author: CARPENTER, J.

text:
    APPEAL — DIVORCE.
    [Lorain (8th) Court of Appeals,
    March 20, 1916.]
    Meals, Grant and Carpenter, JJ.
    Benjamin F. Varsey v. Lillian Varsey.
    Order iij Divorce Proceedings Affecting Custody of Children Held Appealable.
    The custody of children is inherently equitable in its nature and within the term -“Cases in Chancery” in Art. 4. Sec. 6 of the constitution establishing the court of appeals; hence, notwithstanding Sec. 12002 G. C. denies the right of appeal in divorce with certain exceptions, in which custody of children is not excepted, appeal does lie to an order in a divorce proceeding affecting the custody of minor children.
    Appeal.

      C. G. Washburn, for plaintiff.

      David Perris and Wm. G. Stuber, for.defendant.
   CARPENTER, J.

The defendant has appealed this ease to this court so far as the decree of the court of common pleas relates to the custody of Russell Albert Varsey, minor child of plaintiff and defendant.

The question before this court arises out of the motion of the plaintiff to dismiss the appeal, for the reason that this court has no jurisdiction to entertain the same, by reason of its not being appealable under the provision of Art. 4, Sec. 6, of the constitution establishing the court of appeals.

It is provided therein that courts of appeals have appellate jurisdiction in the trial of chancery eases. It will be observed that Sec. 12002 G. C. provides that no -appeal will be allowed from a judgment or order of the common pleas court in a divorce case, except from an .order dismissing the petition without final hearing, or from a final order or judgment granting or refusing alimony, or where an injunction has been granted under Sec. 12001.

Section 8033 provides: “Upon hearing the testimony of either or both of such parents, * * * the court shall decide which one of them shall have the care, custody and control of such offspring.”

Section 8035 provides: “An appeal to a higher court may be had upon appellant giving bond * * * .”

In the case of Bower v. Bower, 90 Ohio St., 172 [106 N. E. Rep. 969], the syllabus reads as follows:

“An appeal will lie from a judgment or order of a court for the care, custody and maintenance of minor children regardless of whether such order is made in an action for divorce, divorce and alimony or alimony only, or in proceedings under the provisions of Sec. 8032 G. C.

Notwithstanding the court in the foregoing case bases the right of appeal upon statutory grounds, yet it is somewhat suggestive of the legal characterism pertaining to the custody of children by the courts. In the case of Rogers v. Rogers, 51 Ohio St. 1 [36 N. E. Rep. 310], Judge Spear in his opinion speaks of the authority of a court over the matter of custody of children in divorce proceedings as probably being inherent but it is given by the divorce statute. And the court in the.memorandum opinion in the Bowers case speaks of jurisdiction in such matters as being “incident to the suit.” If this right adhered to the court by reason of being an inherent right, is it not quite suggestive that the. statute was a mere codification of that right?

It does not follow that where a class of eases is within the jurisdiction of chancery,' that jurisdiction in chancery is taken away because courts of law subsequently give a remedy. Cram v. Green, 6 Ohio 429. Accordingly, our Supreme Court has held that notwithstanding partition proceedings are regulated by statute in Ohio, yet they are inherently chancery cases, having been so classed by the courts of England, and are therefore appealable to the courts of appeals.

In the ease of Sullivan v. Thomas, 3 S. C. 531, the court in its syllabus says:

“By the term, cases in chancery, as used in Art. 4, Sec. 4 of the constitution, declaring the jurisdiction of the Supreme Court, is meant such eases as were cognizable by the courts" of equity of the state existing at the time of the adoption of the constitution. ’ ’

In the opinion the court 'says:

“It must be premised that the jurisdiction of this court, so far as it was ascertained and fixed by the constitution is unaffected by the provision of the code of procedure or any other statutory law. Again, the terms employed to mark out that jurisdiction must be tphen in the sense in which they were understood at the time the constitution was adopted. Thus, for instance, the term ‘cases in chancery’ at the time, meant cases of a class of which the court of chancery could entertain jurisdiction although since that time the court of chancery has been abolished and its jurisdiction conferred upon the court of common pleas. Yet, what was intended to be described as ‘cases in chancery’ must be determined now, not with reference to the present statute of jurisdiction and forms of procedure, but by the inquiry whether any given ease could have been regarded, at the adoption of the constitution, as a ‘case of chancery.’ When the nature of the right in controversy, or of the relief sought in any case is such that, prior tp the code, it would have been appropriately pursued in the court of chancery, it will be regarded as within the expression ‘cases of chancery.’

The circumstance that forms of proceedings, as it regards law and equity, are assimulated under the code, does not affect the jurisdiction of the court as established under the constitution ; but we look to the substantial character of the controversy before us for the purpose of ascertaining the extent of the powers in relation to such case, rather than to the nature of the court from which the case comes or the technical mould in which the case is cast.”

That divorce and alimony eases Afrere not recognizable in the court of chancery in England, is verified by the following excerpt from the opinion in the case of DeWitt v. DeWitt, 67 Ohio St. 340, 344 [66 N. E. Rep. 136]:

“We gather from a somewhat extended examination ' of authorities that, in so far as we derive any common law rules respecting divorce and alimony from the mother country, we inherited those administered in the ecclesiastical courts, for, outside of parliament, no other tribunal had or assumed cognizance of such controversies. Such power did not, in England, belong to a court of equity. The ecclesiastical court was not, and never had been, a court of equity. It was a canonical court, and never deviated from the canon law. * * * ‘The court for divorce and matrimonial causes owes its jurisdiction— in part original and in.part derived from ecclesiastical courts— to the act of parliament by which it was created, and the several amending acts by which that jurisdiction has been in various ways altered and amplified. ’ * * * it may be fairly claimed, from the foregoing, that the courts of Ohio have not general equity jurisdiction in suits for alimony, but that the jurisdiction is such, and such only, as is given by the statute. * * *

It will be noticed that in the entire opinion no mention is made regarding the custody of children, and it is quite suggestive that the legislature deemed it proper to enact a separate statute, as it were, to avoid confusion in the administration of justice. Having demonstrated by authority that divorce and alimony were not matters in chancery, it yet remains to determine whether the custody of children was in fact recognizable in courts of chancery. That that was so we find in 9 Eng. & Am. Enc. Law 866:

“The ecclesiastical courts had no power to determine the custody of the children, as at common law the court of chancery has jurisdiction in snch eases. Where jurisdiction to grant divorce is conferred upon a common-law court, such court will have only such powers as to the custody of the children as are conferred by the divorce statute. But where the jurisdiction is conferred upon a chancery court it will have full power to fix the custody of the children, aside from the special provisions of the statute.
“On granting a divorce it is the duty of the court to protect the interest of the state by providing for the custody and support of the children, and this may be done although neither party has prayed for such relief.
“The statutes in the various states of the United States and in England give the courts power to provide for the custody and maintenance of the children of the parties pending the suit for divorce.
“Courts having chancery jurisdiction may make such orders by virtue of the general jurisdiction in equity although the statutes are silent as to such remedy or merely provide that the custody may be awarded after a divorce is granted.”

Again in the case, Morgan, In re, 117 Mo. 249 [21 S. W. Rep. 1122; 22 S. W. Rep. 913]:

“Divorce and alimony, part of this jurisdiction, belonged to the ecclesiastical courts in former times in England, and the power to make awards as to the custody of children is a part of the ancient chancery jurisdiction.”

Counsel for plaintiff has not referred us to any decision contrary to the foregoing, and knowing his accustomed diligence in preparation of cases, we may infer that there are none.

Por the foregoing reasons, and upon the authorities cited, we hold that the custody of children is inherently equitable in its nature, having such characteristics and cognizable in a court of chancery, all of which, we think, brings it within the comprehension of the clause “Cases in Chancery” in Art. 4, Section 6 of the constitution of this state.

The motion of the plaintiff is therefore overruled.

Meals and Grant, JJ., concur.


source: Caselaw Access Project

author: HOUCK, J.

license: Public Domain

text:
    LIBEL AND SLANDER.
    [Mahoning (7th) Court of Appeals,
    October 18, 1915.]
    Houck, Pollock and Metcalfe, JJ.
    (Judge Houck of the 5th district sitting in place of Judge Spence.)
    G. M. McKelvey Co. v. David M. Nanson.
    Not Libelous per se as Affecting Trade Relations to Publish That Tradesman Suddenly Decided to Retire from Business.
    A publication by a tradesman is not libelous on its face, where to the effect that Mr. N. had “suddenly decided to retire from ■the tailoring business.” coupled with the announcement to the trade that his entire stock had been purchased for cash.
    [Syllabus by the court.]
    Error.

      Hine, Kennedy & Mmchester and 8. S. Conroy, for plaintiff in error.

      Kennedy & Mumaw, for defendant in error.
   HOUCK, J.

This is a proceeding in error, by the plaintiff in error, seeking to reverse a judgment of the court below in favor of the defendant in error, in an action brought by him against the said plaintiff in error, for libel.

The article complained of was published in two newspapers of general circulation in the city of Youngstown, Ohio, and in the form of circulars sent to citizens of said city, all of which was done at the instance of and under the direction and authority of the plaintiff in error.

Said article complained of is as follows:

“Mr. Nanson, a well known high-grade custom tailor of this city, and perhaps a personal friend of yours, suddenly decided to retire from the tailoring business. Desiring to turn his stock quickly into cash, asked us to name a price for the entire stock. The greater part of this stock being fall and winter goods, he naturally expected a good price, but finally accepted our offer.”

The plaintiff below complains of the words: “Mr. Nanson suddenly decided to retire from the tailoring business.”

