author: Grant, J.

text:
    RIGHTS OF A RESIDENT ALIEN.
    Court of Appeals for Summit County.
    John Nyitray v. John A. McAlonan et al.
    Decided, 1917.

      Aliens—Status of—Where Domiciled in the United States at the Beginning of Hostilities With the Fatherland—May Hot he Denied the Rights of a Litigant in the Courts of this Country—Protection Vouchsafed hy International Law and a Wholesome Public Policy.

    An alien, subject of a nation at war with the United States, domiciled in this country at the beginning of hostilities and not adhering to the enemy has the status of an alien amy and is not denied his day in court or the right to institute and prosecute an action for damages resulting from the actionable fault of defendant. This right is one of international law properly read into municipal law, is allowed by precedent, proclaimed -by the Hague Convention, recognized by wholesome public policy, and is in accord with the “spirit of 1917.” The right of the government to despoil an alien resident when hostilities begin is not accorded to citizens thereof.

      Smoyer & Clinedinst, Musser, Kimber & Huffman and B. C. Nesbitt, for plaintiff in error.

      Bockwell & Grant, contra.
   Grant, J.

In the court below the plaintiff declared in damages, sustained by him, as he said, through the actionable fault of the defendants.

When the cause was put to trial to a jury, the evidence disclosed the fact that the plaintiff was born a subject of the dual monarchy of Austria-Hungary, never having been naturalized as a citizen of the United States, although he had resided in this country for several years and in Summit county for more than three years. It appeared further that he had duly executed his preliminary declaration of intention to become such citizen'. prior to the time of trial below, but after the present war on the European continent had become flagrant on the part of his sovereignty of origin.

When this state of things was disclosed, the trial court sustained, in terms, certain motions made by the defendants that the cause be arrested from the jury and dismissed the action.

'This judgment is challenged by the petition in error as being in derogation of a substantial legal right of the plaintiff to wage his law in the courts of his present domicile.

The whole contention made by the defendants as to why the judgment under review should be upheld is aptly stated in their brief as follows:

First. That there is nothing before this court to hear, as plaintiff’s petition in the court- below was dismissed without prejudice at his own request; and

Second. That the action of the court in sustaining the motion of defendants was correct, for the reason that plaintiff is an alien enemy and not entitled to prosecute an action in our courts until the termination of the war.

In regard to the first of these propositions no more need -be said than that it is untrue in point of fact. As the trial judge was proceeding on the theory that the plaintiff, being an alien enemy, could have no standing in the courts of this country and was denying him the right of being a litigant at all, his. Macedonian cry to be dismissed from a forum where he rightfully was not, could hardly have been heeded to the effect of cutting him off from his remedy of a review.

Besides, it is quite apparent that whatever weight may have been given to the plaintiff’s request to have 'his action for the time abated, by way of inducement to the judgment shown by the record, the judicial deliverance at last was upon the court’s sole responsibility. The journal in this respect says:

_ “Upon consideration whereof the court finds that said motions and each of them should be and they are hereby sustained, to which judgment, ruling and order the plaintiff here and now excepts, and thereupon the said court dismissed plaintiff’s amended petition herein without prejudice, at his costs, to which order and judgment of the court the plaintiff here and now excepts.”

We assume at the outset that at the time of the trial below Austria-Hungary was at war with the United States. We think that in this respect the case comes within the rule of Insurance Co. v. Swinnerton, 37 N. Y., 174, which we regard as an authority upon this branch of the inquiry.

Addressing, therefore, our consideration to the remaining position taken in the brief and -approaching directly the simple question in dispute, it may 'be said that war, "the terrible litigation of nations,” is itself so abnormal, so completely at variance with all commonly received notions of justice and neighborliness in the human family, that extremely diverse views of the consequences remotely flowing from its existence have been held in different ages and by different men in dealing with them. It would serve no useful purpose to examine in any detail the mass of curious learning that has been heaped up and wasted on the subject, generally or in particular. It may be said, however, that conclusions have ordinarily 'been deduced to promote the selfish interests of the respective international litigants, by each in his own favor, in logical outcome of the fact that all warring powers are national Ishmaelites. And the softening influences of what used to be called civilization or Christianity have scarcely operated on the subject to the betterment of innocent victims of this "repeal of every principle of virtue,” otherwise called war.

Naturally enough, we of America look to the country of our political lineage for information and precedents to guide us to just judgments. But the latter are of little value, after all; the lex talionis runs through them and moulds them, for the most part.

The subject is discussed at length by Sir Robert Sawyer, attorney-general, in his argument for the crown in the great case of monopolies, East Indian Co. v. Sandys, 10 Cobbett’s State Trials, 371, decided in the time of Charles the Second.

Reviewing the common law as it gave status to .aliens, in England, he observes:

"That as the king may at common law prohibit any of his subject to go beyond sea, so, that he may license them to go for' trade or otherwise, is unquestionable. * * * Alien enemies are prohibited by the common law to come within the realm; yet the king may license them to come by his safe-conduct, as appears by the statutes made for the observation of safe-eon-ducts. No subject could seize his goods or injure his person, but he was punishable for it, both at the suit of the king and of the party * # * and that such an alien enemy may bring his personal action for debt, or any injury, appears by the case of John Douglas, a Scotchman, 20 E. 4, Vol. 6; Pt. 6, and Moore, 431.” * * *

The authority of 7 E. 4 is good law, but misapplied in not observing the difference between the times of the enemy or his goods, coming into the realm.

After open war proclaimed, whereby all the subjects have notice whom the king hath declared his enemies, and against whom they are to join in defense of themselves and the kingdom, if the persons or goods of such enemies come into the kingdom, any subject may seize them and gain a property in the goods, as a prize taken in open war, according to the authority of 7 Edw., 4. * * * But when the person or goods of aliens are in, or come into England under safe-conduct, and the safe-conduct be not determined by the king, * * * no person can seize the person or goods of such alien enemies.

Upon this difference the law was settled, 36 H. S. by the judges. Bro. Property, 38, in the abridgment of the case, 7 Edw., 4.

That when a Frenchman inhabited in England, and a war was afterwards proclaimed, no subject could seize his goods, because they were here before. But if he came after the war, any man may seize his person and goods, and shall.have a property in them, and in such case the king shall not have them. And so was it put in practice, saith the boob, between English and the Scots. * * *

I before showed that an alien enemy which came over by the king’s safe-conduct, was as much under the protection of the laws as any alien amy (friend) whatsoever; and no subject could seize or molest his person or goods. And the determining the safe-conduct by the king left the alien enemy in the same condition as other alien enemies, after war -proclaimed, who were here before under the general safe-conduct of the laws. In which case the subject had no liberty to seize either the persons or goods of alien enemies; but that power was reserved by law expressly to the king. Which, besides the authorities I have produced, expressly appears by Magna Charta, Chap. 30, which provides:

“That if the merchant-strangers be of the land which makes a war against us, and be found in our realm at the beginning of the war, they shall be attached, without harm of body or goods, until it be known to us or to our chief justice how our merchants be intreated there.”

This view of the common law of England in the time of the Stuarts seems not to' have been controverted in the case named. It amounts to this: That an alien in England, when war with another power becomes flagrant, shall be secure in his person and his goods and be sheltered by the English courts against the aggressions of English subjects—a security, however, which did not extend to aggressions on the part of the king. In other words, the foreigner coming into England in time of peace might continue there with that status of an alien friend, as against the.rule of universal outlawry and spoliation to which the public enemy was of right subjected, which public enemy he would be if he delayed his coming in till after war declared between his own sovereign and that of his domicile. But this immunity the king was himself not bound to observe. Pie might turn over the sojourner to public vengeance or despoil him of his goods at will, whether he entered the realm before or after the breaking out of hostilities; as to him the sole criterion was the existence of overt war between himself and the stranger’s prince.

And Sir Robert Sawyer sums up the rule thus:

“So that the disposal of their persons and goods was wholly in the king. And the liberty the subjects had to intermeddle with foreign enemies extended only to such who came here after a war proclaimed.”

And if the particular intermeddling took the form of running down the merchant-stranger with an automobile, the latter should still have his remedy in the courts, provided only that he came in before the war.

Now, in the case at bar, the king has not exerted his prerogative of visiting the vengeance which according to this exposition of the common law resides wholly in him, on the plaintiff, but, on the contrary, he has by proclamation exhorted to extreme tenderness to the misguided subjects of those perverted men bearing rule in the enemy countries, upon whom he has fixed the responsibility for the present unhappy state of war in which we find ourselves.

'This admonition to charity, this exhibition of "the spirit of 1917,” is strangely at variance with the spirit of the judgment we are here called upon to review—looking at the latter as a purely legal proposition pushed to its ultimate possibilities. The plaintiff is turned out of court and is denied redress for injury to his person, which injury might have been stripes wantonly administered, or deprivation of his goods, so far as the legal consequences of the denial are concerned. It is a thing which in tire reign of the meanest family of tyrants which ever occupied the throne of England was by law disallowed to the subject and properly reserved to the mean king, but which in this case the king-—a better king—wholly disavows and repels.

In legal quality and effect, the judgment under review may be assimilated to the cry of “hors de la loi” in the national assembly of the French Revolution, the echo of which sent the one ■against whom is was denounced to the judgment of the knitting women who turned a new seam as his head fell into the basket.

