author: Laubie, J.,

text:
    THE PUNISHMENT OF ASSAULT AND BATTERY BY MUNICIPAL ORDINANCE.
    [Circuit Court of Columbiana County.]
    The City of Wellsville, Ohio, v. Patrick O’Connor, and The City of Wellsville, Ohio v. Harry Kirkbride.
    Decided, April 10, 1903.

      Powers of Municipalities — The Duplication of Misdemeanors — Assault and Battery Not Punishable by Ordinance — Sections 1692 and 2108 Construed — Conformity to Section 1694, Limiting Ordinance to One Subject.

      ' 1. An ordinance of tbe city of Wellsville, Ohio, contains fifteen sections, defining fifteen separate offenses against the city, all relating to one subject — the punishment,of offenses against the. city; and there is nothing in the ordinance upon any other subject, and nothing that is not clearly expressed in its title: “An ordinance to prohibit and punish certain offenses therein named, and for the more effectual preservation of peace and good order in the city of Wellsville.” Held: That this ordinance conforms to the requirements of Section 1694, R. S., which provides that “No by-laws or ordinance shall -contain more than one subject, which shall be clearly expressed in its title.”
    2 The power granted to a municipality by Section 1692, R. S., “to preserve the peace and good order,” is limited by Section 2108, and does not include the power to provide by ordinance for the punishment of assault and battery.

    Burrows, J.; Cook, J., concurring; Uaubie, J., dissenting.

      To this holding Judge Laubie dissents. His dissenting opinion will be found immediately following the opinion of the majority of the court.

   O’Connor was convicted before the mayor of the city of Wells-ville upon the charge of having committed the crime of assault and battery in violation of an ordinance of the city; was adjudged to pay a fine of fifty dollars and costs, and to stand committed- to the work-house -till fine and costs were paid. This judgment was reversed by the-court of common pleas on the ground that the ordinance was invalid, and we are now called upon to review this judgment of the court of common pleas.

The ordinance is said to be invalid because the city was not authorized' to create such offense,, and "because the ordinance-does not conform to the requirements of Section 1694, Revised Statutes, which provides that “No by-law or ordinance shall contain more than one subject', which shall be clearly expressed in its title.”

As to this second ground of complaint we are unanimous in the opinion that it is not well founded. The ordinance in question contains fifteen sections, defining fifteen separate offenses against the city. They all relate to one subject — the punishment of offenses against the city; and there is nothing in the ordinance upon any other subject, and nothing which is not clearly expressed in its title: “An ordinance to prohibit and punish certain offenses therein named, and for the more effectual preservation of peace and good order in the city of Wellsville, Ohio.”

We do not think that any discussion of this question is required, as- it has been settled, in principle at least, by the Supreme Court. Ohio v. Covington, 29 O. S., 102.

As to the other ground of objection to the ordinance — that it is not authorized by statute — we are not agreed;'but in the opinion of the majority of the court this objection is well taken.

The only disagreement between members of the court is upon the proper construction to be placed upon certain provisions of the statute. There is no dispute as to.the essential facts of the case. It is an undisputed fact that the City of Wellsville undertook by ordinance to prohibit and punish the crime of assault and battery, defining it in the precise language adopted by the Legislature in defining the offense; and' that the authority of the city to enact the ordinance is given, if at all, by Section 1692, Par. 1, and Section 2108 of Revised Statutes.

Neither is there any disagreement as to the general rules of law applicable to the case. It is agreed that the Legislature can authorize a municipal corporation to prohibit and punish minor offenses, which are also punished by the state, whatever may be the-law elsewhere. Koch v. The State, 53 O. S., 433.

The majority of the court think the following propositions are well settled by approved text-writers and courts: That the prohibition of crimes and offenses lies within the domain of police power; that the exercise of police power is an exclusive prerogative of the state; that a municipal corporation has no inherent power to enact by-laws or -ordinances for punishment of offenses; that it has only such, powers as are clearly and expressly'conferred upon it by tbe Legislating, or.mdst necessarily be implied in order to- carry into effect those expressly granted; that where the Legislature by general law has exercised its jurisdiction as to the punishment of an offense, there is a presumption of an intention to make its jurisdiction over such subject exclusive; and that in all cases where the grant is uncertain or doubtful the power must be denied.

These general propositions are fully established and illustrated by authority. 18 Am. & Eng. Ency., 739; Ravenna, v. Pennsylvania Co., 45 O. S., 118; Markley v. Village, 58 O. S., 430; Dillon’s Mun. Corp. (2d Ed.), Sees. 301, 302; St. Louis v. Telephone Co., 96 Mo., 623; Minturn v. Larue, 23 Howard (U. S.), 435.

We now come to the only disputed question in the case: Was the City of Wellsville authorized by statute to make the crime of assault and battery an offense against the city ? This must be determined from the sections of the statute referred to, which,.so far as pertinent, read as follows:

“Sec. 1692. In addition to the powers specifically granted in this title, and subject to the exceptions and limitations in other parts of it, cities and villages shall have the general powers enumerated in this section, and the council may provide by ordinance for the exercise and enforcement of the same.
“1. To prevent riots, gambling, noise, and disturbance, indecent' and disorderly conduct or assemblages, and to preserve the peace and good order, and protect the property of the municipal corporation and its inhabitants.”
“Sec. 2108. The council of a city or village shall have power to provide for the punishment of persons disturbing the good order and quiet' of the corporation, by clamor and noise in the night season, by intoxication, drunkenness, fighting, using obscene or profane language in the streets or other public places, to the annoyance of the citizens, or otherwise violating the public peace by indecent and disorderly conduct, or by lewd and lascivious behavior.”

These sections are found in the same title and relate to the same subject matter — the maintenance of peace and good order in municipal corporations.

It may be assumed at the outset of the discussion that the contention of the city is narrowed down to the construction of a single clause in Section 1692, Rev. Stat.

Counsel for the city claim that the authorization of the council “to preserve the peace and good order” of the corporation is an adequate and clear grant of power for the enactment, of this ordinance; and they base their claim solely upon this clause.

This claim of the city is controverted and denied; and the counter-claim is made that Section 2108 limits the power of the city to pass ordinances to preserve the public peace.

Since a city has no inherent power to make by-laws or ordinances it is incumbent upon t'he city to demonstrate that the requisite power to pass this ordinance is expressly given, or of necessity implied in the language used in this clause.

The full import of Section 1692 as applicable to this contention would read as follows :

Subject to the exceptions and limitations in other parts of this title, the council of cities and villages may provide by ordinance for the exercise and enforcement of the power “to preserve the peace and good order” of the municipal corporation.

This grant is not unlimited. Ordinances must be reasonable, and they must be appropriate to effect the purpose and objects for which they are authorized by the Legislature. It is certain that the purpose of this statute was to permit the council to provide by ordinance for the punishment of disorderly 'conduct which disturbs or annoys the citizens of the corporation. To give it larger scope would extend the power beyond the necessities of the case and make its limits subject, substantially, to the discretion of the council.

There seems to be some difference of opinion between counsel as to the meaning of the word peace, as used in this statute. It is a word in common use among the people, and itte meaning is well understood by them, and their understanding of its meaning is the same as that of lexicographers. The primary meaning according to Webster is, “A state of quiet or tranquility; freedom from disturbance or agitation; calm; repose.” And Bouvier defines it as “The tranquility enjoyed by a political, .society, internally, by the good order which reigns among its members; a state of public order and decorum.”

The argument by which it is proposed to sustain this ordinance is, that authority to preserve the peace is equivalent to authority to prevent' breaches of the peace; that assault and battery is in all cases a constructive and in many cases is an actual breach of the peace; therefore, authority to preserve the peace is authority to make assault and battery an offense against the city. When this conclusion is reached, by this process of reasoning, the section under consideration will, in legal effect, have been amended so as to read as follows: That the council may provide by ordinance for the exercise and enforcement of the- power to preserve the peace and' good order of the city, and also to prevent breaches of the peace whether actual or constructive.

This argument, if valid, would authorize the council to punish by ordinance all offenders against the criminal laws of the state; for the violation of any criminal law is technically and constructively a breach of the peace. In the opinion of a majority of the cou3rt the peace mentioned in this section is not of the sort that passeth common understanding, and the power given and intended by the Legislature is the power to suppress and punish those minor acts of misconduct that are commonly known -and spoken of as public annoyances and disorders.

But it is useless to speculate or dispute as to what construction may reasonably be placed upon this clause of Section 1692, for the reason that the Legislature has decided that question. The power to preserve the peace is given in general terms by Section 1692, and what the council may do to secure that end is definitely and unmistakably prescribed by Section 2108.

In express terms the powers granted by Section 1692 are subject to the limitations in other parts of the same title; and this matter of preserving the peace is as fully controlled by the latter section as though it had been stated in Section 1692 that the power therein granted to preserve the peace was subject to the provisions of Section 2108. If attention is directed to the objects sought and purposes declared in the statute as to these two sections, we are brought to the same conclusion.