At the request of counsel for plaintiff below the court charged.the jury that said words were libelous per se.

While the petition in error alleges other grounds of error, the only one urged by counsel in argument was that the court erred in charging the jury that said words were and are libelous per se, and therefore it is only necessary, for a proper determination of the case, to pass upon this one ground of alleged error.

Let us classify libels according to their objects:

1. Libels which impute to a person the commission of a crime.

2. That which has a tendency to hold a person up to scorn and ridicule, and to feelings of contempt, or impair one in the enjoyment of general society.

3. That' which has a tendency to injure one in his office, trade, calling or profession.

The words complained of in the case at bar, if libelous, come under the third definition.

Is the expression here complained of libelous within itself?

A distinction exists between libel and slander. In libel the written or printed words are of necessity attended with more deliberation, and hence may be said to be indicative of stronger malice than oral words, and therefore calculated to do greater wrong and much more harm. In passing, we might add that written or printed words are libelous in all cases where, if spoken, they would be actionable; and they may be libelous, and at the same time, if spoken, would not be actionable. Our Supreme Court in the case of Cleveland Leader v. Nethersole, 84 Ohio St. 118 [95 N. E. Rep. 735; 23 Ann. Cas. 978], has laid down the rule as to what constitutes libel per se. The court say:

“To constitute a publication respecting a person libelous per se, it must appear that the publication ‘reflects upon the character of such person by bringing him into riddicule, hatred or contempt, or affects him injuriously in his trade or profession.”

To say of a person that he has suddenly gone out of business does not in any way reflect upon his character, or bring him into ridicule, or indicate hatred or contempt, or injury to his trade or profession, so far as the plain meaning and import of the words and language are concerned. If this be true, then how can they be libelous per so?

In order that words shall be libelous per se, as disparaging . a person in his trade or business, they must be of such a character as would prejudice him by impeaching either his skill or knowledge or attackng his conduct in such business. The words in the publication complained of, in order to be libelous per se, must have had a tendency to render the defendant in error contemptible or ridiculous in public estimation, or to expose him to public hate or contempt, or hinder virtuous persons from associating with him, or accuse him of crime punishable by the laws of our state, or charge him without conduct the natural or ordinary result of which would be to prevent him from engaging and pursuing his vocation, trade or calling, or in some way depriving him of the earnings thereof, and which he otherwise would have obtained. Quoting from the case of Cleveland Leader v. Nethersole, supra, Judge Spear on page 130 says:

“Although- the distinction between a libel upon a person and a libel upon that which is the property of a person, is somewhat nice, and although in many cases the distinction is not easy to demonstrate, it often being difficult to apply the settled rules of law to the particular facts of the case, and although the decisions illustrating the subject are not altogether consistent one with another, yet the rule seems to be well established to the effect that while by the law of libel defamatory language is actionable without special damage when it contains a damaging imputation against one as an individual, or in respect to his office, profession or trade, it is not actionable when it is merely in disparagement of one’s property unless it occasions special damage.”

We do not think the words complained of are libelous upon their face; and we believe we are sustained in this conclusion by a long line of authorities not only in our own, but other states. To hold otherwise would be to set aside and hold for naught the decisions upon this subject which have-been considered to be the law for many years.

Taking this view of the case, we find error in the record prejudicial to the rights of the plaintiff in error, and therefore find the judgment of the court below erroneous, and that it should be reversed.

The judgment of the common pleas court is therefore reversed, and the cause remanded for a new trial.

Pollock and Metcalfe, JJ., concur.


author: KUNKLE, J.

text:
    HIGHWAYS — RAILROADS.
    [Hamilton (1st) Court of Appeals,
    July 19, 1915.]
    Allread, Ferneding and Kunkle, JJ. (Sitting by designation.)
    Cincinnati (City) v. Cincinnati, L. & N. Ry., et al. (Two Cases).
    1. Notice and Hearing not Required to Charge Railway with Cost of Construction of Highway Across Tracks.
    Section 3 of the act 97 O. L. 546, approved May 3, 1904, charging railroad companies with one-half the cost of constructing a highway across an existing railroad, is not rendered unconstitutional by the failure to provide for a notice and hearing in respect thereto.
    2. Liability for Construction of Highway Otherwise than Grade Holds against Both Principal and Operating Railroads.
    Where a railway over which it is sought to carry a highway otherwise than at grade has passed under the control of . another company which has acquired its privileges and assumed its liabilities and duties, the one-half of the cost of obviating such grade crossing which the law imposes on the railway becomes a liability of both companies.
    Error.

      Walter M. ScJioenle and Carl M. Jacobs, Jr., city solicitors, for plaintiff in error.

      Lawrence Maxwell and' J. S. Graydon, for defendants in error.
   KUNKLE, J.

The petition in case No. 5742 states in brief that plaintiff is a municipal corporation, organized under the laws of Ohio; that the council of said city has authorized the bringing of this suit; that defendants at all the times mentioned in the petition were and now are corporations, organized under the laws of Ohio for the purpose of owning, maintaining and operating railroads; that subsequent to the third day of May, 1904, the date of the passage of the act, “To provide how railroad and highway crossings may be constructed, ’ ’ the plaintiff built the highway known as Whittier street, across a certain railroad which had existed theretofore and is still in existence; that said railroad did at all times herein mentioned, and does now, belong to the defendant, the Cincinnati, Lebanon & Northern Ry. Co., that prior to the building of said highway, the defendants entered into a contract whereby the defendant, the Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co., secured entire control of the privileges, tracks and property, and assumed all the debts, liabilities and duties of the defendant, the Cincinnati, Lebanon & Northern Ry. Co.; that under the existing conditions, and because of the -topography of the highway, railroad and surroundings, it was impossible to construct the said highway below the grade of the said railroad, and the said highway was, therefore, constructed above the grade of the said railroad and was carried over the said railroad by - means of a re-enforced concrete bridge or viaduct

The petition also contains an itemized statement showing that the total cost of the said bridge was $6,438.50, and states that the said bridge was fully built and paid for in October of 1910, and that no part of the cost thereof has been paid plaintiff by defendants or either of them, although demand has been made therefor, and asks judgment against the defendants in the sum of $3,219.25, with interest.

A demurrer was filed to the petition.

Error is prosecuted to this court from the judgment of the lower court sustaining such demurrer.

Plaintiff in error claims that the petition states a cause of action under Sec. 3 of the act approved May 3, 1904 (97 O. L. 546; Sec. 8895-8902 G. C.).

The title of said act is as follows:

“An act to provide how railroad and highway crossings may be constructed.”

Sections 1 and 3 of said act reads as follows:

“Section 1. Except as in this act elsewhere provided, all crossings, hereafter constructed, whether of highways by railroads, or of railroads by highways, shall be above or below the grade thereof.”
“Section 3. Every municipality or- other authority hereafter constructing a highway across an existing railroad, shall construct the same above or below the grade thereof, unless permitted in the manner hereinafter provided, to construct the same at grade, and the cost of said work shall be paid, one-half by said municipality, and one-half by the railroad company owning said railroad.”

Defendants in error in brief claim that the statute in question, if properly construed, requires a condemnation proceeding, or, if such proceeding is not required, then the statute is in contravention of the fourteenth amendment of the constitution of the United States, and of Art. I, Sec. 1, 16 and 19, of the constitution of Ohio.

We have carefully considered the very exhaustive briefs which have been filed by counsel in support of their respective contentions, but shall not attempt to discuss or review in detail the various authorities therein cited.

From a careful reading of this act we have reached the conclusion that the provisions of Sec. 4 apply only to a case where a grade crossing is sought to be established, and do not apply to crossings which are hot constructed at grade.

We find no statute providing for notice and a hearing in respect to the construction of a crossing such as the one in question.

This brings us to a consideration of the constitutionality of Sec. 3 of the act in question.

The authority of the Legislature to enact Sec. 3 under the police powers possessed by the state, is not seriously disputed by defendants in error, but they contend that the Legislature should have provided for a notice and hearing in respect to the improvement before the obligation provided in Section 3 can become effective.

The case of Cincinnati, H. & D. Ry. v. Troy, 68 Ohio St. 510 [67 N. E. Rep. 1051], is relied upon by counsel for defendants in error. We think this case is distinguishable from the case at. bar. In the case there was no statute imposing liability.

The last sentence of the decision of the Supreme Court, in such cited case, is as follows-.

"Since the legislative department of the state has not attempted to exercise the supposed police power in a ease of this character, we have no occasion to consider whether it would be a proper subject of its exercise.”

In the case at bar the obligation is expressly imposed^ by statute.

, The question as to whether such a statute, in addition to imposing a liablity, should also provide for notice and a hearing, -has not been expressly determined by the Supreme Court of this state.

We find, upon an examination, that the decisions in other states are in conflict, but we think the weight of authority sustains the view that such notice and hearing are not required and that statutes imposing a liabilty such as that contained in see. 3 of the act in question, are constitutional and valid.

We call attention particularly to the following auhorities, wherein this question is discussed, namely-.

In the case of State v. Railway, 98 Minn. 380 [108 N. W. Rep. 261; 28 L. R. A. (N. S.) 298; 128 Am. St. Rep. 581; 8 Ann. Cas. 1047], the first three paragraphs of the syllabus are as follows:

‘'The state may, in the exercise of its police power, impose upon railroad companies whose lines intersect public highways laid out after the construction of the railroad, the uncompensated duty of constructing and maintaining at such crossings all such safety devices as are reasonably necessary for the protection of the traveling public.
“Such a requirement, being referable to the police power, is not a taking of private property for public use in violation of the constitution.
“A bridge over the railroad tracks, when necessary to make the crossing safe for public use, is a ‘safety device,’ within the meaning of that expression.”

