text:
    FORFEITURE OF LEASE FOR SELLING LIQUOR. ON SUNDAY.
    [Circuit Court of Wood County.]
    Cora L. Moser v. William L. Stebel.
    Decided, November 24, 1906.

      Landlord and Tenant — Injunction by Landlord — Against Tenant Who Sold Liquor on Sunday — Forfeiture of the Lease under Section 4361 — Application of the Common Law■ — And of Section 4364— Proof upon which Forfeiture may be Based — Forcible Detainer — ■ Lien upon the Premises under the Ailcen Law — Hot Applicable to a Pre-existing Lease — Fines under the Penal Statute and Damages in a Civil Action — Estoppel.
    1. Section 4361, in so far as it provides for the forfeiture of the lease of premises upon which intoxicating liquor has been sold contrary to law, is declaratory of a principle that existed at common law, and which exists independent of the statutory enactment.
    2. The sale of liquor on Sunday invalidates, eo instanti, the lease of the premises upon which the sales are made, notwithstanding the selling of liquor on Sunday had not been declared unlawful at the time of the enactment of Section 4361.
    3. It is not necessary that a landlord, seeking to forfeit a lease because of the unlawful sale of intoxicating liquors on the premises, should bring a criminal prosecution and establish beyond reasonable doubt that the lessee has violated the law with reference to liquor selling. It is enough if he proceed in a court of civil jurisdiction and by the amount of proof requisite in such a tribunal establish the fact that the defendant has violated the law, whereupon the common law principle applies, terminating the tenancy as of the time of the unlawful act.
    4. Inasmuch as no state can pass a law which impairs the obligation of contracts, the lien for the tax of $1,000 under the Aiken law probably does not attach to property held by the liquor seller under a lease which antedates this law.
    5. The position of a tenant whose tenancy has been forfeited by his own unlawful act, is analogous to that of one holding over his term, and if his continued possession and use of the premises for selling liquor is 'likely to endanger his landlord’s title by placing a statutory lien thereon, the tenant being insolvent, ground is afforded for the protection of the landlord by injunction,

      Wildman, J.; Parker, J., and Haynes, J., concur.
    The case of Moser v. Stebel presents the following issues: Cora L. Moser is the owner of a certain saloon property in the village of Perrysburg which at the time of some of the transactions involved in this case was in the occupancy - and posses-. sion of the defendant, Stebel, as her tenant. A suit was brought by her in the court below to enjoin him from continuing the saloon business upon said premises and to declare the lease forfeited by reason of unlawful sales said to have been made by him upon a Sunday prior to the filing of the petition. She alleged, first, that he had forfeited his rights under the lease by his violation of the law in the respect already referred to; second, that the so-called Aiken law had shortly before been passed by the Legislature, which law imposed a tax upon the business of selling liquor to the amount of one thousand dollars per annum, and provided that it should become a lien upon the property wherein the business was conducted. The petition alleged also that the plaintiff: had begun proceedings in forcible detainer against the defendant to eject him from the premises-in controversy. In addition to these averments, and as a reason for affording her the protection which she seeks, she alleged the insolvency of defendant.
    The -case was tried in the court below upon affidavits which had been used in presenting a motion to dissolve a temporary injunction allowed by the court, and having been submitted to the court, proceeded to final decree and was subsequently appealed to this court. Since its appearance here a supplemental petition has been filed by the plaintiff, alleging that the forcible detention suit mentioned in her petition below has gone to judgment, resulting in her favor, and that the defendant has thereupon vacated the premises, so' that she has been restored to possession. There seems to be not very much left for this court to determine under an adjudication as to the rights of the .parties except with reference to costs as based upon the claims presented by the pleadings and the facts as existing at. the inception of the suit. These are substantially as follows:
    On a certain day — the Sunday prior to the beginning of this suit — the defendant, Stebel, being in the possession of the premises in controversy, made sales in violation of the Sunday law. It seems to be conceded that the defendant is insolvent — at least no counter-affidavits have been filed to those which make the assertion of his insolvency.
    The question is raised by the defendant whether the making of Sunday sales in violation of the law would result in the forfeiture of his rights under the lease by virtue of any suit or otherwise. The section of the statute which has been most discussed in this respect is.Section 4361, which it has been stated is the basis of the plaintiff’s claim, that the defendant had forfeited his leasehold; it reads:
    “A married woman shall have the same right to bring suits and control the same, and the amount recovered as a femme sole; all damages recovered by a minor under this chapter shall be paid either to such minor, or to his or her parent, guardian or next friend, as the court shall direct; the unlawful sale or giving away of intoxicating liquors shall work a forfeiture of all rights of the lessee or tenant under any lease or contract of rent upon premises where such unlawful sale or giving away takes place; and all suits for damages under this chapter shall be by civil action in any court having jurisdiction thereof. ’ ’
    Much of this section is irrelevant to the issue between these litigants, except as it may throw light upon the question presented by counsel for the defendant whether this clause as to forfeiture has any reference to sales of this kind; that is to say, sales in violation of the Sunday law. The section concerning this provision is found incorporated in the statute providing for civil damages for unlawful sales of liquor whereby injury has resulted to'some person or persons. It is to be noted, however, that this clause has no direct reference to civil damages. Its reference is to violations of the penal law; “the unlawful sale or giving away of intoxicating liquor shall work a forfeiture of all rights of the lessee or tenant under any lease or contract of rent upon premises where such unlawful sale or giving away takes place;” and thoúg’h it may have required an unlawful sale to justify a suit for civil damages, as has been held by our Supreme Court, still it seems that this forfeiture is not upon the ground that damages have accrued to any person civilly, but solely upon the ground that one of the penal laws has been violated.
    It is insisted by counsel for defendant that in the origina^ civil damage act the inhibition against selling liquor on Sunday was not one of the clauses included. We think, however, that this question can be disposed of without tarrying very long to consider whether Section 4361 contemplated all unlawful sales, or only such sales as at the time of the original enactment were made in violation of law. such as selling to drunkards, minors, etc. Our judgment is that this section does apply: in other words, that we are to treat the clause as applying to all unlawful sales; that the scope of the section is broad enough and that no substantial reason can be found for limiting it to the kinds of sales that were made unlawful at the time the section was first inserted in the law.
    If at that time it applied 'only to unlawful sales to minors, drunkards, etc. — but if by statute it was subsequently made unlawful to sell upon Sunday — then this section applied to such new unlawful sales.
    However, as I say, we are not forced to depend entirely upon this section. It seems to us that it is in a measure declaratory of a principle that existed at common law and which still exists independently of the statute.
    Let us look for a moment in passing and before treating further this question, at Section 4364, which provides:
    “If a person rent or lease to another, any building or premises to be used or occupied in whole or in part, for the sale of intoxicating liquors, or permit the same to be so used or occupied in whole or in part, such building or premises so leased or occupied shall be held liable for and may be sold to pay all fines, costs and damages assessed against any person occupying the same. ’ ’
    In other words, by Section 4364, fines for the violation of any law, including the Sunday law, are made a lien upon the premises where the business is conducted and where the unlawful sales are made. Now in connection with that, I invite attention to the case of Mullin v. Peck, 49 O, S., 447, where it is held;