Section 1692 with its forty separate paragraphs and as many separate grants of power, is, and by the title at the head of the •chapter in which it stands purports to be, a simple enumeration of the powers granted to municipal corporations, while Section 2108 is, and purports by the head-note of Chapter 7 in which it stands to be, a full exposition of the power of the council as to the public peace. Nor is such specific restriction of power granted in Section 1692 by general language,- at all peculiar or exceptional in the matter of preserving the public peace. In many of the forty subdivisions of Section 1692 unqualified power is given to the council, and other provisions of the statute limit and direct the manner and extent of its exercise. The council by this section is authorized to appropriate land, t'o erect public buildings, to regulate ale, beer and porter-houses and shops, etc., etc.; and yet would any one contend that specific legislation directing how and when such power should be exercised could be disregarded by the council because in the enumeration of powers the grant is given without qualification or limit ? We believe it is a well-set'tled rule of construction of statutes that all provisions relating to a given subject are to be considered and harmonized if possible and such construction adopted as will give effect to every part and provision. If Section 1692, Par. 1, is held to confer the power to pass any ordinance that may tend to preserve the peace or prevent an actual or technical breach of the peace, then Section 2108, that purports to mark out in plain terms the path the council must' pursue to preserve the public peace, is without force or meaning. It is evident that the Legislature intended to cover the whole field of public peace regulation in the latter section and not some small portions of it; and if that has been done the attempt to extract from Section 1692 the authority contended for must fail technically as well as actually. If we are right in our position that the claimed authority must be found if at all in Section 2108, the controversy comes to an end; for this section can not, by any sort of microscopic analysis, be made to furnish authority to the council to make the crime of assault and battery a municipal offense.

It is a piece of legislation that carries the ear-marks of careful consideration. Its domain is outside of the criminal laws of the state and is a complete supplement of them in the matter of securing the peace and good order of the corporation. It embraces only such local and comparatively trifling misconduct as may cause disturbance and annoyance to citizens upon the streets or other public places; and allows the corporation to punish such misconduct although! it may be incidental to the commission of a greater offense made punishable by the state.

The concluding “otherwise” clause must, by a familiar rule, be construed as limited to acts of disturbance and annoyance similar in circumstance and character to those precedently enumerated; and it must likewise be so limited because “indecent and disorderly conduct or lewd and lascivious behavior” import such public disturbance and annoyance.

By insisting that this case should be governed and decided by the provisions of Section 2108 we do not concede that the disputed power is conferred by Section 1692; but on the contrary, we maintain that if Section 2108 were repealed or annulled by judicial construction or otherwise, the City of Wellsville would have no power to pass and enforce this ordinance for the following reasons:

1. Where an indefinite grant of power is given, such as “to provide for the general welfare,” “to make by-laws for the good government of the place,” etc., authority is not conferred upon the corporation “to make an ordinance punishing an act — for example, an assault and battery — which is made punishable as a criminal offense by the laws of the state.” 2 Dillon’s Mun. Corp., See. 302.

2. In some of our sister states the right of the Legislature to authorize municipal corporations to put on their ordinance books the criminal laws enacted by the state, and thereby cause certain offenders to be twice punished for the same criminal act is denied. Savannah v. Hussey, 21 Ga., 80.

In this state, it seems, the Legislature may in its discretion allow municipalities to duplicate all misdemeanors that are not required to be prosecuted by indictment.

Whatever disagreement may exist as to the propriety or legality of this duplication of punishment, it can not be denied that its necessity is doubtful and that in practice it may be made vexatious and oppressive.

Certainly, the fact that assault and battery is punished by the state precludes the city from claiming the right to enact this ordinance on the ground of necessity. We venture the opinion that whenever a claim is made in behalf of a corporation for the exercise of superfluous and unnecessary power it should be supported by a legislative grant so explicit in its terms as to leave no reasonable doubt or question.

3. The argume'nt that to preserve the peace is to prevent' breaches of the peace, and that assault and battery is always in law, if not in fact, a breach of the peace, carried to. its legitimate conclusion would give 'a municipal corporation the power t'o copy and pass into ordinances the whole body of.state misdemeanors. We are not called upon to discuss other provisions of Section 1692 in which power is given to prevent riots and gambling, etc., and which can have no bearing upon the question under discussion.

F. L. Wells, for the plaintiff in error.

W. F. Lones and Charles Boyd, for defendants in error.

If the Legislature had granted the power to prevent' assaults and batteries in Section 1692 and had not elsewhere in the statute limited the exercise of the power thus conferred, then a different question would be presented, and one analogous, perhaps, to the grant of power to prevent riots, etc.

But power to prevent assaults and batteries is not contained in ■the grant to prevent riots, and if any inference is to be drawn from the mention of riots and the omission of assaults and batteries in this section, it would be that power was given to punish the former and not given to punish the latter.

In this connection the inquiry is suggested why separate mention should be made of riots in this section. They are always actual as well as constructive breaches of the peace. Evidently the Legislature did not have in mind the logic of the argument advanced on behalf of the city, or did not subscribe to its soundness.

After a somewhat thorough examination of the question the majority of the court are well persuaded that the ordinance ought to be held to be void, and the judgment of the court of common pleas is therefore affirmed.

Laubie, J.,

dissenting.

A strike of the workmen of the Wellsville Plate & Sheet Iron Co.’s plant was in progress, which the prosecuting witnesses in these cases, who were workmen in the plant, would not join and on the occasion in question, were for that reason, assaulted and beaten by a body of the strikers, of whom the defendants were a part, on one ,of the public streets of the city — a small riot.

The defendant in each case was arrested, convicted and fined for violation of the first section of an ordinance entitled, “An ordinance to prohibit and punish certain offenses therein named, and for the more effectual preservation of peace and good order in the city of Wellsville, Ohio.”

The penalty prescribed was a fine only.

If acts of sufficient gravity to. constitute assault and battery can be said to be a violation of good order or a breach of t'he peace, the ordinance in question, must be upheld, as in such eases it is entirely a matter of discretion in the council whether to enact such ordinance or not. The question of the necessity for such an ordinance is therefore not' presented. The question here is whether the ordinance is embraced within the scope of the subject of the general power given in the statute, and not whether the authority to enact such ordinance is implied as necessary to carry into effect some special named power. That the -defendants had each been guilty of an actual and not a so-called constructive, assault and battery, and had thereby committed a breach of the peace, could not be and was not disputed. Under the general power conferred, the act pro-, hibited under the name -of assault and battery must be, and shown ■ to be, of such disorderly character as to amount' to a breach of the peace; and as the acts in question were of that character the validity, of the ordinance can not be questioned, and the right to punish such acts denied and taken away, because there may be other acts which are constructively brought within the definition of assault and battery which may not be of such disorderly character as to amount to a breach of the peace.

The question here is not to be controlled by the rules- applied in determining the constitutionality of statutes.

Here the only question is, was the act called assault and battery of such disorderly character as to constitute a breach of the peace ? If it was not, no offense was committed against the municipality— the ordinance was not violated. The ordinance has application only, to acts violative of the peace and good order of the city; and is, therefore, valid as against' any act of assault and battery of such character as to cause such violation.

But any assault and battery is a disorderly act, a breach of the peace, whether it be called a constructive or actual ass'ault and battery, and therefore comes within the scope -of the subjects named in the statute in question, and is covered by the ordinance.

In the absence of a given definition of a constructive assault and battery, I assume is meant such as are created by the use of violent' language, and the laying on of hands in a menacing manner, without any actual beating of the person.

What is a breach of the peace? In 1 Bou. Law Die. (Rawles Ed.), 262, it is -defined to be "A violation of public order;” an "act of public indecorum.” Lexicographers define indecorum as "An impropriety of behavior which violates the established rules óf civility, especially in public.”

I am therefore at a loss to see why every assault and battery is not a violation of good order, an act' of public indecorum, and therefore a breach of the peace.

It has even been held that the use of violent language on one’s own premises toward a person lawfully there is also a breach of the peace. 1 Bou. Law Dic., supra (50 Mo. App., 262). Indeed, the wording of the statute in question is broad enough to include all acts that tend to disturb good order, or that amount to disorderly conduct, and consequently must include any act of assault and battery.

This, of itself, should settle the question in favor of the validity of this ordinance.

But this conclusion is rejected on the ground that, if a constructive assault and battery is to be held to be a breach of the peace, it would authorize the council to prescribe and punish all acts made criminal by the laws of the state, as the violation of any criminal statute is constructively a breach of the peace.

What has that to do with the question here ?

If it has any bearing upon the question in this case, and the Legislature could delegate such authority, how could the courts interfere to annul it?

But the court (majority) has itself amply refuted the proposition in saying that in this state the Legislature may, in its discretion, allow municipalities to duplicate all misdemeanors that are not required to be prosecuted by indictment; having reference, perhaps, to Section 10 of Art. I of the Constitution, which provides that “except * * * in case of petit larceny and other inferior offenses, no person shall be held t'o answer for a capital or otherwise infamous crime unless on presentment or indictment of a grand jury;” and to the case of Dillingham v. State, 5 O. S., 289, where it is held that “this (excepted) class was intended to embrace all offenses for which a punishment less than imprisonment' in the penitentiary is provided.” So that there is a constitutional inhibition against the proposition, even if the violations of municipal ordinances are to be regarded as crimes or criminal offenses, which they are not.

It may be true that the words granting such general powers, as used in said Subdivision 1 of Section 1692, in and of themselves, may be broad and comprehensive enough to include, as claimed,murder and robbery; but it is manifest from the context, and the provisions of many other- sections of the same title, that the Legislature intended to 'and has legitimately limited the authority in such matters in municipalities strictly within the domain of police power; and the right to prescribe.and punish capital crimes, or any other felony, does not rest upon, nor is it legitimately included within, the domain of police power.

Section 1863 of the Revised Statutes, provides that the council, in addition to fines 'and penalties, may provide for the penalty of imprisonment not exceeding thirty days, for t'he violation of an ordinance of the municipality.