This decision is affirmed by the Supreme Court of the United States, in St. Paul, M. & M. Ry. v. Minnesota, 214 U. S. 497 [29 Sup. Ct. Rep. 698; 53 L. Ed. 1060].

See also case of State v. Railway, 98 Minn. 429 [108 N. W. Rep. 269], and which case was affirmed by the United States Supreme Court in Northern Pac. Ry. v. Minnesota, 208 U. S. 583 [28 Sup. Ct. Rep. 341; 52 L. Ed. 630].

In the case of Missouri Pacific Ry. v. Omaha, 235 U. S. 121 [35 Sup. Ct. Rep. 82; 59 L. Ed. 157], the-first three paragraphs of the syllabus are as follows:

“A railway company may be required by the state, or by a municipality acting under the authority of the state, to construct overhead crossings or viaducts over its tracks at its own expense; the consequent expense is damnum absque injuria or compensated by the public benefit in which the company shares and is not a taking of property without due process of law.'
“In the exercising of the police power, the means to be employed to promote the public safety are primarily in the judgment- of the legislature, and the court will not interfere with, duly enacted legislation which has a substantial relation to the purpose to be accomplished and does not arbitrarily interfere with private rights.
“If the state court has.held that a municipality has power to pass ordinances requiring railway companies to build viaducts, this court can only declare such an ordinance unconstitutional under the fourteenth amendment as an arbitrary abuse of power in a clear and unmistakable case.”

In Montana v. Richards, 28 L. R. A. 298, there is also found an extended discussion of this question and a review of the authorities.

Counsel for defendants in error, in their brief, also claim that no cause of action is stated against the Pittsburgh, Cincinnati, Chicago & St. Louis Ey., for the reason that the petition alleges that the said roalroad belongs to the Cincinnati, Lebanon & Northern Ey.

The petition does contain an averment as suggested by counsel for defendants in error, but it also contains an averment to the effect that the Pittsburgh, Cincinnati, Chicago & St. Louis Ey. has, through contract, secured entire control of the privileges, tracks and property, and assumed all the debts, liabilities and duties of the defendant, the Cincinnati, Lebanon & Northern Ey.

Under the averments of the petition, we think both of' the defendants in error are liable. We think such liability is determined by the decision of our Supreme Court in the case of Baltimore & Ohio Ry. v. Walker, 45 Ohio St. 577 [16 N. E. Rep. 475], the first two paragraphs of the syllabus of which ease are as follows:

“A railroad company which has the possession and control of a railroad in this state, and is managing and operating the same, as the lessee thereof, is one ‘owning the tracks’ of such railroad, within the meaning of Sec. 3333 E. S., which provides that: ‘When the tracks of two railroads cross each other, or in any way connect, at a common grade, the crossings shall be made and kept in repair, and w’-atchmen maintained thereat, at the joint expense of the companies owning the tracks.’
“The necessity for keeping the crossing in- repair, and maintaining watchmen thereat, grows out of the use and operation of the railroads crossing each other at a common grade, and - the benefits thereof accrue to the companies using and operating the roads; and, as such lessee company, while operating its road receives the benefit and security resulting from a safe crossing and the services of the watchman, it takes them subject to the burden of their expense, as provided by the statute.”

The necessity and reasonableness of the cost of the improvements in question are not now before the court, and we express no opinion as to whether the same can be questioned in this proceeding by way of defense.

It therefore follows that the judgment of the lower court should be reversed and the cause remanded, with instructions to overrule the demurrer, and for such further proceedings as may be authorized by law.

We do not have the papers in case No. 5743 before us, but it is agreed that the averments of the petition in that case are similar to those above quoted, except that the petition in the latter case asks for judgment in the sum of $6,897.85, the one-half of $13,795.71, the cost of the bridge referred to in that ease, and the same judgment will be rendered in this case as in ease No. 5742.

Judgments reversed.

Ferneding and Allread, JJ., concur.


author: PER CURIAM.

text:
    INTOXICATING LIQUORS.
    [Perry (5th) Court of Appeals,
    October Term, 1913.]
    Powell, Voorhees and Shields, JJ.
    Peter Dunkle v. Junction City.
    1. Failure to Designate Place in Closing Hours Ordinances Precludes Conviction for Violation.
    Conviction can not be had under an ordinance, intended to prohibit the keeping of any saloon open between the hours of 10 P. M. and 5 A. M., where there is no designation of ■place in the ordinance to which its provisions apply.
    2. Saloon Keeper Remaining in Saloon after Closing Hours to Compute Day’s Receipts not Violation of Ordinance.
    The purpose of such an ordinance must be held to be to prohibit a continuance of the business -of the saloon between the hours named, and conviction can not be had of a saloon keeper, who closed Ms saloon before 10 P. M., but remained in the saloon with his bar keeper for twenty-five minutes after 10 for the purpose of counting the receipts of the day.

      Error.

      T. B. Williams, for plaintiff in error.

      J. W. Dugan, for defendant in error.
   PER CURIAM.

On April 21, 1913, complaint in writing was made before tbe mayor of the incorporated village of Junction City, in said county, that the plaintiff in error on or about April 19, 1913, being then the keeper and owner of a saloon in said village and county, did unlawfully keep open and permit his saloon to be open between the hours of 10 o ’clock P. M. and 5 o ’clock A. M., for the period of twenty-five minutes after 10 o’clock P. M., to wit, until 10:25 P. M., contrary -to the provisions of a certain ordinance of said village, the first section of which reads as follows:

“Section 1. That it shall be unlawful for any person being the owner, bartender, keeper, or having charge of any saloon, building, or other place wherein intoxicating liquors are sold at retail or exposed for sale at retail, to open, beep open between the hours of 10 o ’clock P. M. and 5 o ’clock A. M., provided that the provisions of this section shall not apply to the sale of intoxicating liquors by a regular druggist, ’ ’ etc.

Upon the foregoing complaint the plaintiff in error was arrested, tried and convicted of said alleged offense and sentenced by said mayor to pay a fine of $35 and costs to all of which the plaintiff in error excepted. The case was taken to the common pleas court of said county on error, which said court affirmed the judgment of said mayor, and the ease was brought into this court by a petition in error for review.

Said petition in error contains various assignments of error, but in our disposition of the ease we will notice only such alleged errors as were urged upon our attention.

An examination of the ordinance bn which this prosecution is based shows it to be somewhat vague and indefinite. While it provides that “it shall be unlawful for any person, being the owner, bartender, keeper or having in charge any saloon, building or other place wherein intoxicating liquors are sold at retail or exposed for sale at retail, to open, keep open between the hours of 10 P. M. and 5 A. M.,” there appears to be no designation of place — in the ordinance to which its provisions are applicable. Criminal statutes as against one charged with an offense are to be strictly construed. Speaking for the court Judge "Williams in the ease of State v. Meyers, 56 Ohio St. 340, 350 [47 N. E. Rep. 138], says:

“Under that fundamental rule of strict construction applicable to all penal laws, a statute defining a crime cannot be extended by construction to persons or things not within its descriptive terms, though they may appear to be within the reason and spirit of the statute. Persons cannot be made subject to such statute by an implication. Only those transactions are included in them which are within both this spirit and letter; and all doubts in the interpretation of such statutes are to be resolved in favor of the accused'. ’ ’
This rule of construction is alike applicable to both statutes and ordinances. But assuming that the language in the ordinance could be so construed as to harmonize with the evident intent and purpose of the ordinance,, and that which was intended to be expressed therein is implied, how stands the case with reference to the other ground of error insisted upon by the plaintiff in error, namely, that there was a failure of proof upon the part of said village before the mayor to sustain a conviction of the plaintiff in error? It appears that the bill of exceptions is in the nature of an agreed statement of facts, which, among other things, contains the following: “That the defendant is a saloon keeper in said village; that on the night alleged in the affidavit the plaintiff, who is the owner and proprietor of said saloon, it does not appear that said saloon was saloon all persons immediately before 10 o’clock, and at 10 o’clock P.. M. locked the doors of said saloon. That after locking said doors the defendant and bartender went to his cash register to count the receipts of the day and that he remained in said saloon, with his bartender, for about twenty-five minutes after 10 o’clock P. M., for the purpose aforesaid, before they came out of said saloon; and it is agreed that tbe ordinance attached is a true copy of the ordinance under which the defendant was arrested and which ordinance is to be considered as part of this bill of exceptions; that no other persons were in the saloon except the said defendant and bartender.”

It is conceded that the plaintiff in error before 10 o’clock on the night in question “put out” all persons in his saloon, and at 10 o’clock locked the doors of his saloon, and that no person or persons were allowed to enter his saloon thereafter and before 5 o’clock the following morning. But it is claimed that after so closing his saloon the plaintiff in error and his bartender remained in Ms saloon “to count the receipts of the day,” and so remained about twenty-five minutes “before they came out of said saloon,” and that this act of the plaintiff in error was in violation of the provisions of said ordinance. While it appears that the plaintiff in error was the owner and proprietor of said saloon, it does not appear that said saloon was not connected with the building in which he resided, and if it was, and he went from his saloon into Ms residence, it would scarcely be claimed that going from Ms saloon into his residence would be such a “keeping open” as to fall within the purview' of said ordinance. But the real charge here is that the plaintiff in error and his bartender remained in the saloon after 10 o’clock P. M., to count the cash, after th’e doors of the saloon were locked and kept locked. It does not appear whether there were or were not any lights in the room, the inference being howmver that there was at least one light. But whatever the number of lights, was the sole fact of the plaintiff in error and his bartender remaining in the saloon for the time and for the purpose indicated, after 10 o’clock P. M., an offense wdthin the intent and meaning of said ordinance? Was it a keeping open of the saloon in contemplation of said ordinance? Or does the ordinance seek to punish those who would keep open the saloon after the hour named for the purpose of continuing their business? While the ordinance in effect amounts to a prohibition, it is in our judgment a proMbition intended to operate against carrying on the business after a stated hour.

