Vol. 1 of this same -work, Words and Phrases Judicially Defined, at page 733:
    “When beer is called for at a bar in a saloon or hotel the bartender would know at once from the common use of the word that strong beer was wanted. When the word ‘beer’ is used in court by a witness, the court will take judicial notice that it means a malt and an intoxicating liquor. In the meaning of the word itself, there is a prima facie proof that it is malt or intoxicating liquor that is meant. Briffitt v. State, 16 N. W., 39, 41; 58 Wis., 39; 46 Am. Rep., 621.”
    In the Indiana case, immediately following, to which reference will be made, definitions of Webster as to various kinds of beer and as to the general use of the word are given and then this statement is made:

      “As a consequence, when beer is called for at a place at which intoxicating- drinks are sold, the bartender, having in view the primary meaning, as well as the common use of the word, is justified in inferring, and must reasonably infer, that malted and fermented beer is wanted. When, therefore, a witness testifies to the sale or giving away of beer under circumstances which make the sale or giving away of any intoxicating liquor unlawful, the prima facie inference is that the beer was-of that malted and fermented quality declared by the statute to be an intoxicating liquor, and the court trying the cause ought to take judicial notice of the inference which thus arises from the use of the word ‘beer’ in its primary and general sense. Myers v. State, 93 Ind., 251, 252; Slate v. Jenkins, 4 Pac., 809, 811; 32 Kan., 477; Dcmt v. State, 5 N. E., 870, 871; 106 Ind., 79; State v. Tisdale, 55 N. W., 903, 904; 54 Minn.,. 105.”
    “Testimony that beer was sold in a drinking saloon by one who manufactured it will be taken to mean a sale of the fermented malt liquor commonly sold in such saloons, and not ginger beer, root beer, or the like. State v. Dick, 50 N. W., 362, 363: 47 Minn., 375.”
    “In its ordinary sense, ‘beer’ denotes a beverage which is intoxicating, and is within the fair meaning of the words ‘strong or spirituous liquors,’ as used in statutes regulating the sale of such liquors. ‘Its primary signification is that of a malt liquor; and if it is to be understood'in a restricted or qualified sense, such as to denote root beer, molasses beer, or persimmon beer, etc., it would be incumbent on the defendant to show that such is the case.’ There have been a great many decisions on the subject, but the most of them sustained the view that the court will take judicial notice that the word ‘beer’ when used in a court by a witness, means a malt and an intoxicating liquor. Maier v. Stale, 21 S. W., 974, 976; 2 Tex. Civ. App., 296; United States v. Ducournau (U. S.), 54 Fed., 138, 139 (citing Tinker v. Slate, 90 Ala., 647; 8 South., 855; Watson v. State, 55 Ala., 158; Allred v. Slate, 89 Ala., 112; 8 South., 56); Slate v, Effinger, 44 Mo. App., 81, 83; Slate v. Teissedre, 2 Pac., 650, 653; 30 Kan., 476.”
    As to one of these eases before us, it was mentioned by a witness that “port wine” was sold. On page 3745 of Yol. IY of Words and Phrases Judicially Defined, is this citation:
    “ ‘Intoxicating liquors,’ as used in Acts 1876-77, c. 38, prohibiting the sale of intoxicating liquors, etc., include port wine. State v. Packer, 80 N. C., 439, 440.”

      And, on the same page:
    “In a prosecution for selling intoxicating- liquor on election day, and instruction that ‘wine is an intoxicating liquor within the meaning of the statute, and its sale or gift on election day is prohibited,’• was approved, the court saying: ‘The court takes judicial knowledge of the fact that wine is an intoxicating liquor, which is a matter of common knowledge.’ Wolf v. Stale, 27 S. W., 77, 78; 59 Ark., 297; 43 Am. St. Rep., 34.”
    I also wish to refer, upon the question as to the intoxicating character of beer, to the case of Marble v. Town Council of Akron, 14 Ohio Rep., 586, 587, 591. I read from the latter page:
    ‘ ‘ It was said on the trial below, that beer was not intoxicating liquor, and therefore not within the terms of the ordinance. The evidence spread upon the record shows that it had decidedly an intoxicating effect upon the vendee; and after drinking it he immediately became boisterous, and the plaintiff in error was compelled to force him from his premises. But, aside from this, beer may be denominated the 'raAv material’ from Avhich alcohol is made, and science proved on the trial the parts of which it was1 composed, by actual analysis, and we can not differ with the court of common pleas in the opinion that it is in its very nature inebriating in its consequences, when drank to excess.”
    Noav in Section 7 of the Jones act, on page 72, Vol. 98 Ohio LaAA-s, AA-e Imve this definition of “intoxicating liquor”:
    “The phrase ‘intoxicating liquor’ as used in this act shall be construed to mean any distilled, malt, vinous or any intoxicating liquor, by whatever name the same may be known.”
    And in that connection I -will cite the ease of Weisbrodt v. Slate, 50 O. S., 192, in Avhich it is stated, per curiam:

    “The record presents the question Avhether or not in an information under Section 6948 of the Revised Statutes, wrhich makes it an offense to keep open on election day any place where on other days spiritous, vinous or malt liquors are habitually, sold and drank, it is sufficient to describe the place as one ‘where intoxicating liquors Avere on other days habitually sold and drank.’ We answer the question in the negative. All spiritous, vinous or malt liquors are intoxicating, but all intoxicating liquors are not necessarily either spiritous, vinous or malt- liquor.”

      Now, as . already indicated, the witness testifying in these three cases which we are considering, associated in his mind with his remembrance of what he and others bought at the bar where persons congregated, the idea that it was in what he called a saloon; that they called for beer, or that they called for wine— one on one occasion “port wine” — with other qualifications or explanations of what they wanted/and surely it was proper for the jury in the court below to take into .consideration all the attending circumstances in determining the character of the transaction. We think that the jury were entirely justified, in view of all the testimony and in default of evidence of any kind adduced by the defense, in concluding that this was a selling of intoxicating liquors.
    It is said by counsel in argument that none of the negative propositions in the affidavit were proven. There was proof as to at least some of the negative averments of the affidavit; but, in our judgment, no proof was required, in the first instance, from the state. The statute does make the exclusion of these matters a part of the definition of the offense, and it has been repeatedly held that unless it be a part of the definition of the offense, then it is not incumbent upon the state to make proof of the fact. To illustrate: if the statute had provided that it should be unlawful to sell without a written permit from some person, or without a prescription, it might be necessary to show that there was no permit or no prescription; but as to the matter which it is claimed- should have been shown by the state here, it is in a separate section, no part of the definition of the offense, and it is rather a matter of defense, an exception to the operation of the general prohibition. The statute is not meant to operate upon certain classes of persons, but it is intended to operate upon people generally. Now, to bring the defendants within the class excepted from the general enactment, the decisions are all in harmony, that it is incumbent upon the defendant to make such showing and not upon the state to show that defendant does not belong to such class.
    .. Our consideration of the whole matter is that the several contentions of counsel for plaintiffs should not be sustained. "We find no errors in the record that by any possibility can have prejudiced the rights of the defendants below. Probably the purpose of the defendants is to test the validity of the aet and to obtain a proper construction of it — at least we .judge that such is the case froni the fact that no defense was offered on the trial in the police court in the way of introduction of evidence of any kind.
    The judgment of the court of common pleas, sustaining the judgment of the police court, should be and is affirmed.