Sir Robert Sawyer’s statement of the common law of England is not damaged by the fact that his argument from it was to a far different purpose. He was arguing for the reserved right of the king to grant monopolies to trade with countries east of the Cape of Good Hope, because Lord Coke had pronounced an infidel “perpetus inimieus” and infidels the Hindoos were esteemed to be. As such, the crown could plunder them at will— as also it could the Jews, for were they not too “unbelievers” and so “perpetual enemies?”-—-but the subject must not; he could not “intermeddle.”

In fairness I feel bound to say that this construction of the common law of England has not been followed by the ^nsdish courts when occasion has arisen. But that the letter of the law so stood in 1685—upon whatever ground of reasoning—I see no ground for doubting.

It would be tedious as well as unprofitable for me here to trace the subject through the intervening years, or to discuss the cases in which it has been in many forms invoked. I shall, instead, come directly to our own time and address my inquiry to what the courts more recently have said. The question has been several times before them, both in England and America, since the outbreak of the present war, but only a few of the cases can be noted.

In Robinson & Co. v. Insurance Co., 31 T. L. R., 20, King’s Bench Division, the defendant, to defeat a recovery on a policy issued by it, pleaded that it was ,an alien enemy corporation and therefore could not be sued while the war should remain flagrant, and demanded that the action be suspended pending its cessation—which is said to be the theory of the judgment now under review, although, of course, it does not, nor can it, take that form. The plea was disallowed, on the ground that it favored an alien enemy to the injury of a British subject. 'The question was the converse of the one presented by the record at bar. This was in 1914. Later, it came up before the same court, in its positive form, in Porter v. Freundenberg, 31 T. L. R., 162, decided in 1915. The suit was for rent owing by a Prussian domiciled before the war in London and then having a resident agent there. It will be seen that the concrete question really was that of the capacity of an enemy to be sued—as in the other case,—but the entire question was dealt with, and the court undertook to decide it all—its holding material to our discussion being as follows:

“An alien enemy has no right to sue in an English court during the war, unless with special license or authorization of the crown.”

This conclusion purports to state the common law of England at the present time and an imposing array of eases are marshalled in its support. 'One of these, Antoine v. Morehead, 6 Taunt, 237, puts the judgment on the very simple ground that “a party having become an alien enemy could not enforce his personal rights, because he had none.”

The attention of the court in the Freundenberg case was called to the fact that the rule of the common law had been abrogated by Article XXIII of the Hague Convention, to which both Great Britain and the United States were.assenting parties. The material part of that article is as follows:

“In addition to the prohibitions provided by special conventions, it is particularly forbidden (h) to declare abolished, suspended or inadmissible the right of the subjects of the hostile party to institute legal proceedings. ’ ’

It should seem that if the English language can be made to signify anything at all, this means exactly what it says, and that it is not to be enlarged or aided by judicial construction. But the attorney-general said no—tand the court agreed with him. His contention was that the clause should be'read in connection ' with the context, which had to do with prohibitions on the use in warfare of incendiary missiles, poisoned weapons or water-sources, killing enemies while under the safeguard of flags of truce, forcing enemy prisoners into the ranks of the captor, and the like. From it all was deduced the conclusion that the inhibition quoted merely forbids the military commander of a belligerent force in occupation of the enemy’s territory to make any declaration preventing the inhabitants from resorting to their own courts in asserting their rights. Mir. Attorney-General admitted that this is a narrow and grudging view of the question and from which the French and German jurists have at all times dissented—they contending for the wide and natural construction which the words themselves clearly import. But he said, with truth, that the English and American opinion is to the contrary. He also said that the British foreign office notified the German Government to that effect, seasonably, and while the two powers were still at peace, and that the rule of the English common law must remain wholly unaffected in respect of the status of alien enemies. His conclusion was that as the German Government then made no protest, it must be held to have fully appreciated the claim that the right of alien enemies to be suitors in British courts was not admitted, notwithstanding the deliverance of the Hague Convention. And this interpretation has been supported by American text-writers. See American Journal of Int. Law, Yol. 2, p. 70 (1908). The highly Anglicanized fifth edition of Wheaton’s International Law—the man who in the preface calls himself the co-author, being an Englishman-—supports the same view, broadly. He says that “by the existing English law the outbreak of war operates ipso facto to suspend an alien enemy’s right of action.’’ And judging by the English cases, at least since Lord Ellenborough’s and Lord Thurlow’s time, this seems to be the fact. His position is that the question is not one of international law at all, but of municipal law, the inquiry being as to the locus standi of the enemy suitor.

And yet the admiralty division of the British High Court departed from this conclusion in the ease of the Moewe, in October, 1914. 'The president judge observed:

“The practice (i, in that court) should conform to sound ideas of what is fair and just. A merchant who is a citizen of an enemy country would not unnaturally expect that when the state to which he belongs, and other states with which it may unhappily be at war, have bound themselves by formal and solemn conventions dealing with a state of war, like those formulated at the Hague in 1907, he should have the benefit of such international compacts. He might equally naturally expect that he would be heard in cases where his property or interests were affected as to the effect and results of such compacts upon his individual position. * * * From the considerations to which I have adverted, I deem it fitting, pursuant to powers which I think the court possesses, to direct that the practice of the court shall be that, whenever an alien enemy conceives that he is entitled to any protection, privilege or relief under any of the Hague Conventions of 1907, he shall be entitled to appear as a claimant, and to argue his claim before this court.”

So it is not quite true in point of fact that the matter is wholly within the cognizance of the municipal law of one of the belligerents, but that a litigant is entitled to seek the shield of what most people would think the obvious and fair interpretation of Article XXIII.

The plaintiff at bar did not have that privilege accorded to him by the judgment he is here assailing, although the sovereignty which denies it to him agreed to be bound by the article.

In Freundenberg v. Porter, supra, McVeigh v. United States, 78 U. S. (11 Wall.), 259 (20 L. Ed., 80), is cited in support of the doctrine upheld by the court. It is the only authority quoted from our national Supreme Court. It does not do what is claimed for it. What it decides—and all that it decides touching this contention-—-is that McVeigh-—who was an enemy sub modo, being a Confederate—could be sued in the courts of the sovereign from which he had revolted. Whether he could sue in those courts or not was a question distinctly declined. In regard to it, however, reference was made—apparently with approval—to two cases, which I purpose briefly to consider.

The first is Russell v. Skipwith, 6 Binn., 241. It was decided in 1814, when we were at war with Great Britain. The plaintiff was a British subject. The court held that the plea of alien enemy is bad, unless it state that the plaintiff is himself an enemy or is adhering to the enemy, or its equivalent. In the opinion by the chief justice, it is said:

“In order to disable the plaintiff, you must go further and say that he himself is an enemy or is adhering to the enemy.”

And he adds:

“But there is another circumstance to be attended to. Although the plaintiff be an enemy, yet if he resides in the country where the suit is brought, under the protection of the government, he may support an action.”

I ask whether the fine protestations of our executive in promotion of “the spirit of 1917,” do not constitute this condition of upholding an action by a beneficiary of them. 'The chief

justice cites the English case of Openheimer v. Levy, 2 Stra., 1082. The plea in that case was that the plaintiff was an alien, born at Yienna, under the dominion of the king of the Romans, etc. It was disallowed because, as the court said, an alien friend may maintain an action, and it was not said that the plaintiff was an alien enemy. The opinion concludes in the following significant words:

“I trust that the courts of Pennsylvania will always be forward in administering justice to aliens on the most liberal principles recognized by the most civilized nations.”

Recurring to “the spirit of 1917,” breathing through the proclamations cited in the argument at the bar, here was the voice of one crying in the wilderness: “Prepare ye the way of the Lord; make his paths straight.”

The other case to which our attention is directed in McVeigh v. United States, supra, is the one largely relied on by the plaintiff here to work a reversal of the judgment of outlawry against him. It is Clark v. Morey, 10 Johns, 69.

The action was assumpsit on a note of hand. The second plea tendered was to the effect that the plaintiff was a born subject of the king of Great Britain, a power then at war with us; that he had not east off his allegiance of origin, by naturalization or otherwise; that he had come into the United States and still remained there, without any letters of safe-conduct from the President or any license to so reside, whatsoever, and that he was therefore incapable to sue in our courts. 'There was a demurrer to the plea.

Chief Justice Kent spoke for the court, holding the plea bad. He remarked—among much else:

“In the case before us we are to take it for granted (for the suit was commenced before the present war) that the plaintiff came to reside here before the war, and no letters of safe-conduct were, therefore, requisite, nor any license from the President. The license is implied by law and the usage of nations; if he came here since the war, a license is also implied; and the protection continues until the executive shall think proper to order the plaintiff out of the United States; but no such order is. stated or averred. * # * Until such order the law grants permission to the alien to remain, though his sovereign be at war with us. A lawful residence implies protection, • and a capacity to sue and be sued. A contrary doctrine would be repugnant to sound policy, no less than to justice and humanity.