Fo'r the reasons stated, we think that the mayor erred in overruling the motion of the plaintiff below to dismiss said ease, and the court of common pleas likewise erred in affirming the judgment of the mayor. The judgment of the mayor and that of the court of common pleas will therefore be reversed, and it is ordered that the plaintiff in error be discharged from further custody.


author: WINCH, J.

text:
    RAILWAYS.
    [Cuyahoga (8th) Circuit Court,
    December 24, 1913.]
    Winch, Meals and Grant, JJ.

      Cleveland & Pittsburgh Ry. v. State of Ohio.
    Excise Tax Provisions not Applicable to Railway Companies Whose Lines are Being Operated Under Lease.
    A steam railroad corporation which has leased its entire line and equipment and is not operating within the state of Ohio, is not required to pay an assessment under the Willis law upon its issued and outstanding capital stock.
    [Syllabus by the court.]
    Error.

      Squire, Sanders & Dempsey, W. 0. Henderson and Lawrence Maxwell, for plaintiff in error.

      T. S. Hogan, C. D. Laylin and Robert M. Morgan, for defendant in error.

       Motion to certify record overruled by the Supreme Court, March 24, 1914.

   WINCH, J.

This is an action to reverse a judgment for $85,203.40 recovered by the state against the railroad company for delinquent excise taxes found to be, due under the Willis law, so-called, for the years 1902 to 1908, inclusive, being an assessment amounting to one-tenth of 1 per cent upon the issued and outstanding capital stock of the railroad company for said years. The railroad company .claims the judgment is not authorized by law.

There is no dispute as to the facts of the case, and though the literature of the case is voluminous, it will not be greatly extended by this opinion, for all that is really involved in the case is the true intent and meaning of a statute which seems plain enough upon its face for him who runs to read and understand.

Previous to 1871 the Cleveland & Pittsburgh Railroad Company was a steam railroad corporation duly incorporated under the laws of Ohio and owning and operating a railroad within the state. It was also incorporated under the laws of Pennsylvania and owned and operated a railroad in that state, connected with its Ohio line.

October 25, 1871, the Cleveland & Pittsburgh Railroad Company leased all its property to the Pennsylvania Railroad Company and surrendered possession of all its railroad and all property and equipment connected therewith to the Pennsylvania Railroad Company, the former company retaining its corporate existence, however, for the purpose of collecting its rent under the lease and distributing the same as dividends to its stockholders, with an agreement to pay for extensions, renewals, betterments and increased facilities for its railroad properties, the latter company to operate the road and pay all taxes lawfully assessed against it.

April 14, 1873, all rights under this lease were assigned to the Pennsylvania Company, which has ever since been in possession of the property, operating the same and paying all taxes assessed on the real and personal property of the lessor company.

April 11, 1902, the original Willis act (95 O. L. 124) was passed and Sees. 1, 2 and 7 thereof require consideration in this case, as well as See. 7 of the act as amended April 25, 1904 (97 O. L. 381).

These two acts cover the period for which taxes were claimed by the state; there have been amendments to these statutes passed since 1908.

By the first section of the act of 1902, every corporation organized under the laws of this state, for profit, is required to make a report in writing to the secretary of state, annually, setting forth certain faets, including the' nature and kind of business in which the company is engaged and its place or places of business, and to pay a fee of one-tenth of 1 per cent upon the subscribed or issued and outstanding capital stock of the corporation.

By the second section of this act, every foreign corporation for profit doing business in this state, and owning or using a part or all of its capital or plant in this state, and subject to certain requirements of other laws, is required to make a report of certain facts to the secretary of state, annually, and to pay an annual fee, for the purpose of exercising its franchises in Ohio, of one-tenth of 1 per cent upon the proportion of the authorized capital stock of the corporation represented by property owned and used and business transacted in Ohio.

Ever since the passage of this a'ct the Pennsylvania Company has made reports to the auditor of state and has paid an excise tax upon the gross earnings from the operation of the Cleveland & Pittsburgh Railroad within the state of Ohio, as required by the second and fifth sections of the act of March 19, 1896 (92 O. L. 79), sometimes called the Cole act, and the amendments thereof. The Cleveland & Pittsburgh Railroad Company has never filed the annual reports nor paid the taxes required by either the Willis law or the Cole law, claiming that it was not required to do so, because it was not “engaged in business” within the intendment of said laws, and in the claim that it was not required to file annual reports with the auditor of state, the state has acquiesced and still acquiesces. With the merits of this claim we are not now concerned, as will develop from further consideration of the case, but an assumption that this claim is correct is necessary to an understanding of the state’s contention regarding the meaning of Sec. 7 of the act of 1902, to which we now come.

The legislature having provided by other laws for the payment of excise taxes by certain corporations, Sec. 7 of the Willis act exempts them from the payment of a franchise tax or fee under its own provisions in the following language (quoting only so much as is applicable to this ease) :

"Provided that electric light, gas, natural gas, waterworks, pipe line, street railroad, electric interurban railroad, steam railroad, messenger, union depot, express, freight line, sleeping ear, telegraph, telephone and other corporations, required by law to file annual reports with the auditor of state, * * shall not be subject to the provisions of the preceding sections of this act. ”

The amendment of 1904 (97 O. L. 381) makes no change in this language except to insert the words "public service,” between the words "other” and "corporations” so as to read "other public service corporations” instead of "other corporations. ’ ’

We apprehend this amendment is not important in a discussion of this case and confine our attention to a consideration of the meaning of the section as originally enacted.

The contention of the state, to quote from the brief of the attorney-general and his associate counsel is:

' "That See. 7 does not except the plaintiff in error company because, though it is chartered as a railroad company corporation, it is not an operating company, and was not required' during the years in question to file a report with the auditor of state and pay a tax under the Cole law, so-called; and that the mention of steam railroad in Sec. 7 means a steam railroad corporation which in addition to owning its property, is also the operator thereof.”

It would seem that the legislature, if it had intended what the law officer of the state now contends for, would have said so. It could have said so by using the following simple language :

"Provided that all corporations (or all public service corporations) required by law to file annual reports with the auditor of state, shall not be subject to the provisions of the preceding sections of this act.”

Instead of using this simple language it enumerated some fifteen kinds of corporations, and then said "-and other corporations, required by law to file annual reports with the auditor of state, ’ ’ shall not be required to comply with the act.

Clearly the intention was to exempt steam railroad corporation^ and the other fourteen mentioned corporations, from the operation of the act, and also to exempt therefrom such other corporations, if any, then existing, or which might thereafter be authorized by law, and which might be required by law to file annual reports with the auditor of state.

The use of the words “other corporations required,” etc., was to complete the enumeration of exempt corporations and not, as claimed by the state, to limit and qualify the enumeration already made.

At least two good reasons appear for this conclusion: there was then in existence at least one kind of corporation (equipment company) not enumerated, which was required to file, annual reports with the auditor of state, and .other like companies might afterwards be authorized by law in which event Sec. 7 of the Willis act, with its enumeration of exempt companies, but without the general words, “other companies,” etc., would have to be amended every time such new companies might be authorized.

We think the legislature meant something by its enumeration of exempt companies in Sec. 7, and that the courts are not at liberty to disregard this enumeration and rewrite the statute as suggested by the attorney-general. That is for the legislature to do and it is significant that the legislature has not done it, though more than ten years have elapsed and subsequent legislation has wholly revamped the laws upon the subject here involved.

We conclude that the statute is unambiguous and plain, requiring nothing to be added to or taken from its words so. that it may be understood and applied by the taxing officers of the state, and that by its plain terms the Cleveland & Pittsburgh Railroad Company, being a steam railroad corporation is exempt from the provisions of the Willis act.

This conclusion makes it unnecessary to examine other statutes claimed to be in pari materia, or to go beyond the words of. See. 7 itself, to determine the intention of the legislature in enacting said section. The section intends what it says.

For the same reason it becomes unnecessary to consider the very interesting question submitted by the railroad company as to the effect of the judgment of the court below, which allowed the claims of the state, resulting, as clearly pointed out in briefs of counsel, in double taxation of one business, for the lessee company pays the Cole tax on the gross business done on this railroad and pays it for the lessor company.

The leasing of railroads by Ohio railroad corporations is favored by our statutes, but to make the giving of such a lease require the payment of additional taxes to the state, would penalize and prohibit such leasing.

For the reasons stated, because the plain word's of the statute require it, the judgment is reversed, and there being no dispute as to the facts of the case, judgment is rendered for the plaintiff in error.

Meals and Grant, JJ. concur.


author: GRANT, J.

text:
    APPEAL — INDUSTRIAL COMMISSION.
    [Cuyahoga (8th) Court of Appeals,
    March 22, 1915.]
    Meals, Grant and Carpenter, JJ.
    Sam Police v. Industrial Commission of Ohio.
    1. Right of Appeal Lies From Award of Industrial Commission.
    An appeal by an injured employe lies from a decision by the industrial commission, where the' award made for a permanent injury of a serious character is so small as to indicate that it was intended as a mere gratuity to one not injured in the course of his employment and therefore not entitled to anything.
    2. Right of Appeal Distinguished in Application to Award of Industrial Commission and Court of Inferior Jurisdiction.
    The right of appeal to the court of common pleas, granted by Sec. 1465-90 G. C. to an employe dissatisfied with an award of the state industrial commission, is a mode of removing a cause from an administrative to a judicial tribunal and independent of the right of appeal from an inferior to a superior court.