If the violations of municipal ordinances are to be considered crimes or offenses the same as violations of state laws, how is it possible to conceive of an intention to grant' final jurisdiction in murder and robbery, where t'he power to punish is restricted to a small fine and thirty days imprisonment ? That no such intention existed is also manifest from a consideration of Sections 1816 to 1823 of the same title.

The proper construction of said Subdivision 1 of Section 1692 leads to the same result'.

' By the established rule of construction where a general power in a statute is immediately preceded by specifically named powers, such general power is restricted to those of a similar nature to the ones specifically named; and in this instance the general power granted to provide by ordinance against -acts which disturb the “peace and good order” of the municipality -must be restricted to those which are kindred to and similar in their nature to those specifically named, as riots and gambling, and those legitimately included within the prohibition against “noise, and disturbance, indecent and disorderly conduct or assemblages,” which are all only of the grade of misdemeanors.

And the same thing is to be said of the construction to be placed on the concluding general power specified in Section 2108 of said Title 12.

The rule that statutes conferring powers upon municipal corporations must be strictly construed is not applied to cases like this.

Where the powers granted are general instead of specific, and relate to matters involving the peace, good order and morals of such communities, a liberal construction is placed upon them, and technicalities are not resorted to in order to defeat them. In such eases courts declare the ordinances invalid only when they are constrained to so hold by the strict letter of the law. As was said by Judge Scott in Canton v. Nist, 9 O. S., 439:

“We are constrained to so hold however sensible we may be of the duty to sustain municipal corporations in the legitimate exercise of the powers conferred upon them for the preservation of order, and improvement of morals, within their jurisdiction.”

In such cases, the ordinance to be invalid must either be entirely outside of the scope of the subject and .purpose of such general power, or be unreasonable in itself, or in conflict with the laws and policy of the state; neither of which objections can be successfully raised against the ordinance in question.

The claim that the power to prohibit and punish the act of assault and battery, not having been expressly conferred, can not be implied from the general power given, as assault and battery is a statutory offense, and that if tire Legislature intended to include such statutory offense it would have said so expressly, as it did in respect to riots, in my opinion is untenable. This claim seems to me not only to run counter to both principle and authority, but to be opposed to the plain letter of the statute. It is manifest from the subdivisions of said Section 1692, as well as from the provisions of said Section 2108, and from the general provisions of said Title 12, that the Legislature intended to and did confer upon municipalities the power to punish all immoral and disorderly acts, unless such acts were permitted, or recognized as lawful by the laws of the state.

But the act prohibited by the ordinance in question was not thereby made a crime, a criminal act or offense, precisely of the same kind and grade as that of assault and battery under the state laws; and to hold such ordinance valid would not legalize the punishment of an individual twice for the same crime, and such duplication can not be presumed to have been within the legislative intent under such general power.

The Supreme Court, in Koch v. The State, 33 O. S., 433, followed what it s'aid was “the general course of decisions,” and held that a “former conviction before a mayor for the violation of an ordinance is not a bar to the prosecution of an information charging the same act as a violation of a statute;” referring to Bloom field v. Trimble, 54 Iowa, 399; Minnesota v. Lee, 29 Minn., 445; Robbins v. The People, 93 Ill., 175, and Cooley’s Const. Lira., 239.

But it was not held in Koch v. State, and it is a mistake to assume that an act done in violation of an ordinance, is a crime, a where imprisonment is no part of the punishment, is a crime, a criminal act or offense as at common law, or a public offense under the Constitution or laws of the state. Indeed, the court must have held precisely the reverse, as the reverse .was what the courts held in the eases upon which our Supreme Court' based its decision. Acts violative of municipal by-laws or ordinances are ordinarily loosely spoken of as offenses, but they are not crimes or criminal acts or offenses within the legal meaning of these terms, at least if imprisonment is no part' of the penalty, although the same acts are made crimes under state laws, but are merely quasi criminal. They are not properly crimes or -offenses against the public, but violations of mere local police regulations for the violation of which a fine may. be imposed and collected by action in the name of., the municipality, and consequently a conviction under the ordinance is no bar to a conviction under the state law. They are hot identically the same crime or offense; and to be a bar, the former conviction must have been for the same identical crime or offense, as well as for the same act.

A prosecution under such an ordinance is not a criminal prosecution, but an action civil in character to, recover a fine for disobedience of a police regulation purely local in its character.

The state punishes the offender for the unlawful act of violence to the person of another; and as an offense against the dignity of the state, and the punishment is largely measured by the extent of the injury to the person of the party assaulted; while the municipality punishes, and is 'authorized to punish, solely for the s violation of good order and peace of the municipality, and the punishment' is measured by the extent of the disturbance, and not at all by the extent' of the injury to the person assaulted; so that the offenses, if both acts are such, are entirely distinct, and not the same, although arising out of the same act.

It was upon these grounds that the court in Koch v. The State of Ohio, supra, held Us heretofore stated, because it simply declared that in such cases the conviction under the ordinance was no bar, under “the general course of decisions” as established by the authorities cited. The court therefore'adopted the doctrine laid down and declared in those authorities; and a reference to them will show that they hold there could be no bar in such eases upon the grounds I have stated — that such ordinances are mere local police regulations, the violation of which is not a criminal offense, but at most only quasi criminal.

In one of these authorities, Minnesota v. Lee, 29 Minn., 445, which was a case of keeping a house of ill-fame, the whole question was gone over thoroughly and well, and the authorities referred to, and it was held that there could be no bar for the reasons I have stated, and that' therefore even the constitutional right of trial by jury was not invaded by a summary trial and conviction by the police court.

In a subsequent case in that state, Mankat v. Arnold, 36 Minn., 64, the question was again considered, and it was again held that "offenses against ordinances for the preservation of the peace, good order * * * of the community are not generally construed to be criminal cases in the proper sense of the term ‘criminal/ and proáecutions therefor are not ‘criminal prosecutions’ within the meaning of the Constitution, which refers to prosecutions for offenses essentially criminal under the general laws of the state.”

In Inwood v. The State, 42 O. S., 189, substantially the same-doctrine is announced, 'and it was held that municipal ordinances against petty offenses, where imprisonment is not a part of the punishment, are mere police regulations, and prosecutions thereunder are only quasi criminal.

In Markle v. Akron, 14 O., 587, Maride was convicted by the mayor for retailing intoxicating liquors to be drunk where sold under an ordinance prohibiting the same.

Judge Wood, in disposing of the case said that "debt” was the only appropriate remedy in such cases, and that “debt' is, in fact, the only form of action recognized by the principle of the common law for the recovery of fines, penalties and forfeitures.”

In State v. Rouch, 47 O. S., 480, this question was directly passed upon, and in announcing the holding Judge Spear said:

"It is true that in two instances Larney v. Cleveland, 34 O. S., 599, and Village of Shelly v. Boenaur, 40 O. S., 253, this court' has, inadvertently, as we think, spoken of such offenses as violations of criminal law. But they are not, strictly speaking, crimes, nor are the proceedings criminal proceedings; they are quasi criminal only. The offender does not offend against the dignity of the state; his offense is only against the municipal corporation whose ordinance he has violated.”

After referring to the holding in Markle v. Akron, supra, he continues:

“That this has been the understanding of our law-makers, the general current of our legislation attests. The legal machinery for the trial and punishment of violations of ordinances has been provided in the municipal, and not in the criminal code. * * * Offenses against the state are divided into felonies and misdemeanors — the former being such as are punishable by death or imprisonment in the penitentiary, and all others are misdemeanors. But to be either, the offense must be against the state. A violation of an ordinance not being an offense against the state, does not come within either class.”

And I may add, that in Section 1864, Revised Statutes, the Legislature has provided'that fines for the violation of ordinances may be recovered by civil action in the name of the municipality before any justice of the peace or other competent court, and directs what shall be sufficient to allege against the offender.

Not being a criminal offense, there can be no duplication of punishment, and this argument against the validity of the ordinance falls to the ground.

But however this may be, the authority to pass and enforce this ordinance is conferred by the general powers vested in municipalities by said Subdivision 1 of said Section 1692; and the fact that assault and battery was and is an offense under state laws in no manner affects the question.

Under a general power relative to a particular subject, when not otherwise restricted, municipalities may by ordinance prescribe punishment for all acts which, in any manner, relate to or affect that subject. For instance, under the power granted to preserve the peace and good order, it is universally held that they may provide against' and punish any -act amounting to a misdemeanor under state laws, which will in any manner disturb the peace and good order of the community; and this without declaring, or alleging, that it was contrary to the peace and good order of the municipality, it being sufficient, if the act alleged, in itself, would naturally disturb peace and good order. So that the ordinance in question, prescribing punishment for assaulting and bolting another, was authorized under the general power to preserve the peace and good order of the city,, as the natural, result of such.an .act was., to .break the peace and good order of the city, which it must be proved to have done in order to convict.

This subject is treated of largely in Dillon on Mun. Corp., Sections 326-341, original numbers, and eases are cited which seem to have far less connection with the subject of the general power than the case at bar. For instance, in Section 333 is cited approvingly the ease of State v. Morrill; 37 Me., 320, where it was held that a city, under a power granted to pass ordinances for the good order of the city, might impose a penalty for mutilating or destroying any ornamental tree in any of the streets of such city; and this, too, although the state law made the malicious and wanton destruction of trees grown for ornament or use a crime.