      F. M. Sala, Frederick G. Schall and UUery, Martin & Webster, for plaintiffs in error.

      E. L. Twimg and W. B. Wheeler, for the state.

       Motions for leave to file petitions in error to the Circuit Court of Lucas County overruled by the Supreme Court, March 12, 1907,


source: Caselaw Access Project

license: Public Domain

text:
    UNDESIGNATED INVESTMENTS BY TRUSTEES.
    [Circuit Court of Huron County.]
    Anna C. Brown v. Theodore Williams et al.
    Decided, 1906.

      Trusts and Trustees — Investment of Trust Funds — Duty of Trustee to Distinctly Designate — Flection of Gestuis Que Trustent — Rights of Remaindermen.

    1. Where a change in the investment of a trust fund has been made by the trustee without any specific designation of the new investment at the time of the change as that of the trust fund, but leaving it open so as to make it possible for him to claim it as his own should it be profitable, or treat it as the trust should it prove .disastrous, the cestuis que trustent can elect whether they will consider the investment as made of the trust fund, or require the trustee to account for the trust and a reasonable income from it.
    2. Where the income of a trust fund is bequeathed to a legatee, her share at her death to go to her surviving children, such children are not after the death of the mother bound by any election or ratification of changes in the investment of the trust fund which prove injurious to them.
    Parker, J.; ITaynes, J., and Wildman, J., concur.
    Appeal from Huron Common Pleas Court.
    This case is in this court by appeal. It appears from the pleadings and the evidence that in 1869 James Williams, a farmer residing in this county, died testate, leaving surviving him Julia B. Jackson, Louise Bronson, Caroline "Williams, James B. Williams and the defendant, Theodore Williams, his children. His last will and testament was duly admitted to probate and Theodore Williams and James B. Williams, nominated therein, were duly appointed as executors of the last will and testament and they qualified^ and acted as such jointly until the time of the death of James B. Williams, which occured in 1878. The will bequeathed to the sons, Theodore and James B., all the stock of the testator in the Toledo Bridge Company, amounting to $11,000, par value; but upon his stock was imposed by the will a trust in favor of the other children, and upon their decease, their surviving children. That is, it was provided that the income from this stock or from any other investment made from the proceeds of thé stock, should go to them, but the body of the fund should belong to James B. and Theodore. One-half of this income was to- go to Julia B. Jackson and, at her demise, her share of the income was to go to her surviving children. She died in 1896, leaving the plaintiff, .Anna C. Brown, and the defendants, Theodore W. Jackson and Florence B. Friend, her only surviving children.
    There is some controversy arising' upon the construction of this devise or this bequest as to whether, upon the death of Julia B. Jackson, all of the income which she had theretofore been entitled to, then went to these parties, she having had other children that died before her decease. But we are of the opinion that it is very clear from the will that these three surviving children took the same interest in the income from the fund as had theretofore been enjoyed by their mother. It seems that this stock in the Toledo Bridge Company at the time of the decease of the testator was regarded as very valuable and was paying good dividends and it continued to pay good dividends for some years thereafter. Brit in 1872, it became advisable and perhaps necessary to dispose of the bridge stock and to take in exchange for it a bridge bond of the city of Toledo, and that was done. The amount received in exchange was $7,000 in the bridge bond and $333.33 in cash. Afterwards, in November of 1882, these bridge-bonds were redeemed by the city. Up to that time the income from the bridge bonds had been 8 per cent, per a.nnnm or 4 per cent, each period of six months, interest being paid semi-annually
    Mr. Williams in his account gave credit to the sister for 8 per cent, upon $333.33 of cash. Early in 1882 Theodore Williams, the surviving executor and trustee, became the owner of bonds of the Norwalk Gas Light Company. lie made purchases of these bonds at different periods until he became the owner of the full issue of $25,000. These bonds provided for the payment of interest at the rate of 6 per cent, per annum, or 3 per cent, semiannually. Default was made in the payment of interest upon these bonds in March, 1891.
    It appears that the property had become very much run down’ and upon default being made, Mr. Williams, as trustee, under a mortgage securing the bonds, foreclosed, and the property was sold, and it turned out that it paid a very small percentage upon the bonds. In fact, the bonds by that time had become almost worthless. It appears that at the time Mr. Williams became the owner of the bonds, they were regarded in- the market as good securities, and as being fairly worth anywhere from eighty to •ninety, cents upon the dollar.
    Upon the gas light company making default in payment of interest upon these bonds, or very soon thereafter, Mr. Williams ceased paying Julia B. Jackson anything of the trust fund under the will that has been referred to, claiming, as it appears, that he had invested the money derived from the redemption of the Toledo bonds and the other amount of $333.33, in the Norwalk Gas Light Company bonds, and so far as appears from the evidence Mrs. Julia B. Jackson acquiesced in this statement and settled with her trustee upon this basis; but the plaintiff in this case and the cross-petitioners, Theodore W. Jackson and Florence B. Friend, claim and contend that Mr. Williams did not make this investment of the fund derived from the redemption of the Toledo bonds, or that, if he did, it was not done in such a way as that they are bound by his action, and they thereafter called upon him to account for interest for the time that has expired since their mother’s death, and since they became entitled to the income from this fund; they called upon Mm to account for the interest at least, upon $7,333.33. The controversy here turns upon the question whether Mr. Williams made this investment of the fund, or if he did, whether these cesiuis que iruslenk are bound by such action so that they must suffer the loss that has resulted from the investment.
    Considerable testimony has been submitted to us, including the testimony of Mr. Williams and Mr. Williams’ bookkeeper. A large part of the evidence consists of entries in Mr. A¥illiams’ books of account. Mr. AAUlliams, who is now a man advanced in years has, as it appears, throughout his lifetime, been a man of extensive business interests and an active business career; also a successful man of business and a man who seems to have been in the main very prudent in his investments and very exact in his accounts.
    His records of his transactions pertaining to this trust as found in his account books and letters and papers show that when the change was made in the investment from the stock of the Toledo Bridge Company to the bonds of the city of Toledo, he set down a very full and exact statement of the whole transaction so that anyone coming into possession of his books could easily follow the fund and see exactly how it had been invested, and in that account and statement he even gave the numbers of the bonds, and in other respects his accounts are very full and very exact. But when it comes to the alleged transaction of 1882, when .these bonds of the city of Toledo were redeemed and when it is said that the. proceeds were reinvested in the bonds of the Norwalk Gas Light Company, we find very slight, if any, evidence in the books and papers of Mr. A¥illiams, of such a transaction— I mean the transaction of reinvestment. A¥ere it not for the oral testimony of Mr. Williams we think it would be utterly impossible for anyone to determine that such a transaction had taken place; and while in the books and papers there are some things that are consistent with, and perhaps point to such a transaction, there are, on the other hand, many things that point to the absence of such a transaction; indeed, the only statement found in the books that we regard as indicating with any degree of definiteness that there was such a transaction- in fact, or in contemplation, is found in the entry in the books of Mr. Williams 'occurring in July of 1892, after the bonds had become practically worthless. He there makes a notation to the effect that certain charges against his sister were on account of interest advanced upon this, which he continued to call the “bridge fund,” and that he thus continued at that date his advancement by reason of the fact that the interest upon the Norwalk Gas. Light Company bonds had not been paid.
    The oral evidence of Mr. Williams and his bookkeeper indicate that Mr. Williams regarded the money received from the Toledo bridge bonds as having been invested in the Norwalk Gas Light Company bonds and that he used the interest collected from the Norwalk Gas Light Company bonds to discharge the annual interest which he charged to himself on account of the money received from the Toledo bridge bonds.
    I have indicated and perhaps should state more definitely that after the stock of the bridge company had gone into the Toledo bridge bonds, the entries in the ledger of Mr. Williams were changed and the fund denominated the “bridge fund.” It continued under that designation without any interruption in form of the statement of the account, without the striking of any balance or anything to indicate any change even after the bonds had been redeemed and down to the time that he ceased to pay interest. His books indicate that he was paying 6 per cent, interest upon the $7,333.33; he was paying it semi-annually.
    The interest upon the “bridge bonds” fell due upon the tenth day of May and the tenth day of November of each year. The ■interest upon the Norwalk Gas Light Company bonds which was equal in amount fell due upon the first day of March and the first day of September of each year.
    In most of the entries following this alleged transaction- of reinvestment in the Norwalk Gas Light Company bonds, the charge of the interest as having been paid to Mrs. Julia B. Jackson appears under date of the tenth day of May and the tenth day of November, though in some few instances it appears upon other dates, and in some instances upon the first of March and the first of September.