'' The right to sue in such a case, rests on still broader ground than that of a mere municipal provision, for it has been frequently held that the law of nations is part of the common law. By the law of nations, an alien who comes to reside in a foreign country is entitled, so long as he conducts himself peaceably, to continue to reside there, under the public protection; and it requires the express will of the sovereign power to order him away. The rigor, of the old rules of war no longer exists. * * *

“It has now become the sense and practice of nations, and may be regarded as the public law of Europe * * * that the subjects of the enemy (without confining the rule to merchants), so long ,as they are permitted to remain in the country, are to be protected in their persons and property, and to be allowed to sue as well as be sued. ’ ’

After citing a beadroll of adjudicated cases and referring to many treaties and writers on international law and commenting luminously on all of them, America’s greatest chancellor concludes thus:

“The case before us does not raise the question, nor do we give any opinion in favor of the right of action by aliens who resided in the enemy’s country when war was declared, and when the action was commenced. The eases appear to be against such right. But, as to aliens who were residents with us when the war broke out, or who have since come to reside here, by a presumed permission, the authorities seem to be decisive. And whether we consider this case in reference to the dcisions of the English courts, to the act of Congress” (i. e., the alien act of John Adams’ time) “or to the sense of European nations, and by their writers on public law, the plea must be overruled; and the plaintiff is entitled to judgment upon his demurrer.”

The time has been when courts—including Ohio courts— would follow—gladly and even proudly—a precedent so sound in principle, so well fortified by authority and so consonant with justice and the common sense of civilized mankind, coming from one of the most eminent and loved jurists our country has produced. And the war spirit at large now can not yet have wholly exorcised the human considerations which underlie and permeate his opinion.

The case at ■ bar has more than & theoretical importance. The stranger within our gates is so numerous, so much bound up in our present prosperity and our coming welfare or the want of it, that its right solution signifies as much to us as -to him; and it comes home to him with peculiar and far-flung significance. In- the evil days that are upon us he has met with many a surprise as he comes to our shores. Some things from which he imagined he was fleeing when he cast his lot among us, he finds waiting for him here. Among'these it surely is to be hoped his capacity to be run down by automobiles and be denied redress for his injuries in the courts of his land of refuge is not; for we may be certain that if this thing may be done to that effect; if the raucous and insistent driver finds that he has a duly legalized letter of marque to rove the high streets at his sole will and pleasure, as against the very many alien people Who customarily traverse them, without the righteous fear of a damage suit before his eyes—if this, we say, has -the sanction of the courts, we may be sure the privilege will not pass unimproved, either in the silent watches of the night or “in the morning by the bright light.” The already customary battleground of our roads and streets will be littered with still more corpses in the legalized slaughter of those guilty of the offense of walking in them. And the fact will be another opportunity of the many of the “City of Opportunity,” and will be called to duty to invite more confiding strangers hither; it will not exactly be welcoming them “with bloody hands to hospitable graves” but it will be something like that.

The importance of the question to our common well-being and to our repute in the world, alone can justify so much as has been said here. That so much has been said precludes the saying of much more that might be said, -aptly and instructively. It also prevents the citation of other cases and the examination particularly, of -many that have been marshalled so industriously in the briefs.

It was suggested in the argument at the bar that some of our whilom solemn treaties call loudly for a reversal of this judgment. 'The answer was, and is, of course, that the war of itself has abrogated those treaties; they have become—if, indeed, they were not always so—“mere scraps of paper.” We have already seen how the courts have handled the handiwork of the Hague Convention. We are reminded of the Roman maxim—■ verified too often by experience—-“Inter arma leges silent.” But there is also the maxim that “Liberty follows the sword.”

And, along with treaties and conventions, we can safely sweep down the cobwebs of the so-called law of nations. When the Civil War broke out our great Ohio cabinet member complained that some policies of the administration were infraetive of the Constitution in tendency. To which Mr. Lincoln is said to have replied: “Chase: I reckon the Constitution is going to have a rather rough time of it for a few years to come”—as it did. It is so with international law. Its very countenance has already been so battered out of shape as to be unrecognizable by its best friends. Its elaborate framework has fallen amid the clash of arms. No man is so poor .as to do it reverence or to lift a voice in its defense. All are clutching for its spoils. The Prince of Peace has obtained a munition contract, for aught that men know to the contrary; or else has been elected town clerk at Ephesus and is making speeches to the silversmiths there assembled.

Still, having brushed away both treaties and international hypocrisy imbedded in forms of law, I have endeavored to show that the principle of the common law of England, even as expounded when that noble thing was being made to pimp for a low-down family of sovereigns, then contained within itself the germs of the right of the stranger within our gates—come to make and be one of us—to wage his law in our courts, and that in times when a free bath is given to the vilest hobo, the fountain of justice is closed to one sojourning with us—decently, so far as we know—and who, even if at home, our chief magistrate says is not our enemy and with whom, as a man and brother, neither we nor he have any quarrel or cause or occasion thereof; and, shall a right which the President disclaims be thrust by the judiciary upon an automobile driver?

I have tried to show also that this ¡ancient application of the common law has, in some American courts at least, survived to our own time, which should, in judicial charitableness and love of fairness and freedom, be a better time for men—alien men as well as our men. We are loudly professing as much. I have at least shown, as I think, that even treading in the narrow path of precedent, the line of authorities seeming to support the judgment under review is not, as was said at the bar, substantially unbroken; it certainly has been at times interrupted— notably in the two monumental commonwealths of our country.

But, casting out all argument deduced from the law courts and without stopping to balance accounts as to the number of decisions on either side, there remains a consideration which is after all the court of last appeal in a land of free institutions under law—a consideration which both underlies and tops all human laws, when its abiding place ¡and its function can be disclosed. It is the overruling power of a sound and healthful public policy. It is to be conceived, we think, that the embodiment of it at this time and in this war is “the spirit of 1917.”

And this, too, may be done by precedent. We have been kindly and disinterestedly directed to the latest ease of all on the subject within our knowledge by one not by any means bound to furnish us with this most useful, and what we regard as decisive, information. It is the ease of Posselt v. D’Espard, 101 Atl., 178, and it was decided in the court of chancery of New Jersey, April 21, 1917. An objection to the prosecution of the cause was made, in limine, on the sole ground that the complainants were alien enemies.

They were Germans and actually residing in Germany. They had, however, or one of them had, made declaration of his intention to become a citizen of this country in due form— in other words, had taken out his first naturalization papers. They were májority stockholders and the substantial owners of a New Jersey corporation. 'The defendants, following the true instinct of New Jersey, went about to wreck the company and •seize upon the salvage. The complainants sought to have them enjoined from doing so. The plea was, for substance, that of the white man in Plurabeuistah, when he was caught killing— or robbing—(we forget which) the Indian. The line of the poem which sums up the defense tendered—and also in the case at bar—is this: “He’s no business—business none-—to be an Injun.”

The vice chancellor says:

“A preliminary objection is made to the prosecution of the cause upon the ground that the complainants are alien enemies. The facts are conceded. The individual complainant is a subject of Germany, resident in this country; and has taken out his first papers. The corporation complainant is a subject of and resident in Germany. The bill is for the preservation of the rights of the complainants as stockholders in a New Jersey corporation and also in the interest of the New Jersey corporation for the protection of its rights against the action of the defendants. The German corporation is a majority stockholder, practically the owner, of the New Jersey corporation. The charge is that the defendants have deliberately set about to wreck the New Jersey corporation. No money decree is prayed for. If I should deny relief upon the ground stated by the defendants, then the property of alien enemies within this country, acquired in time of peace, may be ruthlessly taken away from them, not by the government, but by individuals, subject only to the restraint of criminal law. I am familiar of course with the very many learned opinions of publicists of other days, and also with the opinions of the Supreme Court of the United States, but I think that at this time to attempt to consider •them in detail would unduly extend this opinion, and in the view that I take of the present situation would be wholly unwarranted. The right of government to confiscate property of alien enemies and close the doors of its courts to them, whether resident here or elsewhere, may be conceded. Whether that right is to be exercised is a matter of policy. The modern trend is to discourage interference with property rights, whether of friends or enemies, in time of war, except so far as may be necessary to effectively accomplish the objects of the war. The solution of the problem now before me, I think, is found in the President’s message to Congress, which in view of the nature of its reception by Congress and the action of Congress under it has become the'voice of the country; and the President’s proclamation declaring a state of war and defining rights of residents, an official act under authority of Congress. German residents who comply with needful regulations and who properly conduct themselves iare assured that they will be undisturbed in the peaceful pursuit of their lives and occupations and be accorded the consideration due to all peaceful and law-abiding persons, except so far as restrictions may be necessary for their own protection and for the safety of the United States. To shut the door of the court in the face of an alien enemy resident here would be a distinct violation of not only the spirit but the letter of this proclamation.

“With respect to the alien enemy resident in Germany the situation is somewhat different, but I think not essentially so. The President has very carefully distinguished between the German Government and the German people, and the sins of that government ought not to be visited upon the people except so far as the legitimate interests of the United States require. I am convinced that there is no interest of the United States which requires the court, in advance of a definite command by the constituted authorities, to refuse to protect, at their instance, the rights of alien enemies resident abroad in property in this country. If it be said that this is in conflict with certain prior decisions the answer is that the solution of the question depends upon public policy, and while it is not the function of the court to establish a public policy, it is the function and the duty of the court to determine as a matter of fact what the policy actually is, and it is the policy of the present day, not that of some years ago, that must be determined. Tolerance is the keynote of the President’s proclamation, and by that I am bound. If the contention is made that to permit alien enemies resident abroad to sue in our courts would be to lend aid and comfort to the enemy, I think the answer is that either the court or the government may so act as to prevent any property coming into the possession of the enemy. I am unwilling to concede that either the government or the courts are powerless to prevent aid ,and comfort being given to the enemy without exercising the drastic power of refusing absolutely at the instance of an alien enemy to protect property rights within this country. I think the doors of the court are still open to all persons who properly behave themselves.