This question is also fully discussed in one of the cases relied upon by our Supreme Court in Koch v. State, supra, viz., Bloomfield v. Trimble, 54 Iowa, 399, and the principle as I have declared it fully upheld.

In that case Trimble was arrested, tried before the mayor and found guilty of the violation of an ordinance which provided that “if any person shall be found in a state of intoxication, he shall be deemed guilty of a misdemeanor.”

The act' in question was also made an offense against the state by statute. Section 456 of the Iowa Code is almost identical in language with said Subdivision 1 of Section 1692 of our Revised Statutes;.and Section 482 authorized municipalities to provide by ordinances, not inconsistent with the laws of the state, for the “order, comfort and convenience of the inhabitants thereof.” In upholding this ordinance the court said:

“It is true the statute does not especially provide that' a municipal corporation may punish persons for intoxication or drunkenness. But there are many subjects of'municipal control which are not expressed and particularly named in the sections of the Code conferring powers upon cities and towns * * * * • We entertain no doubt that under these provisions a town or city may, by ordinance, punish for drunkenness. * * * * To hold that the council, when it enacted this ordinance exceeded its powers, and was mistaken as to the effect of drunkenness in the incorporation, and that' it does not affect the public peace and order, and the comfort and convenience of the inhabitants, would, it seems to us, be contrary to the common experience of mankind.”

In Mayor, etc., of Mobile v. Allair, supra, Allair was arrested, tried before the mayor, convicted and fined for an assault and 'battery committed within the limits of the city in violation of an ordinance imposing a fine “for an assault and battery within the limits of the city,” and the same act was an offense under the state laws. The power to pass such ordinance was based solely upon the words of the statute granting the power to pass all such resolutions, by-laws and ordinances, as the mayor and aldermen “may deem requisite and necessary for the good government of said city, not contravening the laws of the state.”

The court, in an elaborate opinion, upheld the validity of the ordinance, and declared:

“The prompt suppression of riots, affrays, assaults and battery, and other kindred offenses, and the punishment of the offenders, is certainly requisite for the good government” of the city.”

A similar ease, with similar holding, is Williamson v. Commonwealth, 4 B. Mon. (Ky.), 146.

The general doctrine on the subject under consideration has been fully recognized and enforced in this state in-numerous decisions.

In Cincinnati v. Rice, 15 O., 225, the defendant was fined by the mayor for keeping open a store on Sunday and selling goods contrary to the ordinance forbidding such acts “or common labor” on the first day of the week. The defendant was a Jew, and was within the exemption provided in the ordinance in favor of those who religiously observed the seventh day of the week as the Sabbath, but the mayor overruled his defense in that regard. The ordinance was authorized solely under a general power similar to the power herein, and was almost precisely in the same words as the statute of the state against such practices; and yet' the courts upheld the ordinance, and reversed the conviction solely on the ground that the defendant was within the exemption. In the Supreme Court', in the concluding paragraph of his opinion, - Judge Hitchcock says:

“Besides, by giving the ordinance this construction, which seems to me to be the proper one, that ordinance is made perfectly unobjectionable, as there can be no pretence that it is contrary to a statute law of the state.”

In Canton v. Nist, 9 O. S., supra, the Supreme Court declared a similar ordinance void, -not upon the ground that the general and indefinite -power under which the ordinance was adopted did not' authorize it, as there was a statute making the same acts offenses against the state, but because the ordinance was inconsistent with such statute law in that it did not exempt those who conscientiously observe the seventh day of the week as the Sabbath. The significant remark of Judge Scott, in disposing of the case, I have already quoted.

In City of Piqua v. Zimmerlin, 35 O. S., 507, the question was whether the power given by statute to municipalities, in general language, to regulate ale, beer and porter-houses and shops, authorized an ordinance prohibiting the keeping open of any such house or shop on the Sabbath, where ale, beer, or porter was habitually sold or furnished to be drunk, and it was held that power to pass such ordinance was thus conferred “notwithstanding the statutes of the state made it unlawful for any tavern keeper or other person to sell or barter on Sunday any spiritous liquors,” and that it was in “complete accordance with the statutes, and with the object sought to be accomplished.”

In Koch v. State, supra, substantially the same result was arrived at. While the facts do not appear in the report of the case as published, the record discloses that the conviction before the mayor w'as for keeping a saloon open on Sunday, and the Supreme Court based its holding, without explanation, on discrimination, upon the reasoning and result in .the case of Bloomfield v. Trimble, supra, and others, as heretofore shown.

See also 11 O. S., 550, and 39 O. S., 651.

I know of no case in the reports of our Supreme Court where an ordinance was held void because the act or offense provided against was a misdemeanor under state laws.

It is only where ordinances have been found to be inconsistent with the state laws that they have been held void — never because they were consistent with, or duplicates, of such laws.

As to the holding that if such power to punish assault and battery is conferred by the provisions of said Subdivision 1 of Section 1692, it is taken away by the provisions of Section 2108, which ¡the majority hold is a. limitation upon the powers granted in said Subdivision 1, of Section 1693, I am also compelled to dissent from.

The part of Section 1692 referred to, preceding said Subdivision 1, reads:

“1692. In addition to the powers specifically granted in this title, and subject' to the exceptions and limitations in other parts of it, cities and villages shall, have the general powers enumerated in this section, and the council may provide by ordinance for the exercise and enforcement of the same.”

I am at a loss t'o see how anything in Section 2108 puts an exception to, ■ or limitation on, the power granted in said Subdivision 1 of Section 1692 to prevent disorderly conduct, and the violation of peace and good order in the municipality. -Certainly no limitation is expressed. It seems to be one of the specific grants of powers to which those in Section 1692 are declared to be in addition,

If Section 2108 "was intended to limit' the powers-epnferred by Section 1692, how is it as to riots and gambling? Instead of limiting the power as to them, -it would simply wipe out the power altogether. Án exception or limitation t'o a power is a modification of it merely, restricting its exercise in some manner, or to some extent, as distinguished from its entire destruction or elimination; yet here if no act of disorderly conduct' or breach of the peace can be prohibited by ordinance save those specifically named in said Section 2108, it would entirely eliminate the power to quell riots, the worst kind of disorderly conduct and breach of the peace, and gambling, and compel the assumption, that after expressly giving the power in the one section, the Legislature deliberately proceeded in the next to take it away. As I have heretofore shown, other sections of said Title 12 do put a limitation upon the general power granted in said Subdivision 1 of Section 1692, in that the act ordained against can not be of a higher grade than a common law misdemeanor.

But the powers granted in Section 1692, as we have seen, are declared to' be “in addition to t'he powers specifically granted in this title,” and seem to be more -of an addition to those granted in Section 2108 than said Section 2108 is a limitation as to the other, especially when it is considered that in Section 2108, according to its chapter heading, the power delegated relates solely to “vagrants and dissolute-persons,” while t'he power delegated in Section 1692 is general, and relates to all classes of persons.

The Legislature having, in Section 2108, specifically provided for the preservation of the public peace as against t'he acts of vagrants and dissolute persons in certain particulars, gave, in addition thereto, in Section 1693, a general power as to all acts of all persons involving the peace and good order, or affecting the safety of the property of the municipality, and its inhabitants; and specifically as to riots and gambling (although they would be embraced under the general power named), with authority to enforce the same by ordinance, and we do not have to look to said Section 3108, therefore, or to any other section for that authority. What the council may do to secure the peace and good order of the municipality is 'as definitely and unmistakably prescribed in Section 1693, as it is in 3108. Each section provides that the council may enforce the powers granted by ordinance.

Indeed, as to assault and battery, Section 3108 confers the power to provide ‘against it, as fully as does Subdivision 1 of Section 1693.

That section (3108) gives the power to provide for the punishment of persons disturbing the good order and quiet of the corporation, by “intoxication, drunkenness, fighting, or otherwise violating the public p,eace by indecent and disorderly conduct.”

By the use of the words “or otherwise violating the public peace,” “intoxication, drunkenness and fighting,” are declared to be acts of disorderly conduct violative of the public peace, as in fact they are; and if they are, certainly ass'ault and battery is. It must be regarded as an act of disorderly conduct equally with intoxication, drunkenness or fighting. It seems to me to be impossible to maintain that assault and battery is not an act of disorderly conduct. If assault and battery is a disorderly act of such character as violates the public peace — a kindred act to fighting — then why is it not included in the general power thus conferred by said Section 3108 ? It seems to me that it is, and that either of the sections referred to confers the power to punish acts known as assault and battery.


source: Caselaw Access Project

author: Burrows, J.

license: Public Domain

text:
    CONSTRUCTION OF THE STATUTE RELATING TO CRUELTY TO ANIMALS.
    [Lake County Circuit Court.]
    Antoinette Muhlhauser v. The State of Ohio.
    Decided, October Term, 1900.

      Procedure — Affidavit Before Justice of the Peace — An Information not Necessary — Ignorance of the Owner as' to- Cruelty a Valid Defense, When — Cruelty Statutes Framed with Reasonable Certainty— Sow the Offense should be Charged.