      “It is not essential to the right of the plaintiff in an action under Section 4364 of the Revised Statutes, to subject the premises where intoxicating liquors are unlawfully sold to the payment of damages caused by such sales, either that the premises should have been leased for the purpose of selling liquor thereon in violation of law, or that the owner or lessor should have knowledge that such liquors were to be sold thereon, or knowingly permitted the sales which caused the damages. Such action may be maintained, if the premises were leased to .be used for' the sale of intoxicating liquor, or were permitted by the lessor to be so used.”
    If they were leased for the purpose of carrying on the saloon business, even lawfully, but if the person in possession carried it on unlawfully and thereby became liable to be sued for damages, the premises would be charged with the payment of such damages. Now there is no distinction in principle between the lien for damages and the lien for fines, because they are both embodied in Section 4364, and in the case of Simpson v. Serviss el ail, 3 C. C. R., 433, decided by the Circuit Court of Clark County, Judges Stewart, Shauck and Shearer, the same'principle was applied to the lien for fines, as follows:
    “The lien for the assessments and penalties prescribed by the act entitled, ‘An act providing against the evils resulting from the traffic in intoxicating liquors,’ passed May 14, 1886, attaches to the real property on and in which the business of such traffic is conducted by a lessee, although the same is so conducted without the knowledge or consent of -the lessor or owner of the premises, and in violation of the conditions of the lease'.”
    So we have these two decisions; one of the Supreme Court and the other of a circuit court, holding respectively that this lien made by Section 4364 of the Revised Statutes is imposed upon thé premises even if the unlawful sales in one ease occur or in the other case the liability for injuries accrues without the knowledge or consent of the lessor. I cite these in view of the claim of danger that might accrue to the lessor in this ease in another respect — in respect to the tax . which has been imposed by the Aiken law, and which may also become a lien upon the property, and I cite it also in connection with the case of Thompson v. Aclcerman, 21 C. C. R., beginning at page 741, and with especial reference to the opinion found on page 748 — the opinion of Judge Mooney. This was not a proceeding or action with reference to the unlawful sales of liquor, but it had reference to the use of leased premises for the purpose of gambling in violation of another act, and in violation of the statute which in itself makes a forfeiture of the lease by reason of such use of the premises in violation of the gambling law. ’ In the discussion of the questions involved, Judge Mooney says, quoting from 4 Kent’s Commentaries, 12:
    “If the tenant for life or years aliened his land by feoffment, this act was, at common law, an implied forfeiture of the estate, and the reversioner might enter as for a breach of a condition in law. These -estates were likewise subject to forfeiture, not only for waste, but for any other act -which in the eye of the law tended to defeat or divest the estate in reversion or pluck the seigniory out of the hands of the lord. It was a tacit condition annexed to every tenancy, that th-e tenant should not do any act to the prejudice of the reversion.”
    Judge Mooney cites also Wright on Tenures, page 203, and Taylor on Landlord and Tenant, Sections 271, 272 and 488, and adds:
    ‘ ‘ It can not be believed that the law which decrees a forfeiture for attorning to a stranger — a void thing and creating no rights as against the landlord — will not s-o decree when by the tenant an' act is done which puts a valid lien upon the landlord’s estate, perhaps for an amount which will consume the entire reversion. The liability to loss of his property placed upon the landlord, whether he be the lessor or the grantee of the lessor; the violation of his common law duty by the tenant who conducts gambling upon the leased premises; the purpose of our legislation which is to effectively suppress gambling, the duty of the landlord which is to hinder or prevent the unlawful acts upon his premises, all permit, if indeed they do not require, the lessor’s grantees to hinder gambling upon his premises by expelling ther-e,from a tenant whose criminal act may deprive the landlord of his entire estate in reversion. Having imposed this liability upon the landowner, it would seem a hardship if a way were not provided by wdiich the liability e-culd be avoided. We believe that that way has been provided by the common lawq and that it must 'be held that it is a tacit condition annexed by law to all tenancies that the lessee or his assignee will not by his unlawful act cause a forfeiture of the landlord’s interest in the leased premises, and for breach of such condition the lessor or his grantee may by an action in forcible entry and detainer enforce a forfeiture and recover possession.”
    We concur with this view of the spirit and purpose of the statute and the common law with reference to the acts of a tenant which might amount to a waste of the landlord’s estate; a waste of it by the destruction of the tangible property itself, or a waste of it by putting in peril of destruction the landlord’s title. And if a tenant, without the knowledge or consent of the landlord, may do acts with reference to or upon the property which he holds as tenant which might place thereupon a lien perhaps to the full value of the property, so that the landlord is in danger of losing his entire estate, it would seem that equity would justify an interposition of a court to protect the landlord from such result, unless he has an adequate remedy at law. It is urged here that he has such a remedy; that he may obtain a judicial forfeiture of the lease by proceedings before a justice of the peace in forcible detention, and that is the tenor of the decisions — some of them; it is the decision in the circuit court report to which I have referred.
    In the ease at bar, a proceeding before a justice of the peace to declare the tenancy forfeited in fact and ousting the defendant from the premises, was maintained and judgment was obtained, so that for the mere purpose of declaring a forfeiture of the lease, we do not think that the present action would be maintainable. It remains to be seen, however, whether or not certain rights did not accrue to the lessor by reason of the Aiken law, which provides that, during the term of the lease, if the business of liquor -selling is continued therein, a lien for a thousand dollars will be placed upon the property to secure the tax imposed by the law. The only thing sought in this suit is a discontinuance of the business under the circumstances disclosed. ' The statute provides that the continuance in the business or the conducting of the business shall subject the person conducting it to- the tax -of one thousand dollars and that the tax shall become a lien upon the property on the 28th clay of May. It seems that this act was to go into force and the lien attach only two days after the date when the petition herein was filed; the proceeding had been begun upon the same date in forcible detention to procure a forfeiture of the lease and eject the tenant from the property, but the time was too short to stop him in the continuance of the business before the lien under the act would attach.
    What, then, were the rights of the lessor? The law was not quick enough. By the tenant’s unlawful act he had forfeited the right to continue business under his lease and forfeited his right to the possession of the leased property. He was like a defendant holding over after his term had expired. He was •subject to be dispossessed, but while still in possession and before, under legal procedure, he could be dispossessed, he was liable to impair his lessor’s title by continuing in the business.
    Another question arises in this immediate connection which should be met and passed upon. If the defendant had had a vested right to remain in possession and continue the business, the lien might not have attached to the property, because this Aiken law did not antedate the date of the lease, and we have the general rule that no state can pass a law which will impair the obligation of contracts. The act was in .fact passed long after the date of the lease and it might not be a valid enactment, so far as applicable to this property. In other words, if the lessor had passed all her rights in the property to the defendant so far as possession and use are concerned, so that those rights had vested and remained vested in the defendant, and then the act was passed authorizing the placing of a lien upon her property, it is my judgment, at least, and I think the judgment of the court, that such enactment would not become a charge upon the property as against the landlord for the reason that I have stated, and I have found some authority to that effect. In the case of the circuit court report first cited, supra, the statute antedated the lease, and the court held that under such circumstances, if the defendant did acts which caused a lien to attach to the property, the statute would take effect, but .there is a strong implication that it would be otherwise if the lease were prior to .the statute in point of time. But here we have the case that although a right had once vested in the defendant, that right was forfeited by his own act; the tenancy had been forfeited by him, and our judgment is that it was forfeited by him immediately upon the date of the first unlawful act and that eo instanti he lost all his rights under the lease.
    It is true that to procure a legal adjudication of that fact the lessor must proceed in some court, but it is not so much to forfeit the lease as it is to procure the declaration of the court that it is forfeited. It is not incumbent upon the lessor to bring a criminal prosecution and to establish beyond a reasonable doubt that the defendant has violated the law; it is enough if the lessor proceed in a court of civil jurisdiction and by the amount of proof required and requisite in such tribunal establish the fact that the defendant has violated the law, and then under the statute the common law principle applies, and thereupon the tenancy is found to have been terminated at the time of the unlawful act.
    As already stated, it is like a case of a tenant holding over, and so construing it, what would be the rights of Mrs. Moser after the termination of the lease by expiration of the term of the tenancy, the lessee remaining in possession and attempting to carry on the business of liquor selling, the Aiken law having been passed and by its provisions establishing a lien upon her property if the business should be so continued, a lien which may subject her to the loss of her property? We think ■that she had no adequate remedy at law; that all she could do was to proceed in equity and by application for an injunction stop the defendant from continuing the business so that the law would not take effect to establish a lien on the property.
    If the defendant, having forfeited his rights, had been suffered by her to continue the business until after the date provided by law for the fixing of the lien, she might have been estopped from disputing the lien. It is difficult to see why she would have had any better defense than as if she had rented the property to him after the passage of the law, and in full knowledge thereof.