“The result is that the motion to stay the prosecution of this' cause on the ground of alien enemy will be denied. ’ ’

But it may be said that this is Jersey law and, that, like “Jersey lightning,” it may be very harmful. Very well; let us then assimilate Ohio law to it, or it to Ohio law.

We have, in the recent ease of Pittsburgh, C., C. & St. L. Ry. v. Kinney, 95 Ohio St., 64; 62 Bull. Supp., 75, a deliverance made by a jurist who has at least one thing in common with Saul of Tarsus, in that he is—or was—“a citizen of no mean city,” and which tells us all about what public policy is, to-wit:

“Public policy is the community common sense and common conscience extended and applied throughout the state to matters of -public morals, public health, public safety, public welfare, and the like; it is that general and well settled public opinion relating to man’s plain, palpable duty to his fellow-men having due regard to all the circumstances of each particular relation and situation.”

Measured by this definition, the public policy of Ohio, I think, stands manfully by the poor Plun in the case at bar and reads him and his lawsuit into the reason and the word of the New Jersey decision. ITe is under the protecting aegis of that law which is the foundation and the ultimate of all law fitting his case, as to him the law of the' land—expressed in terms of a wholesome and controlling public course of conduct, to be observed within their sphere by courts as well as individuals. We are easily constrained to follow it as a precedent. “Qui haeret in littera, haeret in cortice” (he who sticks in the letter sticks in the bark), was the natural and accepted legal maxim of our rude Anglo-Saxon ancestor, who went to field with a yew tree bow strapped to his back. We shall not let the letter of the law kill its spirit—the spirit of 1917—incarnate in the President’s proclamation, sanctioned by Congress, followed by the New Jersey courts. “The letter killeth, but the spirit maketh alive,” says St. Paul.

The plaintiff has still one more weapon in his armory of resource; When the late Cassius M. Clay began an abolition speech, in the blue-grass region, his custom was to lay on the desk a Bible, the Declaration of Independence and a Colt’s revolver. He called them his three arguments and used them in the order named. I am reversing that order.

The great Hebrew law giver said to his followers: “Love ye therefore the stranger; for ye were strangers in the land of Egypt.” May we not in like manner appeal to this just reminder of gratitude due and owing to the stranger within our gates'?

I can remember when in the evil days of our own great war, when we were "strangers in the land of Egypt,” our bonds went begging in Lombard street. They were bought generously at Frankfort-on-the-Main. At the -head of the lonely grave scraped out on the banks of the Shenandoah river, we made the inscription in the last words of the private soldier as the fragment of a shell sent him to his passionless'slumber—"I fights mit Sigel.”

To our enemies we should be at least just, within law. And the oracles of the law can not be offended thereat.

It is said that the inferior federal courts in Ohio are holding to the contrary view. We think it likely—the vice chancellor took notice of a like fact also.

Never mind. We prefer—they not being set in authority over us—to follow the admonition of humanity sanctioned by at least two of the three branches, of this co-ordinate government of ours, adopted by several courts of last resort, justified by the words of the Hague Convention, obedient to the voice of •humanity and by all these imbedded in the high law of public policy, at least until, if mistaken in conclusion, we shall be set ' right by our judicial superiors.

We have concluded to de-Prussianize the judgment at bar. It is contrary to law.

For that reason it is reversed, and the cause is remanded to the court from whence it came for such proceedings as should be had.

Carpenter, J., and Lieghley, J., concur.


source: Caselaw Access Project

author: Gorman, J. Hamilton, J.,

license: Public Domain

text:
    CHILD INJURED BY APPARATUS LEFT IN STREET.
    Court of Appeals for Hamilton County.
    Harold Rose, an Infant, by His Next Friend, George Rose, v. Joseph Habenstreit.

    Decided, November 12, 1917.

      Doctrine of Attractive Nuisance—Not Applicable to Apparatus Left in the Street, When—Child May be a Trespasser With Reference to Such Apparatus—Notwithstanding it Was Not on Private Property.

    An action does not lie, on the ground of attractive nuisance, for injury to a child while meddling with a piece of apparatus rightfully left in the street, unguarded and unprotected, but which was not in itself dangerous or an obstruction in the highway.

      W. H. Rucker and Thomas TJsher, for plaintiff in error. Darby & Benedict, contra.

       Affirming Rose v. Hebenstreit, 20 N.P.(N.S.), 269.

   Gorman, J.

This action was brought by George Rose, as the next friend of his infant son, Harold Rose. In the petition is claimed that the defendant is liable because of negligence in leaving unguarded and unprotected, at the corner of Ash street and. Highland avenue, in the city of Norwood, an apparatus consisting of .a pulley and a wire cable passing through the same. The pulley and the wire cable were used by defendant in the moving of a house on a public street of Norwood.

'There was no question made of the right of defendant to be in the street and to have his apparatus therein.

Defendant is a contractor in the business of moving houses, and on the 9th of August, 1915, and for some time prior thereto, was moving a two-story frame house eastward along Highland avenue between Marion avenue and Ash street. The house was being moved by horse power and a series of pulleys and a cable. The horse power was stationed in the center of Highland about 125 or 150 feet west of Ash, and at the time the injuries complained of were suffered by the boy, the house was about 125 feet west of Ash street. The defendant attached a large steel or iron pulley by means of a chain to an electric light pole which was stationed on the north side of Highland avenue directly opposite the curb line on the east side of Ash street and a.few inches north of the curb line on Highway avenue. Ash street terminates in Highland avenue. The pulley was attached to the pole about nine or twelve inches from the ground. The pulley was of iron, having a wheel about eleven inches in diameter revolving on a spindle which was attached at either end to a steel or iron stirrup, and-the stirrup was fastened to a snatch block to which a large iron or steel hook was attached. The hook was inserted in a link of the chain which was wrapped around the electric light pole. The cable was steel about five-eighhs of an inch in diameter. One end of the cable was attached to the drum of the horse power and the other was attached to a series of pulleys and attached to the house, and the horse in walking around caused the drum to revolve and the cable to wind upon the drum. When the pulley and cable were operated they made a squeaking noise. There were no guards or protection about the pulley or cable, and the apparatus was elevated a short distance above the street.

'The nearest person to the pulley was the man who was driving the horse, at the horse-power, about 150 feet away from the pulley. The neighborhood in which the house was being moved was a strictly residential district and children were accustomed to play in the street at this point, and this fact was known to the contractor.

This boy Harold Eose was about four years of age, and in some manner not clearly shown by the record the fingers of his right hand were caught in the pulley and cut off.

It is claimed in this case that the defendant is liable on the ground that the apparatus being operated was an attractive nuisance left in a public street unguared and unprotected.

At the conclusion of the plaintiff’s evidence the trial court instructed a verdict for the defendant and the judgment was rendered upon that verdict. It is now sought to reverse that judgment in this court.

The only question involved in this case is whether or not defendant is liable for leaving in the street unguarded and unpro- ' tected an apparatus which is claimed to be an attractive nuisance and as a result thereof a young child, not having reached years of discretion, was meddling therewith and was injured.

We are of the opinion that the trial court did not err in instructing a verdict for the defendant in this case. The doctrine of attractive nuisance has been fully considered in the case of Railroad Co. v. Harvey, 77 O. S., 235. Practically every ease involving the doctrine of attractive nuisance has been collected and commented upon by the learned judge who announced the opinion of that court. That is what is known as “the turntable case, ’ ’ and it was distinctly held in that case that the railroad company was

“not liable to an infant who comes upon its premises without invitation and is injured there while playing, without its knowledge, with a turntable. The doctrine of the turntable case is disapproved. Harriman v. Railroad Co., 45 O. S., 11, distinguished.”

Now in the case at bar it is not questioned that the defendant had the right to maintain his apparatus in the street, and when the child Harold Rose, meddled with the apparatus, as he must have done if he was injured thereby, he was as much a trespasser on the apparatus of the defendant as if the apparatus had been on private property owned by the defendant.

If under the case just cited, Railroad Co. v. Harvey, there could be no recovery, there could be no recovery by the plaintiff in this case were he an adult or person who had reached years of discretion. We can see no difference between a case' where property is meddled with or interfered with in a public street where the owner of the property had a right to have the same or maintain the same, and its being meddled with on private property. It is as much a trespass for the child to meddle with an apparatus properly in a public street as if it were on, private property. It is true the child had a right to be on the street, 'but it had no right to meddle with the apparatus of the defendant, and when it did so it was a trespasser as much as though it had stepped out of the highway onto private property and meddled with an apparatus that might be there located.

Several cases are cited by plaintiff in error from other states in which it is held that the doctrine of attractive nuisance does apply where the injury occurs in a public street. But upon examination of these authorities it will ibe found that they are announced in states in which the doctrine of attractive nuisance on private property is' still upheld.

While this doctrine of attractive nuisance is still the law in many states, there are other courts in other states of equal prominence that have discarded the doctrine as applied to property in a public highway. We think that upon reason and upon the weight of authority it must be held that the doctrine of attractive nuisance is exploded and discarded not only by the courts of many states entitled to great weight and consideration, but also in our own state.