    1. Jurisdiction is given to justices of tbe peace under Section 3719a to proceed with the trial of one accused of cruelty to animals upon the filing of the proper affidavit, and without the filing of an information.
    2. Several offenses may be charged in the same complaint, but they must be separately stated in such a form as to provide a complete and separate setting forth of each offense.
    3. Where the owner provides sufficient help to properly care for the animals placed in their charge, and exercises reasonable care and prudence in so doing, and provides wholesome food and water in sufficient quantities, it is a sufficient defense to a charge of cruelty against such owner to show that he did not know that they were not being properly fed and cared for.
    Frazier, J.; Laurie, J., and Burrows, J., concur.
    The case of Antoinette MublHauser against the State of Ohio is a petition im error to reverse a judgment of the court of common pleas affirming a judgment of John C. Ward, justice of the peace of this township.
    A bill of exceptions was taken setting out all of the evidence, the requests to charge and the charge as given, and numerous exceptions that were taken in the progress of the trial.
    The question around which they all cluster is, substantially, a question as to the construction of the statute under which the prosecution was commenced.
    The affidavit is this:
    “Before me, John C. Ward, a justice of the peace in and for said county, personally came Sultan St. John, who being duly sworn, according to law, deposeth and saith, that on or before the 6th day of July, A. D. 1897, at the county of Lake, one Antoinette Muhlhauser and one John Curtiss, whose real name is to affiant unknown, did unlawfully and willfully torture, torment and deprive of necessary food and sustenance certain animals, to-wit,. five calves, twenty-three sheep and one heifer and two horses, by confining said animals'in a certain field there situate for the space of seven days, and did unlawfully and willfully fail to supply said animals while so 'as afaoresaid then and there confined by them with a sufficient quantity of good and wholesome food and water,, and by then and there failing and neglecting to shear said sheep, whereby unnecessary and unjustifiable suffering was caused to said sheep, and by then and there fastening about the bodies of certain of said sheep, to-wit, two rams, certain cloths in such a manner as to cause urine and excretions from said animals to soak into the wool and skin of said animals and produce a rotten, decayed,, maggoty and filthy condition, and to cause said rams great pain and suffering.”
    This affidavit was filed under favor of Section 6951 of the Revised Statutes, which provides for the punishment of several distinct offenses. But no question of that kind has been made or suggested to us, and in the view we take of this case it will not be necessary for us to analize and determine that question.
    Section 6951 reads:
    “Whoever overdrives, overloads, tortures, torments, deprives of necessary sustenance, or unnecessarily or cruelly beats, or needlessly mutilates or kills any animal, or impounds or confines any animal in any place and fails to supply the same during such confinement' with a sufficient quantity of good wholesome food and water, or carries in or upon any vehicle, or otherwise, any animal in a cruel or inhuman manner, or who keeps cows or other animals in any enclosure without wholesome exercise and change of air, or feeds cows on food that produces impure or unwholesome milk, or abandons to die any maimed, sick, infirm or diseased animal, or, being a person or corporation engaged in transporting live stock detains such stock in railroad cars, or in compartments for a longer continuous period than twenty-four hours after the same are so placed, either within or beyond this state, without supplying the same with necessary food, water and attention, ox-permits such stock to be so crowded together as to overlie, crush, wound or kill each other, shall be fined not more than two hundred nor less than five dollars, or imprisoned not more than sixty days, or both.”
    It is insisted that' the justice had not jurisdiction tc trj and determine the case, and that it was error to proceed to trial upon the affidavit, without filing an information.

      Jurisdiction is given the justice by the following sections of the Revised Statutes. Section 3718 reads:
    “Such associations may appoint agents for the purpose of prosecuting 'any person guilty of any act or cruelty to persons or animals within this state, who shall have power to arrest any person found violating any of the provisions of this chapter, or «any other law for the purpose of protecting persons or animals, or preventing any act of cruelty thereto, and upon making such arrest, such agent shall convey the person so arrested before some court' or magistrate having jurisdiction of the offense, within the municipal corporation or county wherein the offense was committed, and there forthwith make complaint on oath or affirmation of the offense; but all appointments by such associations under this section must have the approval of the mayor of the city or village in which the association exists, and if it exists outside of any city or village the appointments must be approved by the probate judge of the county.”
    Section 3718a provides:
    “Any justice of the peace within his county and city, and police judge or mayor of any city or village within liis city or village, shall h'ave jurisdiction in cases of violation of the laws to prevent adulteration of food and drink, the adulteration and deception in sale of dairy product's, and drugs and medicines, and any violation of the law for prevention of cruety to animals or under Section 6984 of Revised. Statutes, or Section 6984a. thereof, as herein enacted.” (Section 6984a prohibits the employment of children in certain occupations.) “If such prosecution be before a justice of the peace and a trial by jury be not waived,” — there is a provision made in this section for the impanneling of a jury for the trial of the defendant.
    I do not desire to read of those sections bearing upon it, but' shall merely refer to them.
    Section 3719 provides that magistrates may authorize an examination of certain places for the purpose of detecting any violation of law in regard to animals.
    Section 3719a provides that sheriffs, constables, marshals, police officers or any agent for any duly incorporated society for the prevention of cruelty to animals, when they have reason to believe certain facts enumerated, may arrest persons they have reason to believe are about to violate the provisions of Section 6952 of the Revised Statutes, and take them before a magistrate named in Section 7106, who, upon t'he proper affidavit being filed, shall hear the- witnesses produced under oath, etc.
    Section 3720 provides, an officer, agent or member of any such association may interfere to prevent the perpetration of any act of cruelty to animals in his presence.
    Section 3722 provides that “a member of any such association may require the sheriff of any county, the constable of any township, the marshal or policeman of any city or village, or the agent of any such association, to arrest any person found violating the laws in relation to cruelty to persons or animals, and to take possession of any animal cruelly treated, in their respective counties, cities or villages, and deliver the same to the proper officers of such associations.” It then provides for compensation to such officers.
    Section 3723 provides “A person guilty of cruelty to an animal, the property of another, shall be liable to the owner thereof in damages, in addition to the penalties prescribed by law.”
    Section 3724 provides “The conviction of an agent or employe shall not bar an action for cruelty to animals against an employer for allowing a state of facts to* exist which will induce cruelty to animals on the part of such agent or employer.”
    Section 3725 provides that “Whenever it may be necessary, in order to protect -any animal from neglect, any person may take possession of the same; and whenever an animal is impounded, yarded or confined, and continues without necessary food, water, or proper attention for more than fifteen successive hours, any person may, from time to time, and as- often as it may be necessary, enter into and upon any place in which said animal is so impounded, yarded or confined, and supply it «with necessary food or water and attention, so long as it there remains, or may, if necessary or convenient, remove such animal, and shall not be liable to any action for such entry; in all cases the owner or custodian of' such animal, if known, shall be immediately notified of such action by the person taking possession of such animal; if the owner or custodian be unknown, and can not be ascertained with reasonable effort, such animal shall be held to be an astray, and shall be dealt with as such.”
    I have referred to sections following 3718a under the rule that in interpreting a statute we may look not only to the words of the section, but to all the provisions of the statute upon the subject. A statute m'ay be considered as not limited by the words, but the words may be qualified by ascertaining the meaning of the Legislature in the enactment of the law.
    It is urged that' the justice before whom the action was tried erred, first, in holding that he had jurisdiction under the affidavit without there being filed an information. The statute provides only for the filing of an affidavit, and no information other than the affidavit is necessary to put the defendant upon trial.
    It is claimed the justice erred in the rejection of evidence and in the charge as given, and in the refusal to charge.
    I might consume time by referring t'o authorities, but I shall content myself with referring to but 'a few, and without stopping to read them.
    The affidavit charges the act as being willful. It is claimed, however, in argument before us and also as the trial proceeded before the justice, that it was neither necessary for the prosecution to show willfulness, nor was it any defense for her to show that she did not know of the acts complained of; that it was no defense to her to show that she had employed a person who was recommended to her as being kind to animals; that she had provided sufficient food for the animals; that she had no knowledge of their being destitute of the proper food and water, or that she had no knowledge of the circumstances or conditions complained of.
    It appears from the evidence that her co-defendant, or the person jointly charged with her in the affidavit, had been employed by her as the foreman upon her farm. That relation continued up to the time of the arrest.' The testimony shows that immediately after the arrest he left her employ. Mrs. Muhlhauser was alone put upon trial and her late foreman and manager was called as a witness for the prosecution.
    The testimony shows her farm contained from one hundred and seventy-five to two hundred acres; but a comparative small portion was that year being cultivated in growing crops. The animals mentioned in the affidavit were being kept in a small field, in a remote part of the farm; that by reason of drought the water in the field, which ordinarily afforded a sufficient supply, failed; and for the same reason and because of the number of animals confined in the field the pasture failed, not a sufficient supply of grass; and thereby were deprived of a sufficient supply of food and water; that on portions of the farm there was a sufficient quantity of good wholesome pasture and water of a suitable kind for their support.
    The testimony shows Mrs. Muhlhauser is a widow lady, who, when the city schools were in session lived in Cleveland, where her children attended school. That during vacations she was upon the farm in Lake county. She testifies that in the latter part of June she was sick in Cleveland, not being able to dress herself; and not upon the farm, except on Saturday before the Fourth of July she had her driver take her to the farm where she stayed over Sabbath; that she did not go out on Sabbath day and did not see the animals on that occasion; that she had not seen them since about the first of June; that she believed her foreman was looking after them, and would properly care for them.
    There 'are some discrepancies between the testimony of Curtiss and that of Mrs. Muhlhauser. He evidently is willing she should be convicted. He testified he was in charge of the farm, had its management and the care of the live stock on it, including the ■animals in question; that he spoke to her 'about the shearing of the sheep, and she was not willing to pay the price that would have to be given, but wanted the men on the farm to shear them. He claimed to be a farmer; was raised on a farm; had shorn sheep on his father’s farm; and he did afterward shear some of these sheep. Yet with five hands employed on this farm, four beside himself, he wanted other help to shear the sheep. She insisted she would rather the mem on the farm would shear them and not hire outside help, and they did finally shear them.
    He testified that on 'a Sabbath when defendant was at the house, he drove her in a carriage over the farm, and past the field where the animals were; but does not fix the time. He testifies that at the time the animals were turned in the field there was a sufficient quantity of good wholesome water and pasture of a suitable kind and quantity for their suitable food and support, and that he did not at any time know they were in the field without a sufficient supply of water and food of a suitable kind for their support.
    The case was tried by the complainants and the justice on the theory that if the defendant was the owner of the animals and they had mot a sufficient supply of food and water or suffered from other acts of neglect or other acts of cruelty, she should be found guilty. The justice refused to admit' evidence offered by defendant to show want of knowledge by her of the matters complained of.
    The charge is misleading and not applicable to the facts. It might have been applicable and relevant if the animals had been impounded or confined by her and she had failed or neglected to furnish them with food and water.
    The justice, as requested by the prosecution, charged the jury ■that they “should find the defendant guilty provided they found •she was the owner or had control and management of s'aid animals,” and also charged, “It is no excuse that she did not know they were without sufficient food and water; it was her duty to inform herself of their wants, and a failure to do so would result in cruelty to animals, for which you should find her guilty.”
    Counsel for defendant requested the justice to charge “If it be shown by the evidence that the defendant employed help to take charge of her said animals, and in making such employment she •exercised ordinary prudence, skill and judgment * * * she is not required by the law of the land to personally inspect or visit them * * * provided she left or placed within their control the means necessary for the proper care of said animals;” which requests justice refused to give, and did not give either as requested or in substance.
    The affidavit charges the acts as done willfully; to be willful, they must have been knowingly and purposely done. The presumption is in favor of innocence. We know of no case where an act is held criminal, unless the intention accompanies the act, either •expressly or is necessarily inferred from the act itself. “Ignorantia facti doth excuse for such ignorance, many times makes the act itself morally involuntarily.” 1 Hales P. C., 42 (Such ignorance must be of fact, not of law).
    To warrant a conviction there must have been both will and act entering into the transaction. The fact that she was wholly ignor.ant of the matters complained of; that she was free from all knowledge or intention of violating the statute, would constitute ,a valid defense to the charge.
    The act made criminal by the statute must be knowingly done. In support of the foregoing propositions I cite, without stopping to read from them: Anderson v. State, 7 Ohio, pt. 2, 250; Birney
      v. State, 8 Ohio, 230; Miller and Gibson v. State, 3 O. S., 475; Farrell v. State, 32 O. S., 456.
    It is insisted the holdings below are warranted by the decisions under the act to provide against the adulteration of food and drugs. Shauck, J., in State v. Kelly, 54 O. S., 166, 178, says of that act:
    “The act is not a provision for the punishment of those who sell adulterated food and drugs, because of any supposed turpitude prompting such sales as indicated by them. Its purpose is indicated by its title. It is an act to provide against the adulteration of food and drugs. It is a plan devised by the General Assembly to protect the public against the hurtful consequences of the sales of adulterated food and drugs, those consequences being in no degree increased by the vendor’s knowledge, or diminished by his ignorance, of the adulteration of the articles which he offers for sale.”
    The judgment' of the court of common pleas and the judgment and sentence of the justice is reversed and the cause remanded to the justice for the reasons that the justice erred in rejecting evidence offered by defendant, and in the charge as given and in refusing to charge .as requested, and that the evidence does not support the verdict.
   Burrows, J.