      Error.

      G. E. Romano and G. W. Toland, for plaintiff in error.

      Cyrus Locker, for defendant in error.
   GRANT, J.

By the petition in this proceeding we are asked to reverse the judgment of the court of common pleas.

The error assigned is that that court refused to entertain the appeal of the plaintiff from the final action of the defendant, the Industrial Commission of Ohio, in this case, but dismissed the same as for want of jurisdiction of the subject thereof.

In his petition in that court the plaintiff alleged — as the fact is — that the defendant is the successor in law of the former State Liability Board of Awards of Ohio, charged with the duties of the latter, to full effect, as provided by statute; that at the time when the plaintiff came to his injuries alleged, the Union Bolling Mill Company, his employer, was a contributor to the fund controlled by and subject to the award of the defendant, in the discharge of the duties devolved by law upon the latter. That in the course of such employment and arising therefrom, while in that service, the plaintiff received certain bodily hurts in the form of a double hernia, to his great and permanent injury. That the plaintiff thereupon elected to pursue the remedy for his wrong in the mode provided by the statute creating the defendant and prescribing its duties and jurisdiction, and made his application to that end, in due form and as provided by the law in question. That the defendant took jurisdiction in- the matter and upon a hearing had, found and awarded to the plaintiff in the sum of $10.50 and no more, in full satisfaction of his right to compensation at its hands for his injuries had and received. That the award was in sum so grossly disproportionate to the just claim to which the plaintiff was entitled as — the circumstances considered — to amount to a total denial of his right to participate in the fund to which his employer was a contributor and to administer which in accordance with- the facts the defendant was charged, as an official duty, and that — the circumstances still considered — the award, in that amount, must be regarded as- having been made either und^r some mistake or was moved by passion or prejudice; in any event, that it was contrary to the evidence and the law, and that the application was heard without the plaintiff being notified and out of his presence, so that he had no day in court or due process of law. The prayer of the petition was for an award in satisfaction of the injuries sustained by the plaintiff.

The defendant board answered, the substantive part of its defense being that it considered the plaintiff’s claim, as it was in duty bound to do, and allowed to him only the sum named in the petition. The answer alleged that under the law this action of the board was final and conclusive as to the plaintiff’s right to participate in the fund to which his employer had contributed and that he was, under the law, without further remedy.

A trial was had to the court without a jury, at which the plaintiff gave testimony tending to prove the truth of the material allegations of his petition, which -were not conclusions only, and that his injuries, from whatever cause arising, were serious and permanent. He also offered evidence to prove certain allegations of conclusion in his petition, but this was rejected.

At this point the court below, of its own motion, raised the question of want of jurisdiction. After argument had the petition was dismissed on that sole ground.

A motion for a new trial was made and denied, and a judgment in favor of the defendant for costs was thereupon entered.

This action of the court below is assigned as error.

The single question to be determined here is that of jurisdiction. Did the.court of common pleas have it?

Within the landmarks of the law being administered, it is the part of a good judge to enlarge his jurisdiction. So anciently said the maxim, which, we take it, means that the law is to be declared in the spirit of its creation, so that the declaration does no violence to its manifest expression in words. Applied to the statute which the defendant board is required to administer in its integrity, the principle is that the purpose of the law is to be made good and effectual. That purpose is in no way obscure or past finding out. And where the purpose is not observed by those entrusted with that service, or is plainly disregarded by employing its letter to defeat its end, the correlative duty of the courts is conceived to be to exert whatever power may reside in them to correct the evil and advance the. appropriate remedy.

We are inclined to think that much of the discussion as to whether this case in its progress from the commission to the common pleas court was an appeal in strictness of words or not, has been too technical and grudging in scope to promote the ends of the law. The word appeal has different meanings in different jurisdictions, and.varies widely in application to various sets of circumstances. Of course, the appeal here “was not an appeal in the sense that it brought the case up from an inferior to a superior court- or judicial body; the defendant’s functions are administrative. Constitutionally, they can not be assimilated to those of a court. This point has been settled, specifically, in State v. Creamer, 85 Ohio St. 349 [97 N. E. Rep. 602; 39 L. R. A. (N. S.) 694], where the predecessor of the present law in question was under review.

What really is meant by the word appeal, as applied to the right of the plaintiff to come into the court below, is a mode of removing his cause from an administrative to a judicial tribunal —he having, as he says, been denied his legal right by the action or nonaction of the former. In a popular and perhaps inaccurate sense of the term, this method of passing his grievance on to a court from a board may be called an appeal, and in this sense we think the word is used when the statute authorizes the removal. Considering the just and beneficent end sought by the entire enactment, it should not be defeated in any case by applying a mere verbal rule of strictness destructive of its plain intendment. “The letter (of the law) killeth, but the spirit giveth life.”

We now come to a consideration of the statute which, if any does, confers the right of appeal in the sense we have found, in this ease. It is 103 O. L. p. 88, See. 43, and is as follows:

“The board shall have full power and authority to hear and determine all questions within its jurisdiction, and its decision thereon shall be final. Provided, however, in case the final action of such board denies the right of the claimant to participate at all in such fund on the ground that the injury was self-inflicted or on the ground that the accident did not arise in the course of employment, or upon any other ground going to the basis of the claimant’s right, then the claimant, within thirty days after the notice of the final-action of such board, may * * * be entitled to a trial in the ordinary way, and be entitled to a jury if he demands it.

We are next to consider what the plaintiff applied for when he came to the defendant board invoking its action. He says:

“I hereby make application to the Industrial Commission of Ohio for the payment of money out of the state insurance fund for compensation for injuries sustained by me on the eighth of. April, 1913. * * *
“ (B) My injury consisted of double rupture.
“(D) My injury was not purposely self-inflicted.”

Coming finally to the record of the hearing had of this application by the defendant board, it does not appear that the plaintiff was present. He says in his petition that he was not present and 'that he had no notice of it. And this is not controverted by the answer or otherwise. The finding of-fact made at the hearing was in the following language:

* # # “That applicant’s injury consisted of a hernia, not resulting from an injury received in course of his employment. * * * That said injury was not purposely inflicted. * * * That proof on file is such as to show an aggravation of,said hernia, for which an award is allowed as above.”

The award thus referred to states the injury before the board for action, as follows: “Injury; double inguinal hernia. ’ ’ And the award proper is in these words: -

“For medical services — $3. (Dr. O. E. Biddinger, 756 Eun Bldg., Cleveland, 0.)
“For truss — $3.50. (Applicant.),
“For compensation — $7.”

The seven-dollar item is stated to be “two-thirds weekly wage. ’ ’

This finding, upon which the action of the board denominated an award is founded, affirmatively brings the case within the second exception of the statute which we have quoted— namely: that the injury passed upon “did not arise in the course of employment.” So that, if all compensation was refused, the' right of appeal would be established, and the plaintiff would have his day in court on that footing and “be entitled,” as the statute says, “to a trial in the ordinary way.”

An avoidance of this effect is sought, and apparently it was so intended by the finding, in the fact that an award of seven dollars was made as ostensible compensation for what is said to be an aggravation of the hernia, for causing which alone compensation was asked.

The application made by the plaintiff is in the record in full and it is in no respect doubtful or ambiguous. Specifically and without an alternative asking, it calls for compensation for a double rupture arising in the course of the plaintiff’s employment. Just as specifically, the finding is that the injury did not so arise.

The plaintiff did not apply for any relief upon the ground that his injury was a pre-existing injury which had been “aggravated” in the course of his employment, and the finding does not say that the aggravation so arose. The award was for a thing not asked for and was in the nature of a voluntary act on the part of the commission. Whether it was regarded as a charity or donation or something akin to that in nature or intent, does not clearly appear, but that it could have been considered as in any reasonable or just sense a thing of compensation, seems to be negatived by the measure of relief purported to be advanced by the award itself as to its amount. The injury, if there was one, occurred on April 8, 1913. The application was sworn to on October 10. 1913. It was heard, and the alleged award was made October 24.

And yet the allowance was as for two-thirds of the man’s wages for one week. That an aggravation of a double hernia should cease abruptly at the end of a week is hardly supposable. Yet the award made necessarily supposes that, if the award was made on the footing of compensation alone, which is the only basis the statute allows. And the aggravation found was found, apparently, as existing at the date of the finding, which was more than six months after the time of the injury. The language is in the present tense.

In that case the disproportion between the 'compensation due and that awarded reaches the vicinity of the grotesque. It is certain, to our apprehension, that the award was for something clearly that the plaintiff had not asked and did not want, and that it was not made upon his application, but by the mere fiat of the defendant board. If that was done as an act of supposed charity, or was bestowed as an unearned bounty, it was an unauthorized act and beyond the power of the board to do it.