      The finding of the court will be according to the opinon which has been given and judgment will be rendered for the plaintiff, with costs.
    I might add a suggestion made to me by Judge Parker as further illustrative of the fact that the forfeiture is not dependent upon an adjudication of the court, but is determined by the very unlawful selling itself — that the lessor might have possibly reposssessed herself of the property without waiting for an adjudication. I think that is true; she had the right, but her rights in a court of equity are not dependent upon the possibility that she might by force put the defendant out. It is not indicated here that she could have obtained it without a breach of the peace or trouble, and she had a right to appeal to the court to prevent him from doing any act to her injury while he remained in the unlawful possession of her premises.

      Fell <& Scholl, F. P. Biegte and Jas. 0. Troup, for plaintiff.

      Baldtuin & Harrington, for defendant.


source: Caselaw Access Project

license: Public Domain

text:
    CONTROL OVER. WATER RENTS.
    [Circuit Court of Cuyahoga County.]
    Marguritte L. Hutchins v. The City of Cleveland et al.

    Decided, February 11, 1907.

      Municipal Corporations — Regulation of Use of Water and Collection of Rentals — Confided in the Board of Public Service — Construction of Statutes as to Use of the Words “Trustees” and “Trustees or Board.”

    1. In Sections 2410 and 2411, Revised Statutes of Ohio (1536-521 and 522, Bates’ Annotated Statutes), the words “trustees” and “trustees or board’’ include the directors of public service in cities, as well as boards of trustees of public affairs in villages.
    2. The power to assess and collect water rents in cities is vested in the directors of public service, and the manner in which they exercise this power is not subject to the control of the city council.

      Winch, J.; Henry, J., and Marvin, J., concur.
    Appeal by City of Cleveland.
    This case is in this court on appeal, and was argued upon a demurrer to the petition, in which the plaintiff seeks to enjoin the placing of a water meter upon the service pipe supplying her residence with water. The amended petition, after setting forth that the plaintiff is the owner in fee simple of certain premises in the city of Cleveland, proceeds as follows:
    “Plaintiff states that on or about the 21st day of August, A. D. 1901, and on the 14th day of February, A. D. 1903, Sec-ton 999 of the Revised Ordinances of the City of Cleveland was amended as follows: Ordinance 44559-A, Section No. 1:
    “ ‘Breweries, colleges, county buildings, distilleries, gas works, hotels, malt houses, packing houses, soap factories, livery stables, steam engines, tanneries, theaters, railroad depots, railroad shops, and standpipes, manufactories, and other establishments other than residences, not herein enumerated, if deemed advisable by the board of public service, shall be metered by the water works department. Residences shall be metered only on request of the consumer at the expense of the water department, provided that in case of waste or other improper or unauthorized use of water, of which satisfactory proof has been furnished To the water department, a meter may be set without the consent of the consumer.’
    “Plaintiff further states that said defendant through the board of public service for the city of Cleveland, has threatened and is about to place, and will place, unless restrained therefrom by order of the court, a water meter upon premises of said plaintiff, without her consent and without proof of waste, improper or unauthorized use of water upon the part of said plaintiff. That said action contemplated by said defendant is illegal, and in contravention of plaintiff’s personal rights as a citizen and tax-payer of this county and state, and in direct violation of the city ordinance herein set forth. ’ ’
    Then follows an allegation that said water meter is so constructed as to render the water unfit for household consumption and a menace to health, but upon the hearing it was agreed that this allegation of the petition should be abandoned and not considered by the court.

      The sole question raised by the demurrer is- whether the placing of water meters upon service pipes to private residences is within the administrative discretion of the board of public service, or is controlled by the legislative enactment of the city council, above referred to.
    A consideration of the nature of the act sought to be enjoined will assist in determining the controversy thus arising, for the provisions of the municipal code upon the subject are not explicit.
    Meters are used for the purpose of measuring the quantity of water furnished or consumed. The price charged 'for water furnished is based upon the quantity used, as shown by the meter. There are other methods of fixing water rates,, but the meter system is conceded to be a reasonable and proper method. A meter is of use also in determining whether there has been a waste or other improper or unauthorized use of water.
    • Is the choice of the means by which water rates shall be fixed or the use of water by consumers limited, a legislative or administrative function?
    It would seem to be a detail of administrative management, and so we should hold, if there is no provision of the municipal code which clearly makes it the duty of the city council to legislate upon the subject.
    Section 1536-100, Revised Statutes, provides:
    “All municipal corporations shall have the following general powers and council may provide by ordinance or resolution for the exercise and enforcement of the same. * * * 15. To provide for a suppy of water, by the construction of wells, pumps, cisterns, aqueducts, waterpipes, reservoirs and water works, and for the protection thereof, and to prevent unnecessary waste of water, and the pollution thereof, and to apply moneys received as charges for water to the maintenance, construction, enlargement and extension of the works,” etc.
    Section 1536-615:
    “The council shall have the management and control of the finances and property of the corporation, except as may be otherwise provided ,and have such other powers and perform such other duties as may be conferred by law.”
    Section 1536-618:
    “The powers of the council shall be legislative only, and it shall perform no administrative duties whatever,” etc.
    Section 1536-674:
    “In every city there shall be a department of public service, which shall be administered by three or five directors and the number of said members shall be fixed by ordinance or resolution of council. * * * They shall make their own rules and all regulations for the administration of affairs under their supervision. ’ ’
    Section 1536-675:
    “The directors of public service shall be the chief administrative authority of the city, and shall manage and supervise all public works and all public institutions except where otherwise provided for in this act. ’ ’