Upon the argument of this case, our laws for the prevention of cruelty to animals received a large measure of criticism from counsel; not, however, as to the policy or propriety of such laws, but it was charged that these laws had been so carelessly and bunglingly framed as to render their meaning uncertain and their enforcement difficult. Upon a pretty careful examination of our statutes upon this subject we are inclined to think that such criticism is unjust and that these laws were framed with reasonable certainty and can be enforced without any serious difficulty.

To accomplish the end in- view by the Legislature the repression of the brutality of man in his treatment of dumb animals — the use of such general words as “torture” and “torment” were not only proper but unavoidable. But their meaning 'as used in these statutes is specifically defined in Section 3721, which provides:

“The words torment, torture, and cruelty shall be held to include every act, omission or neglect whereby unnecessary or unjustifiable pain or suffering is caused, permitted, or allowed to continue when there is 'a reasonable remedy or relief.”

Section 6951 malees the commission and omission of various specific, acts criminal, and then, in addition to these specific acts, makes it an offense “t'o torture or torment” any animal. Over-driving, overloading, depriving of necessary sustenance, unnecessarily or cruelly beating, needlessly mutilating or killing, keeping in an enclosure without wholesome exercise and change, of air, etc., etc., are all separate offenses, and the complaint for such offenses should specify the acts done or omitted so as to describe and identify the transaction with reasonable certainty; while the prosecutions for torturing or tormenting animals should not only use one or both of these words but should give the acts of omission or cemmission which constitute the torture or torment of the animal, with the allegation that such acts caused unnecessary or unjustifiable pain or suffering to such animal, unless the acts themselves describing the offense necessarily make it evident' that such pain or suffering was caused thereby.

While several of these separate offenses may undoubtedly be charged in the same complaint, they must, however, be separately stated, so that there shall be 'a complete and separate statement of each separate offense.

For ah illustration, let us take the complaint in this case and examine it for the purpose of determining, if we can, what offense or offenses, if any, are properly charged therein. It alleges that on the 6th day of July, 1897, Antoinette Muhlhauser “did unlawfully and willfully torture, torment and deprive of necessary food and sustenance certain -animals, to-wit, five calves, twenty-three sheep and one heifer and two horses, by confining said animals in a certain field there situated for the space of seven days, and did unlawfully and willfully fail to supply said animals, while so as aforesaid then and there confined by her, with a sufficient quantity of good and wholesome food and water.”

More than one offense is attempted to be described, in what I have read, and two more offenses follow in the same sentence which I have not read. So many different offenses are confused and conglomerated in this one charge that it would be impossible to make any distinct offense out of the entire complaint, except by picking out' and putting together phrases here and there, and holding the rest to be surplusage. It is charged that she deprived certain animals of necessary food 'and sustenance for the space of seven days, which constitutes under this statute an offense; but this charge is qualified by the statement that such animals were deprived of food and sustenance by confining them in a certain field and then failing, while they were so confined, to supply them with a sufficient quantity of good and wholesome food and water. Confining or impounding animals and then failing to supply them with sufficient quantity of food and water, and depriving them, of necessary food and sustenance when mot confined or impounded, are distinct offenses. In this case the charge of depriving them of necessary lood and sustenance is merged or submerged in the charge of failing to provide them with sufficient quantity of good and wholesome food and water when they were impounded or confined.

The charge of confining or impounding was not sustained by the proof, and it is doubtful whether it was well charged by the allegation that they were “confined in a certain field.”

There is an attempt to charge cruelty in failing to shear the sheep, and the further charge is attempted to be made that two rams were tortured, but neither of these offenses can be held to be properly charged except by expunging all that precedes these separate charges and connecting each of them with the opening phrase ■“did unlawfully and willfully torture.”

There was no difficulty in making these four separate charges, t'o-wit: That the accused unlawfully deprived certain animals of necessary food and sustenance; that she impounded and confined •certain animals, describing them, for 'a certain time and then failed to supply them with a sufficient quantity of wholesome food and water; that she unlawfully tortured and tormented certain sheep by leaving them unshorn; and that she tortured and tormented two certain rams in the manner described in the complaint.

I make these suggestions not for the purpose of criticising the •complaint in this case, or because it is necessary that anything should be s'aid to supplement the comprehensive opinion of Judge Frazier, but solely for the purpose of promoting, if possible, the proper enforcement of these just and humane laws.

Tuttle & Tuttle and B. L. Hessenmueller, for plaintiff in error.

Bosworth & Hammer, for defendant in error.


text:
    LIMITATION OF LIABILITY BY A CARRIER..
    [Circuit Court of Lucas County.]
    The Pennsylvania Company v. Christian C. Yoder and James H. Sullivan.
    Decided, July 3, 1903.

      Pleading — Live Stock Injured in Transit — Liability of Carrier Limited in Bill of Lading — The Ohio Buie — Burden of Proof as to Negligence.

    1. The rules of pleading require that where one desires to rely upon a modification of his common law liability, the stipulations in the contract in which the modification is incorporated should be pleaded; but the contract in this case having been introduced in evidence, and the questions raised by it argued and considered without objection, it was considered by the reviewing court, notwithstanding its terms were not sufficiently pleaded.
    2. A limitation in a bill of lading, as to the amount that may be recovered in case of loss, is not valid or binding, where the loss is due to the negligence of the carrier. Bailroad Co. v. Simon, 15 C. C., 123, not followed.
    3. The burden of proof is upon the railroad company to show that injuries to live stock while in transit were not due to its negligence, where it appears that the car containing the stock was roughly handled.
    Parker, J.; Haynes, J., and Hull, J., concur.
    Error to the Court of Common Pleas of Lucas County.
   The action in the court below was by Yoder and Sullivan against the Pennsylvania Company to recover on account of the loss of two horses which had become injured in being conveyed over the road of the defendant company, by the defendant as a common carrier, so that upon the arrival of the horses at destination one of them had to be killed by order of the humane officer, and the other was so injured that it died in the course of eight or ten days. These horses, with several others, were shipped from Indianapolis, Indiana, t'o Toledo, Ohio, over the Pennsylvania road and were brought around by the way of Mansfield, Ohio. The bill of lading provides for t'heir transportation over this route and their delivery at this city, and because of the’ provision that they were to be delivered here and that part of the contract was to be performed in Ohio it became an Ohio contract and subject to the rules applicable t'o such contracts laid down by the courts of Ohio.