The application was for compensation for an injury arising in the course of his employment. By its finding that the injury did not so arise, the board, for that injury, awarded him nothing. Under the law, so finding, it could not have awarded him anything. To have done so would have been a plain contradiction in terms and a palpable misuse of the public funds entrusted to the board for distribution only to those entitled. If the disposition of the seven dollars and the price of a truss and the payment of a doctor’s bill was a supposed donation or a charity proceeding on equitable grounds, it was equally a malversation of a public trust, a volunteer service to an individual, not warranted by law. In terms of his application, the plaintiff got nothing by the award. Y^hatever that award was it was not compensation. Compensation'is the plaintiff’s right, if right he had. It would be grossly unjust to him to deprive him of his right and substitute a supposed charity in its place. It is the infirmity of far too many public agencies today to deny rights and ask men to make mendicants of themselves instead. They mistake the temper of our people altogether. We are not yet ready to be made Neapolitans of, as that nation of beggars was a century ago. Right and charity are enemies and not allies.

Shall this saving performance of throwing a sop of two-thirds of a week’s wage and a truss to one however deserving, be allowed to operate as a defeat of the right the plaintiff would otherwise have to bring his case to court and wage his law there? To say yes would be doing violence to the spirit and intendment of- the act which alone confers power upon the defendant’ board. And it would contradict its letter. As to what alone he asked, the plaintiff took nothing under the finding. Again stated, that finding was that he did not come to his injury in the course of his employment, and also again stated, this brings his contention within the second named exception to the finality of the board’s action, as enumerated in the statute. And, having regard to the effect now claimed for the seven dollars and a truss allowance, namely, to defeat all right of appeal to the courts, we may not be surprised that the plaintiff reasonably fears the bounty of the “gift-bearing Greeks.”

Having thus fixed the ultimate quality of the award purported to have been made, and having a proper regard to, and sense of, the operative effect expected by the defendant to be given to it, we may without impropriety, as we think, appeal to the legislative intent to be found in the act itself, through which alone the board has its being and brings its activities to bear. A part of this is as follows:

“Such board shall not be bound by the usual common law or statutory rules of evidence, or by any technical rules of procedure, other than as herein provided; but’ shall make the investigation in such manner as in their judgment is best calculated to ascertain the substantial rights of the parties and to carry out' justly the spirit of this act. ’ ’

We can not bring ourselves to think that this wholesome immunity from the shackles of common law rules is in any plain case to be used as a club to knock the real purpose of the act into insensibility, or as a sponge, saturated with chloroform to bring about a like condition. We do not believe that this salutary admonition to do justice, though the heaven of red-tape shall fall, can be prostituted into a letter of marque to prey upon the rights of a really meritorious claimant of its benefits. Our opinion is that this provision rests under no such scandalous reproach as that, but that it is provident of the rights of the injured as well as those who for a little while may happen to make up an administrative board. And applying it in that view, although we confess we do not see the need of it, since the board clearly denied the plaintiff the relief, and all the relief he asked, but in shaping our course upon the 1'atitude of this beneficent and good sense provision of the act, we say, and h'ow stands the ease? ‘“Ask and ye shall receive,” is the scriptural exhortation. The plaintiff asked, but did not receive — not what he asked, but something quite different — different both in origin and as to measure. Because he was denied, shall a court deny Mm a hearing which the law says he shall have in case he does not receive what he asks, although he may be allowed something that he did not ask? Another injunction of Scripture is eminently suggestive of what out fit answer should be — “knock, and it shall be opened unto you.” The plaintiff is knocking and the admonition is to open, i. e., the way into court.

“Ye who turn, judgment to wormwood,” is the denunciation of the prophet of old. And the acute and excellent Bacon adds, “And surely there be also that turn it into vinegar.”

We are, therefore, not without forewarning of what we think we are expected to do by joining in a judgment the effect of which will be to turn a claimant out of the only court that can be open to Mm, without any real meaning of the word.

That the award of seven dollars and a truss was engendered from a purposeful design to “beat the law” is not to be thought of by any man with charity enough in him to be self-respectful. If that were to be imputed to any as certainty, the poverty of the English language would be too great to fitly characterize it. The idea could not be tolerated except upon the impossible supposition that appointive boards consider themselves irresponsible, not only at the bar of the law, but to that healthy corrective even of law itself — the power of an informed, conservative and conscientious public opinion, exerting itself through law-serving agencies, and reacMng the uttermost nerve and limb of the body politic, to the' healing of all their disorders. We are glad, for the defendant, to repel and resent the imputation.

But we do. not find as a fact that the defendant body “denied the right of the claimant to participate at all in (the) such funds, on the ground, * * * 2. That the accident did not arise in the course of employment, ’ ’ and that an award of something of which he was at no time or in any manner a claimant, ought not to, and can not, defeat his right to appeal, dependent only upon the denial of the claim made.

Another conclusion would, in our opinion, do manifest violence to the spirit of the act in question, be destructive of its letter and very damaging to its effect as an expression of the mature and just policy of Ohio in its relation to a matter of grave and important public concern,.

We should in any case be very loth to so declare a law passed for his benefit, as that a meritorious suitor should have it to say:

“And be these juggling fiends no more believ’d That palter with us in a double sense;
That keep the word of promise to our ear And break it to our hope.”

So finding, it follows that the court of common pleas should hav.e entertained the plaintiff’s appeal in this cause and taken jurisdiction to hear and determine the matter of his petition, as directed by law.

It was error not to do so, for which the judgment complained of is reversed, and the cause is remanded to the court from whence it came here, for such further proceedings as may be in accordance with law.

Meals and Carpenter, JJ., concur.


author: METCALFE, J.

text:
    COVENANTS — EASEMENT.
    [Summit (8th) Court of Appeals,
    April Term, 1913.]
    Pollock, Metcalfe and Norris, JJ.
    (Judges of the 7th court of appeals sitting by designation.)
    Leo Kunkle v. Matilda Beck, et al.
    1. Right of Way of Sole Benefit to Grantee Breach of Covenant against Incumbrances.
    There is no difference between incumbrances which affect the title and those which affect the physical condition of the land, and where a right of way has been granted, which exists solely for the benefit of a private person or corporation, it constitutes a breach of covenant against incumbrances.
    2. Pipe Line Held Private Enterprise and Distinguished from Roads and Highways.
    A pipe line is a private enterprise, notwithstanding the public are interested in procuring the product which it transports, and such a line does not stand in the same category as roads and highways.
   METCALFE, J.

Plaintiff here was plaintiff below, and this cause comes before us on demurrer to the defendant’s answer. The petition alleges, in substance, that the plaintiff purchased from the defendants, and the defendants conveyed to him by warranty deed a certain farm. That the deed contained the usual covenants of title and against incumbrances. That prior to the execution of said deed to plaintiff defendants had granted and conveyed to the East Ohio Gas Company a right of way across said farm, by which a perpetual right was granted to that company to maintain and operate a gas pipe line thereon for the transportation of gas, and that said-line had been laid down and has ever since been maintained and operated by the company. Plaintiff claims that said right of way constitutes an incumbrance on said farm which lessens its value and therby causes him- damage.

Defendants in their answer admit the execution of the instrument conveying to the gas company the right <^>f way in question and that the company has laid and maintained a pipe line across said right of way. For a second defense the defendants say that before the execution of the plaintiff’s deed, and while the plaintiff and defendants were negotiating about the sale of the farm they informed the plaintiff that they had conveyed such right of way to the said gas company, and that the plaintiff had knowledge of the fact that a pipe line had been laid across said land. That the physical evidence of the fact was visible to the plaintiff, and that while said negotiations were in progress plaintiff inquired of them what consideration they had received for conveying said right of way, and when informed of the amount asked to have the same deducted from the purchase price of the farm, which was agreed to by defendants, and the sale comsummated in accordance with such agreement. In a third defense the defendants aver that such right of way is not an incumbrance in any way affecting the title to the property, but is merely an easement affecting its physical condition, and that the plaintiff having knowledge thereof is estopped from claiming the same to be an incumbrance.

Plaintiff demurred to the answer and the common pleas court overruled the demurrer, and the plaintiff not pleading further judgment was entered against him on the pleadings. Error is prosecuted in this court and the only question is whether the common pleas court erred in so holding.

In our judgment the common pleas court erred in overruling the demurrer. The matter set forth in the second defense is a parol arrangement between the parties made before the execution of the deed, which is clearly in contravention of the terms of the deed itself. "While this matter, if properly pleaded, might constitute a good cause of action to reform the deed, it is no defense in an action on the covenant against the incumbrances, and parol evidence would not be admissible to prove such an understanding. Long v. Moler, 5 Ohio St. 271.

As to the matter set forth in the third defense, a question much more difficult of solution is presented. It is urged with much ability that the incumbrance, being open, notorious and visible is not such an incumbrance as affects the title, but only affects the physical condition of the land, and that the plaintiff having knowledge of its existence at the time of the purchase of the farm can not now be heard to complain that it is a damage to him. Many authorities are cited upon this proposition, and there seems to be respectable holdings that where the right of way is a public highway, or a railroad which was known to the parties at the time of the conveyance that its existence furnishes no basis for an action for breach of the covenant against incumbrances. Kutz v. McCune, 22 Wis. 628 [99 Am. Dec. 85]; Memmert v. McKeen, 112 Pa. St. 315 [4 Atl. Rep. 542; 30 L. R. A. (N. S.) 833].

But where the right of way is a private one existing solely for the benefit of a private person or corporation, we think the' decided weight of authority is to the effect that such incumbrance constitutes a breach of the covenant.

In Long v. Moler, supra, above cited, it is held that incumbrances known to the parties at the time of the conveyance are not presumed to be excluded from the operation of the covenant.

The correct rule, as we think, is clearly stated in Huyck v. Andrews, 113 N. Y. 81 [20 N. E. Rep. 581; 3 L. R. A. 789; 10 Am. St. Rep. 432], In this case it was held that the right to maintain a mill dam constituted a breach of a covenant against incumbrances, though the easement was perfectly visible to the grantee, and was known by him at the time he purchased the premises.