      The transaction which' Mr. Williams testifies was on behalf of this-trust fund, was the purchase of $8,000 par value of the Norwalk Gas Light Company bonds in May of 1882; whereas' the Toledo Bridge Company bonds were not redeemed until November 10, 1882. Mr. Williams, when he is first called upon to relate the facts of that transaction, seems to have remembered that he received the money from the bonds of the city of Toledo before he reinvested it in the bonds of the Norwalk Gas Light Company. He says that as soon after he made this collection as he could find the security in which to make the reinvestment, he made such reinvestment; whereas, it turns out, as a matter of fact, that this $8,000 block of bonds had been purchased by Mr. Williams some six months before the bonds of the city of Toledo had been redeemed, and upon his attention being drawn to that, he states that he had bought the Norwalk Gas Light Company bonds in anticipation of the redemption of the Toledo bridge bonds, which would seem to be a matter of loan or accommodation. But, as I have said, Mr. Williams’ claim is, that he invested the money received from the city of Toledo on account of the so-called “bridge fund,” or $7,333.33 in the bonds of the Norwalk Gas Light Company of equal amount, or, in other words, of the par value of $7,333.33; whereas, it further appears from his testimony that the block of bonds of $8,000 cost him but eighty-four cents upon the dollar.
    Manifestly, the trustee could not be permitted to derive a profit from the purchase of bonds on behalf of the trust. It turns out that if he had purchased but $7,333.33 of par value of these bonds, he had, under the law applicable to such transactions, as between the trustee and the cestui que tnusb, invested but $6,149 of this money, leaving in his bonds, uninvested, $1,184; or, if he had invested the full $7,333.33 in these bonds at eighty-four cents, he would have purchased about $8,700 of bonds, which was more than the amount of the purchase made upon that occasion and in that transaction.
    The view that Mr. Williams takes of the transaction, and the view most consistent with his testimony and his books is, that he invested but $6,149 of the trust fund in these bonds, if anything. As I have said, the testimony tends to show that Mrs. Jackson, the mother of these parties, acquiesced in the claim or statement of Mr. Williams that he had made this reinvestment of the fund, and settled with him upon that basis; but it will be observed that these parties do not claim through, or under their mother; their rights, like that of Mr. Williams under the will, are derived directly from the testator, so that their rights are not in any way affected' by any admissions or declarations or settlements or transactions upon the part of their mother; and whatever she may have said or done, can not be regarded as admissions or as evidence of any character affecting their rights.
    I can not go further into the details of this transaction. I have not recited all of the pertnent evidence; I have only given a general statement of the matter; and after looking over, the books and papers of Mr. Williams,-without taking into account his oral statements, we find, as I have already stated, that it is impossible to determine that any such investment as now claimed was ever made in the bonds of the Norwalk Gas Light Company; that the whole claim of re-investment so far as the evidence is concerned, rests upon the oral statements of Mr. Williams, and those of his bookkeeper.
    Besides this block of $8,000 of bonds, he had, as I believe I have stated, other bonds, amounting in the aggregate to $25,000. There appears to have been no attempted separation made of any part or of any number of these bonds which were set apart as the investment made on behalf of the fund. Had Mr. Williams been so disposed — we do not mean to intimate at all that he was a man that would have done or contemplated such a thing— but had he been a man of such character that he would have been disposed to treat these bonds as his own, he might well have done so, and his books and papers would have afforded no evidence against him.
    So far as any record evidence is concerned — any written evidence, any evidence of a permanent form, or any evidence of the setting aside and designating of these papers as belonging to the fund — there is such an absence of anything of that kind that Mr. Williams was in a position, if the bonds became of little value, or of no value, to say they were á part of the investment of the trust fund; or, if they became very valuable, if they commanded a premium so that it would be profitable for him to do so, it was in his power to say, “This is my personal property, and the trust fund — the ‘bridge fund’ — is intact in money in my hands on account of which I have charged and paid interest rate of 6 per cent. — 3 per cent, semi-annually since it came into my hands. ’ ’
    Now, we think the authorities are very' clear that a trustee can not thus operate with a trust fund. We have no disposition to intimate that Mr. Williams ever contemplated anything other than to regard the $7,333.33 of these bonds, as set apart as the trust property; and yet, by failing to distinctly mark or distinguish any of the bonds as trust property, either by assignment or transfer of title, or by any mark or method, or by his accounts, leaving himself in a position where he might with equal consistency, treat the bonds as his own personal property, or as trust property, we think that under the authorities Mr, Williams placed himself in a position where these cestuis que trustent may elect to regard that investment as having been made or as not having been made. Naturally under the circumstances, if considering their profit only, they would elect to regard it as not having been made, and this they have done. Equity will not tolerate a system of dealing that places the cestui que "trust so much at the mercy of the trustee, and gives the trustee such an advantage as would be given here were we to uphold this transaction as claimed by Mr. Williams.
    We conclude, therefore, that the prayer of the plaintiff’s petition and the cross-petition of the defendants, these children of Julia B. Jackson, should be, and it is granted.

      C. L. Kmnan and C. P. & L. W. Wickham, for plaintiff.

      8. M. Young, C. L. Kernian, O. P. & L. W. Wickham and A. V. Andrews, for defendants.


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    DISTRIBUTION OF FUND FOR. WRONGFUL DEATH RECOVERED IN ANOTHER STATE.
    [Circuit Court of Cuyahoga County.]
    Katherine Miller v. Andrew Miller et al.
    Decided, March 4, 1907.

      Wrongful Death — Funds Recovered for Death in Another State on Account of — ■Distributable Under the Law of Ohio — Construction of Sections 6134, 6134a and 6135 — “Supplementary’’ Sections, How Treated — Administrators—Widow and Next of Kin.