The plaintiffs in their petition not only aver the facts showing that these horses were received by the defendant company as a common earrier-^whieh-devolved'upon the company the duty, of bringing the horses through in safety — but they aver that the injury to the horses was due to the negligence of the company, and this averment, if sustained, would have an influence upon the measure of damages.

The recovery in the court below was for $275 for the two horses, though the bill of lading contains a provision that the liability of the carrier for loss of horses shall not exceed $100 for each horse. That provision of the bill of lading not only fixes a valuation in case the horses were injured or destroyed without the company being at fault — without its being negligent — but even in case it were negligent, that provision and the insistence of the company that that was a valid limitation, presents one question for the consideration of ’sbis court.

The answer of the defendant denies the negligence charged and avers that the horses were loaded into the car by the plaintiffs and were in charge of said plaintiffs while in transit, and that' “said horses were loaded by the plaintiff in said car in a negligent and careless manner, in that said horses were placed loose in said car and were not tied or fastened in any manner while they were therein, and that any damage which said horses may have sustained in shipment was caused by said negligent and careless loading by the plaintiff and without the fault or negligence of defendant.” And the rule laid down by the trial judge as to the burden of proof upon these charges of negligence and contributory negligence presents another question for the consideration of this court in this case.

The answer does not set forth the terms of the bill of lading which are relied upon here as a modification of the common law liability of the railroad company. We are of opinion that the rules of pleading require that, in order that advantage may be taken of those special stipulations — they should be pleaded; but' the bill of lading having been introduced in evidence, without objection, and these questions apparently presented and considered without objection, and it having been argued here as if they were presented in due form by the record, we have considered them without regard to the fact- that the terms of the contract may not be sufficiently pleaded.

One of these specifications I have already adverted to — that' is, that the liability of the shipper was to be limited to $100 for each horse, even though the company were guilty of negligence in conveying the horses.

Another provision that was discussed by counsel'is-this:-.

“That the said shipper is, at his own sole risk and expense, to load and take care of, and to feed and water said stock whilst being transported, whether delayed in transit or otherwise, and to unload the same, 'and neither said carrier nor any connecting carrier is to be under any liability or duty with reference thereto, except in the actual transportation of the same.”

Also:

“That the said shipper is to inspect the .body of the car or cars in which said stock is to be transported, and satisfy himself that they are sufficient and safe, and in proper order and condition, and said carrier or any' connecting carrier shall not be liable on account of any loss of or injury to said stock happening by reason of any alleged insufficiency in or defective condition of the body of said ear or cars.”

There are other provisions in the contract that seem to contemplate and provide for some degree of care of t'he stock and some degree of assumption of risk upon the part of the shipper and for relieving the carrier to some extent from liability that it would have assumed had it undertaken to bring ¿he stock through safely and to take care of it in all respects. Now it seems that the ear was loaded at Indianapolis by the shippers. In this car were placed at least twelve horses. Two partitions were put into the ear; one end was partitioned off for a certain team of horses and that team was put into that end. They were not injured. The other end of the car was partitioned off by the shippers, and in that end was placed this animal which the humane officer required to be killed upon its arrival here. In the space between these partitions were placed nine horses; and it is said that sufficient room was left so that they could be . properly loaded, that is to .say, put in so closely that they-could stand at ease but could not move about so as to get down or turn around or trample upon or injure each other. The horses which were in the end of the car were tied. The horses in the middle space were not tied. It seems to be fairly shown by the preponderance of the evidence that these horses were properly loaded into the car, and that proper provision was made by the shippers for their safety. Witnesses say that these partitions so put in by the shippers were built strongly, of oak plank, studding and other material. It seems that upon the arrival of the car here the partitions were down, one of them entirely, and the other perhaps only partially down, and that the partitions being down 'allowed the horses to move about — that they were not kept confined but left in a position where they might injure one another. There is testimony tending t'o show that the knocking down of one of these partitions was due to the rough handling of the car by the railroad company between Mansfield and Toledo. One of the partitions seems to have been down upon the arrival of the car -at Mansfield. It would seem as if proper care for these horses upon the part of the persons who accompanied them would have required upon their discovering, as they did, that one of these partitions was down at Mansfield, that they should have seen to its re-erection before the car was -allowed to proceed further, but it is not apparent from the record that they had an opportunity to do this or that they had sufficient time or that they had the facilities, while the car was being transferred from the main line at Mansfield onto this branch line to Toledo to be brought through. On the way from Mansfield to Toledo the car was put into a train of coal-cars, and it seems it was pretty roughly handled. The horses appear to have received no injury up to the time the train arrived within thirty or forty miles of Toledo. They were then seen by the shipper accompanying them and he discovered nothing wrong with them. The car arrived here quite early in the morning on the day following their shipment from Indianapolis. Later in the morning the shipper and his assistants went to unload the ear and found the horses injured as I have described.

Upon this state of facts the court .charged and held that the burden of proof rested upon the railroad company to show that the injury was not due to its negligence in the premises, and we think that in this holding the court followed the rule laid down by the Supreme Court of this state, in'the case of Union Express Co. v. Graham, 26 O. S., 595, where it is said that':

“When a common carrier claims immunity for the loss of goods with which he had been intrusted, on the ground that such immunity is secured by a special agreement, the burden is on him to prove that the loss was occasioned without his fault.”

I also refer to the case of U. S. Express Co. v. Backham, 28 O. S., 144, where it is said:

“In an action on the ground of negligence against a common carrier upon a bill of lading containing an exemption from liability from loss by fire, the burden of proof is on the carrier to show that the loss occurred within the forms of the exemption, and that the loss occurred without fault on his part.”

Other cases are referred to in the opinion in the case last cited.

The trial court also held that this limitation upon the amount that might be recovered in case of loss was not valid and was not binding if the loss were due to the negligence of the railroad company; and herein we think the court' followed the law as laid down by the Supreme Court of this state. Upon that subject I cite again the case of U. S. Express Co. v. Backham. I say, as laid down by the Supreme Court of this state, for the reason that the rule of this state is not' the rule generally prevailing in the United States and is not the rule that has been laid down by the Supreme Court of the United States, but it seems to be adhered t'o by our own Supreme Court, and, of course, for us, is the law of this case. The views of the Supreme Court -of the United States upon the subject' are very fully expressed and a very full line of authorities cited in Hart v. Pennsylvania, Company, 112 U. S., 331.

In the case of Railroad Co. v. Simon, decided by the Circuit Court of Darke County, 15 C. C. Rep., 123, opinion by Judge Summers, there is a distinction based upon the knowledge of the carrier of the value of the stock being shipped or the property being shipped, which might, perhaps, be applicable to this case, and the court held there that:

B. W. Kirhley iamd E. W. Tolerton, for plaintiff in error.

8. H. Kelly and John M. Carr, for defendant in error.

“A contract of carriage, fairly made and signed by a shipper, agreeing upon the valuation of the property carried, with the rate , of freight' based on the condition that the carrier assumes liability only to the extent of the agreed valuation, will, even in case of loss through negligence, be upheld, and the shipper limited to the agreed valuation.”

Notwithstanding .the very able discussion of the cases and efforts at distinguishing the cases, it does not seem to us to be quite in harmony with the decisions of our Supreme Court upon the subject, and we feel impelled to follow the rule laid down by the Supreme Court in the cases cited. I will read a paragraph or two from the case of U. S. Express Co. v. Backham, 28 O. S. Rep., 144, commencing at page 155:

"The Ohio cases hereinbefore cited make it dear that common, carriers can not, by contract, exempt themselves from liability for full damages for a loss occasioned by their own negligence or that of their servants. No more can they legally stipulate for a partial exemption from liability caused by like negligence. The public policy that 'avoids a contract for total exemption, will hold a contract void that provides for partial exemption in such case. The fact that by reason of such contract' the carrier undertook the transportation of the goods for a diminished reward will avail him nothing.”

And more to the same effect. In this ease there is some evidence of negligence — enough so that the burden to disprove negligence rest's upon the carrier and we think it can not be said that the verdict is against the weight of evidence, and finding that the rules of law laid down by the court in its charge are correct, the judgment of the court below will be affirmed.


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    CONVEYANCE OF ELECTRICITY ACROSS A STREET WITHOUT PERMISSION OF THE MUNICIPAL AUTHORITIES.
    [Hamilton County Circuit Court.]
    Henry v. The City of Cincinnati.
    Decided, June 18, 1898.

      Abutting Owners — Rights of in the Street — May Use Space Above and Beloio Street Level, Notwithstanding Section 3471a, R. S., When— Electrical Wires Stretched Across the Street — Extent of Municipal Control.

    1. A city has full control of the use and occupation of the streets; but the abutting property owners are vested with the fee of the land extending from the center of the earth, upward between the lines of their lots produced to the center of the street.