“There is no distinction in this respect between incumbrances which affect the title, and those simply affecting the physical condition of the land.”

In this case the cases of Kutz v. McCune, 22 Wis. 628, and Memmert v. McKeen, supra, both of which are cited and much relied upon by counsel for the defendant in error, are disapproved. On page 90 it is said respecting these cases:

“They open to litigation upon parol evidence in¡ every action for the breach of the covenant against incumbrances, caused by the existence of an easement, the question whether the grantee knew of its existence; and in every such case the protection of written covenants can be absolutely taken away by disputed oral evidence. We think the safer rule is to hold that the covenants in a deed protect the grantee against every adverse right, interest or dominion over the land, and that he may rely upon them for his security. If open, visible and notorious easements are to be excepted from the operation of covenants, it should be the duty of the grantor to except them.”

And our own Supreme Court in Long v. Moler, supra, seem to be of the same opinion. On page 274 it is said:

“The covenant embraces in terms all incumbrances whatsoever and expects none whatsoever. * * * The parties may have had an understanding resting in parol to the effect that the taxes of the current year were to be excepted from the operation of this covenant. But this we can not know; for parol evidence is inadmissible to contradict or vary the plain provisions of the deed. The application of the rule may possibly, in this ease, work injustice to the defendant. If so, we can only regret it; for the rule itself, being a salutary one, must be maintained. ' ’

The following cases also, we think, support the view we have taken in this case: Ladd v. Noyes, 137 Mass. 151; McGowen v. Myers, 60 Iowa. 256 [14 N. W. Rep. 788]; Teague v. Whaley, 20 Ind. App. 26 [50 N. E. Rep. 41]; Myers v. Munson, 65 Iowa 423 [21 N. W. Rep. 759].

We are satisfied that the rule contended for that open, notorious and visible incumbrances are excepted from the operation of covenants against incumbrances finds no support in the Ohio decisions. It is urged that the right of way granted to the gas company is in the nature of a public easement, but we are unable to accept this view. Whatever the rule may be with regard to highways, we do not think that this pipe line can be regarded in the same category with roads and highways. Its construction was a private enterprise, and the fact that the public are interested in procuring the product which it transports does not make it any the less so.

Judgment of the common pleas court is reversed and the cause remanded with instructions to sustain the demurrer.

Pollock and Norris, JJ., concur.


author: DUSTIN, J.

text:
    APPEAL — ERROR.
    [Franklin (2nd) Circuit Court,
    July 30, 1912.]
    Dustin, Allread and Ferneding, JJ.
    Charles C. Higgins v. Turney & Jones, Co., et al.
    1. Dismissal on Appeal and Affirmance on Error to Judgment on Demurrer to the Facts not Ground for Extension of Time for New Action.
    Dismissal on appeal and affirmance on error in the court of appeals of an action that failed in the common pleas upon the merits — demurrer to the facts — does not work an extension of a years time within which to institute a new action under Sec. 11233 G. C.
   DUSTIN, J.

The point suggested by counsel for plaintiff in error that his action is within time under Sec. 11233 G. C., because brought within a year after a dismissal “otherwise than upon its merits” by the circuit court, on appeal, is not, in our view, well taken.

The case of Cummings v. Dougherty, 1 Dec. 231 (31 Bull. 140), does not, we think, state the law.

If a plaintiff wins in the trial court but the judgment is reversed in the upper court, he has a year after reversal in which to bring a new action; or, if he fails in the trial court otherwise than upon the merits, he has the same right.

In the ease at bar Jones failed in the trial court upon the merits, viz., upon a demurrer to the facts. By tailing an appeal he took the chances of losing by limitation of time. The dismissal of the appeal and the affirmance on error did not, we think work an extension.

Judgment affirmed.

Allread and Ferneding, JJ., concur.


author: JONES, O. B., J.

text:
    BANKS AND BANKING — FRAUDULENT REPRESENTATIONS.
    [Hamilton (1st) Court of Appeals,
    December 15, 1913.]
    Swing, Jones and Jones, JJ.
    Second Nat. Bank v. George E. McDonald.
    1. Mere Exaggeration of Dividends of Stock not Fraudulent Representation if Truth Easily Ascertainable.
    A defense of fraudulent representation will not lie to an action by a bank for recovery on a note, executed for a certificate of a new issue of stock, the representations consisting of statements by the cashier that the bank had a large surplus and was paying 12 per cent dividends, which was a fact; that the dividends would pay the interest on the note which, though not true, was easily ascertained by a simple mathematical calculation; and that the dividends probably would be increased which did not happen.
    2. Inadequate Defenses to Note for Bank Stock Sued on.
    A defense to an action by a bank on a note, given for a certificate of new stock issued, that such increase of stock was invalid does not lie, it appearing that it was duly authorized by the comptroller of the currency, or that the transaction was ultra vires, because the note was a mere loan to the bank for which it accepted its own stock as collateral, or that there was no consideration for the loan because the stock was not delivered but was held as collateral, possession being obtainable at any time by paying the note.
    Error.

      Jelke, Clark & Forchheimer and Peck, Shaffer & Peck, for plaintiff in error.

      Hackett, Y eat man <& Harris, for defendant in error.
   JONES, O. B., J.

Tbis was an action on a promissory note for $2,750 given by defendant to plaintiff dated February 1, 1912, payable on demand. This note was given in renewal of a note for the same amount dated January 16, 1909.

The plaintiff, a national bank whose capital stock was $500,000, by virtue of the federal statutes took the necessary steps to increase its capital to $1,000,000. The defendant became a subscriber for ten shares of its capital stock, purchased by him at the market price of $275 per share. The bank loaned him $2,750 to pay for this stock, and took the original promissory note as evidence of that loan, crediting $2,750 as cash paid in on account of its capital stock. A certificate for ten shares of stock was made out in the name of G. E. McDonald, and instead of his endorsing a transfer in blank on this certificate, an irrevocable power of attorney was executed by him appointing the Second National Bank as his attorney, to sell, assign, transfer and set over all or any part of said stock. This stock, with such power of attorney, was held as security for said loan.

Defendant paid twelve quarterly installments of interest on said note, at 5 per cent which were credited on the back of the note, the first installment being credited February 1, 1909, and the last one on the original note November 1, 1911. There is also a credit on the note sued upon of $47.80, paid August 23, 1912. McDonald received dividends on this stock as declared by the bank.

The petition is the usual form on a note. Defendant filed an answer and cross petition in which, in addition to a general denial, he pleaded that he had by the fraud of the bank been induced to subscribe for shares of its capital stock, which was then paying a dividend of 12 per cent, and on the promise that it would take his note payable on demand with 6 per cent interest, that it would not call such loan but would hold the certificate of stock as payment for the said note, and that the dividends on said stock would more than pay the interest on said note and in addition would pay part of the principal, so that eventually said stock so subscribed would become his property without having to pay out any money for it.

Defendant alleges that said statements were not true, and that he never received the stock and the note was therefore without consideration; and he further pleads that the act of receiving said note in payment for stock subscription was ultra vires on the part of the bank. And by way of cross petition defendant asks for a judgment against the bank for twelve quarterly payments of interest upon said note, of $41.25 each, amounting to $495.

The allegations of this answer were denied by a reply.

At the close of the evidence the court below refused plaintiff’s motion for an instructed verdict in its favor, but granted the motion of the defendant for an instructed verdict in his favor without finding any money due to him.

The evidence shows that Mr. McDonald, who was a building contractor, had erected the new bank building for plaintiff in which it was doing business, and was acquainted with its officers. When its capital stock was about to be increased Mr. Williams, its cashier, suggested to him the idea of taking some of its stock. Mr. Williams stated to Mr. McDonald, when he made the subscription, that the bank was in a prosperous financial condition and had a surplus of $500,000, which was true, and that the bank was declaring dividends of 12 per cent per annum, which was also true, and further stated that these dividends would about pay the interest on the necessary loan to buy the stock. While the answer alleges that the interest on the note was to be 6 per cent it seems that the interest charged by the bank was 5 per cent which amounted to $137.50 per year, while the dividend at 12 per cent was $120 on ten shares. These facts McDonald knew at the time of the subscription so he was not misled into believing that the rate of dividend then-being paid would quite carry the interest on the note. The opinion of both Mr. Williams and of Mr. McDonald at that time was that the stock would appreciate in value and the dividends would probably be increased, but there is no testimony showing that any representations were made as to how much this increase might be or when it might be had. The cashier testified that he himself had at the same time bought stock of the bank and then believed it a good investment. There is no evidence in the record that the bank changed its prosperous condition during the time that this note and stock were carried, and in fact we fail to find any evidence that the bank ever did become in a failing or insolvent condition.

Representations made by the cashier to McDonald at the time he subscribed for his stock, so far as past and present conditions were concerned, were true. Any statements made by him as to future prospects or hopes relating to the bank were merely his opinion, and appear to have been honestly made, and could not be held fraudulent with the effect of relieving the defendant from his obligation. Armstrong v. Karshner, 47 Ohio St. 276 [24 N. E. Rep. 897].

As stated above, McDonald knew that the dividend at the current rate would not quite pay the interest, and there would have to be a material increase in the rate of dividend to have it not only carry the interest but allow payments on- the principal of his debt to the bank.

Defendants argue that the increase of capital stock by the bank was illegal and therefore invalid, because a promissory note had been taken in payment of the stock when cash was required under See. 5142 R. S. of United States. This issue of capital stock was authorized by the comptroller of currency. His action is conclusive and its legality can not be questioned by defendant. Latimer v. Bard, 76 Fed. Rep. 536.