    Section 1536-677:
    “The directors of public service shall have the management of all municipal water, lighting and heating plants, ’ ’ etc.
    The above provisions are quoted from the municipal code now in force, adopted in October, 1902. By the former general municipal code, adopted in 1869 (66 O. L., 149),. the control of the water works of all cities and villages was vested in a board of three trustees, known as the trastees of water works, elected by the qualified electors of the corporation, and their powers and duties, as well as the council’s powers and duties respecting the water works of cities and villages were, set out in Chapter 25 of said act, comprising Sections 334 to 360 inclusive. By the revision of 1880, these sections Recame Sections 2407 to 2433 inclusive of the Revised Statutes of Ohio, and, with the exception of Section 2408, which provided for the election of trustees of the water works, have never been repealed. They are yet in full force, though of course some sections have been modified by amendment.
    Even the special laws for certain cities did not repeal these sections. They sought to create in certain cities other boards with additional functions, which should be governed also by the water works statutes referred to, but the general statutes remained in full force all the time and were applicable to all cities and villages having water works. We therefore disregard all the special codes for Cincinnati, Cleveland, Columbus and other cities.
    The code of 1902 repealed Section 2408, providing for the election of trustees of the water works and cast their functions upon the directors of public service in cities, by the sections heretofore referred to, and upon a board of trustees of public affairs in villages, specially providing that said board in villages should have all the powers and perform all the duties that are provided to be performed by the trustees of water works in the sections of the code cf 1869, already mentioned (Section 1536-839). That the Legislature understood and intended that said sections should apply to the water works of cities, as well as villages, is made clear by an amendment to Section 2433, adopted April 20, 1904 (97 O. L., 135), in which the following occurs:
    “It shall be the duty of the board of public service or board of trustees of public affairs of any municipal corporation to enforce the provisions of this section” (referring to the prevention of pollution of water supply).
    If, then, we are correct in our conclusion, that Sections 2407 to 2433, above referred to, found as Sections 1536-519 to 1536-544 in the Sixth Edition of Bates Annotated Ohio Statutes, apply to water works in cities as well as in villages, then we may look to said sections in considering the case made by the demurrer.
    Section 1536-521 (Section 2410) reads as follows:
    “The trustees shall be authorized to make such by-laws and regulations as they may deem necessary for the safe, economical and efficient management and protection of the water works, and such by-laws and regulations shall have the same validity as ordinances, when not repugnant thereto, or .to the Constitution and laws of the state. ’ ’
    Section 1536-522 (Section 2411) :
    “For the purpose of paying the expenses of conducting and managing the water works * * * the trustees or board shall have the power to assess and collect from time to time a water rent of sufficient amount, in such manner as they may deem most equitable, upon all tenements and premises supplied with water,” etc.
    Section 2411 underwent several amendments after its original adoption in 1869 (66 O. L., 249, Section 338; 71 O. L., 109; R. S. 1880, Section 2411; 84 0.‘ L., 10; 86 O. L., 364; 90 O. L., 198; 94 O. L., 57). By comparison of the amendment in 71 O. L.,. 109, with Section 2411 of the Revision of 1880, it is apparent that the codifying commission used the words “trustees or board,” inserting the words, “or board” as referring solely to the board of trustees of water works, and not to any other board under any special government act.
    We hold that in Sections 2410 and 2411 the words “trustees” and “trustees or board” now include under the present municipal- code, the directors of public service in cities, and the •board of trustees of public affairs in villages.
    We have also concluded that water meters serve a two-fold purpose, of providing a method of determining water rents and preventing waste or -other improper or unauthorized use '■of water.
    The “manner” or method in which water rents shall be assessed seems to be under the exclusive control of the directors of public service, by Section 1536-522.
    The matter of 'waste or other improper or unauthorized use of water, as well as the pollution thereof, seems to be within the concurrent jurisdiction, -of the cify council by1 Section 1536-100, clause 15, above quoted.
    Was the ordinance relied upon within this jurisdiction of the city council?
    It appears upop the face of the ordinance that it was not passed for the purpose of preventing pollution .of water, or protecting the public health, for it provides that hotels shall have meters, but that private residences shall not.
    It is also apparent that, so far as it regards residences, the ordinance was not passed for the purpose of preventing unnecessary waste of water, for it says that residences shall not be metered, without the consent of the consumer, except in ease of waste or other improper or unauthorized use of water.
    Manifestly the only purpose of the council in passing that part -of the ordinance which refers to residences and forbids metering them, was to regulate the manner of assessing water rents for residences.
    That function is specifically conferred upon the directors of public service and with it the council can not interfere; it has no concurrent jurisdiction over that matter conferred upon it by statute.
    We therefore hold that so much of said ordinance as refers to residences is illegal and void. It follows that the directors of public service have a right to make a rule or regulation requiring residences to be metered and that such rule is not repugnant to any valid ordinance of the council.
    So much of the said ordinance as requires the directors of public service to install meters is valid, and they are boiind to follow such legislation, because it is within the scope of the council’s authority to prevent waste of water, and their discretion as to the means to be used for that purpose, honestly, exercised, could not be questioned by the directors or the courts.
    But here we have a plain attempt on the part of the city council to regulate the manner of assessing water rents, a thing beyond the powers of the council, and specifically imposed by law upon the directors of public service.
    We think the demurrer to the petition is well taken and sustain it.
    Judgment for the defendant.

      II. A. Becltermaov, for plaintiff.

      Newton D. Balter, City Solicitor, for defendant.

       Reversing Hutchins v. City of Cleveland, 4 N. P.—N. S., 593.


text:
    OIL LEASES AND THE APPURTENANCES THERETO.
    [Circuit Court of Wood County.]
    Samuel E. Niece v. Thomas Percy.
    Decided, May 5, 1906.