In the case of Friedman v. Snare & Triest Co., 71 N. J. L., 605, the court denied the liability for injuries to a little girl between four and five years of age who had been injured upon some iron girders that fell upon her while playing upon them in the street where they had been placed by an abutting property owner for use in the construction of a building.

In Ryan v. Tower, 128 Mich., 463, a little girl twelve years of age was in the habit of passing a pumping house upon the way to school with her brother's and sisters going across lots through the field because it was nearer. For some time previous to the time of the accident a hole existed in the stone wall of the house enclosing the wheel, through which the children went to play on the wheel. On the day in question the brothers of the plaintiff on the way from school crawled through this hole and mounting the wheel were able by their weight to turn the wheel partly around and back. A younger sister aged eight got caught between the wheel and the wheel pit, and the plaintiff heard her screams and went through the hole to her aid and was herself injured. It was held in that case that there was no liability-on the part of the owner.

Many English and American cases are examined and commented upon in that case. Judge TIooker in deciding that ease used this language:

'‘Here we have the doctrine of the turntable cases carried to its natural and logical result. We have only to add that every man who leaves ,a wheelbarrow or a lawnmower or a spade upon his lawn; a rake with its sharp teeth pointing upward, upon the ground or leaning against a fence; a bed of mortar prepared for use in his new house; a wagon in his barnyard upon which ■children may climb and from which they may fall; or who turns in his lot a kicking horse or a cow -with calf—does so at the risk of having the question of his negligence left to a sympathetic jury. How far does the rule go? Must his barn door and the usual appertures through which the .accumulations of the stable are thrown be kept locked and fastened lest twelve-year-old boys get in and be hurt by the animals, or by climbing into the haymow and falling from beams? MJay a man keep a ladder, or a grindstone or a scythe, or a plow or a reaper without danger of being called upon to reward trespassing children whose parents owe and may be presumed to perform the duty of restraint? * * * Can a man nowadays safely own a small lake or fishpond? And must he guard ravines .and precipices upon his land ? Such is the evolution of the law less than thirty years after the decision of Railroad Co. v. Stout when, with due deference, we think some of the courts left the solid ground of the rule that trespassers can not recover for -injuries received, and due merely to negligence of the persons trespassed upon.”

If we are to apply the doctrine of attractive nuisance to property lawfully left in the street, although the same may not be a nuisance in itself, and be left there as a matter of right, it appears to us that we are relieving the parents .and natural guardian of chilren from the duty whieh they owe to care for them and watch over them, and we are placing the burden of watching over the welfare of the children and protecting them from danger upon strangers who owe no such natural duty to them.

We do not think it profitable or expedient to cite the numerous cases that have arisen in which the doctrine of attractive nuisance has been discussed. The case of Fitzgerald v. Rodgers, 68 N. Y. Supp., 946, seems to be strong enough to warrant this court in sustaining the ruling of the court 'below in arresting this case from the jury. The facts in that case are so similar to the facts in the case before us that we might very well afSrm the judgment below upon the authority of this case. It was sought to recover damages in that case from the defendant, a contractor employed by the city of New York to construct a sewer in Long-wood avenue. In excavating the trench in which the sewer was to be laid the defendant made use of a machine or apparatus known as a winch by which fragments of stone were lifted from the excavation to the surface of the land. This apparatus consisted of a framework in which was a drum. There was a cable attached to the drum, and a boom or sweep fastened to the upper end of the drum. In lifting stone from the trench a horse was-hitched to the 'boom or sweep, and by the process of winding the cable around the drum the stone to which one end of the cable was fastened was brought to the surface. The infant son of the plaintiff saw some boys playing with this apparatus. The boom or sweep was attached to the drum and in place, and boys were pushing the boom thus causing the drum to revolve and the cable to wind around it. The defendant’s workmen had been using the machine some time prior to the happening of the accident. The infant son of the plaintiff, about ten years of age, got upon the boom and sat upon it while it was being moved, his feet slipped and his leg was caught in the cable and he sustained injury. The complaint was dismissed upon the trial, and from the judgment entered upon such dismissal an appeal was taken to the appellate division of the Supreme Court of New York. In deciding the case, Patterson, J., for the court, uses this language:

“The contention of the plaintiff appears to be that when it was left in the street unguarded and unprotected and without a warning it became a nuisance, particularly to children playing in the highway, and who would be tempted or enticed to play with it. The machine was not in itself dangerous. ’ ’ [And the same may be said of the apparatus used by the defendant in the case at bar.] “It did not in itself constitute an unlawful obstruction in the highway; nor was it of such a character that, even if left with the boom or sweep attached to the drum, it could be found by a jury, from that circumstance alone, that it was dangerous and a temptation or enticement to children of tender years to play with it, and that the natural and probable result of their so playing would 'be injury to them. Even where liability is sought to toe imposed upon a defendant upon the ground of negligence under such circumstances as appear in this ease, it must be shown not only that the apparatus with which the child was playing was dangerous, but that it was of such a character as would induce or allure children to play with it. The evidence in this case did not warrant the submission of the question to the jury. It could not be found that the machine was left in a dangerous condition, nor that it was of such a character as to lead the defendant or his servants to believe that it would be used by children in play. If the apparatus had been left upon private premises in the condition claimed by the plaintiff, it would no more have constituted a temptation to children than did the turntable in Walsh v. Railroad Co, 145 N. Y., 301, 39 N. E., 1068, and Daniels v. Railroad Co., 154 Mass., 349, 28 N. E., 283, 13 L. R. A., 248. The fact that the defendant’s trench was in a projected public street does not change the rule. In Gay v. Railway Co., 169 Mass., 242, 34 N. E., 258, the car upon which the plaintiff’s intestate was playing when he received his death was, and for some days had been, standing in an open ¡and exposed place, namely, in one of the streets or public highways of a city.

“The complaint was properly dismissed, and the judgment should be affirmed with costs.”

While it may be said that the Supreme Court of our state has not yet squarely decided that the doctrine of attractive nuisance does apply where property is left in a public highway, nevertheless, upon the weight of the authorities decided by this state we are convinced that there can be no distinction made toeween trespassing upon private property and upon property properly and lawfully left in a public highway.

We think it a wholesome rule to ¡apply that the parents and guardians of children Should not be permitted to relieve themselves of the duty which the law imposes upon them of looking after the safety of their children, not only on private property, but upon public streets; and the rule laid down in Railroad Co. v. Harvey, 77 O. S., 235, will be held to extend to property lawfully in public streets as well as to that upon private property.

Judgment affirmed.

Jones, P. J., concurs.

Hamilton, J.,

dissenting.

I can not concur in the opinion of the majority of the court, for tbe reason that the question as to whether or not the appli-. anee was a dangerous instrument or an attractive nuisance was one which should have been first submitted to the jury.

Further, the accident having occurred on a public street where the child had a right to be and where it might be expected that small children would exercise their childish instincts, I can not concur in extending the doctrine of Railroad Co. v. Harvey, 77 O. S., 235, as applicable to private premises, to be determinative of this case. Brewing Co. v. Kapl, 22 C.C.(N.S.), 309; Gibbs v. Village of Girard, 88 O. S., 34.


author: Richards, J.

text:
    VERDICT ORDERED FOR. DEFENDANT ON PLAINTIFF’S STATEMENT TO THE JURY.
    ■Court of Appeals for Lucas County.
    James Rodeff v. The Lake Shore & Michigan Southern Railway Company, et al.
    Decided, January 15, 1917.

      Statement to Jury—Where Not Setting Forth a Cause of Action—. Requires a Directed Verdict for the Defendant—Failure to Show Actionable Negligence—Application of Federal Employers’ Liability Act.

    1. When counsel for plaintiff in his opening statement of the case to the jury detailed what he expected to prove to sustain his petition, whereupon counsel for defendant -moved for a directed verdict in ■his favor -on such statement, and no application was made to explain or qualify the statement, and it clearly appears that the facts offered to be proved would not authorize a judgment for plaintiff, it was. the duty of the court to direct a verdict for the defendant.
    2. A -petition by a section man to recover -for personal injuries, which avers only that he was engaged with other employees under the direction of a foreman and with -the aid of tongs in ■the lifting and carrying of a heavy steel rail from the track of the company across a depression in the right-of-way and that he was injured by the shifting of the burden onto himsel-f when the workman in advance stepped into the depression, thus lessening that employee’s lifting capacity, fails' to set forth any actionable negligence.
    3. In order to bring a case within the provisions of the federal employers’ liability act, the record should show not only that the company was engaged in interstate commerce but that the employee was so engaged at the time of his injury.
    . J. H. Southard and H. J. Cannon, for plaintiff in error.

      Doyle, Lewis, Lewis & Emery, contra.
   Richards, J.

Error to the court of common pleas.

The plaintiff sued in the court of common pleas for tbe purpose of recovering damages for personal injury resulting to him on September 20, 1915. He was employed as a section man and at the time of his injury was engaged, with other workmen, under the direction of a foreman, in moving steel rails from the track or right of way of the defendant by the use of tongs. At the close of the opening statement to the jury made by counsel for plaintiff, the court, on motion of the defendant, directed the jury to return ,a verdict for the defendant upon such statement of counsel. This motion was argued by counsel and, upon consideration thereof, the court granted the same and judgment was entered on the verdict. While the method of procedure thus adopted has not been very common in the state courts, yet the trial judge in so proceeding was not traveling in any untrodden path. The practice is approved in Cornell v. Morrison, 87 O. S., 215.