It is argued by defendant that this was virtually a loan made by the bank, taking its own stock as collateral, and that such a loan being forbidden by law was ultra vires and therefore can not be collected back by the bank. Such a defense by one who has given a note and secured a loan for it will not be allowed. National Bank of Xenia v. Stewart, 107 U. S. 676 [2 Sup. Ct. Rep. 778; 27 L. Ed. 592].

It is also argued that defendant received no consideration for the loan, as the stock was never in his hands. This defense can not be allowed, as the stock was actually issued. It was paid for by the money loaned on defendant’s note. As a stockholder he received dividends upon the stock and paid interest on the note at least for two years, and at any time he had seen fit to do so he could have paid his note and secured possession of the stock certificate.

It is argued that there is no individual account with Me Donald shown in the books of the bank; that one should havr, been opened in which he should have been credited with the money loaned and debited for the amount paid for the stock, the entries offsetting each other and thus closing his account, these in addition to the entry in the capital stock account showing the receipt of cash in payment for the stock sold. This is a matter of bookkeeping at best, but it does not seem to us necessary to open any account with McDonald and have cross entries therein balancing each, other. From the evidence, it was evidently treated as a cash loan to him, just as though the cash had been counted out to him when his note was taken, and then counted back by him to pay for the stock. The entry crediting capital stock, given in evidence, seems to be all that was necessary in this transaction, in addition to the entries in bills receivable accounts.

As there is no valid defense to the note shown by the evidence, the court below was in error in instructing a verdict for the defense and refusing to grant plaintiff’s motion for an instructed verdict in its favor.

The judgment below is reversed, and judgment will be entered here for plaintiff.

Swing and Jones, E. H., JJ., concur.


author: POWELL, J,

text:
    CRIMINAL LAW — PRISONS AND REFORMATORIES.
    [Richland (5th) Court of Appeals,
    September 11, 1914.]
    Powell, Voorbees and Shields, JJ.
    J. A. Leonard v. Barnett Licker.
    1. Act Relating To Delinquent Children Reformatory In Character and not Unconstitutional.
    The provisions of the General Code relating to delinquent children are reformatory in their nature and not penal; hence the provisions of Sec. 1652 G. C., that “where it appears upon the hearing that such delinquent child is 16 years of age, or over, and has committed a felony” he may be committed to the Ohio State Reformatory, is not unconstitutional.

      2. Commitment of Delinquent Child to Reformatory Discretional.
    Section 1681 G. C.. is discretionary and not mandatory, and a delinquent child, charged with a felony, may be committed as provided in Sec. 1652, or recognized to the court of common pleas, subject to the requirements of the general criminal laws of the state, at the discretion of the juvenile judge.
    Error.
    Clarence D. Laylin, for plaintiff in error.

      Ezra Brudno, for defendant in error.
   POWELL, J,

The petition in error recites that the court of common pleas for this county, in a proceeding pending therein upon an application by the defendant in error, Barnett Licker, for a writ of habeas corpus on the plaintiff in error, J. A. Leonard, as superintendent of the Ohio State Reformatory, inquiring into the cause of the imprisonment and detention by plaintiff in error of one Samuel Licker, rendered judgment and made final order discharging said Samuel Licker from the custody of the plaintiff in error, and remanding him to the custody of the juvenile court- of the county of Cuyahoga, .that being the county from which the said Samuel Licker had been committed to the Ohio State Reformatory. The errors complained of are:

First. That the court of common pleas erred in discharging said Samuel Licker from custody.

Second. That the judgment of said court is contrary to the law of the land.

Third. That the final order made by the said court of common pleas affects the substantial rights of the plaintiff in error as superintendent of said reformatory, in that it interferes with the plaintiff in error in the discharge of the duties imposed upon him by law and by the order of the-juvenile court within and for said Cuyahoga county, as set forth in the return filed by him in said proceedings and herein referred to.

A hearing was had upon the petition in error in which two principal contentions were urged:

First. That the statute under which the said Samuel Licker was committed to the Ohio State Reformatory was unconstitutional, in that no provision is made therein for indictment by the grand jury and trial to a jury as provided by law.

Second. That the statute itself does not authorize the commitment of juvenile delinquents between the ages of 16 and 17 years to the said Ohio State Reformatory.

Upon examination of the statutes the court has arrived at the conclusions following:

First. That the statute authorizing such commitment is not unconstitutional.

Second. That the said Ohio State Reformatory is not exclusively a place for the punishment of criminals.

Third. That the proceedings under the acts relating to juvenile delinquents are not criminal in their nature, but are intended to be and are reformatory.

Fourth. That the objects of the Ohio State Reformatory, in addition to being a place of detention for criminals, and therefore a prison as to such persons, are reformatory as to any other class of persons than criminals that may be authorized by law to be committed thereto.

Fifth. That the said Samuel Licker was ordered to be confined in the Ohio- State Reformatory by the juvenile court of Cuyahoga county, Ohio; that he was between 16 and 17 years of age; that he was found by said court to be a delinquent, and that he had committed an act that would constitute a felony when committed by a person of full age, namely that he was guilty of grand larceny.

By the terms of Sec. 1652 G. C., a juvenile delinquent, “where it appears upon the hearing that such delinquent- child is 16 years of age or over, and has committed a felony,” may be committed to the Ohio State Reformatory.

Section 1681 provides that:

“When any information or complaint shall be filed against a delinquent child under these provisions, charging him with a felony, the judge may order such child to enter into a recogni-zance, * * for his appearance before the court of common pleas at the next term thereof. The same proceedings shall be had thereafter upon such complaint as now authorized by law for the indictment, trial, judgment and sentence of any other person charged with a felony.”

This statute is not mandatory in its character, requiring the court to order such child to be sent to the court of common pleas to be there dealt with as provided by law for persons charged with crime. It is merely permissive, and its provisions are not confined to delinquent children between the ages of 16 and 17 years, but apply to any and all delinquent children who may be charged with a felony, without reference to the age of such delinquent.

This statute is not in conflict with the provisions of See. 1652. Section 1652 provides a different place for the confinement of delinquent children over 16 years of age from the places of confinement to which all other delinquent children may be committed, namely; to the Ohio State Reformatory. Section 1681 provides that delinquent children of any age charged with a felony may be indicted and subjected to the provisions of the general criminal statutes and punished as may be provided therein.

The said Samuel Lieker was committed to the Ohio State Reformatory under the provisions of Sec. 1652, the court in that case exercising its discretion as to the place of commitment. , A large discreton is given to the juvenile court in the handling of delinquent children. Thus must necessarily be so because of the great variety of circumstances in which such delinquency appears.

It has been held by the Supreme Court of the state of Ohio with reference to the constitutionality of certain sections providing for the commitment of children now known in the statutes as delinquent children, that “It is neither a criminal prosecution, nor a proceeding according to. course of the common law, in which the right to a trial by jury is guaranteed. The proceeding is purely statutory; and the commitment, in eases like the present, is not designed as a punishment for crime, but to place minors of the description, and for the causes specified in the statute, under the guardianship of the public authorities named, for proper care and discipline, until they are reformed, or arrive at the age of majority. The institution to which they are committed is a school, not a prison; nor is the character of their detention affected by the fact that it is also a place where juvenile convicts may be sent, who would otherwise be condemned to confinement in the common jail or the penitentiary.”

This language is a part of the opinion of White, J., as found in Prescott v. State, 19 Ohio St. 184, 187 [2 Am. Rep. 388], and the same was said with reference to a minor who was committed to the boys’ industrial school, then called “The Reform Farm, ’ ’ for an act which, committed by an adult or a person beyond the age of commitment to such reform farm, would have constituted a felony for which he would have been confined in the penitentiary.

This, as we view it, is applicable to the case at bar. The Ohio State Reformatory is a prison for persons who are convicted' of felonies and committed thereto upon a sentence of the court following such conviction; but for delinquent children who may be committed thereto after having committed an act constituting a felony it is only a school or place of reformation. It is what its name imports, a reformatory. The case just cited sustains the position of the court in this regard.

We think further that the Supreme Court has affirmed its view of the law relating to such matters in the case of the Cincinnati House of Refuge v. Ryan, 37 Ohio St. 197. In that ease it was said by Judge Johnson, page 203:

‘ ‘ The commitment is not designed as a punishment for crime> but to place destitute, neglected and homeless children, and those who are in danger of growing up as idle and vicious members of society, under the guardianship of the public authorities for their proper care, and to prevent crime and pauperism. As to such infants, it is a home and a school, not a prison. ’ ’

This moré clearly defines the nature of institutions of this kind.

We think that .the distinctions drawn in each of these two eases relate equally well to the case at bar, that the Ohio State Reformatory is not intended exclusively as a place of confinement for criminals, and that upon the passage of proper statutes for that purpose it may be made a place of confinement for juvenile delinquents who may be in need of reformation, as seems to have been true in the case at bar.

For these reasons we are of the opinion that the statute is constitutional that in proceedings under the juvenile delinquent acts there is no right to a trial by jury in which the accused should have the right to face the witnesses and such other rights as are guaranteed by the constitution, and that they may be sent by summary proceedings to said reformatory, as a means to their reformation and not for punishment.

The judgment of the court of common pleas will be reversed, and the court, proceeding to render the judgment that should have been rendered in the court below, dismisses the application for a writ of habeas corpus and renders judgment in favor of plaintiff in error.

Judgment reversed and judgment for plaintiff in error.

Voorhees and Shields, JJ., concur.