      Oil and Gas — Oil Lease Includes Appurtenances, When — Title to Appurtenances of Purchaser at Judicial Sale — :Estoppel in Pais — Doctrine of Caveat Emptor not Applicable, When — Ambiguous Decree of Sale — Meaning of the Word “Lease” as Used in the Oil Field— “Plant” as Applied to Appurtenances — Ignorance of Rights — Evidence — Words and Phrases — Title.
    1. While it is true that in the oil field the word “lease,” when referring to a lease in operation, means the whole plant — that is, the lease in its technical sense, together with the equipment and appurtenances in use in its operation — the title obtained by the purchase of such a lease at a judicial sale would ordinarily be limited to the terms of the decree of sale.
    2. But where the purchaser was acting somewhat in the interest of the defendant owner, and was thereby relieved as between the defendant and himself from the application of the doctrine of caveat emptor, evidence as to the understanding between the original owner and himself at the time of the sale, as to whether the appurtenances were included with the lease, is admissible in a subsequent action by the original owner to recover from the purchaser the value of the appurtenances.
    3. Where the evidence gies to show that there was such a community of interest between the original owner and the purchaser, and that the understanding between them was that the appurtenances as well as the lease proper was being sold, the original owner will be estopped from thereafter claiming that the purchaser took only the bare lease under the decree of sale; and this is true without regard to his ignorance of the possible fact that the sheriff would be unable to convey title to the appurtenances.
    Parker, P. J. (orally); Wildman, J., and Haynes, J., concur.
    This case comes into this court on error. Mr. Niece was1 plaintiff and Mr. Percy defendant in the court of common pleas. The action was brought to recover a money judgment, the amount claimed being sixteen hundred and fifty-five dollars, instituted on account of the alleged conversion by Percy of certain property of which Niece alleges in his petition he was the owner. The property consisted of certain equipment on oil leases, being three derricks, 1,125 feet of 5%-inch casing; 3,700 feet 2-ineh pipe; 3,700 feet sucker rods; one 25-horse-power boiler; two steam engines; one 250-barrel tank; one 100-barrel tank; 1,000 feet of 2%-ineh line pipe; 500 feet 20-inch pipe; 3,000 feet 1-inch pipe; one boiler; 1,000 feet of shackle rods, and possibly some other equipment. It is 'averred that this property was of the value which justified the prayer for judgment for the amount stated.
    As I have said, this property consisted of the equipment of certain oil leases, situate in Hancock county. It is averred that these were sold under a foreclosure sale, and that Mr. Percy was the purchaser. It, was sold as the property of Mr. Niece. Mr. Niece was formerly the owner of the leases and equipment, and it was sold under incumbrances on account of debts contracted by Niece. It is claimed by Niece that the decree and the sale did not carry the title of this property to Percy; that all Percy took under the decree of sale was the right that the lessee took under the decree of sale, or the right that the lessee and assigns had acquired from the lessor, to-wit, the leasehold interest; that he took no part of the equipment.
    It is contended on behalf of Percy that he purchased at sheriff’s sale the equipment of the leases as well as the leasehold interests and he bases his claim upon three distinct propositions or grounds: First, that the decree by its terms covered this equipment; second, if the decree standing unexplained did not by its terms cover the equipment, that the testimony of witnesses showing the meaning of the word “lease” as used in the decree and order of sale, etc., and showing that in the oil field among men acquainted with the business of dealing with leases, that the word “lease” is understood to cover the equipment, and by reason of these explanations and this testimony, that the decree and order of sale carried the equipment; third, it is contended that Niece is estopped from claiming this, equipment by reason of certain ac'ts oh his part which induced Percy to purchase under the belief that he was acquiring the equipment as well as the¡ leasehold interest.