    When damages are recovered in Ohio for the death of a husband, resident of Ohio, occurring in the state of New York, caused by wrongful abt in the latter state, such husband dying without issue, the damages so recovered are payable to his widow, notwithstanding the general rule? that such damages are to be distributed in accordance with the statutes of the state in which the wrongful act was done.
    Marvin, J.; Winch, J., and Henry, J., concur.
    Error to tbe court of common pleas.
    Tbe facts in this case are that one Anthony Miller, a citizen and resident of Cuyahoga county, Ohio, was killed on the 2d day of July, 1905, in Eric county, near Buffalo, N. Y., by the wrongful act of the Buffalo & Depew Railway Company; he died intestate, without issue, leaving the plaintiff in error, Katherine Miller, his widow, and his father, Andrew Miller, a man of property and not dependent upon said Anthony Miller for support. Katherine Miller was appointed administratrix of the estate of Her deceased husband by the Probate Court of Cuyahoga County.
    Without bringing an action against the railroad company for the wrongful death of her husband, she compromised the claim growing out of such death for the sum of four thousand dollars. This was done with the approval of, and was confirmed by said probate court. Upon motion duly made in that court for an order of distribution of this fund, it was ordered that one-half of the amount be paid to the said Andrew Miller and one-half to the said Katherine Miller. From this order an appeal was taken to the court of common pleas, and upon hearing the same order was made in that court, and to said last named order error is prosecuted here.
    The statutes of the state of New York bearing upon the case were introduced in evidence, and are contained in the bill of exceptions filed in this court.
    The action of the court in making the order complained of is claimed to be justified, because it is said the order is in conformity with the distribution which would be required to be made under the laws of the state of New York; that an action for damages caused by .this death could not have been maintained in the state of New York, but for the statutes of that state authorizing such action, and that it follows that the distribution must be made in accordance with those statutes.'
    A large number of authorities are cited in support of the proposition that distribution of funds obtained in an action to recover damages for wrongful death, must be distributed in accordance with the statutes of the state in which the wrongful act was done. Among these authorities see D&nmick, Adm’r, v. Railway Company, 103 U. S., 11; McDonald v. McDonald, Adm’r, 28 Southwestern, 471; Weaver, Adm’r, v. Railway Company, 28th District of Columbia, 499.
    ■ There are so many authorities in support of the proposition that it can not be denied that unless by reason of the statutes of • Ohio, the rule that the distribution must be made in accordance with the statutes of the state in which the death is caused, is changed, the distribution must be made in accordance with the statutes of such state.
    It is said, however, that even if this be the rule, still the distribution would be made as provided by the laws of Ohio in this particular ease, because it is provided by Section 1903 of the statutes of New York, as appears by the bill of exceptions:
    “1903 Id. [For whose benefit.] The damages recovered in an-action, brought as prescribed in the last section, are' exclusively for the benefit of the decedent’s husband or wife, and next of kin; and, when they are collected, they must be distributed by the plaintiff, as if they were unbequeathed assets left in his hands, after payment of all debts and expenses of administration. But the plaintiff may deduct therefrom the expenses of the action, and his commissions upon the residue; which must be allowed by the surrogate, upon notice, given in such manner and to such persons, as the surrogate deems proper.”
    It is urged that, as it does not appear from this section, that the distribution is to be as of “unbequeathed assets” under the statutes of New York, that the administrator in Ohio having the fund in his hands, and being required by the statute of New York to distribute the same as “unbequeathed assets left in his hands after payment of all debts and expenses of distribution, ’ ’ this may fairly be interpreted to be a direction to such Ohio administrator to distribute the fund as he would distribute “unbequeathed assets” under the laws of Ohio, and therefore would distribute this entire fund to the widow, there being no-issue, and, in support of this contention, the case of Hartley v. Hwi-tley, 81 Pacific Reporter, 505, is cited.
    Whatever may be said as to whether the law is properly stated in this case, it does not support the contention -of the plaintiff in error, because it is further provided by Section 1905 of the statutes of New York that—
    “The term ‘next of kin,’ as used in the foregoing sections (including Section 1903), has the meaning specified in Section 1870 of this act.”
    And Section 1870 provides that:
    “The term ‘next of kin,’ as used in this title, includes all those entitled under the provisions of law relating to the distribution of personal property, to share in the unbequeathed assets of a decedent, after payment of debts and expenses, other than a surviving husband or wife. ’ ’
    So that, when these Sections 1905 and 1870 are read in explanation of the meaning of Section 1903, it is clear that the provision contained in the last-named section requires the distribution to be made to the (in this case) surviving wife, and those next of kin who are defined in Sections 1905 and 1870.

      It follows that the order of distribution made in this case was the proper order to be made, unless our own statutes distinctly provide otherwise.
    Attention is called to Section 6134, Revised Statutes of Ohio, which provides for a right of action against the person, natural or artificial, causing death by wrongful act, in Ohio. Section 6135, Revised Statutes of Ohio, provides who shall be the beneficiaries of the fund derived from such action.
    On the 25th of March, 1851, the first statute in Ohio providing for an action against one causing death by wrongful act, was passed. This statute is found in Curwen’s Statutes, Yol. 2, at page 1673, and consists of two sections; the first is, so far as it has application to the case now under consideration, substantially the present Section 6134, and the second, substantially our present Section 6135. These provisions were carried into the revision of 1880, with the present section numbers.
    On the 21st of May, 1894, the Legislature enacted Section 6134a, found in 91 Ohio Laws, page 408. This Section 6134a was amended and placed in its present form oh- the 6th of May, 1902, found in 95th Ohio Laws, page 401. The enactment of 1894 reads:
    “An act to supplement Section 6134 of the-Revised Statutes of Ohio, Section 1. Be it enacted by the General Assembly of the State of Ohio, that Section 6134 of the Revised Statutes be supplemented as follows: 'Section 6134a.-’ ”
    And then follows the supplementary section. The amendment of Section 6134a is entitled an act to amend Section 6134a of the Revised Statutes of Ohio, and reads: “Be it enacted by the General Assembly of the State of Ohio, Section 1, that Section 6134a of the Revised Statutes of Ohio be amended so as to read as follows,” and then follows the present Section 6134a, and this reads:
    “Whenever the death of a citizen of this state has been or may be caused by the wrongful act,' neglect or default in- any other state, territory or foreign country, for which a right to maintain an action and recover damages in respect thereof is given by a statute of such other state, territory or foreign country, such right of action may be enforced in this state, within the time prescribed for the commencement of such action by the statute of such other state, territory or foreign country.”