The opening statement follows substantially the allegations of the amended petition, elaborating those allegations in some respects. The amended petition and the opening statement show, in substance, that the plaintiff and other workmen had been supplied by the company with tools known as tongs, used to lift and carry steel raffs, and that these tongs were of such length as to permit the section-men to take hold of the handles and lift and carry the rails while the workmen were standing or moving in a more or less upright position. The rail which the section men were handling was about thirty feet in length and weighed approximately one thousand pounds. The men had been supplied with six pairs of tongs, and twelve men were engaged in the operation of moving the rail. It appears that the plaintiff was standing on the track and holding the tong fastened nearest to the end of the rail which wias elevated above the track, and that all the workmen were standing alongside of the rail, six on each side of the rail, and that plaintiff was elevated from a foot and ,a half to two feet above the man holding to the same tong and directly opposite him. It is averred and asserted by counsel in the opening statement that there was a decline from the place where the plaintiff stood inside the rail, to the right of way outside of said rail, and that this rail was to be carried across the decline or depression; and counsel assert in the opening statement that the end of the rail lying on the track should have been pried or pushed off the track and placed in a parallel position to the track and lengthwise of the depression.

Plaintiff contends that the negligent act of the defendant consists in directing the carrying of this rail across this decline in an improper manner, and that by reason of the inequalities in the ground, the "burden of the rail would be shifted unequally upon the workmen. 'The statement further shows that this greater burden was placed upon the plaintiff and the man stationed at the side near where he was standing, and that the men opposite plaintiff were standing on lower ground and their lifting capacity thereby to a great degree impaired, and that when they started to carry the rail the workman next to the plaintiff on the same side stepped down from the track in advance of the plaintiff, thereby lessening his capacity to lift, and shifting the great proportion of the burden to the plaintiff.

The employment in which the plaintiff was engaged was the simple operation of assisting in the carrying of a heavy burden, an operation which is nearly, if not quite, as simple ■ as the familiar one of carrying a trunk up or down stairs. We have given eareful attention to the oral and written arguments of counsel and are unable to find any such negligence of the defendant as would render it liable.

The case is, in our judgment, directly within the rule announced in Stenvog v. Minnesota Transfer Ry. Co., 108 Minn., 199, also reported in 17 A. & E. Anno. Cases, 240. The principle which forbids a recovery is that the servant is the best judge of his own lifting capacity. The principle is equally applicable whether the burden is to be lifted and carried on level ground or ground which is uneven. The notes to the case just cited, as found' in American and English Annotated Cases, state that the lifting of heavy objects involves no perils that are not obvious to any person of common understanding. The rule as stated is followed in Creamus v. Great Northern Ry. Co., 154 N. W., 616 (131 Minn., 34). See also Haviland v. K. C., P. & G. R. R. Co., 172 Mo., 106.

The case at bar is not entirely parallel to that of Cincinnati Gas & Electric Co. v. Johnston, 76 O. S., 119, but the differences are not of such a character as to make that case inapplicable as an authority.

We have no hesitancy in reaching the conclusion that no such negligence is averred or stated as creates a cause of action against the defendants.

The allegations of the amended petition state that the defendants “were at the time hereinafter stated and now are engaged in interstate commerce,” and that the plaintiff was a section hand “whose work it was to assist in keeping the tracks of said railroad companies in repair for both local and interstate business and traffic.” The apparent purpose of inserting these allegations in the amended petition was to make a case which would fall within the provisions of the Federal Employer’s Liability Act. We do not find it necessary to determine whether these allegations are or are not sufficient to bring the case within the terms of that act. To bring a case within that act it is not only necessary that it should appear that the defendant company was engaged at the time in interstate commerce, but that the employee himself was at such time so engaged. 'The rule is stated in N. Y. C. & H. R. R. Co. v. Carr, 238 U. S., 260, and Shanks v. D. L. & W. R. R. Co., 239 U. S., 556. See also: Pedersen v. D., L. & W. R. R. Co., 229 U. S., 146; St. L., S. F. & I. Ry. Co. v. Seale, 229 U. S., 156; C., B. & Q. R. R. Co. v. Harrington, 241 U. S., 177; L. & N. R. R. Co. v. Parker, Adm’r, 242 U. S., 13.

By the terms of the Federal Employer’s Liability Act the defense that the employee assumed the risks usually incident to the employment still remains available to the employer, and, of course, it would follow that, if the plaintiff and defendant were engaged in interstate commerce at the time the plaintiff was injured, he .assumed the risk of the injury with which he met and would be thereby barred of recovery.

Finding no error, the judgment will be affirmed.

Chittenden, J., and Kinkade, J., concur.


author: Per Curiam.

text:
    CONTINUING JURISDICTION OF THE INDUSTRIAL COMMISSION.
    Court of Appeals for Hamilton County.
    N. B. Maxey v. The Industrial Commission of Ohio.
    Decided, November 26, 1917.

      Denial of Further Compensation to Injured Employee Because of Development of the Injury—Does Not Confer Jurisdiction on the Common Pleas.

    Tbe court of common pleas is without jurisdiction in tbe matter of a denial by tbe industrial commission of an application by an injured employee for further compensation because of a development of his injury occurring subsequent to the making of the original allowance by the commission.

      Allen C. Roudebush and Joel H. Ward, for plaintiff in error.

      Campbell, Hickenlooper, Hauck & Capelle, County Prosecutor, for defendant.
   Per Curiam.

In this case the industrial commission found upon the original application and proof of injury that the claimant was entitled under the law to compensation, and it fixed and paid an allowance for the same. A claim for additional compensation was afterwards made because of a subsequent development—the formation of an .abscess—that was claimed to have resulted from the original injury. This claim was denied by the commission which held that the proof was not sufficient to show that the abscess was caused by the injury.

The power and jurisdiction of the board, however, is continuing, and it still has power upon a further rehearing to make such modification or change in its rulings as the facts may justify.

The facts in this ease bring it directly under the case of Snyder v. State Liability Board of Awards, 94 O. S., 342. The court of common pleas therefore had no jurisdiction of the subject of 'the action, and the case should have been dismissed in that court. Instead of so doing, however, the court directed a verdict in favor of the defendant and judgment was entered thereon. This action was not to the prejudice of the plaintiff in error, and the judgment will therefore be affirmed.

Jones, P. J., Gorman, J., and Hamilton, J., all concur.


author: Jones, P. J.

text:
    RELIEF AGAINST INEQUALITIES IN TAXATION.
    Court of Appeals for Cuyahoga County.
    Judges Jones, Gorman and Hamilton, of the First District, sitting in . place of the Judges of the Cleveland District.
    George M. Potter, on His Own Behalf and on Behalf of Others Similarly Situated v. P. C. O’Brien as Treasurer of Cuyahoga County, Ohio.
    Decided, January 23, 1918.

      Taxation—Gross Disregard of the Rule of Uniformity—Susceptible of Correction by the Courts, When—But Not Open to Relief Where Due to Incapacity of Officials and Appeal Has Not Been Made to the Proper Tax Tribunals—Discrimination in Valuations—Due to Adoption of Different Methods by District Assessors.

    1. Deliberate disregard and intentional violation of proper tax laws ,by the officials charged with their execution, which result in gross in- ■ equalities in valuation and thus destroy the rule of uniformity in taxation required by the Constitution, furnish grounds' for relief in a court of equity under Section 12075, even where the property to be relieved is itself not placed at a valuation beyond its true value in money.
    2. Where such inequalities arise only because of the incapacity or faulty judgment of the tax officials, or where the proper tribunals provided in the system of taxation have not first been appealed to’ in vain, no such relief can be afforded by the courts.

      Chapman, Howland, Niman & Younger and F. C. Haimen, for plaintiff.

      Samuel Doerfler, Prosecuting Attorney, T. S. Dunlap, Assistant Prosecuting Attorney, and A. E. Clevenger, contra.
   Jones, P. J.

On appeal from the court of common pleas.

This ease was first presented on demurrer to the amended petition as finally amended in this court. It is an action brought by the owner of certain real estate in the village of Clifton Heights seeking to enjoin the collection of excessive taxes upon such real estate,

The amended petition contains allegations setting out the method by which the tax duplicate of Cuyahoga county was made up by the taxing officers, wherein, it is claimed, the tax valuations made in 1910 and in 1914 and 1915 were in part used, together with certain reassessments of new valuations made in 1916, to make up the duplicate for the year 1916.

So far as objection is made to the power of the taxing officials to adopt the valuations used in previous years, no matter how made, where they find them to be proper, instead of making different and new valuations entirely independent of and without regard to any former valuations, the matter is res adjudicata. The supreme court has spoken in the ease of Zangerle v. State, ex rel Heald, 94 O. S., 453. Defendants claim this case entirely disposes of the case at bar for the reason that it involved the legality of the tax duplicate of 1916 upon which the valuations herein complained of are found.

The only question raised in that case was whether tax valuations of previous years, whatever the legal standing of the officers by which they were made, could be considered and adopted as the valuations of the tax officers engaged in making the tax duplicate of 1916, or whether these officers were not bound to disregard such previous valuations entirely and to list -and value for taxation all real and personal property subject to taxation in the county constituting their assessment districts in accordance with the requirements of the statute. A consideration of the record and report of that case shows that it involves only the question of method, and that no question of results obtained or of want of uniformity in valuations was raised, or considered by the court.