      We are not prepared to hold that under the terms of the decree, even as explained by the testimony of witnesses-touching the use of the word “lease” among oil men or in the oil field, and in the absence of the element of estoppel in pais, that a sale would cover the personal property on the lease, though we are well satisfied that -the word “lease” as used in the oil field commonly covers the equipment. The1 decree itself is not free from ambiguity. The journal entry sets forth that the parties appeared with their attorneys, and the matter was submitted to the court upon the pleadings and the evidence, and upon consideration whereof and being fully advised in the premises, the court has found on the eighth day of December, 1900, that S. E. Niece was the owner in fact of the described oil and gas leases, together with the appurtenances thereunto belonging, including all oil wells located thereon, all boilers and engines, tanks, tools, pipes and other oil well appliances, to-wit: (and then the leases are described; that is -to say, the land covered.by the leases); so-that in that part of the decree the court appears to be treating the equipment of the leases as an appurtenance thereto; and further along in the decree it is said “that said leasehold interest and property thereon were also transferred to said First National Bank, etc.; and again it is set forth that Niece entered into an agreement with the bank whereby Niece was to have the right to sell the oil run from said leases, and that if he failed to pay the debt of the bank, it was to run and sell the oil, the division orders therefor to be transferred and assigned by Niece to said defendant bank, and to sell said leases and the property situate thereon as aforesaid to satisfy and pay the indebtedness due from said Niece to said bank. When it comes to the part of the decree authorizing the sale of the property, it reads as follows -.
    “It is therefore considered, ordered and adjudged that unless the defendant, Samuel E. Niece, pay said sum of nine thousand eight hundred fifty-three and 54-100 dollars ($9,853.54) with eight per cent, interest thereon from the eighth day of December, 1903, within three days from this date, -that an order of sale issue directed to the sheriff of Wood county, Ohio (part of the property being in Wood county), and to the sheriff of Hancock county.respectively, commanding- them to sell said leases.herein described as located in their respective counties, and out of the proceeds arising from said sale, to pay, first, the indebtedness due said bank,” etc.
    I say it seems to us that the decree is ambiguous. It seems to us uncertain whether the court there meant, or whether that should be considered, that the leases therein described to be sold would include what in the early part of the decree was described as "appurtenances” of the leases.
    The order under which this sale was made sets forth that the sheriff is "to proceed without delay and cause to be advertised and to sell according to law the following real estate situate in the county of Hancock and state of Ohio” (and then is described these leases without any reference being made to the appurtenances or personal property); and we entertain some doubt as to whether it was competent to prove, in order to fix the meaning of the terms of this decree that the word "lease” was used in the oil field in the manner that I have mentioned. But it is well settled by the authorities, that where there are distinct defenses, and the verdict of the jury is general, covering all the issues, if there is no error touching a single issue, it would justify the judgment, and when it seems to be sustained by the evidence, the judgment wall not be disturbed, even though there may be errors touching other issues; errors in the admission of evidence or the exclusion of it, or the charge of the court — whatever the errors- This is laid down in a number of authorities that wre had occasion to collate and examine recently. I call attention to the case of Manson v. The State, 24 O. S., 590, and I cite this state case because substantially the same rule is held there, though we know there is more strictness in criminal than civil cases. I cite also the case of McAllister v. Hartzell, 60 O. S., 69; Sites v. Ilaverstich, 23 0. S., 626, and Holt v. Lamb, 17 0. S., 374-384.
    We have no doubt but under the evidence showing the transactions, the negotiations and dealings between Niece and Percy respecting this property, with respect to this sheriff’s sale of the property, that the sale as between Niece and Percy wras not strictly of such adversary character as that the rule of caveat emptor can be invoked by Niece against Percy. It appears that at the solicitation of Niece, Percy 'became the purchaser at this sale, somewhat in the interest of Niece. It crops out that Niece expected perhaps more in the way of benefits to result to him from the sale to Percy 'than he in fact realized; but that does not alter the fact that Percy was purchasing somewhat in the interest of Niece and at the solicitation of Niece. And in view of that which we regard as a very important fact, a fact which discloses an estoppel in pais, and as we believe concludes Mr. Niece, we think the evidence of what was fairly understood by Niece and by Percy in the use of the word “lease” in their talk and their negotiations and as well as in the decree, was admissible. After this decree was entered and the property was about to be brought to sale, Mr. Niece went to Mr. Percy and asked him to buy; to buy so that the property might not be sacrificed, so that it might pay a greater amount of Niece ’s indebtedness than it would if it were sold at a low figure, and so perhaps that there might be something left for Niece; and, as I have suggested, it may have been contemplated by Niece that he would have an opportunity to redeem, in all of which he seems to have been disappointed.
    They went upon the premises; they looked at what there was to be seen, to-wit, all of this personal property which is mentioned here, this equipment, and they talked about the value of the property, and we think it -is quite evident that they both took into consideration the equipment as well as the naked rights of the lessee acquired from the lessor in the written instruments. It was a lease in operation, and this equipment constituted a part of what might fairly be described as the “plant,” a term applied perhaps to manufacturing institutions, but which we think may be fairly applied here, and our understanding of the matter is, and the evidence justifies the finding that in the oil field, where parties negotiate respecting a lease which is in operation, either to mortgage it or to sell it, that they consider the whole plant, all the equipment. That is the rule unless there is some exception made; some distinct understanding to the contrary.
    On the date of the sale the testimony tends to show, and we think fairly establishes the fact, that the sheriff notified the bidders, including Mr. Percy, that the sale would carry, not only the leasehold interest, but would carry the equipment; that the equipment was to be sold as part of the lease or with the lease, and Mr. Niece at the time was present, and as the bidding-progressed, Mr. Niece urged Mr. Percy from time to time to raise his bid, and prevailed on him to raise his bid several hundred dollars. It is said by Mr. Percy, and we think it is unquestionably true, that if he had not understood that the equipment was being sold with the leasehold he would not have bid as high as he did.
    After purchasing, Mr. Percy paid for the property. Tie then, in company with Mr. Niece, went upon the property. Mr. Niece at the time he went upon the property after the sale in company with Mr. Percy called attention to some padlocks, articles of small value, that he desired to have and keep, and Mr. Percy consented to his taking them. Mr. Niece at the time made no claim to anything more; did not make any claim to any of this property until months after this sale. It is said, however, that these things occurring after the sale could not give rise to estoppel, and that is probably true, and I mention this only as indicating the understanding that Niece had of what occurred at the sale and as corroborative of the testimony of Mr. Percy that there was talk about the equipment going with the leasehold interest, and that it was understood between him and Mr. Niece that such was the case.
    Upon the question of estoppel arising in this case we think the case of Smiley v. Wright, in 2 Ohio, p. 306, is in point. The syllabus reads:
    “Widow entitled to dower present at the sale under order of court, and asserts that the sale may be made free from dower, in consequence of which the price is increased, is thereby barred of dower, although the purchaser was not ignorant of her title. ’ ’
    And in the opinion by the court, this explanation with the facts is given:
    “The next question made is whether the circumstances attending the sale of the premises to Hartford are such as bar Mrs. Smiley, in equity, from claiming her dower. The evidence upon this part of the case is clear, explicit and uncontradictory. J. Eddington testifies that he attended the sale as agent of Hartford. The property was put up, subject to the widow’s dower, and that it was bid up to about two thousand four hundred dollars. Fichas, after the property had been cried for some time at that price, and it was evident no greater bid could be obtained, expressed his unwillingness to have it sold for that price, and, at his request, the biddings were suspended, to enable him to consult with the widow, and ascertain if she would agree to have the property sold free of dower. Fichas and the widow went into a back room, where they were engaged some time in conversation, no part of which he heard. The witness was near the door of the room, and when they came out, Fichas observed she had agreed to have 'the property sold free of dower. This was proclaimed at the front door by the crier; the biddings resumed and the property struck off to witness, as the agent of Hartford, at about three thousand dollars. He would not have given over two thousand four hundred dollars had he not have understood that the widow relinquished her dower. R. Moor’s testimony is to the same effect. S. Salmon states he was the auctioneer. The widow was present and must have heard him cry the sale as free from her claim of dower and that the property was sold as unincumbered by any right of dower, and that J. Worstell states he was present at the sale. Mrs. Smiley was standing in the door, the auctioneer being on the step, when it was struck off. That he heard the auctioneer frequently state that the sale was free from dower, while she.was in a situation she must have heard him; and she occasion replied to him that she had no claim to dower.
    “It is apparent from this testimony, which is altogether uncontradicted, that after the suspension of the sale it was understood by the persons attending that the property was to be sold unincumbered by the widow’s dower. That she was present, aiding by her acts and declarations, in confirming this opinion, and that the purchaser was thereby induced to bid about six hundred dollars more than ho would otherwise have given.”
    Of course it will be recognized that the important point, here is that the widow encouraged the bidders to believe that they were purchasing free from her dower. What the auctioneer said would have been unimportant had it not been ratified by the widow; and in the case at bar, whatever the sheriff said is of little importance. The question is, what -was understood between Mr. Niece and Mr. Percy and what did Niece give Percy to understand? Continuing, the court say:

      “It is a well established principle in equity that if a person having a right to an estate permit or encourage a purchaser to buy it of another, the purchaser shall hold it against the person Avho has the right. [Authorities cited.] It is contended, on the part of the complainants, that the acts and declarations of Mrs. Smiley, at the time of the sale of the lots in question, ought not to bar her of the aid of a court of equity, because she was not at that time ignorant of her rights, nor can they be considered as a fraud upon the purchaser, as he had notice of the title.”
    And so it is urged here that the doctrine of estoppel does not apply to Mr. Niece because he had no more information as to his rights under that decree than Mr. Percy had. One was as fully informed as the other, and if strictly under the terms of the decree and order of sale the title to the personalty yvas not carried and would not be carried, that Mr. Niece is not estopped, but it will be observed that in this case of Smiley v. Wright, supra, by the terms of the decree the interest of the Avidow, her dower interest, would not have been carried by the sale. The sheriff had no authority under the decree of the court and order of sale to sell her dower interest; it was only by virtue of her declarations or her acquiescence that her dower estate was carried or extinguished and she was deprived of it.
    In a case to which we are cited by counsel for plaintiff in error, the case of Fisher v. Mossman, in 11 O. S., 42, it is said in the second clause of the syllabus:
    “Where a mortgage on real estate is duly executed and recorded, and the mortgaged premises are subsequently sold at sheriff’s sale, under a judgment in favor of a third party against the mortgagors, obtained subsequent to the recording of the mortgage, and the mortgagee is present at the sheriff’s sale, and keeps silent with respect to his mortgage — Held: That the mortgage being duly recorded, and there being no other evidence of actual fraud, the mortgagee is not estopped, by his mere silence, from afterwards claiming the benefit of his mortgage lien.”
    But in that case, as disclosed by the opinion, the mortgagee said nothing, and there was no declaration in his presence that the property was being sold free from incumbrances, or that any mortgage that he. appeared to have upon the premises had been paid'or was not a valid lien, or anything of that sort. No mention was made of the mortgage, and he was not called upon to speak touching his mortgage, and as said by the court on page 47:
    “If the mortgagee had said or done anything to deceive or mislead the purchaser, or if, on being interrogated in respect to his rights or claims, he had then deceitfully kept silent, the case would be very different from what it now is.”
    We are also cited to a case in the 47 O. S., page 366, Pennsylvania Co. v. Platt, the 3d paragraph of the syllabus of which reads:
    “In order to estop an owner from asserting title to his property, by his declarations or conduct, it must appear that he was, at the time, apprised of the true state of his title; that he knew, or had reason to believe, his declarations or conduct would be acted upon by another; that they were acted upon by such other person in ignorance of the title, and that such person will be injured by allowing the truth of the admission by the declaration or conduct so acted upon by him to be disproved.”
    But that case upon its facts was widely different from the case at bar, and in that case the Smiley case in the 2d Ohio is reviewed and approved. The authority of that case has never been questioned, and has stood as the law of the state for a great many years, and we are of the opinion that the ignorance of title mentioned in the ease of Penna. Co. v. Platt is a very different thing from the alleged ignorance of Mr. Niece touching his rights in the premises here. Mr. Niece knew all that it was essential for him to know in order that he might estop himself. It was not necessary that he should know that, technically, the title to this property would not be conveyed by the sheriff; it was enough for him to know that he was the owner of this property and that he knew subject to the incumbrances and subject to the decree, and with that knowledge he encouraged Mr. Percy to believe that that property was being sold at that sale. He acquiesced in it being done, and we think that he is clearly bound under the doctrine of estoppel.
    The judgment of the court below will be affirmed.

      Seney & Seney, for plaintiff in error.

      Baldwin & Harrington, for defendant in error.


text:
    CONSTRUCTION OF WILL.
    [Circuit Court of Guernsey County.]
    Nancy J. Miller v. Alexander Miller et al.
    Decided, November, 1906.

      Wills — Realty Devised to Son — With Remainder to Lawful Heirs— Widoio of Son Takes — Partition—Words and Phrases.

    Where a testator devises a parcel of real estate to his son for life with remainder to his lawful heirs, and the son marries after the death of the testator — Held: That upon the death of the son the wife takes as heir where there is nothing in the will tending to show that the testator used the words “lawful heirs” in a different sense from their strict technical import.
    Cook, J.; Burrow's, J., and Laubie, J., concur.
    This was an action in partition and the controversy arises upon the cross-petition of Nancy J. Miller. She claims in her cross-petition fchatl she is the widow of Peter Miller, who was the son of Alexander Miller, and as such widow is the heir at law of Peter Miller and the absolute owner, under the will of Alexander Miller, of a part of the real estate sought to be partitioned.
    Alexander Miller disposed of all his property by his will among his children, and the question is, what is the proper construction of the will?
    In the second item of his will he devised to his son Howard a certain parcel of land during his life, and at his death to go to his children.
    In the third item he devised to his son Richard for life a certain parcel of land, and at his death to go to his children.
    By the fourth and fifth items he devised to his two daughters certain parcels of land absolutely.
    By the sixth item he devised to his son Peter a parcel of land during his life, and at his death to go to his lawful heirs. The exact language is: “I give and devise to Peter the parcel of land (naming it) during his life, and when he dies it is to go to his lawful heirs.”
    Howard and Richard each were married and had children at the time of the making the will, and at the death of the father, while Peter was a bachelor, but was married after the death of his father. The brothers and sister of Peter claim that the intention of the father was that upon the death -of Peter the parcel devised to him was to go to his children; or if he died without issue that the land at the death of Peter should go to his brothers and sisters.
    The words “heirs at law” have well-defined legal signification. In their strictly technical import it is: “the person- or persons appointed by law- to succeed to the estate in ease of intestacy.” Bouvier’s Law Dictionary, Yol. 2, page-941.
    Under this definition there is no question but what plaintiff, Nancy J. Miller, was strictly and technically the heir of her husband, Peter Miller, as under our statute of descent she would inherit from her husband.
    In Weston y. Weston, 38 O. S., 473, it was held:
    “A testator, having executed his will giving, in trust for the -benefit of his sole and only child, property consisting of non-ancestral real estate and personal property, and directing that ‘in case my said child should die without issue her surviving, then all and singular the property so devised shall pass to and vest in my heirs at law,’ died leaving surviving him his said child, and also his wife, a brother and two sisters who survived the child. Held: That upon the death of the child without issue, the widow of the testator succeeded to the property, under the will, as heir at law of the testator. ’ ’
    In the opinion of Judge Mcllvaine it is said:
    “We readily concur in the proposition laid down in Jones v. Lloyd, supra, that the term ‘heirs,’ when used in a will, is flexible, and should be so construed as to give effect to the manifest intention of the testator as ascertained by a due consideration of all the provisions of the will. But this proposition in no wise conflicts with the well established rule of construction, that technical words used in a will should have their strict technical meaning, unless it appears that the testator used them in some other and secondary sense.”
    In Durfee v. McNeil, 58 O. S., 244, in the opinion by Judge Shauck it is said :
    “Under our present statute of descent and distribution the lands of a married woman who dies intestate and leaving no children or their representatives pass to her surviving husband, and he is entitled to- her personal estate. ITe may, therefore, with strict regard to the significance of the term, be designated as her heir. But from the fact that the estates of deceased persons usually descend to their children, the term heirs is frequently regarded as synonymous with children. It would be unprofitable to analyze, or even to cite, the numerous cases in which the term has been held to have been used in its general sense to designate any one capable of inheriting, or" in its limited sense to designate children, as the testator’s intention may appear from the scheme and all the provisions of his will. The flexibility of the term and the duty of the court to ascertain its meaning from a consideration of the entire will are brought into clear view in Jones v. Lloyd, 33 Ohio St., 572, where it was held that the testator’s widow was not entitled to participate in a provision in favor of his heirs, although if he had died intestate she would have been his sole heir.”
    The case of Bunnell v. Evans et al, 26 O. S.,, 409, relied upon by counsel, is in no sense contrary to the decisions referred to, as the question made was not passed upon; the only question decided being that the talcing the will as a whole it clearly showed the word “heirs” as used by the testator was in the sense of children.
    That it is true that the word “heirs” is a very flexible term may be conceded, and that it is frequently used in the sense of children there is no doubt, or even as devisees and legatees {Todd, v. Todd, 6 C. C. — N. S., 105). If, however, there is nothing in the will or the- surrounding circumstances showing that the testator used the words in a different sense from their strict technical signification, then that signification must be given to them.
    What is there in this will that in any manner tends to show they were used by the testator in any sense different from what they usually mean?
    Howard and Richard were married and had children; the devise therefore was to them during life and at their death to their children in f-ee.
    Peter was single. Tie had no children. The devise was therefore to him and his lawful heirs. Evidently the testator meant that if Peter got married, the remainder was to go to his wife, and if he had children, then to his children, which in either event would be his heirs; and if he did not get married, then the fee was to go to his brothers and sisters, who in that case would be his heirs. Indeed, the context of the will' strengthens the claim of the widow. The court of common pleas erred in sustaining a demurrer to the cross-petifion of plaintiff in error, and the judgment will be reversed and the ease, remanded with instructions to overrule the demurrer and for further proceeding.