      As has already been said, Section 6135 provides for the distribution of the funds obtained by such action, and the provision is:
    “Every such action shall be for the exclusive benefit of the wife or husband, and children,” etc.
    Clearly, then, if this wrongful death had been caused in Ohio, under the facts in this case, the widow would have been entitled to the entire amount collected, and it can hardly be doubted that if Section 6134a had been a part of the original act the distribution would have been to the widow alone in this case.
    It is urged, however, on the part of the defendant in error that Section 6134a is to be treated as an independent section, and that therefore the words of Section 6135, “Every such action shall be for the exclusive benefit,” etc., refer only to such action as is named in Section 6134. We do not so understand it.
    The Legislature in terms have said, in enacting Section 6134a,, that it is a supplement to Section 6134. The word “supplement” is defined in Webster’s Dictionary as meaning: “To fill up or supply by additions; .to add to.” And, in Anderson’s Law Dictionary the word supplemental is defined in these words: “Added to a thing to complete it; supplying a defect in something that precedes, ’ ’ etc. So that by the enactment of Section 6134a the Legislature added to Section 6134 and Section 6134a became a part of the same statute as Section 6134, and unless we are to assume that the Legislature meant that although it was added to Section 6134, yet that Section 6135 should not apply to Section- 6134a, then it is clear that our own statute directs the manner of distribution of this fund. AYe think it will not do to say that the Legislature overlooked the provisions of Section 6135 when it enacted Section 6134a. The last-named section- has been before the Legislature twice, as already pointed out, and it can hardly be doubted that it intended to leave Section- 6135 to apply to- that section as well as Section 6134.
    That being so, we have the case of an administrator appointed in this state, acting under the authority of a court in this state, and acting, so far as the disposition of the funds in his hands is concerned, under the control of a court of this state, and we have a statute of this state directing the manner of the distribution of funds obtained as these funds were; whether obtained by reason of wrongful death caused in some other jurisdiction, and included under Section 6134a, or caused in Ohio and coming under the provisions of Section 6134, yet, by Section 6135 it is provided that the funds arising from ‘1 every such action shall be for the exclusive benefit/’ etc. • ■
    Entertaining these views, we hold that the judgment of the court of common pleas should be reversed, and under the conceded facts in this case the order should have been that this entire fund be paid to the plaintiff in error, Katherine Miller, and it is so ordered here.

      Smith, Taft & Arier, for plaintiffs in error.

      E. P. Strong and Smith, Taft & Arier, for defendants in error.


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    RENT IS A CLAIM FOR. NECESSARIES.
    [Circuit Court of Cuyahoga County.]
    A. G. Smith v. Mattie V. Getz.
    Decided, March 15, 1904.

      Attachment — Bent for Dtoelliny a Claim for Necessaries — Character and Quantity of Articles Supplied — Merchant Put on Inquiry, When — ■ Section 5521.
    A month’s rent for a dwelling-house, occupied by a man and his family, is a claim for necessaries, and as such ground for attachment, as provided in Section 5521, Revised Statutes, and does not lose its character as a claim for necessaries by the tenant’s moving out during the month, and renting and occupying another house.
    Winch, J.; IIare, J., and Marvin, J., concur.
    Error to the court of common pleas.
    Plaintiff in error was tenant of defendant in error, having contracted for one month’s rent, of a dwelling-house for the use of himself and family. Having paid half a month’s rent in advance, he moved out in the middle of the month and rented another house. Suit was brought for the balance of the month’s rent and an order of attachment issued garnisheeing ten per cent, of the tenant’s personal earnings. The ground upon which the attachment was issued was that the claim was for necessaries. Motion to dissolve the attachment was made and overruled and the case is here solely for review of the action of the court below in sustaining the attachment. The indebtedness is admitted, but it is contended that under the circumstances of this case the claim is not one for necessaries.
    Food, clothing and shelter are the prime necessities of life, and it is admitted that, ordinarily, re.nt due for the use of a dwelling-house for a debtor and his family is a claim for necessaries, within the meaning of those words as used in Section 5521, Revised Statutes, which specifies the grounds upon which an attachment may be issued.

      ■ But it is claimed by counsel for plaintiff in error that the debtor having rented and being in the occupancy of another house, the use of the first house can not be considered a necessary for him.
    Such construction can not be put upon the meaning of the word “necessaries” as used in this statute. When the landlord contracted with his tenant for one month’s rent it was in the light of this law and both parties knew that thereupon arose in favor of the landlord a claim for necessaries with the benefit of the attachment laws for the collection thereof. The tenant could not change the character of the claim by his own conduct thereafter. Indeed, if the theory advanced by his counsel is correct, the rent of the second house, not of the first house, would not be a necessary, for he did not need the second house because he already had the use of the first house.
    But the theory itself is wrong, and the reasoning inconclusive. To have the benefit of the attachment law the claim must be for something classified as a necessary and of a reasonable quantity; but the creditor is not bound to inquire, as he is in the case of an infant, whether the person he 'is dealing with is already supplied. It has been said by a very learned judge (Prmlice v. Richards, 8 Gray, 226), that a very similar statute in Massachusetts, denying to an insolvent a discharge from debts for necessaries, was analogous to the law giving a merchant a right of action against a minor for necessaries furnished him, but the analogy is not complete and the case referred to was not decided upon that principle. That ease involved the rent of a boarding house kept by a single woman without a family. Surely the use of a building for business purposes1 can not be considered a necessary.
    So under the same statute it was held in the case of Lincoln v. Dunbar, 7 Allen, 264, that supplies furnished a debtor who kept boarders, who consumed them, were not necessaries. But the merchant,knew without inquiry that he was furnishing the debtor in excess of his personal necessities. These supplies were furnished to be used in business, as the wholesale grocer sells to the retail grocer, who in turn sells to the hotel keeper. Nobody would argue that an attachment would lie against a hotel-keeper in favor of the grocer supplying him.
    So it may be said that a ten year’s lease of a dwelling-house, broken by the tenant near' the beginning of the term, would not give ground for an attachment against the tenant for the rent of the whole term. True, but for the reason that a car load of flour is not a necessary, while a sack of flour is.
    While a person furnishing supplies to an infant is bound to know whether he is already supplied, such is not the case under our attachment laws with reference to necessaries furnished an adult. The reason for this difference is apparent.
    “The rule of law is that no one may deal with a minor; the exception to it is, that a stranger may supply him with necessaries proper for him, in default of supply by ane one else; but the stranger’s interference with what is properly a guardian’s business must rest upon an actual necessity of which he must judge in a measure at his peril. When he assumes the business of guardian for purposes of present relief, he is bound to execute it as a prudent guardian would and consequently to make himself acquainted with the Avard’s necessities and circumstances.” 16 Am. & Eng. Enc. of Luav, 280; Johnson v. Lines, W. & S. (Pa.), 80; 40 Am. Dee., '542.
    But under our attachment laws the merchant is dealing with a person sui juris, and if the articles supplied are of the character of necessaries and the quantity supplied reasonably necessary for a man and his family, there is no reason why the merchant should further inquire as to the supply his customer already has.
    The motion to dissolve the attachment was properly overruled.
    Judgment affirmed.

      G. D. Friesbolin, for plaintiff in error.

      F. A. Beecher, for defendant in error.


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    COLLECTION AGENCY CONDUCTED BY JUSTICE OF THE PEACE.
    [Circuit Court of Hamilton County.]
    The State of Ohio, on the Relation of Hiram M. Rulison, Prosecuting Attorney of Hamilton County, Ohio, v. Charles P. Mackelfresh.
    Decided, March 8, 1907.

      Justices of the Peace — Section 568, as Amended, Unconstitutional— Original Statute in Force — Annexation of Territory — Justice Located in, Serves Out Term — Number of Justices can only be Increased, How.