      Z. The city has no control over such portions of such land and air as are not available for street purposes. A street in this connection includes not only the surface of the land, but also the land beneath the surface for such distance as it may be availed of for the laying of pipes, sewers, cisterns, conduits, or any known municipal purpose; and so much of the air above the surface as may be required for light, transportation, poles, wires, or other known municipal purpose.
    3. Section 3471a does not alter the foregoing, for it limits the inhibition to “streets”; and the land below and the air above such depths and heights as are or may be required for known municipal purposes are held in fee by the abutting property owners, and are in no sense a portion of the street or subject to municipal control.
    4. Quite within this right is the stretching of a wire from the property of one abutting owner to another across the street, at a height of eighty feet, for the conveyance of an electric current, where the arrangements for conducting and using the current are in conformity with the ordinances of the city in that regard; and the city is without power to remove such wire, notwithstanding it may have been put in position without the consent of council as required by Section 3471a, R. S.
    Sibley, J.; Russell, J., and Cherrington, J., concur.
   Tbe action below is a case in chancery, seeking relief in injunction. It' seems that the plaintiff, trustee, is the owner of certain real estate in this city, in one block, and in connection with her business thereon has made some sort of small electric plant, to be used for her own purposes, and has proceeded to extend the use of it to some of the neighbors within the block who wanted the benefit of the light, which she could furnish. That is one aspect of the ease. Across the street from the plaintiff is another neighbor who wanted some benefit of this light, and so all arrangements were made. Wires at the height of eighty feet were stretched across the street — from house-top to house-top, about eighty feet above the street. The main body of the evidence is practically one of an agreed statement of facts; that the plaintiff is the owner; that these arrangements have been made; the wires are suspended for use, with a view to use, and that she is 'an abutter upon this street; that the arrangements for the use of this electricity, or the conducting of it for use to others, are in perfect conformity with the requirements of the ordinances of this city, regulating the use of the electrical power for lighting, furnished under the general authority of the state by others.

The sole contention on which the case is made to turn, is, that no right to do this has ever been granted by the ordinance of council. It is agreed the regulation of the' use by plaintiffs are rather in harmony with the requirements of the city in that regard, and it at last resolves itself into the question whether they can make this use in the two features specified without the permission of the council. That resolves itself finally into what is the property right of a citizen under such circumstances in a city like this.

.Plaintiffs don’t dispute the proposition made on behalf of the city that it is within the power to regulate the use, prescribe the mode and manner, with a view to such regulations as are necessary for safety and for the proper consideration of the general interests and rights that belong to citizenship in a municipality. One point of contention was that council has not authorized this, refuses to authorize it, and now threatens to cut'down and tear away these wires. The lots are described 'as lots on that avenue, and we take it from the evidence, enough is shown to make it apparent that they are parts of a piece of land formerly abutting upon the old road, and therefore abutters on the street, and they are the owners of the fee to the center of it. The mere fact that a man sells a lot here, perhaps by metes and bounds as to the line- of a street, would not necessarily accomplish that result, so far as the title is concerned. A case is cited in 40 O. S., -page 332, oh that point. That, however, was where a party undertook to make a dedication, lay out an addition and make a dedication of streets, and it never was accepted, and the court held that the dedicators did not in effect describe the lot, as bounded by an alley, but by the east line. The rule in the construction of deeds making a stream or a road or a way the boundary does not apply. That, was a case where they sought to estop the dedicator, and it does not militate against the general effect of the evidence here, that this plaintiff may be regarded as the abutting owner, holding, at least so far as the city is concerned, the fee of this land which has been dedicated to a public use of this nature.

Prior to going into the two points that I wish to state shortly, a statute passed in 1896 is cited with reference to such cases, and some one interested procured an amendment to Section 3471, designated) 3471a, which provides, that in order to subject the crossing of lots and alleys by persons in the way that is set out in this petition, through their own private arrangements to subject the same to municipal control, no person or company shall place, string, construct and maintain any line, wire, fixture or appliance of any kind for conducting electricity for lighting, heating or power purposes, through any street, alley, lane, square, place or land of any city, village or town, without the consent' of such municipality, and this inhibition shall extend to all levels, above and below the levels of such public way, as well as along the surface thereof.

Now, it may be said, in the first place, that this does not take it' “through” a street. If I go “through” a street that is one thing. If I cut across the street that is another. This says through a street, and it does not say across, but be that as it may, manifestly from the language of the proviso, it has a prospective effect on this act which has already been done, and which the city seeks to strike down, in view of the authority claimed to be vested in it. Furthermore, there is a penalty attached. It' is made' a criminal act, but I don’t see that that aids the city any. If that is a valid statute against the property owners’ right, and the maintenance of those wires violates it, the party becomes subject to the penalty.

All that is involved here is whether or not the city is authorized in virtue of its general municipal authority over streets, and as against the property right of an abutter upon a street, to tear the wire down. It is a case not free from difficulty perhaps, but we have considered it pretty fully, and this court is rather inclined to be with the property owner than with the city on this point.

What is a street to begin with? That' is the first proposition to be determined. The city has plenary power to control its streets, in the exercise of a proper discretion, as to what is needed for the general welfare of the city, and of those who shall use the street's. That authority is unquestionably conferred by statute, but it leaves open the question, what is a street. Is space ten thousand feet above any part of the street? If it is, the city can regulate the flying of balloons ten thousand feet above the street, if they cross ■the street, or make it a penal offense to fly a balloon along a street in this city, at the height of ten thousand feet above if. Can the city prevent the owner of the fee from penetrating the soil from his lot, a depth of a hundred feet out under the street ? Is that any part of the street ? If the city were invested with the fee for street purposes, would that be any part of the street ? The street is what the city has control of. It has not the control above the street, except under limitation. Now, I don’t mean to imply that the mere naked surface is the street, or that the depth under it, to which a pavement may be laid alone, is the street, or that ten feet • deep is no part of the street for purposes of control. The proposition we lay down and conceive to be law is this: the surface, with as much of what underlies if, as is requisite for all the street uses, that are known, to the period in which the street is occupied and used, not merely for travel upon it, but for sewerage purposes— . nowdays for gas pipes and water pipes, and all things of that sort, within whatever depth is necessary for the purposes of the proper construction; and if the city were to see fit to tunnel, for the purpose of a tramway as is done in some parts of London, to the extent requisite for that, if it 'arose out of the necessities of travel, and subject to the right of use of this kind, to the extent necessary for the full and complete and safe enjoyment of the streets, in the modes in which it' may be used, the city has, I say, a complete and plenary power over them, for the purposes of control, and beyond that it has nothing. So if I go up a thousand feet above the streets of this city, I don’t regard myself, although I may sustain myself by balloon or otherwise above the street', as being in it, and if I am the owner of an adjoining lot and see fit to dig a hole that will go down a hundred feet right under the street, at the end of it, and I go down there and occupy for proper purposes, in such a way that in nowise injures the street, I am not in the street; I am under the street in the one case, and I am above it in the other.

Now a court don’t draw fine lines upon this proposition as to the height or depth perhaps, and when the present ease is cited it becomes apparent that a hundred feet below the surface is no part of the street, except as a right of support to if, and a thousand feet above the street is no part of the street, because it is too far for any practical regulation or control of the street; but fifty feet above, it may be. In modern buildings one hundred feet may be— two hundred, three hundred, for I believe erections of that height are found in some of the great cities of the country, and if we were to get a style of building that would carry us into the Eiffel Tower line of construction, we might go a thousand feet above, and the city have certain purposes of regulative control. Now the city says in effect, by its contention here, that when a private owner uses the street for the purposes of a wire to cross it, in order to convey electrical fluid which he is to generate, and passes it across the street to an adjoining owner, in conformity with the city regulations in regard to the management of that form of business in the city, which the petition shows is conducted here, and conducted largely and widely — this is not the introduction of a new use by the private owner, but it is a common use, which he seeks to exercise, by crossing at that height, precisely as the city provides in its ordinances may be done by others, so that if the private owner has the right to use, there is no contention that he has not formed with the regulations for the use, or the mode in which me city has prescribed.

I don’t find anything, any authorities, except general propositions that are in the books, that aside from what is necessary to the city’s use of the streets, not only for actual occupancy, but for regulative control, indicating the private owner has no rights; he may dig his hole underneath the street, and as we think he may make his use above it if he sees fit until you reach the line of the limit of use, or if it is still within the city’s control as to the mode of use.

Coffey, MaJlon, Mills & Vordenberg, for plaintiff.

Corporation Counsel, for defendant.

But the city seeks to have a right to monopolize this use, to absolutely deny it to the private owner. That is the real point' in contention. Now, what we think is, that the private owner may use the street in any way that is permissible by the ordinances of the city, so far as the mode of the use is concerned, where it is utterly impossible that it shall contravene any right of the city in its actual occupation and use. Now, that is the case here, and there is not anything in the authorities that perhaps exactly touch it. Only on general principles we have resolved it. We place it upon the ground! that the property owner h'as a right to use it' in any way that does not contravene the city\ use, and that conforms with its regulative control as to the mode of use. Upon that point there is no dispute between us. It is not worth while to prolong the discussion. It is not worth while for us to go into hair splitting distinctions on -the authorities in the books. It is not our habit when .we find a case resting upon a clear basis of principle and general doctrine, to spend time in undertaking to say that this case resolves this precise point, and that one that. We don’t regard it as our purpose to try and enlighten counsel in regard to the specific effect of our decisions, in order to make a general exegesis of all the cases that might in some remote way touch the matter. We think the decree of the court below substantially gives the relief to which the plaintiff is entitled, and that decree may be entered in this court.