The amended petition in this ease, however, in addition to its objections as to method, charges in substance that while the district assessors assessed the real estate of plaintiff and the other lands in Cleveland Heights at their true value in money, all other lands of the county and state were valued at not to exceed fifty per cent, of their true value which were their valuations on the duplicate of 1910; that while the real estate of plaintiff had increased in value between the years 1910 and 1916, the value of all other lands in the county and state had likewise improved in the same proportion, and to value part on one basis and part on the other was to create unjust discrimination. This gross discrimination in valuations is alleged to have been intentionally made by the assessors and county auditor, with full knowledge of the lack of uniformity in valuations, as a result of a determined plan on their part, .and pursuant to a general agreement between the county auditors of the state that the valuations of 1910 would otherwise be continued throughout the state. While no malice is charged against the auditor or assessors, or any desire on their part to injure or defraud plaintiff, it is claimed that in law such intentional action on their part worked an unlawful discrimination and operated as a fraud upon the rights of plaintiff. It is claimed that no provision is made by statute for redress against such inequalities other than an appeal to the courts such as is made in this case.

Tins action is brought under authority of Gr. C. 12075. Systems of taxation usually provide for an appeal from the tax assessors to some board vested with powers of equalization. In the so-called Parrett-Whittemore law (106 O. L., 246 and 433) provision was made for such a board in the board of revision. The powers of this board were, however, limited to valuations made in a current year in State, ex rel Locher, v. Coffinberry, 94 O. S., 453 ; and the board was found to be an illegal body without power, in State, ex rel Godfrey v. O’Brien, 95 O. S., 166, where certain sections of the Parrett-Whittemore law were declared invalid. In the absence of a statutory board of equalization, an appeal to the court remains as plaintiff's only remedy. Zangerle v. Thompson, 95 O. S., 262.

The Supreme Court in the early case of Exchange Bank v. Hines, 3 O. S., 1, interpreted Section 2, Article XII of the Constitution, at page 15, as follows:

“What is meant by the words, ‘taxing by a uniform rule’? And to what is the rule applied by the constitution? No language in the constitution, perhaps, is more important than this; and to accomplish the beneficial purposes intended, it is essential that they should be truly interpreted, and correctly applied. ‘Taxing’ is required to be ‘by a uniform rule’; that is, by one and the same unvarying standard. Taxing by ,a uniform rule requires uniformity, not only in the rate of taxation, but also uniformity in the mode of the assessment upon the taxable valuation. Uniformity in taxing, implies equality in the burden of taxation; and this equality of burden can not exist without uniformity in the mode of the assessment, as well as in the rate of taxation. But this is not all. The uniformity must be coextensive with the territory to which .it applies. If a state tax, it must be uniform all over the state; if a county, town or city tax, it must be uniform throughout the extent of the territory to which it is applicable.”

This construction has been uniformly adhered to in later eases. Hill v. Higdon, 5 O. S., 243, 246; Zanesville v. Richards, 5 O. S., 589; Wasson v. Com’rs, 49 O. S., 622, 635; State, ex rel, v. Jones, 51 O. S., 492, 505.

Probably the case most frequently cited as an illustration of the relief granted by a court where a settled rule or system of making valuations of property has been followed, which results in a gross discrimination, in disregard of this rule of uniformity, is Cummings v. National Bank, 101 U. S., 153. This case originated in Ohio and the opinion of the court fully discusses the Ohio law, and in it is found the language above quoted from Exchange Bank v. Hines. The facts are applicable to the instant ease, clauses 3 and 4 of the syllabus being as follows:

“3. That when a rule or system of valuation for purposes of taxation is adopted by those whose duty it is to make the assessment , which is intended to operate unequally, in violation of the fundamental principles of the Constitution, and when this principle is applied not solely to one individual, but to a large class of individuals or corporations, equity may properly interfere to restrain the operation of the unconstitutional exercise of power. 4. That the appropriate mode of relief in such cases is, upon payment of the amount of the tax which is equal to that assessed on other property, to enjoin the collection of the illegal excess.” . j; j-.'¡M

. Other cases of improper discrimination are found in Raymond v. Chicago Trac. Co., 207 U. S., 20, and Johnson v. Wells Fargo Co., 239 U. S., 234.

A recent case on this question of discrimination in value is Greene v. Louisville & Interuban R. R. Co., 244 U. S., 499. On pages 515 and 516 the court uses the following language :

“-It is equally plain that it makes no difference what basis of valuation—that is, what percentage of full value—may be adopted, provided it be applied to all alike. The adoption of full value has no different effect in distributing the burden than would be gained by adopting 75 per cent., or 50 per cent., or even 10 per cent., as the basis—so long as either was applied uniformly. The only difference would be that, supposing the requirements of the treasury remained constant, the rate of taxation would have to be increased as the percentage of valuation was reduced. * * * Therefore, the principal if not the sole reason for adopting ‘fair cash value’ as the standard for valuations, is as a convenient means to an end—the end being equal taxation. But if the standard be systematically departed from with respect to certain classes of property, while applied as to other property, it does not serve but frustrates the very object it was designed to accomplish. It follows that the duty to assess at full value can not be supreme in all cases, but must yield where necessary to avoid defeating its own purpose.”

This ease also quotes at some length (pp. 516, 517 and 518) from Taylor v. L. & N. R. Co., 88 Fed., 350, in which the opinion was rendered by Judge Taft by whom the question is fully discussed. On page 374 of this opinion the following language is pertinent here:

‘ ‘ If any board which is an essential part of the taxing system intentionally, and therefore fraudulently, violates the law, by uniformly undervaluing certain classes of property, the assessment by other boards of other classes of property at the full value, though a literal compliance with the law, makes the whole assessment, considered as one judgment, a fraud upon the fully assessed property. And this is true although the particular board assessing the complainant’s property may have been wholly free from fault or fraud or intentional discrimination. ’ ’

I

But it is said that our own supreme court has declined to follow the federal court in these cases, and counsel rely upon Wagoner v. Loomis, 37 O. S., 571. It is true the court in that case failed to grant relief from what it found to be ‘‘gross, if not scandalous inequality” between the burden of taxation upon bank shares and upon other property. But it held that the record did not disclose but that this inequality might have'resulted from incapacity in the taxing officers. It distinctly declined to inquire (p. 582) whether relief might be given

“in case of fraudulent conspiracy, or combination or rule adopted by those whose duty it is to fix the taxable values of property, for the purpose of imposing upon some property, or class of property, more than its just share of the public burdens, ’ ’

and expressly found

“No such combination or rule of action is shown in the case before us.”

i

For that reason only it distinguished Cummings v. Bank, 101 U. S., 153, and Pelton v. Bank, 101 U. S., 143, and further said:

“But even in such eases, equity will not afford relief to a complainant who can not show that the burden imposed on him is greater than it would have been, if the laws had been faithfully executed, by taxing all property by a uniform rule, and according to its true value in money; and also, that the tribunals provided in the system of taxation, for redress against inequalities, had been appealed to in vain.”

Counsel for defendant claims that the relief sought by plaintiff is “directly in the teeth” of the decision in this case, and a cursory reading of the syllabus might so indicate. But when considered with the facts as set out by the court, it is found that the federal cases above set out, relied upon by plaintiff, are not inconsistent with the law of Wagoner v. Loomis. Clauses 3, 4 and 5 of its syllabus ,are as follows:

“3. Inequalities in the valuations, made under a valid law, of property for taxation, do not constitute grounds for enjoining the tax, in the absence of fraudulent discriminations by the agents and officers charged by the law with the duty of making such valuations.

“4. Even in such case equity will not relieve a taxpayer whose property is not assessed in a greater amount than would have been imposed upon it, in case all the taxable property of the state had in fact been assessed, by a uniform rule and according to its true value in money.

“5. A petition for such injunction, which shows that the plaintiff’s property was valued only at 80 per cent, of its true value in money, while other property in the county was valued at only 40 per cent, of its value, and .avers that such valuations were unequal, unjust and illegal, does not state sufficient facts.”

In “3” observe the words “in the absence of fraudulent discriminations. ’ ’ Such discriminations are charged in the instant case. Under “4” there must be a showing of assessment to “a greater amount than would have been imposed,” etc. Such a showing is .alleged here. Under “ 5 ” the facts alleged appear insufficient because as stated in the opinion (page 582) the discrimination is not alleged to be the result of a “fraudulent conspiracy or combination, or rule,” etc. Plaintiffs petition contains such allegations.

McCurdy v. Prugh, 59 O. S., 465, is also relied upon by defendants. The principle is thus stated in clause 2 of the syllabus :

“Where property has been valued for taxation and taxed at its true value in money it is no defense against the payment of such tax that all other property within the state, through the mistaken or imperfect judgment of the taxing officers and equalizing boards, has been valued for taxation materially below its true value in money.”

It will be noted that this case denies relief where the discrimination complained of arises through the mistaken or imperfect judgment of the taxing officers and boards.

Among the state eases cited by counsel for plaintiff which support his petition are: C., B. & Q. R. R. v. Com’rs, 54 Kan., 781; Bank v. Lyon, 83 Kan., 376; Lively v. M. K. & T., 102 Tex., 545; Randall v. Bridgeport, 63 Conn., 323; Ute Creek Ranch Co. v. McBride, 150 Pac., 52; Bank v. Christener, 118 Pac. (Utah), 778; People v. Woodbury, 133 N. Y. Supp., 137.