    1. Section 568, Revised Statutes, as amended in 91 O. L., 78, and in 92 O. L., 60, by reason of tile exception in favor of certain counties is unconstitutional and void, and the repealing sections are also inoperative. Section 568 as originally enacted in 51 O. L., 405, is still in force.
    2. By reason of annexation and by force of the last part of Section 568, a justice of the peace is authorized to perform the duties of his office in the township to which the territory in which he resides has been annexed, but only until the end of the term of three yars for which he was elected.
    3. In such a case no new office of justice of the peace is created for which a successor should be elected and qualified; it is only by application to and determination by the probate judge of the county, in accordance with the provisions in the first part of Section 568, that the number of justices of the peace can be permanently increased.
    Gieeen, J.; Swing, J., and Smith, J., concur.
    The defendant on April 6, 1903, was a resident of the village of Winton Place in Millcreek township, Hamilton county, Ohio, and was on that day duly elected a justice of the peace in said township for a term of three years, beginning April 16, 1903. Cincinnati township and the city of Cincinnati were at that time co-extensive, and the village of Winton Place was adjacent thereto.
    On April 12, 1904, that part of Millcreek township embracing the village was annexed to Cincinnati township.

      From and after April 12, 1904, the defendant exercised the duties of justice of the peace in Cincinnati township the same as if he had been elected therefor. This action was commenced to determine by what right, if any, the defendant holds the office of justice of the peace for Cincinnati township.
    Section 568, Revised Statutes, is, by reason of the exception in favor of certain counties, unconstitutional and void.
    The repealing sections, 91 O. L., 78, and 92 O. L., 60, are also inoperative, whereby the original, act, 51 O. L., 405, is still in force. Slate, ex reí Wilmot et al, v. Bricldey et al, 60 O. S., 273.
    Although defendant’s term of three years expired April 16, 1906, he claims the right to hold over until his successor is elected and qualified, by virtué of Article XVII, Section 3, of the Constitution as amended November 7th, 1905, which provides as follows:
    “Every elective officer holding office when this amendment is adopted shall continue to hold such office for the full term for which he was elected and until his successor 'shall be elected and qualified as provided by law.”
    The demurrer to the answer presents the question whether there is any lawful authority to elect a successor to the defendant as justice of the peace of Cincinnati township. He avers in his answer “that there are now five and no more persons in said Cincinnati township performing and exercising the office, and duties of justice of the peace,” but he. does not aver that this number was authorized or judicially determined under Section 568 or any other section of the Revised Statutes, except by reason of the annexation of territory, and by force of Section 568 one additional justice is created. This section, however, only provides that he shall execute the duties of his office in the township to which the same is attached in the same manner as if he had been elected for such township, and while the annexation of territory may afford a sufficient reason for increasing the number of justices in a township, the question must, upon application and after public notice, be determined by the probate judge of the county.

      His continuance in office in the township to which it was attached was intended, under this section, only to complete the term of three years for which he was elected and not to create an office for which a successor should be elected and qualified. The demurrer to the answer will therefore be sustained.

      Rulison, Morris, Sawyer <& Rose, for the relator.

      Thos. TL. Darby, contra.


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    WARRANTY THAT CHATTELS ARE OF A MERCHANTABLE CHARACTER.
    [Circuit Court of Lucas County.]
    Frank J. Manton et al v. John H. Perry.
    Decided, October, 1906.

      Sales of Chattels — Implied Warranty of — Acceptance of and Payment Made — Without Opportunity for Inspection — Remedy of Purchaser • — Rights of Tendor.

    Under an implied warranty of fitness, it is the duty of the buyer of goods to notify the seller of any defective condition immediately upon discovery. Hence, where the buyer of a car load of cabbages accepts the same, pays the price, and later, on discovering the cabbages to be frozen, stops payment of his check but sells a large part of the cabbages, he can not afterwards set up an implied warranty that the cabbages should be marketable, as a basis for an action for the return of the purchase price, as by hi? retaining and selling part he waived his rights under the warranty.
    Wildman, J.; Parker, J., and Haynes, J., concur.
    Error to Lucas Common Pleas Court.
    This is a case in which the original action was brought before a justice of the peace, by the present plaintiffs in error, for damages resulting from what is claimed to be a breach of an implied warranty that certain cabbages purchased by Mantón Brothers from Perry, defendant in error, were merchantable.
    The case was tried before a jury, and after the introduction of the plaintiffs’ testimony, was arrested from the jury and a verdict directed to be given for the defendant. The cabbages had been received by the Mantón Brothers and paid for by them — as they claim — without an opportunity to make an inspection of them when received; that it was not until after they had made payment by drawing a check upon a bank, that they were suffered to take the cabbages from the car and inspect them; and it was then that they discovered that they were frozen and brought suit for a return of the purchase price.
    In the ease of The Bowman Lumber Company v: Anderson, 70 O. S., 16, the syllabus is as follows:
    “By an executory contract for the sale and delivery of chattels of a described grade or quality, the seller becomes bound to deliver goods of the character described, but in the absence of express terms of warranty no obligation is imposed upon him which survives the acceptance by the purchaser of , an article delivered by the seller in good faith as in the performance of the contract, if the acceptance is with full knowledge of all the conditions affecting the character and quality of the article. ’ ’
    The issues and the evidence in support thereof all cluster about the main question as to whether the plaintiffs, in the receiving of the cabbages and in their subsequent holding and treatment of them, waived any claim which they might have for damages by reason of their impaired value in their frozen condition. The court below in arresting the case from the jury relied upon the case which I have just cited, Bowmaoi Limber Company v. Anderson, supraj and we think the court was justified in so doing.
    The Mantón Brothers received these cabbages, and perhaps at the time when they tool? them out of the car, had no opportunity for such inspection as to enable them to guard themselves against any mistake. It may be that they were not then compelled to determine whether they would or would not waive any claims by reason of the defective condition of the cabbages. But it appears that after they discovered the defective condition of the cabbages, they stopped payment upon their check and subsequently made sale of a large part of the cabbages, without stopping to claim as up,on an express warranty against the seller for the difference between the agreed price and the actual value of the cabbages when received, treating that as the measure of their damage.
    This we think they could not do. We think that before their disposition of the cabbages or any part of them, they should have notified- the seller of their claim that the cabbages were defective. They had then made full inspection, and if they retained the possession of the property and sold and made disposition of it, they waived any claim which they might have had for damages by reason of the frozen condition of the cabbages. It was their duty at that time to notify the seller of the condition óf the cabbages, so that he might reclaim them and restore the purchase price and himself sell them in his own market, if he saw fit, and for such price as he might obtain therefor. We think that the reasoning of the trial judge which has been handed up to us in his reported opinion is sound, and that the judgment which he rendered thereon after instructing the jury to return a verdict for the defendant should be affirmed, and it is so ordered.

      Jolm P. Mcmlon, for plaintiffs in error.

      Harry W. Lloyd and George F, Wells, for defendant in error.


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    CONSTRUCTION OF WILL.
    [Circuit Court of Monroe County.]
    Frank Haren and John Haren v. Katharine Block et al.
    Decided, November Term, 1906.