      John J. Adams and Abbe L. Jones, for plaintiff in error.

      Robert T. Scott and Joseph Furlcey, for defendant in error.


text:
    PERJURY IN OBTAINING A MARRIAGE LICENSE.
    [Circuit Court of Cuyahoga County.]
    George Field v. The State of Ohio.
    Decided, January 21, 1907.

      Criminal Law — Perjury—In Obtaining a Marriage License — Number of Times Previously Married a Material Question — Construction of the Phrase “and Shall also State” — Section 6390.
    Section 6390, Revised Statutes of Ohio, requires that an applicant for a marriage license state under oath the number of times he has been previously married, and a false statement with reference thereto, given under oath, warrants a conviction for perjury.
    Winch, J.; Henry, J., and Marvin, J., concur.
    \ At the last term of the common pleas court the plaintiff in error was convicted of perjury, and now brings this action to reverse the judgment of said court.
    It appears that plaintiff in error had been twice married and divorced, when, on the 6th day of March, 1905, he applied to the probate judge of Cuyahoga county for a license, so that he might be married a third time, and made answer to certain questions propounded to him in writing, one of which questions was as follows: “Number of times previously married?” His answer to this question was, “None.” It is conceded that this answer was untrue. Some claim is made that Field did not make the statement in bis application under oath, but as we are of the opinion that the bill of exceptions does not bear out this claim, and that the jury was warranted in finding that he did swear to his application, no further consideration will be given to this claim.
    However, by proper exceptions, plaintiff in error has brought before this court his further claims that the law does not require that the particular question he answered falsely should be answered under oath, and that if it does, the fact falsely stated was not material, and, therefore, no ground for conviction under the statute on perjury.
    These claims are based upon a literal reading of the statute regulating the issuance of marriage licenses, which seems to give color to such claims. The law referred to is Section 6390 of the Revised Statutes, and was enacted April 25, 1898 (93 O. L., 309), as an amendment of the former act found in 82 O. L., 202.
    The present law, in the parts material to this ease, reads as follows:
    “Every person applying for a marriage license, as aforesaid, shall state upon oath, the name, age, residence, place of birth, occupation, father’s name, if known, and the mother’s maiden name, of each of the parties to such contemplated marriage, and shall also state the number of times either party has been previously married, and in case the bride is a widow, or a divorced woman, her married name shall also be stated, and in addition the name of the person who is expected to solemnize the marriage shall be stated, and if the judge shall be satisfied there is no legal impediment thereto, then he shall grant such marriage license; * * * if any of the persons intending to marry shall be under age, and shall not have had a former wife or husband, the consent of the parents or guardians shall'be personally given before the judge, * * “ and the judge is hereby authorized to administer any oath (herein) required, and thereupon issue and sign such license, * * * if any judge shall, in any other manner, issue or sign any marriage license, he shall forfeit and pay a sum not exceeding one thousand dollars, to and for the use of the party aggrieved.”
    Because the law Says the applicant shall state under oath certain things, enumerating them, and then proceeds, “and shall also state” certain other things, among them the number of times either party has been previously married, it is urged that the things he “shall also state,” need not be “under oath,” because those words are not repeated in the latter clause of the statute. This point is one which an astute lawyer would make, while it would not occur to the casual reader, and thus arises an ambiguity in the statute, which requires construction.
    A primary rule in construction and interpretation of statutes is that the intention of the law-makers must be ascertained. Where there is ambiguity in any part of the law, the intent must be derived from the whole, and as aids in this search, we may consider repealed statutes. Lewis’ Sutherland on Statutory Construction, paragraph 452.
    Let us look at the former repealed law, 82 O. L., 202. That started out as follows:
    “The probate judge as aforesaid, may inquire of the party applying for a marriage license, as aforesaid upon oath, relative to the legality of such contemplated marriage, and if the judge shall be satisfied that there is no legal impediment thereto, then he shall grant such marriage license,” etc.
    Manifestly, under the former law, the probate judge was not required to put the applicant upon oath, nor was it provided what inquiries he should make of him. Possibly, if he did ask the applicant to answer certain questions under oath, and relying upon the answer so given, issued a license, he would be protected from the penalty which then, as now, he was liable to, if he issued a license to one not entitled to it. But how would the case be if a legal impediment existed to the marriage, and the probate judge neglected to make any inquiry on that point?
    The present law specifically requires certain statements to be made. One of those statements is as to whether the applicant has been previously married. If the applicant is under age, the consent of his parents is required, but if the applicant is a minor who has been previously married, such consent is not required. How is the probate judge to ascertain the fact? He takes the statement of the applicant. If that statement is under oath, the probate judge may act upon it, for the staute now reads: “The judge is hereby auhorized to administer any oath (herein.) required and thereupon issue and sign such license,” If he issues a license to a mipor, who has never been married before, without the consent of his parents, he is liable to the penalty provided by the statutes. But doubtless there would be no irregularity in issuing a marriage license to a minor who had been previously married, and if this statute authorizes such fact to be elicited by oath of the applicant, then the probate judge need inquire no further.
    Such, we think, was the intention of the Legislature, and so we hold that Section 6390 requires all the statements therein mentioned to be made upon oath.
    We also hold that the statement as'to the number of times the applicant had been previously married is material. The Legislature having required the statement to be made, leaves no discretion in the probate judge as to submitting it, no matter what the answers to other questions might be.
    Again, suppose the applicant should state that he had been married before. That would put the probate judge upon inquiry to ascertain whether such former wife was dead or divorced, and as to these further matters, there is no statute which authorizes the probate judge to rely upon the oath of the applicant, but the judge must still determine whether there is a legal impediment to the marriage. Suppose the applicant says, I have been married, but am now divorced That he is now divorced is a legal conclusion, and a careful probate jxidge would then answer: “Bring in a certificate to that effect from the court which divorced you, and I will then issue a license to you. ’ ’
    Further, it is material that the probate judge be advised as to the number of times the applicant had been married previously, for -otherwise he might evasively answer that he had been married before and been divorced, which might be true as to one previous marriage, but not as to another.
    Judgment affirmed. .

      G. F. Shaver, for plaintiff in error.

      S. V. McMahon, for defendant in error.