No case has been cited which denied relief from gross inequality in valuation for taxes because of the fact that the property upon which relief has been sought has not been valued beyond its true value in money where it is clearly shown that more than its just share of the burdens of public taxation has been imposed through*the operation of an unjust and unconstitutional law, or by deliberate and intentional disregard of proper laws by the officials charged with their execution.

The fact that plaintiff in his amended petition admits that his real estate was assessed at its true value in money is not .a sufficient reason for denial of relief when the other allegations of the petition are considered. The primary purpose of requiring taxes to be levied according to the true value of property is to secure the “uniform rule” which the constitution imposes. It is no answer to a complaint that property has not been taxed by the required uniform rule to say that the property for which relief is sought is not listed beyond its true value in money where it appears that the requirement of uniformity has been intentionally violated by listing all other property at less than its true value. This matter has been so clearly and fully discussed in the cases cited above (especially in the opinion of Judge Taft in 88 Fed.), that it is only necessary to refer to them.

The demurrer to the amended petition is overruled.

The ease proceeded to be heard upon the pleadings and the evidence.

In the amendment to defendant’s answer res ad judicata is pleaded, relying on the case of Zangerle v. State, ex rel Heald, which has been previously discussed. The answer also pleads payment of taxes by plaintiff on the same valuation in 1915, as an estoppel. This plea can not be allowed, as plaintiff is not seeking to recover any part of the 1915 taxes so paid, and such payment would not prevent him in any way from criticizing the duplicate of 1916. The answer, outside of certain admissions, contains a general denial, and therefore an issue of fact is raised.

While a careful consideration of the evidence leads the court to believe that great inequalities appear in the tax valuations of the county which would not exist if all the provisions of the law had been fully observed, yet we are unable to find that the allegations of the petition have been so proved, by clear and convincing evidence to the satisfaction of the court, as to require the relief sought.

Judgment must therefore be entered for defendant.

Gorman, J., and Hamilton, J., concur.


author: Chittenden, J.

text:
    OPERATION OF A MOTOR VEHICLE WHILE INTOXICATED.
    Court of Appeals for Lucas County.
    George DeMuth, Superintendent of The Toledo Workhouse, v. State of Ohio, ex rel Thomas J. Connors.
    Decided, December 11, 1916.

      Jurisdiction of Mayor in Prosecution of Misdemeanors—Waiver of Jury Need Not be in Writing—Plea of Guilty Amounts to Such Waiver—Judicial Notice by Courts of Statutory Law.

    1. The courts take judicial notice of the statutory law of the state and of the population of its cities,-and it is therefore within the knowledge of the court that the city of Norwalk has no police court.
    2. The mayor of a municipality has final jurisdiction to hear and determine prosecutions for misdemeanors, notwithstanding the right to a trial hy jury, if, before the commencement of the trial, the accused waives a jury trial.
    3. A waiver of a jury trial in the prosecution of a misdemeanor before a mayor need not he in writing and a plea of guilty entered hy the defendant in such prosecution amounts to such waiver.

      Irving Carpenter and R. D. Wickham, for plaintiff in error. Jesse Vickery and Rupert Holland, contra.
   Chittenden, J.

Error to the court of common pleas.

In June, 1916, the relator, Thomas J. Connors, was arrested on a charge of operating a motor vehicle upon the streets of the city of Norwalk, Huron county, Ohio, in a state of intoxication, upon an affidavit filed by the chief of police of the city of Nor-walk. The defendant therein appeared before the mayor of the city and pleaded guilty to the charge, whereupon the mayor sentenced the defendant to imprisonment in the Toledo workhouse for six months and to pay a fine of one hundred dollars and costs. The defendant was transported to the Toledo workhouse and thereupon brought- an action in habeas corpus in the Probate Court of Lucas County, Ohio, for the purpose of obtaining his release. Upon a -hearing in that court it was found thafj Thomas J. Conners was unlawfully restrained of his liberty and he was discharged. Error proceedings were prosecuted to the common pleas court in which court the judgment of the probate court was affirmed. This proceeding is to secure a reversal of that judgment.

The first contention made by the defendant in error is that the record does not show that the city of Norwalk is a city not having a police court, and that, therefore, the jurisdiction of the mayor is not shown. The courts of this state will take judicial knowledge of the statutory law of the state and of the population of its cities. It is consequently within the knowledge of the court that the city of Norwalk does not have a police 'court. Therefore, the claim of the defendant in error in this respect is not well founded.

The principal contention is that the record shows that the affidavit upon which the warrant for the arrest of Connors issued, was not made by the person injured and that, therefore, the mayor had no power to impose the penalty of the statute, upon a plea of guilty, but that he was only empowered to bind him over to a proper court. This contention is based upon the provisions of Section 13510 of the General Code. The plaintiff in error contends that the action is not governed by that section of the General Code, but by Sections 4528 and 4530, General Code. These sections read as follows:

“Section 4528. He shall have final jurisdiction to hear and determine any prosecution for a misdemeanor, unless the. accused is, by the Constitution, entitled to a- trial by jury, and his jurisdiction in such.cases shall be co-extensive with the county.

“Section 4530. He shall have such jurisdiction in the cases mentioned in the last two sections, notwithstanding the right to a jury, if before the commencement of the trial, the accused waives a jury trial.”

The relation of Section 4528, General Code, to Section 13510, General Code, was discussed and determined by the Supreme Court of this state in State v. Borham, 72 O. S., 358. The court did not undertake to reconcile these sections but found them to be in conflict. An examination of the history of the statutes showed that Section 13510 was enacted long before Section

4528, and the court held that the latter section should be given full effect in determining the final jurisdiction of the mayor in the prosecution of misdemeanors when the accused was not entitled to the constitutional right of trial by jury. The Supreme Court did not discuss Section 4530, General Code, as it was in no way involved in the case then under consideration. Section 4528 and Section 4530 were, however, enacted at the same time and first appear in the revision of 1880' as Sections 1817 and 1818, Revised Statutes. All the reasoning of the Supreme Court in State v. Borham applies with equal force to the discussion of Section 4530 as it may be affected ’by Section 13510, and we hold that the mayor has final jurisdiction to hear and determine prosecutions for misdemeanors, notwithstanding the right to a trial by jury, if, before the commencement of the trial, the accused waives a jury trial.

It therefore remains to determine whether a plea of guilty amounts to a waiver of trial by jury. It will be observed that Section 4530 does not require such waiver to be in writing as does Section 13511, General Code, which provides for proceedings before a magistrate. While it is true, as said in State v. Borham, that the mayor is, technically, a magistrate and, therefore, the two sections last cited are not in harmony, we hold that the later Section, 4530, should have effect given to its plain terms and that there is no justification for reading into that statute a provision that such waiver must be in writing.

The circuit court in Wood county in Hillier v. State of Ohio, 16 C. D., 777, held that:

“The right of trial by jury is waived by entering a plea of guilty in a' criminal prosecution before a mayor having complete jurisdiction. ’ ’

Counsel for defendant in error contend that this latter decision is in conflict with the decision of the Supreme Court announced in the case of Hanaghan v. State, 51 O. S., 24. The circuit court, however, had that case before it when consider-in the case of Hillier v. State, and in the opinion discuss the case and distinguish it from the ease then under consideration. Clearly the decision of the circuit court is decisive of the question now under consideration and, if properly decided, it should be followed in the decision of this case. We think that the decision of the circuit court is right.

The Supreme Court, in State v. Borham, also had before them the case of Hanaghan v. State and declined to consider it as an authority in that case. 'The Supreme Court in speaking of Hanaghan v. State, said:

“The court in that case was dealing with a trial before a justice of the peace where the accusation was such as gave the accused a right to a jury trial and involved a construction of Sections 7146 and 7147. Revised Statutes (now Sections 13510 and 13511, General Code). No reference whatever was made, and none was needed, to Section 1817. We have no such case.”

We think that the language of the Supreme Court just quoted applies with equal force to the ease now under consideration. Having definitely held that the jurisdiction of a mayor and the jurisdiction of .a justice of the peace are controlled by different sections of the statutes, a decision based upon the statutes governing procedure before a justice of the peace is of but little, if any, value in determining a case based upon the statutory jurisdiction ,and powers of a mayor.

In Carper v. State, 27 O. S., 572, the court say, on page 577:

“A defendant after a trial and verdict of guilty may move the court for a new trial, for any of the causes specified in the code. One who has plead guilty has waived a trial and can not make such a motion. It would be idle, therefore, to ask the question to one who by his plea has waived the right to avail himself of all matters that might arise on a motion for new trial.”

That is to say, the Supreme Court holds that a plea of guilty amounts to a waiver of any trial, either by the court or by a jury.

The effect of a plea of guilty is well stated in 12 Cye., 353.

We find that the mayor of the city of Norwalk had final jurisdiction to dispose of the case and, upon a plea of guilty in that court, he was empowered to impose sentence, and it follows that the relator was legally imprisoned under the sentence and judgment of such mayor.

Tbe judgments of tbe common pleas and probate courts will be reversed and final judgment will be entered herein in favor of tbe plaintiff in error, remanding tbe relator to tbe custody of the superintendent of the Toledo workhouse; and this case is remanded to the court of common pleas for execution for costs and to carry out the judgment-

Richards, J., and Kinkade, J., concur.