      Wills~Construction of, with Reference to Power of Sale — To Maintain Wicloiv and Children — Presumption—As to a Necessity Arising for the Sale — Burden of Proof — Charge of Court.

    Under the provisions of a will which contained the following clause: “I give, devise and bequeath to my widow, Katharine Block, in case she survives me, all my property, both real and personal, during her natural life, and in the event that it should become necessary for the maintenance of my said wife, and of my children, whom she is directed to provide for, my said wife is hereby authorized to sell any or all of my said property — either real or personal, or both, giving a good, clear and indefeasible title thereto for said purpose”; the widow selling the real estate specifying in the deed that it was necessary to sell the same for the maintenance of herself and children—

      Iielcl: That in an action in which the sale was attacked for want of authority upon the part of the widow, that the burden was upon the attacking parties to show it was not necessary to sell the property for such maintenance.
    Cook, J.; Burrows, J., and Laubie, J., concur.
    Appeal from Monroe Common Pleas.
    John Block, at the time of his death, was the owner of forty-three acres of land. It was unproductive and of little value for farming- purposes. The buildings were in bad condition and the property altogether was not worth over six hundred dollars, with a rental value of not more than seventy-five dollars a year. ■ There was a mortgage upon the property of about five hundred dollars, past due.
    On the 21st day of August, 1902, John Block died testate, leaving a widow and eight children, two of whom were minors His will provided as follows:
    "Item first. I direct that all my just, debts and funeral expenses be paid.
    "Item second. I give, devise and bequeath to* my beloved wife, Katharine Block, in ease she survive me, all my property both real and personal, during her natural life time, and in the event that it should become necessary for the maintenance of my said'wife, and of my children, whom she is hereby directed to provide for, my said wife is hereby authorized to sell any or all of my said property, either real or personal, or both, giving a good, clear and indefeasible title thereto for said purpose.
    "Item third. I give, devise and bequeath after the death of my said wife, to all my children, share and share alike, all of my property Which may he left after the death of my said wife.
    "Item fourth. I hereby appoint my said wife the executrix of this my last will, and direct that no bond be required of her as such executrix; and I hereby authorize her as such executrix to sell and convey all or any part of my real and personal property, for the purpose in item second in this will set forth, on such terms and for such price as to her may seem best, without the intervention of any court whatever.”

      Soon after the death of John Block, oil was discovered in the neighborhood of the farm, and the widow and the six children, who had attained their majority, leased the farm to the Imperial Oil & Gas Company for oil purposes. Subsequently a guardian was appointed for the minor heirs and by order of the probate court the guardian made a lease to the same company of the interest of the minors. The royalty reserved ivas one'-eighth of the oil, and the lease of the widow and six children provided that the royalty should be paid to her, Katharine Block, during her life, but the lease of the guardian had no such provision.
    After the execution of these leases the widow, Katharine Block, by contract in writing duly executed and recorded, sold and conveyed to the plaintiffs, Frank liaren and John liaren, for the sum of six hundred dollars, which was paid to her, one-half of the one-eighth royalty upon the premises situated east of the road leading from Woodsfield to Miltonsburg, containing about .twenty acres, stipulating in the contract that the sale was made under the power contained in the will of her husband, John Block, deceased, the sale having become necessary for the purpose of maintaining her and the children of „ decedent. At the time this contract was made no oil had been discovered on the forty-three acre tract, but about six weeks previously oil had been discovered on the adjoining farm,- and soon after the making of the contract, the lessee, Imperial Oil & Gas Company, brought in upon the part of the forty-three acres lying east of the road a large producing well. Thereupon the widow, Katherine. Block, refused to sign a division order for the royalty coming to the ITarens, and she áncl. the children and guardian wholly repudiated her contract, on the ground that she had no legal authority to make the same. This action is brought to compel her to sign the necessary division order and to quiet the title of plaintiffs in the royalty purchased by them.
    The question, therefore, is: Had the widow, Katharine Block, authority to make the deed of sale to plaintiffs. No claim of fraud or imposition upon the widow is made. It is admitted that the consideration paid was a fair one and that the widow acted in good faith in making the sale. Defendants claim that the burden is upon the plaintiffs to show the existence of such necessity. While upon the part of the plaintiffs it is claimed that the widow, the donee of the power, having sold the property, and having set forth in the deed, that the necessity had arisen, is conclusive proof of such necessity and can not be questioned by either the widow or the parties entitled to the fee after the death of the widow. Many authorities have been cited by counsel tending to sustain each of these contentions, but in our judgment neither claim is correct.
    There are three distinct descriptions of powers of the character contained in this will:
    First. The power to sell where the judgment and discretion as to the necessity, is vested in the donee of the power. In such case where the power is exercised it is conclusive and can not be attacked.
    Second. Where the execution of the power depends upon a certain event, as death, birth, marriage, a certain date, etc. In such ease, when the event has taken place, the donee of the power has ./the absolute right to sell.
    Third. Where the power to sell, as in this case, depends' upon the happening of an uncertain event, which may or may not exist at the time of the sale, depending upon circumstances; then even where there is no fraud, it must be shown when the sale is 'attacked that the event has happened justifying the sale.
    It is said that this would be impracticable and unjust to the purchaser and furnish to the parties attacking the sale an unconscionable advantage; that the purchaser has a right to rely upon the determination of the donee of the power as to whether or not the conditions exist necessitating the sale. That to hold otherwise would create doubt and be in the interest of parties desiring to perpetrate fraud.
    Such is the reasoning in the case of Doran et ucc. v. Piper et al, 164 Pa. St., 430, in which it is said:
    “If under the law the purchaser would be required to investigate whether the necessity existed, he might conclude that it did exist, she might conclude that it existed, and yet if the law be as contended for by plaintiff, his title would depend uppn as many juries as there were surviving children.”
    We can not conceive how the reason of the trial judge who tried that case, and which was approved by the Supreme Court, is at all conclusive or even convincing. This condition arises in all cases where the facts are in doubt and there are severable interests.
    ITow must it be shown that the uncertain event has happened that justifies the sale?
    We think, as under the provisions of this will, that the fact of the widow selling the property, and especially when she states in the deed that the event has happened which justifies the sale, that raises a presumption that she was authorized to make the sale and that the burden rests upon the parties attacking the sale to show that the event has not happened.
    In the case of Doran et ux. v. Pipe,r et al, supra, which was an action in ejectment, the court under objection and exception, admitted in evidence the deed under- which defendants claimed, and plaintiffs rested. The court charged in effect that there was no burden on defendant to show that the land was improperly sold, and there being no evidence offered on the subject, gave binding instructions in favor of the defendants.
    This, we think, is correct, and is in harmony with our holding. To the same effect is Swarthout et al v. Rainer, 143 N. Y., 499.
    In that case the provision of the will was: “To have and to hold for her comfort if she need the same during natural life.” Held: That the burden of showing that the sale (a mortgage in this case) was not necessary for the widow’s comfort and support, was upon the assailing party.
    The authorities bearing upon both sides of the question have been fully collected by counsel in their exhaustive briefs. We shall not refer to them in detail or attempt to analyze or reconcile the different holdings, but simply cite them: Page on Wills, Section 696; Griffin v. Griffin, 141 111., 373;
      Doran y. Piper 164 Pa. St., 430; Bishop v. Bemple, 11 O. S., 230; Dean v. Lowenstcin, 6 C. C. R., 587; Leonard v. Missionary Society, 35 Him., 290; Scheide v. Crecelins, 94 Mo., 322; Larson y. Johnson, 78 Wis., 300; Stephens v. Winshop, 1 Pick., 318; Henderson v. Blackburn, 104 111., 227; Lears v. Livennon, 17 Iowa, 297; Grawson v. Grain, 97 Mass., 459; Siuarthout et al v. Rainer, 143 N. Y., 499; Matthews v. Gapshcm, 109 Term, —; 97 Amer. St. R., 854.
    Tbe evidence in this case not only does not show that at the time of the sale it ivas not necessary to make the sale for the purpose of carrying out the provisions of the will for the maintenance of the widow and children, but it conclusively shows the contrary.
    Finding and decree in favor of plaintiffs as prayed for in their petition.

      Mallory, Jeffers <& Sears, for plaintiffs.

      Driggs, Heinlein c6 Armstrong and W. E. Moore, for defendants.


text:
    EVIDENCE SUPPORTING THE CHARGE OF KEEPING A VICIOUS DOG.
    [Circuit Court of Hamilton County.]
    Seegmueller v. Pahner.
    Decided, March 8, 1907.

      Negligence — Child Frightened by a Dog — Alleged to be Vicious — Child Falls and is¡ Injured — Liability of Owner of the Dog — Weight of Evidence — Nuisance.' ,
    1. While a barking dog may be a nuisance, it is not negligence to keep such a dog.
    2. Where there is no testimony in support of ^ allegations that the defendant harbored a large St. Bernard dog, which he permitted to run without restraint and without a muzzle, or the taking of any means to protect the public from injury which might result from the vicious disposition-of said dog, a verdict awarding damages on account of injuries to a child, who ran in fright from the dog and fell from a second story porch, must be set aside where it appears that the dog was on the premises of the defendant owner, and did not bite the child, or touch him, or do anything except bark.

      Swing, J.; Cifren, J., and Smith, J., concur. .
    This was an action in the common pleas court for damages by August Pahner, Jr., by his next friend, August Pahner, Sr., against Ludwig Seegmueller. It is .alleged in the petition that Seegmueller was the owner of a large St. Bernard dog; that he negligently harbored said dog on his premises and permitted it to run at large without restraint and -without a muzzle, and without taking any means to protect the public from injury which might result from the vicious disposition of said dog; and that said dog was known by him to be of a bad temper and of unruly, vicious and dangerous habits.
    That on May 27, 1904, he, Pahner, Jr., was playing on the porch on the second story of defendant’s premises, when said dog came from the yard of said premises and ran at this plaintiff and his companions, growling and barking in a menacing and terrifying manner, and that he became very much frightened, and in endeavoring to reach the roof of a shed nearby climbed over the railing of the porch in order to escape from the dog which was already upon him, but that in his confusion and fear, owing to the near presence and vicio ns aspect of the dog,' he slipped and fell to the ground, a distance of some twelve or fifteen feet, and was seriously injured. Pie claimed damages in the sum of $5,000. The jury awarded $1,000 damages and judgment was entered for the amount of its verdict. Numerous errors are assigned for a reversal of the judgment.
    On the trial two witnesses were called by plaintiff, who testified to what occurred at the time of the injury; although four boys were playing together at the time, two of the boys were not produced as witnesses. The two who did testify were the plaintiff, who at the time of the accident was nine years old, and at the time of the trial was eleven-, and his brother, who was two years younger.
    The plaintiff’s testimony was to the effect that he and the other boys opened the door on the defendant’s premises, and went in the yard to get a drink of water; that shortly after the dog of the defendant came in another door from the street nearby; that he ran up the staii’s and the dog ran after him and barked; that he tried to climb over the fence (railing, on porch) when the dog jumped on him and bit him on the arm. He was trying to get in the water-closet, a building near the porch and lower, and on which the evidence shows these boys had been jumping from the porch. The evidence clearly shows by all the witnesses that the boy fell off the porch, and had his arm broken and skull fractured by the fall.
    Arthur, his younger brother, testified that they went in the defendant’s yard to get a drink, and that the dog came in and they all ran up the steps to get out of the dog’s reach so he would not bite them. He and another were first and the plaintiff was last; that the plaintiff was going to jump on the roof (of the water closet) and was holding onto the rail, and the dog came up and bit him on the arm, and he fell down. On cross-examination Arthur said that they played ‘ ‘ catchers ’ ’ there; that they would run up the steps onto the porch and jump from the porch onto the roof of the water-closet, onto the ground. He said the dog at the time was on the third floor of Seegmueller’s house at the end of the hall, and that at the time Gustie (plaintiff) got hurt and that Freddie Wunderlicht (who was one of the boys playing there) was to “tag Gustie,” when he fell.and got hurt. If what Authur testified to on cross-examination is true it must be admitted plaintiff had no case; but it was said in argument by plaintiff’s counsel that Arthur would have said anything that defendant’s counsel might have asked him to say; it can not be said that this is correct from a perusal of the record; of course, it is in contradiction to what he said in chief, but what he said in cross-examination does not seem unreasonable, and if he was so easily led to say that which was untrue, little, if any, credence can be attached to his evidence in chief. If Arthur’s evidence is disregarded the only evidence left is that of the plaintiff. He said the dog bit him, but this is not alleged in the petition, and the dog “ran at him barking and in a menacing and terrifying manner”; and the evidence clearly shows that the dog did not bite him. Dr. Meyers, who was' called to see the boy at the time of the accident, said he found no marks on him of having been bitten by a dog. It is evident that if iflaintiff told the truth that when the dog came in the yard where the boys were, that the dog had no intention at that time to bite or assault the boys, for he could have turned on them in a moment; they could never have gone up the stairs and all of them climb over the porch railing and jump off, except the plaintiff, before the dog could reach them; he could travel twice as fast as they could. All dogs bark, and it is not negligence for a person to keep a dog that barks, and we know of no cases where one has recovered for injury caused by a dog barking. It might be a nuisance to keep a barking dog, but hardly a ground for an injury for keeping a vicious dog.
    As against the plaintiff’s evidence the defendant introduced four witnesses who testified that they saw the accident; two of them, Flora Schnell and ITilda Brossard, testified that they saw the boy fall, saw him hanging on the porch and that he fell right at their feet. They said the dog was not there; was not biting the boy. They heard the dog bark, but it sounded as though he was some distance away. Clara Strible testified to the same effect. Ben Radefield also testified that he saw the boy fall and the dog was not there.' These witnesses seem to be disinterested. There is no conflict in their testimony, and it seems reasonable when taken in connection with the admitted facts. And still further, it seems unreasonable that these boys should run upstairs and jump off a porch twelve feet high in order to get away from a dog which was approaching them when it was much easier for them to go out of the door through which they had just entered; and while children of their age should not be held to exercise the judgment of persons of mature age, yet in this case even a child it would seem could hardly act in this way.
    The judgment we think is manifestly against the evidence.

      Benner é Benner and Eugene Heim, for plaintiff in error.

      Moulinier, Beihnan cP; ITuni, contra.